HomeMy WebLinkAbout2024-08-27; City Council; ; Overview of Legal Ruling City of Grants Pass, Oregon v. Johnson and City’s Efforts to Address HomelessnessCA Review AF
Meeting Date: Aug. 27, 2024
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Mandy Mills, Housing & Homeless Services Director
mandy.mills@carlsbadca.gov, 442-339-2907
Allegra Frost, Senior Assistant City Attorney
allegra.frost@carlsbadca.gov, 442-339-2891
Christie Calderwood, Chief of Police
christie.calderwood@carlsbadca.gov, 442-339-2216
Subject: Overview of Legal Ruling City of Grants Pass, Oregon v. Johnson and
City’s Efforts to Address Homelessness
Districts: All
Recommended Action
1. Receive a presentation about a recent United States Supreme Court decision in City of
Grants Pass, Oregon v. Johnson and the city’s efforts to address homelessness in
Carlsbad.
2. Provide direction on changes, if any, the City Council would like staff to explore related
to the city’s approach to addressing homelessness in Carlsbad.
Executive Summary
Homelessness has become a growing problem throughout the country, the state and in the San
Diego region. Although many issues related to homelessness are under the purview of state and
county governments, the City of Carlsbad in 2017 decided to dedicate its own resources to
address the issue at a local level, a trend that would soon be seen in cities throughout the
region.
The city’s approach focuses on creating lasting solutions for those experiencing homelessness in
Carlsbad and addressing the impact homelessness has on the community. This includes helping
people access permanent housing, providing job training and linking people with the services
and support they needed to become self-sufficient. A Homeless Outreach Team in the Police
Department addresses concerns from residents and businesses, including reports of
encampments, unsanitary conditions, nuisance behaviors and other issues.
In 2018, a U.S. appeals court decision in the case of Martin v. Boise prevented cities from
enforcing public-camping restrictions unless adequate shelter space were available.
Aug. 27, 2024 Item #3 Page 1 of 87
In 2021, the City Council amended its unlawful camping ordinance to ensure consistency with
that ruling. The amendments allowed police officers to enforce public camping restrictions at all
times in open space areas. However, in public streets or other public places, an individual would
need to have access to adequate temporary shelter and refuse an offer of shelter before they
could be cited for unlawful camping. The City Council also approved a program that allowed the
Police Department to offer motel vouchers if other shelter options were not available.
On June 28, 2024, the U.S. Supreme Court issued its decision in City of Grants Pass, Oregon v.
Johnson, which overturned Martin v. Boise.
In response to this decision, on July 25, 2024, California Gov. Gavin Newsom issued an
executive order requiring state agencies to adopt policies to address encampments on state
property. The order encouraged local governments to adopt encampment clean up policies
consistent with those used by Caltrans. The order further encouraged cities to act with urgency
using all available resources to humanely remove encampments from public spaces, prioritizing
encampments that most threaten life, health and safety.
This report explains the Supreme Court’s decision in City of Grants Pass, Oregon v. Johnson and
describes the city’s efforts to address homelessness. The report also includes several options,
should the City Council wish to explore changes to the city’s approach to addressing
homelessness in Carlsbad.
Explanation & Analysis
Background
As the number of people experiencing homelessness has steadily increased nationwide, more
cities have begun to supplement the work of state and county governments and nonprofit
organizations on issues related to homelessness. In 2016, the City of Carlsbad established a
dedicated Homeless Outreach Team in the Police Department and in 2017, the City Council
approved Carlsbad’s first homeless response plan. The city’s approach is twofold: to help those
experiencing homelessness and address the impacts of homelessness on the community.
Addressing homelessness has remained a top City Council goal. Most recently, the City Council
approved an updated Homelessness Action Plan in February 2023. The 2023 plan builds on the
work initiated in 2017, focusing on three key areas of impact: shelter and housing; outreach
and access to services; and public safety.
•The plan includes nine initiatives and 56 actions that will be pursued over a five-year
period.
•City staff present progress reports to the City Council and the public semi-annually.
•Between July 1, 2021, and Dec. 31, 2023, more than 200 individuals have transitioned
into permanent housing as a result of the city’s efforts.
Camping on streets, sidewalks, parks and other public property
In 2018, a federal appeals court decision in Martin v. Boise held that an ordinance violates the
Eighth Amendment of the U.S. Constitution’s cruel and unusual punishments clause if it
imposes criminal sanctions against homeless people for sitting, lying down or sleeping outside
on public property when no alternative shelter is available to them. Following this decision,
many jurisdictions stopped enforcing camping restrictions, or changed how they were enforcing
them, unless they could offer shelter.
Aug. 27, 2024 Item #3 Page 2 of 87
Two years later, at the onset of the COVID-19 pandemic, the U.S. Centers for Disease Control
and Prevention issued guidelines instructing cities not to clear encampments unless shelter was
available. The guidelines were intended to reduce spreading COVID-19 through the community
by not dispersing people from one location throughout the community. The department
resumed its efforts to address encampments in 2021.
City ordinances
One of the strategies in the city’s original homeless response plan was to evaluate existing
ordinances and consider new ones that would help protect community’s health, safety and
quality of life.
In September 2021, the City Council modified and supplemented existing quality of life
ordinances to regulate conduct such as:
• Unlawful camping on public and private property (The amendments to the city’s
unlawful camping ordinance addressed the legal limitations imposed by Martin v. Boise)
• Fires and cooking on public property
• Storage of personal property in public places
• Solicitation
• Trespassing
• Obstruction of property
• Disorderly conduct
• Possessing or consuming open containers of alcohol in certain public places
The table below describes the city ordinances regulating this conduct that are currently in
effect.
Topic Code section General prohibition
Camping/sleeping 8.36.030 (A) (1) a) Prohibits any person to camp or sleep in open
space at any time
8.36.030 (A) (1) b) Prohibits any person to camp or sleep on public
property, if the person has access to adequate
temporary shelter
8.36.030 (B) (1) Prohibits unlawful camping on private property
8.36.040 (A) and (B) Prohibits fires and cooking on public property
11.32.030 (2) Prohibits fires in public parks and beaches
11.32.030 (9) Prohibits any person to be in a park or beach
during closed hours
Obstruction of
property
8.36.050 (A)
Prohibits storage or leaving unattended personal
property in public areas during daytime hours
8.38.030 (A) Prohibits obstruction of property in spaces open
to the public
Trespassing 8.38.040 Prohibits loitering/trespass in parking lots,
shopping center property, or other private
property open to the public
Aug. 27, 2024 Item #3 Page 3 of 87
Topic Code section General prohibition
Litter 11.32.030 (1) Prohibits litter in public parks or beaches
Parking 11.32.030 (13) Prohibits any vehicle or trailer in any public park
between 11 p.m. and 5 a.m.
10.40.180 (B) Prohibits overnight parking of any oversized
vehicles (22 feet+ in length) without permit
Disorderly
conduct
8.38.050 (A) Prohibits disorderly conduct (certain fighting or
threatening behavior, certain offensive or
unreasonably loud language in a public place)
Alcohol/drugs 8.44.040 Prohibits consumption and possession of alcoholic
beverages in certain public places and city parks
11.32.110 Prohibits smoking of any product in a public park
or public beach
Solicitation 8.28.050 Prohibits solicitation to persons in vehicles along
certain roadways
8.34.030-040 Prohibits various types of solicitation, such as
aggressive solicitation and soliciting to motor
vehicles stopped at a traffic signal, sign or light
and in parking lots
State and federal laws regulate conduct not covered by city ordinances, such as laws related to
vehicles and controlled substances.
Motel voucher program
Because the Martin v. Boise decision prohibited enforcement of camping restrictions unless
shelter were available, the City Council approved an emergency hotel voucher program, on
Sept. 28, 2021. The program allowed the Police Department to offer a voucher for a motel stay
if other shelter was not available. This voucher program was intended for short-term stays –
one night authorized at a time – at economy hotels in Carlsbad, to provide an immediate
shelter alternative to camping or sleeping on public property. If someone chose to stay in a
hotel room funded by the program, city staff could then arrange for a visit from a social worker
to offer services and support.
• The city has provided 230 room nights to a total of 112 households using the emergency
hotel voucher program.
• A total of $44,862 has been spent on this program, with an average annual cost of about
$16,823. The program is funded by the city’s General Fund.
After the first six-months of operating the limited-term emergency motel voucher program,
staff found the short-term nature of the motel stays made it difficult to bridge people to
shelter, due to the limited availability of shelters and the time required to complete the intake
process for some of the shelters.
On Dec. 6, 2022, the City Council approved adding longer stays to a secondary program, not to
exceed 30 days, in limited circumstances for households actively working on a housing plan.
Aug. 27, 2024 Item #3 Page 4 of 87
• This program has provided 1,273 room nights to a total of 46 households, with an
average annual cost of $62,784.
• The program has resulted in 25 households successfully transitioning into permanent
housing, with others still in the process.
• The city also has received grant funds to supplement this program and has used about
$55,000 of those funds to assist an additional 21 households while they transition to
other housing.
Supreme Court Ruling – City of Grants Pass, Oregon v. Johnson
The United States Supreme Court issued a decision on June 28, 2024, in the case of City of
Grants Pass, Oregon v. Johnson that overturned the Martin v. Boise ruling. (The ruling is
provided as Exhibit 1.)
The case centered on the City of Grants Pass’s prohibition on activities such as sleeping on
public sidewalks, camping on public property and camping and overnight parking in the city’s
parks.
• Under the city’s Municipal Code, the city imposed a fine for a first violation.
• For a subsequent violation, the city would issue an order temporarily banning the
individual from camping in a public park.
• Violations of those orders could constitute criminal trespassing, punishable by a
maximum of 30 days in prison and a $1,250 fine.
A group of homeless people living in Grants Pass sued the city, claiming the ordinances violated
the U.S. Constitution’s Eighth Amendment, which prohibits cruel and unusual punishments. The
plaintiffs argued that the city’s ordinances criminalized people for being homeless.
Consistent with the Ninth Circuit’s decision in Martin v. Boise, the lower courts found that the
plaintiffs were involuntarily homeless because there were not enough available shelter beds in
Grants Pass and punishing them for engaging in acts such as sleeping in a public park would
therefore be a cruel and unusual punishment.
The Supreme Court disagreed with the lower courts’ interpretation, finding that none of the
punishments imposed by the ordinances qualified as either cruel or unusual under the Eighth
Amendment. The court explained that the ordinances are not “cruel” because they are not
designed to “superadd” – that is, add to other penalties – “terror, pain or disgrace.” The court
also explained that such ordinances are not “unusual” because similar punishments are among
the usual modes of punishing offenses throughout the country.
The Supreme Court emphasized that the Eighth Amendment deals with the method and kind of
punishments that may be imposed, and not on what conduct may be criminalized. Further, the
court found that the Grants Pass ordinances do not criminalize people for being homeless.
Rather, the ordinances prohibit certain actions that could be taken by any person regardless of
their status.
The Supreme Court noted that violations of the ordinances may still be subject to other types of
defenses that defendants can raise during their trials, such as necessity (having nowhere else to
go), insanity or diminished capacity, duress, and selective enforcement.
The court also noted that states may adopt laws limiting how far cities may go in regulating
public camping, including prohibiting cities from criminalizing public camping.
Aug. 27, 2024 Item #3 Page 5 of 87
In Carlsbad, Municipal Code Section 8.36.030 - Unlawful Camping states that camping on public
property is prohibited, if the person has access to adequate temporary shelter and refuses such
shelter. The provision of temporary shelter availability was added in 2021 to be consistent with
the Martin v. Boise decision, which was overruled by the 2024 Supreme Court decision on
Grants Pass. The city could now remove the language requiring the person cited to have access
to adequate shelter. However, the court noted that violations of local ordinances may still be
subject to other defenses, such as necessity (e.g., nowhere else to go), insanity or diminished
capacity, duress and selective enforcement.
California Governor’s executive order
Following the Grants Pass decision, on July 25, 2024, Gov. Newsom issued an executive order
requiring state agencies to adopt policies to address encampments on state property.
The order directed the policies be modeled after the California Department of Transportation’s
Maintenance Policy Directive 1001-R1:
• The order encouraged local governments to adopt consistent policies and to use all
available resources and infrastructure, including state-provided resources, to humanely
remove encampments from public spaces, prioritizing encampments that most threaten
life, health and safety.
• Where exigent circumstances do not exist, a notice to vacate should be posted at least
48 hours before the property of people living in encampments is removed.
• Property collected at the removal site should be stored and labeled for at least 60 days
unless the property poses a health and safety hazard.
• While there are no requirements to offer shelter in the executive order, it states,
“(G)uidelines that prioritize offers of shelter and services as a first step to resolving any
encampment best respect the dignity of every Californian and provide meaningful paths
to ending homelessness.”
Carlsbad’s approach to encampments
The City of Carlsbad’s policies and practices related to encampments are generally consistent
with the California Department of Transportation encampment cleanup policy identified in the
Governor’s executive order.
• During fiscal year 2023-2024, the city cleaned up 40 encampments over 135 days,
resulting in the removal of 151.5 cubic yards of trash and abandoned items.
• The Carlsbad Municipal Code allows city personnel to remove and store personal
property that is unlawfully stored, unattended or otherwise found in an unlawful
encampment in accordance with applicable written and publicly available Police
Department policies and procedures.
• The Carlsbad Police Department Policy Manual outlines the policies to ensure that
personnel understand the needs and rights of people experiencing homelessness and
have established procedures to guide officers during all contacts, whether consensual or
for enforcement purposes.
• City-contracted social workers offer services and shelter referral services to people
experiencing homelessness, with a focus on areas known to have encampments.
Aug. 27, 2024 Item #3 Page 6 of 87
Regional policy guidelines
In January 2020, the Regional Task Force on Homelessness adopted Policy Guidelines for
Regional Response for Addressing Unsheltered Homelessness and Encampments Throughout
San Diego County. These guidelines incorporate research, best practices, national guidance on
street outreach and addressing encampments for unsheltered homelessness. They also reflect
recommendations from regional law enforcement agencies.
The guidelines include ending activities that criminalize homelessness, promoting the use of
non-law enforcement personnel to engage people on the street and taking a “clearance with
support” framework for encampments. This framework includes offering support and services
to those living in encampments and giving notice before they will be cleared.
The City of Carlsbad follows these policy guidelines and includes them in contracts with outside
agencies to ensure they follow them as well. These regional guidelines are also in line with the
California Department of Transportation’s policy on encampments.
Enforcement overview
With people experiencing homelessness in Carlsbad, the city’s main enforcement goals are to
end unlawful behavior and connect people to available services and resources, including
shelters and housing.
When appropriate, officers may use a progression of warnings to interrupt unlawful behavior
and make referrals to social workers. When services are refused, warnings are ignored or the
violation is egregious, citations remain an available tool for officers. The Police Department has
a wide variety of enforcement options that allow officers to address disruptive and illegal
behavior.
During the last 12 months, Carlsbad Police made five arrests, issued 114 citations and provided
16 warnings for violations of the city’s unlawful camping ordinance and park hours (specifically,
being in a park or its parking lot after operating hours).
To put this data in perspective, over the same 12-month period, the Police Department took a
total of 1,060 official actions related to people experiencing homelessness in Carlsbad. This
includes arrests, mental health holds, citations and warnings. The most common reasons for
arrests relate to being under the influence of a controlled substance, possession of a controlled
substance, shopping cart removal or possession and trespassing. The most common reasons for
citations, which are given for a violation of the city’s municipal code, related to camping (71
citations), trespassing (66 citations) and violating park hours (43 citations).
Some members of the community have asked why the city is not removing people experiencing
homelessness from areas such as parks and libraries as a result of Grants Pass. All members of
the community, including those experiencing homelessness, have a right to access public
facilities such as libraries and parks, provided they do so in accordance with the law and
facility’s code of conduct.
Review of actions taken by other cities
Like Carlsbad, many cities have updated their municipal codes in recent years to address
camping on public property. The recent Grants Pass decision and the Governor’s Executive
Order on encampments has many agencies reviewing their laws and policies again.
Aug. 27, 2024 Item #3 Page 7 of 87
To date, two cities in the region, San Marcos and Vista, have updated an unlawful camping
ordinance or decision to enforce and one city, Chula Vista, has publicly stated its intention to
update or introduce such ordinance following the Grants Pass decision. The City of Escondido
updated its unlawful camping ordinance on June 26, 2024, two days before the Grants Pass
decision. The City of Poway’s unlawful camping ordinance contains a provision stating that the
requirement to offer shelter before issuing a citation is no longer a requirement under the
ordinance.
Public camping
All 18 cities in the San Diego region have some type of prohibition on public camping. All
prohibit camping in public parks, and some prohibit camping on other public property, including
sidewalks. Three local cities, Carlsbad, Oceanside and San Diego, require shelter to be offered
before citations for unlawful camping on public property can be issued. All three of these cities
have exceptions which only require an offer of shelter under certain circumstances, e.g., during
the evening hours and not when the encampment is in open space, near a waterway, or a
certain distance from a potentially sensitive area, such as a school or a park.
Living in vehicles
Fifteen cities have some form of restriction on sleeping or residing in vehicles, including
restrictions based on time of day or location. Carlsbad’s municipal code does not prohibit
sleeping in or living in vehicles. At least one city’s restrictions on living or sleeping in vehicles
has faced legal challenges.
Staff compiled an overview of existing camping ordinances in the San Diego region, by city. It is
provided as Exhibit 2.
Encampment removal grant funding
The city has received two grants related to encampment removal.
In July 2023, the city received a $2.3 million three-year grant from the state’s Encampment
Resolution Funding program. The grant supports assisting people with finding housing and
moving out of encampments in the Village and Barrio area, around the Cole Library, Holiday
Park and Pine Park.
The encampment resolution activities funded through this grant are in the beginning stage.
• In the first six months, 15 households have been transitioned to temporary housing
(shelter, motels, etc.) and 13 households moved into permanent housing.
• Over the grant term, city staff anticipate moving 75 people out of encampments
(including people living in vehicles) into housing.
In April 2024, the city was notified it would receive additional state funding from the
Encampment Resolution Fund. This additional funding is the result of a joint application
submitted by the cities of Carlsbad and Oceanside and focuses on areas along State Route 78
and Buena Vista Creek. The total grant is $11.4 million. The City of Carlsbad is eligible for $5.3
million, with Oceanside receiving the remaining funds. This grant requires City Council approval
and is being presented for consideration as a separate item on this agenda.
Aug. 27, 2024 Item #3 Page 8 of 87
Options
In light of the Supreme Court decision and the Governor’s Executive Order, the City Council may
wish to evaluate options related to its goal of addressing homelessness and its effects on the
community, including specific areas of community concern. Staff plan to present these options
to the Housing Commission for review and feedback in Fall 2024 and return to the City Council
with what was heard.
Should the City Council be interested in exploring one or more of these options – or options not
listed here – staff would complete the analysis needed and return with additional information
at a future meeting.
Camping ordinance
Enforcement options
1. Changes to camping section of municipal code
A. Remove requirement to offer shelter before issuing a citation
B. Update the language related to offering shelter from a requirement to a best
practice
C. Leave language requiring an offer of shelter as it is
Service options
2. Pursue more shelter options
A. Explore a safe camping program
B. Expand the city’s Motel Voucher Program to provide additional opportunities
for those unsheltered households who are actively engaged in a housing plan
C. Explore additional options to permanently or temporarily expand shelter for
women and children
3. Increase coordination with neighboring cities
Explore a Good Neighbor Pledge with other local cities to align strategies related
to people experiencing unsheltered homelessness and avoid pushing people
from city to city, with no long-term solution
4. Seek statewide legislation
Explore whether to advocate for statewide legislation similar to a law in in the
State of Oregon, House Bill 3115, which ensures jurisdictions have the same
baseline for ordinances related to people experiencing unsheltered
homelessness, reduces disparate impacts throughout the state and curtails
potential legal challenges to local ordinances.
Aug. 27, 2024 Item #3 Page 9 of 87
Living in vehicles
Enforcement options
5. Restrict overnight parking access
Review the feasibility and impacts of restricting overnight parking access at
locations such as:
A. City facility parking lots
B. Public parking lots
C. Sensitive locations
D. Other locations throughout the city (some areas may need to allow for permit
parking for residents if in residential areas)
6. No sleeping in vehicles ordinance
Analyze potential language to update the Carlsbad Municipal Code to restrict or
prohibit the act of sleeping in vehicles.
Service options
7. Explore the development of a comprehensive vehicular homelessness plan.
A. Explore a safe parking program with supportive services similar to the ones
operated by the cities of Encinitas, Vista and Oceanside.
B. Explore the feasibility of a social worker outreach team dedicated to working
with people living in vehicles.
C. Explore the expansion of the city’s employment and benefits program to add
more capacity to prioritize people living in vehicles.
Disorderly conduct
Enforcement options
8. Code of Conduct enforcement
Consider amendments to the Carlsbad Municipal Code to enable police
enforcement of the city’s administrative codes of conduct, including facility
suspensions, within city-owned and operated facilities.
