Supreme Court to Consider Case on Homeless

On Friday, January 12, 2024, the Supreme Court of the United States agreed to hear the appeal of the Ninth Circuit’s decision in Johnson, et al. v. City of Grants Pass. (USSC No. 23-175.) (“Grants Pass”) which re-affirmed and expanded the Ninth Circuit’s 2019 decision in Martin v. City of Boise (“Martin”).  In Martin, the Ninth Circuit held the enforcement of City of Boise’s s anti-camping ordinances violated the Cruel and Unusual Punishment Clause of the Eighth Amendment because Boise did not have sufficient shelter for its homeless population. Thereafter, the Ninth Circuit held that enforcement of a Grants Pass ordinance that prohibited persons from sleeping with bedding or camping equipment on public sidewalks, streets, or alleyways, violated the Cruel and Unusual Punishments Clause stating such items were essential to sleeping. 

The question the Supreme Court stated it would address on appeal  is “whether the enforcement of generally applicable laws regulating camping on public property constitutes a ‘cruel and unusual’ punishment prohibited by the Eighth Amendment?” The Grants Pass and Martin decisions are based upon the Ninth Circuit’s novel interpretation of the Cruel and Unusual Punishment clause of the Eighth Amendment, that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.  Based upon this interpretation the Ninth Circuit held in Martin and Grants Pass that public agencies cannot enforce anti-camping ordinances against persons experiencing homelessness if those persons do not have adequate alternative shelter available to them. This interpretation of the Eighth Amendment broke with over 200 years of jurisprudence interpreting the scope of the Cruel and Unusual Clause. Furthermore, in so ruling, the Ninth Circuit failed to provide clear and consistent guidance to public agencies as to when there is adequate shelter reasonably available to persons experiencing homelessness. 

The Ninth Circuit’s failure to provide clear and consistent rules have left many local agencies perplexed and unwilling to risk enforcing anti-camping laws because of the demonstrated high litigation costs associated with challenges to these types of ordinances.  This issue brings together groups and public officials that span the political spectrum.

On September 25, 2023, our Firm filed an Amicus Brief (Friend of the Court) entitled “Brief of Amici Curiae Ten Cities and the County of Orange” that included a coalition of eleven local governments in support of Grants Pass’ petition for review to the Supreme Court. The brief provided case studies on how the Martin rule and all subsequent lower court rulings have negatively affected a local government’s ability to address the public health and safety issues associated with homeless encampments while attempting to address the root causes of homelessness. The brief was unique in that it provided the Supreme Court with brief case studies of the significant difficulties local governments across California are having in attempting to comply with the Martin and Grants Pass decisions.  

Now that the Court has granted review, our Firm has submitted an Amicus Brief on the merits of the case on behalf of thirteen (13) California cities. This brief argues that the Supreme Court should overturn the Ninth Circuit's Grants Pass decision for the following reasons:

1. The decision in Grants Pass, which relies upon the decision in Martin, is inconsistent with historical jurisprudence addressing the applicability of the 8th Amendment's prohibition on cruel and unusual punishment.

2. Subjecting the enforcement of anti-camping ordinances to 8th Amendment protections is unworkable as it has led to a series of court-established "rules" that are difficult or impossible for jurisdictions to comply with and expose jurisdictions to significant legal risk.

3. The Martin and Grants Pass decisions rest on an inaccurate factual premise that lack of access to shelter is the sole, overriding consideration in establishing why a person is homeless when, in fact, the truth is much more complicated.

Hence, the Amici believe that the Martin and Grants Pass decisions are an improper interpretation and application of the Eighth Amendment. Oral argument is scheduled for April 22nd and the ruling is anticipated within sixty days.