(This is the latest installment of the Alaska Landmine’s coverage of the Ninth Circuit’s rulings regarding homeless encampments. For a full background, you can read the coverage here, here, here and here.)

On June 28, the U.S. Supreme Court handed down its highly anticipated decision in Grants Pass v. Johnson. The decision clarifies that criminal penalties for camping on public property is not cruel and unusual punishment, and handed the decision-making on homeless back to local governments:

Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others. But in our democracy, that is their right. Nor can a handful of federal judges begin to “match” the collective wisdom the American people possess in deciding how best to handle a pressing social question like homelessness. The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate the Nation’s homelessness policy.

The Supreme Court’s ruling ends almost two decades of outlier decisions from the Ninth Circuit that held that applied the Eighth Amendment to restrict local governments from taking actions to alleviate the problems attendant with homeless camps. Many cities and states filed briefs with the Court that demonstrated the negative effects of the Ninth Circuit’s rule that a city had to have enough shelter beds available for all homeless before it could move them off public property or issue criminal penalties. The Court walked through those issues:

• More shelters beget more homeless. As cities add shelter capacity, the unsheltered numbers continued to grow with many individuals refusing shelter (the City of Seattle reported that 60% of its offers of shelter were rejected by individuals and Portland reported over 70% of offers were rejected).
• Proliferation in violent crime by and against the homeless.
• Rapid rise in thefts and drug use at and near the camps.
• Thirteen California cities reported that the vast majority of homeless they encountered were not actively seeking shelter at all and voiced a preference to camping on public property.

During the appeal, the Biden administration argued on the side of the Grants Pass’ homeless, albeit on narrower grounds and with acknowledgment that the Ninth Circuit’s decisions were wrong for several reasons. The Court pointed out that the federal government itself had restricted who can camp on park lands and that the National Park Service had cleared homeless encampments.

Under the now-invalidated Ninth Circuit view of the Eighth Amendment, cities could not remove the homeless from public property and limited the clearing of tents, portable toilets and personal effect, if the person was involuntarily homeless and the city did not have at least as many shelter beds as the number of homeless.

The Ninth Circuit’s reasoning was that someone who is involuntarily homeless must sleep on public property because of the biological need for sleep and therefore it would be cruel and unusual to punish them for that biologically-required conduct. The Court rejected this reasoning and pointed out the difficulty in adjudicating who was actually involuntarily homeless:

Under Martin, cities must allow public camping by those who are “involuntarily” homeless. But how are city officials and law enforcement officers to know what it means to be “involuntarily” homeless, or whether any particular person meets that standard? Posing the questions may be easy; answering them is not. Is it enough that a homeless person has turned down an offer of shelter? Or does it matter why? Cities routinely confront individuals who decline offers of shelter for any number of reasons, ranging from safety concerns to individual preferences. How are cities and their law enforcement officers on the ground to know which of these reasons are sufficiently weighty to qualify a person as “involuntarily” homeless?

In rejecting the argument that homeless were immune from public camping laws, the Court was assisted by the late-Justice Thurgood Marshall’s opinion in another case. In that case, Justice Marshall writing for the Court rejected an alcoholic’s claim that his addiction made him powerless to resist drinking and therefore he could not be charged with public intoxication when he ventured outside to buy more alcoholic beverages.

Anchorage and Alaska both made appearances in the decision but only in passing and in a footnote. The Municipality of Anchorage and the State of Alaska both signed onto briefs urging the Supreme Court to take up the Ninth Circuit’s decisions. The Supreme Court has now removed the judicial impediment for Anchorage and the State to address homeless camps, if they so desire.

The Grants Pass decision was 6-3, with Justices Sotomayor, Kagan, and Jackson dissenting.

Lee Baxter is a practicing Anchorage attorney. He provides periodic legal analysis for the Landmine in his spare time – when he is not fishing. He encourages prospective clients to first seek out a better attorney.