The Supreme Court Takes Up Homelessness

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From “The New York Times,” I’m Katrin Bennhold. This is “The Daily.”

As the number of homeless people has surged in the US —

The debate over homeless encampments across the country has intensified.

With public officials saying they need more tools to address the crisis.

And homeless people and their advocates saying those tools are intended to unfairly punish them.

That debate is now reaching the Supreme Court, which is about to hear arguments in the most significant case on homelessness in decades, about whether cities can make it illegal to be homeless. My colleague Abbie VanSickle on the backstory of that case and its far-reaching implications for cities across the US.

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It’s Friday, April 19.

So Abbie, you’ve been reporting on this case that has been making waves, Grants Pass versus Johnson, which the Supreme Court is taking up next week. What’s this case about?

So this case is about a small town in Oregon where three homeless people sued the city after they received tickets for sleeping and camping outside. And this case is the latest case that shows this growing tension, especially in states in the West, between people who are homeless and cities who are trying to figure out what to do about this. These cities have seen a sharp increase in homeless encampments in public spaces, especially with people on sidewalks and in parks. And they’ve raised questions about public drug use and other safety issues in these spaces.

And so the question before the justices is really how far a city can go to police homelessness. Can city officials and police use local laws to ban people from laying down outside and sleeping in a public space? Can a city essentially make it illegal to be homeless?

So three homeless people sued the city of Grants Pass, saying it’s not illegal to be homeless, and therefore it’s not illegal to sleep in a public space.

Yes, that’s right. And they weren’t the first people to make this argument. The issue actually started years ago with a case about 500 miles to the East, in Boise, Idaho. And in that case, which is called Martin v. Boise, this man, Robert Martin, who is homeless in Boise, he was charged with a misdemeanor for sleeping in some bushes. And the city of Boise had laws on the books to prohibit public camping.

And Robert Martin and a group of other people who are homeless in the city, they sued the city. And they claimed that the city’s laws violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

And what makes it cruel and unusual?

So their argument was that the city did not have enough sufficient shelter beds for everyone who was homeless in the city. And so they were forced to sleep outside. They said, we have no place to go and that an essential human need is to sleep and we want to be able to lay down on the sidewalk or in an alley or someplace to rest and that their local laws were a violation of Robert Martin and the others’ constitutional rights, that the city is violating the Eighth Amendment by criminalizing the human need to sleep.

And the courts who heard the case agreed with that argument. The courts ruled that the city had violated the Constitution and that the city could not punish people for being involuntarily homeless. And what that meant, the court laid out, is that someone is involuntarily homeless if a city does not have enough adequate shelter beds for the number of people who are homeless in the city.

It does seem like a very important distinction. They’re saying, basically, if you have nowhere else to go, you can’t be punished for sleeping on the street.

Right. That’s what the court was saying in the Martin v. Boise case. And the city of Boise then appealed the case. They asked the Supreme Court to step in and take it on. But the Supreme Court declined to hear the case. So since then, the Martin v. Boise case controls all over the Western parts of the US in what’s called the Ninth Circuit, which includes Oregon where the Grants Pass case originated.

OK. So tell us about Grants Pass, this city at the center of the case and now in front of the Supreme Court. What’s the story there?

Grants Pass is a town in rural Southwestern Oregon. It’s a town of about 38,000 people. It’s a former timber town that now really relies a lot on tourists to go rafting through the river and go wine tasting in the countryside. And it’s a pretty conservative town.

When I did interviews, people talked about having a very strong libertarian streak. And when I talked with people in the town, people said when they were growing up there, it was very rare to see someone who was homeless. It just was not an issue that was talked a lot about in the community. But it did become a big issue about 10 years ago.

People in the community started to get worried about what they saw as an increase in the number of homeless people that they were noticing around town. And it’s unclear whether the problem was growing or whether local officials and residents were worried that it might, whether they were fearing that it might.

But in any case, in 2013, the city council decided to start stepping up enforcement of local ordinances that did things like outlaw camping in public parks or sleeping outside, this series of overlapping local laws that would make it impossible for people to sleep in public spaces in Grants Pass. And at one meeting, one of the former city council members, she said, “the point is to make it uncomfortable enough for them in our city so they will want to move on down the road.”

So it sounds like, at least in Grants Pass, that this is not really about reducing homelessness. It’s about reducing the number of visible homeless people in the town.

