Supreme Court, Citing ‘Used Needles, Human Waste, and Other Hazards,’ Allows Cities To Crack Down on Encampments

‘Either stay awake or be arrested,’ the three dissenting justices warn.

AP/Jenny Kane
Cassy Leach, a nurse, who leads a group of volunteers who provide food, medical care and other basic goods to the hundreds of homeless people living in the parks, talks to Kimberly Marie, who is homeless and camping in Fruitdale Park March 21, 2024, in Grants Pass, Ore. AP/Jenny Kane

The Supreme Court has ruled that Grants Pass, Oregon, can enforce its public camping ordinances, as generally applicable bans on sleeping and camping on public property are not “cruel and unusual” punishment under the Eighth Amendment.

“Some suggest that homelessness may be the ‘defining public health and safety crisis in the western United States’ today,” Justice Gorsuch wrote for the majority opinion in the 6-3 decision, with Justices Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan dissenting. “And each of the five States with the highest rates of unsheltered homelessness in the country — California, Oregon, Hawaii, Arizona, and Nevada — lies in the American West.” 

“With encampments dotting neighborhood sidewalks, adults and children in these communities are sometimes forced to navigate around used needles, human waste, and other hazards to make their way to school, the grocery store, or work,” the opinion read.

At issue was whether the Ninth Circuit Court of Appeals erred when it ruled in Johnson v. City of Grants Pass in 2022 — a case that built on Martin v. Boise in 2018that a lack of available shelter space meant that being homeless is “involuntary” and that arresting a homeless person was thus cruel and unusual punishment. 

Overturning the Ninth Circuit, the majority opinion emphasized the importance of handing over local policy decisions to communities rather than broad court rulings.

“Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others. But in our democracy, that is their right,” the opinion notes. “Nor can a handful of federal judges begin to ‘match’ the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness.” 

The opinion concluded that the Eighth Amendment “does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.”

A dissent authored by Justice Sotomayor, opens with a stark warning about how the ruling could affect millions of homeless people across the country. 

“Sleep is a biological necessity, not a crime,” it notes. “For some people, sleeping outside is their only option.”

The dissent adds that “the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”

“The Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused,” the dissent notes. “This Court must safeguard those rights even when, and perhaps especially when, doing so is uncomfortable or unpopular.” 

The closely-watched legal dispute comes as the nation grapples with record-high homelessness numbers, which by one count includes more than 650,000 homeless people on a given night. 

Cities along the West Coast that have recently descended into squalor — including rampant public drug use, feces on the streets, and outbreaks of “medieval” diseases including typhus — have argued that the Ninth Circuit rulings tied their hands when it comes to cleaning up sprawling encampments that pose public health and safety risks, and even California’s governor, Gavin Newsom, asked the Supreme Court to weigh in. 

Grants Pass argued in court that the Ninth Circuit rulings were a “failed experiment” that “fueled the spread of encampments while harming those it purports to protect.” The lawyer for the homeless individuals in Grants Pass fired back the city’s ordinances “by design make it physically impossible for homeless people to live in Grants Pass without facing endless fines and jail time.”

During oral arguments in April, the justices appeared divided along party lines as the court’s three liberal justices suggested that anti-camping rules targeted homeless people, punishing them for simply not owning a home and comparing anti-camping rules to rules against breathing in public. 

The conservative justices pushed back on that idea, as Chief Justice Roberts asked if robbing food was legally protected since “eating is a basic human function.” Justice Neil Gorsuch also asked if there was a constitutional right to “defecate and urinate” in public if there wasn’t a public restroom available. 

A central debate in the Grants Pass arguments was over a 1962 Supreme Court ruling, Robinson v. California, holding that a person couldn’t be punished for the “status” of drug addiction. Debate during oral arguments ensued over whether that ruling would extend to homelessness — including disagreement over what it means to be homeless and whether it’s a “status” like drug addiction. Yet Justice Gorsuch wrote in the opinion on Friday that “public camping ordinances like those before us are nothing like the law at issue in Robinson.”

The New York Sun

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