Grant’s Pass v. Johnson: Supreme Court Decision Illustrates the Difficulties in Solving Homelessness

On June 28, 2024, the United States Supreme Court issued a 6-3 decision in City of Grant’s Pass v. Johnson,[1] holding that a municipality’s enforcement of an ordinance banning camping on public property against individuals experiencing homelessness does not violate those individuals’ constitutional rights. In a nutshell, the majority overruled a contrary decision of the Ninth Circuit and held that a statute criminalizing sleeping outdoors on public property does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

Implications for New York

This case has been closely watched by homeless rights advocates, state and local officials and others involved in efforts to address homelessness. The decision implicates fundamental policy issues that are being examined and considered by NYSBA’s Task Force on Homelessness and the Law that was appointed by Immediate Past President Richard Lewis.

Most of us have seen unsheltered individuals sleeping on sidewalks, in parks and in other public spaces, and many of us have seen encampments of multiple individuals living in makeshift shelters on public land. The negative reaction of local residents is understandable, but it is also an unfortunate and undeniable reality that many – if not most – of these individuals are not there by choice and have no other option.

Efforts to ban unsheltered individuals from sleeping in public spaces, including the forcible dismantling of homeless encampments, are nothing new. Homeless encampments in New York State date back at least to the “Hoovervilles” that sprang up during the Great Depression of the 1930s and which frequently were met with hostility from local communities and law enforcement. A series of New York City mayors have relied on law enforcement to address the issue of unsheltered individuals living on the street, including Mayor Edward Koch, whose administration’s forcible removal and medication of Joyce Brown (who used the alias Billie Boggs) drew nationwide attention in the late 1980s.[2] It also includes Mayor Rudy Giuliani, who declared that the homeless have no right to sleep in the street and announced a policy of arresting individuals who refuse shelter.[3]

More recently, New York City Mayor Eric Adams has stepped up efforts to use the police to forcibly remove unsheltered individuals from the subways and other public spaces, particularly in response to a handful of high-profile violent crimes committed by individuals experiencing homeless and suffering from mental illness.[4]

Local citizens often applaud these efforts to address what they see as a safety issue and an infringement of their own rights to enjoy public spaces. At the same time, however, the efforts are viewed by homeless rights advocates as just another example of a pattern of criminalizing homelessness by improperly addressing the issue through the application of criminal laws and the use of the state’s police power. They point to the negative effect that it can have on individuals, such as the loss of personal property (including identification papers and documentation necessary to obtain medical care and public benefits) and the stigma of a criminal record – all of which can make it even harder for that individual to obtain permanent housing or find gainful employment. As Beth Haroules, senior staff attorney at the New York Civil Liberties Union, said in response to the Grant’s Pass decision, “We cannot arrest our way out of poverty. Instead of arresting or fining people for simply existing, cities should prioritize proven solutions to end homelessness, like affordable housing, accessible and voluntary services, and evictions protections.”[5]

Given the recency of the Grant’s Pass decision, it is hard to determine the full scope of its effect in New York. Governor Gavin Newsom of California announced in late July that state officials would begin dismantling thousands of homeless encampments in response to the decision.[6] A number of other municipal leaders in California have made similar announcements.[7]

The Ninth Circuit’s rulings in Grant’s Pass, and in an earlier decision, Martin v. Boise,[8] that a state or municipality generally cannot prohibit sleeping in public spaces were not binding authority in New York, but the existence of those decisions may have had a chilling effect on New York counties, cities or towns that might have otherwise considered enforcing or enacting similar prohibitions. Accordingly, it is possible that efforts similar to those underway in California to dismantle homeless encampments or otherwise enforce laws similar to the Grant’s Pass ordinances will be made with increasing frequency in New York State. The arguments articulated by both the majority and the dissent in the Grant’s Pass case, however, represent powerful evidence that such criminalization of homelessness is not the answer and that there are no easy solutions to the homelessness problem.

