The U.S. Supreme Court ruled that cities can decide to pursue limits or bans on individuals sleeping outside. [Original caption: Andrea McChristian of the Southern Poverty Law Center speaks about homelessness issues alongside housing advocates and progressive members of Congress in front of the Supreme Court on April 19, 2024. The Supreme Court is considering City of Grants Pass v. Johnson which questions if fining or arresting involuntarily homeless people for camping in public spaces violates Eighth Amendment protections against cruel or unusual punishment. Credit: Gillian Brassil via TNS]
In a 6-3 decision divided along ideological lines, the Court’s conservative majority upheld a ban on camping outdoors in Grants Pass, Oregon, which has been trying to address issues of homelessness in its community where there is only one homeless shelter. The Court struck down a previous ruling by the U.S. Court of Appeals for the Ninth Circuit, which stated banning a person from sleeping outside when no shelter beds are available is cruel and unusual punishment under the Eighth Amendment.
Justice Neil Gorsuch delivered the Court’s majority opinion, Justice Clarence Thomas delivered a concurring opinion and Justice Sonia Sotomayor — joined by Justices Elena Kagan and Ketanji Brown Jackson — delivered the dissenting opinion.
A report by the U.S. Department of Housing and Urban Development found that 653,104 people experienced homelessness on a single night in the U.S. in 2023.
According to a Point-in-Time report on homelessness conducted by the Community Shelter Board in April 2024, 2,380 people were experiencing homelessness in Franklin County. The number of people living outside or in places not meant for habitation increased by 3% from 2023.
Background of the Supreme Court decision
Grants Pass is a small town in Oregon with a population of around 38,000 people. On any given night, there are 600 homeless individuals in the city, according to the case syllabus. The town has ordinances that do not allow camping on public property or sleeping overnight in city parks.
According to the syllabus, the city imposes limited fines for first-time offenders, an order temporarily banning an individual from camping in a public park for repeat offenders and a maximum sentence of 30 days in jail for those who violate the temporary-ban order.
A group of homeless individuals challenged the ordinances by suing the city, with lower courts deciding the ordinances indeed violated the plaintiffs’ Eighth Amendment protections against cruel and unusual punishment.
It was about time for a case like Grants Pass to be considered by the Supreme Court, Joshua Dressler, distinguished university professor and professor of law emeritus at the Moritz College of Law, said.
“I think the reason, probably, that they took it on is that homelessness is a huge problem,” Dressler said. “Cities and communities and states are trying to struggle with it.”
Additionally, Dressler said there is previous case law from the 1960s that the Court wanted to undermine or nullify.
These cases include Robinson v. California, which concluded that those with drug addiction cannot be imprisoned for having an addiction under the Eighth Amendment, and Powell v. Texas, which concluded that a law prohibiting public intoxication does not punish someone for alcohol addiction, but rather for being drunk in public, which is not cruel or unusual punishment under the Eighth Amendment.
In the Robinson case, Dressler said the Court partly based its decision on the idea that the appellant, Lawrence Robinson, was being convicted for the status of being a drug addict, not for the actual use or sale of drugs. Dressler said the Court analogized the decision to someone being punished for having a venereal disease.
The Powell case reached a different view of status. Dressler said the Court argued the appellant, Leroy Powell, was punished for the act of being drunk in public, not for his status as someone with an alcohol addiction.
A key piece of the Powell case that has played a part in lower court decisions against Grants Pass is a concurring opinion by Justice Byron White, Dressler said. In his opinion, White said if Powell had been homeless — which he wasn’t at the time of his disputed arrest — then he may have been protected under the Eighth Amendment because he would have no other place to feed his addiction other than in public.
“Justice White, plus the four dissenters in the case that were prepared to give Powell the win in the case, meant that maybe, just maybe, that people who are punished who are homeless, might very well fall within the Eighth Amendment,” Dressler said. “And that was the basis for the lower court cases in the Grants Pass case.”
Dressler said the Supreme Court saw Justice White’s opinion as a tool the lower courts could use to side with the homeless plaintiffs in the Grants Pass case.
“The Supreme Court, in some sense, felt that here were these lower courts, two or three of them actually, seemingly siding with the homeless, using the Eighth Amendment, and using Justice White’s opinion, along with the four dissenters in Powell,” Dressler said. “[The Court] probably felt they needed to get this thing straightened out. And of course, that’s really what they did. They very explicitly stated in the majority opinion in Grants Pass that White’s opinion should be ignored.”
Similar to Powell’s act of being drunk, Dressler said the Court views sleeping outside as a punishable act, not a protected status.
