Oral arguments for the City of Grants Pass v. Johnson lawsuit were on the calendar to begin in the Supreme Court of the United States (SCOTUS) on Monday, April 22. SCOTUS has time to rule before they adjourn on June 30.
While we have already written about this lawsuit, the impact on how cities will be able to deal with homelessness is so profound — especially since the criminalization of homelessness has been such a prevalent issue in Tennessee.
Let’s recap the big ways that Tennessee has been criminalizing homelessness. On July 1 of 2022, Tennessee became the first state to pass a law that made it a felony to camp on public land, which carries a potential punishment of up to six years in prison, a $3,000 fine and the loss of voting rights. Thus, it basically outlawed homelessness in public statewide. Tennessee lawmakers adopted portions of a cookie-cutter template provided by the Cicero Institute to state legislatures with a Republican majority, and the U.N. Committee on the Elimination of Racial Discrimination highlighted Tennessee for criminalizing homelessness in a report issued in August of 2022.
Criminalizing homelessness is nothing new. Actually, a majority of unhoused people I met over the years, especially when they have lived outdoors, have been arrested for minor issues. At a recent input session for an amicus brief, I learned that between Jan. 1 and March 8 of this year, Nashville has prosecuted more than 300 people for trespassing. Last year, the total was almost 1,600 trespassing arrests. While it was not clear how many of them were unhoused, attorneys and advocates believe it was most likely a majority of them.
Several years ago, I glanced through the Nashville arrest records of people who were identified as experiencing homelessness because they provided a local shelter or day center as their street address. All I remember is that I estimated that their arrests cost the city at least $1.4 million in one year. These arrests were for trespassing, public intoxication or obstruction of a passageway. None of them were held for a lengthy period of time, many just for one or two nights. By the way, those are all behaviors frequently exhibited by tourists in Downtown Nashville.
All this to say, arresting people who do not inflict harm on others, but merely try to survive with no place to go, is not solving homelessness. On the contrary, the additional charges create barriers for them to be able to access housing, even when it becomes available.
Several Tennessee cities have laws on the book that make it hard for people experiencing homelessness to exist. I did a little digging and looked up Tennessee municipalities that were mentioned in an amicus brief filed recently in relation to the City of Grants Pass v. Johnson case. One municipal code included the prohibition to obstruct “a highway, street, sidewalk, railway, waterway, elevator, aisle or hallway to which the public, or a substantial portion of the public, has access; or any other place used for the passage of persons, vehicles or conveyances, whether the obstruction arises from the person’s acts alone or from the person’s acts and the acts of others.” I lifted this quote from the Code of Ordinances of the City of Germantown, Tenn., which defines “obstruct” as to “render impassable or to render passage unreasonably inconvenient or potentially injurious to persons or property.” However, I could not find a clear definition of what constitutes inconvenience.
There were a few municipalities listed from Middle Tennessee with laws that prohibited loitering in the public square at certain times (overnight), trespassing, and loitering in a parking lot. The commonality is that there is still a great deal of officer discretion in all of these places.
Recently, I heard one vendor recall a story of what happened after she started selling papers in another part of town. When she ran into a police officer from the old neighborhood spot, he inquired where she had been because “her corner went to shit” while she was gone, with trash piling up at the site. She used to pick up any trash motorists would throw out their cars along the intersection where she sold the paper. This brings up another good point, many officers are not interested in arresting people for being homeless. But strict and expanded laws will require them to do so more frequently.
One of the many amicus briefs filed in City of Grants Pass v. Johnson was submitted by 57 scientists, researchers and professors. They clearly list evidence that shows that criminalizing homelessness actually is counter-productive to solving homelessness. They also point out that the cities in support of the City of Grants Pass lack a show of evidence to make their case, even though sufficient research exists that proves that access to housing and services solves homelessness whereas arresting people and displacing them perpetuates homelessness.
So, here is the actual question that SCOTUS is considering in this case: “Does the enforcement of generally applicable laws regulating camping on public property constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment?”
This is based on the fact that the City of Grants Pass began aggressively enforcing an ordinance that made it unlawful to sleep on public property with any accessory such as a blanket or cardboard, even when shelter was unavailable. Can you imagine sleeping in your own bed without a blanket when it’s cold? Now imagine doing that outdoors when you have no place to go.
Debra Blake (she has since passed away and Gloria Johnson and John Logan have been named as the main plaintiffs) representing the unhoused population sued the city and won. The city appealed, and eventually, the Ninth Circuit Court upheld a lower court’s ruling that prohibited the City of Grants Pass from continuing this type of enforcement. Consequently, the City of Grants Pass petitioned SCOTUS, and to the surprise of every homeless advocate nationwide, SCOTUS agreed to hear the case.
The reason everyone was surprised was because in 2019, SCOTUS declined to hear a case called Martin v. Boise, which held that cities cannot enforce anti-camping laws if there are not enough shelter beds available in the community. That decision, like with City of Grants Pass v. Johnson, was also based on the Eighth Amendment’s prohibition on cruel and unusual punishment. Both cases came out of the Ninth Circuit Court, which covers the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Martin v. Boise had far-reaching consequences, and I believe it helped protect people from widespread implementation of criminalization laws. In fact, a local public defender shared with me recently that only one person has been charged with felony camping in Middle Tennessee since 2022, and that case was dismissed. I recall conversations within Metro when we discussed our encampment protocols and the impact of the Martin v. Boise judgment as it came down in 2018 from the Ninth Circuit Court.
The consequences of this ruling will be nationwide. If SCOTUS upholds the current decision, then jurisdictions will no longer be able to criminalize people for simply existing when there is nowhere for them to go and their only option is to sleep in public.
Regardless of what happens, in practice, SCOTUS’ ruling will not really prevent all people experiencing homelessness from still getting harassed, moved along, or arrested. Officers have a lot of discretion in how they treat people.
But ruling in favor of Johnson et al. will definitely help prevent states and cities from outlawing the mere existence of people who have no safe place to go. Hopefully, it would also mean that states and cities would increasingly focus on investing more in low-income housing and services — proven strategies — to actually reduce homelessness.
On the other hand, if SCOTUS rules in favor of the City of Grants Pass, cities and states will have permission to essentially punish people with no places to go for their mere existence. We would make it official that the United States is a nation that allows the government to decide who is desirable and undesirable in our public spaces.
For more detailed information about the content of the City of Grants Pass v. Johnson case read our cover story from April 10, 2024 (Volume 18, Number 8) at www.thecontributor.org.