Will They Stay or Will They Go? SCOTUS Hears Argument On Constitutionality of Anti-Camping Ordinance Applied to the Homeless
The parties argued over whether applying the anti-camping ordinance against people without access to shelter was inherently cruel and unusual in violation of the Eighth Amendment
The U.S. Supreme Court heard oral arguments on Monday, April 22, 2024, in a case challenging the constitutionality of anti-camping ordinances enforced against the homeless. The parties asked to court to determine whether enforcing the ordinance violates the Eighth Amendment’s bar on cruel and unusual punishments.
The case came on appeal from the Ninth Circuit, which held that enforcing the ordinance is unconstitutional if the number of homeless people exceeds the number of available shelter beds.
The ordinance, enacted by the petitioner Grants Pass, Oregon, prohibits “occupy[ing] a campsite” on public property, including a park. “Campsite” is defined as “any place where bedding, sleeping bag, or other material used for bedding purposes . . . is placed.”
Individuals violating the ordinance face a maximum civil penalty of $537.60, which includes a failure-to-pay penalty. Habitual violators are subject to incarceration for criminal trespass.
The Ninth Circuit held that the Eighth Amendment prohibits punishing a person for having an involuntary status like homelessness during a shelter bed shortage.
The Ninth Circuit found support for this position in the U.S. Supreme Court decision Robinson v. California (1962), a challenge to a California law criminalizing drug addiction.
The Robinson Court held that the government may not criminalize the status of being a drug addict even though it may criminalize the conduct of drug use.
Grants Pass countered that while homelessness may be a status, sleeping in public—even if a logical necessity of that status—is conduct within the reach of the city’s police power.
Grants Pass further argued that, with the exception of Robinson, the Eighth Amendment’s ban on cruel and unusual punishment has historically only applied to what punishments may be imposed for a crime, not what conduct may be criminalized.
Oral arguments focused heavily on the distinction between status and related conduct as well as prohibitions on engaging in biological necessities in public, like sleeping and eating.
Justice Elena Kagan told Grants Pass’s counsel, Theane Evangelis, that “it seems like you’re criminalizing a status,” homelessness, because “we only come up with this problem for a person who is homeless, who has the status of homelessness, who has no other place to sleep.”
Justice Ketanji Brown Jackson followed up, asking Evangelis to explain why the ordinance did not target status.
Evangelis replied that, unlike in Robinson, the ordinance prohibited an act—sleeping in public—not a status—drug addiction.
Justice Brown continued this line of inquiry with the example of a hypothetical ordinance prohibiting eating in public to prevent “problems with trash and rodents and the like.”
Justice Jackson asked Evangelis whether that ordinance, covering “a human necessity” like eating, would violate the Eighth Amendment as applied to people who had nowhere else to eat, such as the homeless.
“I think the Eighth Amendment is the wrong way to look at it,” Evangelis replied. “Someone might have a [Fourteenth Amendment] due process challenge to a law like that if there is a deeply entrenched liberty interest.”
Edwin Kneedler, the Deputy U.S. Solicitor General, represented the United States at oral arguments supporting neither party.
The Chief Justice continued the inquiry with Kneedler into conduct that results from a biological necessity, asking, “if someone is hungry and no one is giving him food, can you prosecute him if he breaks into a store to get something to eat?”
“Absolutely, absolutely. Breaking into — into a store is a common crime that not everyone engages in, unlike sleeping,” Kneedler replied.
Kelsi Corkran represented the respondents, Gloria Johnson and other homeless individuals. Corkran argued that the ordinance had the “purpose and effect . . . to make people with a status [of homelessness] endlessly and unavoidably punishable if they don’t leave Grants Pass.”
Justice Clarence Thomas was the first to question Corkran: “Is there an ordinance here that says ‘to be homeless’ is a crime?”
“So the language . . . bakes homelessness into the — the definition of the offense” because homelessness is by definition not having a fixed address, Corkran replied.
Justice Neil Gorsuch refocused the inquiry on the historical understanding of the Eighth Amendment and perceived deficiencies in Robinson:
Robinson’s Eighth Amendment holding . . . didn’t have a whole lot of citation or support, it came kind of in a breezy paragraph.
* * *
And some have suggested that that’s really a mistake because the Eighth Amendment’s about punishments. It doesn’t prevent states — limit states’ capacity to engage in passing laws that make conduct or actions or anything a crime. It just goes to the nature of what punishments follow.
Justice Gorsuch instead suggested that the Fourteenth Amendment, with its guarantee of due process, might be a better vehicle for resolving the dispute at issue.