Service options
9. Review the potential for a program that helps avoid facility suspensions.
Explore the development of a program to divert people experiencing
homelessness from being suspended from city facilities or to help them regain
access with appropriate behavior.
Fiscal Analysis
If the City Council wishes to direct staff to explore changes to the city’s approach to
homelessness, staff would return with additional information, including cost estimates and
funding options.
Next Steps
City staff plan to present this information to the Housing Commission for review and feedback
and then return to the City Council to share what was heard.
If the City Council directs staff to explore changes, the City Manager will develop a schedule for
completing the analysis and returning to the City Council.
Aug. 27, 2024 Item #3 Page 10 of 87
Environmental Evaluation
This action does not require environmental review because it does not constitute a project
within the meaning of the California Environmental Quality Act under Public Resources Code
Section 21065 in that it has no potential to cause either a direct physical change in the
environment or a reasonably foreseeable indirect physical change in the environment.
Exhibits
1. City of Grants Pass, Oregon v. Johnson published decision
2. Summary local ordinances
Aug. 27, 2024 Item #3 Page 11 of 87
1 (Slip Opinion) OCTOBER TERM, 2023
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CITY OF GRANTS PASS, OREGON v. JOHNSON ET AL.,
ON BEHALF OF THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 23–175. Argued April 22, 2024—Decided June 28, 2024
Grants Pass, Oregon, is home to roughly 38,000 people, about 600 of
whom are estimated to experience homelessness on a given day. Like
many local governments across the Nation, Grants Pass has public-
camping laws that restrict encampments on public property. The
Grants Pass Municipal Code prohibits activities such as camping on
public property or parking overnight in the city’s parks. See
§§5.61.030, 6.46.090(A)–(B). Initial violations can trigger a fine, while
multiple violations can result in imprisonment. In a prior decision,
Martin v. Boise, the Ninth Circuit held that the Eighth Amendment’sCruel and Unusual Punishments Clause bars cities from enforcing
public-camping ordinances like these against homeless individuals
whenever the number of homeless individuals in a jurisdiction exceeds
the number of “practically available” shelter beds. 920 F. 3d 584, 617.
After Martin, suits against Western cities like Grants Pass prolifer-
ated.
Plaintiffs (respondents here) filed a putative class action on behalf
of homeless people living in Grants Pass, claiming that the city’s ordi-
nances against public camping violated the Eighth Amendment. The
district court certified the class and entered a Martin injunction pro-
hibiting Grants Pass from enforcing its laws against homeless individ-uals in the city. App. to Pet. for Cert. 182a–183a. Applying Martin’s
reasoning, the district court found everyone without shelter in Grants
Pass was “involuntarily homeless” because the city’s total homeless
population outnumbered its “practically available” shelter beds. App.
Exhibit 1
Aug. 27, 2024 Item #3 Page 12 of 87
2 CITY OF GRANTS PASS v. JOHNSON
Syllabus
to Pet. for Cert. 179a, 216a. The beds at Grants Pass’s charity-run
shelter did not qualify as “available” in part because that shelter has
rules requiring residents to abstain from smoking and to attend reli-
gious services. App. to Pet. for Cert. 179a–180a. A divided panel of
the Ninth Circuit affirmed the district court’s Martin injunction in rel-
evant part. 72 F. 4th 868, 874–896. Grants Pass filed a petition for certiorari. Many States, cities, and counties from across the Ninth Cir-
cuit urged the Court to grant review to assess Martin.
Held: The enforcement of generally applicable laws regulating camping
on public property does not constitute “cruel and unusual punishment”
prohibited by the Eighth Amendment. Pp. 15–35.
(a) The Eighth Amendment’s Cruel and Unusual Punishments
Clause “has always been considered, and properly so, to be directed at
the method or kind of punishment” a government may “impos[e] for
the violation of criminal statutes.” Powell v. Texas, 392 U. S. 514, 531–
532 (plurality opinion). It was adopted to ensure that the new Nation
would never resort to certain “formerly tolerated” punishments consid-
ered “cruel” because they were calculated to “ ‘superad[d]’ ” “ ‘terror,
pain, or disgrace,’ ” and considered “unusual” because, by the time of
the Amendment’s adoption, they had “long fallen out of use.” Bucklew
v. Precythe, 587 U. S 119, 130. All that would seem to make the Eighth
Amendment a poor foundation on which to rest the kind of decree the
plaintiffs seek in this case and the Ninth Circuit has endorsed since Martin. The Cruel and Unusual Punishments Clause focuses on the
question what “method or kind of punishment” a government may im-
pose after a criminal conviction, not on the question whether a govern-
ment may criminalize particular behavior in the first place. Powell,
392 U. S., at 531–532.
The Court cannot say that the punishments Grants Pass imposes
here qualify as cruel and unusual. The city imposes only limited fines
for first-time offenders, an order temporarily barring an individual
from camping in a public park for repeat offenders, and a maximum
sentence of 30 days in jail for those who later violate an order. See
Ore. Rev. Stat. §§164.245, 161.615(3). Such punishments do not qual-
ify as cruel because they are not designed to “superad[d]” “terror, pain,
or disgrace.” Bucklew, 587 U. S., at 130 (internal quotation marks
omitted). Nor are they unusual, because similarly limited fines and
jail terms have been and remain among “the usual mode[s]” for pun-
ishing criminal offenses throughout the country. Pervear v. Common-
wealth, 5 Wall. 475, 480. Indeed, cities and States across the country
have long employed similar punishments for similar offenses. Pp. 15–
17.
(b) Plaintiffs do not meaningfully dispute that, on its face, the Cruel
and Unusual Punishments Clause does not speak to questions like
Aug. 27, 2024 Item #3 Page 13 of 87
3 Cite as: 603 U. S. ____ (2024)
Syllabus
what a State may criminalize or how it may go about securing a con-
viction. Like the Ninth Circuit in Martin, plaintiffs point to Robinson
v. California, 370 U. S. 660, as a notable exception. In Robinson, the
Court held that under the Cruel and Unusual Punishments Clause,
California could not enforce a law providing that “‘[n]o person shall . . .
be addicted to the use of narcotics.’” Id., at 660, n 1. While California could not make “the ‘status’ of narcotic addiction a criminal offense,”
id., at 666, the Court emphasized that it did not mean to cast doubt on
the States’ “broad power” to prohibit behavior even by those, like the
defendant, who suffer from addiction. Id., at 664, 667–668. The prob-
lem, as the Court saw it, was that California’s law made the status of
being an addict a crime. Id., at 666–667 The Court read the Cruel and
Unusual Punishments Clause (in a way unprecedented in 1962) to im-
pose a limit on what a State may criminalize. In dissent, Justice White
lamented that the majority had embraced an “application of ‘cruel and
unusual punishment’ so novel that” it could not possibly be “ascribe[d]
to the Framers of the Constitution.” 370 U. S., at 689. The Court has
not applied Robinson in that way since.
Whatever its persuasive force as an interpretation of the Eighth
Amendment, Robinson cannot sustain the Ninth Circuit’s Martin pro-
ject. Robinson expressly recognized the “broad power” States enjoy
over the substance of their criminal laws, stressing that they may
criminalize knowing or intentional drug use even by those suffering from addiction. 370 U. S., at 664, 666. The Court held that California’s
statute offended the Eighth Amendment only because it criminalized
addiction as a status. Ibid.
Grants Pass’s public-camping ordinances do not criminalize status.
The public-camping laws prohibit actions undertaken by any person,
regardless of status. It makes no difference whether the charged de-
fendant is currently a person experiencing homelessness, a backpacker
on vacation, or a student who abandons his dorm room to camp out in
protest on the lawn of a municipal building. See Tr. of Oral Arg. 159.
Because the public-camping laws in this case do not criminalize status,
Robinson is not implicated. Pp. 17–21.
(c) Plaintiffs insist the Court should extend Robinson to prohibit the
enforcement of laws that proscribe certain acts that are in some sense
“involuntary,” because some homeless individuals cannot help but do
what the law forbids. See Brief for Respondents 24–25, 29, 32. The
Ninth Circuit pursued this line of thinking below and in Martin, but
this Court already rejected it in Powell v. Texas, 392 U. S. 514. In Powell, the Court confronted a defendant who had been convicted un-
der a Texas statute making it a crime to “ ‘get drunk or be found in a
state of intoxication in any public place.’ ” Id., at 517 (plurality opin-
ion). Like the plaintiffs here, Powell argued that his drunkenness was
Aug. 27, 2024 Item #3 Page 14 of 87
4 CITY OF GRANTS PASS v. JOHNSON
Syllabus
an “‘involuntary’” byproduct of his status as an alcoholic. Id., at 533.
The Court did not agree that Texas’s law effectively criminalized Pow-
ell’s status as an alcoholic. Writing for a plurality, Justice Marshall
observed that Robinson’s “very small” intrusion “into the substantive
criminal law” prevents States only from enforcing laws that criminal-
ize “a mere status.” Id., at 532–533. It does nothing to curtail a State’s authority to secure a conviction when “the accused has committed
some act . . . society has an interest in preventing.” Id., at 533. That
remains true, Justice Marshall continued, even if the defendant’s con-
duct might, “in some sense” be described as “ ‘involuntary’ or ‘occa-
sioned by’” a particular status. Ibid.
This case is no different. Just as in Powell, plaintiffs here seek to
extend Robinson’s rule beyond laws addressing “mere status” to laws
addressing actions that, even if undertaken with the requisite mens
rea, might “in some sense” qualify as “ ‘involuntary.’ ” And as in Pow-
ell, the Court can find nothing in the Eighth Amendment permitting
that course. Instead, a variety of other legal doctrines and constitu-
tional provisions work to protect those in the criminal justice system
from a conviction. Pp. 21–24.
(d) Powell not only declined to extend Robinson to “involuntary” acts
but also stressed the dangers of doing so. Extending Robinson to cover
involuntary acts would, Justice Marshall observed, effectively
“impe[l]” this Court “into defining” something akin to a new “insanity test in constitutional terms.” Powell, 392 U. S., at 536. That is because
an individual like the defendant in Powell does not dispute that he has
committed an otherwise criminal act with the requisite mens rea, yet
he seeks to be excused from “moral accountability” because of his “‘con-
dition. ’” Id., at 535–536. Instead, Justice Marshall reasoned, such
matters should be left for resolution through the democratic process,
and not by “freez[ing]” any particular, judicially preferred approach
“into a rigid constitutional mold.” Id., at 537. The Court echoed that
last point in Kahler v. Kansas, 589 U. S. 271, in which the Court
stressed that questions about whether an individual who committed a
proscribed act with the requisite mental state should be “reliev[ed of]
responsibility,” id., at 283, due to a lack of “moral culpability,” id., at
286, are generally best resolved by the people and their elected repre-
sentatives.
Though doubtless well intended, the Ninth Circuit’s Martin experi-
ment defied these lessons. Answers to questions such as what consti-
tutes “involuntarily” homelessness or when a shelter is “practically
available” cannot be found in the Cruel and Unusual Punishments
Clause. Nor do federal judges enjoy any special competence to provide
them. Cities across the West report that the Ninth Circuit’s involun-
Aug. 27, 2024 Item #3 Page 15 of 87
5 Cite as: 603 U. S. ____ (2024)
Syllabus
tariness test has created intolerable uncertainty for them. By extend-
ing Robinson beyond the narrow class of pure status crimes, the Ninth
Circuit has created a right that has proven “impossible” for judges to
delineate except “by fiat.” Powell, 392 U. S., at 534. As Justice Mar-
shall anticipated in Powell, the Ninth Circuit’s rules have produced
confusion and they have interfered with “essential considerations of federalism,” by taking from the people and their elected leaders diffi-
cult questions traditionally “thought to be the[ir] province.” Id., at
535–536. Pp. 24–34.
(e) Homelessness is complex. Its causes are many. So may be the
public policy responses required to address it. The question this case
presents is whether the Eighth Amendment grants federal judges pri-
mary responsibility for assessing those causes and devising those re-
sponses. A handful of federal judges cannot begin to “match” the col-
lective wisdom the American people possess in deciding “how best to
handle” a pressing social question like homelessness. Robinson, 370
U. S., at 689 (White, J., dissenting). The Constitution’s Eighth Amend-ment serves many important functions, but it does not authorize fed-
eral judges to wrest those rights and responsibilities from the Ameri-
can people and in their place dictate this Nation’s homelessness policy.
Pp. 34–35.
72 F. 4th 868, reversed and remanded.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, KAVANAUGH, and BARRETT, JJ., joined.
THOMAS, J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting
opinion, in which KAGAN and JACKSON, JJ., joined.
Aug. 27, 2024 Item #3 Page 16 of 87
_________________
_________________
1 Cite as: 603 U. S. ____ (2024)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 23–175
CITY OF GRANTS PASS, OREGON, PETITIONER v.
GLORIA JOHNSON, ET AL., ON BEHALF
OF THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 28, 2024]
JUSTICE GORSUCH delivered the opinion of the Court.
Many cities across the American West face a homeless-
ness crisis. The causes are varied and complex, the appro-
priate public policy responses perhaps no less so. Like
many local governments, the city of Grants Pass, Oregon,
has pursued a multifaceted approach. Recently, it adopted
various policies aimed at “protecting the rights, dignity[,]
and private property of the homeless.” App. 152. It ap-
pointed a “homeless community liaison” officer charged
with ensuring the homeless receive information about “as-
sistance programs and other resources” available to them
through the city and its local shelter. Id., at 152–153; Brief
for Grants Pass Gospel Rescue Mission as Amicus Curiae
2–3. And it adopted certain restrictions against encamp-
ments on public property. App. 155–156. The Ninth Cir-
cuit, however, held that the Eighth Amendment’s Cruel and
Unusual Punishments Clause barred that last measure.
With support from States and cities across the country,
Grants Pass urged this Court to review the Ninth Circuit’s
decision. We take up that task now.
Aug. 27, 2024 Item #3 Page 17 of 87
2 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
I
A
Some suggest that homelessness may be the “defining
public health and safety crisis in the western United
States” today. 72 F. 4th 868, 934 (CA9 2023) (Smith, J.,
dissenting from denial of rehearing en banc). According to
the federal government, homelessness in this country has
reached its highest levels since the government began re-
porting data on the subject in 2007. Dept. of Housing and
Urban Development, Office of Community Planning & De-
velopment, T. de Sousa et al., The 2023 Annual Homeless
Assessment Report (AHAR) to Congress 2–3 (2023). Cali-
fornia alone is home to around half of those in this Nation
living without shelter on a given night. Id., at 30. And each
of the five States with the highest rates of unsheltered
homelessness in the country—California, Oregon, Hawaii,
Arizona, and Nevada—lies in the American West. Id., at
17.
Those experiencing homelessness may be as diverse as
the Nation itself—they are young and old and belong to all
races and creeds. People become homeless for a variety of
reasons, too, many beyond their control. Some have been
affected by economic conditions, rising housing costs, or
natural disasters. Id., at 37; see Brief for United States as
Amicus Curiae 2–3. Some have been forced from their
homes to escape domestic violence and other forms of ex-
ploitation. Ibid. And still others struggle with drug addic-
tion and mental illness. By one estimate, perhaps 78 per-
cent of the unsheltered suffer from mental-health issues,
while 75 percent struggle with substance abuse. See J.
Rountree, N. Hess, & A. Lyke, Health Conditions Among
Unsheltered Adults in the U. S., Calif. Policy Lab, Policy
Brief 5 (2019).
Those living without shelter often live together. L.
Dunton et al., Dept. of Housing and Urban Development,
Aug. 27, 2024 Item #3 Page 18 of 87
3 Cite as: 603 U. S. ____ (2024)
Opinion of the Court
Office of Policy Development & Research, Exploring Home-
lessness Among People Living in Encampments and Asso-
ciated Cost 1 (2020) (2020 HUD Report). As the number of
homeless individuals has grown, the number of homeless
encampments across the country has increased as well, “in
numbers not seen in almost a century.” Ibid. The unshel-
tered may coalesce in these encampments for a range of rea-
sons. Some value the “freedom” encampment living pro-
vides compared with submitting to the rules shelters
impose. Dept. of Housing and Urban Development, Office
of Policy Development and Research, R. Cohen, W. Yetvin,
& J. Khadduri, Understanding Encampments of People Ex-
periencing Homelessness and Community Responses 5
(2019). Others report that encampments offer a “sense of
community.” Id., at 7. And still others may seek them out
for “dependable access to illegal drugs.” Ibid. In brief, the
reasons why someone will go without shelter on a given
night vary widely by the person and by the day. See ibid.
As the number and size of these encampments have
grown, so have the challenges they can pose for the home-
less and others. We are told, for example, that the “expo-
nential increase in . . . encampments in recent years has re-
sulted in an increase in crimes both against the homeless
and by the homeless.” Brief for California State Sheriffs’
Associations et al. as Amici Curiae 21 (California Sheriffs
Brief ). California’s Governor reports that encampment in-
habitants face heightened risks of “sexual assault” and
“subjugation to sex work.” Brief for California Governor G.
Newsom as Amicus Curiae 11 (California Governor Brief ).
And by one estimate, more than 40 percent of the shootings
in Seattle in early 2022 were linked to homeless encamp-
ments. Brief for Washington State Association of Sheriffs
and Police Chiefs as Amicus Curiae on Pet. for Cert. 10
(Washington Sheriffs Brief ).
Other challenges have arisen as well. Some city officials
indicate that encampments facilitate the distribution of
Aug. 27, 2024 Item #3 Page 19 of 87
4 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
drugs like heroin and fentanyl, which have claimed the
lives of so many Americans in recent years. Brief for Office
of the San Diego County District Attorney as Amicus Curiae
17–19. Without running water or proper sanitation facili-
ties, too, diseases can sometimes spread in encampments
and beyond them. Various States say that they have seen
typhus, shigella, trench fever, and other diseases reemerge
on their city streets. California Governor Brief 12; Brief for
Idaho et al. as Amici Curiae 7 (States Brief ).
Nor do problems like these affect everyone equally. Of-
ten, encampments are found in a city’s “poorest and most
vulnerable neighborhoods.” Brief for City and County of
San Francisco et al. as Amici Curiae on Pet. for Cert. 5 (San
Francisco Cert. Brief ); see also 2020 HUD Report 9. With
encampments dotting neighborhood sidewalks, adults and
children in these communities are sometimes forced to nav-
igate around used needles, human waste, and other haz-
ards to make their way to school, the grocery store, or work.
San Francisco Cert. Brief 5; States Brief 8; California Gov-
ernor Brief 11–12. Those with physical disabilities report
this can pose a special challenge for them, as they may lack
the mobility to maneuver safely around the encampments.
San Francisco Cert. Brief 5; see also Brief for Tiana Tozer
et al. as Amici Curiae 1–6 (Tozer Brief ).
Communities of all sizes are grappling with how best to
address challenges like these. As they have throughout the
Nation’s history, charitable organizations “serve as the
backbone of the emergency shelter system in this country,”
accounting for roughly 40 percent of the country’s shelter
beds for single adults on a given night. See National Alli-
ance To End Homelessness, Faith-Based Organizations:
Fundamental Partners in Ending Homelessness 1 (2017).
Many private organizations, city officials, and States have
worked, as well, to increase the availability of affordable
housing in order to provide more permanent shelter for
those in need. See Brief for Local Government Legal Center
Aug. 27, 2024 Item #3 Page 20 of 87
5 Cite as: 603 U. S. ____ (2024)
Opinion of the Court
et al. as Amici Curiae 4, 32 (Cities Brief ). But many, too,
have come to the conclusion that, as they put it, “[j]ust
building more shelter beds and public housing options is al-
most certainly not the answer by itself.” Id., at 11.
As many cities see it, even as they have expanded shelter
capacity and other public services, their unsheltered popu-
lations have continued to grow. Id., at 9–11. The city of
Seattle, for example, reports that roughly 60 percent of its
offers of shelter have been rejected in a recent year. See id.,
at 28, and n. 26. Officials in Portland, Oregon, indicate
that, between April 2022 and January 2024, over 70 percent
of their approximately 3,500 offers of shelter beds to home-
less individuals were declined. Brief for League of Oregon
Cities et al. as Amici Curiae 5 (Oregon Cities Brief ). Other
cities tell us that “the vast majority of their homeless popu-
lations are not actively seeking shelter and refuse all ser-
vices.” Brief for Thirteen California Cities as Amici Curiae
3. Surveys cited by the Department of Justice suggest that
only “25–41 percent” of “homeless encampment residents”
“willingly” accept offers of shelter beds. See Dept. of Jus-
tice, Office of Community Oriented Policing Services, S.
Chamard, Homeless Encampments 36 (2010).