“The catch-22 is if you are sleeping out on the sidewalk or you’re sleeping in your car, in public areas, in public parks, etc., that’s an act, the act of putting yourself down on that sidewalk and covering yourself up with a blanket and sleeping at night or putting your car in a public park in Grants Pass and sleeping there or are just staying there,” Dressler said. “That is an act. It’s more than just a status, just as being an alcoholic is a status. But then the symptom of being an alcoholic, of course, is drinking. And that’s an act. And so the same thing here. Well, you’re homeless, but your decision to sleep where you’re told not to sleep is an act.”
Possible implications for homeless population under Grants Pass decision
Some experts on homelessness and its causes have expressed concern over the Grants Pass ruling, like Katie Calhoun, an assistant professor in the College of Social Work who was part of an amicus brief — or a written argument to the Court providing additional input and information from a group or individual, usually in support of either the petitioner or respondent — for this case.
Calhoun said this decision is likely to make the lives of homeless people more difficult, and it does not address the core issues of poverty and lack of housing.
“Fining people who are living in poverty doesn’t really help the situation at all,” Calhoun said. “So it certainly won’t improve homelessness [or] reduce homelessness. And really, it’ll just make the lives of folks who are really in need that much harder.”
Calhoun said due to increases in the United States’ homeless population, there are not enough shelters available to keep up with demand. Now, with the Grants Pass ruling, the lack of shelters poses an even larger problem to homeless individuals.
“As we’re seeing increases in homelessness, [there’s] potentially less shelter beds or less resources available for folks because of these increases in homelessness,” Calhoun said. “There won’t be resources available to people and even then, they could still be arrested or fined for their situation.”
Several lawmakers, like California Gov. Gavin Newsom, welcomed the ruling as an opportunity for cities to better deal with homeless encampments. Calhoun said she understands that lawmakers want to address the public safety issues that come with homelessness, but this ruling is not the way to do it.
“Forcefully removing people is not helpful in any way,” Calhoun said. “And it makes it harder for service providers to provide services when maybe they knew where somebody was, but now they’ve been forcefully displaced and now they don’t know where they are.”
Often, Calhoun said, clearing encampments just results in people moving down the road. The best long-term solution to the United States’ homeless issue is making housing more affordable, she said.
Ben Sears, community engagement coordinator for the Columbus Coalition for the Homeless — which “comprises a network of service providers, homeless persons and community residents,” according to its website — said housing is the ultimate solution to homelessness, but the new potential for fines or jail time may complicate people’s paths to income and housing.
“It’s going to be an annoyance for the individual that they’ll lose all their things,” Sears said. “They’ll continue to be in and out of jail. It’s going to be a barrier if they are on a housing pathway, or a lot of individuals outside are working part-time or full-time jobs, so they’re going to lose employment. It’s going to complicate their housing pathway. And it’s just not helpful at all.”
Previously, individuals were not necessarily being arrested “just for being homeless,” Sears said, but rather for other crimes.
“Oftentimes, there’s things that they engage in, like public intoxication or using the bathroom in the public, or trespassing or loitering,” Sears said. “These are all things that are unavoidable by being homeless. But with this change, technically, their existence being outside puts them at risk.”
Sears said he is worried that communities surrounding Columbus will enact bans or limits on sleeping outside, which will force more homeless people into Columbus, overwhelming available resources.
“As they begin to criminalize those individuals experiencing homelessness in these suburbs, they’re going to push more people into Columbus,” Sears said. “And we already have a rapidly growing population experiencing homelessness and unsheltered homelessness, and it’s getting more and more difficult for those individuals to access housing and employment.”
Next steps for Columbus
Melissa Green, Columbus City Council member and chair of the Health, Human Services and Equity Committee, said it is not Columbus’ goal to seek a ban on camping outside overnight or similar limits.
“I don’t think that that’s our intention at all,” Green said. “Nor should it be. I think that we know that criminalizing homelessness, criminalizing people for sleeping outside, has never ended homelessness and it is never going to end homelessness. It is a kind of flawed logic behind doing that — incarcerating our most vulnerable neighbors.”
With the rise in cost of living and housing in Columbus, Green said the city council has been pursuing initiatives to address these issues. A new zoning plan to increase density along certain corridors in the city has the potential to bring 88,000 housing units to Columbus, Greene said. Without the zoning changes, there would only be an increase of 6,000 units.
Green said the city council passed an increase in funding this year for the Community Shelter Board, a collective impact organization “driving strategy, accountability, collaboration and resources to achieve the best outcomes for people facing homelessness in Columbus and Franklin County,” according to its website. The council typically contributes $5.5 million annually, but they sponsored an additional $9.4 million this year, Green said.
In 2023, the council announced a 12-policy legislative package to tackle the lack of affordable housing, including initiatives like requiring a 180-day notice for rent increases and providing legal representation to tenants in eviction court.
“We are incredibly committed to moving forward with policies and investing in programs that are supporting our neighbors in the most holistic, person-centered type of way,” Green said.