To that end, Justice Gorsuch highlighted the defense of necessity, which “has been always understood as inhering in due process from the founding.”
Oral argument transcript:
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Comments
The law abiding property respecting people get ordinances dumped on them while the squatters get the run of the land. It wouldn’t be as much of a problem if they respected where they are. Rewriting the classic leftist song…”their land is their land, your land is their land from California to the New York islands”… and how.
The problem can be solved by bringing back “poor farms”.
I could sure use cheap labor that would solve a lot of problems.
Those loser Okie’s deserved to be dusted up and beat down. Why, some dared flee to the west coast.
The whole family working Oregon and Washington state peach and apple orchards. G’damn vagrants. 60 days on the rocks, Mr.
The good old days!
God help us if scotus can’t see how uncivilized the situation is. The 9th never should have stuck its nose in, but it has zero humility….
Ship them off to work camps in Alaska.
Work camps to clean litter and gather crops in the San Joaquin valley and NO border crossing itenerants.
Build Back Better! hats come with earmuffs, unlike MAGA hats 😉
Those aren’t earmuffs, those are vulvae.
Glutes.
Sadly, I think Grant’s Pass will lose. Mostly because of the Warren Court’s decision in Robinson. From listening to the exchanges the justices had with both sides it seems being without a home is going to be considered a status so the 8th amendment ban on cruel and unusual would apply to behavior (sleeping outdoors) that is a direct result of that status. At best the cities under the injunction can hire people to clean shit and piss of the sidewalks and maybe build pedestrian pathways over the encampments to allow passage. Local businesses are just going to have to close up and take their tax dollars elsewhere.
Sl;eping is not the issue, nor is sleeping outdoors. Nor is being homeless. I do not have the liberty to go into my neighbour’s yard and set up my tent without his consent.
I have been observing the homeless” situation i my town (much like Grant’s Pass)
Too bad the Citym in their persuit of this matter, did not take depostions from large numbers of those “homeless”. Had they done, they would have proof positive that the vast najority of those “homeless” have come into that city and surrpoundfs from elsewhere. In other words, they have freely CHOSEN to leave wherever they were previously and relocate themselves to Grant’s Pass. On WHAT BASIS do these people ECPECT and DEMAND the City of Grant;s Pass supply them with a place to sleep? Where were they sleping before arriving in Grant’s Pass? WHY are these people needing handouts wherever they go? I can tell you.. NONE of them WANT to work. They are i it for the free ride. Well there is a bible verse that happens to fit right here:
if a man WILL NOT work (he refuses to work) NEITHER SHOULD HE EAT.
The “poor” is one issue, but these folks are not poor, they have freely chosen to notwork and hold their hands out for others to take care of them. Grant’s Pass, by this law, are trying to protect themselves from such grifters and freeloaders. Hope they win.
I seriously would like to know the history of saym the last ten years, of this elad plaintiff. WHERE has she lived over that time, where has she worked? HOW did she get to Grant’s Pass, and when?
I’m terrified the SC will allow these drug addicts to continue to destroy this country, one city at a time
I live near Austin Tx which has thousands of these thugs and they continue to push boundaries to come into our county
I found an addict, clearly and probably mentally ill balck guy camping on a”public” area coming into mug subdivision. It was hell getting the police to do anything, they finally did with the ex mayor, 2 council members and neighborhood president putting pressure, but if this court screws the tax paying citizens again,I just don’t know , I’ll have to move, buy a few acres and lock and load.
The insanity of this society feeling we must bare and pay for the consequences and choices of others, let them shit, piss, demand money, break into our houses, abuse our children
This shit has got to stop
They don’t want a hand up, they want everything you own
I see the press is solidly on the side of making cities leave the encampments in place. I suggest ,seeing as many of these members of the 4th estate probably have room to spare either inside or surrounding their domiciles, a caravan weave its way towards said domiciles and set up residence. I am willing to accept, that like the journey on Oregon Trail lives may be lost to dysentery. After all new settlements are not built without risk.
“involuntary” … LOL. As in … not willing to work?
I guess it would be un-Constitutional to enforce anti-theft laws against anyone who is just trying to steal something that he “involuntarily” doesn’t have …
Just to entertain such asinine and stupid arguments shows what a sh*tshow this nation has become. If someone is “involuntarily” homeless and puts up an illegal camp on public space (which belongs to the citizenry as a whole, not this individual) then he is not being punished by being given room and board in a jail. That is where he obviously belongs. If he is so bad off that he can’t get a job and can’t get some crappy place then what are the chances he is able to pay for ANYTHING in order to take care of himself (let alone if he has a family and other responsibilities – HA)??
