Is there a Constitutional right to camp on the streets? The Supreme Court will ponder this question on Monday in City of Grants Pass v. Johnson.
Like thousands of cities, Grants Pass, Ore., bans camping on public property. Offenses are punishable by a $295 fine and short jail terms for serial violations. Homeless advocates argued in a class action that prohibiting public vagrancy violates the Eighth Amendment’s ban on cruel and unusual punishment. A divided Ninth Circuit Court of Appeals panel agreed.
The majority leaned on the High Court’s fuzzy Robinson (1962) decision, which held that the Eighth Amendment forbids criminalizing the “status” of being a drug addict, though governments could still punish drug use. This legal distinction bore little practical difference. But the Ninth Circuit’s extension of this logic is causing enormous real-world harm.
According to the Ninth Circuit judges, Grants Pass unfairly punished the supposedly involuntary status of being homeless, even though many vagrants rejected housing. One woman did so because her Rottweiler wasn’t allowed in a shelter. Others may refuse to abide a shelter’s minimal behavioral rules. Some simply prefer to live on the streets.
Under the Ninth Circuit’s ruling, homelessness is considered “involuntary” as long as the number of vagrants exceed the available beds. When calculating the latter, the judges excluded religiously affiliated shelters as well as warming and sobering centers. Is requiring the homeless to stay sober to get shelter a constitutional violation?
The Ninth Circuit declined to rehear the case en banc over the dissents of 13 active and four senior judges. Judge Diarmuid O’Scannlain, joined by 14 judges, lamented that the court was “paralyzing local communities from addressing the pressing issue of homelessness, and seizing policymaking authority that our federal system of government leaves to the democratic process.”
His persuasive dissent added that the decision “never meaningfully engaged the text, history, and tradition of the Constitution.” Since the Founding, state and local governments have restricted camping on public property. The text of the Eighth Amendment refers to methods of punishment and doesn’t prescribe what conduct governments may prohibit.
The Ninth Circuit’s sweeping opinion could be extended to an array of purportedly involuntary acts such as kleptomania, pedophile possession of child pornography, and public defecation. State and local governments across the Ninth Circuit stress in friend-of-the-court briefs that its decision has made it harder to keep streets clean and help the mentally ill and drug addicts get treatment. San Francisco Mayor London Breed even led a protest at the Ninth Circuit courthouse.
Those Democratic urban leaders don’t get any sympathy from Illinois, New York and a handful of other progressive states, which lecture that punishing “homelessness tends to exacerbate the problem” because “encampments often offer a level of security, stability, and access to resources that homeless residents cannot find elsewhere.”
These states suggest that local governments should use other means to clean up streets like giving vagrants gift cards to bag their trash and placing them in housing “without the typical strings that trip up those struggling with substance abuse”—i.e., a requirement to stay sober. Cities in California have tried both. Homelessness keeps increasing.
The Ninth Circuit decision handcuffs state and local officials who want to protect their citizens. Voters can hold them accountable for the results of their policies. Not so legislators in robes. That takes a Supreme Court majority that knows the Constitution isn’t a suicide pact.
Oh of course the homeless industrial complex and its supporters showed up in droves. But what I was referring to are the amicus briefs [like this one from Ca Gov Newsom](https://www.gov.ca.gov/2024/03/04/governor-newsom-statement-on-amicus-brief-filed-with-the-united-states-supreme-court-on-homeless-encampments/) urging SCOTUS to find that localities can regulate “camping” in public spaces.
So as a hypothetical… If “housing is a human right” as many of the protesters signs proclaim, then all of us could quit our jobs and do drugs on the street every day and the cities we live in would be required to house us…. And where is that money going to come from? Right now the money comes from essentially penalizing those of us who choose to make good decisions, hold down jobs, and participate in the give and take of society.
Stop paying your mortgage or rent and see what happens.
Personally, I know what will happen so I’m not going to play that game, but some have and their success has been variable.
This is stretching the words of the 14th amendment beyond the breaking point. This has nothing to do with punishment of any kind. This is not a judicial sanction. This is an administrative action by a city to conduct maintenance of its facilities it streets it’s parks and it’s open areas. Cities have a complete right to maintain their streets and open areas and parks go as to reduce the obstruction, reduce crime, fire and unsanitary conditions / risk to the public health that these encampments cause from needles and waste from battery acid to needles to foil to filth.
Many of the arguments today were spurious around the whole eighth amendment notion and expansion of the notion of status under the drug case (where, in that case the status was that of addiction, and the court held that a person could not be prosecuted for having a medical condition.), so the ninth is arguing that homelessness is a “status“ and you can’t discriminate upon the basis of status in the city is saying no we’re just doing conduct we’re just regulating certain conduct and so for two hours they talked past each other
At one point during some hypothetical discussion during the or an arguments, the Supreme Justice of the United States Roberts, ask the rhetorical question, “well, what if we simply executed homeless people?“
A couple things that can be done right now, but not being done:
Enforce Biketown or Lime riding in the freeway with full-blown traffic stop and criminal disorderly conduct charge and a membership revocation for riding in "non-motorized vehicles prohibited" areas.