The reasons why the unsheltered sometimes reject offers
of assistance may themselves be many and complex. Some
may reject shelter because accepting it would take them
further from family and local ties. See Brief for 57 Social
Scientists as Amici Curiae 20. Some may decline offers of
assistance because of concerns for their safety or the rules
some shelters impose regarding curfews, drug use, or reli-
gious practices. Id., at 22; see Cities Brief 29. Other factors
may also be at play. But whatever the causes, local govern-
ments say, this dynamic significantly complicates their ef-
forts to address the challenges of homelessness. See id., at
11.
Rather than focus on a single policy to meet the chal-
Aug. 27, 2024 Item #3 Page 21 of 87
6 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
lenges associated with homelessness, many States and cit-
ies have pursued a range of policies and programs. See
2020 HUD Report 14–20. Beyond expanding shelter and
affordable housing opportunities, some have reinvested in
mental-health and substance-abuse treatment programs.
See Brief for California State Association of Counties et al.
as Amici Curiae 20, 25; see also 2020 HUD Report 23. Some
have trained their employees in outreach tactics designed
to improve relations between governments and the home-
less they serve. Ibid. And still others have chosen to pair
these efforts with the enforcement of laws that restrict
camping in public places, like parks, streets, and sidewalks.
Cities Brief 11.
Laws like those are commonplace. By one count, “a ma-
jority of cities have laws restricting camping in public
spaces,” and nearly forty percent “have one or more laws
prohibiting camping citywide.” See Brief for Western Re-
gional Advocacy Project as Amicus Curiae 7, n. 15 (empha-
sis deleted). Some have argued that the enforcement of
these laws can create a “revolving door that circulates indi-
viduals experiencing homelessness from the street to the
criminal justice system and back.” U. S. Interagency Coun-
cil on Homelessness, Searching Out Solutions 6 (2012). But
many cities take a different view. 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 re-
sponse “to criminalize homelessness.” Cities Brief 11. In-
stead, 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. Ibid.
Aug. 27, 2024 Item #3 Page 22 of 87
7 Cite as: 603 U. S. ____ (2024)
Opinion of the Court
Cities are not alone in pursuing this approach. The fed-
eral government also restricts “the storage of . . . sleeping
bags,” as well as other “sleeping activities,” on park lands.
36 CFR §§7.96(i), (j)(1) (2023). And it, too, has exercised
that authority to clear certain “dangerous” encampments.
National Park Service, Record of Determination for Clear-
ing the Unsheltered Encampment at McPherson Square
and Temporary Park Closure for Rehabilitation (Feb. 13,
2023).
Different governments may use these laws in different
ways and to varying degrees. See Cities Brief 11. But many
broadly agree that “policymakers need access to the full
panoply of tools in the policy toolbox” to “tackle the compli-
cated issues of housing and homelessness.” California Gov-
ernor Brief 16; accord, Cities Brief 11; Oregon Cities Brief
17.
B
Five years ago, the U. S. Court of Appeals for the Ninth
Circuit took one of those tools off the table. In Martin v.
Boise, 920 F. 3d 584 (2019), that court considered a public-
camping ordinance in Boise, Idaho, that made it a misde-
meanor to use “streets, sidewalks, parks, or public places”
for “camping.” Id., at 603 (internal quotation marks omit-
ted). According to the Ninth Circuit, the Eighth Amend-
ment’s Cruel and Unusual Punishments Clause barred
Boise from enforcing its public-camping ordinance against
homeless individuals who lacked “access to alternative
shelter.” Id., at 615. That “access” was lacking, the court
said, whenever “‘there is a greater number of homeless in-
dividuals in a jurisdiction than the number of available
beds in shelters.’” Id., at 617 (alterations omitted). Accord-
ing to the Ninth Circuit, nearly three quarters of Boise’s
shelter beds were not “practically available” because the
city’s charitable shelters had a “religious atmosphere.” Id.,
at 609–610, 618. Boise was thus enjoined from enforcing
Aug. 27, 2024 Item #3 Page 23 of 87
8 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
its camping laws against the plaintiffs. Ibid.
No other circuit has followed Martin’s lead with respect
to public-camping laws. Nor did the decision go unre-
marked within the Ninth Circuit. When the full court de-
nied rehearing en banc, several judges wrote separately to
note their dissent. In one statement, Judge Bennett argued
that Martin was inconsistent with the Cruel and Unusual
Punishments Clause. That provision, Judge Bennett con-
tended, prohibits certain methods of punishment a govern-
ment may impose after a criminal conviction, but it does not
“impose [any] substantive limits on what conduct a state
may criminalize.” 920 F. 3d, at 599–602. In another state-
ment, Judge Smith lamented that Martin had “shackle[d]
the hands of public officials trying to redress the serious so-
cietal concern of homelessness.” Id., at 590. He predicted
the decision would “wrea[k] havoc on local governments,
residents, and businesses” across the American West. Ibid.
After Martin, similar suits proliferated against Western
cities within the Ninth Circuit. As Judge Smith put it, “[i]f
one picks up a map of the western United States and points
to a city that appears on it, there is a good chance that city
has already faced” a judicial injunction based on Martin or
the threat of one “in the few short years since [the Ninth
Circuit] initiated its Martin experiment.” 72 F. 4th, at 940;
see, e.g., Boyd v. San Rafael, 2023 WL 7283885, *1–*2 (ND
Cal., Nov. 2, 2023); Fund for Empowerment v. Phoenix, 646
F. Supp. 3d 1117, 1132 (Ariz. 2022); Warren v. Chico, 2021
WL 2894648, *3 (ED Cal., July 8, 2021).
Consider San Francisco, where each night thousands
sleep “in tents and other makeshift structures.” Brief for
City and County of San Francisco et al. as Amici Curiae 8
(San Francisco Brief ). Applying Martin, a district court en-
tered an injunction barring the city from enforcing “laws
and ordinances to prohibit involuntarily homeless individ-
uals from sitting, lying, or sleeping on public property.” Co-
alition on Homelessness v. San Francisco, 647 F. Supp. 3d
Aug. 27, 2024 Item #3 Page 24 of 87
9 Cite as: 603 U. S. ____ (2024)
Opinion of the Court
806, 841 (ND Cal. 2022). That “misapplication of this
Court’s Eighth Amendment precedents,” the Mayor tells us,
has “severely constrained San Francisco’s ability to address
the homelessness crisis.” San Francisco Brief 7. The city
“uses enforcement of its laws prohibiting camping” not to
criminalize homelessness, but “as one important tool
among others to encourage individuals experiencing home-
lessness to accept services and to help ensure safe and ac-
cessible sidewalks and public spaces.” Id., at 7–8. Judicial
intervention restricting the use of that tool, the Mayor con-
tinues, “has led to painful results on the streets and in
neighborhoods.” Id., at 8. “San Francisco has seen over half
of its offers of shelter and services rejected by unhoused in-
dividuals, who often cite” the Martin order against the city
“as their justification to permanently occupy and block pub-
lic sidewalks.” Id., at 8–9.
An exceptionally large number of cities and States have
filed briefs in this Court reporting experiences like San
Francisco’s. In the judgment of many of them, the Ninth
Circuit has inappropriately “limit[ed] the tools available to
local governments for tackling [what is a] complex and dif-
ficult human issue.” Oregon Cities Brief 2. The threat of
Martin injunctions, they say, has “paralyze[d]” even com-
monsense and good-faith efforts at addressing homeless-
ness. Brief for City of Phoenix et al. as Amici Curiae 36
(Phoenix Brief ). The Ninth Circuit’s intervention, they in-
sist, has prevented local governments from pursuing “effec-
tive solutions to this humanitarian crisis while simultane-
ously protecting the remaining community’s right to safely
enjoy public spaces.” Brief for International Municipal
Lawyers Association et al. as Amici Curiae on Pet. for Cert.
27 (Cities Cert. Brief ); States Brief 11 (“State and local gov-
ernments in the Ninth Circuit have attempted a variety of
solutions to address the problems that public encampments
inflict on their communities,” only to have those “efforts . . .
shut down by federal courts”).
Aug. 27, 2024 Item #3 Page 25 of 87
10 CITY OF GRANTS PASS v. JOHNSON
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Many cities further report that, rather than help allevi-
ate the homelessness crisis, Martin injunctions have inad-
vertently contributed to it. The numbers of “[u]nsheltered
homelessness,” they represent, have “increased dramati-
cally in the Ninth Circuit since Martin.” Brief for League
of Oregon Cities et al. as Amici Curiae on Pet. for Cert. 7
(boldface and capitalization deleted). And, they say, Martin
injunctions have contributed to this trend by “weaken[ing]”
the ability of public officials “to persuade persons experienc-
ing homelessness to accept shelter beds and [other] ser-
vices.” Brief for Ten California Cities as Amici Curiae on
Pet. for Cert. 2. In Portland, for example, residents report
some unsheltered persons “often return within days” of an
encampment’s clearing, on the understanding that “Martin
. . . and its progeny prohibit the [c]ity from implementing
more efficacious strategies.” Tozer Brief 5; Washington
Sheriffs Brief 14 (Martin divests officers of the “ability to
compel [unsheltered] persons to leave encampments and
obtain necessary services”). In short, they say, Martin
“make[s] solving this crisis harder.” Cities Cert. Brief 3.
All acknowledge “[h]omelessness is a complex and serious
social issue that cries out for effective . . . responses.” Ibid.
But many States and cities believe “it is crucial” for local
governments to “have the latitude” to experiment and find
effective responses. Id., at 27; States Brief 13–17. “Injunc-
tions and the threat of federal litigation,” they insist, “im-
pede this democratic process,” undermine local govern-
ments, and do not well serve the homeless or others who
live in the Ninth Circuit. Cities Cert. Brief 27–28.
C
The case before us arises from a Martin injunction issued
against the city of Grants Pass. Located on the banks of the
Rogue River in southwestern Oregon, the city is home to
roughly 38,000 people. Among them are an estimated 600
individuals who experience homelessness on a given day.
Aug. 27, 2024 Item #3 Page 26 of 87
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72 F. 4th, at 874; App. to Pet. for Cert. 167a–168a; 212a–
213a.
Like many American cities, Grants Pass has laws re-
stricting camping in public spaces. Three are relevant here.
The first prohibits sleeping “on public sidewalks, streets, or
alleyways.” Grants Pass Municipal Code §5.61.020(A)
(2023); App. to Pet. for Cert. 221a. The second prohibits
“[c]amping” on public property. §5.61.030; App. to Pet. for
Cert. 222a (boldface deleted). 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, sleep-
ing 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.” §§5.61.010(A)–(B); App. to Pet.
for Cert. 221a. The third prohibits “[c]amping” and “[o]ver-
night parking” in the city’s parks. §§6.46.090(A)–(B); 72
F. 4th, at 876. Penalties for violating these ordinances es-
calate stepwise. An initial violation may trigger a fine.
§§1.36.010(I)–(J). Those who receive multiple citations may
be subject to an order barring them from city parks for 30
days. §6.46.350; App. to Pet. for Cert. 174a. And, in turn,
violations of those orders can constitute criminal trespass,
punishable by a maximum of 30 days in prison and a $1,250
fine. Ore. Rev. Stat. §§164.245, 161.615(3), 161.635(1)(c)
(2023).
Neither of the named plaintiffs before us has been sub-
jected to an order barring them from city property or to
criminal trespass charges. Perhaps that is because the city
has traditionally taken a light-touch approach to enforce-
ment. The city’s officers are directed “to provide law en-
forcement services to all members of the community while
protecting the rights, dignity[,] and private property of the
homeless.” App. 152, Grants Pass Dept. of Public Safety
Policy Manual ¶428.1.1 (Dec. 17, 2018). Officers are in-
structed that “[h]omelessness is not a crime.” Ibid. And
they are “encouraged” to render “aid” and “support” to the
Aug. 27, 2024 Item #3 Page 27 of 87
12 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
homeless whenever possible. Id., at 153, ¶428.3.1
Still, shortly after the panel decision in Martin, two
homeless individuals, Gloria Johnson and John Logan, filed
suit challenging the city’s public-camping laws. App. 37,
Third Amended Complaint ¶¶6–7. They claimed, among
other things, that the city’s ordinances violated the Eighth
Amendment’s Cruel and Unusual Punishments Clause.
Id., at 51, ¶66. And they sought to pursue their claim on
behalf of a class encompassing “all involuntarily homeless
people living in Grants Pass.” Id., at 48, ¶52.2
The district court certified the class action and enjoined
the city from enforcing its public-camping laws against the
homeless. While Ms. Johnson and Mr. Logan generally
sleep in their vehicles, the court held, they could adequately
represent the class, for sleeping in a vehicle can sometimes
count as unlawful “‘camping’” under the relevant ordi-
nances. App. to Pet. for Cert. 219a (quoting Grants Pass
Municipal Code §5.61.010). And, the court found, everyone
——————
1The dissent cites minutes from a community roundtable meeting to
suggest that officials in Grants Pass harbored only punitive motives
when adopting their camping ban. Post, at 13–14 (opinion of SOTOMAYOR,
J.). But the dissent tells at best half the story about that meeting. In
his opening remarks, the Mayor stressed that the city’s goal was to “find
a balance between providing the help [homeless] people need and not en-
abling . . . aggressive negative behavior” some community members had
experienced. App. 112. And, by all accounts, the “purpose” of the meet-
ing was to “develo[p] strategies to . . . connect [homeless] people to ser-
vices.” Ibid. The city manager and others explained that the city was
dealing with problems of “harassment” and “defecation in public places”
by those who seemingly “do not want to receive services.” Id., at 113,
118–120. At the same time, they celebrated “the strong commitment”
from “faith-based entities” and a “huge number of people” in the city, who
have “come together for projects” to support the homeless, including by
securing “funding for a sobering center.” Id., at 115, 123.
2Another named plaintiff, Debra Blake, passed away while this case
was pending in the Ninth Circuit, and her claims are not before us. 72
F. 4th 868, 880, n. 12 (2023). Before us, the city does not dispute that
the remaining named plaintiffs face a credible threat of sanctions under
its ordinances.
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Opinion of the Court
without shelter in Grants Pass was “involuntarily home-
less” because the city’s total homeless population outnum-
bered its “‘practically available’” shelter beds. App. to Pet.
for Cert. 179a, 216a. In fact, the court ruled, none of the
beds at Grants Pass’s charity-run shelter qualified as
“available.” They did not, the court said, both because that
shelter offers something closer to transitional housing than
“temporary emergency shelter,” and because the shelter
has rules requiring residents to abstain from smoking and
attend religious services. Id., at 179a–180a. The Eighth
Amendment, the district court thus concluded, prohibited
Grants Pass from enforcing its laws against homeless indi-
viduals in the city. Id., at 182a–183a.
A divided panel of the Ninth Circuit affirmed in relevant
part. 72 F. 4th, at 874–896. The majority agreed with the
district court that all unsheltered individuals in Grants
Pass qualify as “involuntarily homeless” because the city’s
homeless population exceeds “available” shelter beds. Id.,
at 894. And the majority further agreed that, under Mar-
tin, the homeless there cannot be punished for camping
with “rudimentary forms of protection from the elements.”
72 F. 4th, at 896. In dissent, Judge Collins questioned Mar-
tin’s consistency with the Eighth Amendment and la-
mented its “dire practical consequences” for the city and
others like it. 72 F. 4th, at 914 (internal quotation marks
omitted).
The city sought rehearing en banc, which the court de-
nied over the objection of 17 judges who joined five separate
opinions. Id., at 869, 924–945. Judge O’Scannlain, joined
by 14 judges, criticized Martin’s “jurisprudential experi-
ment” as “egregiously flawed and deeply damaging—at war
with the constitutional text, history, and tradition.” 72
F. 4th, at 925, 926, n. 2. Judge Bress, joined by 11 judges,
contended that Martin has “add[ed] enormous and unjusti-
fied complication to an already extremely complicated set
of circumstances.” 72 F. 4th, at 945. And Judge Smith,
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14 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
joined by several others, described in painstaking detail the
ways in which, in his view, Martin had thwarted good-faith
attempts by cities across the West, from Phoenix to Sacra-
mento, to address homelessness. 72 F. 4th, at 934, 940–
943.
Grants Pass filed a petition for certiorari. A large num-
ber of States, cities, and counties from across the Ninth Cir-
cuit and the country joined Grants Pass in urging the Court
to grant review to assess the Martin experiment. See Part
I–B, supra. We agreed to do so. 601 U. S. ___ (2024).3
——————
3Supporters of Grants Pass’s petition for certiorari included: The cities of Albuquerque, Anchorage, Chico, Chino, Colorado Springs, Fillmore,
Garden Grove, Glendora, Henderson, Honolulu, Huntington Beach, Las
Vegas, Los Angeles, Milwaukee, Murrieta, Newport Beach, Orange,
Phoenix, Placentia, Portland, Providence, Redondo Beach, Roseville,
Saint Paul, San Clemente, San Diego, San Francisco, San Juan Ca-
pistrano, Seattle, Spokane, Tacoma, and Westminster; the National
League of Cities, representing more than 19,000 American cities and
towns; the League of California Cities, representing 477 California cities;
the League of Oregon Cities, representing Oregon’s 241 cities; the Asso-
ciation of Idaho Cities, representing Idaho’s 199 cities; the League of Ar-
izona Cities and Towns, representing all 91 incorporated Arizona munic-
ipalities; the North Dakota League of Cities, comprising 355 cities; the
Counties of Honolulu, San Bernardino, San Francisco, and Orange; the
National Association of Counties, which represents the Nation’s 3,069
counties; the California State Association of Counties, representing Cal-
ifornia’s 58 counties; the Special Districts Association of Oregon, repre-
senting all of Oregon’s special districts; the Washington State Associa-tion of Municipal Attorneys, a nonprofit corporation comprising
attorneys representing Washington’s 281 cities and towns; the Interna-
tional Municipal Lawyers Association, the largest association of attor-
neys representing municipalities, counties, and special districts across
the country; the District Attorneys of Sacramento and San Diego Coun-
ties, the California State Sheriffs’ Association, the California Police
Chiefs Association, and the Washington State Association of Sheriffs and
Police Chiefs; California Governor Gavin Newsom and San Francisco
Mayor London Breed; and a group of 20 States: Alabama, Alaska, Ar-
kansas, Florida, Idaho, Indiana, Kansas, Louisiana, Mississippi, Mis-
souri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina,
South Dakota, Texas, Utah, Virginia, and West Virginia.
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Opinion of the Court
II
A
The Constitution and its Amendments impose a number
of limits on what governments in this country may declare
to be criminal behavior and how they may go about enforc-
ing their criminal laws. Familiarly, the First Amendment
prohibits governments from using their criminal laws to
abridge the rights to speak, worship, assemble, petition,
and exercise the freedom of the press. The Equal Protection
Clause of the Fourteenth Amendment prevents govern-
ments from adopting laws that invidiously discriminate be-
tween persons. The Due Process Clauses of the Fifth and
Fourteenth Amendments ensure that officials may not dis-
place certain rules associated with criminal liability that
are “so old and venerable,” “‘so rooted in the traditions and
conscience of our people[,] as to be ranked as fundamental.’”
Kahler v. Kansas, 589 U. S. 271, 279 (2020) (quoting Leland
v. Oregon, 343 U. S. 790, 798 (1952)). The Fifth and Sixth
Amendments require prosecutors and courts to observe var-
ious procedures before denying any person of his liberty,
promising for example that every person enjoys the right to
confront his accusers and have serious criminal charges re-
solved by a jury of his peers. One could go on.
But if many other constitutional provisions address what
a government may criminalize and how it may go about se-
curing a conviction, the Eighth Amendment’s prohibition
against “cruel and unusual punishments” focuses on what
happens next. That Clause “has always been considered,
and properly so, to be directed at the method or kind of pun-
ishment” a government may “impos[e] for the violation of
criminal statutes.” Powell v. Texas, 392 U. S. 514, 531–532
(1968) (plurality opinion).
We have previously discussed the Clause’s origins and
meaning. In the 18th century, English law still “formally
tolerated” certain barbaric punishments like “disembowel-
ing, quartering, public dissection, and burning alive,” even
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16 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
though those practices had by then “fallen into disuse.”
Bucklew v. Precythe, 587 U. S. 119, 130 (2019) (citing 4 W.
Blackstone, Commentaries on the Laws of England 370
(1769) (Blackstone)). The Cruel and Unusual Punishments
Clause was adopted to ensure that the new Nation would
never resort to any of those punishments or others like
them. Punishments like those were “cruel” because they
were calculated to “‘superad[d]’” “‘terror, pain, or dis-
grace.’” 587 U. S., at 130 (quoting 4 Blackstone 370). And
they were “unusual” because, by the time of the Amend-
ment’s adoption, they had “long fallen out of use.” 587 U. S.,
at 130. Perhaps some of those who framed our Constitution
thought, as Justice Story did, that a guarantee against
those kinds of “atrocious” punishments would prove “unnec-
essary” because no “free government” would ever employ
anything like them. 3 J. Story, Commentaries on the Con-
stitution of the United States §1896, p. 750 (1833). But in
adopting the Eighth Amendment, the framers took no
chances.