Someone who cannot care for himself, whether involutarily or not – is making himself a ward of the state one way or another. There is certainly no reason to dispense with the decent laws of society in order to accommodate these leeches (and most of them are willfully in their situation). Jail is fine for those breaking the laws regarding taking over public spaces to live. They don’t pay for those spaces. Others pay. And they (and the courts) want others to pay for more and more and more for these leeches who are nothing but an unfair and criminal burden to society.
It is cruel and unusual (and an UNDESERVED PUNISHMENT) to the law-abiding citizenry whose public spaces are being stolen by these irresponsible, criminal, and destructive leeches (aided and abetted by the despicable dirtbags in official office who promote and support this blatant attack on civil society).
Adults have responsibilities – to themselves and to society. Those who cannot carry out the bare minimum of those responsibilities belong in jail.
Here’s an idea that’s been knocking around my brain for a while: I call it vagrancy sentencing. If a person get’s picked up at a homeless camp, and they indeed have nowhere to go, they get sent to jail. But instead of a fixed sentence, they stay there until they have a place to go. Doesn’t matter where, as long as it’s not back to the streets. They can call a friend or relative to come get them, on-site staff can help them apply for subsidized housing, they can be bussed to an area with more freed-up shelters, or moved to a rehab clinic or mental hospital after a psychiatrist evaluation.
There would be some challenges to overcome. First one that comes to mind is overcrowding. A municipality could built special vagrant prisons for this purpose, but getting funding and finding where to put it could be a challenge. And it wouldn’t completely cure homeless. A guy could call his buddy to come pick him up, then drop him off once they’re out of sight. Perhaps those who sign inmates out would be held liable if the inmate get’s caught on the street again. But overall I think this could have potential for at least heavily reducing the homeless problem.
there are Forest Service work camps and other such remote facilities. Play a Joe Arpaio game. Round them uo if they “can’t find a place” bring them to those camps. Feed them barebones food, no frills, yet balanced and nutritious. Not necessarily Blue Star gourmet. Put them all in Pink Onesies. whenever one of the “residents” think they have a better place to go, give them back their old duds and assure they get to their new digs. bus ticket, whatever. Or state Forest Service crummy. Put their name and ID into a registry so when they play hopscotch to the next one. One thing that MUST happen at these holding tanks is an absolute no possibility of anyone in there getting their hands on any drugs. THAT is the root of 90%of this. NGOs fund and even distribute hard drugs to these grifters, often with OUR tax dollars.
Don’t forget the NGO’s that promite and enable this nonsense. they havve an agenda, and it is NOT to “help the homeless”. It us to destabilise our society. These same NGO’s are the ones also aiding and abetting the illegal foreign invasion fro all round the world.
I will bet a stack of green Benjamins against a bo of stale donut holes picjed out of the trash can in Grant’s Pass the lead plaintiff in this case is fuded by a conortium of local NGO’s there in GP.
I think all of those people should be sent to camp on the Lawns of the 9th Circuit Court justices.
Even if SCOTUS takes the conservative position, nothing much will change on the streets in cities in CA. The police aren’t going to put homeless junkies in jail overnight. Police might do a sweep of certain blocks now and then, destroying tents. But its just playing a game of wack-a-mole. They will just pop up again somewhere nearby.
If the homeless were smart they would claim to be seeking asylum and get in line for services.
They cross the border in to mexico, and then return the next day with fictitious name. They would get free hotel room with housekeeping service, free medical insurance coverage, free lunch, more.
Heck with them. Time to brush up on my H.S. Spanish. “Esta Susana en casa?” No that won’t help. “Federales, bang, bang.” O.k. that’s a start.
There is no solution to the problem of homeless people – at least not within a generation.
For far too many years, we have had people who take advantage of both private and public “assistance” programs. We have gone away from the negative stigma of “not working,” to acceptance of people who not only refuse to work, but are proud of working the system.
The work ethos has been eroding for decades. We see it in school where teachers don’t teach, kids don’t learn, and then expected to be rewarded with big buck jobs.
We have people who are willing to accept being high and stoned and then get upset when an employer won’t higher them for a job where people can get hurt.
As a country, we subsidize lack of drive, lack of education, breaking of laws and a lack of a work ethos.
Until we as a country and until well meaning groups put our collective foot down and say “‘yes’ to a hand up” and “‘no’ to a hand out,” things will never change.
Hear, hear!!
