PORTLAND, Ore. — Editor's note: The video above aired before the Supreme Court released its ruling in Johnson v. Grants Pass.
The U.S. Supreme Court issued a long-awaited ruling Friday morning on a case out of little Grants Pass, Oregon that could upend how cities can respond to homelessness nationwide. The court ruled in favor of the city in Johnson v. Grants Pass, concluding that cities don't violate the Constitution by penalizing people for camping outside.
Under the court's ruling, cities and counties in nine states and two territories, covering tens of millions of people in the western U.S., will theoretically now be empowered to enforce tougher rules against homeless people sleeping on public property, up to and including arrests, fines and jail time.
The came in the final days in the Supreme Court's term before their summer break. But anyone expecting an immediate change on the streets of Oregon cities will likely need to temper their expectations.
How did we get here?
In 2018, a panel of judges at the Ninth Circuit Court of Appeals ruled in a case called Martin v. Boise that a city cannot charge someone with a crime or give them a ticket for sleeping in a public space if there's a lack of shelter beds.
The majority wrote that charging someone with a crime for sleeping outside when they have no other choice is a violation of the Eighth Amendment, which bars "cruel and unusual punishment."
After losing before the Ninth Circuit's three-judge panel in 2018, Boise asked the full court to review the ruling. The majority declined. So Boise petitioned the Supreme Court, asking them to review the case. At the time, the Supreme Court also declined.
Then along came Blake v. Grants Pass, as it was originally known. The lead plaintiff in the class action suit, Debra Blake, passed away in 2021 and was later replaced by Gloria Johnson during the appeals process. Filed after the Ninth Circuit decision in Boise, the Grants Pass case bears a lot of similarities — the primary difference being that the city threatened civil penalties for violations instead of criminal ones.
At the time, Grants Pass had only one homeless shelter — which was more like a transitional housing program — and it had strict religious requirements.
In 2022, a three-judge panel from the Ninth Circuit agreed with a lower court's ruling, ordering Grants Pass to cease enforcing its ban on homeless people sleeping on public property. When Grants Pass appealed to the full Ninth Circuit, following Boise's earlier example, the court's majority returned a 155-page order explaining why they would not reconsider.
"According to the City, it revised its anti-camping ordinances to allow homeless persons to sleep in City parks," the majority judges wrote. "However, the City’s argument regarding the revised anticamping ordinance is an illusion. The amended ordinance continues to prohibit homeless persons from using 'bedding, sleeping bag, or other material used for bedding purposes,' or using stoves, lighting fires, or erecting structures of any kind. The City claims homeless persons are free to sleep in City parks, but only without items necessary to facilitate sleeping outdoors."
An Oregon law passed in 2021, House Bill 3115, was inspired by the Boise and Grants Pass rulings. A local government can, the law says, enact time, place and manner restrictions for sleeping on public property, as long as they are "objectively reasonable."
That law is partially responsible for the failure of Portland's last daytime ban on homeless camps. City leaders said they designed it to meet that reasonable standard, but a Multnomah County judge disagreed and blocked it before it could be enforced. That's why the city recently went back to the drawing board.
But Grants Pass did not give up on trying to argue their case. Like Boise, they appealed to the Supreme Court. Unlike Boise, the Supreme Court decided this time to take up the case. The court heard arguments back in April, with some indications that they were leaning toward a more narrow ruling — one that would nonetheless hand Grants Pass a victory.
The impact on Oregon
Even though Johnson v. Grants Pass is a case out of Oregon, the state is in some ways uniquely insulated against the outcome. That's because of HB 3115, the aforementioned state law, which took the Boise and Grants Pass decisions and attempted to codify them in state statute.
That reality is something that Portland Mayor Ted Wheeler repeatedly tried to remind his colleagues on city council as they debated a new camping ordinance last month, and it continues to be top-of-mind. A decision on Johnson v. Grants Pass, he told The Story's Pat Dooris on Monday, would not have any immediate effect.
"It's also important for people to understand, from a legal perspective, even though Martin v. Boise may get overturned — and in fact I think people sort of expect that it will be overturned — the state of Oregon through the legislature took this step of codifying Martin v. Boise into state law," Wheeler said. "So even if Martin v. Boise is overturned, we still have to comply with the state law, which is House Bill 3115, which requires us to have reasonable time, place and manner restrictions. And so that's still in effect."
Unless the legislature decides to revisit the law that HB 3115 enacted, Wheeler said, no one in Portland is going to see sweeping policy changes after the Supreme Court ruling.
Instead, cities will still need to be attentive to the text of Oregon's law, which hinges on those "time, place and manner" restrictions. This means that cities can still ban camping entirely, for instance, in fire-prone areas during the summer (time), in front of schools or on sidewalks (place), or with hazards like cooking stoves and bonfires (manner).
