Seattle Rallies as Supreme Court Weighs Criminalizing Homelessness
The Grants Pass v. Johnson decision could make it easier to sweep encampments, but advocates say it may hinder the ability to get stable housing.
By Josh Cohen / April 23, 2024
For Gina Owens, the parallels between herself and Gloria Johnson — one of the plaintiffs in a case before the U.S. Supreme Court about criminalizing homelessness — are all too striking.
Owens used to be a nurse, but a car crash in the year 2000 disabled her spinal cord and left her unable to work. Without a steady income, she fell behind on her rent and was evicted into several years of homelessness.
Johnson, the lead plaintiff in Grants Pass v. Johnson, was also a career nurse who retired, but was unable to find housing she could afford on Social Security and became homeless, living in her minivan on the edge of town. On Monday, the Supreme Court heard oral argument in the class action lawsuit against Grants Pass, Oregon’s anti-public sleeping laws.
Owens, a leader with Washington Community Action Network and prominent homelessness activist in Seattle, spoke to a crowd of 60-70 people that afternoon outside the Nakamura Federal Courthouse in Downtown Seattle at a rally organized by the Services Not Sweeps Coalition.
A ruling in favor of Grants Pass could make it easier for cities to fine or jail people experiencing homelessness for sleeping in public. Lawyers and advocates fear a worst-case outcome that would functionally make it illegal to be homeless in public.
“I want the Supreme Court to listen to our stories … before they make their decision,” said Owens. “I want them to know that people are not criminals. They are mothers, fathers, brothers, sisters, friends, neighbors. They are the community members we live amongst every day. They are not criminals, and they should not be held as a criminal just simply by sleeping on the street.”
Grants Pass v. Johnson stems from a law in the city of Grants Pass meant to deter people experiencing homelessness from staying in town. The law bars anyone from sleeping in public spaces — including parks, sidewalks and in cars — or using materials such as blankets or sleeping bags for the purpose of maintaining a temporary place to live.
The town began aggressively enforcing the law in 2013, issuing $295 fines that increased to $537.60 if unpaid. After two citations, police can arrest someone for criminal trespass, which could result in 30 days in jail and another $1,250 fine.
At a March 2013 Grants Pass City Council meeting, then-Council President Lily Morgan said, “The point is to make it uncomfortable enough for them in our city so they will want to move on down the road.”
Advocates have long argued that criminalizing homelessness makes it much harder for people to get into housing and leave homelessness behind. The debt a person accrues from citations they cannot pay hurts their credit score and can make it harder to qualify for housing, as does having a criminal record.
In addition, jail time can lead to lost contact between case managers and homeless clients, which can be a huge setback in the arduous task of navigating the homeless-services system
In 2018, the Oregon Law Center filed a class action lawsuit on behalf of Debra Blake, a woman who’d been homeless in Grants Pass for nearly a decade and accumulated more than $5,000 in fines for sleeping in public. After Blake died in 2021, Gloria Johnson and John Logan, another homeless resident, stepped in as the named representatives in the class action.
The lawsuit argued that fines and jail time violated the Eighth Amendment’s prohibition on cruel and unusual punishment because people involuntarily experiencing homelessness have nowhere to sleep but public spaces. Grants Pass, a small city located in southern Oregon, has just a few homeless shelter options that fall far short of meeting every homeless resident’s needs.
Lawyers representing Grants Pass have argued that the city needs the laws to address safety and public health issues in homeless encampments.
Grants Pass v. Johnson has wended through the appeals process, with lower courts agreeing with the plaintiffs’ argument that the law violates the Eighth Amendment. It now falls to the Supreme Court to decide. The justices are expected to rule in late June.
After oral argument Monday, The New York Times reported that a majority of justices appeared to side with the City of Grants Pass, an outcome that would allow cities to more easily impose fines and jail time for people sleeping in public, regardless of the availability of shelter. Other court watchers, however, said that several justices floated the possibility that the federal judiciary might lack jurisdiction to hear the case at all and that homelessness policy should remain a local government issue.
“If the Supreme Court finds in favor of Grants Pass, it will be dystopian,” said Sara Rankin at Monday’s rally. Rankin is a Seattle University law professor and head of the Homeless Rights Advocacy Project. “It will be like a domino effect. Every city is going to then outlaw sleeping within the city boundaries, and you could have an entire patchwork of states in which it is not legal for you to exist if you don’t have a home.”
Though Rankin worries about the ripple effect of the Supreme Court siding with Grants Pass, she cautioned people to understand the limits of the case. It does not have bearing on a city’s legal ability to clear unauthorized encampments; or the ability to restrict when and where people can set up encampments; or even the ability to impose fines or arrests when people refuse offers of available shelter.
Instead, the Court’s ruling will determine primarily whether cities can ban public homelessness regardless of whether there’s adequate shelter or housing for people to move to. In its 2022 ruling in favor of Johnson, the U.S. Court of Appeals for the Ninth Circuit cited its own 2018 ruling in Martin v. Boise, which said that cities cannot enforce camping bans if there’s inadequate shelter space to offer people.
In September, Seattle City Attorney Ann Davison joined the National League of Cities and a slew of other cities including Spokane, Tacoma and San Diego in support of Grants Pass, submitting an amicus brief urging the Supreme Court to review Grants Pass v. Johnson.
Their brief stated, “The homelessness crisis is complex and the Ninth Circuit’s decisions have paralyzed local communities’ ability to address it in the places where it is most acute.”
The authors take the stance that the Ninth Circuit’s “shelter availability” test is unworkable for local municipalities. The brief states that the test has, “the practical effect of imposing a judge-made financial obligation on local governments to provide public shelter options, regardless of whether local policymakers and their experts believe that is the best way to address homelessness.”
Seattle has continued to clear unauthorized encampments. The Seattle Times reported that the city removed thousands of tents from public spaces in 2023, but only 16% of those people in clear encampments entered a shelter immediately afterwards. Furthermore, Publicola reported that those shelter enrollments can last for as little as one night — far from a sustained solution to street homelessness.
Alison Eisinger, executive director of the Seattle/King County Coalition on Homelessness, acknowledges things could get worse for homeless residents should the Supreme Court side with Grants Pass. But she doesn’t want people to lose sight of how bad things already are.
“We are so far from a world in which people are offered shelter or housing that meets their needs and [still] refuse it,” Eisinger told Cascade PBS. “We are completely underwater. More than half the [tens of thousands of] people experiencing homelessness in King County are unsheltered.”
The Coalition on Homelessness was one of several local organizations and individuals that worked together to file an amicus brief in Grants Pass v. Johnson arguing against the city’s laws. The group also included former King County Prosecuting Attorney Dan Satterberg, the advocacy group WHEEL (Women’s Housing, Equality and Enhancement League) and King County’s former chief medical examiner Richard Harruff.
Eisinger said that regardless of the outcome of Grants Pass v. Johnson, building more affordable housing will still be the most important tool for addressing homelessness.
“This case isn’t actually about homelessness; it is about failures at the tiny-city, big-city, state and federal level to do what is necessary to respond to the lack of affordable homes,” she said. “We have to continue to resist the bad, and we have to work even harder, not only for what is good and effective, but to scale it up.”
This article was updated with information about Seattle City Attorney Ann Davison’s amicus brief.