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Exploring the Implications of the U.S. Supreme Court Decision in Grants Pass v. Johnson

By Kirk Mylander, CIS General Counsel

INTRODUCTION

On June 28, the United States Supreme Court ruled 6-3 in Johnson v. Grants Pass that enforcing camping regulations against homeless persons is not a “cruel and unusual punishment.” Local governments can now enforce camping regulations without fear of being sued for violating the Eighth Amendment of the U.S. Constitution.

The Supreme Court’s opinion in Johnson effectively struck down and overruled the underlying Ninth Circuit case, Martin v. Boise.  The Ninth Circuit’s decision in Martin had led to widespread tent encampments throughout the western U.S. 

Martin held that enforcing camping regulations against homeless people violated the Eighth Amendment’s prohibition on cruel and unusual punishment if there were more homeless people in a city than available shelter beds. However, after Martin was decided and before the Supreme Court struck it down in Johnson, the Oregon Legislature passed HB 3115, which guided local governments on how to keep in compliance with Martin.

With the Ninth Circuit’s opinions in Martin and Johnson now overruled by the U.S. Supreme Court, Oregon legislators from both sides of the aisle are asking if HB 3115 is still necessary, or whether it just gets in the way of local policy makers crafting local solutions.
This comprehensive article will: summarize the Supreme Court’s opinion in Johnson; explain the remaining applicable rules from HB 3115; discuss what will happen next in future court battles and provide resources to help local governments stay out of legal trouble; and provide resources for compliance and lobbying to loosen the restrictions of HB 3115.

Instead, the ruling empowered homeless individuals to push back at local government. Justice Gorsuch, who authored the decision in Johnson, describes how people in San Francisco who were homeless would cite the Martin case by name when rejecting city services and “as their justification to permanently occupy and block public sidewalks.” Johnson, 603 US ___ at 9 (2024) (citing San Francisco Brief at 8-9).

Johnson v. Grants Pass prior to reaching the Supreme Court

Within weeks of Martin v. Boise being decided, the same lawyers filed Johnson v. Grants Pass in the U.S. District Court for Oregon. Johnson expanded upon Martin. While Martin only prohibited issuing criminal fines to the homeless, Johnson held that even issuing civil citations to the homeless was a cruel and unusual punishment that violated the U.S. Constitution. 

The city of Grants Pass’ single homeless shelter was never more than 60% full. Despite that, the trial court held that there were no “adequate” shelter beds available. The court observed since the city’s only shelter was operated by Gospel Rescue Mission, and included a religious component, it was not “adequate” for everyone. Some people did not want to be exposed to a religious message. 
A second way that Johnson expanded Martin was by finding that homeless individuals did not have to wait until they were cited or prove that no shelter bed was available to sue the city. Instead, all homeless persons could join together in a single class action lawsuit and sue the city preemptively. It was then the city’s burden to prove that “adequate” shelter beds were available for everyone.

Finally, Johnson expanded Martin by giving homeless persons not only immunity from camping laws, but also an affirmative right to protection from the elements. In other words, Martin ruled you can’t cite someone who has no place to go. Johnson said they were also entitled to protection from the elements as well.

The Ninth Circuit rulings left local government officials and law enforcement paralyzed, creating an unmanageable focus on “adequate” daily shelter space. Cities wishing to enforce camping regulations had to count the number of involuntarily homeless people each evening and then how many shelter beds were available. Additionally, each shelter bed had to be matched to each homeless person. Shelter space didn’t count if the shelter didn’t allow pets and the person had a dog, or the shelter didn’t allow smoking and the homeless person used cigarettes, or the shelter was organized by a religious organization and the homeless person didn’t want to be exposed to a religious message.  

Practically speaking, matching the various needs of the homeless to the different types of shelters and keeping a daily count of available beds was an overwhelming task for any city. Local government could no longer compel homeless individuals to use services, resulting in widespread tent encampments.

Ending the Storm: Petitioning the Supreme Court

Because this unworkable rule tied the hands of local officials throughout the western United States, there was widespread frustration with Martin and Johnson. CIS encouraged the city of Grants Pass to petition the U.S. Supreme Court to review the case. After that, something remarkable happened.

Amicus briefs were filed by numerous entities including: 

• National League of Cities;
• League of Oregon Cities (LOC);
• Association of Oregon Counties (AOC);
• Special Districts Association of Oregon (SDAO);
• California Governor Gavin Newsom;
• San Franciso Mayor London Breed;
• League of California Cities;
• Association of Idaho Cities;
• League of Arizona Cities and Towns;
• North Dakota League of Cities;
• Cities of Anchorage, Seattle, Spokane, Tacoma, Portland, San Francisco, Los Angeles, San Diego, Las Vegas, Phoenix, Albuquerque, Honolulu, Colorado Springs, Milwaukee, Providence, and Saint Paul;
• District Attorneys of Sacramento and San Diego;
• California State Sheriffs Association;
• California Police Chiefs Association;
• Washington State Association of Sheriffs and Police Chiefs; and
• 20 Different States, and more.  

In fact, there was a record number of friend-of-the-court briefs filed in support of Grants Pass’ Supreme Court petition. In response, the Supreme Court not only granted review but made clear that the court heard what cities and counties were saying.

