Supreme Court allows camping bans in West Coast cities

Looking over the Rogue River, the small city of Grants Pass is home to some of the most breathtaking views in Oregon. But Brian Bouteller, director of Grants Pass Gospel Rescue Mission, said tent clusters and piles of bedraggled belongings sometimes prevent city residents from safely enjoying their own city.

“They want to take the kids to the parks. And they’ve stopped doing it,” Bouteller said. “It’s not safe. There’s drug needles everywhere.”

Bouteller hopes a decision the Supreme Court handed down on Friday may change that. In a 6-3 ruling, the justices overturned a 9th Circuit Court of Appeals judgment in the case City of Grants Pass v. Johnson. Now, the city can enforce three ordinances prohibiting camping on any public street, under bridges, on public property, or in city parks.

The ruling could affect religious shelters like the Grants Pass Gospel Rescue Mission and give West Coast cities more leeway in clearing out-of-control homeless encampments. Some homeless advocacy groups argue the Supreme Court’s decision punishes individuals for doing their best to survive situations beyond their control.

In Grants Pass v. Johnson, the 9th Circuit declared it cruel and unusual punishment under the Eighth Amendment for Grants Pass to penalize homeless individuals for sleeping outside if the city didn’t provide adequate alternative shelter. The Supreme Court disagreed.

“The Court cannot say that the punishments Grants Pass imposes here qualify as cruel and unusual,” Justice Neil Gorsuch wrote for the majority. “The city imposes only limited fines for first-time offenders, an order temporarily barring an individual from camping in a public park for repeat offenders, and a maximum sentence of 30 days in jail for those who later violate an order.”

The earlier ruling also prohibited the city from prosecuting public campers if the total number of shelter beds in the community were less than the number of homeless individuals, even if some of those beds were empty and available. Not only must the city of almost 40,000 people provide enough shelter beds to house their entire homeless population of around 600 individuals, but those beds also must qualify as “adequate shelter,” a murky concept.

“That then leads to a lot of judicial involvement over local homeless services systems,” said Stephen Eide, a senior fellow at the Manhattan Institute. “Grants Pass is a little city. … It can’t build everyone’s perfect shelter exactly to their behavioral specifications.”

Some activists argue “adequate shelters” must not require clients to be sober, ask them to attend religious services, hold them to strict curfews, or demand participation in work activities.

“No serious person would classify the gospel rescue mission as a shelter,” said Jesse Rabinowitz, the campaign and communications director for the National Homelessness Law Center. “You have to go to Christian church services twice a day. As a person who’s not a Christian, I would not go there,” he said. “That doesn’t mean that I want to sleep outside.”

In Johnson, the 9th Circuit judges clarified that shelters with a “mandatory religious focus” could not be counted as available shelter space, pointing to First Amendment concerns. But in most cities, including Grants Pass, church-run organizations are the primary source of shelter space.

At Grants Pass Gospel Rescue Mission guests are required to attend church on Sundays as well as a morning and evening chapel. Guests must also be sober and follow a curfew to keep their dormitory-style accommodations.

“We don’t ask them to take communion or get baptized. We don’t ask for a confession of faith,” Bouteller said. “We want them exposed to the Word of God.”

Three years before the Johnson ruling, the 9th Circuit held in a similar case, Martin v. Boise, that a Boise public camping ordinance criminalized homeless individuals’ basic needs. The appellate judges agreed that enforcing criminal penalties against sleeping outside amounted to cruel and unusual punishment. In 2019, the Supreme Court declined to hear the case.

Together, Martin and Johnson set a new precedent for the West Coast states that comprise the 9th Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Timothy Sandefur is the vice president for legal affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. He said the precedent “paralyzed the ability of cities to address the homeless problem and has led a lot of cities to think or at least to claim that there’s nothing they can do about large homeless encampments in major areas.”

Since Martin, homelessness has spiked on the West Coast. California is home to 28 percent of the nation’s total homeless population, despite spending nearly $24 billion on housing and services over the past five years. Federally mandated counts tallied 181,399 unhoused Californians last year, up nearly 40 percent from five years ago.

Several western cities and counties, along with law enforcement and business associations, filed amicus briefs in support of overturning the Johnson precedent. California Gov. Gavin Newsom filed a brief in support of neither party, agreeing an individual should not be penalized for lacking housing, but also emphasizing the difficulty Martin posed for moving people into shelter they desperately need.

“In the wake of Martin, lower courts have blocked efforts to clear encampments while micromanaging what qualifies as a suitable offer of shelter,” Newsom wrote. “Such decisions have impeded not only the ability to enforce basic health and safety measures, but also the ability to move people into available shelter beds and temporary housing where they can be connected with critical services.”

Eide with the Manhattan Institute said the decision means cities and states have fewer excuses when angry residents and business owners demand solutions to sprawling encampments. “They won’t be able to hide behind the courts anymore, and they will have to be more active in doing something about these public spaces than they have been in recent years,” he said.

In Friday’s opinion, Gorsuch said local governments must have access to a wide range of policy tools to “tackle the complicated issues of housing and homelessness.” The decision only applies to states under the jurisdiction of the 9th Circuit, but it will influence similar policies across the country.

During oral arguments in April, the Supreme Court justices discussed the difference between “status” and “conduct.” They considered the precedent established in 1962 in Robinson v. California, when the court struck down a California law that made it illegal to be a drug addict. In that case, the justices ruled that authorities can only punish someone for what they do, not who they are.

Plaintiffs in Grants Pass v. Johnson argued that even though the city is punishing an activity—camping on public land—it shouldn’t punish an individual for sleeping outside if the city doesn’t have enough beds available.

But Chief Justice John Roberts questioned this parallel during oral arguments. A person can immediately stop being homeless by accepting a bed in a shelter. But a person addicted to a drug cannot immediately stop being an addict, he pointed out.

Gorsuch expanded on this line of reasoning in Friday’s decision. “Grants Pass’s public camping ordinances do not criminalize status,” he wrote. “The public camping laws prohibit actions undertaken by any person, regardless of status.”

Sandefur with the Goldwater Institute said that distinction is key. “What you find in a lot of these cities is that cops will say to the homeless person, we have a shelter for you to go to but you can’t use drugs there. And the person says, ‘Well, then I’d rather stay here on the street.’” The Goldwater Institute submitted an amicus brief urging the Supreme Court to overturn the 9th Circuit ruling.

Justice Sonia Sotomayor disagreed. “Sleep is a biological necessity, not a crime,” she wrote. “For some people, sleeping outside is their only option.” Justices Ketanji Brown Jackson and Elena Kagan joined Sotomayor in her dissent.

Though homelessness has increased in Grants Pass, Bouteller said fewer people are seeking shelter. The mission housed an average of 337 residents each year between 2020 and 2023, 40 percent less than preceding years, according to its friend-of-the-court brief. Bouteller said the other gospel rescue missions he communicates with along the West Coast have also served fewer guests. “We have less program participation, and we see more people in our city parks and our freeway underpasses,” he told me.

But Friday’s decision means law enforcement can start enforcing public camping laws. “I think over a longer period of time, our gospel rescue missions all across and organizations like us all across the West Coast will start to see our services fill back up again,” Bouteller said.

At the Grants Pass mission, residents receive counseling and find stable jobs before they consider moving into permanent housing. “The Gospel Rescue Mission is going to be doing the same things it was doing long before any of this was an issue,” said Bouteller. “We’re going to be helping people leave homelessness.”