The Supreme Court has agreed to take up Grants Pass v. Johnson to determine whether states can craft and enforce prohibitions on public camping (i.e., homeless encampments) without running afoul of the U.S. Constitution. In 2022, the U.S. Court of Appeals for the Ninth Circuit held that ordinances against sleeping outside on public property violate the Eighth Amendment’s prohibition on cruel and unusual punishment. 

The Ninth Circuit held previously in Martin v. City of Boise (2019) that cities and states violate the cruel and unusual punishments clause of the Eighth Amendment if they criminalize public camping when there aren’t enough government-provided shelter beds for the homeless population. In this case, the court of appeals extended Martin’s holding even further by prohibiting any sort of camping ban, even those enforced by civil, rather than criminal, citations, if there is not adequate state-provided shelter available.

Based on these rulings, (at least in theory) localities can penalize individuals for public camping where shelter beds are available. 

But throughout California, Oregon, Arizona, and other states within the Ninth Circuit’s jurisdiction, cities have interpreted the holding as creating an unfettered constitutional right to camp on public property. If we are being generous, Martin and Grants Pass have generated substantial confusion over what cities can legally do to address the homelessness crisis. If we are being realistic, the holdings have provided a convenient excuse for progressive city leaders to turn a blind eye to dangerous homeless encampments. 

Phoenix and San Francisco, for example, have allowed large homeless encampments to go undisturbed—hurting small businesses and property values, but more importantly, subjecting encampment residents to extreme violence and biohazard. These encampments are particularly dangerous for women as sex trafficking and prostitution is rampant. 

There are also practical hurdles to applying Martin and Grants Pass. Cities and states require a real time count of available shelter beds in order to get individuals off the street without inadvertently violating the Constitution as the camping prohibition applies only to the “involuntarily homeless.”

Further, involuntariness is near impossible for law enforcement to discern considering a significant number of homeless individuals reject offers for overnight shelter and semi-permanent housing arrangements due to addiction and mental health struggles. Our most vulnerable need rehabilitation and mental health services, not to be left to their own devices on the street under the guise of compassion. 

The Supreme Court needs to craft a workable rule that holds governments to account for keeping the streets free of encampments—for the city residents, businesses, and the population most in need of action: the homeless population itself.