However, as Portland discovered, those restrictions need to be objectively reasonable — and reasonable, under the current law, is in the eye of the beholder. The city's ban on camping between the hours of 8 a.m. and 8 p.m. did not pass muster in court.
"It is confusing ... because to comply with that state law, the city of Portland passed an ordinance that we thought was very moderate in terms of time, place and manner restrictions," Wheeler said. "We believed we met what is called the reasonable standard that is required under House Bill 3115. But a Multnomah County judge enjoined us, meaning she decided that we had not met the threshold for reasonable time, place and manner restrictions. So that basically put it on hold."
Because the legislature didn't further define that term, "reasonable," Wheeler said that cities still have to guess at the restrictions they're allowed to put in place.
"That is one thing that I would request that they do if they want to keep some time, place and manner restrictions in place — they have to define reasonable, because the court refused to do it," Wheeler said. "We thought we defined reasonable, well the court said that we had not done so, but refused to define it for us. And so it goes right back to the legislature. What did you guys mean when you said reasonable?"
As to whether HB 3115 is an imperfect tool in need of improvement, not everyone agrees. Ed Trompke, a municipal lawyer for several Oregon cities, however, concurs with Wheeler's diagnosis.
"In terms of 3115 being clear and objective, it's not," Trompke said. "It's full of soft, vague language and it would be very helpful if some state agency, maybe the attorney general's office, were directed to write some regulations to help clarify what's meant by it. Otherwise, cities will do it, and then it'll be going through the court system and judges will have to make the decision as to what's allowed and what's not."
But one of the lawmakers who sponsored the bill back in 2021 said the law has been working for cities. Representative Pam Marsh's district is in southern Oregon, not far from Grants Pass.
"Honestly, I think that 3115 has worked pretty well in giving cities direction ... I represent a little part of the city of Medford in my district. (They) passed an ordinance that was challenged in court. What the court said — and it was one of the same judges who ruled against Grants Pass — in the case of Medford, they said the city had really met that standard of reasonableness. They looked globally at the programs that are in place and what the ordinance said and validated the ordinance.
"Ashland has passed a similar ordinance — again, ensuring that the ordinance is paired with services that actually can help people with the multitude of issues that they're struggling with when they're on the street, an ordinance has to be paired with services in order to be effective. So what I've seen in my own district is I think the state law has provided adequate guidance, and I think cities have stepped up to recognize that while they need to address health and safety issues on the street, they also need to be there in a supportive way for people who are struggling."
An ideological battleground
In the run-up to Supreme Court arguments, one of the biggest supporters of the homeless plaintiffs in Johnson v. Grants Pass was the National Homeless Law Center, a legal group based out of Washington, D.C. They've organized amicus curiae, or "friend of the court" briefs, as well as demonstrations in front of the court during oral arguments.
The NHLC asserts that a court ruling allowing cities to fine or jail people just for sleeping in public will make homelessness worse, not better.
"If you throw a person in jail and they're in jail for 30 days and they're homeless, they're still going to be homeless when they leave jail," said Jesse Rabinowitz with the NHLC. "We know that throwing folks in jail gives them a criminal record, which makes it harder for them to find jobs and harder for them to find housing. Giving folks thousands of dollars in tickets that they can't pay destroys their credit score, and these are just some of the many examples ... why throwing folks in jail and giving them tickets actually keeps folks homeless longer."
Rabinowitz said the NHLC would rather see elected officials focus on solving homelessness by building more housing, not punishing people on the margins.
"It's sad and it's shameful to see elected officials try to deflect their failures to address their citizens' basic housing needs by blaming people experiencing homelessness," Rabinowitz said. "We are hearing elected officials say the only solution we can think of is to throw people in jail — and that doesn't work. That keeps people homeless.
"Elected officials have so many tools in their toolbox to solve homelessness, whether it's funding homeless street outreach, funding safe non-congregate shelter, funding housing that meets people's needs ... but unfortunately, the only solution they're interested in is throwing people in jail, and that just won't work. We have so much data, so much evidence, so many powerful stories from people with lived experience of homelessness. We know that the solution is housing and services, not jails and fines."
On the other side of the argument is the Goldwater Institute in Arizona, a conservative think tank. The group said it expected the Supreme Court to side with Grants Pass, but their arguments go beyond the case itself.
"The problem that we've had, particularly in the West, has been this progressive notion known as 'housing first,' which is an ideological belief that you just need to give people housing with no strings attached, no questions asked," said Timothy Sandefur with the Goldwater Institute. "And of course the problems with that, the first one is there just aren't enough houses available because zoning and other kinds of restrictions make it impossible to build housing.
"And the second thing is that a lot of people have bad habits. They have addiction, they have problems that make it that putting them in a shelter is not going to fix the problem without treatment. So what we need to do is replace the housing first approach with a treatment first approach, and that means going to people on a on a case-by-case basis to try and fix their particular problems ... The Ninth Circuit ruling being overturned is really the first step in a sane approach to this problem."