All that would seem to make the Eighth Amendment a
poor foundation on which to rest the kind of decree the
plaintiffs seek in this case and the Ninth Circuit has en-
dorsed since Martin. The 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 or how it
may go about securing a conviction for that offense. Powell,
392 U. S., at 531–532. To the extent the Constitution
speaks to those other matters, it does so, as we have seen,
in other provisions.
Nor, focusing on the criminal punishments Grant Pass
imposes, can we say they qualify as cruel and unusual. Re-
call that, under the city’s ordinances, an initial offense may
trigger a civil fine. Repeat offenses may trigger an order
temporarily barring an individual from camping in a public
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Opinion of the Court
park. Only those who later violate an order like that may
face a criminal punishment of up to 30 days in jail and a
larger fine. See Part I–C, supra. None of the city’s sanc-
tions qualifies as cruel because none is designed to “su-
perad[d]” “terror, pain, or disgrace.” Bucklew, 587 U. S., at
130 (internal quotation marks omitted). Nor are the city’s
sanctions unusual, because similar punishments have been
and remain among “the usual mode[s]” for punishing of-
fenses throughout the country. Pervear v. Commonwealth,
5 Wall. 475, 480 (1867); see 4 Blackstone 371–372; Timbs v.
Indiana, 586 U. S. 146, 165 (2019) (Thomas J., concurring
in judgment) (describing fines as “‘the drudge-horse of
criminal justice, probably the most common form of punish-
ment’” (some internal quotation marks omitted)). In fact,
large numbers of cities and States across the country have
long employed, and today employ, similar punishments for
similar offenses. See Part I–A, supra; Brief for Professor
John F. Stinneford as Amicus Curiae 7–13 (collecting his-
torical and contemporary examples). Notably, neither the
plaintiffs nor the dissent meaningfully contests any of this.
See Brief for Respondents 40.4
B
Instead, the plaintiffs and the dissent pursue an entirely
different theory. They do not question that, by its terms,
the Cruel and Unusual Punishments Clause speaks to the
question what punishments may follow a criminal convic-
tion, not to antecedent questions like what a State may
criminalize or how it may go about securing a conviction.
Yet, echoing the Ninth Circuit in Martin, they insist one
notable exception exists.
——————
4This Court has never held that the Cruel and Unusual Punishments
Clause extends beyond criminal punishments to civil fines and orders,
see Ingraham v. Wright, 430 U. S. 651, 666–668 (1977), nor does this case
present any occasion to do so for none of the city’s sanctions defy the
Clause.
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18 CITY OF GRANTS PASS v. JOHNSON
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In Robinson v. California, 370 U. S. 660 (1962), the plain-
tiffs and the dissent observe, this Court addressed a chal-
lenge to a criminal conviction under a California statute
providing that “‘[n]o person shall . . . be addicted to the use
of narcotics.’” Ibid., n. 1. In response to that challenge, the
Court invoked the Cruel and Unusual Punishments Clause
to hold that California could not enforce its law making “the
‘status’ of narcotic addiction a criminal offense.” Id., at 666.
The Court recognized that “imprisonment for ninety days is
not, in the abstract, a punishment which is either cruel or
unusual.” Id., at 667. But, the Court reasoned, when pun-
ishing “‘status,’” “[e]ven one day in prison would be . . .
cruel and unusual.” Id., at 666–667.
In doing so, the Court stressed the limits of its decision.
It would have ruled differently, the Court said, if California
had sought to convict the defendant for, say, the knowing
or intentional “use of narcotics, for their purchase, sale, or
possession, or for antisocial or disorderly behavior resulting
from their administration.” Id., at 666. In fact, the Court
took pains to emphasize that it did not mean to cast doubt
on the States’ “broad power” to prohibit behavior like that,
even by those, like the defendant, who suffered from addic-
tion. Id., at 664, 667–668. The only problem, as the Court
saw it, was that California’s law did not operate that way.
Instead, it made the mere status of being an addict a crime.
Id., at 666–667. And it was that feature of the law, the
Court held, that went too far.
Reaching that conclusion under the banner of the Eighth
Amendment may have come as a surprise to the litigants.
Mr. Robinson challenged his conviction principally on the
ground that it offended the Fourteenth Amendment’s guar-
antee of due process of law. As he saw it, California’s law
violated due process because it purported to make unlawful
a “status” rather than the commission of any “volitional
act.” See Brief for Appellant in Robinson v. California,
O. T. 1961, No. 61–554, p. 13 (Robinson Brief ).
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That framing may have made some sense. Our due pro-
cess jurisprudence has long taken guidance from the “set-
tled usage[s] . . . in England and in this country.” Hurtado
v. California, 110 U. S. 516, 528 (1884); see also Kahler, 589
U. S., at 279. And, historically, crimes in England and this
country have usually required proof of some act (or actus
reus) undertaken with some measure of volition (mens rea).
At common law, “a complete crime” generally required
“both a will and an act.” 4 Blackstone 21. This view “took
deep and early root in American soil” where, to this day, a
crime ordinarily arises “only from concurrence of an evil-
meaning mind with an evil-doing hand.” Morissette v.
United States, 342 U. S. 246, 251–252 (1952). Measured
against these standards, California’s law was an anomaly,
as it required proof of neither of those things.
Mr. Robinson’s resort to the Eighth Amendment was
comparatively brief. He referenced it only in passing, and
only for the proposition that forcing a drug addict like him-
self to go “‘cold turkey’” in a jail cell after conviction en-
tailed such “intense mental and physical torment” that it
was akin to “the burning of witches at the stake.” Robinson
Brief 30. The State responded to that argument with barely
a paragraph of analysis, Brief for Appellee in Robinson v.
California, O. T. 1961, No. 61–554, pp. 22–23, and it re-
ceived virtually no attention at oral argument. By almost
every indication, then, Robinson was set to be a case about
the scope of the Due Process Clause, or perhaps an Eighth
Amendment case about whether forcing an addict to with-
draw from drugs after conviction qualified as cruel and un-
usual punishment.
Of course, the case turned out differently. Bypassing Mr.
Robinson’s primary Due Process Clause argument, the
Court charted its own course, reading the Cruel and Unu-
sual Punishments Clause to impose a limit not just on what
punishments may follow a criminal conviction but what a
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20 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
State may criminalize to begin with. It was a view unprec-
edented in the history of the Court before 1962. In dissent,
Justice White lamented that the majority had embraced an
“application of ‘cruel and unusual punishment’ so novel
that” it could not possibly be “ascribe[d] to the Framers of
the Constitution.” 370 U. S., at 689. Nor, in the 62 years
since Robinson, has this Court once invoked it as authority
to decline the enforcement of any criminal law, leaving the
Eighth Amendment instead to perform its traditional func-
tion of addressing the punishments that follow a criminal
conviction.
Still, no one has asked us to reconsider Robinson. Nor do
we see any need to do so today. Whatever its persuasive
force as an interpretation of the Eighth Amendment, it can-
not sustain the Ninth Circuit’s course since Martin. In Rob-
inson, the Court expressly recognized the “broad power”
States enjoy over the substance of their criminal laws,
stressing that they may criminalize knowing or intentional
drug use even by those suffering from addiction. 370 U. S.,
at 664, 666. The Court held only that a State may not crim-
inalize the “‘status’” of being an addict. Id., at 666. In crim-
inalizing a mere status, Robinson stressed, California had
taken a historically anomalous approach toward criminal
liability. One, in fact, this Court has not encountered since
Robinson itself.
Public camping ordinances like those before us are noth-
ing like the law at issue in Robinson. Rather than crimi-
nalize mere status, Grants Pass forbids actions like “oc-
cupy[ing] a campsite” on public property “for the purpose of
maintaining a temporary place to live.” Grants Pass Mu-
nicipal Code §§5.61.030, 5.61.010; App. to Pet. for Cert.
221a–222a. Under the city’s laws, it makes no difference
whether the charged defendant is homeless, a backpacker
on vacation passing through town, or a student who aban-
dons his dorm room to camp out in protest on the lawn of a
municipal building. See Part I–C, supra; Blake v. Grants
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Pass, No. 1:18–cv–01823 (D Ore.), ECF Doc. 63–4, pp. 2, 16;
Tr. of Oral Arg. 159. In that respect, the city’s laws parallel
those found in countless jurisdictions across the country.
See Part I–A, supra. And because laws like these do not
criminalize mere status, Robinson is not implicated.5
C
If Robinson does not control this case, the plaintiffs and
the dissent argue, we should extend it so that it does. Per-
haps a person does not violate ordinances like Grants Pass’s
simply by being homeless but only by engaging in certain
acts (actus rei) with certain mental states (mentes reae).
Still, the plaintiffs and the dissent insist, laws like these
seek to regulate actions that are in some sense “involun-
tary,” for some homeless persons cannot help but do what
the law forbids. See Brief for Respondents 24–25, 29, 32;
post, at 16–17 (opinion of SOTOMAYOR, J.). And, the plain-
tiffs and the dissent continue, we should extend Robinson
to prohibit the enforcement of laws that operate this way—
laws that don’t proscribe status as such but that proscribe
acts, even acts undertaken with some required mental
state, the defendant cannot help but undertake. Post, at
16–17. To rule otherwise, the argument goes, would “‘effec-
tively’” allow cities to punish a person because of his status.
Post, at 25. The Ninth Circuit pursued just this line of
thinking below and in Martin.
The problem is, this Court has already rejected that view.
——————
5At times, the dissent seems to suggest, mistakenly, that laws like
Grants Pass’s apply only to the homeless. See post, at 13. That view
finds no support in the laws before us. Perhaps the dissent means to suggest that some cities selectively “enforce” their public-camping laws
only against homeless persons. See post, at 17–19. But if that’s the dis-
sent’s theory, it is not one that arises under the Eighth Amendment’s
Cruel and Unusual Punishments Clause. Instead, if anything, it may
implicate due process and our precedents regarding selective prosecu-
tion. See, e.g., United States v. Armstrong, 517 U. S. 456 (1996). No
claim like that is before us in this case.
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In Powell v. Texas, 392 U. S. 514 (1968), the Court con-
fronted a defendant who had been convicted under a Texas
statute making it a crime to “‘get drunk or be found in a
state of intoxication in any public place.’” Id., at 517 (plu-
rality opinion). Like the plaintiffs here, Mr. Powell argued
that his drunkenness was an “‘involuntary’” byproduct of
his status as an alcoholic. Id., at 533. Yes, the statute re-
quired proof of an act (becoming drunk or intoxicated and
then proceeding into public), and perhaps some associated
mental state (for presumably the defendant knew he was
drinking and maybe even knew he made his way to a public
place). Still, Mr. Powell contended, Texas’s law effectively
criminalized his status as an alcoholic because he could not
help but doing as he did. Ibid. Justice Fortas embraced
that view, but only in dissent: He would have extended
Robinson to cover conduct that flows from any “condition
[the defendant] is powerless to change.” 392 U. S., at 567
(Fortas, J., dissenting).
The Court did not agree. Writing for a plurality, Justice
Marshall observed that Robinson had authorized “a very
small” intrusion by courts “into the substantive criminal
law” “under the aegis of the Cruel and Unusual Punish-
ment[s] Clause.” 392 U. S., at 533. That small intrusion,
Justice Marshall said, prevents States only from enforcing
laws that criminalize “a mere status.” Id., at 532. It does
nothing to curtail a State’s authority to secure a conviction
when “the accused has committed some act . . . society has
an interest in preventing.” Id., at 533. That remains true,
Justice Marshall continued, regardless whether the defend-
ant’s act “in some sense” might be described as “‘involun-
tary’ or ‘occasioned by’” a particular status. Ibid. (emphasis
added). In this, Justice Marshall echoed Robinson itself,
where the Court emphasized that California remained free
to criminalize intentional or knowing drug use even by ad-
dicts whose conduct, too, in some sense could be considered
involuntary. See Robinson, 370 U. S., at 664, 666. Based
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Opinion of the Court
on all this, Justice Marshall concluded, because the defend-
ant before the Court had not been convicted “for being” an
“alcoholic, but for [engaging in the act of] being in public
while drunk on a particular occasion,” Robinson did not ap-
ply. Powell, 392 U. S., at 532.6
This case is no different from Powell. Just as there, the
plaintiffs here seek to expand Robinson’s “small” intrusion
“into the substantive criminal law.” Just as there, the
plaintiffs here seek to extend its rule beyond laws address-
ing “mere status” to laws addressing actions that, even if
undertaken with the requisite mens rea, might “in some
sense” qualify as “‘involuntary.’” And just as Powell could
find nothing in the Eighth Amendment permitting that
course, neither can we. As we have seen, Robinson already
sits uneasily with the Amendment’s terms, original mean-
ing, and our precedents. Its holding is restricted to laws
that criminalize “mere status.” Nothing in the decision
called into question the “broad power” of States to regulate
acts undertaken with some mens rea. And, just as in Pow-
ell, we discern nothing in the Eighth Amendment that
might provide us with lawful authority to extend Robinson
beyond its narrow holding.
——————
6Justice White, who cast the fifth vote upholding the conviction, con-
curred in the result. Writing only for himself, Justice White expressed
some sympathy for Justice Fortas’s theory, but ultimately deemed that
“novel construction” of the Eighth Amendment “unnecessary to pursue”
because the defendant hadn’t proven that his alcoholism made him “un-
able to stay off the streets on the night in question.” 392 U. S., at 552,
n. 4, 553–554 (White, J., concurring in result). In Martin, the Ninth Cir-
cuit suggested Justice White’s solo concurrence somehow rendered the
Powell dissent controlling and the plurality a dissent. See Martin v.
Boise, 920 F. 3d 584, 616–617 (2019). Before us, neither the plaintiffs
nor the dissent defend that theory, and for good reason: In the years
since Powell, this Court has repeatedly relied on Justice Marshall’s opin-
ion, as we do today. See, e.g., Kahler v. Kansas, 589 U. S. 271, 280 (2020);
Clark v. Arizona, 548 U. S. 735, 768, n. 38 (2006); Jones v. United States,
463 U. S. 354, 365, n. 13 (1983).
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To be sure, and once more, a variety of other legal doc-
trines and constitutional provisions work to protect those in
our criminal justice system from a conviction. Like some
other jurisdictions, Oregon recognizes a “necessity” defense
to certain criminal charges. It may be that defense extends
to charges for illegal camping when it comes to those with
nowhere else to go. See State v. Barrett, 302 Ore. App. 23,
28, 460 P. 3d 93, 96 (2020) (citing Ore. Rev. Stat. §161.200).
Insanity, diminished-capacity, and duress defenses also
may be available in many jurisdictions. See Powell, 392
U. S., at 536. States and cities are free as well to add addi-
tional substantive protections. Since this litigation began,
for example, Oregon itself has adopted a law specifically ad-
dressing how far its municipalities may go in regulating
public camping. See, e.g., Ore. Rev. Stat. §195.530(2)
(2023). For that matter, nothing in today’s decision pre-
vents States, cities, and counties from going a step further
and declining to criminalize public camping altogether. For
its part, the Constitution provides many additional limits
on state prosecutorial power, promising fair notice of the
laws and equal treatment under them, forbidding selective
prosecutions, and much more besides. See Part II–A, supra;
and n. 5, supra. All this represents only a small sample of
the legion protections our society affords a presumptively
free individual from a criminal conviction. But aside from
Robinson, a case directed to a highly unusual law that con-
demned status alone, this Court has never invoked the
Eighth Amendment’s Cruel and Unusual Punishments
Clause to perform that function.
D
Not only did Powell decline to extend Robinson to “invol-
untary” acts, it stressed the dangers that would likely at-
tend any attempt to do so. Were the Court to pursue that
path in the name of the Eighth Amendment, Justice Mar-
shall warned, “it is difficult to see any limiting principle
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Opinion of the Court
that would serve to prevent this Court from becoming . . .
the ultimate arbiter of the standards of criminal responsi-
bility, in diverse areas of the criminal law, throughout the
country.” Powell, 392 U. S., at 533. After all, nothing in the
Amendment’s text or history exists to “confine” or guide our
review. Id., at 534. Unaided by those sources, we would be
left “to write into the Constitution” our own “formulas,”
many of which would likely prove unworkable in practice.
Id., at 537. Along the way, we would interfere with “essen-
tial considerations of federalism” that reserve to the States
primary responsibility for drafting their own criminal laws.
Id., at 535.
In particular, Justice Marshall observed, extending Rob-
inson to cover involuntary acts would effectively “impe[l]”
this Court “into defining” something akin to a new “insanity
test in constitutional terms.” 392 U. S., at 536. It would
because an individual like the defendant in Powell does not
dispute that he has committed an otherwise criminal act
with the requisite mens rea, yet he seeks to be excused from
“moral accountability” because of his “‘condition.’” Id., at
535–536. And “[n]othing,” Justice Marshall said, “could be
less fruitful than for this Court” to try to resolve for the Na-
tion profound questions like that under a provision of the
Constitution that does not speak to them. Id., at 536. In-
stead, Justice Marshall reasoned, such matters are gener-
ally left to be resolved through “productive” democratic “di-
alogue” and “experimentation,” not by “freez[ing]” any
particular, judicially preferred approach “into a rigid con-
stitutional mold.” Id., at 537.
We recently reemphasized that last point in Kahler v.
Kansas in the context of a Due Process Clause challenge.
Drawing on Justice Marshall’s opinion in Powell, we
acknowledged that “a state rule about criminal liability”
may violate due process if it departs from a rule “so rooted
in the traditions” of this Nation that it might be said to
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26 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
“ran[k] as fundamental.” 589 U. S., at 279 (internal quota-
tion marks omitted). But, we stressed, questions about
whether an individual who has committed a proscribed act
with the requisite mental state should be “reliev[ed of] re-
sponsibility,” id., at 283, due to a lack of “moral culpability,”
id., at 286, are generally best resolved by the people and
their elected representatives. Those are questions, we said,
“of recurrent controversy” to which history supplies few “en-
trenched” answers, and on which the Constitution gener-
ally commands “no one view.” Id., at 296.
The Ninth Circuit’s Martin experiment defied these les-
sons. Under Martin, judges take from elected representa-
tives the questions whether and when someone who has
committed a proscribed act with a requisite mental state
should be “relieved of responsibility” for lack of “moral cul-
pability.” 598 U. S., at 283, 286. And Martin exemplifies
much of what can go wrong when courts try to resolve mat-
ters like those unmoored from any secure guidance in the
Constitution.
Start with this problem. Under Martin, cities must allow
public camping by those who are “involuntarily” homeless.
72 F. 4th, at 877 (citing Martin, 920 F. 3d, at 617, n. 8). 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 individu-
als who decline offers of shelter for any number of reasons,
ranging from safety concerns to individual preferences. See
Part I–A, supra. 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?
If there are answers to those questions, they cannot be
found in the Cruel and Unusual Punishments Clause. Nor
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do federal judges enjoy any special competence to provide
them. Cities across the West report that the Ninth Circuit’s
ill-defined involuntariness test has proven “unworkable.”
Oregon Cities Brief 3; see Phoenix Brief 11. The test, they
say, has left them “with little or no direction as to the scope
of their authority in th[eir] day-to-day policing contacts,”
California Sheriffs Brief 6, and under “threat of federal lit-
igation . . . at all times and in all circumstances,” Oregon
Cities Brief 6–7.
To be sure, Martin attempted to head off these complexi-
ties through some back-of-the-envelope arithmetic. The
Ninth Circuit said a city needs to consider individuals “in-
voluntarily” homeless (and thus entitled to camp on public
property) only when the overall homeless population ex-
ceeds the total number of “adequate” and “practically avail-
able” shelter beds. See 920 F. 3d, at 617–618, and n. 8. But
as sometimes happens with abstract rules created by those
far from the front lines, that test has proven all but impos-
sible to administer in practice.
City officials report that it can be “monumentally diffi-
cult” to keep an accurate accounting of those experiencing
homelessness on any given day. Los Angeles Cert. Brief 14.
Often, a city’s homeless population “fluctuate[s] dramati-
cally,” in part because homelessness is an inherently dy-
namic status. Brief for City of San Clemente as Amicus Cu-
riae 16 (San Clemente Brief ). While cities sometimes make
rough estimates based on a single point-in-time count, they
say it would be “impossibly expensive and difficult” to un-
dertake that effort with any regularity. Id., at 17. In Los
Angeles, for example, it takes three days to count the home-
less population block-by-block—even with the participation
of thousands of volunteers. Martin, 920 F. 3d, at 595
(Smith, J., dissenting from denial of rehearing en banc).
Beyond these complexities, more await. Suppose even
large cities could keep a running tally of their homeless cit-
izens forevermore. And suppose further that they could
Aug. 27, 2024 Item #3 Page 43 of 87
28 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
keep a live inventory of available shelter beds. Even so, cit-
ies face questions over which shelter beds count as “ade-
quate” and “available” under Martin. Id., at 617, and n. 8.
