Camping Revisited: U.S. Supreme Court Changes the Landscape of Penalizing Public Sleeping

The U.S. Supreme Court (Supreme Court) issued its opinion in City of Grants Pass v. Johnson (Grants Pass) on June 28, 2024. The case addresses the following legal question related to a local government’s homelessness response: Do local ordinances imposing criminal penalties on acts like public sleeping or camping violate the Eighth Amendment’s cruel and unusual punishment prohibition if they apply to unhoused persons who lack shelter options?

The Grants Pass opinion answers “no,” reasoning that the Eighth Amendment doesn’t determine whether localities can criminally penalize acts — it only regulates what penalties a locality can impose for criminal acts. The Grants Pass decision gives local governments a greater ability to enact and enforce criminal penalties for acts like public camping or sleeping — even in localities where limited local shelter space contributes to these acts.

A summary of the opinion and what it means for Washington localities follows.

The Grants Pass Case

City of Grants Pass v. Johnson dealt with three Grants Pass, Oregon, ordinances related to sleeping and camping on public property, and whether the ordinances violate the U.S. Constitution’s Eighth Amendment prohibiting cruel and unusual punishment.

Grants Pass is a southwest Oregon city with a population of 38,000 that includes an estimated 600 unhoused persons. The city’s homelessness response included enacting three ordinances prohibiting “sleeping on public sidewalks, streets or alleys, camping on public property, and camping and overnight parking in city parks.” The ordinances impose escalating penalties for violations that can eventually lead to criminal trespass prosecution and jail time for repeat violations.

Two unhoused plaintiffs sued Grants Pass in the Oregon U.S. District Court (on behalf of a class of unhoused persons in the city), arguing that the ordinances violate the Eighth Amendment’s prohibition on cruel and unusual punishment. The plaintiffs relied primarily on two court cases to support their arguments against the Grants Pass ordinances:

• Robinson v. California (Robinson): A 1962 Supreme Court decision ruling that a California criminal law punishing persons for being addicted to narcotics violated the Eighth Amendment’s ban on cruel and unusual punishment because it punished persons for their “status” as opposed to their actions.
• Martin v. City of Boise (Martin): A 2019 Ninth Circuit Court of Appeals (Ninth Circuit) case that struck down a Boise misdemeanor ordinance prohibiting camping on city streets, sidewalks, parks, or public places as cruel and unusual punishment. Relying in part on Robinson, Martin ruled that Boise’s ordinance impermissibly punished unhoused persons for acts they were forced to commit because of insufficient available shelter space.

The plaintiffs argued that the Grants Pass ordinances violated Robinson and Martin because the city’s lack of available shelter space rendered its unhoused population “involuntarily” homeless, essentially forcing them to violate city ordinances since there were no available shelter options.

The Oregon U.S. District Court (District Court) agreed with the plaintiffs and ordered Grants Pass to stop enforcing its ordinances. The Supreme Court agreed to hear the case after the Ninth Circuit affirmed the District Court’s decision.

The Supreme Court’s Opinion

The Supreme Court’s opinion reverses the District Court’s decision and overturns Martin.

The opinion holds that localities do not violate the Eighth Amendment by enacting and enforcing ordinances imposing commonly used criminal penalties (like fines and jail time) for public sleeping and camping offenses. The opinion addresses both the legal and practical aspects of these local ordinances in reaching its conclusion.

Legal considerations

On the legal side, the Supreme Court analyzed the Eighth Amendment’s prohibition on cruel and unusual punishment and what it is intended to prohibit. The Supreme Court rejected the District Court’s Eighth Amendment decisions, ruling:

• The Eighth Amendment’s prohibition on cruel and unusual punishment regulates only the type of punishment a locality can impose for an offense — not whether the locality can or should punish an offense to begin with.
• Grants Pass’s ordinances do not violate Robinson because they do not punish the “mere status” of homelessness. Instead, they forbid only actions like public sleeping and camping, and they apply regardless of “whether the charged defendant is homeless.” Robinson does not prohibit localities from criminally penalizing acts that “society has an interest in preventing,” even if a person’s status or circumstances contribute to the prohibited act “in some sense.”
• The jail time and fines imposed by the Grants Pass ordinances are not cruel or unusual punishment methods. To the contrary, these forms of punishment are not designed to inflict “terror, pain or disgrace,” and they remain commonly used across the country to address many criminal acts.

