Public Agencies Should Consider Ongoing Challenges to the US Supreme Court’s Reversal of Johnson v. City of Grants Pass

In the summer of 2024, the US Supreme Court ruled in Johnson v. Grants Pass that the 8th Amendment’s bar on “cruel and unusual punishment” did not apply to homeless camping enforcement, personal property storage on public property, and overnight vehicle camping.  The Supreme Court upheld this enforcement without the obligation to offer alternative sleeping space/shelter before enforcing and overruled the prior Martin v. Boise case.

1. The Americans with Disabilities Act: a city’s failure to provide a “reasonable accommodation” to a disabled unhoused person before abating their illegal camp on public property was found by a court to pose a “serious question” about a violation of the ADA.
2. The “necessity defense”: an unhoused disabled elderly person successfully challenged a court order allowing a city to clean up a camp on the grounds that the judge did not consider her defense that it was “necessary” that she violate the law due to the lack of alternative available shelter, and her camp being close to a hospital that provided her care.
3. The Due Process clause of the US Constitution: an unhoused person who had built a large illegal structure on public property obtained a temporary order stopping the city from abating on the grounds that abatement without alternative available shelter violated the so-called “State created danger doctrine.”  The federal court in that case found that there was a potential violation by the city by removing her shelter “while knowing she had no alternatives” and was “likely to expose her to more dangerous conditions than she currently faces” without alternative shelter or a place to otherwise sleep in the city.

While two of these cases are ongoing and are not the final rulings, they clearly interpret that cities continue to face liability risk when abating homeless encampments. This highlights the importance of:

1. Updated and legally compliant ordinances,
2. Continually updated policies and procedures for abatement, confiscation noticing, storage, etc., and
3. Continuing to offer any available resources to homeless campers to overcome the various legal challenges presented above.

While Johnson v. City of Grants Pass made clear that cities do not have to offer alternative shelter or sleeping space under the 8th Amendment, other cases are finding this to be a requirement under other Constitutional amendments and federal laws, at least as a prerequisite to enforcing public camping and public storage ordinances. Public agencies should consider these ongoing cases when updating its public camping or homeless encampment enforcement ordinances.

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Legal Disclaimer: This news article provides updates and insights into current municipal legislation and is not intended as legal advice. Please consult your agency’s attorney for proper legal advice.