After SCOTUS decision, WA homeless camping bans may gain traction

The Court ruled that laws limiting public sleeping are not cruel and unusual, regardless of shelter, which advocates fear will lead to “dystopian” bans.

two women stand on steps at a rally. one is holding a sign

Protesters rally at the Nakamura Federal Courthouse, Monday, as the U.S. Supreme Court heard oral arguments in Grants Pass v. Johnson, a case that would make it easier for cities to fine or jail people experienceing homelessness for sleeping in public, April 22, 2024. (Genna Martin/Cascade PBS)

On Friday, the U.S. Supreme Court upheld Grants Pass, Oregon’s criminalization of sleeping in public, a decision that’s sure to have ripple effects in Washington state.  

Though Seattle’s mayor says the new legal precedent won’t change the city’s approach to homeless encampments, there are several ongoing legal challenges to public camping bans elsewhere in the state that could be impacted by the high court’s ruling.

In a 6-3 decision split on ideological lines, the court ruled that an Oregon town’s ban on sleeping outdoors does not constitute cruel and unusual punishment, effectively sanctioning the criminalization of homelessness.  

The ruling comes as the number of people experiencing homelessness has reached record highs in King County and across the United States and public homeless encampments have become a flashpoint political issue, especially in West Coast cities.  

Grants Pass v. Johnson stems from a law in the small southern Oregon city of Grants Pass that imposed steep fines and potential jail time for people sleeping in public parks, on sidewalks or in cars.  

In 2018, a group of homeless residents sued the city, arguing that the fines and jail time violated the Eighth Amendment’s prohibition on cruel and unusual punishment because there were not enough shelter spaces in town and people experiencing homelessness had no alternative but to sleep in public.  

Lawyers successfully made a similar argument in Martin v. Boise, a 2018 case decided in the U.S. Court of Appeals for the Ninth Circuit that ruled cities cannot enforce camping bans without offering homeless residents a shelter space alternative.  

In his majority opinion, Justice Neil Gorsuch wrote that Grants Pass’ law is not cruel because it does not inflict “terror, pain, or disgrace,” nor is it unusual because limited fines and jail time are “‘the usual mode[s]’ for punishing criminal offenses throughout the country.” 

In her dissent, Justice Sonia Sotomayor wrote, “Sleep is a biological necessity, not a crime. … For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment.” Sotomayor was joined in dissent by Justices Elena Kagan and Ketanji Brown Jackson.  

The Supreme Court took up Grants Pass v. Johnson at the urging of a bipartisan collection of local and state leaders who argued that Martin v. Boise had hamstrung their ability to address homeless encampments. Seattle City Attorney Ann Davison filed an amicus brief last September with more than a dozen other cities including Spokane, Tacoma and San Diego siding with Grants Pass.  

In that brief, Davison and other city leaders wrote, “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.” 

Seattle has continued to clear unauthorized encampments in the years following Martin v. Boise. The Seattle Times reported that the city removed thousands of tents from public spaces in 2023, but only 16% of those people in cleared encampments entered a shelter immediately afterward.  

The 2024 “point in time” count found 16,385 people are experiencing homelessness in King County, 60% of whom are living outside, in vehicles or other places not considered fit for human habitation. That’s a 23% increase in homelessness over the previous count, which took place in 2022.  

Mayor Bruce Harrell has maintained that Seattle’s approach to homelessness will not change with the ruling. In a statement released Friday, the mayor’s office said, “Our approach to resolving encampments is based on data, best practices, and our values – and the Supreme Court decision will not affect that approach.” 

Advocates, however, fear that the court’s decision will have chilling ramifications for people experiencing homelessness. At a rally outside the Downtown Seattle federal courthouse in April, Seattle University law professor Sara Rankin, who heads up the school’s Homeless Rights Advocacy Project, argued a ruling in favor of Grants Pass would be dystopian.  

“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,” Rankin told the crowd.  

Advocates have long argued that criminalizing homelessness makes it much harder for people to get into housing and exit homelessness. 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. 

Regardless of Seattle’s response to the SCOTUS decision, Grants Pass will surely have an impact elsewhere in King County and Washington. Last September, Burien passed a ban on resting, lying down or sleeping on public property between 7 p.m. and 6 a.m. as well as camping within 500 feet of day cares, parks, libraries and schools.  

The King County Sheriff’s Office questioned the legality of the ban and refused to enforce it. In March, the office filed a complaint in U.S. District Court asking a judge to weigh in on its constitutionality. Three homeless residents and the Seattle/King County Coalition on Homelessness also filed a lawsuit in King County Superior Court against Burien’s ban.  

In Spokane, public camping has long been illegal, but the Spokesman Review reports that citations are only issued when there is shelter space available to offer. In November, Spokane voters approved Proposition 1, which expands the boundaries of the city’s ban on camping and storing personal property in public.  

A group of homelessness advocates sued the initiative effort before the 2023 election in an attempt to get it removed from the ballot, arguing that it is outside the legal scope of a local ballot measure. This month, the Washington State Supreme Court agreed to take up the case.  

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