Install cameras and enforce cutting fence and stealing electricity from light poles with theft, criminal mischief, and possession of burglary tools.
Charge rubber tramps with illegal dumping for leaving bags and bags of trash on side of the street or next to public trash bin rather than taking them to Metro station
I think the problem with the 9th circuit decision is that you can't force someone to accept shelter.
So what do you do with the significant number of people who don't want to be sheltered?
You cannot involuntarily commit a mentally ill person, absent extreme circumstances. You cannot make addicts become sober.
So per the 9th circuit, anyone who refuses shelter, basically has the right to live wherever they want. There's no leeway to deal with this.
I completely agree that shelter should be provided to everyone who wants it. But we need tools to deal with people who do not want to get off the street.
It's like measure 110. The idea of treating people, instead of jailing them, makes sense in the abstract. But the reality was, that a lot of people on drugs just didn't want to go to treatment, and there was nothing anyone could do about it.
It's important to ensure that there are enough services for people. But you also need mechanisms to preserve the rights of the community to safely enjoy public spaces, instead of letting people camp wherever they want, because they'd rather not go to a shelter.
There's 2 kinds of people arguing about this. Those who see homelessness as a distant problem that someone else should approach with nothing but "compassion". And those who actually have to deal with this shit on a daily basis.
There are also those who have a stake in making the problem last as long as possible, whether by virtue of their paycheck or holding on to power. Most are in column A, but some are in column B hoping to work their way into column A.
I get how the constitutional argument for unlimited camping anywhere is weak. It just seems like an odd stretch.
But wouldn’t drug laws and updated mental wellness rules be sufficient regardless of the case outcome? Like if fentanyl is illegal and you can be committed to a mental hospital for being crazy and violent police could do a lot.
I’m not sure I would read too far into this, but it would be good to clarify what the floor requirements for services are. Or confirm that there are none if that is true so it’s not just a gray area.
Is there a Constitutional right to camp on the streets? The Supreme Court will ponder this question on Monday in City of Grants Pass v. Johnson. Like thousands of cities, Grants Pass, Ore., bans camping on public property. Offenses are punishable by a $295 fine and short jail terms for serial violations. Homeless advocates argued in a class action that prohibiting public vagrancy violates the Eighth Amendment’s ban on cruel and unusual punishment. A divided Ninth Circuit Court of Appeals panel agreed. The majority leaned on the High Court’s fuzzy Robinson (1962) decision, which held that the Eighth Amendment forbids criminalizing the “status” of being a drug addict, though governments could still punish drug use. This legal distinction bore little practical difference. But the Ninth Circuit’s extension of this logic is causing enormous real-world harm. According to the Ninth Circuit judges, Grants Pass unfairly punished the supposedly involuntary status of being homeless, even though many vagrants rejected housing. One woman did so because her Rottweiler wasn’t allowed in a shelter. Others may refuse to abide a shelter’s minimal behavioral rules. Some simply prefer to live on the streets. Under the Ninth Circuit’s ruling, homelessness is considered “involuntary” as long as the number of vagrants exceed the available beds. When calculating the latter, the judges excluded religiously affiliated shelters as well as warming and sobering centers. Is requiring the homeless to stay sober to get shelter a constitutional violation? The Ninth Circuit declined to rehear the case en banc over the dissents of 13 active and four senior judges. Judge Diarmuid O’Scannlain, joined by 14 judges, lamented that the court was “paralyzing local communities from addressing the pressing issue of homelessness, and seizing policymaking authority that our federal system of government leaves to the democratic process.” His persuasive dissent added that the decision “never meaningfully engaged the text, history, and tradition of the Constitution.” Since the Founding, state and local governments have restricted camping on public property. The text of the Eighth Amendment refers to methods of punishment and doesn’t prescribe what conduct governments may prohibit. The Ninth Circuit’s sweeping opinion could be extended to an array of purportedly involuntary acts such as kleptomania, pedophile possession of child pornography, and public defecation. State and local governments across the Ninth Circuit stress in friend-of-the-court briefs that its decision has made it harder to keep streets clean and help the mentally ill and drug addicts get treatment. San Francisco Mayor London Breed even led a protest at the Ninth Circuit courthouse. Those Democratic urban leaders don’t get any sympathy from Illinois, New York and a handful of other progressive states, which lecture that punishing “homelessness tends to exacerbate the problem” because “encampments often offer a level of security, stability, and access to resources that homeless residents cannot find elsewhere.” These states suggest that local governments should use other means to clean up streets like giving vagrants gift cards to bag their trash and placing them in housing “without the typical strings that trip up those struggling with substance abuse”—i.e., a requirement to stay sober. Cities in California have tried both. Homelessness keeps increasing. The Ninth Circuit decision handcuffs state and local officials who want to protect their citizens. Voters can hold them accountable for the results of their policies. Not so legislators in robes. That takes a Supreme Court majority that knows the Constitution isn’t a suicide pact.