The Grant’s Pass Decision

Grant’s Pass is a city of approximately 38,000 people in southwestern Oregon and has an estimated 600 individuals experiencing homelessness on any given day. It enacted ordinances prohibiting: (1) sleeping on public sidewalks, streets or alleyways, (2) camping on public property and (3) camping and overnight parking in the city’s parks. While initial violations receive a fine, multiple violators are banned from Grant’s Pass parks for 30 days. A violation of the ban can result in criminal penalties of up to 90 days in jail and additional fines. Two individuals experiencing homelessness filed suit challenging the ordinances on behalf of a class of all involuntary homeless people living in Grant’s Pass.

The plaintiffs relied on the Ninth Circuit’s decision in Martin v. Boise, which barred the city of Boise, Idaho from enforcing a ban on camping in public spaces against individuals experiencing homelessness who lacked access to shelter on the grounds that it violated the Eighth Amendment’s prohibition on cruel and unusual punishment.[9] The Ninth Circuit determined that access to shelter was lacking where “there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters.”[10]

The district court in Grant’s Pass certified the class and enjoined the city from enforcing the laws in question against individuals experiencing homelessness. A divided Ninth Circuit largely affirmed the district court’s decision.[11] The Supreme Court granted certiorari and a 6-3 majority reversed the Ninth Circuit and remanded the case for further proceedings. In doing so, the majority expressly rejected the Ninth Circuit’s earlier ruling in Martin.

Justice Neil M. Gorsuch, joined by Chief Justice Roberts and Justices Alito, Barrett, Kavanaugh and Thomas, wrote the majority opinion. It discussed the history and purpose of the Eighth Amendment’s cruel and unusual punishment clause and noted that, while other provisions of the Constitution addressed what the government may criminalize and how a conviction may be secured, the cruel and unusual punishment clause has been limited to the method or kind of punishment that may be imposed after the criminal conviction has been obtained. The notable exception is the Supreme Court’s decision in Robinson v. California,[12] in which the court relied on the cruel and unusual punishment clause to hold that California could not enforce a law making addiction to narcotics a criminal offense. The majority notes, however, that Robinson held only that the government could not criminalize the status of being an addict and it did not preclude the government from enforcing laws prohibiting affirmative conduct like the use, purchase or sale of narcotics or intentional behavior resulting from their use.[13]

The majority further explained that this distinction was made clear six years later in Powell v. Texas,[14] where the court upheld the conviction of a defendant under a Texas law making it illegal to get drunk or be intoxicated in a public place.[15] Although the defendant sought to rely on the Robinson decision and argued that his intoxication was the involuntary result of his status as an alcoholic and that the Texas law therefore effectively criminalized that status, the Powell majority rejected that argument and drew a distinction between “mere status” and conduct, even when that conduct might be characterized as involuntary or as the result of a particular status.[16]

The Grant’s Pass majority found the situation here to be the same as that presented to the court in Powell and, accordingly, rejected plaintiffs’ argument that the Eighth Amendment’s cruel and unusual punishment clause is a constitutional bar to enforcement of the Grant’s Pass ordinances. The majority did note, though, that nothing in its decision prevents states and cities from declining to criminalize camping in public spaces and that there are limits on state prosecutorial power under the Constitution and elsewhere other than the Eighth Amendment’s cruel and unusual punishment provisions.

Justice Sonia Sotomayor, joined by Justices Kagan and Jackson, wrote the dissent. While the majority opinion referred to amicus briefs from various municipalities focusing on the logistical difficulties inherent in attempting to comply with the Ninth Circuit rule articulated in the Martin and Grant’s Pass decisions, the dissent focused on amicus submissions from organizations that provide services to and advocate for the homeless. Those submissions described the scope of homelessness in the United States, the myriad causes of homelessness and the negative effects of criminalizing homelessness. As noted above, these effects include the loss of employment, benefits and access to housing.

