The U.S. Supreme Court issued its long-awaited opinion last week in a case challenging several local ordinances that prohibit
sleeping and camping on public property. City of
Grants Pass, Oregon v. Johnson, et al.

The City of Grants Pass (City) has
three ordinances (Ordinances) which restrict camping in public places. These
local laws (1) prohibit sleeping on public sidewalks and streets, (2) prohibit
camping on public property, and (3) prohibit camping and overnight parking in
City parks. Violators of the Ordinances are subject to penalties which are
implemented on a graduated scale: initial violators may be issued a fine,
whereas repeat violators may be banned from city parks for a period of time or
charged with criminal trespass.

Two homeless individuals brought
a case against the City, challenging the Ordinances as unconstitutional under
the Eighth Amendment, which prohibits cruel and unusual punishment for criminal
offenses. The plaintiffs argued that the Ordinances effectively punished them
for their status as homeless individuals, and that this criminal classification
was unconstitutional. The federal district court and Ninth Circuit ruled in
favor of the plaintiffs, finding that the Ordinances could not be imposed
against individuals who are involuntarily homeless within the City. The City
appealed the Ninth Circuit’s decision to the U.S. Supreme Court.

The Supreme Court reversed the
lower court rulings, with six Justices joining in the majority opinion and
three Justices dissenting. Both the majority and dissenting opinions discussed
the acute homelessness crisis affecting individuals in the United States, as
well as the difficulties local governments face in responding to related public
health and safety issues that impact homeless individuals and the general

The majority opinion, authored by
Justice Gorsuch, found that the Eighth Amendment was drafted to place limits on
the method and severity of punishment imposed for criminal behavior, and not
the determination of what behavior is considered criminal in the first place.
Noting that many local governments (and even the federal government) restrict
or prohibit sleeping and camping on public property, the majority held that
the Eighth Amendment does not prohibit local governments from classifying unlawful
behavior in order to address policy concerns such as those presented by the
homelessness crisis. The Court found that local governments have been
“paralyzed” from making policy decisions to address homelessness in their
communities since the Ninth Circuit issued an opinion in 2019 finding that 
the Eighth Amendment barred Boise, Idaho from enforcing its public-camping ban against homeless individuals who did not
have access to alternative shelter. 

Additionally, the majority
rejected the plaintiffs’ argument that the Ordinances punished them because of
their status as homeless individuals. In the majority’s view, because the
Ordinances could be imposed against anyone who was camping or sleeping on
public property (including backpackers or protesters), they did not single out
homeless individuals. In sum, the majority determined that the Ordinances do
not violate the Eighth Amendment because they criminalize conduct, not status,
and the fines and penalties imposed are not cruel and unusual.

The dissenting opinion, authored
by Justice Sotomayor, focused on the Ordinances’ prohibition on sleeping in
public places, finding that this ban was clearly targeted against homeless
individuals because of their status in violation of the Eighth Amendment. The
dissent reviewed the text of the Ordinances, noting that the definition of
“campsite” implies only homeless individuals may be cited for a violation: 

A campsite is “any
place where bedding, sleeping bag, or other material used for bedding purposes”
is placed “for the purpose of maintaining a temporary place to live.”

The dissent noted that the difference between lawful and unlawful activity under the Ordinances is a person’s “intent to live in public spaces,” which applies almost exclusively to the homeless. The dissent also found that the Ordinances have been enforced only against homeless individuals, noting that the deputy chief of police previously testified that he was not aware of any person being issued a ticket for public camping who was not homeless. Because the criminal conduct (sleeping outside), is directly tied to a particular status (being homeless), the dissent argued the Ordinances should be struck down under the Eighth Amendment.

Both the majority and dissent
acknowledged that their analysis in the Grants Pass case is narrow, and does
not address other issues that may come up in the context of regulating
homelessness―including the First Amendment, Due Process clause, and state
statutes that otherwise protect the rights of homeless individuals. As a result, l
ocal governments that are
considering adopting ordinances to address the use of public property should consult with their legal counsel to discuss the applicability or impact of other laws or regulations that might provide protections to homeless
individuals. For 
example, the State of Illinois has enacted the Bill of Rights for the Homeless Act that prohibits discrimination “on the basis of housing status” and establishes, among others, the following rights for individuals experiencing homelessness:

  • the right to use and move freely in public spaces (including sidewalks and parks);
  • the right to equal treatment by state and municipal agencies; and
  • the right to a reasonable expectation of privacy in his or her personal property.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel
Glink, P.C.