San Francisco and California want to be able to clear homeless encampments, but not in the way that a small city in Oregon is asking the nation’s highest court to do so.
City and state leaders recently pleaded with the U.S. Supreme Court to review a key case that limits a local government’s ability to sweep homeless encampments.
Now, they’re probing for a delicate legal middle ground between lower court rulings, which they argue have created “confusion” and hamstrung efforts to clear encampments, and what Grants Pass, Oregon, is asking from the Supreme Court, which could undermine constitutional protections under the Eighth Amendment.
The Supreme Court agreed to take up City of Grants Pass, Oregon v. Johnson in January and is set to hold oral arguments in April. The case is being led by the local government of Grants Pass, which was barred by the 9th U.S. Circuit Court of Appeals from enforcing its broad anti-camping ordinance when homeless people have no other place to go.
California and San Francisco joined Grants Pass in asking the Supreme Court to take up the case, but they’ve declined to take sides out of fear that the justices might weaken constitutional protections in a way that — even inadvertently — could actually lead to more homeless people on San Francisco’s streets.
After an array of lower-court decisions in recent years, Grants Pass is viewed as a test of key legal questions facing cities as they look to address street issues arising from billowing homelessness across the Western United States.
This month, City Attorney David Chiu and Gov. Gavin Newsom filed separate “friend of the court” briefs supporting neither side in the Grants Pass case. Their filings signal that they think the circuit court’s ruling limiting Grants Pass was wrong but that the city has swung the pendulum too far in the opposite direction. Its argument, Chiu and Newsom assert, could more broadly undermine protections against cruel and unusual punishment enshrined in the Eighth Amendment.
If the Supreme Court leaves cities such as Grants Pass largely unlimited in their ability to cite people for actions such as camping on public property, San Francisco worries that people could seek respite in more hospitable places — such as San Francisco.
“It does not make sense to punish status or criminally prosecute homeless individuals for being homeless,” City Attorney David Chiu said in a statement. “But, the Ninth Circuit in Grants Pass went well beyond that central idea and misapplied the law.’
The Grants Pass case
The case set for argument at the Supreme Court began in October 2018, when three homeless people sued Grants Pass in federal district court to prevent the city from ticketing them for sleeping outside. Their August 2020 victory in district court was affirmed by the 9th Circuit in September 2022.
Grants Pass now argues that the appeals court inappropriately applied the Eighth Amendment to a status — in this case, being homeless — in addition to behavior that results from that status.
In its petition to the Supreme Court, attorneys for Grants Pass wrote, “the Cruel and Unusual Punishments Clause (as its name suggests) prohibits ‘methods of punishment’ that inflict unnecessary pain and have fallen out of use.”
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“There is nothing cruel or unusual about a civil fine for violating commonplace restrictions on public camping,” the petition stated.
San Francisco also takes issue with the 9th Circuit — but in a different way. The approach taken by Grants Pass “sweeps so broadly as to strip basic protections from individuals experiencing homelessness,” it argued in its brief.
The City makes clear that it needs to clear encampments and enforce its laws, but it disagrees with the limitations set by the 9th Circuit. But it also argues that it’s fair to prevent cities from punishing the homeless even when there’s no alternative place for them to be.
“Were jurisdictions free to impose total bans on sleeping at all times, under all circumstances, and in all public spaces —when there is no available space to sleep — jurisdictions would effectively punish the mere status of being homeless,” The City’s amicus brief states. “Doing so could not only be cruel and unusual, but it would also create perverse incentives to force unhoused individuals to migrate to jurisdictions like San Francisco that do not do so.”
California doesn’t argue that the Eighth Amendment necessarily protects homeless people from wanton restriction enforcement, but rather that such protections should exist.
Previous court rulings had established that “no individual should face criminal penalties under an all-times, all-places prohibition on sleeping outdoors when they have not been offered shelter and have nowhere else to go within the jurisdiction,” the state’s lawyers wrote. They argued that through Grants Pass, courts have ruled that even basic restrictions are impermissible, granting the homeless “a right to erect semi-permanent structures on public rights of way if they have not received an offer of shelter.”
San Francisco’s own legal battle
San Francisco weighed in on the Grants Pass because many of the same issues have come up in the ongoing legal battle between the Coalition on Homelessness in San Francisco and The City, with the former arguing that The City’s sweeps have violated the constitutional rights of people experiencing homelessness.
The City is operating under an injunction ordered by U.S. Magistrate Judge Donna Ryu in December 2022, which it has repeatedly tried to overturn to no avail.
Nisha Kashyap, an attorney for the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, which represents the Coalition on Homelessness, said it’s commendable that state and local leaders are united in their rejection of Grants Pass’ approach to mitigating homelessness.
However, she said, many of their filings touch on issues outside the scope of the single question in front of the Supreme Court: “Does the enforcement of generally applicable laws regulating camping on public property constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?”
“Nothing that happens in the Supreme Court is going to change the fact that cities can today do the things that are necessary and appropriate to address the homelessness crisis, and we all know that criminalization is not the solution,” Kashyap said.
