In a lengthy opinion issued on September 28, a three-judge panel on the Ninth Circuit Court of Appeals affirmed the federal district court’s ruling that the City of Grants Pass, Oregon, could not, consistent with the Eighth Amendment, enforce its
anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there was no lawful place in the city for them to go. The panel also held
that Martin applied to civil citations where the civil and criminal punishments were closely intertwined. Finally, the panel held that nothing in Martin precluded class actions.
As cities across the Ninth Circuit are aware, in 2018 the same court issued a decision in Martin v. Boise, holding that the Eighth Amendment
to the U.S. Constitution “prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter … because sitting, lying, and sleeping are …
universal and unavoidable consequences of being human.” The court declared that a governmental entity cannot “criminalize conduct that is an unavoidable consequence of being homeless – namely sitting, lying, or sleeping.” However,
the court narrowed its holding in Martin, clarifying that cities are not obligated to provide shelter for every unhoused individual nor to allow anyone to sleep outside at any time and any place.
Because Johnson v. City of Grants Pass began as a class action lawsuit approximately six weeks after the Martin opinion, the
Martin case served as the backdrop for the Grants Pass litigation.
Grants Pass is a small city in Oregon with a population of about 38,000. The number of unhoused individuals outnumber the available shelter beds. The city passed several ordinances related to the regulation of sleeping outside, which, taken together,
made it nearly impossible to sleep outside with any form of bedding or shelter, or in a vehicle, on public land. A violation of these ordinances resulted in fines, which would escalate if left unpaid.
Three homeless individuals in Grants Pass filed a class action lawsuit on behalf of those that are “involuntarily homeless” against the city, arguing its ordinances are unconstitutional under the Eighth Amendment’s Cruel and Unusual
Punishment Clause and Excessive Fines Clause, among other arguments. The Ninth Circuit held that the district court did not abuse its discretion by certifying a class action in the case. Although Martin requires an individualized inquiry
into whether the person is involuntarily homeless before enforcement can occur, the Ninth Circuit reasoned that this does not bar the existence of a class because under the facts in this case those who have access to an alternative sleeping location
would not be a class member which was limited to only those that were “involuntarily homeless.”
The Ninth Circuit also concluded that the city’s ordinances violated the Cruel and Unusual Punishment Clause and a “local government cannot avoid this ruling by issuing civil citations that, later, become criminal offenses.” The court
did not address ordinances that solely provided civil infractions. The Ninth Circuit affirmed the district court’s holding that “the anti-camping ordinances violated the Cruel and Unusual Punishment Clause to the extent they prohibited
homeless persons from ‘taking necessary minimal measures to keep themselves warm and dry while sleeping when there are no alternative forms of shelter available.’”
In conclusion, the court emphasized that its decision is a narrow one. Although reaching beyond Martin, the court expressly left the district court’s holding that the city may still ban the use of tents in public parks in place and noted
that the city’s prohibitions on erecting structures or using stoves or building fireplaces may or may not be permissible. Rather, the court instructed the district court on remand to “craft a narrower injunction recognizing” the
“limited right to protection against the elements.”
Unless the full Ninth Circuit court (en banc) or the U.S. Supreme Court overturns the decision, it is law and cities are encouraged to review their ordinances and enforcement practices with their legal counsel in light of this ruling.