PORTLAND, Ore. — When the Portland City Council voted earlier this summer to institute a new ordinance governing where and how homeless people can camp in the city, the form of the daytime camping ban they ultimately passed was shaped by two influential court rulings. The first and foremost came from Boise, Idaho. The second came from southern Oregon and the city of Grants Pass.
Now the Grants Pass case could potentially land at the feet of the U.S. Supreme Court. If it does, the outcome could reshape municipal rules regarding homelessness throughout the western United States.
In short, the city of Grants Pass has petitioned the Supreme Court to hear a case that they lost at the Ninth Circuit Court of Appeals. The city recently asked for a full court hearing of its case, having lost last year before a three-judge Ninth Circuit panel. The majority declined to re-hear the case.
Now Grants Pass wants to go above the Ninth Circuit in order to get a different opinion — and the only federal court above the Ninth Circuit is the highest court in the land.
The Boise precedent
To explain what’s going on with the Grants Pass case now, it’s necessary to give some background. In 2018, a Ninth Circuit panel ruled in a case called Martin v. Boise that a city cannot charge someone with a crime or give them a ticket for sleeping in a public space if there’s a lack of shelter beds.
The majority wrote that charging someone with a crime for sleeping outside when they have no other choice is a violation of the Eighth Amendment, which bars “cruel and unusual punishment.”
After losing before the Ninth Circuit’s three-judge panel in 2018, Boise asked the full court to review the ruling. The majority declined. So Boise petitioned the Supreme Court, asking them to review the case. At the time, the Supreme Court also declined.
Then along came Blake v. Grants Pass, as it was originally known. The lead plaintiff in the class action suit, Debra Blake, passed away in 2021 and was later replaced by Gloria Johnson during the appeals process. Filed after the Ninth Circuit decision in Boise, the Grants Pass case bears a lot of similarities — the primary difference being that the city threatened civil penalties for violations instead of criminal ones. And so far, it has followed the same trajectory.
In 2022, a three-judge panel from the Ninth Circuit agreed with a lower court’s ruling, ordering Grants Pass to cease enforcing its ban on homeless people sleeping on public property. When Grants Pass appealed to the full Ninth Circuit, following Boise’s earlier example, the court’s majority returned a 155-page order explaining why they would not reconsider.
“According to the City, it revised its anti-camping ordinances to allow homeless persons to sleep in City parks,” the majority judges wrote. “However, the City’s argument regarding the revised anticamping ordinance is an illusion. The amended ordinance continues to prohibit homeless persons from using ‘bedding, sleeping bag, or other material used for bedding purposes,’ or using stoves, lighting fires, or erecting structures of any kind. The City claims homeless persons are free to sleep in City parks, but only without items necessary to facilitate sleeping outdoors.”
An Oregon law passed in 2021, inspired by the Boise and Grants Pass rulings, does give cities some tools with which to proceed. A local government can, the law says, enact time, place and manner restrictions for sleeping on public property, as long as they are “objectively reasonable.”
This is where Portland’s daytime camping ban proves a useful example. Under the new Portland ordinance, it’s legal for someone to spend the night on public property, for the most part. But camping can be punishable with criminal penalties during the day (time), around certain locations such as schools (place) or if the camp causes environmental damage or accumulation of garbage (manner), among other restrictions.
For these reasons, Portland can argue that the ordinance aligns with the state law — but it could also face legal challenges if advocates decide to argue that the city isn’t meeting that “objectively reasonable” standard. Ed Johnson, director of litigation at the Oregon Law Center and lead attorney in the Grants Pass case, insinuated as much during public testimony on the Portland ordinance in May.
“It is not reasonable to expect people to pack up and disappear every morning when they have nowhere to go,” Johnson testified. “It is not reasonable to expect people to understand the incomprehensible list of places they cannot camp when there is no list or map or information about where they can camp.”
A new court
If the trend started by Martin v. Boise continues, then the Grants Pass case will be put to rest when the Supreme Court declines to take it up. But it’s worth noting that the political makeup of the Supreme Court has changed since December 2019, when Boise appealed. That might explain why the Grants Pass city attorney’s office thinks they have a better chance for the court to intervene this time around.
Here’s the question that Grants Pass has posed to the U.S. Supreme Court: “Does the enforcement of generally applicable laws regulating camping on public property constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?”
Justice Ruth Bader Ginsberg, a Clinton appointee, died in 2020. She was replaced by Trump appointee Amy Coney Barrett — undoubtedly the biggest change since 2019. Justice Stephen Breyer, another Clinton appointee, retired in 2022 but was replaced by Biden appointee Justice Ketanji Brown Jackson.
For all intents and purposes, the U.S. Supreme Court now has a 6-3 conservative majority, one that tends to appear on political wedge issues like the Dobbs decision that doomed Roe v. Wade. Chief Justice John Roberts occasionally joins the liberal justices with moderate opinions, but that still leaves conservatives with 5-4 advantage.
At the same time, it’s not clear that the Grants Pass case is one with a clear ideological split between conservatives and liberals — it may not be one of those wedge issues. Or, as with Boise, it may not even be a case that the court wants to decide.
Regardless, the attorneys representing Grants Pass clearly hope that the court is ready to take a different approach to the issue than they did with Boise. They released the following statement Tuesday morning, attributed to Grants Pass counsel Theane Evangelis:
“The Ninth Circuit’s decisions in this case and Martin v. Boise have contributed to the growing problem of encampments in cities across the West. These decisions are legally wrong and continue to tie the hands of local governments in their efforts to devise solutions to the complex problem of homelessness. The tragedy is that these decisions are actually harming the very people they purport to protect.”
KGW requested an interview with the Grants Pass attorneys regarding their petition, but they declined.
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