Public-Camping Ordinances Survive SCOTUS Challenge, Providing Certainty to Local Governments Policing Illegal Camping

Introduction

Public-camping ordinances across Virginia and the United States dodged a constitutional bullet that would have prohibited criminal penalties for violations those laws if the defendant did not have adequate access to shelter.  Ever since oral arguments in City of Grants Pass v. Johnson were scheduled to be heard, local government officials across the country have been waiting to see if prohibitions on sleeping and camping would have to be rewritten to take into account the availability of adequate access to shelter before enforcement. 

The bottom line of the Court’s late-June, 6-3 opinion: ordinances criminalizing sleeping or camping in public places do not violate the Cruel and Unusual Punishments Clause of the Eighth Amendment of the U.S. Constitution merely because there is not “adequate access to shelter” in the jurisdiction, i.e., because there are more homeless individuals than available beds under shelter.  Justice Gorsuch, writing for a six-justice majority explained that the Eighth Amendment does not place limits on what conduct a locality may criminalize—it only places limits on what punishments the locality may impose on violators.  The ability of local governments to enforce public-camping ordinances will not be encumbered by Eighth Amendment challenges for the foreseeable future after the opinion in Grants Pass.

The Crisis

The public discourse around exploding rates of homelessness in American cities has many flashpoints. From the language used to describe people lacking shelter, to the nexus between homelessness and mental-health infrastructure, to the balance between public safety and individual rights. 

While communities and public-interest groups have grappled with these questions, local government officials have often been left holding the bag, unable to properly access enforcement tools for fear of constitutional violations and carrying the largest share of the burden of providing shelter to people in need. At the same time, those officials face growing pressure to act against violent crime, public drug use, and deteriorating conditions in the places their constituents live and work. The proliferation of public encampments in urban centers across the country has placed these local debates on the national agenda.

In a nod to the prominence of this issue in the public imagination, Justice Gorsuch’s majority opinion lays bare the amount of human suffering caused by homelessness, and the enormity of the public-safety challenges facing our local government officials. Americans of all colors and creeds may find themselves without shelter on any given night; what nearly 80% of them share is a presentation of mental illness and a substance abuse problem. And as the number of unhoused has swelled, makeshift encampments have sprung up all over. This phenomenon has left local government officials, and their charitable partners, to battle disease, drug proliferation, and violence that attends the encampments. The worst of these impacts are felt by the poorest and most vulnerable among us. Alternatives to encampments are, themselves, often plagued by violence, abuse, and resources inadequate to the needs of people living on the streets.

The Ninth Circuit’s Test and Its Fallout

 Five years ago, the U.S. Court of Appeals for the Ninth Circuit issued a landmark ruling in Martin v. Boise, 920 F.3d 584 (9th Cir. 2019), that removed camping ordinances from the toolboxes of local governments in that circuit, including the Pacific Northwest.  The Martin Court held that it violated the Cruel and Unusual Punishments Clause of the Eighth Amendment to enforce public-camping ordinances against homeless individuals who lacked “access to alternative shelter.” 

The test for alternative access to shelter looked at the number of homeless individuals compared to the number of available beds in shelters in the jurisdiction. Importantly, the Martin Court discounted nearly three-quarters of the available beds as “practically” unavailable because the shelters had a “religious atmosphere” and, for that reason, could permissibly exclude some people without homes on religious grounds and could infringe upon some unhoused peoples’ right to be free from religious coercion as a condition of avoiding criminal prosecution. Since the Martin decision came down, local governments in other circuits have wondered if their federal circuits would follow the Ninth Circuit’s lead. Ninth-Circuit localities have seen enforcement of public-camping ordinances frozen by a wave of injunctions. Tension built as calls for the Supreme Court to decide the issue reached a crescendo.

Against this backdrop, the Supreme Court in Grants Pass asserted that practically every city in the Ninth Circuit had already faced a judicial injunction based on Martin, including San Francisco and now Grants Pass. According to San Francisco’s mayor, the injunction against that city had “severely constrained San Francisco’s ability to address the homelessness crisis.” 

The Supreme Court Clarifies the Role of the Eighth Amendment

The Supreme Court overturned the injunction prohibiting the City of Grants Pass, Oregon, from enforcing its public-camping ordinances, holding that these ordinances did not violate the Cruel and Unusual Punishments Clause. Its first reason stated that the Clause limits a government’s authority to impose certain punishments; it does not place limits on what conduct a government may police. The Supreme Court also found that civil penalties for public camping—followed by criminal penalties only after repeated civil infractions—did not qualify as “cruel and unusual,” because it was not designed to “superadd” “terror, pain, or disgrace.” And far from being unusual, most cities in the country have public-camping ordinances on the books with similar enforcement mechanisms.

The Court rejected the argument that public-camping ordinances criminalize the “status” of being homeless when adequate access to shelter is not available. In Robinson v. California, 370 U.S. 660 (1962), the Court invalidated a California state statute that criminalized “be[ing] addicted to the use of narcotics.”  Under the police power, a state may criminalize the use and possession of narcotics, even by an addicted person; but the government may not criminalize the status of being an addict. For the crime of status, even one day in prison is cruel and unusual, the Robinson Court held.

Grants Pass’s ordinances bear no resemblance to the California statute at issue in Robinson, the Supreme Court said, because they “forbid actions like ‘occupy[ing] a campsite’ on public property ‘for the purpose of maintaining a temporary place to live.’” These ordinances do not target individuals experiencing homelessness; the ordinances constrain a backpacker in exactly the same way. The Court’s majority rejected the dissent’s argument that criminalizing outdoor camping for people without homes was, de facto, the same as criminalizing the status of being unhoused because people have a biological need to sleep which cannot be fulfilled by someone without a home except by camping.

Finally, the Supreme Court rejected the argument that Robinson should be extended to “involuntary” acts—like being unsheltered—because criminalizing such actions allegedly rises to the level of criminalizing “status.”  Providing constitutional immunity to such “involuntary” acts would require the Court to come up with its own formula in every case for whether a criminal act was “voluntary,” something the courts are not equipped to do.

Legal Takeaways

• The Cruel and Unusual Punishments Clause does not limit a locality’s authority to enact and enforce public-camping laws with civil penalties followed by misdemeanor criminal charges.
• Constitutional requirements under the Due Process Clauses and Free Speech Clauses of the federal and Virginia constitutions are not impacted by this opinion. The Court did not decide whether a criminal prosecution for camping, in a jurisdiction where there is inadequate shelter, would violate the Constitutional guarantee of due process.
• Justice Gorsuch reminds readers that Grants Pass does not affect a defendant’s ability to bring affirmative defenses to a criminal prosecution for unlawful camping, including necessity or duress defenses, in jurisdictions, like Virginia, that recognize them.

Contact Sands Anderson's trusted local government counsel to ensure your ordinances are drafted and enforced intentionally, smartly, and constitutionally.