According to the Department of Housing and Urban Development, well over half a million people are unhoused on any given night in America. Given the magnitude of the crisis, local governments face immense challenges in addressing the underlying causes of homelessness while managing public health and safety concerns. Some local governments, including many in North Carolina, have adopted anti-camping and/or anti-sleeping ordinances as part of their response.
The Supreme Court of the United States recently considered whether the Eighth Amendment’s Cruel and Unusual Punishments Clause barred an Oregon city’s adoption of ordinances restricting camping on public property in City of Grants Pass v. Johnson, 603 U. S. ____ (2024). One of us previewed the case and commented on the oral arguments a few months ago. On June 28, 2024, the Supreme Court upheld the city’s public camping laws, concluding that their enforcement does not constitute “cruel and unusual punishment” under the Eighth Amendment. This blog post analyzes the Court’s decision and offers guidance to local governments regarding anti-sleeping and anti-camping ordinances.
[Editor’s note: This post is cross posted on Coates’ Canons, the School of Government’s local government law blog.]
The Grants Pass Decision
Three city ordinances restricting camping in public spaces were at issue in Grants Pass:
The first prohibits sleeping “on public sidewalks, streets, or alleyways.” The second prohibits “[c]amping” on public property. Camping is defined as “set[ting] up . . . or remain[ing] in or at a campsite,” and a “[c]ampsite” is defined as “any place where bedding, sleeping bag[s], or other material used for bedding purposes, or any stove or fire is placed . . . for the purpose of maintaining a temporary place to live.” The third prohibits “[c]amping” and “[o]vernight parking” in the city’s parks.
Grants Pass, slip op. at 11 (alterations in original) (citations omitted). The ordinances provide escalating penalties for violations. An initial violation triggers a fine, beginning at $295 and increasing to over $500. An individual who receives more than two citations within a year may be subject to an order barring the person from city parks for 30 days. Finally, a violation of the exclusion order could constitute criminal trespass, punishable by a maximum of 30 days in jail and a $1,250 fine.
Several unhoused individuals sued the city, contending that its ordinances violated the Eighth Amendment’s Cruel and Unusual Punishments Clause. They relied on Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), in which the Ninth Circuit had previously held that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” Martin, in turn, was based on Robinson v. California, 370 U.S. 660 (1962), in which the Supreme Court ruled that a California statute criminalizing the status of being addicted to narcotics violated the Eighth Amendment, just as it would be unconstitutional to “to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease.”
The plaintiffs in the Grants Pass case won partial summary judgment in the district court, and the Ninth Circuit affirmed in part. See Johnson v. City of Grants Pass, 72 F.4th 868 (9th Cir. 2023). The city petitioned for certiorari, supported by a large number of cities, counties, and local government associations, and the Supreme Court agreed to hear the case. The Court ruled 6-3 for the city, with all the conservative justices joining Justice Gorsuch’s majority opinion, and the three liberal justices signing on to Justice Sotomayor’s dissent.
The majority endorsed a narrow view of the Eighth Amendment, reasoning that “[t]he Cruel and Unusual Punishments Clause focuses on the question what method or kind of punishment a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place.” Grants Pass, slip op. at 16 (cleaned up). The types of penalties possible under the challenged ordinances are not vicious or exotic punishments like disemboweling or burning at the stake—they are fines and imprisonment, common and accepted modalities of punishment. Thus, the majority concluded, there was no Eighth Amendment problem.
This reading of the Eighth Amendment cannot be squared with the Supreme Court’s prior holding in Robinson—which was concerned precisely with what a government may criminalize, not with the types of punishment it may impose—and the majority expressed profound skepticism about Robinson. Indeed, Justice Thomas’s concurrence in Grants Pass expressly argued that Robinson was wrongly decided and should be overruled. But the other justices in the majority did not see a need to go so far to resolve the case. They concluded that the ordinances at issue do not punish the status of homelessness and therefore do not run afoul of Robinson. Rather, the ordinances punish certain conduct—camping and sleeping in public. While that conduct may be related to or driven by homelessness, the majority concluded it remains distinct from the status of being unhoused itself. The Court observed that “it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.” Grants Pass, slip op. at 20. The city’s ordinances apply to all.
The majority drew a parallel to laws against drug possession and use. Such conduct may be related to or driven by addiction, but Robinson acknowledges that laws against drug-related conduct may be enforced even against people who suffer from addiction. Further, the majority noted Powell v. Texas, 392 U.S. 514 (1968), where the Court determined that a Texas law against public intoxication did not violate the Eighth Amendment even though the status of alcoholism may drive some individuals to drink in public places.