Rather than resolve the challenges associated with defining
who qualifies as “involuntarily” homeless, these standards
more nearly return us to them. Is a bed “available” to a
smoker if the shelter requires residents to abstain from nic-
otine, as the shelter in Grants Pass does? 72 F. 4th, at 896;
App. 39, Third Amended Complaint ¶13. Is a bed “availa-
ble” to an atheist if the shelter includes “religious” messag-
ing? 72 F. 4th, at 877. And how is a city to know whether
the accommodations it provides will prove “adequate” in
later litigation? 920 F. 3d, at 617, n. 8. Once more, a large
number of cities in the Ninth Circuit tell us they have no
way to be sure. See, e.g., Phoenix Brief 28; San Clemente
Brief 8–12; Brief for City of Los Angeles as Amicus Curiae
22–23 (“What may be available, appropriate, or actually
beneficial to one [homeless] person, might not be so to an-
other”).
Consider an example. The city of Chico, California,
thought it was complying with Martin when it constructed
an outdoor shelter facility at its municipal airport to accom-
modate its homeless population. Warren v. Chico, 2021 WL
2894648, *3 (ED Cal., July 8, 2021). That shelter, we are
told, included “protective fencing, large water totes, hand-
washing stations, portable toilets, [and] a large canopy for
shade.” Brief for City of Chico as Amicus Curiae on Pet. for
Cert. 16. Still, a district court enjoined the city from enforc-
ing its public-camping ordinance. Why? Because, in that
court’s view, “appropriate” shelter requires “‘indoo[r],’” not
outdoor, spaces. Warren, 2021 WL 2894648, *3 (quoting
Martin, 920 F. 3d, at 617). One federal court in Los Angeles
ruled, during the COVID pandemic, that “adequate” shelter
must also include nursing staff, testing for communicable
diseases, and on-site security, among other things. See LA
Alliance for Hum. Rights v. Los Angeles, 2020 WL 2512811,
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29 Cite as: 603 U. S. ____ (2024)
Opinion of the Court
*4 (CD Cal., May 15, 2020). By imbuing the availability of
shelter with constitutional significance in this way, many
cities tell us, Martin and its progeny have “paralyzed” com-
munities and prevented them from implementing even pol-
icies designed to help the homeless while remaining sensi-
tive to the limits of their resources and the needs of other
citizens. Cities Cert. Brief 4 (boldface and capitalization
deleted).
There are more problems still. The Ninth Circuit held
that “involuntarily” homeless individuals cannot be pun-
ished for camping with materials “necessary to protect
themselves from the elements.” 72 F. 4th, at 896. It sug-
gested, too, that cities cannot proscribe “life-sustaining
act[s]” that flow necessarily from homelessness. 72 F. 4th,
at 921 (joint statement of Silver and Gould, JJ., regarding
denial of rehearing). But how far does that go? The plain-
tiffs before us suggest a blanket is all that is required in
Grants Pass. Brief for Respondents 14. But might a colder
climate trigger a right to permanent tent encampments and
fires for warmth? Because the contours of this judicial right
are so “uncertai[n],” cities across the West have been left to
guess whether Martin forbids their officers from removing
everything from tents to “portable heaters” on city side-
walks. Brief for City of Phoenix et al. on Pet. for Cert. 19,
29 (Phoenix Cert. Brief ). There is uncertainty, as well, over
whether Martin requires cities to tolerate other acts no less
“attendant [to] survival” than sleeping, such as starting
fires to cook food and “public urination [and] defecation.”
Phoenix Cert. Brief 29–30; see also Mahoney v. Sacramento,
2020 WL 616302, *3 (ED Cal., Feb. 10, 2020) (indicating
that “the [c]ity may not prosecute or otherwise penalize the
[homeless] for eliminating in public if there is no alterna-
tive to doing so”). By extending Robinson beyond the nar-
row class of status crimes, the Ninth Circuit has created a
right that has proven “impossible” for judges to delineate
except “by fiat.” Powell, 392 U. S., at 534.
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30 CITY OF GRANTS PASS v. JOHNSON
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Doubtless, the Ninth Circuit’s intervention in Martin was
well-intended. But since the trial court entered its injunc-
tion against Grants Pass, the city shelter reports that utili-
zation of its resources has fallen by roughly 40 percent. See
Brief for Grants Pass Gospel Rescue Mission as Amicus Cu-
riae 4–5. Many other cities offer similar accounts about
their experiences after Martin, telling us the decision has
made it more difficult, not less, to help the homeless accept
shelter off city streets. See Part I–B, supra (recounting ex-
amples). Even when “policymakers would prefer to invest
in more permanent” programs and policies designed to ben-
efit homeless and other citizens, Martin has forced these
“overwhelmed jurisdictions to concentrate public resources
on temporary shelter beds.” Cities Brief 25; see Oregon Cit-
ies Brief 17–20; States Brief 16–17. As a result, cities re-
port, Martin has undermined their efforts to balance con-
flicting public needs and mired them in litigation at a time
when the homelessness crisis calls for action. See States
Brief 16–17.
All told, the Martin experiment is perhaps just what Jus-
tice Marshall anticipated ones like it would be. The Eighth
Amendment provides no guidance to “confine” judges in de-
ciding what conduct a State or city may or may not pro-
scribe. Powell, 392 U. S., at 534. Instead of encouraging
“productive dialogue” and “experimentation” through our
democratic institutions, courts have frozen in place their
own “formulas” by “fiat.” Id., at 534, 537. Issued by federal
courts removed from realities on the ground, those rules
have produced confusion. And they have interfered with
“essential considerations of federalism,” taking from the
people and their elected leaders difficult questions tradi-
tionally “thought to be the[ir] province.” Id., at 535–536.7
——————
7The dissent suggests we cite selectively to the amici and “see only
what [we] wan[t]” in their briefs. Post, at 24. In fact, all the States,
cities, and counties listed above (n. 3, supra) asked us to review this case.
Among them all, the dissent purports to identify just two public officials
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Opinion of the Court
E
Rather than address what we have actually said, the dis-
sent accuses us of extending to local governments an “un-
fettered freedom to punish,” post, at 25, and stripping away
any protections “the Constitution” has against “criminaliz-
ing sleeping,” post, at 5. “Either stay awake,” the dissent
warns, “or be arrested.” Post, at 2. That is gravely mis-
taken. We hold nothing of the sort. As we have stressed,
cities and States are not bound to adopt public-camping
laws. They may also choose to narrow such laws (as Oregon
itself has recently). Beyond all that, many substantive le-
gal protections and provisions of the Constitution may have
important roles to play when States and cities seek to en-
force their laws against the homeless. See Parts II–A, II–
C, supra. The only question we face is whether one specific
provision of the Constitution—the Cruel and Unusual Pun-
ishments Clause of the Eighth Amendment—prohibits the
enforcement of public-camping laws.
Nor does the dissent meaningfully engage with the rea-
sons we have offered for our conclusion on that question. It
claims that we “gratuitously” treat Robinson “as an outlier.”
Post, at 12, and n. 2. But the dissent does not dispute that
——————
and two cities that, according to the dissent, support its view. Post, at
24–25. But even among that select group, the dissent overlooks the fact
that each expresses strong dissatisfaction with how Martin has been ap-
plied in practice. See San Francisco Brief 15, 26 (“[T]he Ninth Circuit
and its lower courts have repeatedly misapplied and overextended the
Eighth Amendment” and “hamstrung San Francisco’s balanced approach
to addressing the homelessness crisis”); Brief for City of Los Angeles as
Amicus Curiae 6 (“[T]he sweeping rationale in Martin . . . calls into ques-
tion whether cities can enforce public health and safety laws”); California
Governor Brief 3 (“In the wake of Martin, lower courts have blocked ef-
forts to clear encampments while micromanaging what qualifies as a
suitable offer of shelter”). And for all the reasons we have explored and
so many other cities have suggested, we see no principled basis under
the Eighth Amendment for federal judges to administer anything like
Martin.
Aug. 27, 2024 Item #3 Page 47 of 87
32 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
the law Robinson faced was an anomaly, punishing mere
status. The dissent does not dispute that Robinson’s deci-
sion to address that law under the rubric of the Eighth
Amendment is itself hard to square with the Amendment’s
text and this Court’s other precedents interpreting it. And
the dissent all but ignores Robinson’s own insistence that a
different result would have obtained in that case if the law
there had proscribed an act rather than status alone.
Tellingly, too, the dissent barely mentions Justice Mar-
shall’s opinion in Powell. There, reasoning exactly as we do
today, Justice Marshall refused to extend Robinson to ac-
tions undertaken, “in some sense, ‘involuntar[ily].’” 392
U. S., at 533. Rather than confront any of this, the dissent
brusquely calls Powell a “strawman” and seeks to distin-
guish it on the inscrutable ground that Grants Pass penal-
izes “status[-defining]” (rather than “involuntary”) conduct.
Post, at 23. But whatever that might mean, it is no answer
to the reasoning Justice Marshall offered, to its obvious rel-
evance here, or to the fact this Court has since endorsed
Justice Marshall’s reasoning as correct in cases like Kahler
and Jones, cases that go undiscussed in the dissent. See
n. 6, supra. The only extraordinary result we might reach
in this case is one that would defy Powell, ignore the histor-
ical reach of the Eighth Amendment, and transform Robin-
son’s narrow holding addressing a peculiar law punishing
status alone into a new rule that would bar the enforcement
of laws that are, as the dissent puts it, “‘pervasive’”
throughout the country. Post, at 15; Part I–A, supra.
To be sure, the dissent seeks to portray the new rule it
advocates as a modest, “limited,” and “narrow” one address-
ing only those who wish to fulfill a “biological necessity” and
“keep warm outside with a blanket” when they have no
other “adequate” place “to go.” Post, at 1, 5, 10, 21, 24. But
that reply blinks the difficult questions that necessarily fol-
low and the Ninth Circuit has been forced to confront:
What does it mean to be “involuntarily” homeless with “no
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Opinion of the Court
place to go”? What kind of “adequate” shelter must a city
provide to avoid being forced to allow people to camp in its
parks and on its sidewalks? And what are people entitled
to do and use in public spaces to “keep warm” and fulfill
other “biological necessities”?8
Those unavoidable questions have plunged courts and
cities across the Ninth Circuit into waves of litigation. And
without anything in the Eighth Amendment to guide them,
any answers federal judges can offer (and have offered)
come, as Justice Marshall foresaw, only by way of “fiat.”
Powell, 392 U. S., at 534. The dissent cannot escape that
hard truth. Nor can it escape the fact that, far from nar-
rowing Martin, it would expand its experiment from one cir-
cuit to the entire country—a development without any prec-
edent in this Court’s history. One that would authorize
——————
8The dissent brushes aside these questions, declaring that “available
answers” exist in the decisions below. Post, at 22. But the dissent misses
the point. The problem, as Justice Marshall discussed, is not that it is
impossible for someone to dictate answers to these questions. The prob-
lem is that nothing in the Eighth Amendment gives federal judges the
authority or guidance they need to answer them in a principled way.
Take just two examples. First, the dissent says, a city seeking to ban
camping must provide “adequate” shelter for those with “no place to go.”
Post, at 21–22. But it never says what qualifies as “adequate” shelter.
Ibid. And, as we have seen, cities and courts across the Ninth Circuit
have struggled mightily with that question, all with nothing in the
Eighth Amendment to guide their work. Second, the dissent seems to
think that, if a city lacks enough “adequate” shelter, it must permit “‘bed-
ding’” in public spaces, but not campfires, tents, or “‘public urination or
defecation.’ ” Post, at 15, 21–22, 24. But where does that rule come from,
the federal register? See post, at 22. After Martin, again as we have
seen, many courts have taken a very different view. The dissent never
explains why it disagrees with those courts. Instead, it merely quotes
the district court’s opinion in this case that announced a rule it seems
the dissent happens to prefer. By elevating Martin over our own prece-
dents and the Constitution’s original public meaning, the dissent faces
difficult choices that cannot be swept under the rug—ones that it can resolve not by anything found in the Eighth Amendment, only by fiat.
Aug. 27, 2024 Item #3 Page 49 of 87
34 CITY OF GRANTS PASS v. JOHNSON
Opinion of the Court
federal judges to freeze into place their own rules on mat-
ters long “thought to be the province” of state and local lead-
ers, id., at 536, and one that would deny communities the
“wide latitude” and “flexibility” even the dissent acknowl-
edges they need to address the homelessness crisis, post, at
2, 5.
III
Homelessness is complex. Its causes are many. So may
be the public policy responses required to address it. At
bottom, the question this case presents is whether the
Eighth Amendment grants federal judges primary respon-
sibility for assessing those causes and devising those re-
sponses. It does not. Almost 200 years ago, a visitor to this
country remarked upon the “extreme skill with which the
inhabitants of the United States succeed in proposing a
common object to the exertions of a great many men, and in
getting them voluntarily to pursue it.” 2 A. de Tocqueville,
Democracy in America 129 (H. Reeve transl. 1961). If the
multitude of amicus briefs before us proves one thing, it is
that the American people are still at it. Through their vol-
untary associations and charities, their elected representa-
tives and appointed officials, their police officers and men-
tal health professionals, they display that same energy and
skill today in their efforts to address the complexities of the
homelessness challenge facing the most vulnerable among
us.
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.
Robinson, 370 U. S., at 689 (White, J., dissenting). The
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35 Cite as: 603 U. S. ____ (2024)
Opinion of the Court
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 this Nation’s homelessness policy.
The judgment below is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
Aug. 27, 2024 Item #3 Page 51 of 87
_________________
_________________
1 Cite as: 603 U. S. ____ (2024)
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 23–175
CITY OF GRANTS PASS, OREGON, PETITIONER v.
GLORIA JOHNSON, ET AL., ON BEHALF
OF THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 28, 2024]
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full because it correctly re-
jects the respondents’ claims under the Cruel and Unusual
Punishments Clause. As the Court observes, that Clause
“focuses on the question what method or kind of punish-
ment a government may impose after a criminal convic-
tion.” Ante, at 16 (internal quotation marks omitted). The
respondents, by contrast, ask whether Grants Pass “may
criminalize particular behavior in the first place.” Ibid. I
write separately to make two additional observations about
the respondents’ claims.
First, the precedent that the respondents primarily rely
upon, Robinson v. California, 370 U. S. 660 (1962), was
wrongly decided. In Robinson, the Court held that the
Cruel and Unusual Punishments Clause prohibits the en-
forcement of laws criminalizing a person’s status. Id., at
666. That holding conflicts with the plain text and history
of the Cruel and Unusual Punishments Clause. See ante,
at 15–16. That fact is unsurprising given that the Robinson
Court made no attempt to analyze the Eighth Amendment’s
text or discern its original meaning. Instead, Robinson’s
holding rested almost entirely on the Court’s understand-
ing of public opinion: The Robinson Court observed that “in
Aug. 27, 2024 Item #3 Page 52 of 87
2 CITY OF GRANTS PASS v. JOHNSON
THOMAS, J., concurring
the light of contemporary human knowledge, a law which
made a criminal offense of . . . a disease [such as narcotics
addiction] would doubtless be universally thought to be an
infliction of cruel and unusual punishment in violation of
the Eighth and Fourteenth Amendments.” 370 U. S., at
666. Modern public opinion is not an appropriate metric for
interpreting the Cruel and Unusual Punishments Clause—
or any provision of the Constitution for that matter.
Much of the Court’s other Eighth Amendment precedents
make the same mistake. Rather than interpret our written
Constitution, the Court has at times “proclaim[ed] itself
sole arbiter of our Nation’s moral standards,” Roper v. Sim-
mons, 543 U. S. 551, 608 (2005) (Scalia, J., dissenting), and
has set out to enforce “evolving standards of decency,” Trop
v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion). “In a
system based upon constitutional and statutory text demo-
cratically adopted, the concept of ‘law’ ordinarily signifies
that particular words have a fixed meaning.” Roper, 543
U. S., at 629 (opinion of Scalia, J.). I continue to believe
that we should adhere to the Cruel and Unusual Punish-
ments Clause’s fixed meaning in resolving any challenge
brought under it.
To be sure, we need not reconsider Robinson to resolve
this case. As the Court explains, the challenged ordinances
regulate conduct, not status, and thus do not implicate Rob-
inson. Ante, at 20–21. Moreover, it is unclear what, if any,
weight Robinson carries. The Court has not once applied
Robinson’s interpretation of the Cruel and Unusual Pun-
ishments Clause. And, today the Court rightly questions
the decision’s “persuasive force.” Ante, at 20. Still, rather
than let Robinson’s erroneous holding linger in the back-
ground of our Eighth Amendment jurisprudence, we should
dispose of it once and for all. In an appropriate case, the
Court should certainly correct this error.
Second, the respondents have not established that their
claims implicate the Cruel and Unusual Punishments
Aug. 27, 2024 Item #3 Page 53 of 87
3 Cite as: 603 U. S. ____ (2024)
THOMAS, J., concurring
Clause in the first place. The challenged ordinances are en-
forced through the imposition of civil fines and civil park
exclusion orders, as well as through criminal trespass
charges. But, “[a]t the time the Eighth Amendment was
ratified, the word ‘punishment’ referred to the penalty im-
posed for the commission of a crime.” Helling v. McKinney,
509 U. S. 25, 38 (1993) (THOMAS, J., dissenting); see ante,
at 15–16. The respondents have yet to explain how the civil
fines and park exclusion orders constitute a “penalty im-
posed for the commission of a crime.” Helling, 509 U. S., at
38.
For its part, the Court of Appeals concluded that the
Cruel and Unusual Punishments Clause governs these civil
penalties because they can “later . . . become criminal of-
fenses.” 72 F. 4th 868, 890 (CA9 2023). But, that theory
rests on layer upon layer of speculation. It requires reason-
ing that because violating one of the ordinances “could re-
sult in civil citations and fines, [and] repeat violators could
be excluded from specified City property, and . . . violating
an exclusion order could subject a violator to criminal tres-
pass prosecution,” civil fines and park exclusion orders
therefore must be governed by the Cruel and Unusual Pun-
ishments Clause. Id., at 926 (O’Scannlain, J., statement
respecting denial of rehearing en banc) (emphasis added).
And, if this case is any indication, the possibility that a civil
fine turns into a criminal trespass charge is a remote one.
The respondents assert that they have been involuntarily
homeless in Grants Pass for years, yet they have never re-
ceived a park exclusion order, much less a criminal trespass
charge. See ante, at 11.
Because the respondents’ claims fail either way, the
Court does not address the merits of the Court of Appeals’
theory. See ante, at 16–17, and n. 4. Suffice it to say, we
have never endorsed such a broad view of the Cruel and
Unusual Punishments Clause. Both this Court and lower
courts should be wary of expanding the Clause beyond its
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4 CITY OF GRANTS PASS v. JOHNSON
THOMAS, J., concurring
text and original meaning.
Aug. 27, 2024 Item #3 Page 55 of 87
_________________
_________________
1 Cite as: 603 U. S. ____ (2024)
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 23–175
CITY OF GRANTS PASS, OREGON, PETITIONER v.
GLORIA JOHNSON, ET AL., ON BEHALF
OF THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 28, 2024]
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and
JUSTICE JACKSON join, dissenting.
Sleep is a biological necessity, not a crime. For some peo-
ple, sleeping outside is their only option. The City of Grants
Pass jails and fines those people for sleeping anywhere in
public at any time, including in their cars, if they use as
little as a blanket to keep warm or a rolled-up shirt as a
pillow. For people with no access to shelter, that punishes
them for being homeless. That is unconscionable and un-
constitutional. Punishing people for their status is “cruel
and unusual” under the Eighth Amendment. See Robinson
v. California, 370 U. S. 660 (1962).
Homelessness is a reality for too many Americans. On
any given night, over half a million people across the coun-
try lack a fixed, regular, and adequate nighttime residence.
Many do not have access to shelters and are left to sleep in
cars, sidewalks, parks, and other public places. They expe-
rience homelessness due to complex and interconnected is-
sues, including crippling debt and stagnant wages; domes-
tic and sexual abuse; physical and psychiatric disabilities;
and rising housing costs coupled with declining affordable
housing options.
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2 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
At the same time, States and cities face immense chal-
lenges in responding to homelessness. To address these
challenges and provide for public health and safety, local
governments need wide latitude, including to regulate
when, where, and how homeless people sleep in public. The
decision below did, in fact, leave cities free to punish “litter-
ing, public urination or defecation, obstruction of roadways,
possession or distribution of illicit substances, harassment,
or violence.” App. to Pet. for Cert. 200a. The only question
for the Court today is whether the Constitution permits
punishing homeless people with no access to shelter for
sleeping in public with as little as a blanket to keep warm.
It is possible to acknowledge and balance the issues fac-
ing local governments, the humanity and dignity of home-
less people, and our constitutional principles. Instead, the
majority focuses almost exclusively on the needs of local
governments and leaves the most vulnerable in our society
with an impossible choice: Either stay awake or be arrested.