Well, I would say that city officials and many local residents would say that the homeless encampments are actually creating real concerns about public safety, that it’s actually creating all kinds of issues for everyone else who lives in Grants Pass. And there are drug issues and mental health issues, and that this is actually bringing a lot of chaos to the city.

OK. So in order to deal with these concerns, you said that they decided to start enforcing these local measures. What does that actually look like on the ground?

So police started handing out tickets in Grants Pass. These were civil tickets, where people would get fines. And if police noticed people doing this enough times, then they could issue them a trespass from a park. And then that would give — for a certain number of days, somebody would be banned from the park. And if police caught them in the park before that time period was up, then the person could face criminal time. They could go to jail.

And homeless people started racking up fines, hundreds of dollars of fines. I talked to a lot of people who were camping in the parks who had racked up these fines over the years. And each one would have multiple tickets they had no way to pay. I talked to people who tried to challenge the tickets, and they had to leave their belongings back in the park. And they would come back to find someone had taken their stuff or their things had been impounded.

So it just seemed to be this cycle that actually was entrenching people more into homelessness. And yet at the same time, none of these people had left Grants Pass.

So they did make it very uncomfortable for homeless people, but it doesn’t seem to be working. People are not leaving.

Right. People are not leaving. And these tickets and fines, it’s something that people have been dealing with for years in Grants Pass. But in 2018, the Martin v. Boise case happens. And not long after that, a group of people in Grants Pass challenged these ordinances, and they used the Boise case to make their argument that just like in Boise, Grants Pass was punishing people for being involuntarily homeless, that this overlapping group of local ordinances in Grants Pass had made it so there is nowhere to put a pillow and blanket on the ground and sleep without being in some kind of violation of a rule. And this group of local homeless people make the argument that everyone in Grants Pass who is homeless is involuntarily homeless.

And you told us earlier that it was basically the lack of available shelter that makes a homeless person involuntarily homeless. So is there a homeless shelter in Grants Pass?

Well, it sort of depends on the standard that you’re using. So there is no public low-barrier shelter that is easy for somebody to just walk in and stay for a night if they need someplace to go. Grants Pass does not have a shelter like that.

There is one shelter in Grants Pass, but it’s a religious shelter, and there are lots of restrictions. I spoke with the head of the shelter who explained the purpose is really to get people back into the workforce. And so they have a 30-day program that’s really designed for that purpose.

And as part of that, people can’t have pets. People are not allowed to smoke. They’re required to attend Christian religious services. And some of the people who I interviewed, who had chronic mental health and physical disabilities, said that they had been turned away or weren’t able to stay there because of the level of needs that they have. And so if you come in with any kind of issue like that, it can be a problem.

That’s a very long list of restrictions. And of course, people are homeless for a lot of very different reasons. It sounds like a lot of these reasons might actually disqualify them from this particular shelter. So when they say they have nowhere else to go, if they’re in Grants Pass, they kind of have a point.

So that’s what the court decided. In 2022, when the courts heard this case, they agreed with the homeless plaintiffs that there’s no low-barrier shelter in Grants Pass and that the religious shelter did not meet the court’s requirements. But the city, who are actually now represented by the same lawyers who argued for Boise, keeps appealing the case. And they appeal up to the Ninth Circuit just as in the Boise case, and the judges there find in favor of the homeless plaintiffs, and they find that Grants Pass’s ordinances are so restrictive that there is no place where someone can lay down and sleep in Grants Pass and that therefore the city has violated the Eighth Amendment and they cannot enforce these ordinances in the way that they have been for years.

So at that point, the court upholds the Boise precedent, and we’re where we were when it all started. But as we know, that’s not the end of the story. Because this case stays in the court system. What happened?

So by this point, the homelessness problem is really exploding throughout the Western part of the US with more visible encampments, and it really becomes a politically divisive issue. And leaders across the political spectrum point to Boise as a root cause of the problem. So when Grants Pass comes along, people saw that case as a way potentially to undo Boise if only they could get it before the Supreme Court.

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We’ll be right back.

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Abbie, you just told us that as homeless numbers went up and these homeless encampments really started spreading, it’s no longer just conservatives who want the Supreme Court to revisit the Boise ruling. It’s liberals too.

