The Supreme Court will hear arguments on April 22 in a case with nationwide implications for homeless encampments, with the court weighing in on whether enforcing public camping bans against homeless people is “cruel and unusual punishment” prohibited by the Eighth Amendment. 

Attorneys representing the city of Grants Pass, Oregon, filed a brief this week laying out arguments as the city attempts to enforce its public camping ordinances. 

The Ninth Circuit Court of Appeals, in Martin v. Boise and Johnson v. City of Grants Pass, has ruled that being homeless is “involuntary” if there aren’t enough available shelter beds. Western city leaders for five years have said that those decisions have tied their hands, and the Supreme Court, after declining to weigh in on the topic in 2019, finally agreed to hear the case in January.

A bipartisan coalition of western cities, think tanks, and Democratic politicians, including Governor Newsom, have filed briefs supporting Grants Pass, as the Sun has reported. 

The case comes as record-high homeless numbers — more than 650,000 nationwide by some counts — weigh on cities, and as sprawling encampments have angered residents and businesses.

The new brief filed by the city’s attorneys this week argues that the city’s fines and short jail terms are not cruel and unusual. The city imposes a $295 fine for violations of its camping ordinances, and repeat offenders can be subject to criminal prosecution with a steeper fine and 30 days in jail, the filing notes. 

Instead of prohibiting merely “cruel and unusual” punishments, “the Ninth Circuit has held that the Clause forbids governments from imposing any punishment — not fines, not short jail terms, not anything — for camping on public property when such conduct flows from the purported status of being involuntarily homeless,” the filing notes. 

The Ninth Circuit’s ruling was “untethered from standard constitutional guideposts,” the filing adds, and thus “has already proved unworkable in both theory and practice.” It also has led to an inability for cities to determine when being homeless is involuntary, and the threat of a lawsuit lingers over cities trying to clean up encampments, Grants Pass argues. 

The city also challenges the idea that the Eighth Amendment addresses whether “involuntary” conduct was involved. It says the Ninth Circuit’s view of the Eighth Amendment “logically would immunize numerous other purportedly involuntary acts from prosecution, such as drug use by addicts, public intoxication by alcoholics, and possession of child pornography by pedophiles.”

It notes that cities don’t have the resources to count available shelter beds and homeless residents on a daily basis. 

The Ninth Circuit’s decisions have resulted in “paralysis,” the filing notes, and have “prevented cities from addressing encampments that present serious dangers to both those living in them and the general public.”

Homeless advocates have said that the case comes as the criminalization of homelessness is increasing across the country, threatening the dignity of people who don’t have housing. 

The National Alliance to End Homelessness said in a statement that if the Supreme Court overturns the appellate decisions, “it will provide a pass for elected officials who choose fining and arresting people over providing evidence-based solutions for people who have nowhere else to go.” The group advocates for affordable housing and greater funding of resources for homeless people as an alternative to allowing cities to remove and arrest people sleeping in public. The court is expected to make its decision by the end of the term in June.