Supreme Court divided over banning homeless from sleeping on public property

The United States Supreme Court appeared divided over the constitutionality of banning camping on public property as it effectively impacts the homeless population.

SCOTUS justices grappled with the issue in more than two hours of arguments Monday in a case addressing the ordinance of a town in southwest Oregon known as Grants Pass. The dispute arose as the city of about 40,000 defined a “campsite” as “any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed.”

While the town contends the law is aimed at anyone using public spaces, the Supreme Court wrestled with how homelessness is effectively rendered a crime by the rules that fine violators $295 and more.

In analyzing the Eighth Amendment banning cruel and unusual punishment, Justice Amy Coney Barrett wondered, “How do we draw these difficult lines?”

“Judges across the country are now going to superintend this under the Eighth Amendment,” Justice Neil Gorsuch noted.

“Many people have mentioned this is a serious policy problem, and it’s a policy problem because the solution of course is to build shelter, to provide shelter for those who are otherwise harmless,” Chief Justice John Roberts said.

“But municipalities have competing priorities. What if there are lead pipes in the water? Do you build the homeless shelter or do you take care of the lead pipes? What if there isn’t enough fire protection? Which one do you prioritize? Why would you think that these nine people are the best people to judge and weigh those policy judgments?” he questioned.

“How does the court make these judgments?” liberal Justice Elena Kagan asked when addressing Deputy Solicitor General Edwin Kneedler.

“These are tough judgments and usually they’re the kind of judgments that we think of as municipal officials make them,” she said to Kneedler, who was representing the Biden administration on the case.

Justice Brett Kavanaugh worried about “micromanaging” cities while bringing up the large number of homeless.

Grants Pass officials appealed the ruling of the U.S. Court of Appeals for the 9th Circuit which upheld the ruling of a federal district court in Oregon that ruled the town could not enforce its public-camping ordinances without 24-hour notice during the day, and banned the rules in nighttime hours.

“The City of Grants Pass cannot, consistent with the Eighth Amendment, enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the city for them to go,” the majority opinion, written by 9th Circuit panel Judge Roslyn Silver, said.

According to CBS News:

The case before the Supreme Court dates back to 2018, when three homeless people in Grants Pass sued the city on behalf of its homeless population, alleging its public sleeping and camping ordinances unconstitutionally punished them by violating the Eighth Amendment’s protections against cruel and unusual punishment.

The city said in court papers that it enforced the ordinances “with moderation,” issuing more than 500 citations from 2013 to 2018. A policy from the Grants Pass Department of Public Safety states “homelessness is not a crime,” and the department does “not use homelessness solely as a basis for detention or law enforcement action.”


“The law here, how does it help if there’s not enough beds for the number of homeless people in the jurisdiction?” Kavanaugh asked Monday.

“When you get out of jail, what’s going to happen then?” he added. “You still don’t have a bed available so how does this help?”

“If…[they] end up in jail for 30 days, then get out, [they’re] not going to be better off than you were before in finding a bed… if there aren’t beds available,” the conservative justice argued.

He contended that the situation may not improve at all even with fining or banning the homeless from camping, while other justices wondered just how far the constitutional protections could go.

“How about if there are no public bathroom facilities, do people have an Eighth Amendment right to defecate and urinate outdoors?” Gorsuch asked Kneedler.

A lawyer representing Grants Pass in the case argued Monday that the decision by the 9th Circuit tied the city’s hands by “constitutionalizing the policy debate.”

Grants Pass “will be forced to surrender its public spaces” if it loses the appeal, Theane Evangelis contended.

“When the 9th Circuit constitutionalized this area, it left cities with really no choice: either keep building enough shelter that may or may not be adequate or suitable to someone’s preferences or be forced to give up all of your public spaces. That is what’s happened,” she said.

The Supreme Court is expected to reach a decision on the case by the end of June.

Frieda Powers


We have no tolerance for comments containing violence, racism, profanity, vulgarity, doxing, or discourteous behavior. If a comment is spam, instead of replying to it please click the ∨ icon below and to the right of that comment. Thank you for partnering with us to maintain fruitful conversation.

Latest Articles