In 2013, the city of Grants Pass, Oregon, population about 40,000, sought to do something about the growing presence of homeless encampments on public property. The City Council decided to heavily enforce laws prohibiting homeless people from sleeping anywhere at any time by issuing significant, escalatory fines. The intent was to drive the homeless population out of town.

“The point is to make it uncomfortable enough for them in our city so they will want to move on down the road,” City Council member Lily Morgan said at a council meeting on homelessness in 2013.

Advocates for homeless people sued on behalf of three individuals ― Gloria Johnson, John Logan and Debra Blake, who has since died ― in 2018, challenging the city’s enforcement of these laws as unconstitutionally punitive.

Their case is now before the U.S. Supreme Court, which will hear arguments on April 22, after Grants Pass appealed a decision by the U.S. Court of Appeals for the 9th Circuit that blocked the city’s enforcement of some of its laws targeting the homeless population.

At the heart of the case is a 2018 decision by the 9th Circuit in a separate case, Martin v. Boise, in which the Idaho city’s total ban on outdoor camping and sleeping was found to be a violation of the Eighth Amendment’s prohibition on “cruel and unusual punishments,” and it blocked enforcement of the law. Since Martin, a steady stream of 9th Circuit decisions have blocked similar policies in West Coast municipalities aimed at limiting outdoor camping and sleeping, using different interpretations of the court’s initial decision ― including in the Grants Pass case.

Now Grants Pass wants the Supreme Court to step in and overrule the 9th Circuit, including by wiping out its ruling in Martin v. Boise.

The city is backed by a diverse array of municipalities, from Democratic-run states like California and cities including San Francisco, Phoenix and Honolulu; to Republican-run states, such as Idaho and Montana, which are all dealing with increased homeless populations. The cities and states want the Supreme Court to either overturn Martin and the decision against Grants Pass or clarify and limit Martin’s holding to enable them to prevent outdoor camping and sleeping in some fashion.

These states and cities claim that the 9th Circuit’s varying interpretations of Martin have tied their hands when it comes to addressing encampments on public property even as the homeless population has surged to record highs in the states in the court’s jurisdiction.

Advocates for homeless people argue that a ruling in favor of Grants Pass would effectively make being homeless illegal. They point to the sweeping nature of Grants Pass’s anti-camping ordinances, which count the possession of a blanket as illegal bedding material, a fineable civil offense.

By prohibiting even the possession of a blanket, they say, the city’s laws seek to deny its homeless population a fundamental human need, sleep, while applying the laws broadly to a distinct class of people. Homeless individuals, their advocates argue, have no choice but to sleep in the open when they have no alternative. This is the heart of the legal argument in the case.

Cruel And Unusual Punishment

An issue in the Grants Pass case is whether the Constitution’s prohibition on “cruel and unusual punishments” covers schemes like the one in Grants Pass that make it a crime to sleep outside with a blanket at any time and in any place.

In its rulings in the Martin and Grants Pass cases, the 9th Circuit cited the 1962 Supreme Court decision in Robinson v. California that blocked enforcement of California’s law making it a crime to be a drug addict, ruling it was a form of cruel and unusual punishment. The court’s decision stated that drug addicts were a distinct class and laws making it illegal for them to exist amounted to an Eighth Amendment violation.

It “would doubtless be universally thought to be an infliction of cruel and unusual punishment” were the government “to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease,” the Supreme Court said in Robinson.

The 9th Circuit, in the Martin decision, found that the same rule applies to homeless people: They are a distinct class that cannot be targeted by laws that make their very existence, living in a community without shelter, illegal. Municipalities are, therefore, not allowed to forbid sleeping outside in all places at all times and cannot punish homeless people for sleeping outside unless there are shelter beds available and they refuse to use them.

“[A]s long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property,” the court said in Martin.

In Grants Pass, the 9th Circuit stated that the city lacked sufficient shelter beds for its homeless population and extended its prohibition on sleeping outdoors when no shelter is available to include the civil fines imposed by the city.

Despite these limits, the 9th Circuit did not explicitly forbid municipalities from enforcing all laws limiting outdoor sleeping or safety issues related to homeless encampments. It preserved the ability of cities to impose restrictions on when and where people can camp outdoors, such as forbidding the blocking of sidewalks, and to police the possession of personal objects, such as tents and stoves, or conduct including public drug use or public urination and defecation.

But Grants Pass and the other states and cities claim that the rules established in Martin have been greatly expanded by subsequent decisions that have tied their hands when it comes to policing encampments of homeless people.

A district court decision in Coalition on Homelessness v. City of San Francisco “expanded Martin and Grants Pass further by … prohibiting enforcement of any ordinance restricting sleeping, lodging, or camping on public property by the involuntary homeless — even ordinances that are limited to specific time or place restrictions,” California Gov. Gavin Newsom, a Democrat, wrote in a brief to the U.S. Supreme Court.