That’s right. So there’s a really broad group of people who all started pushing for the Supreme Court to take up the Grants Pass case. And they did this by filing briefs to the Supreme Court, laying out their reasoning. And it’s everyone from the liberal governor of California and many progressive liberal cities to some of the most conservative legal groups. And they disagree about their reasoning, but they all are asking the court to clarify how to interpret the Boise decision.

They are saying, essentially, that the Boise decision has been understood in different ways in all different parts of the West and that that is causing confusion and creating all sorts of problems. And they’re blaming that on the Boise case.

It’s interesting, because after everything you told us about these very extreme measures, really, that the city of Grants Pass took against homeless people, it is surprising that these liberal bastions that you’re mentioning are siding with the town in this case.

Just to be clear, they are not saying that they support necessarily the way that Grants Pass or Boise had enforced their laws. But they are saying that the court rulings have tied their hands with this ambiguous decision on how to act.

And what exactly is so ambiguous about the Boise decision? Which if I remember correctly, simply said that if someone is involuntarily homeless, if they’re on the streets because there’s no adequate shelter space available, they can’t be punished for that.

Yeah. So there are a couple of things that are common threads in the cities and the groups that are asking for clarity from the court. And the first thing is that they’re saying, what is adequate shelter? That every homeless person situation is different, so what are cities or places required to provide for people who are homeless? What is the standard that they need to meet?

In order not to sleep on the street.

That’s right. So if the standard is that a city has to have enough beds for everyone who is homeless but certain kinds of shelters or beds wouldn’t qualify, then what are the rules around that? And the second thing is that they’re asking for clarity around what “involuntarily homeless” means. And so in the Boise decision, that meant that someone is involuntarily homeless if there is not enough bed space for them to go to.

But a lot of cities are saying, what about people who don’t want to go into a shelter even if there’s a shelter bed available? If they have a pet or if they are a smoker or if something might prohibit them from going to a shelter, how is the city supposed to weigh that and at what point would they cross a line for the court?

It’s almost a philosophical question. Like, if somebody doesn’t want to be in a shelter, are they still allowed to sleep in a public space?

Yeah. I mean, these are complicated questions that go beyond the Eighth Amendment argument but that a lot of the organizations that have reached out to the court through these friend of the court briefs are asking.

OK. I can see that the unifying element here is that in all these briefs various people from across the spectrum are saying, hello, Supreme Court. We basically need some clarity here. Give us some clarity.

The question that I have is why did the Supreme Court agree to weigh in on Grants Pass after declining to take up Boise?

Well, it’s not possible for us to say for certain because the Supreme Court does not give reasons why it has agreed to hear or to not hear a case. They get thousands of cases a year, and they take up just a few of those, and their deliberations are secret. But we can point to a few things.

One is that the makeup of the court has changed. The court has gained conservative justices in the last few years. This court has not been shy about taking up hot button issues across the spectrum of American society. In this case, the court hasn’t heard a major homelessness case like this.

But I would really point to the sheer number and the range of the people who are petitioning the court to take a look at this case. These are major players in the country who are asking the court for guidance, and the Supreme Court does weigh in on issues of national importance. And the people who are asking for help clearly believe that this is one of those issues.

So let’s start digging into the actual arguments. And maybe let’s start with the city of Grants Pass. What are the central arguments that they’re expected to make before the Supreme Court?

So the city’s arguments turn on this narrow legal issue of whether the Eighth Amendment applies or doesn’t. And they say that it doesn’t. But I actually think that in some ways, that’s not the most helpful way to understanding what Grants Pass is arguing.

What is really at the heart of their argument is that if the court upholds Grants Pass and Boise, that they are tying the hands of Grants Pass and hundreds of other towns and cities to actually act to solve and respond to homelessness. And by that, I mean to solve issues of people camping in the parks but also more broadly of public safety issues, of being able to address problems as they arise in a fluid and flexible way in the varied ways that they’re going to show up in all these different places.

And their argument is if the court accepts the Grants Pass and Boise holdings, that they will be constitutionalizing or freezing in place and limiting all of these governments from acting.

Right. This is essentially the argument being repeated again and again in those briefs that you mentioned earlier, that unless the Supreme Court overturns these decisions, it’s almost impossible for these cities to get the encampments under control.

Yes, that’s right. And they also argue they need to have flexibility in dealing actually with people who are homeless and being able to figure out using a local ordinance to try to convince someone to go to treatment, that they say they need carrots and sticks. They need to be able to use every tool that they can to be able to try to solve this problem.