The Constitution provides a baseline of rights for all Amer-
icans rich and poor, housed and unhoused. This Court must
safeguard those rights even when, and perhaps especially
when, doing so is uncomfortable or unpopular. Otherwise,
“the words of the Constitution become little more than good
advice.” Trop v. Dulles, 356 U. S. 86, 104 (1958) (plurality
opinion).
I
The causes, consequences, and experiences of homeless-
ness are complex and interconnected. The majority paints
a picture of “cities across the American West” in “crisis”
that are using criminalization as a last resort. Ante, at 1.
That narrative then animates the majority’s reasoning.
This account, however, fails to engage seriously with the
precipitating causes of homelessness, the damaging effects
of criminalization, and the myriad legitimate reasons peo-
ple may lack or decline shelter.
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SOTOMAYOR, J., dissenting
A
Over 600,000 people experience homelessness in America
on any given night, meaning that they lack “a fixed, regu-
lar, and adequate nighttime residence.” Dept. of Housing
and Urban Development, T. de Sousa et al., The 2023 An-
nual Homeless Assessment Report to Congress 4 (2023
AHAR). These people experience homelessness in different
ways. Although 6 in 10 are able to secure shelter beds, the
remaining 4 in 10 are unsheltered, sleeping “in places not
meant for human habitation,” such as sidewalks, aban-
doned buildings, bus or train stations, camping grounds,
and parked vehicles. See id., at 2. “Some sleep alone in
public places, without any physical structures (like tents or
shacks) or connection to services. Others stay in encamp-
ments, which generally refer to groups of people living sem-
ipermanently in tents or other temporary structures in a
public space.” Brief for California as Amicus Curiae 6 (Cal-
ifornia Brief ) (citation omitted). This is in part because
there has been a national “shortage of 188,000 shelter beds
for individual adults.” Brief for Service Providers as Amici
Curiae 8 (Service Providers Brief ).
People become homeless for many reasons, including
some beyond their control. “[S]tagnant wages and the lack
of affordable housing” can mean some people are one unex-
pected medical bill away from being unable to pay rent.
Brief for Public Health Professionals and Organizations as
Amici Curiae 3. Every “$100 increase in median rental
price” is “associated with about a 9 percent increase in the
estimated homelessness rate.” GAO, A. Cackley, Homeless-
ness: Better HUD Oversight of Data Collection Could Im-
prove Estimates of Homeless Populations 30 (GAO–20–433,
2020). Individuals with disabilities, immigrants, and vet-
erans face policies that increase housing instability. See
California Brief 7. Natural disasters also play a role, in-
cluding in Oregon, where increasing numbers of people
Aug. 27, 2024 Item #3 Page 58 of 87
4 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
“have lost housing because of climate events such as ex-
treme wildfires across the state, floods in the coastal areas,
[and] heavy snowstorms.” 2023 AHAR 52. Further, “men-
tal and physical health challenges,” and family and domes-
tic “violence and abuse” can be precipitating causes of
homelessness. California Brief 7.
People experiencing homelessness are young and old, live
in families and as individuals, and belong to all races, cul-
tures, and creeds. Given the complex web of causes, it is
unsurprising that the burdens of homelessness fall dispro-
portionately on the most vulnerable in our society. People
already in precarious positions with mental and physical
health, trauma, or abuse may have nowhere else to go if
forced to leave their homes. Veterans, victims of domestic
violence, teenagers, and people with disabilities are all at
an increased risk of homelessness. For veterans, “those
with a history of mental health conditions, including post-
traumatic stress disorder (PTSD) . . . are at greater risk of
homelessness.” Brief for American Psychiatric Association
et al. as Amici Curiae 6. For women, almost 60% of those
experiencing homelessness report that fleeing domestic vi-
olence was the “immediate cause.” Brief for Advocates for
Survivors of Gender-Based Violence as Amici Curiae 9. For
young people, “family dysfunction and rejection, sexual
abuse, juvenile legal system involvement, ‘aging out’ of the
foster care system, and economic hardship” make them par-
ticularly vulnerable to homelessness. Brief for Juvenile
Law Center et al. as Amici Curiae 2. For American Indians,
“policies of removal and resettlement in tribal lands” have
caused displacement, resulting in “a disproportionately
high rate of housing insecurity and unsheltered homeless-
ness.” Brief for StrongHearts Native Helpline et al. as
Amici Curiae 10, 24. For people with disabilities, “[l]ess
than 5% of housing in the United States is accessible for
moderate mobility disabilities, and less than 1% is accessi-
Aug. 27, 2024 Item #3 Page 59 of 87
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SOTOMAYOR, J., dissenting
ble for wheelchair use.” Brief for Disability Rights Educa-
tion and Defense Fund et al. as Amici Curiae 2 (Disability
Rights Brief ).
B
States and cities responding to the homelessness crisis
face the difficult task of addressing the underlying causes
of homelessness while also providing for public health and
safety. This includes, for example, dealing with the hazards
posed by encampments, such as “a heightened risk of dis-
ease associated with living outside without bathrooms or
wash basins,” “deadly fires” from efforts to “prepare food
and create heat sources,” violent crime, and drug distribu-
tion and abuse. California Brief 12.
Local governments need flexibility in responding to
homelessness with effective and thoughtful solutions. See
infra, at 19–21. Almost all of these policy solutions are be-
yond the scope of this case. The only question here is
whether the Constitution permits criminalizing sleeping
outside when there is nowhere else to go. That question is
increasingly relevant because many local governments
have made criminalization a frontline response to home-
lessness. “[L]ocal measures to criminalize ‘acts of living’”
by “prohibit[ing] sleeping, eating, sitting, or panhandling in
public spaces” have recently proliferated. U. S. Interagency
Council on Homelessness, Searching Out Solutions 1
(2012).
Criminalizing homelessness can cause a destabilizing
cascade of harm. “Rather than helping people to regain
housing, obtain employment, or access needed treatment
and services, criminalization creates a costly revolving door
that circulates individuals experiencing homelessness from
the street to the criminal justice system and back.” Id., at
6. When a homeless person is arrested or separated from
their property, for example, “items frequently destroyed in-
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6 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
clude personal documents needed for accessing jobs, hous-
ing, and services such as IDs, driver’s licenses, financial
documents, birth certificates, and benefits cards; items re-
quired for work such as clothing and uniforms, bicycles,
tools, and computers; and irreplaceable mementos.” Brief
for 57 Social Scientists as Amici Curiae 17–18 (Social Sci-
entists Brief ). Consider Erin Spencer, a disabled Marine
Corps veteran who stores items he uses to make a living,
such as tools and bike parts, in a cart. He was arrested
repeatedly for illegal lodging. Each time, his cart and be-
longings were gone once he returned to the sidewalk. “[T]he
massive number of times the City or State has taken all I
possess leaves me in a vacuous déjà vu.” Brief for National
Coalition for Homeless Veterans et al. as Amici Curiae 28.
Incarceration and warrants from unpaid fines can also
result in the loss of employment, benefits, and housing op-
tions. See Social Scientists Brief 13, 17 (incarceration and
warrants can lead to “termination of federal health benefits
such as Social Security, Medicare, or Medicaid,” the “loss of
a shelter bed,” or disqualification from “public housing and
Section 8 vouchers”). Finally, criminalization can lead
homeless people to “avoid calling the police in the face of
abuse or theft for fear of eviction from public space.” Id., at
27. Consider the tragic story of a homeless woman “who
was raped almost immediately following a police move-
along order that pushed her into an unfamiliar area in the
dead of night.” Id., at 26. She described her hesitation in
calling for help: “What’s the point? If I called them, they
would have made all of us move [again].” Ibid.
For people with nowhere else to go, fines and jail time do
not deter behavior, reduce homelessness, or increase public
safety. In one study, 91% of homeless people who were sur-
veyed “reported remaining outdoors, most often just moving
two to three blocks away” when they received a move-along
order. Id., at 23. Police officers in these cities recognize as
much: “‘Look we’re not really solving anybody’s problem.
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SOTOMAYOR, J., dissenting
This is a big game of whack-a-mole.’” Id., at 24. Consider
Jerry Lee, a Grants Pass resident who sleeps in a van. Over
the course of three days, he was woken up and cited six
times for “camping in the city limits” just because he was
sleeping in the van. App. 99 (capitalization omitted). Lee
left the van each time only to return later to sleep. Police
reports eventually noted that he “continues to disregard the
city ordinance and returns to the van to sleep as soon as
police leave the area. Dayshift needs to check on the van
this morning and . . . follow up for tow.” Ibid. (same).
Shelter beds that are available in theory may be practi-
cally unavailable because of “restrictions based on gender,
age, income, sexuality, religious practice, curfews that con-
flict with employment obligations, and time limits on
stays.” Social Scientists Brief 22. Studies have shown,
however, that the “vast majority of those who are unshel-
tered would move inside if safe and affordable options were
available.” Service Providers Brief 8 (collecting studies).
Consider CarrieLynn Hill. She cannot stay at Gospel Res-
cue Mission, the only entity in Grants Pass offering tempo-
rary beds, because “she would have to check her nebulizer
in as medical equipment and, though she must use it at
least once every four hours, would not be able to use it in
her room.” Disability Rights Brief 18. Similarly, Debra
Blake’s “disabilities prevent her from working, which
means she cannot comply with the Gospel Rescue Mission’s
requirement that its residents work 40-hour work weeks.”
Ibid.
Before I move on, consider one last example of a Nashville
man who experienced homelessness for nearly 20 years.
When an outreach worker tried to help him secure housing,
the worker had difficulty finding him for his appointments
because he was frequently arrested for being homeless. He
was arrested 198 times and had over 250 charged citations,
all for petty offenses. The outreach worker made him a t-
shirt that read “Please do not arrest me, my outreach
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8 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
worker is working on my housing.” Service Providers Brief
16. Once the worker was able to secure him stable housing,
he “had no further encounters with the police, no citations,
and no arrests.” Ibid.
These and countless other stories reflect the reality of
criminalizing sleeping outside when people have no other
choice.
II
Grants Pass, a city of 38,000 people in southern Oregon,
adopted three ordinances (Ordinances) that effectively
make it unlawful to sleep anywhere in public, including in
your car, at any time, with as little as a blanket or a rolled-
up shirt as a pillow. The Ordinances prohibit “[c]amping”
on “any sidewalk, street, alley, lane, public right of way,
park, bench, or any other publicly-owned property or under
any bridge or viaduct.” Grants Pass, Ore. Municipal Code
§5.61.030 (2024). A “[c]ampsite” is defined as “any place
where bedding, sleeping bag, or other material used for bed-
ding purposes, or any stove or fire is placed, established, or
maintained for the purposes of maintaining a temporary
place to live.” §5.61.010(B). Relevant here, the definition
of “campsite” includes sleeping in “any vehicle.” Ibid. The
Ordinances also prohibit camping in public parks, including
the “[o]vernight parking” of any vehicle. §6.46.090(B).1
The City enforces these Ordinances with fines starting at
$295 and increasing to $537.60 if unpaid. Once a person is
cited twice for violating park regulations within a 1-year
period, city officers can issue an exclusion order barring
that person from the park for 30 days. See §6.46.350. A
——————
1The City’s “sleeping” ordinance prohibits sleeping “on public side-
walks, streets, or alleyways at any time as a matter of individual and
public safety.” §5.61.020(A). That ordinance is not before the Court to-
day because, after the only class representative with standing to chal-
lenge this ordinance died, the Ninth Circuit remanded to the District
Court “to determine whether a substitute representative is available as
to that challenge alone.” 72 F. 4th 868, 884 (2023).
Aug. 27, 2024 Item #3 Page 63 of 87
9 Cite as: 603 U. S. ____ (2024)
SOTOMAYOR, J., dissenting
person who camps in a park after receiving that order com-
mits criminal trespass, which is punishable by a maximum
of 30 days in jail and a $1,250 fine. Ore. Rev. Stat. §164.245
(2023); see §§161.615(3), 161.635(1)(c).
In 2019, the Ninth Circuit held that “‘the Eighth Amend-
ment prohibits the imposition of criminal penalties for sit-
ting, sleeping, or lying outside on public property for home-
less individuals who cannot obtain shelter.’” Martin v.
Boise, 920 F. 3d 584, 616, cert. denied, 589 U. S. ___ (2019).
Considering an ordinance from Boise, Idaho, that made it a
misdemeanor to use “streets, sidewalks, parks, or public
places” for “camping,” 920 F. 3d, at 603, the court concluded
that “as long as there is no option of sleeping indoors, the
government cannot criminalize indigent, homeless people
for sleeping outdoors, on public property,” id., at 617.
Respondents here, two longtime residents of Grants Pass
who are homeless and sleep in their cars, sued on behalf of
themselves and all other involuntarily homeless people in
the City, seeking to enjoin enforcement of the Ordinances.
The District Court eventually certified a class and granted
summary judgment to respondents. “As was the case in
Martin, Grants Pass has far more homeless people than
‘practically available’ shelter beds.” App. to Pet. for Cert.
179a. The City had “zero emergency shelter beds,” and even
counting the beds at the Gospel Rescue Mission (GRM),
which is “the only entity in Grants Pass that offers any sort
of temporary program for some class members,” “GRM’s 138
beds would not be nearly enough to accommodate the at
least 602 homeless individuals in Grants Pass.” Id., at
179a–180a. Thus, “the only way for homeless people to le-
gally sleep on public property within the City is if they lay
on the ground with only the clothing on their backs and
without their items near them.” Id., at 178a.
The District Court entered a narrow injunction. It con-
cluded that Grants Pass could “implement time and place
restrictions for when homeless individuals may use their
Aug. 27, 2024 Item #3 Page 64 of 87
10 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
belongings to keep warm and dry and when they must have
their belonging[s] packed up.” Id., at 199a. The City could
also “ban the use of tents in public parks,” as long as it did
not “ban people from using any bedding type materials to
keep warm and dry while they sleep.” Id., at 199a–200a.
Further, Grants Pass could continue to “enforce laws that
actually further public health and safety, such as laws re-
stricting littering, public urination or defecation, obstruc-
tion of roadways, possession or distribution of illicit sub-
stances, harassment, or violence.” Id., at 200a.
The Ninth Circuit largely agreed that the Ordinances vi-
olated the Eighth Amendment because they punished peo-
ple who lacked “some place, such as [a] shelter, they can
lawfully sleep.” 72 F. 4th 868, 894 (2023). It further nar-
rowed the District Court’s already-limited injunction. The
Ninth Circuit noted that, beyond prohibiting bedding, “the
ordinances also prohibit the use of stoves or fires, as well as
the erection of any structures.” Id., at 895. Because the
record did not “establis[h that] the fire, stove, and structure
prohibitions deprive homeless persons of sleep or ‘the most
rudimentary precautions’ against the elements,” the court
remanded for the District Court “to craft a narrower injunc-
tion recognizing Plaintiffs’ limited right to protection
against the elements, as well as limitations when a shelter
bed is available.” Ibid.
III
The Eighth Amendment prohibits the infliction of “cruel
and unusual punishments.” Amdt. 8 (Punishments
Clause). This prohibition, which is not limited to medieval
tortures, places “‘limitations’ on ‘the power of those en-
trusted with the criminal-law function of government.’”
Timbs v. Indiana, 586 U. S. 146, 151 (2019). The Punish-
ments Clause “circumscribes the criminal process in three
ways: First, it limits the kinds of punishment that can be
imposed on those convicted of crimes; second, it proscribes
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SOTOMAYOR, J., dissenting
punishment grossly disproportionate to the severity of the
crime; and third, it imposes substantive limits on what can
be made criminal and punished as such.” Ingraham v.
Wright, 430 U. S. 651, 667 (1977) (citations omitted).
In Robinson v. California, this Court detailed one sub-
stantive limitation on criminal punishment. Lawrence
Robinson was convicted under a California statute for
“‘be[ing] addicted to the use of narcotics’” and faced a man-
datory 90-day jail sentence. 370 U. S., at 660. The Califor-
nia statute did not “punis[h] a person for the use of narcot-
ics, for their purchase, sale or possession, or for antisocial
or disorderly behavior resulting from their administration.”
Id., at 666. Instead, it made “the ‘status’ of narcotic addic-
tion a criminal offense, for which the offender may be pros-
ecuted ‘at any time before he reforms.’” Ibid.
The Court held that, because it criminalized the “‘status’
of narcotic addiction,” ibid., the California law “inflict[ed] a
cruel and unusual punishment in violation” of the Punish-
ments Clause, id., at 667. Importantly, the Court did not
limit that holding to the status of narcotic addiction alone.
It began by reasoning that the criminalization of the “men-
tally ill, or a leper, or [those] afflicted with a venereal dis-
ease” “would doubtless be universally thought to be an in-
fliction of cruel and unusual punishment.” Id., at 666. It
extended that same reasoning to the status of being an ad-
dict, because “narcotic addiction is an illness” “which may
be contracted innocently or involuntarily.” Id., at 667.
Unlike the majority, see ante, at 15–17, the Robinson
Court did not rely on the harshness of the criminal penalty
itself. It understood that “imprisonment for ninety days is
not, in the abstract, a punishment which is either cruel or
unusual.” 370 U. S., at 667. Instead, it reasoned that, when
imposed because of a person’s status, “[e]ven one day in
prison would be a cruel and unusual punishment.” Ibid.
Robinson did not prevent States from using a variety of
tools, including criminal law, to address harmful conduct
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12 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
related to a particular status. The Court candidly recog-
nized the “vicious evils of the narcotics traffic” and acknowl-
edged the “countless fronts on which those evils may be le-
gitimately attacked.” Id., at 667–668. It left untouched the
“broad power of a State to regulate the narcotic drugs traffic
within its borders,” including the power to “impose criminal
sanctions . . . against the unauthorized manufacture, pre-
scription, sale, purchase, or possession of narcotics,” and
the power to establish “a program of compulsory treatment
for those addicted to narcotics.” Id., at 664–665.
This Court has repeatedly cited Robinson for the proposi-
tion that the “Eighth Amendment . . . imposes a substantive
limit on what can be made criminal and punished as such.”
Rhodes v. Chapman, 452 U. S. 337, 346, n. 12 (1981); see
also Gregg v. Georgia, 428 U. S. 153, 172 (1976) (joint opin-
ion of Stewart, Powell, and Stevens, JJ.) (“The substantive
limits imposed by the Eighth Amendment on what can be
made criminal and punished were discussed in Robinson”).
Though it casts aspersions on Robinson and mistakenly
treats it as an outlier, the majority does not overrule or re-
consider that decision.2 Nor does the majority cast doubt
on this Court’s firmly rooted principle that inflicting “un-
necessary suffering” that is “grossly disproportionate to the
severity of the crime” or that serves no “penological pur-
pose” violates the Punishments Clause. Estelle v. Gamble,
429 U. S. 97, 103, and n. 7 (1976). Instead, the majority
sees this case as requiring an application or extension of
Robinson. The majority’s understanding of Robinson, how-
ever, is plainly wrong.
——————
2See ante, at 20 (“[N]o one has asked us to reconsider Robinson. Nor
do we see any need to do so today”); but see ante, at 23 (gratuitously
noting that Robinson “sits uneasily with the Amendment’s terms, origi-
nal meaning, and our precedents”). The most important takeaway from
these unnecessary swipes at Robinson is just that. They are unneces-
sary. Robinson remains binding precedent, no matter how incorrectly
the majority applies it to these facts.
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SOTOMAYOR, J., dissenting
IV
Grants Pass’s Ordinances criminalize being homeless.
The status of being homeless (lacking available shelter) is
defined by the very behavior singled out for punishment
(sleeping outside). The majority protests that the Ordi-
nances “do not criminalize mere status.” Ante, at 21. Say-
ing so does not make it so. Every shred of evidence points
the other way. The Ordinances’ purpose, text, and enforce-
ment confirm that they target status, not conduct. For
someone with no available shelter, the only way to comply
with the Ordinances is to leave Grants Pass altogether.
A
Start with their purpose. The Ordinances, as enforced,
are intended to criminalize being homeless. The Grants
Pass City Council held a public meeting in 2013 to “‘identify
solutions to current vagrancy problems.’” App. to Pet. for
Cert. 168a. The council discussed the City’s previous efforts
to banish homeless people by “buying the person a bus
ticket to a specific destination,” or transporting them to a
different jurisdiction and “leaving them there.” App. 113–
114. That was unsuccessful, so the council discussed other
ideas, including a “‘do not serve’” list or “a ‘most unwanted
list’ made by taking pictures of the offenders . . . and then
disseminating it to all the service agencies.” Id., at 121.
The council even contemplated denying basic services such
as “food, clothing, bedding, hygiene, and those types of
things.” Ibid.
The idea was deterrence, not altruism. “[U]ntil the pain
of staying the same outweighs the pain of changing, people
will not change; and some people need an external source
to motivate that needed change.” Id., at 119. One coun-
cilmember opined that “[m]aybe they aren’t hungry enough
or cold enough . . . to make a change in their behavior.” Id.,
at 122. The council president summed up the goal suc-
cinctly: “‘[T]he point is to make it uncomfortable enough for
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14 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
[homeless people] in our city so they will want to move on
down the road.’” Id., at 114.3
One action item from this meeting was the “‘targeted en-
forcement of illegal camping’” against homeless people.
