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New 9th Circuit Ruling in Johnson v. City of Grants Pass Affects Enforcement of Public Camping Ordinances

by | Aug 9, 2023 | Legal Rulings


Homeless encampments are a pervasive and growing issue affecting communities across the United States. Following the 9th Circuit Court of Appeals’ ruling in Martin v. City of Boise that prohibited cities from criminally enforcing local public camping ordinances absent an alternative place to sleep, some public agencies looked to other means to enforce such ordinances and otherwise regulate public camping issues.  Some approaches focused on administrative enforcement through fines, or regulating camping paraphernalia, such as pillows and blankets. 

Johnson v. City of Grants Pass is the 9th Circuit’s newest ruling on local enforcement of homeless camping and expands Boise to include administrative enforcement, regulation of certain sleeping items, and camping in vehicles.  This ruling further limits what and how cities can enforce local ordinances pertaining to homelessness.  Cities will need to update their ordinances and procedures for enforcement.

Case Background

In September 2018, a three-judge panel issued Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2018), holding that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homelessness individuals who cannot obtain shelter.” [1] However, Martin also established that a city is not required to “provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets, at any time and at any place.[2] Further, Martin established that the government cannot prosecute homeless people for sleeping in public if there is a “greater number of homeless individuals in [a jurisdiction] than the number of available shelter spaces; shelters with a “mandatory religious focus” could not be counted as available due to potential violations of the First Amendment’s Establishment Clause.[3]

In Grants Pass, three homeless individuals filed a class action lawsuit against the City of Grants Pass challenging the constitutionality of the city’s enforcement of their public camping ordinance through civil (administrative) fines, as well as the city’s prohibition on certain sleeping accessories for people camping in public.  The city’s ordinance criminalized repeated violations after administrative fines were issued, and prohibited the use of certain sleeping accessories, such as blankets and pillows.

The trial court judge agreed with the plaintiffs, finding parts of the city’s ordinances unconstitutional in light of Martin, and issued an injunction prohibiting the city from enforcement.  The court determined that although Martin only involved criminal prosecution, administrative enforcement that ultimately could result in criminal enforcement also violates the 8th Amendment and that certain basic sleeping elements were within the protection of the Martin case.

On appeal, the 9th Circuit upheld the lower court’s ruling, expanding Martin to cover not only criminal enforcement of ordinances concerning sleeping in public, but also administrative enforcement that could result in criminal enforcement, and redefining the term “sleeping” to include rudimentary forms of protection from the elements, as well as overnight sleeping in vehicles. 


  • The ruling in Martin set the stage for this litigation.
  • Administrative enforcement of ordinances that could result in criminal enforcement violates the 8th Amendment.
  • Local agencies must treat “rudimentary protection against the elements,” equivalent to “sleeping,” for purposes of Martin.  However, the term is not clearly defined.
  • Individuals are involuntarily homeless when they do not have adequate access to shelters, and those shelters must be “reasonably available”, which includes non-religious in nature, although the other parameters of “reasonably available” are not defined.


  • Local agencies may be subject to class action suits for laws that disproportionately impact homeless individuals.
  • The extent and scope of “rudimentary protection against the elements” is under review by the trial court, and that definition may be the subject of a later appeal.
  • Grants Pass does not affect a local agency’s ability to enforce health and safety measures.
  • Administrative enforcement now will be treated the same as criminal enforcement under Martin, and other enforcement tools, including civil enforcement, likely will follow.

Civica Law Group, APC, is a municipal law firm specializing in code enforcement, public agency litigation, and municipal law. The attorneys at Civica Law regularly assist cities, counties, and special districts in enforcing local and State laws. With the current state of enforcing camping ordinances in flux, it is vital for public agencies to stay up to date with the law and update their ordinances and policies accordingly to maximize compliance and minimize liability risk.

Disclaimer: Civica Law Group, APC legal alerts are not intended as legal advice. Additional facts or future developments may affect the subject of this alert. Seek the advice of an attorney before acting or relying upon any information in this alert.

[1] See Id at 617.

[2] See Id.

[3] See Id at 609-10 (Citing Inouye v. Kemna, 504 F3d 705, 712-13 (9th Cir. 2007).

About the Author

  • Civica Law

    With over 75 collective years of experience, Civica Law has helped cities and counties abate thousands of dangerous and substandard properties, improve housing conditions, and effectively deal with a wide range of quality-of-life issues, from homeless encampments to cannabis, drug, and gang dens to illegal gambling (or tap-tap) facilities, illegal business operations, human trafficking and massage, land use, and zoning, and virtually every other conceivable quality of life and safety issue a public agency may face.

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