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Supreme Court Seems Poised to Allow Local Laws That Penalize Homelessness

A majority of the justices appeared skeptical of courts wading into the thorny policy questions around when local governments can punish people for sleeping and camping outdoors.

A majority of the Supreme Court appeared inclined on Monday to uphold a series of local ordinances that allowed a small Oregon city to ban homeless people from sleeping or camping in public spaces.

The justices seemed split along ideological lines in the case, which has sweeping implications for how the country deals with a growing homelessness crisis.

In a lengthy and, at times, fiery argument that lasted almost two and a half hours, questioning from the justices reflected the complexity of the homelessness debate. They weighed the status of poverty and the civil rights of homeless people against the ability of cities to clear public spaces like parks and sidewalks to address concerns about health and safety. They wrestled with what lines could be drawn to regulate homelessness — and, crucially, who should make those rules.

The conservative majority appeared sympathetic to arguments by the city of Grants Pass, Ore., that homelessness is a complicated issue best handled by local lawmakers and communities, not judges. The liberal justices strongly resisted that notion.

Chief Justice John G. Roberts Jr. calmly cut to the central point that seemed to resonate with the conservative wing: “Why would you think that these nine people are the best people to judge and weigh those policy judgments?”

In impassioned questioning, the liberal justices pushed back sharply on the city’s argument that homelessness was not a status protected under the Eighth Amendment’s prohibition on cruel and unusual punishment.

“Could you criminalize the status of homelessness?” Justice Elena Kagan asked the city’s lawyer, Theane D. Evangelis.

“Well, I don’t think that homelessness is a status like drug addiction,” Ms. Evangelis responded.

“Homelessness is a status,” Justice Kagan replied. “It’s the status of not having a home.”

The issue of how far local governments can go to regulate homelessness has given rise to unusual alliances across the political spectrum, with some leaders of left-leaning cities and states joining with conservative groups to urge the justices to clarify the extent of their legal authority in clearing encampments that have proliferated across the West in recent years.

Many leaders of Western states and cities have contended that decisions by the U.S. Court of Appeals for the Ninth Circuit, which oversees nine Western states, have been interpreted in ways that have limited the flexibility of governments to tackle the problem.

The case stems from a series of local ordinances in Grants Pass, a town of about 40,000 in southern Oregon. City officials stepped up enforcement of local laws in 2013 after residents began to complain about people sleeping, urinating and defecating outside.

Three homeless residents of Grants Pass challenged those ordinances in 2018, arguing that the city had violated the Eighth Amendment.

Grants Pass contended that the Eighth Amendment was the wrong framework because it is typically aimed at punishments, not at laws. It added that a Supreme Court ruling striking down its ordinances would set a troubling precedent that would tie the hands of local governments around the country and fuel sprawling encampments.

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The case is among the last to be argued this term, which means that it is unlikely to be decided before late June or perhaps in early July, since the Supreme Court now has a backlog of pending decisions in major cases.

As arguments were underway, about 100 demonstrators protested outside the court, chanting, “SCOTUS, now’s the time, homelessness is not a crime!” and holding signs that read “Housing Justice” and “Housing is a human right.”

Kelsi B. Corkran, the lawyer representing the homeless plaintiffs, asserted that the use of the Eighth Amendment in the case was appropriate and therefore an issue the court was suited to address. “I don’t think there’s any question that being poor is a status,” she said. “It’s a status that can change over time and at that point you wouldn’t be part of the class, but I don’t think it changes the fact that it is a status.”

In heated questioning with the lawyer for the city, Justice Kagan pointed to the city’s ordinances that allow the authorities to ticket people for sleeping with bedding in public, asking whether cities could outlaw other basic human needs like breathing.

“Sleeping is a biological necessity,” Justice Kagan said. “It’s sort of like breathing. I mean, you could say breathing is conduct, too. But, presumably, you would not think that it’s OK to criminalize breathing in public, and for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.”

Justice Ketanji Brown Jackson made a similar analogy, asking whether a city could prohibit eating in public because of concerns about sanitation, trash and rodents. Most people would be fine, she said, because they could just eat at restaurants or somewhere indoors, but not everyone.

“Some people don’t have that option,” Justice Jackson said. “They have to eat in public, because they’re unhoused and they can’t afford to go to a restaurant.”

Ms. Evangelis said she did not think that such laws would violate the Eighth Amendment and, bringing the discussion back to Grants Pass and its ordinances, added that the city was arguing that states and local governments should drive policymaking.

“We think that it is harmful for people to be living in public spaces, on streets and in parks,” Ms. Evangelis said. “Whatever bedding materials, when humans are living in those conditions, we think that that’s not compassionate and that there’s no dignity in that.”

That elicited sharp commentary from Justice Sonia Sotomayor, who said: “Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves not sleeping?”

Several conservative justices seemed skeptical of the practicalities of following the rule laid out by the lower appeals court. The appeals court had determined that a city could not penalize people for being involuntarily homeless if the city did not have enough shelter beds for its homeless population. The justices seemed particularly concerned with how to decide whether a city had enough shelter beds and who would be responsible for sorting out such complex issues day to day.

“I think one of the questions is, who takes care of it on the ground?” Justice Brett M. Kavanaugh asked a lawyer for the federal government, Edwin S. Kneedler. “Is it going to be federal judges? Or is it the local jurisdictions with — working with the nonprofits and religious organizations?”

The Biden administration had joined the case, siding with neither party, arguing that Grants Pass’s laws probably violated the Eighth Amendment but that the lower court erred by not requiring an examination into each homeless person’s circumstances.

Several justices wrestled with how to think of someone’s state of being versus their conduct.

The plaintiffs’ argument rests in part on a 1962 case, Robinson v. California, in which the Supreme Court held that laws imposing penalties on people for narcotics addiction violated the Eighth Amendment because they punished a state of being, not a specific action, like drug possession or sale. In a similar fashion, the plaintiffs contend, Grants Pass is punishing people for being involuntarily homeless, not for specific actions.

That argument held sway in a separate case, Martin v. Boise, in 2018. In that case, a panel of judges from the U.S. Court of Appeals for the Ninth Circuit ruled that Boise, Idaho, had violated the constitutional rights of homeless people by imposing criminal penalties for sleeping and camping outdoors, even though the city did not have enough shelter beds.

Ms. Evangelis argued that the appeals court’s approach had “proven unworkable.”

“Cities are struggling to apply arbitrary, shifting standards in the field,” she said, adding that the Supreme Court should “end the Ninth Circuit’s failed experiment, which has fueled the spread of encampments while harming those it purports to protect.”

Chief Justice Roberts grappled with what was the best tack, asking whether homelessness was truly a state of being in the same way that being addicted to drugs is.

“What is the analytic approach to deciding whether something’s a status or a situation of conduct?” he asked. “You can remove the homeless status in an instant if you move to a shelter or situations otherwise change. And, of course, it can be moved the other way as well if you’re kicked out of the shelter, whatever.”


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