App. to Pet. for Cert. 169a. “The year following the [public
meeting] saw a significant increase in enforcement of the
City’s anti-sleeping and anti-camping ordinances. From
2013 through 2018, the City issued a steady stream of tick-
ets under the ordinances.” 72 F. 4th, at 876–877.
B
Next consider the text. The Ordinances by their terms
single out homeless people. They define “campsite” as “any
place where bedding, sleeping bag, or other material used
for bedding purposes” is placed “for the purpose of main-
taining a temporary place to live.” §5.61.010. The majority
claims that it “makes no difference whether the charged de-
fendant is homeless.” Ante, at 20. Yet the Ordinances do
not apply unless bedding is placed to maintain a temporary
place to live. Thus, “what separates prohibited conduct
from permissible conduct is a person’s intent to ‘live’ in pub-
lic spaces. Infants napping in strollers, Sunday afternoon
picnickers, and nighttime stargazers may all engage in the
same conduct of bringing blankets to public spaces [and
sleeping], but they are exempt from punishment because
they have a separate ‘place to live’ to which they presuma-
——————
3The majority does not contest that the Ordinances, as enforced, are
intended to target homeless people. The majority observes, however,
that the council also discussed other ways to handle homelessness in
Grants Pass. See ante, at 12, n. 1. That is true. Targeted enforcement
of the Ordinances to criminalize homelessness was only one solution dis-
cussed at the meeting. See App. 131–132 (listing “[a]ctions to move for-
ward,” including increasing police presence, exclusion zones, “zero toler-
ance” signs, “do not serve” or “most unwanted” lists, trespassing letters,
and building a sobering center or youth center (internal quotation marks
omitted)).
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15 Cite as: 603 U. S. ____ (2024)
SOTOMAYOR, J., dissenting
bly intend to return.” Brief for Criminal Law and Punish-
ment Scholars as Amici Curiae 12.
Put another way, the Ordinances single out for punish-
ment the activities that define the status of being homeless.
By most definitions, homeless individuals are those that
lack “a fixed, regular, and adequate nighttime residence.”
42 U. S. C. §11434a(2)(A); 24 CFR §§582.5, 578.3 (2023).
Permitting Grants Pass to criminalize sleeping outside
with as little as a blanket permits Grants Pass to criminal-
ize homelessness. “There is no . . . separation between be-
ing without available indoor shelter and sleeping in pub-
lic—they are opposite sides of the same coin.” Brief for
United States as Amicus Curiae 25. The Ordinances use
the definition of “campsite” as a proxy for homelessness be-
cause those lacking “a fixed, regular, and adequate
nighttime residence” are those who need to sleep in public
to “maintai[n] a temporary place to live.”
Take the respondents here, two longtime homeless resi-
dents of Grants Pass who sleep in their cars. The Ordi-
nances define “campsite” to include “any vehicle.”
§5.61.010(B). For respondents, the Ordinances as applied
do not criminalize any behavior or conduct related to en-
campments (such as fires or tents). Instead, the Ordinances
target respondents’ status as people without any other form
of shelter. Under the majority’s logic, cities cannot crimi-
nalize the status of being homeless, but they can criminal-
ize the conduct that defines that status. The Constitution
cannot be evaded by such formalistic distinctions.
The Ordinances’ definition of “campsite” creates a situa-
tion where homeless people necessarily break the law just
by existing. “[U]nsheltered people have no private place to
survive, so they are virtually guaranteed to violate these
pervasive laws.” S. Rankin, Hiding Homelessness: The
Transcarceration of Homelessness, 109 Cal. L. Rev. 559,
561 (2021); see also Disability Rights Brief 2 (“[T]he mem-
bers of Grants Pass’s homeless community do not choose to
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16 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
be homeless. Instead, in a city with no public shelters, they
have no alternative but to sleep in parks or on the street”).
Every human needs to sleep at some point. Even if home-
less people with no available shelter options can exist for a
few days in Grants Pass without sleeping, they eventually
must leave or be criminally punished.
The majority resists this understanding, arguing that the
Ordinances criminalize the conduct of being homeless in
Grants Pass while sleeping with as little as a blanket.
Therefore, the argument goes, “[r]ather than criminalize
mere status, Grants Pass forbids actions.” Ante, at 20.
With no discussion about what it means to criminalize “sta-
tus” or “conduct,” the majority’s analysis consists of a few
sentences repeating its conclusion again and again in hopes
that it will become true. See ante, at 20–21 (proclaiming
that the Ordinances “forbi[d] actions” “[r]ather than crimi-
nalize mere status”; and that they “do not criminalize mere
status”). The best the majority can muster is the following
tautology: The Ordinances criminalize conduct, not pure
status, because they apply to conduct, not status.
The flaw in this conclusion is evident. The majority coun-
tenances the criminalization of status as long as the City
tacks on an essential bodily function—blinking, sleeping,
eating, or breathing. That is just another way to ban the
person. By this logic, the majority would conclude that the
ordinance deemed unconstitutional in Robinson criminaliz-
ing “being an addict” would be constitutional if it criminal-
ized “being an addict and breathing.” Or take the example
in Robinson: “Even one day in prison would be a cruel and
unusual punishment for the ‘crime’ of having a common
cold.” 370 U. S., at 667. According to the majority, although
it is cruel and unusual to punish someone for having a com-
mon cold, it is not cruel and unusual to punish them for
sniffling or coughing because of that cold. See Manning v.
Caldwell, 930 F. 3d 264, 290 (CA4 2019) (Wilkinson, J., dis-
senting) (“In the rare case where the Eighth Amendment
Aug. 27, 2024 Item #3 Page 71 of 87
17 Cite as: 603 U. S. ____ (2024)
SOTOMAYOR, J., dissenting
was found to invalidate a criminal law, the law in question
sought to punish persons merely for their need to eat or
sleep, which are essential bodily functions. This is simply
a variation of Robinson’s command that the state identify
conduct in crafting its laws, rather than punish a person’s
mere existence” (citation omitted)).
C
The Ordinances are enforced exactly as intended: to crim-
inalize the status of being homeless. City officials sought
to use the Ordinances to drive homeless people out of town.
See supra, at 13–14. The message to homeless residents is
clear. As Debra Blake, a named plaintiff who passed away
while this case was pending, see n. 1, supra, shared:
“I have been repeatedly told by Grants Pass police
that I must ‘move along’ and that there is nowhere in
Grants Pass that I can legally sit or rest. I have been
repeatedly awakened by Grants Pass police while
sleeping and told that I need to get up and move. I have
been told by Grants Pass police that I should leave
town.
Because I have no choice but to live outside and have
no place else to go, I have gotten tickets, fines and have
been criminally prosecuted for being homeless.” App.
180–181.
Debra Blake’s heartbreaking message captures the cruelty
of criminalizing someone for their status: “I am afraid at all
times in Grants Pass that I could be arrested, ticketed and
prosecuted for sleeping outside or for covering myself with
a blanket to stay warm.” Id., at 182. So, at times, when she
could, Blake “slept outside of the city.” Ibid. Blake, who
was disabled, unemployed, and elderly, “owe[d] the City of
Grants Pass more than $5000 in fines for crimes and viola-
tions related directly to [her] involuntary homelessness and
the fact that there is no affordable housing or emergency
Aug. 27, 2024 Item #3 Page 72 of 87
18 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
shelters in Grants Pass where [she could] stay.” Ibid.
Another homeless individual was found outside a non-
profit “in severe distress outside in the frigid air.” Id., at
109. “[H]e could not breathe and he was experiencing acute
pain,” and he “disclosed fear that he would be arrested and
trespassed again for being outside.” Ibid. Another, Carri-
eLynn Hill, whose story you read earlier, see supra, at 7,
was ticketed for “lying down on a friend’s mat” and “lying
down under a tarp to stay warm.” App. 134. She was “con-
stantly afraid” of being “cited and arrested for being outside
in Grants Pass.” Ibid. She is unable to stay at the only
shelter in the City because she cannot keep her nebulizer,
which she needs throughout the night, in her room. So she
does “not know of anywhere in the city of Grants Pass
where [she] can safely sleep or rest without being arrested,
trespassed, or moved along.” Id., at 135. As she put it: “The
only way I have figured out how to get by is try to stay out
of sight and out of mind.” Ibid. Stories like these fill the
record and confirm the City’s success in targeting the status
of being homeless.
The majority proclaims, with no citation, 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.” Ante,
at 20. That describes a fantasy. In reality, the deputy chief
of police operations acknowledged that he was not aware of
“any non-homeless person ever getting a ticket for illegal
camping in Grants Pass.” Tr. of Jim Hamilton in Blake v.
Grants Pass, No. 1:18–cr–01823 (D Ore., Oct. 16, 2019),
ECF Doc. 63–4, p. 16. Officers testified that “laying on a
blanket enjoying the park” would not violate the ordi-
nances, ECF Doc. 63–7, at 2; and that bringing a sleeping
bag to “look at stars” would not be punished, ECF Doc. 63–
5, at 5. Instead, someone violates the Ordinance only if he
or she does not “have another home to go to.” Id., at 6. That
is the definition of being homeless. The majority does not
Aug. 27, 2024 Item #3 Page 73 of 87
19 Cite as: 603 U. S. ____ (2024)
SOTOMAYOR, J., dissenting
contest any of this. So much for the Ordinances applying to
backpackers and students.
V
Robinson should squarely resolve this case. Indeed, the
majority seems to agree that an ordinance that fined and
jailed “homeless” people would be unconstitutional. See
ante, at 21 (disclaiming that the Ordinances “criminalize
mere status”). The majority resists a straightforward ap-
plication of Robinson by speculating about policy consider-
ations and fixating on extensions of the Ninth Circuit’s nar-
row rule in Martin.
The majority is wrong on all accounts. First, no one con-
tests the power of local governments to address homeless-
ness. Second, the majority overstates the line-drawing
problems that this case presents. Third, a straightforward
application of Robinson does not conflict with Powell v.
Texas, 392 U. S. 514 (1968). Finally, the majority draws the
wrong message from the various amici requesting this
Court’s guidance.
A
No one contests that local governments can regulate the
time, place, and manner of public sleeping pursuant to their
power to “enact regulations in the interest of the public
safety, health, welfare or convenience.” Schneider v. State
(Town of Irvington), 308 U. S. 147, 160 (1939). This power
includes controlling “the use of public streets and side-
walks, over which a municipality must rightfully exercise a
great deal of control in the interest of traffic regulation and
public safety.” Shuttlesworth v. Birmingham, 394 U. S.
147, 152 (1969). When exercising that power, however, reg-
ulations still “may not abridge the individual liberties se-
cured by the Constitution.” Schneider, 308 U. S., at 160.
The Ninth Circuit in Martin provided that “an ordinance
Aug. 27, 2024 Item #3 Page 74 of 87
20 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
violates the Eighth Amendment insofar as it imposes crim-
inal sanctions against homeless individuals for sleeping
outdoors, on public property, when no alternative shelter is
available to them.” 920 F. 3d, at 604. Martin was narrow.4
Consider these qualifications:
“[O]ur holding does not cover individuals who do have
access to adequate temporary shelter, whether because
they have the means to pay for it or because it is real-
istically available to them for free, but who choose not
to use it. Nor do we suggest that a jurisdiction with
insufficient shelter can never criminalize the act of
sleeping outside. Even where shelter is unavailable, an
ordinance prohibiting sitting, lying, or sleeping outside
at particular times or in particular locations might well
be constitutionally permissible. So, too, might an ordi-
nance barring the obstruction of public rights of way or
the erection of certain structures.” Id., at 617, n. 8 (ci-
tation omitted).
Upholding Martin does not call into question all the other
tools that a city has to deal with homelessness. “Some cities
have established approved encampments on public prop-
erty with security, services, and other resources; others
have sought to impose geographic and time-limited bans on
public sleeping; and others have worked to clear and clean
particularly dangerous encampments after providing notice
and reminders to those who lived there.” California Brief
14. Others might “limit the use of fires, whether for cooking
or other purposes” or “ban (or enforce already-existing bans
on) particular conduct that negatively affects other people,
including harassment of passersby, illegal drug use, and lit-
tering.” Brief for Maryland et al. as Amici Curiae 12. All
——————
4Some district courts have since interpreted Martin broadly, relying
on it to enjoin time, place, and manner restrictions on camping outside.
See ante, at 7–10, 28–29. This Court is not asked today to consider any
of these interpretations or extensions of Martin.
Aug. 27, 2024 Item #3 Page 75 of 87
21 Cite as: 603 U. S. ____ (2024)
SOTOMAYOR, J., dissenting
of these tools remain available to localities seeking to ad-
dress homelessness within constitutional bounds.
B
The scope of this dispute is narrow. Respondents do not
challenge the City’s “restrictions on the use of tents or other
camping gear,” “encampment clearances,” “time and place
restrictions on sleeping outside,” or “the imposition of fines
or jail time on homeless people who decline accessible shel-
ter options.” Brief for Respondents 18.
That means the majority does not need to answer most of
the hypotheticals it poses. The City’s hypotheticals, echoed
throughout the majority opinion, concern “violent crime,
drug overdoses, disease, fires, and hazardous waste.” Brief
for Petitioner 47. For the most part, these concerns are not
implicated in this case. The District Court’s injunction, for
example, permits the City to prohibit “littering, public uri-
nation or defecation, obstruction of roadways, possession or
distribution of illicit substances, harassment, or violence.”
App. to Pet. for Cert. 200a. The majority’s framing of the
problem as one involving drugs, diseases, and fires instead
of one involving people trying to keep warm outside with a
blanket just provides the Court with cover to permit the
criminalization of homeless people.
The majority also overstates the line-drawing problems
that a baseline Eighth Amendment standard presents.
Consider the “unavoidable” “difficult questions” that dis-
combobulate the majority. Ante, at 32–33. Courts answer
such factual questions every day. For example, the major-
ity asks: “What does it mean to be ‘involuntarily’ homeless
with ‘no place to go’?” Ibid. Martin’s answer was clear: It
is when “‘there is a greater number of homeless individuals
in [a city] than the number of available beds [in shelters,]’”
not including “individuals who do have access to adequate
temporary shelter, whether because they have the means
to pay for it or because it is realistically available to them
Aug. 27, 2024 Item #3 Page 76 of 87
22 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
for free.” 920 F. 3d, at 617, and n. 8. The District Court
here found that Grants Pass had “zero emergency shelter
beds” and that Gospel Rescue Mission’s “138 beds would not
be nearly enough to accommodate the at least 602 homeless
individuals in Grants Pass.” App. to Pet. for Cert. 179a–
180a. The majority also asks: “[W]hat are people entitled
to do and use in public spaces to ‘keep warm’”? Ante, at 33.
The District Court’s opinion also provided a clear answer:
They are permitted “bedding type materials to keep warm
and dry,” but cities can still “implement time and place re-
strictions for when homeless individuals . . . must have
their belonging[s] packed up.” App. to Pet. for Cert. 199a.
Ultimately, these are not metaphysical questions but fac-
tual ones. See, e.g., 42 U. S. C. §11302 (defining “homeless,”
“homeless individual,” and “homeless person”); 24 CFR
§582.5 (defining “[a]n individual or family who lacks a fixed,
regular, and adequate nighttime residence”).
Just because the majority can list difficult questions that
require answers, see ante, at 33, n. 8, does not absolve fed-
eral judges of the responsibility to interpret and enforce the
substantive bounds of the Constitution. The majority pro-
claims that this dissent “blinks the difficult questions.”
Ante, at 32. The majority should open its eyes to available
answers instead of throwing up its hands in defeat.
C
The majority next spars with a strawman in its discus-
sion of Powell v. Texas. The Court in Powell considered the
distinction between status and conduct but could not agree
on a controlling rationale. Four Justices concluded that
Robinson covered any “condition [the defendant] is power-
less to change,” 392 U. S., at 567 (Fortas, J., dissenting),
and four Justices rejected that view. Justice White, casting
the decisive fifth vote, left the question open because the
defendant had “made no showing that he was unable to stay
off the streets on the night in question.” Id., at 554 (opinion
Aug. 27, 2024 Item #3 Page 77 of 87
23 Cite as: 603 U. S. ____ (2024)
SOTOMAYOR, J., dissenting
concurring in judgment). So, in his view, it was “unneces-
sary to pursue at this point the further definition of the cir-
cumstances or the state of intoxication which might bar
conviction of a chronic alcoholic for being drunk in a public
place.” Id., at 553.
This case similarly called for a straightforward applica-
tion of Robinson. The majority finds it telling that this dis-
sent “barely mentions” Justice Marshall’s opinion in Powell.
Ante, at 32.5 The majority completely misses the point.
Even Justice Marshall’s plurality opinion in Powell agreed
that Robinson prohibited enforcing laws criminalizing “a
mere status.” 392 U. S., at 532. The Powell Court consid-
ered a statute that criminalized voluntary conduct (getting
drunk) that could be rendered involuntary by a status (al-
coholism); here, the Ordinances criminalize conduct (sleep-
ing outside) that defines a particular status (homelessness).
So unlike the debate in Powell, this case does not turn on
whether the criminalized actions are “‘involuntary’ or ‘oc-
casioned by’” a particular status. Id., at 533 (Marshall, J.,
dissenting). For all the reasons discussed above, see supra,
at 13–19, these Ordinances criminalize status and are thus
unconstitutional under any of the opinions in Powell.
D
The majority does not let the reader forget that “a large
number of States, cities, and counties” all “urg[ed] the
Court to grant review.” Ante, at 14; see also ante, at 9 (“An
exceptionally large number of cities and States have filed
briefs in this Court”); ante, at 34 (noting the “multitude of
——————
5The majority claims that this dissent does not dispute that Robinson is “hard to square” with the Eighth Amendment’s “text and this Court’s
other precedents.” Ante, at 32. That is wrong. See supra, at 12 (recog-
nizing Robinson’s well-established rule). The majority also claims that
this dissent “ignores Robinson’s own insistence that a different result
would have obtained in that case if the law there had proscribed an act
rather than status alone.” Ante, at 32. That too is wrong. See supra, at
11–12 (discussing Robinson’s distinction between status and conduct).
Aug. 27, 2024 Item #3 Page 78 of 87
24 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
amicus briefs before us”); ante, at 14, n. 3 (listing certiorari-
stage amici). No one contests that States, cities, and coun-
ties could benefit from this Court’s guidance. Yet the ma-
jority relies on these amici to shift the goalposts and focus
on policy questions beyond the scope of this case. It first
declares that “[t]he only question we face is whether one
specific provision of the Constitution . . . prohibits the en-
forcement of public-camping laws.” Ante, at 31. Yet it
quickly shifts gears and claims that “the question this case
presents is whether the Eighth Amendment grants federal
judges primary responsibility for assessing those causes [of
homelessness] and devising those responses.” Ante, at 34.
This sleight of hand allows the majority to abdicate its re-
sponsibility to answer the first (legal) question by declining
to answer the second (policy) one.
The majority cites various amicus briefs to amplify
Grants Pass’s belief that its homelessness crisis is intracta-
ble absent the ability to criminalize homelessness. In so
doing, the majority chooses to see only what it wants. Many
of those stakeholders support the narrow rule in Martin.
See, e.g., Brief for City and County of San Francisco et al.
as Amici Curiae 4 (“[U]nder the Eighth Amendment . . . a
local municipality may not prohibit sleeping—a biological
necessity—in all public spaces at all times and under all
conditions, if there is no alternative space available in the
jurisdiction for unhoused people to sleep”); Brief for City of
Los Angeles as Amicus Curiae 1 (“The City agrees with the
broad premise underlying the Martin and Johnson deci-
sions: when a person has no other place to sleep, sleeping
at night in a public space should not be a crime leading to
an arrest, criminal conviction, or jail”); California Brief 2–3
(“[T]he Constitution does not allow the government to pun-
ish people for the status of being homeless. Nor should it
allow the government to effectively punish the status of be-
ing homeless by making it a crime in all events for someone
with no other options to sleep outside on public property at
Aug. 27, 2024 Item #3 Page 79 of 87
25 Cite as: 603 U. S. ____ (2024)
SOTOMAYOR, J., dissenting
night”).
Even the Federal Government, which restricts some
sleeping activities on park lands, see ante, at 7, has for
nearly three decades “taken the position that laws prohib-
iting sleeping in public at all times and in all places violate
the Robinson principle as applied to individuals who have
no access to shelter.” Brief for United States as Amicus Cu-
riae 14. The same is true of States across the Nation. See
Brief for Maryland et al. as Amici Curiae 3–4 (“Taking
these policies [criminalizing homelessness] off the table
does not interfere with our ability to address homelessness
(including the effects of homelessness on surrounding com-
munities) using other policy tools, nor does it amount to an
undue intrusion on state sovereignty”).
