SCOTUS to Decide if Enforcement of Laws Regulating Encampments on Public Property Constitute “Cruel and Unusual Punishment” Against the Homeless

Written By: Tania Rivera Bullard

On January 12, 2024 the Supreme Court of the United States granted certiorari, and agreed to hear the case of City of Grants Pass, Oregon v. Johnson. On October 15, 2018, a class-action lawsuit against the City of Grants Pass, OR was filed challenging the constitutionality of the city’s enforcement of various anti-sleeping, anti-camping, and park exclusion ordinances, alleging that they violated the Cruel and Unusual Punishment Clause of the Eighth Amendment of the Constitution.

AP Photo/Ted S. Warren

The City of Grants Pass, OR does not have any homeless shelters and instead has two privately operated programs capable of only serving a small percentage of their growing homeless population. Attorneys involved in this case cite that the majority of the city’s homeless population has no choice but to sleep outside and couldn’t do that without fear of civil citations and tickets with fines that reached up to several hundred dollars.

In this case, the Ninth Circuit took the ruling of Martin v. City of Boise which held that the Cruel and Unusual Punishment Clause of the Eighth Amendment of the Constitution prevents cities from enforcing criminal restrictions on camping on public property and extended it to prohibit the City of Grants Pass, OR from enforcing its ordinances regarding public camping even through civil citations. The City of Grants Pass, OR is challenging that decision as they scramble to address their growing homeless encampment epidemic.

Over 20 individuals and organizations not directly involved in the case, but with interest in its outcome filed briefs with the court. Some of the parties include: the District Attorney of Sacramento County, Speaker of the Arizona House of Representatives, California Governor Gavin Newsom, LA Alliance for Human Rights, City of Phoenix, City of Los Angeles, Washington State Association of Sheriffs and Police Chiefs, etc. The briefs argue for urgent action, stressing that the lack of enforcement of camping and sleeping bans has led to a rise in public encampments. According to the briefs, this situation has resulted in a humanitarian crisis in Ninth Circuit states, where homeless populations have seen a significant increase compared to other states. Other briefs argued that this ruling threatens to cripple law makers and law enforcement from addressing the serious public health crisis that is homelessness. These briefs emphasize that the regulation and management of homelessness is a crucial role for local governments and trace that to the original drafting of the United States Constitution pointing to a potential separation of powers conflict.

While some are hoping for a complete overturning of the case, some are simply looking for some clarity. Several briefs argue that the distinction between voluntary and involuntary homelessness is difficult to apply and that Martin has caused confusion in local government, making it challenging for them to find constitutionally viable options for addressing homelessness.

While there is no way to guess how the Court will rule, one thing for sure: this is going to have a big impact on the ever-growing homelessness crisis in the West. Arguments have not yet been scheduled, TBD.


City of Grant Pass v. Johnson, 72 F.4th 868 (9th Cir. 2022), cert. granted

OPB News, ‘US Supreme Court Takes Grants Pass, Oregon Case on Homeless Policies’, Oregon Public Broadcasting, (January 12, 2024).