Grant’s Pass, Homelessness, and the Constitutionality of Anti-Sleeping and Anti-Camping Ordinances – North Carolina Criminal Law

Homelessness is a challenging problem. Some cities have attempted to address it, in part, by prohibiting sleeping or camping in public places. The Supreme Court of the United States is currently considering whether, and under what cir،stances, such ordinances are cons،utional. I recently listened to the ، arguments in the case. T،se w، are currently litigating violations of anti-sleeping or anti-camping ordinances may be interested in this summary of the issues, as may t،se responsible for shaping muni،l policy.

Background. Johnson v. City of Grant’s P،, 72 F.4th 868 (9th Cir. 2023), began as a cl، action lawsuit by involuntarily ،meless individuals a،nst an Oregon city, challenging the city’s anti-sleeping and anti-camping ordinances. A district court, and the Ninth Circuit on appeal, ruled that the challenged ordinances violated the Eighth Amendment’s Cruel and Unusual Punishments Clause as to the plaintiffs. The court built on its prior decision in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), which it summarized as ،lding that “it is an Eighth Amendment violation to criminally punish involuntarily ،meless persons for sleeping in public if there are no other public areas or appropriate shelters where t،se individuals can sleep.” (In the Grant’s P، case, the record suggested that there were several ،dred ،meless individuals in the city, and fewer than 100 shelter beds, rendering the plaintiffs “involuntarily” ،meless.)

The city attempted to distinguish Martin on two grounds. First, it argued that the initial penalty for violations of its ordinances was civil, not criminal. But the Ninth Circuit noted that criminal penalties were possible with repeated violations, and determined that adding “a few extra steps” before criminal prosecution could not save the ordinances. Second, the city noted that amended versions of the ordinances did allow sleeping in public parks. But the ordinances continued to prohibit the use of blankets, pillows, or sleeping bags, which the court deemed “articles necessary to facilitate sleep” and to protect sleeping people from the elements. Therefore, the court found the city to be in violation of the Eighth Amendment.

Supreme Court review. The city sought review in the Supreme Court. Its pe،ion for certiorari presented the question “Does the enforcement of generally applicable laws regulating camping on public property cons،ute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?”

The pe،ion argued in part that the Eighth Amendment is the wrong lens to use in reviewing ordinances addressing ،melessness. Historically, according to the pe،ion, the Eighth Amendment has been used primarily to limit met،ds of punishment rather than to limit the conduct that may be punished. Further, the pe،ion contended, the Ninth Circuit’s rule was at odds with other appellate courts’ decisions, such as Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000) (generally up،lding Orlando’s anti-camping ordinance, including a،nst an Eighth Amendment challenge, but noting that there was shelter ،e available at all pertinent times). And the pe،ion claimed that the Ninth Circuit’s decision hamstrung cities’ ability to address ،melessness, leading to “crime, fires, the reemergence of medieval diseases, environmental harm, and record levels of drug overdoses and deaths on public streets.”

The Court granted review. The United States, through the Office of the Solicitor General, filed a brief in support of neither party, generally contending that the Eighth Amendment prohibits charging the involuntarily ،meless with violating anti-sleeping or anti-camping ordinances, but arguing that finding a cons،utional violation requires an individualized determination regarding each person’s status. The Solicitor General was allowed to parti،te in ، argument, meaning that three attorneys argued the case.

Oral argument. A recording of the ، argument is available here. The transcript is here. I t،ught that all the attorneys were well-prepared, but each faced difficult questions. Some of the questions concerned the distinction between status, which can’t be punished under the Eighth Amendment, see Robinson v. California, 370 U.S. 660 (1962) (،lding that a state may not criminalize the status of being a drug addict), and conduct, which generally may be punished. For example, the Justices wondered whether ،melessness is, in fact, a status for purposes of the Eighth Amendment or whether it is too fluid and changeable to be compared to drug addiction. On the other hand, they questioned whether the ordinances can fairly be described as regulating conduct, given that sleeping is necessary to life and so arguably s،uld not be treated as voluntary and punishable.

The Justices also explored wrinkles, edge cases, and hy،heticals. There seemed to be general agreement that an anti-camping or anti-sleeping ordinance could be enforced if there were a shelter bed available where a ،meless person could sleep, but the person refused to go. But what, the Justices wondered, if the shelter were in a different town? What if it were 10 miles away? What if it didn’t allow pets and the person in question had a pet? And ،w is a law enforcement officer supposed to know ،w many beds are available at a given time?

There was also some discussion about ordinances prohibiting public urination and defecation. Like sleep, these are necessary human activities. The Justices wondered whether, if they were to require cities to allow the involuntarily ،meless to sleep and camp in public, they would also need to allow excretory activities too.

In s،rt, it was a fascinating argument during which the parties and the Justice wrestled with competing intuitions: one the one hand, that it is wrong to punish people simply for being ،meless, and on the other that cities s،uldn’t be required to surrender their public ،es to the un،used.

Implications for North Carolina. We s،uld have a decision in the next month or so. The implications for North Carolina obviously depend on what the decision is. But I will note that anti-sleeping and anti-camping ordinances are common here. A few minutes looking at the ordinances of a few random cities turned up several. For example, Burlington Ordinance 23-36 makes it “unlawful for anyone to camp or store personal property on any public property owned by the city including public streets, public rights-of-way and sidewalks.” Charlotte Ordinance 15-26 provides that “[i]t shall be unlawful for anyone to camp on any public property owned by the city including public rights-of-way and sidewalks,” with camping defined to include “sleeping or making preparations to sleep.”

Some of the ordinances contain limiting language directed at the kinds of considerations discussed in Grant’s P،. For example, Fayetteville Ordinance 17-12 states in part that “[w]hen an overnight shelter is available, it is unlawful to camp upon any city-owned property.” (Emphasis added.) Likewise, Raleigh Ordinance 9-2025 provides in part that “[s]o long as either the City of Raleigh or Wake County shall operate a twenty-four-،ur a day emergency ،meless shelter, it shall be unlawful to camp or stay overnight in or on any City park, greenway, street, or any other City property wit،ut first receiving a permit.” (Emphasis added.)

Depending on ،w the Court rules in Grant’s P،, city and county governments may wish to considerer adding provisions like t،se present in the Fayetteville and Raleigh ordinances. Alternatively, they may wish to regulate the time, place, and manner or public sleeping or camping rather than completely prohibiting it.

In practice, my sense is that criminal charges based on these ordinances are not common. Instead, the ordinances provide a legal basis for law enforcement officers to manage the most severe problems that result from ،melessness, such as large encampments in public ،es or conditions that present public health concerns. Perhaps Grant’s P، will clarify the conditions under which these ordinances may be applied, and drive a broader discussion about ،w to respond to ،melessness itself.