Nothing in today’s decision prevents these States, cities,
and counties from declining to criminalize people for sleep-
ing in public when they have no available shelter. Indeed,
although the majority describes Martin as adopting an un-
workable rule, the elected representatives in Oregon codi-
fied that very rule. See infra, at 26. The majority does
these localities a disservice by ascribing to them a demand
for unfettered freedom to punish that many do not seek.
VI
The Court wrongly concludes that the Eighth Amend-
ment permits Ordinances that effectively criminalize being
homeless. Grants Pass’s Ordinances may still raise a host
of other legal issues. Perhaps recognizing the untenable
position it adopts, the majority stresses that “many sub-
stantive legal protections and provisions of the Constitution
may have important roles to play when States and cities
seek to enforce their laws against the homeless.” Ante, at
31. That is true. Although I do not prejudge the merits of
these other issues, I detail some here so that people experi-
encing homelessness and their advocates do not take the
Aug. 27, 2024 Item #3 Page 80 of 87
26 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
Court’s decision today as closing the door on such claims.6
A
The Court today does not decide whether the Ordinances
are valid under a new Oregon law that codifies Martin. In
2021, Oregon passed a law that constrains the ability of mu-
nicipalities to punish homeless residents for public sleep-
ing. “Any city or county law that regulates the acts of sit-
ting, lying, sleeping or keeping warm and dry outdoors on
public property that is open to the public must be objec-
tively reasonable as to time, place and manner with regards
to persons experiencing homelessness.” Ore. Rev. Stat.
§195.530(2). The law also grants persons “experiencing
homelessness” a cause of action to “bring suit for injunctive
or declaratory relief to challenge the objective reasonable-
ness” of an ordinance. §195.530(4). This law was meant to
“‘ensure that individuals experiencing homelessness are
protected from fines or arrest for sleeping or camping on
public property when there are no other options.’” Brief in
Opposition 35 (quoting Speaker T. Kotek, Hearing on H. B.
3115 before the House Committee on the Judiciary, 2021
Reg. Sess. (Ore., Mar. 9, 2021)). The panel below already
concluded that “[t]he city ordinances addressed in Grants
Pass will be superseded, to some extent,” by this new law.
72 F. 4th, at 924, n. 7. Courts may need to determine
whether and how the new law limits the City’s enforcement
of its Ordinances.
B
The Court today also does not decide whether the Ordi-
nances violate the Eighth Amendment’s Excessive Fines
Clause. That Clause separately “limits the government’s
——————
6The majority does not address whether the Eighth Amendment re-
quires a more particularized inquiry into the circumstances of the indi-
viduals subject to the City’s ordinances. See Brief for United States as
Amicus Curiae 27. I therefore do not discuss that issue here.
Aug. 27, 2024 Item #3 Page 81 of 87
27 Cite as: 603 U. S. ____ (2024)
SOTOMAYOR, J., dissenting
power to extract payments, whether in cash or in kind, as
punishment for some offense.” United States v. Bajakajian,
524 U. S. 321, 328 (1998) (internal quotation marks omit-
ted). “The touchstone of the constitutional inquiry under
the Excessive Fines Clause is the principle of proportional-
ity: The amount of the forfeiture must bear some relation-
ship to the gravity of the offense that it is designed to pun-
ish.” Id., at 334.
The District Court in this case concluded that the fines
here serve “no remedial purpose” but rather are “intended
to deter homeless individuals from residing in Grants
Pass.” App. to Pet. for Cert. 189a. Because it concluded
that the fines are punitive, it went on to determine that the
fines are “‘grossly disproportionate to the gravity of the of-
fense’” and thus excessive. Ibid. The Ninth Circuit de-
clined to consider this holding because the City presented
“no meaningful argument on appeal regarding the exces-
sive fines issue.” 72 F. 4th, at 895. On remand, the Ninth
Circuit is free to consider whether the City forfeited its ap-
peal on this ground and, if not, whether this issue has
merit.
C
Finally, the Court does not decide whether the Ordi-
nances violate the Due Process Clause. “The Due Process
Clauses of the Fifth and Fourteenth Amendments ensure
that officials may not displace certain rules associated with
criminal liability that are ‘so old and venerable,’ ‘“so rooted
in the traditions and conscience of our people[,] as to be
ranked as fundamental.”’” Ante, at 15 (quoting Kahler v.
Kansas, 589 U. S. 271, 279 (2020)). The majority notes that
due process arguments in Robinson “may have made some
sense.” Ante, at 19. On that score, I agree. “[H]istorically,
crimes in England and this country have usually required
proof of some act (or actus reus) undertaken with some
measure of volition (mens rea).” Ibid. “This view ‘took deep
Aug. 27, 2024 Item #3 Page 82 of 87
28 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
and early root in American soil’ where, to this day, a crime
ordinarily arises ‘only from concurrence of an evil-meaning
mind with an evil-doing hand.’ Morissette v. United States,
342 U. S. 246, 251–252 (1952).” Ibid. Yet the law at issue
in Robinson “was an anomaly, as it required proof of neither
of those things.” Ante, at 19.
Relatedly, this Court has concluded that some vagrancy
laws are unconstitutionally vague. See, e.g., Kolender v.
Lawson, 461 U. S. 352, 361–362 (1983) (invalidating Cali-
fornia law that required people who loiter or wander on the
street to provide identification and account for their pres-
ence); Papachristou v. Jacksonville, 405 U. S. 156, 161–162
(1972) (concluding that vagrancy law employing “ ‘archaic
language’” in its definition was “void for vagueness”); ac-
cord, Desertrain v. Los Angeles, 754 F. 3d 1147, 1155–1157
(CA9 2014) (holding that an ordinance prohibiting the use
of a vehicle as “‘living quarters’” was void for vagueness be-
cause the ordinance did not define “living quarters”). Other
potentially relevant due process precedents abound. See,
e.g., Winters v. New York, 333 U. S. 507, 520 (1948) (“Where
a statute is so vague as to make criminal an innocent act, a
conviction under it cannot be sustained”); Chicago v. Mo-
rales, 527 U. S. 41, 57 (1999) (opinion of Stevens, J.) (inval-
idating ordinance that failed “to distinguish between inno-
cent conduct and conduct threatening harm”).
The Due Process Clause may well place constitutional
limits on anti-homelessness ordinances. See, e.g., Memorial
Hospital v. Maricopa County, 415 U. S. 250, 263–264 (1974)
(considering statute that denied people medical care de-
pending on duration of residency and concluding that “to
the extent the purpose of the [statute] is to inhibit the im-
migration of indigents generally, that goal is constitution-
ally impermissible”); Pottinger v. Miami, 810 F. Supp. 1551,
1580 (SD Fla. 1992) (concluding that “enforcement of laws
that prevent homeless individuals who have no place to go
from sleeping” might also unconstitutionally “burde[n]
Aug. 27, 2024 Item #3 Page 83 of 87
29 Cite as: 603 U. S. ____ (2024)
SOTOMAYOR, J., dissenting
their right to travel”); see also ante, at 21, n. 5 (noting that
these Ordinances “may implicate due process and our prec-
edents regarding selective prosecution”).
D
The Ordinances might also implicate other legal issues.
See, e.g., Trop, 356 U. S., at 101 (plurality opinion) (con-
cluding that a law that banishes people threatens “the total
destruction of the individual’s status in organized society”);
Brief for United States as Amicus Curiae 21 (describing the
Ordinances here as “akin to a form of banishment, a meas-
ure that is now generally recognized as contrary to our Na-
tion’s legal tradition”); Lavan v. Los Angeles, 693 F. 3d
1022, 1029 (CA9 2012) (holding that a city violated home-
less plaintiffs’ Fourth Amendment rights by seizing and de-
stroying property in an encampment, because “[v]iolation of
a City ordinance does not vitiate the Fourth Amendment’s
protection of one’s property”).
The Court’s misstep today is confined to its application of
Robinson. It is quite possible, indeed likely, that these and
similar ordinances will face more days in court.
* * *
Homelessness in America is a complex and heartbreaking
crisis. People experiencing homelessness face immense
challenges, as do local and state governments. Especially
in the face of these challenges, this Court has an obligation
to apply the Constitution faithfully and evenhandedly.
The Eighth Amendment prohibits punishing homeless-
ness by criminalizing sleeping outside when an individual
has nowhere else to go. It is cruel and unusual to apply any
penalty “selectively to minorities whose numbers are few,
who are outcasts of society, and who are unpopular, but
whom society is willing to see suffer though it would not
countenance general application of the same penalty across
the board.” Furman v. Georgia, 408 U. S. 238, 245 (1972)
Aug. 27, 2024 Item #3 Page 84 of 87
30 CITY OF GRANTS PASS v. JOHNSON
SOTOMAYOR, J., dissenting
(Douglas, J., concurring).
I remain hopeful that our society will come together “to
address the complexities of the homelessness challenge fac-
ing the most vulnerable among us.” Ante, at 34. That re-
sponsibility is shared by those vulnerable populations, the
States and cities in which they reside, and each and every
one of us. “It is only after we begin to see a street as our
street, a public park as our park, a school as our school, that
we can become engaged citizens, dedicating our time and
resources for worthwhile causes.” M. Desmond, Evicted:
Property and Profit in the American City 294 (2016).
This Court, too, has a role to play in faithfully enforcing
the Constitution to prohibit punishing the very existence of
those without shelter. I remain hopeful that someday in
the near future, this Court will play its role in safeguarding
constitutional liberties for the most vulnerable among us.
Because the Court today abdicates that role, I respectfully
dissent.
Aug. 27, 2024 Item #3 Page 85 of 87
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Aug. 27, 2024 Item #3 Page 86 of 87
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Aug. 27, 2024 Item #3 Page 87 of 87
1
Overview of Legal Ruling
(Grants Pass v. Johnson) and
City’s Efforts to Address Homelessness
Allegra Frost, Senior Assistant City Attorney
Mandy Mills, Housing & Homeless Services Director
Christie Calderwood, Chief of Police
August 27, 2024
ITEM 3
( City of
Carlsbad
2
Recommended Action
1.Receive a presentation about a recent United States Supreme
Court decision in City of Grants Pass, Oregon v. Johnson and
the city’s efforts to address homelessness in Carlsbad.
2.Provide direction on changes, if any, the City Council would like
staff to explore related to the city’s approach to addressing
homelessness in Carlsbad.
ITEM 3: LEGAL RULING ON HOMELESSNESS
( City of
Carlsbad
4
Background
•Homelessness is a growing problem nationwide, in our
region and in Carlsbad
•Carlsbad began to supplement county, non-profit
efforts
–2016: Police Homeless Outreach Team
–2017: Homeless Response Plan
–2021: Housing & Homeless Services Department
–2023: Updated Homelessness Action Plan
•Focus on lasting solutions and community impacts
ITEM 3: LEGAL RULING ON HOMELESSNESS
( City of
Carlsbad
5
Current Priority
“Enhance the quality of life for everyone in
Carlsbad by adopting and implementing an
updated Homeless Response Plan that addresses
the complex needs of individuals experiencing, or
at risk of experiencing homelessness in a
compassionate and effective manner and reduces
the impacts of homelessness on the community.”
ITEM 3: LEGAL RULING ON HOMELESSNESS
City Council 5-Year Strategic Plan
0 Quality of Life & Safety
Prioritize the safety and well-being of
the community
In 5 years ..
The City of Carlsbad remains one of Ille safest dtie In the region due to new Investments In fire and emerg
medical servl~s and a Wflll-equlpped and highly trained Police Department that enjoys u~llent relatlo
the community. Critical infrastructure lltt roads and pipes are well-maintained, whilf' parks, communl
libraries and oth~ facllltles reflect the communit(s hiflh standards.
► Resklentresponsestos.urveyquestlonsrelate<ltoHfety,qualityoflife,cltyse,v
► Cirlsbadcrimesutlstlcs
► Emergen,cyresponsetlmes
► Condillonofcityassetslikeroach,parksandbuildlngs ► lndlcaton to bf' IMntlf~d In an updated Homeless Response Plan that Vlow
hOmf'll!SSl'lf'U,SUChM:
o NumbffOIPffSGnSplace<llntemJ)Oraryorl)ffrNnenthousl"I
o Numbffol!>ff•or,.whore~ive<l~lces
Enhanuthequalityoflifeforew,ryorlf!lncarlsb;tdt,yadoptlngandlm entinganupdated
HomelessResponsePlanthataddressesthecomplexneedsoflndivldualsexperlenclng.otal
risk of eXf)Hiencln, homelH'inHs In a com,ia,;slonate and effectlw manner and reduces the
lm,iactsofhomelessnessonthecommunily.
Foster sttonc relationships between community members and members of the Police
Department, lncludinlil the fofmation of a commun;tv-pollce encaaement commission
BrlngFlreDfopartmentuptoStllndllnkofCovertoen<iurethedtyispreparedtomeetthe
community's changing fire and emergency medical need!.
4 Manaae, malntllln ;in,d enh11nce the city's roadway to pra,lde a sa~. efficient 11nd cost-effectlw,
multi-mod ii transport3tlon system
12
2023 -2027
{city of
Carlsbad
( City of
Carlsbad
6
Homelessness Action Plan
Approved in 2023
•9 initiatives and 56 actions
–Shelter and housing
–Outreach and access to services
–Public safety
•Progress reports every 6 months
ITEM 3: LEGAL RULING ON HOMELESSNESS
SEMIANNUAL REPORT
Reducing Homelessness
JULY 1 -DEC. 31,2022
During the first half of FY 2022·23, the Citv of City Council Goal
(c;ryof Carlsbad
Carlsbad.tchieved several Important milestones Cnham:etl>rquolityofl/fefo,~~-;,, Carlsbad by
( City of
Carlsbad
7
2021 New & Updated Ordinances
•Unlawful camping on public and private property*
•Fires and cooking on public property
•Storage of personal property in public places
•Solicitation
•Trespassing
•Obstruction of property
•Disorderly conduct
•Possessing or consuming open containers of alcohol in
certain public places
ITEM 3: LEGAL RULING ON HOMELESSNESS
( City of
Carlsbad
8
Martin v. Boise
2018 federal appeals court decision
•An ordinance violates the Eighth Amendment of the
U.S. Constitution’s cruel and unusual punishments
clause if it imposes criminal sanctions against homeless
people for sitting, lying down or sleeping outside on
public property when no alternative shelter is available
to them.
ITEM 3: LEGAL RULING ON HOMELESSNESS
9
Limited-Term Motel Voucher Program
•Approved in 2021
–One night at a time option
ITEM 3: LEGAL RULING ON HOMELESSNESS
( City of
Carlsbad
10
City of Grants Pass, Oregon v. Johnson
•Grants Pass, Oregon prohibited sleeping on public sidewalks,
camping on public property and camping and overnight parking
in the city’s parks
•Grants Pass was sued by plaintiff’s arguing the city’s ordinances
criminalized people for being homeless
ITEM 3: LEGAL RULING ON HOMELESSNESS
11
City of Grants Pass, Oregon v. Johnson
•Found that none of the punishments imposed by the ordinances
qualified as either cruel or unusual under the Eighth
Amendment
–Eighth Amendment deals with the method and kind of
punishments, not on what conduct may be criminalized
–The court found that the Grants Pass ordinances do not
criminalize people for being homeless
–Overturned Martin v. Boise
ITEM 3: LEGAL RULING ON HOMELESSNESS
12
City of Grants Pass, Oregon v. Johnson
•Violations of the ordinances may still be subject to other types
of defenses, such as necessity (having nowhere else to go),
insanity or diminished capacity, duress, and selective
enforcement
•States may adopt laws limiting how far cities may go in
regulating public camping, including prohibiting cities from
criminalizing public camping
ITEM 3: LEGAL RULING ON HOMELESSNESS
13
Municipal Code Section 8.36.030
•Carlsbad Municipal Code Section 8.36.030 - Unlawful Camping
states that camping on public property is prohibited, if the
person has access to adequate temporary shelter and refuses
such shelter
•Added in 2021 to be consistent with the Martin v. Boise decision
•Language can be retained or removed.
ITEM 3: LEGAL RULING ON HOMELESSNESS
14
Governor’s Executive Order (7/24/24)
•Requires state agencies to adopt policies to address
encampments on state property
–Policies to be modeled after Caltrans policy
•Encouraged local governments to adopt consistent policies
and:
–Use all available resources and infrastructure, including
state-provided resources, to humanely remove
encampments from public spaces, prioritizing
encampments that most threaten life, health and safety
ITEM 3: LEGAL RULING ON HOMELESSNESS
15
Carlsbad’s Approach to Encampments
•Generally consistent with Executive Order
•Regional Task Force on Homelessness guidelines
•“Clearance with support” approach
•FY 24 activity
–40 encampments cleared
–135 days on clean up
–151.5 cubic yards of trash and abandoned items
removed
ITEM 3: LEGAL RULING ON HOMELESSNESS
( City of
Carlsbad
16
Enforcement Overview
•End unlawful behavior and connect people to available
services and resources
•Progression of warnings
•When services are refused, warnings are ignored or the
violation is egregious, citations remain an available tool for
officers
•Other (non city ordinances) as enforcement options also
available
ITEM 3: LEGAL RULING ON HOMELESSNESS
( City of
Carlsbad
17
Data for July 2023 – July 2024
Camping/Park After Hours
5 arrests
114 citations
16 warnings
Other Arrests (Most Common)
Under the influence
Possession of a controlled substance
Shopping cart removal or possession
Trespassing
ITEM 3: LEGAL RULING ON HOMELESSNESS
Other Actions
1,060 actions to include citations,
warnings and mental health holds
Camping & Park Hours Citations
18
Camping
39%
Trespassing
37%
Violating park hours
24%
ITEM 3: LEGAL RULING ON HOMELESSNESS
July 2023- July 2024
19
Use of Public Facilities, Parks
•Area of concern for community
•Everyone has a right to enjoy public spaces
•City does not remove people from libraries, parks and
other public places unless they are violating the law or
facility code of conduct
•Options for consideration to allow for more enforcement
ITEM 3: LEGAL RULING ON HOMELESSNESS
( City of
Carlsbad
20
Other Cities’ Camping Ordinances
•San Marcos and Vista updated unlawful camping ordinance or
decision to enforce
•Chula Vista intent to update or introduce such ordinance
•Escondido updated its unlawful camping ordinance on June 26,
2024, two days before the Grants Pass decision
•Poway’s unlawful camping ordinance contains a sunset
provision stating that offering shelter is no longer a
requirement
ITEM 3: LEGAL RULING ON HOMELESSNESS
21
Other Cities’ Camping Ordinances
All 18 cities in the San Diego region have some type of prohibition
on public camping
•All prohibit camping in public parks
•Some prohibit camping on other public property, including
sidewalks
Carlsbad, Oceanside and San Diego require shelter to be offered
before citations under certain circumstances, e.g.
•Evening hours
•Sensitive areas
ITEM 3: LEGAL RULING ON HOMELESSNESS
22
Living in Vehicles
•15 cities have some form of restriction on sleeping or residing
in vehicles, including restrictions based on time of day or
location. Carlsbad’s municipal code does not prohibit sleeping
in or living in vehicles
•At least one city’s restrictions on living or sleeping in vehicles
has faced legal challenges
ITEM 3: LEGAL RULING ON HOMELESSNESS
( City of
Carlsbad
23
Encampment Resolution Grants
$2.3 million for three years
•Village and Barrio area, around the Cole Library, Holiday Park
and Pine Park
•Assists people moving from encampments to housing/shelter
•During first 6 months
–15 households transitioned to temporary housing (shelter,
motels, etc.)
–13 households moved into permanent housing
–Over the grant term, anticipate moving 75 people into
housing
ITEM 3: LEGAL RULING ON HOMELESSNESS
24
Encampment Resolution Grants
$5.3 million for 3 years
•Notified In April 2024
•Joint grant with City of Oceanside
•Focus on State Route 78 and Buena Vista Creek
•Total grant is $11.4 million (Oceanside’s portion is $6.1 million)
•Requires City Council approval (on tonight’s agenda)
ITEM 3: LEGAL RULING ON HOMELESSNESS
25
Options and Next Steps
•Staff have developed several options for consideration
•City staff will present this information to the Housing
Commission for review and feedback, then return to the City
Council to share what was heard
•If the City Council directs staff to explore one or more options,
the City Manager will develop a schedule for completing the
analysis and returning to the City Council
ITEM 3: LEGAL RULING ON HOMELESSNESS
( City of
Carlsbad
26
Camping
1. Change municipal code
2. Pursue more shelter options
3. Coordination with neighboring cities
4. Legislation for a model ordinance
ITEM 3: LEGAL RULING ON HOMELESSNESS
Vehicles
5. Restrict overnight parking
6. No sleeping in vehicles ordinance
7. Comprehensive vehicular homelessness plan
Disorderly conduct
8. Code of conduct enforcement
9. Preventing facility suspensions
Options
27
Questions & Discussion