The U.S. Supreme Court’s Decision in Johnson v. Grants Pass

On April 22, 2024, the Supreme Court heard oral arguments on the case. The focus was not on who should do what but on interpreting the Eighth Amendment. They debated whether it was cruel and unusual punishment under the Eighth Amendment to ticket, fine, or jail someone repeatedly trespassing on city property because they were homeless and had “nowhere else to go.” The issue for the court was whether the Eighth Amendment regulates the type of punishments applied to a crime or whether it regulates what types of behavior can be considered a crime.

Those in favor of upholding the Grants Pass case argued that the Eighth Amendment prohibits punishing someone for their “involuntary” status, such as homelessness, deeming it cruel and unusual. The opposing side contended that the Eighth Amendment only addresses the type of punishment, not the status of the person being punished.

The Eighth Amendment, the Supreme Court ruled, addresses methods of punishment, not who can be punished. The punishments in question were a ticket, a small fine, or very short jail terms. The court found none of these to be cruel and unusual. In fact, these are commonly used punishments across the country. The other side argued that these punishments were cruel and unusual as applied to the homeless. But the majority opinion maintained that the Eighth Amendment regulates types of punishment, not who can be punished.

The court specifically found that the Ninth Circuit inappropriately limited local governments’ tools for tackling the homelessness issue. In so doing, the court recognized that homelessness is a multifaceted problem not suited to a single policy. The opinion emphasized that decisions on how to address homelessness should be left to community leaders, not judges: 

“Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.” Johnson, 603 US ___ at 34 (2024).
The court observed the historical tradition of communities working hard to solve difficult social issues, then stated:
“If the multitude of amicus briefs before us proves one thing, it is that the American people are still at it.” Johnson, 603 US ___ at 34 (2024).

The opinion quoted extensively from the League of Oregon Cities’ amicus brief, highlighting Oregon’s specific concerns. Our local concerns were heard by the Supreme Court, thanks to the collective efforts of government officials throughout the western states (even throughout the nation) contributing their voices and resources through amicus briefs that told real stories of the struggle to address homelessness under a one size fits all approach mandated by the Ninth Circuit.

The Supreme Court concluded by stating that the Ninth Circuit opinion in Johnson was reversed, and the Eighth Amendment does not prevent local officials from crafting unique solutions to homelessness. However, the case was sent back down as there were other issues beyond the Eighth Amendment to be addressed.

What’s Next in Oregon?

Before the Supreme Court ruled, the Ninth Circuit prohibited all enforcement of anti-camping ordinances against “involuntary” homeless persons when there was no “adequate” shelter. For practical purposes, this vague rule left local officials with no enforceable rules at all.

Now, after the Supreme Court’s decision, Oregon is left with a less restrictive statute. HB 3115 requires camping regulations to be reasonable as to time, place, and manner. For practical purposes, that means:

Reasonable time restrictions: Allow a homeless person to shelter during traditional sleeping hours. The middle ground would be from sundown to sunrise. A 24-hour prohibition on camping will be deemed unreasonable.

Reasonable place restrictions: Camping can be banned from some specific places, such as parks where children often play, central downtown parks, around schools, hospitals, some government buildings and residential areas. However, there needs to be someplace a homeless person can go to sleep for the night.  

Some regulations only specify where homeless persons cannot camp. Other regulations specify one specific place that homeless persons can camp. Either way can be reasonable, but there must be somewhere they can sleep overnight—under HB 3115, leaving no options is an unreasonable option, and will result in a lawsuit.

Reasonable manner restrictions: To pass the reasonable test, “manner” restrictions must allow for a homeless person to use some form of protection against the elements. Banning even so much as a blanket or sleeping bag is not reasonable. Tents, tarps, stoves, fires… all these things may or may not be reasonable depending on the weather. But none of these things need to be allowed permanently.  

Examples: For instance, “manner” restrictions may allow a homeless person to sleep in a tent, but “time” restrictions mean that person must take down the tent in the morning and allow the park to be used by the general public during the day. Likewise, “place” restrictions mean that a person cannot put up a tent anywhere in town. There may be places where tents are prohibited, or there may be one specific place where tents are allowed.

Conclusion

One thing we know for certain, with Johnson v. Grants Pass now overturned by the U.S. Supreme Court, local control has returned. Community leaders are no longer in danger of being sued for the “cruel and unusual punishment” of requiring everyone to abide by camping regulations. Unique local problems deserve unique local solutions. Your city and county officials are now free to craft reasonable camping regulations. You get to decide what is best for your community.

Next Steps:

1. Revisiting HB 3115: The League of Oregon Cities and the Association of Oregon Counties want to hear from their members about House Bill 3115 and Oregon’s time, place and manner regulations. Does it provide helpful guidance, or with the federal courts out of the issue do you want more leeway for cities and counties to handle issues locally? 
2. Legal Guide From LOC: The LOC just released an updated homelessness legal guide for its members.
3. Camping Ordinance Review: CIS members can get a free legal review of a draft camping regulation. Contact CIS General Counsel Kirk Mylander for authorization: kmylander@cisoregon.org.
4. Further Education: The LOC’s Annual Conference will feature a session dedicated to Johnson v. Grants Pass and homelessness on Saturday, October 19.  

Kirk Mylander is CIS' General Counsel. His previous work experience includes serving as a Litigation Attorney at Miller Nash LLC, and he taught business law while an Adjunct Professor for George Fox University’s MBA Program. Kirk earned his B.A. from George Fox University, his master’s degree from Yale University, and received his J.D. from the University of California at Davis.

Published August 2024