The Supreme Court will decide what cities can do about tent encampments

The Supreme Court announced on Friday it would hear a pivotal case that could transform homelessness policy in the United States. The case is the most significant legal challenge to the rights of homeless people in decades, and how the Court rules in a decision expected later this year will shape how cities respond to tent encampments.

Four years ago, the Court declined to hear a similar challenge. But since then, the crisis of unsheltered homelessness in America has grown more severe, municipal backlash to court rulings that have limited cities’ response to the crisis has grown more organized, and what to do about people living in tents has become one of the most urgent issues in American politics.

The case in question — Grants Pass, OR v. Johnson, Gloria, et al — is a challenge to a 2018 federal class action lawsuit filed by three people who argued that the city of Grants Pass’s laws and customs illegally punished them for being involuntarily homeless. Attorneys representing the plaintiffs noted the dearth of affordable housing and homeless shelters in the city, and blasted Grants Pass’s arguments that unhoused people could simply leave and go elsewhere.

In 2022, a three-judge panel from the Ninth Circuit ruled in favor of the homeless plaintiffs. This wasn’t a total surprise; the same appellate court had issued a landmark ruling four years earlier that said people without housing can’t be punished for sleeping or camping outside on public property if there are no adequate shelter alternatives available.

That pivotal decision, Martin v. Boise, has fundamentally shaped cities’ response to the homelessness crisis, especially in the nine Western states under the Ninth Circuit’s jurisdiction, where some 42 percent of the country’s homeless population now lives.

Leaders from dozens of cities and states — both liberal and conservative — have been hoping the US Supreme Court would overturn the Martin and Grants Pass decisions, which they claim were incorrectly decided and leave governments ill-equipped to safely manage their communities. Many groups representing the rights of homeless people, in turn, have said there’s no reason for the US Supreme Court to reconsider the rulings as there’s no clear disagreement among circuit courts to resolve. In the half-decade since Martin came down, there have been dozens of cases affirming it, including in the Fourth Circuit in Virginia.

Some in the court system, though, have also signaled they’d like to see Martin overruled. Last summer, when the full Ninth Circuit declined to review the Grants Pass decision, 16 judges dissented, arguing both homeless cases were incorrectly decided. “Martin handcuffed local jurisdictions as they tried to respond to the homelessness crisis; Grants Pass now places them in a straitjacket,” one dissent read. In 2023, an Arizona state judge also urged the Supreme Court to take up the matter, arguing Martin and Grants Pass both “tie the hands of cities that seek in good faith to address the growing homeless encampment epidemic.”

On Friday afternoon, Ed Johnson, the lead attorney for the homeless plaintiffs, issued a statement defending the Grants Pass decision, describing it as “narrow” and “consistent with decades of Supreme Court precedent.”

The Supreme Court will decide if it’s a violation of the Eighth Amendment to fine or arrest people experiencing homelessness

The lead original plaintiff for the Grants Pass case was Debra Blake, who had experienced homelessness for roughly a decade and in that time racked up hundreds of dollars in fines and fees for sleeping outside and allegedly trespassing. By 2020, Blake owed over $5,000 in penalties for living outside. Blake died a year later at 62 and the case was renamed for another homeless plaintiff, Gloria Johnson.

Supporters of the Grants Pass decision say the Ninth Circuit merely affirmed and clarified its prior decision in Martin, which found that punishing homeless people with no other place to go violates the Eighth Amendment’s prohibition on cruel and unusual punishment. But opponents say that by describing civil penalties against unhoused people as unconstitutional, as opposed to just criminal penalties, Grants Pass actually represents a radical expansion of the Martin holding.

By taking this case, the US Supreme Court is likely to resolve a key question underlying this debate: Is it a violation of the Eighth Amendment to issue penalties — whether jail time or tickets and fines — against people experiencing homelessness if they have no adequate shelter alternatives?

Lawyers representing Grants Pass say no, it’s not. They argue that enforcing local regulations should simply not be considered cruel and unusual punishments.

“I think the entire idea that it could constitute cruel and unusual punishment to arrest someone for sleeping on the street is incorrect,” Timothy Sandefur, the vice president for legal affairs at the Goldwater Institute, told me in October. The Goldwater Institute is a conservative legal advocacy group that filed a brief urging the Supreme Court to take the case. Sandefur told me that “it’s true” that arresting someone for a status like being homeless is wrong, but he argued it would be at most a violation of due process, not of the Eighth Amendment.

Homeless advocates in support of both Martin and Grants Pass say ticketing, fining, and arresting unhoused people if they have nowhere else to go certainly violates the Eighth Amendment. In a brief filed to the Ninth Circuit in support of the unhoused plaintiffs, lawyers with the Fines and Fees Justice Center argued that civil penalties frequently trap unhoused people in cycles of poverty and homelessness, ensnaring them in debt that prevents them from securing housing at all.

Overturning Martin and Grants Pass would give cities more power to clear tent encampments

If the Supreme Court overturns these decisions, cities will have an easier time clearing tent encampments and prosecuting those who violate anti-camping laws.

Proponents of overturning the decisions say they’re not endorsing the idea of simply throwing unhoused people into jail. In a Supreme Court brief filed by the California State Sheriffs’ Association and the California Police Chiefs Association, the groups wrote “they, by no means, argue for the criminalization of the homeless” and are committed to “improving the outcomes” for unhoused people.

But given the political pressure many leaders face to crack down on tent encampments and the slow pace at which cities are producing more affordable housing, advocates are not wrong to worry that increased criminalization could be an inevitable outcome if these cases are overturned. “If politicians were truly focused on ending homelessness, they would focus on proven solutions like housing and services,” said Jesse Rabinowitz of the National Homelessness Law Center, in a statement on Friday afternoon.

Overturning the decisions may also have implications for sending homeless people involuntarily to substance use or psychiatric treatment programs, by removing a legal check on governments tasked with implementing new forced treatment statutes.