There have always been and will always be people for whom adulting is too difficult and they’d prefer to just check out and let someone else take care of them.
The problem with current society is that we don’t discourage them from it, we support them in the endeavor. We don’t even call them what they are any more. We don’t call them bums, or hobos or vagrants…we call them “homeless” or even more recently “the unhoused”.
Honestly, I’m glad the liberal states have embraced them and welcome them. That encourages the ones from our states to migrate, which means I don’t have to trip over them while trying to get my morning WaWa coffee or dodge their smelly, lice ridden tents while trying to walk my dog in the park.
California’s welcome to them. They can have all they want.
So if ‘homelessness’ is being defined as ‘not having a fixed place of abode’ then how about all the folks opting for the ‘nomadic lifestyle’ who travel around in converted vans and box trucks, others with RV, who have no ‘fixed Palace of abode’? Are they now homeless?
Digging deeper what is ‘involuntarily homeless’? Is that someone who got evicted? How long does this status last; can it be indefinite? What if they use the moment to begin the ‘nomadic lifestyle’ as a voluntary choice? Presumably one who is ‘involuntarily homeless’ is not someone who traveled from somewhere else? Surely there isn’t some BS presumption that this ‘involuntarily homeless’ person is acting involuntarily? Wouldn’t they need to show that they are just a victim of circumstances lost their job, lost home, lost car and ended up on the street in their local community?
That’s maybe 10% or less of the homeless. Most are drug addicted, have psychological disorders or both and use crime to support their drug habits. Most turn down any housing with strict standards for cleanliness/order and a zero tolerance drug/alcohol policy. The sad truth is 90% + of these folks ain’t ‘involuntarily’ anything, all of them made a long series of poor choices to bring them there.
The easy solution would be to get rid of the 1500 people in Portland whose job is to enable the feral humans. If you stop feeding rats, then they disappear, at least that is what every farm kid knows by the age of 5.
To every do-gooder enabler, the homeless are that family in “The Grapes of Wrath” and all thieves are Jean Valjean. They simply have no concept of the addict mindset. At this point the Homeless Industrial Complex is in place and no amount of energy will disrupt it. And the purpose, like invasion from the South, is to destabilize our entire system and civilization, with the end-goal being martial law as the only way we (read as THEY) can regain control of the situation. The older I get, the more I realize that there was very little difference between the Nazis and the Commies. Their beef was mostly about which one of them would be in charge. America is going to be a very interesting place come this December.
never have been a difference in their core philosophy
government over people
capitalism = people over the government
its alll been clear from day 1
“Justice Brown continued this line of inquiry with the example of a hypothetical ordinance prohibiting eating in public to prevent “problems with trash and rodents and the like.”
She must have just wanted credit for putting her hand up, because her actual question was bullshit.
“How about a hypothetical ordinance prohibiting drinking in public?”
Uh, yes, Justice Jackson Browne, in fact those have existed for decades.
Considering the problem many urban areas are having with rats a ban on eating in public might not be a bad idea. Besides it is just plain tacky (some would claim trashy) to walk around eating right out on the street.
There are different types of homeless.
There are those who are ‘involuntarily unhoused’ as the newspeakers say. These will find homes quickly as they are not in this state willingly.
There are the deliberate nomads. They will be ‘homeless’ until they get bored of it
There are the insane and the addicts. These need to be re-institutionalized.. Do that and the ‘homeless’ problem will be solved because they are the bulk of the homeless.
To paraphrase –
If there are no public shelters available, we must permit living on public property….
But under our system of laws….why would that be so? Which article of the constitution requires this? Is shelter guaranteed in the law? If there is not enough public land available, must living without consent on other people’s property be permitted?
Certainly charity suggests we should help where we can, but if we do not have enough to give, must we allow the needy to take?
I have read that some homeless reject going to shelters because the conditions of them can get very bad. So even if enough are provided some people will still choose to sleep on the streets. What then?
you lose certain rights when you go homeless by choice or not
you do notttt have the right to sleep where you want despite the nimby lefty spew
where are the dem run homes for the homeless?
the lefty opened up the prisons with joy in the 2020 fiasco
and then housed the homeless>>migrants in hotels etc
as long as the taxpayers are willing to foot the bill
lefty will rule
It comes to mind that a certain percentage of homelessness could be relieved by making sure our veterans get the services they need when they need them.
And despite the blathering of our do gooder class some people do choose to be homeless. Which means they did have other options but rejected those so they could continue in their addictions and total separation from the norms of civilization. Not all homeless are alike.
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