The Supreme Court says cities can punish people for sleeping in public places

In its biggest decision on homelessness in decades, the U.S. Supreme Court today ruled that cities can ban people from sleeping and camping in public places. The justices, in a 6-3 decision along ideological lines, overturned lower court rulings that deemed it cruel and unusual under the Eighth Amendment to punish people for sleeping outside if they had nowhere else to go.

Writing for the majority, Justice Gorsuch said, “Homelessness is complex. Its causes are many.” But he said federal judges do not have any “special competence” to decide how cities should deal with this.

“The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy,” he wrote.

In a dissent, Justice Sotomayor said the decision focused only on the needs of cities but not the most vulnerable. She said sleep is a biological necessity, but this decision leaves a homeless person with “an impossible choice — either stay awake or be arrested.”

The court's decision is a win not only for the small Oregon city of Grants Pass, which brought the case, but also for dozens of Western localities that had urged the high court to grant them more enforcement powers as they grapple with record high rates of homelessness. They said the lower court rulings had tied their hands in trying to keep public spaces open and safe for everyone.

But advocates for the unhoused say the decision won’t solve the bigger problem, and could make life much harder for the quarter of a million people living on streets, in parks and in their cars. “Where do people experiencing homelessness go if every community decides to punish them for their homelessness?” says Diane Yentel, president of the National Low Income Housing Coalition.

Today’s ruling only changes current law in the 9th Circuit Court of Appeals, which includes California and eight other Western states where the bulk of America’s unhoused population lives. But it will also determine whether similar policies elsewhere are permissible; and it will almost certainly influence homelessness policy in cities around the country.

Cities complained they were hamstrung in managing a public safety crisis

Grants Pass and other cities argued that lower court rulings fueled the spread of homeless encampments, endangering public health and safety. Those decisions did allow cities to restrict when and where people could sleep and even to shut down encampments – but they said cities first had to offer people adequate shelter.

That’s a challenge in many places that don’t have nearly enough shelter beds. In briefs filed by local officials, cities and town also expressed frustration that many unhoused people reject shelter when it is available; they may not want to go if a facility bans pets, for example, or prohibits drugs and alcohol.

Critics also said lower court rulings were ambiguous, making them unworkable in practice. Localities have faced dozens of lawsuits over the details of what’s allowed. And they argued that homelessness is a complex problem that requires balancing competing interests, something local officials are better equipped to do than the courts.

"We are trying to show there's respect for the public areas that we all need to have," Seattle City Attorney Ann Davison told NPR earlier this year. She wrote a legal brief on behalf of more than a dozen other cities. "We care for people, and we're engaging and being involved in the long-term solution for them."

The decision will not solve the larger problem of rising homelessness

Attorneys for homeless people in Grants Pass argued that the city’s regulations were so sweeping, they effectively made it illegal for someone without a home to exist. To discourage sleeping in public spaces, the city banned the use of stoves and sleeping bags, pillows or other bedding. But Grants Pass has no public shelter, only a Christian mission that imposes various restrictions and requires people to attend religious service.

"It's sort of the bare minimum in what a just society should expect, is that you're not going to punish someone for something they have no ability to control," said Ed Johnson of the Oregon Law Center, which represents those who sued the city.

He also said saddling people with fines and a criminal record makes it even harder for them to eventually get into housing.

Johnson and other advocates say today’s decision won’t change the core problem behind rising homelessness: a severe housing shortage, and rents that have become unaffordable for a record half of all tenants. The only real solution, they say, is to create lots more housing people can afford – and that will take years.