The dissenting justices endorsed a broader view of the Eighth Amendment, arguing that it “is not limited to medieval tortures,” Grant Pass, slip op. at 10 (dissent), and that Robinson was as a bedrock precedent that should be followed. Characterizing sleep as a “biological necessity, not a crime,” the dissenters contended that the intent and effect of the ordinances is to criminalize the status of homelessness: “Under the majority’s logic, cities cannot criminalize the status of being homeless, but they can criminalize the conduct that defines that status.” Grant Pass, slip op. at 1, 15 (dissent).
An important point on which the majority and the dissent seem to agree is that other legal doctrines may be implicated by the ordinances at issue. In an individual case, a person charged with violating the ordinances might raise a necessity defense. More broadly, the Due Process Clause of the Fourteenth Amendment might provide a basis for challenging the criminalization of sleeping in public.
Finally, the Court declined to address what impact, if any, a recently enacted Oregon law would have upon the city’s anti-camping ordinances. The Oregon statute provides: “Any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.” Ore. Rev. Stat. §195.530(2) (emphasis added). The law also grants unhoused persons the opportunity to “bring suit for injunctive or declaratory relief to challenge the objective reasonableness” of an ordinance.” §195.530(4).
Considerations for Local Governments in North Carolina
Public camping laws are common across the country. “By one count, ‘a majority of cities have laws restricting camping in public spaces,’ and nearly forty percent ‘have one or more laws prohibiting camping citywide.’” Grants Pass, slip op. at 6 (citation omitted). The same is true in North Carolina.
For those North Carolina cities and counties considering adopting or re-shaping public camping ordinances in light of Grants Pass, the decision offers the following guideposts:
- Localities may (but are not required to) cite, fine, and even incarcerate individuals for camping on public property without violating the Eighth Amendment.
- As the majority notes, however, and as explained in greater detail below, criminal enforcement of local ordinances remains optional. The Court described Grants Pass’ approach to enforcement of its anti-camping ordinances as “light-touch.” Grants Pass, slip op. at 11. For example, neither named plaintiff in the case had been subject to an order barring them from city property or to criminal trespass charges.
- Local governments are not required to predicate a bar on public camping upon the availability of shelter beds or temporary housing in the city, town, village, or county (though they may choose to do so).
- Exercising caution, a city or county may still wish to regulate the time, place, and manner of public camping, rather than completely prohibiting it.
- The Court explicitly deferred to elected representatives and appointed officials, among others (voluntary associations, mental health professionals, etc.), for public policy solutions to the homelessness crisis. Grants Pass, slip op. at 34-35.
Criminal Enforcement of Anti-Sleeping/Anti-Camping Ordinances
With regard to criminal penalties, it is important to remember that in 2021, the General Assembly decriminalized most violations of local ordinances. Pursuant to G.S. 153A-123(b) (counties) and 160A-175(b) (cities), in order for criminal penalties to be available, the governing body must specify that violation of an ordinance will result in a misdemeanor or an infraction. In this context, for example, a city or county could not impose a criminal penalty for camping or sleeping in public unless the ordinance specifies that criminal penalty. Recall also that in North Carolina “no ordinance specifying a criminal penalty may be enacted at the meeting in which it is first introduced.” G.S. 153A-123(b) (counties); G.S. 160A-175(b) (cities).
As with Grants Pass, Oregon, however, criminal enforcement of these ordinances in most places appears to be rare. “According to the National League of Cities (a group that represents more than 19,000 American cities and towns), the National Association of Counties (which represents the Nation’s 3,069 counties) and others across the American West, these public-camping regulations are not usually deployed as a front-line response ‘to criminalize homelessness.’” Grants Pass, slip op. at 6. By contrast, according to the majority, “they are used to provide city employees with the legal authority to address ‘encampments that pose significant health and safety risks’ and to encourage their inhabitants to accept other alternatives like shelters, drug treatment programs, and mental-health facilities.” Id.
Lastly, given the potential for due process or other legal challenges to ordinances against sleeping or camping in public places, local governments may wish to continue to use criminal law as a last resort, rather than a first option, to address homelessness. And because of the potential for claims of selective prosecution, local governments should also ensure that any pertinent ordinances are enforced equally against unhoused and housed individuals.
It remains to be seen what effect, if any, the Supreme Court’s decision in this case will have on local efforts in North Carolina to address affordable housing, adopt or revise anti-camping/anti-sleeping ordinances, or criminally enforce public camping laws. As for Grants Pass, Oregon Public Broadcasting reported that the city council would “discuss the ruling” on July 10, 2024. The issue did not appear on the agenda for the council’s July 17, 2024 meeting.
The Court explicitly deferred to elected representatives and appointed officials, among others (voluntary associations, mental health professionals, etc.), for public policy solutions to the homelessness crisis. Grants Pass, slip op. at 34-35.