08/13/2024

City of Grants Pass v. Johnson - Planners Be Aware!

On June 28th, 2024, the United States Supreme Court issued a decision that all planners should be aware of – City of Grants Pass v. Johnson, 144 S. Ct 2202, 219 L.Ed. 2d 941. The decision in the case is narrow; however, the societal context giving rise to Grants Pass created broad speculation regarding local governments’ power to regulate homelessness overall. This article discusses the decision and considerations for local governments in its aftermath.

The Case

Grants Pass arose out of a previous decision, Boise v. Martin, that held it was a violation of the Eighth Amendment for a municipality to enforce public camping ordinances against homeless persons where the number of homeless persons exceeded the number of practically available shelter beds in that municipality. The Eighth Amendment protects Americans from excessive bail, excessive fines, and cruel and unusual punishment being imposed in criminal cases.

Grants Pass, Oregon enforced several ordinances that banned sleeping on public ways, camping on public property, and parking overnight in public parks. The penalty for violating these ordinances escalated from fines to arrest for criminal trespass punishable by jail time for repeat offenders. The plaintiffs in this case, relying on Martin, sued Grants Pass and argued that enforcing their ordinances violated the Eighth Amendment when Grants Pass did not have enough shelter beds for all those in need.

The Supreme Court rejected that argument; basing their reasoning on past cases that ruled the cruel and unusual punishment clause applied to the kinds of punishments governments can impose after a conviction, and not whether a government may criminalize certain behavior or how it could secure a conviction. Additionally, the Court stated that fines and thirty days in jail (the maximum jail time imposed by Grants Pass’ ordinances) were neither cruel nor unusual in violation of the Eighth Amendment.

Importantly, the Court explicitly stated their decision did not limit states’ ability to draft protections for homeless individuals. While Grants Pass was being litigated, Oregon passed a law establishing statewide regulation over local governments enforcing ordinances against homeless individuals on public property and created a statutory defense for individuals charged with violating those ordinances.  Other states – including Illinois’ Bill of Rights for the Homeless – have already enacted similar laws.

Grants Pass’ Wider Implications

Immediately after Grants Pass, advocates for local government autonomy hailed the decision as a victory. Various local government advocates issued statements that local governments had the power to enforce ordinances combatting homelessness by criminalizing sleeping on public property. Some local government interest and advocacy groups prepared and circulated model regulations that local governments could adopt that criminalize sleeping in public and uses incarceration as a punishment like the ordinance in Grants Pass.

Although Grants Pass is a victory for local government control, communities should approach homelessness regulations carefully. The rule established by Grants Pass is that enforcing anti-camping ordinances is not a violation of the cruel and unusual punishment clause of the Eighth Amendment. As the decision’s dissent points out, enforcement of anti-camping ordinances may well violate other parts of the Constitution like the excessive fine clause of the Eighth Amendment or the due process clause of the Fifth and Fourteenth Amendment. Stated differently, the Court (or at least some justices) expressly acknowledge that other types of Constitutional challenges can be raised. It’s wise for communities to take that into consideration when considering legislative solutions to homelessness. 

Further, the Court made clear states are free to regulate defenses for certain crimes that impact homelessness issues – just as Oregon did while Grants Pass was pending. Illinois adopted the Bill of Rights for the Homeless more than ten years ago, which includes the rights to move freely in public spaces, to equal treatment by government actors, and to have a reasonable expectation of privacy in their personal property.  Enforcing an anti-camping ordinance in Illinois may not violate the cruel and unusual punishment clause, but it may violate state laws or other constitutional provisions – or at least expose municipalities to reasonable claims that a violation has occurred.

In summary, Grants Pass made a very narrow ruling that one constitutional clause was not implicated by enforcing an anti-camping ordinance against homeless individuals. Communities considering relying on Grants Pass alone to enact and enforce similar ordinances should carefully consider other constitutional and statutory provisions that influence the practicality – and legality – of that approach.

Author: Dan Lev, Associate at Ancel Glink, APA-IL Legislative Committee Member

Ancel Glink’s representation in land use matters spans Illinois and beyond and involves the full range of residential, commercial, and industrial development and redevelopment.

The APA-IL thanks Ancel Glink for being a 2023-24 Tier II Sponsor and supporting Great Communities for All in Illinois!

Photo Credit: Milan Cobanov via Pexels