And how do we make sense of that argument when Grants Pass is clearly not using that many tools to deal with homeless people? For example, it didn’t have shelters, as you mentioned.

So the city’s argument is that this just should not be an Eighth Amendment issue, that this is the wrong way to think about this case, that issues around homelessness and how a city handles it is a policy question. So things like shelter beds or the way that the city is handling their ordinances should really be left up to policymakers and city officials, not to this really broad constitutional argument. And so therefore, the city is likely to focus their argument entirely on this very narrow question.

And how does the other side counter this argument?

The homeless plaintiffs are going to argue that there’s nothing in the lower courts’ decisions that say that cities can’t enforce their laws that, they can’t stop people from littering, that they can’t stop drug use, that they can’t clear encampments if there becomes public safety problems. They’re just saying that a city cannot not provide shelter and then make it illegal for people to lay down and sleep.

So both sides are saying that a city should be able to take action when there’s public disorder as a result of these homeless encampments. But they’re pointing at each other and saying, the way you want to handle homelessness is wrong.

I think everyone in this case agrees that homelessness and the increase in homelessness is bad for everyone. It’s bad for people who are camping in the park. It is bad for the community, that nobody is saying that the current situation is tenable. Everyone is saying there need to be solutions. We need to be able to figure out what to do about homelessness and how to care for people who are homeless.

How do we wrestle with all these problems? It’s just that the way that they think about it couldn’t be further apart.

And what can you tell me about how the Supreme Court is actually expected to rule in this?

There are a number of ways that the justices could decide on this case. They could take a really narrow approach and just focus on Grants Pass and the arguments about those local ordinances. I think that’s somewhat unlikely because they’ve decided to take up this case of national importance.

A ruling in favor of the homeless plaintiffs would mean that they’ve accepted this Eighth Amendment argument, that you cannot criminalize being homeless. And a ruling for the city, every legal expert I’ve talked to has said that would mean an end to Boise and that it would break apart the current state that we’ve been living in for these last several years.

I’m struck by how much this case and our conversation has been about policing homelessness rather than actually addressing the root causes of homelessness. We’re not really talking about, say, the right to shelter or the right to treatment for people who are mentally ill and sleeping on the streets as a result, which is quite a big proportion. And at the end of the day, whatever way the ruling goes, it will be about the visibility of homelessness and not the root causes.

Yeah, I think that’s right. That’s really what’s looming in the background of this case is what impact is it going to have. Will it make things better or worse and for who? And these court cases have really become this talking point for cities and for their leaders, blaming the spike in encampments and the visibility of homelessness on these court decisions. But homelessness, everyone acknowledges, is such a complicated issue.

People have told me in interviews for the story, they’ve blamed increases in homelessness on everything from the pandemic to forest fires to skyrocketing housing costs in the West Coast, and that the role that Boise and now Grants Pass play in this has always been a little hard to pin down. And if the Supreme Court overturns those cases, then we’ll really see whether they were the obstacle that political leaders said that they were. And if these cases fall, it remains to be seen whether cities do try to find all these creative solutions with housing and services to try to help people who are homeless or whether they once again fall back on just sending people to jail.

Abbie, thank you very much.

Thank you so much.

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We’ll be right back.

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Here’s what else you need to know today. Early on Friday, Israel attacked a military base in Central Iran. The explosion came less than a week after Iran’s attack on Israel last weekend and was part of a cycle of retaliation that has brought the shadow war between the two countries out in the open. The scale and method of Friday’s attack remained unclear, and the initial reaction in both Israel and Iran was to downplay its significance. World leaders have urged both sides to exercise restraint in order to avoid sparking a broader war in the region.

And 12 New Yorkers have been selected to decide Donald Trump’s criminal trial in Manhattan, clearing the way for opening statements to begin as early as Monday. Seven new jurors were added in short order on Thursday afternoon, hours after two others who had already been picked were abruptly excused.

Trump is accused of falsifying business records to cover up a hush money payment made to a porn star during his 2016 presidential campaign. If the jury convicts him, he faces up to four years in prison. Finally —

The New York Police Department said it took at least 108 protesters into custody at Columbia University after University officials called the police to respond to a pro-Palestinian demonstration and dismantle a tent encampment.

The crackdown prompted more students to vow that demonstrations would continue, expressing outrage at both the roundup of the student protesters and the plight of Palestinians in Gaza.