Practical considerations

On the practical side, the Supreme Court criticized the Martin ruling as an “experiment” that is essentially unworkable in practice for many localities. For instance, the Supreme Court posed many questions in assessing the practicalities of Martin’s ruling on localities seeking to regulate public sleeping or camping, including this:

[H]ow are city officials and law enforcement officers to know what it means to be “involuntarily” homeless, or whether any particular person meets that standard? …  Is it enough that a homeless person has turned down an offer of shelter? Or does it matter why [they turned it down]?

Notably, while homeless shelter space existed in cities involved in both the Martin and Grants Pass cases, the lower courts in those cases still concluded that the space was “unavailable” to certain persons due to religious or other conditions the shelter imposed. In response, the Supreme Court questioned which shelter beds would count as available under such requirements, asking:

Is a bed "available" to a smoker if the shelter requires residents to abstain from nicotine … Is a bed "available" to an atheist if the shelter includes "religious’" messaging?

Additionally, the Supreme Court focused on the requirement that a locality must provide adequate shelter, asking, “How is a city to know whether the accommodations it provides [to unhoused persons] will prove ‘adequate’ in later litigation?”

And finally, the Supreme Court asked how far Martin’s prohibition against ordinances punishing public camping offenses goes. Does it only forbid laws that punish the use of a blanket, or does it also prohibit laws against other aspects of camping and sleeping outside, such as the use of tents or portable heaters, or the acts of starting fires or public urination and defecation?

Given these and other practical questions that have left localities with few “entrenched answers,” the Supreme Court concluded that federal courts “removed from the realities on the ground” have issued Ninth Circuit decisions like Martin with uncertainties that have “plunged courts and cities across the Ninth Circuit into waves of litigation.”

The Supreme Court concluded by reversing the District Court’s order stopping Grants Pass from enforcing its public camping and sleeping ordinances and, in effect, abolishing Martin.

What the Grants Pass Decision Means for Localities

The Grants Pass decision means that localities may impose criminal penalties for acts like public camping and public sleeping without violating the Eighth Amendment — even if they lack sufficient available shelter space to accommodate their unhoused population.

Despite this clear Supreme Court ruling, local governments that are contemplating enacting and enforcing public camping and sleeping-related ordinances should take the following into consideration.

Punish acts, not status

In upholding Grants Pass’s ordinances, the Supreme Court noted that the ordinances punished certain acts regardless of the underlying circumstances, stating:

[U]nder the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.

Localities contemplating similar laws should ensure that they are written and enforced to punish acts regardless of the charged defendant’s circumstances.

Consider types of punishment

The Grants Pass ordinances imposed progressive punishment, starting with fines and escalating to the potential for 30 days in jail for repeat violations. The Grants Pass decision does not explicitly require a progressive punishment scheme for public camping or sleeping offenses, but localities enacting these ordinances may want to consider a similar penalty structure (since Grants Pass’s ordinances have survived Supreme Court scrutiny).

Ensure shelter and wraparound services are provided

In reaching its decision, the Supreme Court noted that Grants Pass had a “multi-faceted” approach to homelessness in its jurisdiction, which included outreach efforts and providing information about assistance programs and other resources.

While not required by the Grants Pass decision, adopting such practices to complement potential criminal enforcement will remain good local practices to demonstrate that other available measures are being used to address homelessness, and that only the most willful violators are prosecuted.

Note impacts to law enforcement

Localities choosing to enforce criminal restrictions on public camping and sleeping should consider law enforcement implications. For example, will the very act of camping in the presence of an officer be sufficient for arrest without a warrant under RCW 10.31.100? Will certain circumstances justify citation and release instead of jail booking, and if so, how will such policies be equitably applied? How will criminal arrest and enforcement of these ordinances fit with policies regulating use of force?

Prepare for a shift in legal issues

The Grants Pass decision moves the homelessness regulation battle from a constitutional debate in city hall over ordinance enactment to a courtroom dispute over the facts of individual criminal cases.

If localities enact and prosecute the local ordinances like those that Grants Pass permits, they may see increases in claimed court defenses, such as necessity, diminished capacity, duress, or a violation of the Washington State Constitution’s prohibition on cruel punishment (which the Washington Supreme Court has ruled provides greater cruel punishment protection than the Eighth Amendment). Local law enforcement and prosecutors should be prepared to evaluate whether and how such defenses may apply to impact specific cases.

Conclusion

While debates over effective strategies to reduce homelessness will undoubtedly continue and unanswered questions still remain, the Grants Pass decision brings clarity and offers flexibility in allowing localities to consider criminal enforcement as a means to address certain behaviors on public property.