Policymakers have several tools for addressing the rising issue of homelessness in their communities.  In City of Grants Pass, Oregon v. Johnson, No. 23-175603 (June 28, 2024), the U.S. Supreme Court (“Court”) had its first opportunity to address whether one of these tools, generally applicable laws that restrict camping on public property, constitutes “cruel and unusual punishment” in violation of the U.S. Constitution’s Eighth Amendment. 

The City of Grants Pass, Oregon (“City”) passed an ordinance prohibiting “camping” on “any sidewalk, street, alley, lane, public right of way, park, bench, or any other publicly-owned property or under any bridge or viaduct” (the “Ordinance”).  Dissent of J. Sotomayor at 8 (citing Grants Pass, Ore. Municipal Code §5.61.030 (2024)).  The City’s code defines “camp-site” as “any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed, established, or maintained for the purposes of maintaining a temporary place to live.”  Id. (citing Grants Pass, Ore. Municipal Code §5.61.010(B) (2024)).  Fines for violating the Ordinance start at $295 and could result in criminal trespass if repeated. 

Two longtime residents of Grants Pass who are homeless and sleep in their cars sued the City on behalf of themselves and all other involuntarily homeless people in Grants Pass.  The district court and Ninth Circuit agreed that based on Martin v. Boise, 920 F.3d 584 (2019), the Ordinance violated the Eighth Amendment because there was a greater number of homeless individuals than the number of available beds in shelters in the City.

The City appealed the Ninth Circuit’s decision to the U.S. Supreme Court, and in a 6-3 decision, the Court disagreed and overturned Martin, holding that the Eighth Amendment does not prohibit the enforcement of generally applicable laws regulating camping on public property.

Citing to the Eighth Amendment’s origins, meaning, and text, the majority concluded that the Eighth Amendment’s prohibition against “cruel and unusual punishment” is “directed at the method or kind of punishment a government may impose for the violation of criminal statutes.”  Slip op.at 15 (internal quotation marks, brackets, and citation omitted).  It is not directed at “whether a government may criminalize particular behavior in the first place.”  Id. at 16.  The majority also concluded that the Ordinance does not criminalize an individual’s “status” of “involuntary homelessness” because the City could enforce it against “a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.”  Id. at 20. 

In City of Grants Pass, the Court provided the relief that a number of cities and states were seeking by overruling Martin.  It also provided certainty to cities nationwide that their public camping restrictions do not violate the Eighth Amendment.  However, for real estate and land use practitioners in states where the legislature has codified restrictions on public camping laws, like Oregon, the holding had no affect.  See id. at 31. 

Unfortunately for real estate and land use practitioners, the Court did not address other potential constitutional challenges to public camping ordinances, including those under the Fourteenth Amendment’s due process clause and the Eighth Amendment’s excessive fines clause.  Dissent of J. Sotomayorat 26-27.  Nor did City of Grants Pass address whether the criminalization of “status” (i.e., being an alcoholic or addicted to narcotics) is still “cruel and unusual punishment” under the Eighth Amendment.  Id. at 23.  Finally, the Court did not analyze the validity of the Ordinance under an Oregon state law that restricts local jurisdictions from enacting certain types of public camping laws, but the majority appears to assert that states can place limits on how local jurisdictions may regulate public camping.  Slip op. at 25; Dissent of J. Sotomayorat 26.  In short, there will likely be further litigation over a city’s authority to criminalize camping in public places. 

City of Grants Pass clarifies that governments have the authority to enact public camping laws without running afoul of the Eighth Amendment.  However, while City of Grants Pass overturns the Ninth Circuit’s prohibition on public camping laws when the local jurisdiction does not have “available” beds, other constitutional challenges to public camping laws will likely arise.  The decision also has minimal impact in places where limitations on a local jurisdiction’s authority to enact public camping laws are codified by statute.