Grants Pass v. Johnson

When Martin v. City of Boise came down in 2019, Boise asked the Supreme Court to hear the case, but the court denied cert. I was working as a municipal attorney at the time and I was extremely frustrated with the denial. Like so many municipalities around the country, the city I was working for was struggling with how to tackle the the thorny problem of growing homelessness, and the legal uncertainty created by Martin only compounded those difficulties.

But this term the court granted cert on a follow on case to Martin, City of Grants Pass v. Johnson. In Grants Pass, the Ninth Circuit authorized the certification of a class action lawsuit by homeless individuals against the City of Grants Pass, Oregon, where there are no shelter beds available as an alternative to sleeping outside for the city’s homeless population.

As I talked about last time, the Ninth Circuit in Martin cobbled together the dissenting opinions of four Justices with a concurrence in the judgment by Justice White in Powell v. Texas to conclude that it is unconstitutional under the Eighth Amendment for a municipality to punish involuntarily homeless persons for sleeping outside when there are not enough shelter beds available for them to avoid doing so. Adding together the four dissenters and Justice White, the Ninth Circuit derived a 5 Justice majority for the proposition that punishing a person for conduct compelled by an underlying status or condition is cruel and unusual punishment. It would therefore be cruel and unusual to punish the homeless for the unavoidable conduct of sleeping outside if they have nowhere else to go.

The problem with this reading of Powell is that it is seemingly at odds with the actual judgment in the case, which upheld the Texas law in question prohibiting public intoxication. Four non-dissenting justices thought that the Eighth Amendment prohibits criminalizing a mere passive status, and public intoxication involves the additional conduct of appearing outside while drunk. Justice White concurred, but speculated that if someone were homeless, they might be compelled by their alcoholism to be publicly drunk. Thus five justices agreed that the public intoxication law was constitutional, at least as to Powell, who did not offer evidence he was homeless.

So was the Ninth Circuit correct to rely on the dissent plus Justice White? The dissenters in Martin did not think so. In a scathing dissent to the denial of rehearing en banc, Judge Smith, joined by 5 other circuit judges, argued that the majority’s reading of Powell was incorrect under Marks v. United States, a Supreme Court case in which the court explained how to interpret decisions in which no single rationale for the outcome garnered a majority of the court.

Under Marks, the holding of the court is the position taken by the justices who concurred in the judgment on the narrowest grounds. According to Judge Smith, then, the Powell dissenters’ opinions could not be counted. Applying Marks to Powell, the holding of that case would be only that the conviction was constitutional because it involved the commission of an act.

Judge Smith went on to excoriate the Martin majority for effectively preempting local governments from addressing the scourge of homelessness. How could any large municipality know for certain on a given night the ratio of available beds to homeless persons? Police would have to throw up their hands and abandon the enforcement of laws addressing homelessness.

For their part, the majority responded that citing and arresting homelessness persons does not alleviate the problem of homelessness in any event. Homeless persons arrested for petty misdemeanors are back on the street in a couple of days at the most.

To which I would add, nothing in the Eighth Amendment prohibits municipalities from abating public nuisances such as homeless encampments, because that does not involve criminal penalties. A municipality may deconstruct and clear homeless camps on public property without citing anybody for violating the law and the Eighth Amendment has no application.¹

But Judge Smith made a more profound point about the majority’s reasoning; there appears to be not limiting principle on what conduct is compelled versus voluntary. Presumably, public defecation is protected by the Eighth Amendment, if the municipality does not have sufficient port-a-potties for the indigent population.

And it goes even farther, as Justice Wilkinson’s dissent in Manning v. Caldwell pointed out:

Many statutes can be alleged to punish someone’s illness. If human behavior is viewed as something over which human beings lack control, and for which they are not responsible, the implications are boundless. The examples extend beyond the discrete context of substance addiction. For instance, child molesters could challenge their convictions on the basis that their criminal acts were the product of uncontrollable pedophilic urges and therefore beyond the purview of criminal law.

It is common for defense attorneys in all kinds of criminal cases to argue, as a diminished capacity defense, that their clients could not help their conduct due to organic or environmentally produced psychological conditions. Diminished capacity may mitigate the harshness of a sentence, but does not relieve the defendant of responsibility for breaking the law.

The reasoning of the Martin majority, on the other hand, would seem to mean that the application of criminal law at all to such individuals violates the Eighth Amendment, because their conduct is compelled by an illness. And indeed, wouldn’t Ted Bundy argue that he was compelled to slaughter all those people due to his condition of being a psycho killer?

We are unlikely to find out how far the Martin decision goes, however, because the Supreme Court will almost certainly reverse. The real question is how far the conservative majority will go in overruling Martin. The majority might simply say that the Ninth Circuit misapplied Powell and that the status/act distinction originally laid out in Robinson v. California governs. In that case, outlawing “homelessness” per se would be unconstitutional, but not conduct associated with that condition, such as sleeping outside.

But as Judge Bennett pointed out in another dissent to Martin, the original public meaning of the Eighth Amendment was likely limited to prohibiting cruel and unusual modes of punishments and not substantive criminal laws. Which would mean that the original Robinson holding that there is a substantive component to the Eighth Amendment was likely “egregiously wrong” under the Court’s history and tradition approach expounded in Dobbs.

So Grants Pass presents the court with an opportunity to take its shiny new originalist test out for a spin, and in the process invalidate 70 years of precedent holding that it’s unconstitutional to punish a person just for being who they are.

1. Fair notice to the homeless in advance and an opportunity to reclaim their things afterwards would still be required by due process and the Fourth Amendment.