Newsom’s brief also notes similar district court injunctions placed on anti-camping laws enforced in California cities, including Los Angeles, San Rafael and Santa Barbara, that involved time and place restrictions and bans on items such as ovens and stoves ― enforcement actions that Martin seemingly allowed. In Los Angeles, a district court imposed new rules that prohibited the city from enforcing some of its anti-camping laws even when shelter beds were available, adding criteria about the conditions and amenities those shelters maintained. Many shelters, however, may not meet the individual needs of homeless people because of rules such as banning pets or requiring that belongings be surrendered, or because they are unsafe.

“The Ninth Circuit has transformed Martin into a virtually insurmountable roadblock with which district courts routinely enjoin common-sense limits on where those experiencing homelessness can sleep in public, and on the size and features of the encampments they set up in these public spaces,” Newsom wrote.

Many of those seeking a change to Martin don’t directly object to its original holding that the Eighth Amendment’s prohibition on “cruel and unusual punishments” protects homeless people, as a class, from enforcement that criminalizes their existence. Instead, they want clarity that permits municipalities to enforce laws that Martin purportedly allows and for the courts to allow municipalities to judge whether a person is involuntarily homeless (specifically, whether they can access a shelter bed) on an individual basis rather than simply counting the number of available shelter beds in a given area.

There has been significant dissent along these lines within the 9th Circuit, with multiple judges arguing that the purported expansion of Martin in subsequent cases has improperly tied the hands of municipalities to address encampments and the public health problems they can create.

But the city of Grants Pass takes a more sweeping position than politicians like Newsom. The city wants the Supreme Court to throw out the “cruel and unusual punishments” claim entirely.

It does so by making a claim that the “text, history or tradition” of the Eighth Amendment should be limited to the Founding Fathers’ “concerns about barbarous punishments, such as ‘quartering, public dissection, and burning alive,’” according to the city’s brief.

This reflects a bid for support from the Supreme Court’s conservative supermajority, which has applied a spotty understanding of history and questionable interpretations of tradition to significantly limit gun control laws and abortion access in its recent rulings.

Banning Homelessness

According to the national homelessness count, more than 650,000 people in the U.S. were unhoused in 2023 ― a record high since the count began in 2007 and a 12% increase from 2022. Meanwhile, the number of shelter beds available increased only by 6%.

In the case of Grants Pass, the city does not operate a shelter for its homeless population. There are small shelters in the city specifically for domestic violence victims and homeless youths, but these have an extremely limited number of beds. The only general population shelter is run by a Christian charity that requires residents to attend church and perform unpaid work. For the city’s estimated 1,200 homeless people, there is little hope for a bed.

Without the protections afforded by the 9th Circuit’s decisions in Martin and Grants Pass, the city’s homeless people would be effectively criminalized, potentially out of existence, as they are forced to move on.

Advocates for homeless people have asked the Supreme Court to consider the consequences of allowing this to happen while other municipalities have also enacted schemes to ban homeless people from their communities.

“What happens if other cities get frustrated with the influx of Grants Pass’s homeless residents and decide to enact their own ordinances imposing $2,000 fines and six-month jail sentences for sleeping outside without access to shelter?” advocates wrote in a brief to the court. “What happens if this banishment race results in a spate of local punishment schemes that collectively operate as a nationwide ban on homelessness?”

This could have catastrophic effects for some of the most vulnerable groups in the country, allies of Grants Pass’s homeless community argue.

In particular, women who flee from abusive partners would be harmed, according to a brief filed with the court by the National Women’s Shelter Network and the National Organization for Women Foundation.

From 22% to 57% of all women who are homeless state that gender-based violence is the reason they are unhoused, according to a 2016 report by the Department of Health and Human Services.

“By penalizing homelessness, Grants Pass is effectively asking women to choose their cruel and usual punishment: victimhood of violence or jail,” the groups state in their brief.

Similarly, significant numbers of children reported that the physical or sexual abuse they suffered at home or that they fear suffering if they return as their reason for being homeless.

Were the Supreme Court to overrule the 9th Circuit’s decisions in Martin and Grants Pass it would have grave consequences for the nation’s growing population of homeless people, advocates argue.

There are other potential remedies, such as those put forward in the briefs filed by Newsom, some California cities and the Department of Justice. Instead of overturning the 9th Circuit’s decisions, the Supreme Court could send the Grants Pass case back to the circuit court for rehearing with instructions on how to read the limits imposed in Martin.

Specifically, the Justice Department urged the Supreme Court to vacate the 9th Circuit’s decision in Grants Pass and send it back with instructions to uphold the application of the Eighth Amendment to some anti-camping ordinances but to allow for “more particularized inquiries.” That mirrors the request from Newsom that municipalities be allowed to judge whether a person is voluntarily homeless on an individual basis, not on a class-wide basis.

Whatever the court decides, it will have a major effect on how the nation’s states and cities respond to the growing issue of homelessness.