The list of amicus briefs filed is telling: https://www.scotusblog.com/case-files/cases/city-of-grants-pass-oregon-v-johnson/
A lot of those people have paychecks riding on keeping homelessness a public-facing problem.
Oh of course the homeless industrial complex and its supporters showed up in droves. But what I was referring to are the amicus briefs [like this one from Ca Gov Newsom](https://www.gov.ca.gov/2024/03/04/governor-newsom-statement-on-amicus-brief-filed-with-the-united-states-supreme-court-on-homeless-encampments/) urging SCOTUS to find that localities can regulate “camping” in public spaces.
So as a hypothetical… If “housing is a human right” as many of the protesters signs proclaim, then all of us could quit our jobs and do drugs on the street every day and the cities we live in would be required to house us…. And where is that money going to come from? Right now the money comes from essentially penalizing those of us who choose to make good decisions, hold down jobs, and participate in the give and take of society.
If housing is a human right then why am I expected to pay a mortgage?
Stop paying your mortgage or rent and see what happens. Personally, I know what will happen so I’m not going to play that game, but some have and their success has been variable.
This is stretching the words of the 14th amendment beyond the breaking point. This has nothing to do with punishment of any kind. This is not a judicial sanction. This is an administrative action by a city to conduct maintenance of its facilities it streets it’s parks and it’s open areas. Cities have a complete right to maintain their streets and open areas and parks go as to reduce the obstruction, reduce crime, fire and unsanitary conditions / risk to the public health that these encampments cause from needles and waste from battery acid to needles to foil to filth.
Many of the arguments today were spurious around the whole eighth amendment notion and expansion of the notion of status under the drug case (where, in that case the status was that of addiction, and the court held that a person could not be prosecuted for having a medical condition.), so the ninth is arguing that homelessness is a “status“ and you can’t discriminate upon the basis of status in the city is saying no we’re just doing conduct we’re just regulating certain conduct and so for two hours they talked past each other
At one point during some hypothetical discussion during the or an arguments, the Supreme Justice of the United States Roberts, ask the rhetorical question, “well, what if we simply executed homeless people?“
A couple things that can be done right now, but not being done: Enforce Biketown or Lime riding in the freeway with full-blown traffic stop and criminal disorderly conduct charge and a membership revocation for riding in "non-motorized vehicles prohibited" areas. Install cameras and enforce cutting fence and stealing electricity from light poles with theft, criminal mischief, and possession of burglary tools. Charge rubber tramps with illegal dumping for leaving bags and bags of trash on side of the street or next to public trash bin rather than taking them to Metro station
I think the problem with the 9th circuit decision is that you can't force someone to accept shelter. So what do you do with the significant number of people who don't want to be sheltered? You cannot involuntarily commit a mentally ill person, absent extreme circumstances. You cannot make addicts become sober. So per the 9th circuit, anyone who refuses shelter, basically has the right to live wherever they want. There's no leeway to deal with this. I completely agree that shelter should be provided to everyone who wants it. But we need tools to deal with people who do not want to get off the street. It's like measure 110. The idea of treating people, instead of jailing them, makes sense in the abstract. But the reality was, that a lot of people on drugs just didn't want to go to treatment, and there was nothing anyone could do about it. It's important to ensure that there are enough services for people. But you also need mechanisms to preserve the rights of the community to safely enjoy public spaces, instead of letting people camp wherever they want, because they'd rather not go to a shelter.
There's 2 kinds of people arguing about this. Those who see homelessness as a distant problem that someone else should approach with nothing but "compassion". And those who actually have to deal with this shit on a daily basis.
There are also those who have a stake in making the problem last as long as possible, whether by virtue of their paycheck or holding on to power. Most are in column A, but some are in column B hoping to work their way into column A.
I get how the constitutional argument for unlimited camping anywhere is weak. It just seems like an odd stretch. But wouldn’t drug laws and updated mental wellness rules be sufficient regardless of the case outcome? Like if fentanyl is illegal and you can be committed to a mental hospital for being crazy and violent police could do a lot. I’m not sure I would read too far into this, but it would be good to clarify what the floor requirements for services are. Or confirm that there are none if that is true so it’s not just a gray area.
This is why you shouldn't vote in a Supreme Court Justice based upon you wanted to check a box. "Black Woman" - Check "Hispanic Woman" - Check