In Landmark Ruling, SCOTUS Holds That Eighth Amendment Does Not Bar Cities From Enforcing Anti-Camping Ordinances

11.11.2024

Last summer, the United Supreme Court issued its highly anticipated decision in Johnson v. City of Grants Pass (“Grants Pass”) (2024) 144 S.Ct. 2202, in which it held that municipalities may enforce local anti-camping and anti-sleeping laws without violating the Eighth Amendment’s prohibition on cruel and unusual punishment. The decision reverses the Ninth Circuit’s earlier holding in the same case, and its holding in a prior case that generated considerable attention, Martin v. City of Boise (2019) 920 F.3d 584.

In Martin, the Ninth Circuit held that the Cruel and Unusual Punishment Clause of the Eighth Amendment “bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” On this basis, the court found that the plaintiffs—six homeless residents of the City of Boise—had standing to challenge Boise’s enforcement of its anti-camping ordinance. The three-judge panel held that Boise could not lawfully enforce its ordinance unless it could ensure the availability of adequate shelter or housing for its homeless population.

Approximately six weeks after issuance of the Martin decision, three homeless individuals filed a putative class action against the City of Grants Pass, contesting the constitutionality of that city’s anti-camping and anti-sleeping ordinances under the Eighth Amendment. The ordinances precluded homeless persons from using blankets or pillows for protection from the elements and authorized the city police to bar an individual from all city parks for 30 days if, within one year, the individual was issued two or more citations for violating park regulations.

The district court partially granted the plaintiffs’ motion for summary judgment, finding that the city’s enforcement of the anti-camping and anti-sleeping ordinances violated the Eighth Amendment. It prohibited the city from enforcing the anti-camping ordinance in all city parks at night. It also ordered the city to provide at least 24 hours’ notice before enforcing the ordinance during the day.

On appeal, the Ninth Circuit largely affirmed. Consistent with Martin, it upheld the district court's ruling that “the City of Grants Pass cannot, consistent with the Eighth Amendment, enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the City for them to go.” But the court also directed the district court on remand to “narrow its injunction to the anti-camping ordinances and enjoin enforcement of those ordinances only against involuntarily homeless person [sic] for engaging in conduct necessary to protect themselves from the elements when there is no shelter space available.” It noted that persons are involuntarily homeless if they lack access to adequate temporary shelter. The court also stressed that its decision, like that in Martin, was “narrow.” For example, it recognized that a statutory prohibition on stoves or fires was not necessarily impermissible, and that Grants Pass could lawfully punish an individual for sleeping in public if that person refused a specific offer of shelter. It likewise acknowledged that “when there is no shelter space, jurisdictions may still enforce limitations on sleeping at certain locations.”

The Ninth Circuit thereafter addressed the legality of San Francisco’s anti-camping policies in Coalition on Homelessness v. City and County of San Francisco. In that case, the district court enjoined San Francisco from conducting weekly encampment sweeps based on its finding that the city had removed involuntarily homeless persons from the streets without giving them advance notice or offering them shelter for the night. Based on its holdings in Grants Pass and Martin, the Ninth Circuit affirmed the district court’s injunction.

Following the appeal in Coalition, the Supreme Court granted certiorari in Grants Pass. On June 28, 2024, the Court issued a 6-3 decision, reversing the lower court’s ruling and abrogating the holdings in Martin and Coalition. The Court explained that the Eighth Amendment’s Cruel and Unusual Punishments Clause “has always been considered, and properly so, to be directed at the method or kind of punishment a government may impose for the violation of criminal statutes.” The prohibition “focuses on the question what ‘method or kind of punishment’ a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense.”

Additionally, the Court held that the punishments prescribed by Grants Pass for violations of its anti-camping and anti-sleeping ordinances do not constitute cruel and unusual punishment. The city imposed only (1) limited fines for first-time offenders, (2) an order temporarily barring repeat offenders from camping in a public park, and (3) a maximum sentence of 30 days in jail for those who violated an anti-camping order. Such punishments do not qualify as cruel because they are “not designed to ‘superadd’ ‘terror, pain, or disgrace,’” nor are they unusual, as limited fines and jail terms “have been and remain among ‘the usual mode[s]’ for punishing offenses throughout the country.” The Court also declared that Grants Pass’ ordinances do not criminalize status, but rather prohibit certain actions—like camping or sleeping in public—undertaken by any person, regardless of whether the person is housed. The Court also declined to extend the Eighth Amendment’s prohibition to certain acts that are in some sense “involuntary” because “some homeless persons cannot help but do what the law forbids.” In an earlier decision, Powell v. Texas (1968) 392 U.S. 514, the Court rejected a similar challenge to a Texas public intoxication statute brought by a plaintiff who argued that the statute effectively criminalized his status as an alcoholic. As the Court observed, while a particular act might be fairly characterized as “involuntary” or having been “‘occasioned by’ a particular status,” this fact alone does not prohibit a state from proscribing that act and meting out punishment for it.

Grants Pass’ impact is quite sweeping, as it removes a significant barrier that cities faced in enforcing prohibitions on encampments and citing individuals for violating those prohibitions following the Ninth Circuit’s decision in Martin. But local jurisdictions will likely continue to encounter legal challenges as they strive to combat homelessness. For example, some cities—including Los Angeles, San Francisco, and San Diego—have adopted ordinances authorizing the seizure and storage of bulky personal items on public property, like mattresses and carts. In Coalition, the district court found based on the factual record before it that San Francisco’s impoundment of these items violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Court did not address the constitutionality of these “bag-and-tag” policies in Grants Pass, as its analysis was limited to the Eighth Amendment’s applicability to anti-camping and anti-sleeping laws. But we anticipate the issue will remain an ongoing subject of litigation.

The authors of this alert drafted an amicus brief in support of San Francisco’s appeal in Coalition and received an Amicus Service Award earlier this year from the International Municipal Lawyers Association for their work on the brief. Based on their knowledge and experience, they can assist agencies with enacting or modifying their anti-camping regulations and related policies to ensure they pass muster post-Grants Pass, and with defending the constitutionality of these practices.