The dissent took issue with the distinction the majority draws between status and conduct, and argued that the purpose, text and enforcement of the Grant’s Pass ordinances all confirm that they are targeted at the status of homelessness rather than conduct associated with being unsheltered. The dissent cited to the testimony in the record of a Grant’s Pass police officer who acknowledged that someone lying on a blanket in a park or bringing a sleeping bag to look at the stars would not be cited and that an individual would only violate the ordinances if they did not have another home. The dissent also noted that nothing in the injunction issued by the district court (and narrowed slightly by the Ninth Circuit) precluded Grant’s Pass from prohibiting conduct such as public urination or defecation, littering or obstruction of roadways. Accordingly, the dissent would find that this case falls within Robinson’s holding that the criminalization of status violates the Eighth Amendment’s cruel and unusual punishment clause.

Future Proceedings

It is likely that the Grant’s Pass decision does not represent the end of litigation over the state’s ability to prevent the unsheltered from living in public spaces and that there will be additional challenges to these laws. The majority left the door open to this possibility when it noted that there are limits on state prosecutorial power other than the Eighth Amendment’s cruel and unusual punishment provisions, and the dissent suggested potential grounds for attack under the Due Process Clause and the Eighth Amendment’s Excessive Fines Clause.

Given the strong feelings on both sides of this issue, we can expect further challenges to these laws, particularly given the likelihood of renewed enthusiasm for enforcement and enactment that we have already seen in California and given the nationwide lack of affordable housing and shelter space.

One thing that is made clear by reading both the majority and dissenting opinions, though, is that while criminalization may address certain concerns of communities in which there are a large number of unsheltered individuals, it is not an effective solution to the problem of homelessness itself.

William Russell is a partner at Simpson Thacher & Bartlett in the firm’s litigation department and head of the firm’s bankruptcy and restructuring litigation practice. He represents financial institutions, private equity sponsors, corporations and other businesses in a wide variety of commercial disputes. He is chair of the New York State Bar Association’s Task Force on Homelessness and the Law, a member of the New York City Bar Association Board of Directors, and a member of the American Law Institute. He has chaired Legal Services of New York City’s Board of Directors and served on the Executive Committee of the New York State Bar Association.

[1] 144 S. Ct. 2202 (2024).

[2] Andy Newman, 35 Years of Efforts To Address Mental Illness on New York Streets, N.Y. Times, Dec. 2, 2022, https://www.nytimes.com/2022/12/02/nyregion/mental-illness-homeless-streets.html.

[3] Id.

[4] Jan Ransom, Amy Julia Harris and Jeffrey C. Mays, New York Claims Progress in Moving Mentally Ill People Off the Streets, N.Y. Times, Nov. 29, 2023, https://www.nytimes.com/2023/11/29/nyregion/nyc-adams-homeless-mentally-ill.html; Zachary B. Wolf, A Hard Look at New York’s Controversial New Approach to the Homeless, CNN, Dec. 3, 2022, https://www.cnn.com/2022/12/03/politics/nyc-hospitalize-mentally-ill-what-matters/index.html; Michelle L. Price, NYC Mayor Pushes To Remove Homeless People in Subway System, AP News, Feb. 18, 2022, https://apnews.com/article/kathy-hochul-health-new-york-new-york-city-mental-health-fd498ab414cbb4ed13fa96075157a72e.

[5] Press Release: ACLU Responds to Supreme Court Decision That Cities Can Punish People for Being Homeless, ACLU, June 28, 2024, https://www.aclu.org/press-releases/aclu-responds-to-supreme-court-decision-that-cities-can-punish-people-for-being-homeless.

[6] Shawn Hubler, Newsom Orders California Officials To Remove Homeless Encampments, N.Y. Times, July 25, 2024, https://www.nytimes.com/2024/07/25/us/newsom-homeless-california.

[7] Id.

[8] 920 F.3d 584 (9th Cir. 2019).

[9] Id. at 615.

[10] Id. at 617.

[11] 72 F.4th 868 (9th Cir. 2022).

[12] 370 U.S. 660 (1962).

[13] Id. at 666.

[14] 392 U.S. 514 (1968).

[15] Id. at 517.

[16] Id. at 532–33.