Last year, the 9th Circuit Court of Appeals issued an injunction to keep the city of Grants Pass, Oregon from enforcing ordinances that imposed fines or jail time on people found sleeping outside in public spaces. The city appealed the injunction. On April 25, the U.S. Supreme Court heard oral arguments about the case. Afterward, headlines announced that a court majority seemed likely to rule in favor of the city.
Duh! Did the media expect anything different?
The 9th Circuit found (for the second time) that the 8th Amendment’s ban on “cruel and unusual” punishment bars fines or prison for sleeping rough if the locality doesn’t have enough shelter beds to accommodate the sleeper. In the earlier 2019 Martin decision – a case lost by the city of Boise – the same court found that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.”
This has been the law in Western cities ever since. Since the city of Boise didn’t appeal, the ruling had never before reached the Supreme Court. That legal limbo has not prevented sweeps of homeless encampments. Nor would a decision against Grants Pass regulations prevent them in the future.
The big, looming question is: Will the 9th Circuit’s reasoning survive the Supremes’ attention? Arguing for the city of Grants Pass, Theane D. Evangelis suggested that the Circuit Court’s overturn-ruling should be scrapped. She argues that the 8th Amendment limits the type and severity of punishment, but does not limit the fact of punishment.
Assuming the 8th Amendment does apply, the Supreme Court oral arguments highlighted the difficulty of actual enforcement. For instance, must a cop who encounters a homeless guy sleeping in a public space know the community’s number of homeless people and its number of available beds at every moment?
Such a cop would have to know a lot of things: Is this particular guy involuntarily homeless if he could stay with relatives with whom he really doesn’t get along? How about if there’s a shelter bed but the shelter won’t take his dog? Or he refuses to endure the shelter’s required religious spiel? What if a given community has no available shelter beds but a neighboring community has vacancies a short walk away? If the Supreme Court majority wants grounds to rule for Grants Pass regulations, it won’t have to look far.
The appeals court had reasoned that sleep is a fundamental human activity. People have to sleep, and if you don’t have a home, you have to sleep somewhere else. If a community doesn’t have shelter beds or some equivalent you probably have to sleep outdoors. That’s basic.
But this interpretation also leads to some pretty slippery slopes — or to logic-defying efforts to avoid them. And it raises many practical problems. Sleep isn’t the only fundamental human need. During the Grants Pass oral argument, Chief Justice John Roberts pointed out that eating is basic, too, and asked if therefore stealing food should go unpunished. Deputy Solicitor General Edwin S. Kneeland — representing the federal government’s position, which was that each case of someone sleeping rough should be decided on an individual basis — said no, the Constitution didn’t protect the theft of food. But if the underlying logic is sound, why not?
And eating leads inexorably to other things: A dissenter in Martin suggested that if fundamental human activities could be done in public without penalty, then public defecation could be protected too. During the Grants Pass argument, Justice Sonia Sotomayor (who clearly wasn’t on the city’s side) pointed out that laws against public defecation had been upheld. But under the 9th Circuit’s argument for not punishing public sleeping, is there any logical reason why they should be?
Grants Pass Attorney Evangelis acknowledged that the court’s 1962 Robinson decision, which first that stated that punishing people for certain crimes was “cruel and unusual,” prohibited government from punishing an involuntary status. (Robinson concerned a law that made it illegal to be a drug addict.) But, Evangelis said, Grants Pass wasn’t punishing the status of homelessness. It was punishing certain overt acts. But could a person be homeless without committing those acts? This question, both philosophical and pragmatic, was discussed but left hanging.
Evangelis pointed out that the Grants Pass ordinances applied to everyone, housed or not. Justice Sotomayor didn’t buy that. She didn’t think they were actually enforced that way. Grants Pass “police officers testified that . . . that if a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep, you don’t arrest them,” she said. “You don’t arrest babies who have blankets over them. You don’t arrest people who are sleeping on the beach, as I tend to do if I’ve been there a while.” But the city’s policy was even-handed, Evangelis explained.
No doubt that’s true. But recall the statement by Anatole France, the esteemed French writer of the late 19th and early 20th centuries, who wrote that “[t]he law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”
Eating isn’t the same as stealing food — or buying food, for that matter. And many jurisdictions have exceptions for “crimes of necessity.” Stealing food is a property crime involving taking property from someone else. A more appropriate comparison would be if Grant’s Pass enacted a prohibition on eating on public property, without providing places where the homeless could go to eat.
Similarly, the constitutionality of public defecation laws depends upon the availability of public restrooms. Yes, homeless people need to defecate, and if the city provides a location for them to do it, then it may prohibit them doing it somewhere else.
Robinson and Martin are logically sound rulings. You can’t make it illegal for someone just to exist and take up space. Homeless people have to be somewhere (and to be clear, the vast majority of them do not want to be homeless). You can’t make it a crime to be a drug addict, or an alcoholic, or homeless. You can’t make it a crime to fall asleep; while it may technically be an “activity,” it’s not one that people can control — eventually we all fall asleep.
The 9th Circuit did not rule that cities must let the homeless live, camp and sleep anywhere. In fact, in Martin it said very clearly that cities still have the right to say that certain places are off-limits to homeless encampments, and to clear encampments. But they can’t say that EVERYWHERE is off-limits; they have to be able to point somewhere and say “it’s not a crime to be there.” Maybe that’s a shelter; maybe it’s a designated area.
And yeah, right now this puts a huge burden on cities. One of the big lessons of the past ten years is that the homeless crisis is too big and widespread for cities to each solve on their own. We need a coordinated response at the state and federal level, rather than expecting cities to drown under the burden of growing homeless populations. Policymakers have punted on this for far too long.