‘Where are they supposed to sleep?’: US supreme court hears key homelessness case

With Fruitdale Elementary School in the background, a homeless man adjusts his shoe at Fruitdale Park in Grants Pass, Oregon, on 23 March. Photograph: Jenny Kane/AP

The debate over how US cities can respond to America’s spiraling homelessness crisis reached the supreme court this week, as justices heard arguments over the constitutionality of local laws used against unhoused people sleeping outside.

The justices on Monday considered a challenge to rulings from a California-based appeals court that found punishing people for sleeping outside when shelter space is lacking amounts to unconstitutional cruel and unusual punishment.

The case stems from a 2019 camping ban enacted by city officials in Grants Pass, a small mountain town in Oregon where rents are rising and there is just one overnight shelter for adults. Debra Blake, who had lost her job a decade earlier and was unhoused, was cited for illegal camping. After being convicted and fined, she soon joined other unhoused residents in suing the city.

The city has passed three ordinances that target sleeping and camping in public streets, alleyways and parks. Under those laws, violators can face fines of $295, and repeat offenders can be criminally prosecuted for trespass, punishable by up to 30 days in jail.

In 2022, the San Francisco-based ninth US circuit court of appeals ruled that Grants Pass could not enforce local ordinances that prohibit homeless people “from using a blanket, pillow, or cardboard box for protection from the elements” – a decision that applies across the nine western states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Grants Pass appealed to the supreme court, arguing the ruling left it few good options.

The appeals court ruling built on its 2018 decision, known as Martin v Boise, that first barred camping bans when shelter space is lacking, and which the city is also challenging. It also applies to the nine western states in the court’s jurisdiction. The supreme court declined to take up a different challenge to the ruling in 2019, before the solidification of its current 6-3 conservative majority.

Theane Evangelis, a lawyer representing Grants Pass, said the ruling “really has made it impossible for cities to address growing encampments, and they’re unsafe, unhealthy and problematic for everyone, especially those who are experiencing homelessness”.

During Monday’s arguments, Justice Elena Kagan said the city’s ordinance goes beyond trying to address encampments and public safety and criminalizes unhoused people trying to find a place to sleep.

Justice Sonia Sotomayor asked Evangelis what would happen if Grants Pass’s ban were allowed to stand and other cities adopted similar laws.

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?” Sotomayor asked.

“This is a complicated policy question,” Evangelis responded.

“What’s so complicated about letting someone, somewhere, sleep with a blanket in the outside if they have nowhere to sleep?” Sotomayor said.

The court’s conservative justices, who comprise the majority, seemed receptive to the city’s arguments. John Roberts, the chief justice, pushed back on critics’ claims that the city’s law impermissibly targets a person’s status, which the court ruled in 1962 violates the eighth amendment.

He asked what would happen in the city if the ordinances were to remain blocked.

“The city’s hands will be tied. It will be forced to surrender its public spaces, as it [already] has been,” Evangelis said.

Sweeping implications as homelessness grows

Dozens of briefs have been filed in the case, which has broad implications on how communities nationwide will address homelessness, including whether they can fine or jail people for camping in public.

In March, six members of the US House of Representatives – including Cliff Bentz, whose Oregon district includes Grants Pass, and five congressmen representing California – filed briefs in support of the petition, saying the ruling makes it “practically impossible” for municipalities to combat crime that can occur near encampments.

A coalition of 24 Republican attorneys general led by Montana and Idaho similarly backed the Grants Pass petition.

Homelessness advocates say that if the decision is overturned, it would make it easier for cities to turn to arrests and fines as a way to handle their homelessness problems rather than helping people to get shelter and permanent housing.

“In Grants Pass and across America, homelessness has grown because more and more hardworking people struggle to pay rent, not because we lack ways to punish people sleeping outside,” said Jesse Rabinowitz, campaign and communications director for the National Homeless Law Center. Local laws prohibiting sleeping in public spaces have increased at least 50% since 2006, he said.

Dozens of demonstrators gathered outside the court on Monday morning with silver thermal blankets and signs with slogans such as “housing not handcuffs”. Other rallies were planned in various cities across the country.

The case comes after reports that the US last year saw a dramatic 12% increase in homelessness, which reached its highest level ever recorded, according to a federal report, as soaring rents and a decline in pandemic assistance combined to put housing out of reach for more Americans. About 653,000 people were homeless in the January 2023 count, the most since the country began using the yearly point-in-time survey in 2007.

Public encampments are not good places for people to live, said Ed Johnson, who represents people living outside in Grants Pass as director of litigation at the Oregon Law Center. But enforcement of camping bans often makes homelessness worse by requiring people to spend money on fines rather than housing or creating an arrest record that makes it harder to get an apartment. Public officials should focus instead on addressing shortages of affordable housing so people have places to live, he said.

“It’s frustrating when people who have all the power throw up their hands and say, ‘there’s nothing we can do,’” he sad. “People have to go somewhere.”

The supreme court is expected to rule by the end of June.

Reuters and the Associated Press contributed to this report