Sheltering Justice: The Crucial Role of Pro Bono Lawyers After Grants Pass v. Johnson

By Hailey Kearsley, PBI Intern and PBI Staff

The U.S. Supreme Court issued its highly-anticipated decision in City of Grants Pass v. Johnson today – holding that a city’s efforts to prohibit unhoused individuals from sleeping outside when there’s nowhere else for them to sleep does not violate the Eighth Amendment’s protection against cruel and unusual punishment. I sat in front of the Supreme Court at 1:00 a.m. on a cold night in April so that I could attend oral argument in the case. With the temperature falling to 40 degrees, many came prepared, camping outside with tents and sleeping bags. I did not prepare for cold weather, however, which left me shivering and yearning for the warmth of the indoors. While sitting outside is nowhere close to the obstacles homeless individuals face, my experience was a small window into the conditions experienced by individuals sleeping and living outside, who are now more at risk of criminalization.

Homelessness across the United States is on the rise.

Over the past couple of years, the number of individuals experiencing homelessness has been on the rise. According to the U.S. Department of Housing and Urban Development’s 2023 National Report on Homelessness, nearly 650,000 individuals experience homelessness on a single night. That means an estimated 20 out of every 10,000 people are living without proper shelter. The US Interagency Council on Homelessness attributes the current rise in homelessness to inadequate systems around affordable housing, wages, and equitable access to physical and mental health care and economic opportunity.

In response to rising homelessness, several states have initiated efforts to address visible homelessness by cracking down on encampments in public spaces. These efforts often involve “camping bans” or “sleeping bans” that disperse homeless populations and dismantle makeshift shelters, including by imposing fines and even sometimes criminal penalties. As advocacy groups, legal services organizations, and others have argued, efforts to limit camping or sleeping merely displaces unhoused individuals, without offering adequate alternative solutions such as housing assistance or supportive services.

The city of Grants Pass has banned sleeping outside even though it has not provided sufficient shelter beds.

In Grants Pass, Oregon, a city plagued by the affordable housing crisis and with almost no shelter availability, there are as many as 600 individuals experiencing homelessness. In an effort to “make it uncomfortable enough for [homeless people] in [Grants Pass] so they will want to move on down the road,” the city increased enforcement of ordinances prohibiting the use of blankets, pillows, and cardboard boxes while sleeping. The escalating monetary fines for violations can lead to jail time if an individual is convicted of criminal trespass.

In 2018, John Logan and Gloria Johnson (along with Debra Blake, who has since died) sued the city of Grants Pass, Oregon, on behalf of themselves as individuals and others who are involuntarily homeless in Grants Pass. They argued that “Grants Pass is trying to run homeless people out of town,” and that homeless people in Grants Pass are subject to citations and fines when there are no low-barrier shelters and thus nowhere else for them to go. The complaint alleged enforcement of the City’s anti-sleeping and anti-camping ordinances violated the cruel and Unusual Punishment Clause of the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Due Process Clause of the Fourteenth Amendment.

The District Court of Oregon agreed, holding that “based on the unavailability of shelter beds, the City’s enforcement of its anti-camping and anti-sleeping ordinances violated the Cruel and Unusual Punishment Clause” of the Eighth Amendment and issued a permanent injunction that barred the city from enforcing the ordinances in most circumstances. The Ninth Circuit Court of Appeals upheld that ruling, citing its earlier decision in Martin v. Boise, where the court found the Constitution blocks cities from imposing criminal penalties for sitting, sleeping, or lying outside on public property where homeless individuals cannot obtain shelter. The city of Grants Pass sought Supreme Court review, and the Supreme Court agreed to consider the case.

The Supreme Court has decided that the city of Grants Pass’s anti-sleeping ordinances do not violate the Eighth Amendment.

On review, the Supreme Court considered the question: “Does a city’s enforcement of public camping against involuntarily homeless individuals violate the Eighth Amendment protection against cruel and unusual punishment?” While the city of Grants Pass argued that its ordinances merely bar camping on public property by everyone, those challenging the city countered that its laws criminalize homelessness and violate the Eighth Amendment’s ban on cruel and unusual punishment. As the lawyer for the challengers noted, “The ordinances make it physically impossible for a homeless person who does not have access to shelter to remain in Grants Pass without facing endless fines and jail time.”

At the oral argument, Justice Brett Kavanaugh expressed skepticism that enforcement of the city of Grants Pass’s ordinances would make a difference in addressing homelessness. And Justices  Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson were critical that the ordinances were intended to regulate the conduct of everyone and not specifically designed to impact unhoused individuals, which raised the broader question whether homelessness is a status entitled to protection under the Eighth Amendment.

On June 28, the Supreme Court issued its decision, delivered by Justice Neil Gorsuch and joined by Chief Justice John G. Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, holding that enforcement of generally applicable laws regulating camping on public property does not constitute “cruel and unusual punishment” prohibited by the Eighth Amendment. The decision concluded that the city of Grants Pass’s public-camping laws do not punish the status of unhoused individuals because they prohibit actions by any person. Notably, the Court’s decision concludes that “the American people” – and not the courts, by implication – have collective wisdom regarding how best to address homelessness because “[h]omelessness is complex,” opening the door to more state-led efforts to criminalize and otherwise punish homelessness.

Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, delivered the dissenting opinion, stating:

“Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. 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.”

The dissenting opinion recognizes that “[i]t is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles” and that the majority’s decision leaves “the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”

Amicus briefs from PBI partners provided critical support and set the stage for future advocacy.

Pro bono law firm leaders – including several Pro Bono Institute Law Firm Pro Bono Project® members and Law Firm Pro Bono Challenge® signatories – stepped up to the

Pro Bono Institute Law Firm Pro Bono Project members and Law Firm Pro Bono Challenge signatories that filed amicus briefs in City of Grants Pass v. Johnson include:

challenge in confronting efforts to criminalize homelessness, serving as counsel of record on dozens of amicus briefs in support of those challenging the city of Grants Pass and providing essential data, contextual examples, research, and arguments.

For example, Dechert, a Law Firm Pro Bono Challenge signatory, serving as Counsel of Record for the National Homeless Law Center, argued that courts, including the Supreme Court, have invalidated laws targeting vulnerable groups, providing guardrails for basic human rights. As stated in their brief, “[the city of Grants Pass] specifically and cruelly applies its laws only to those who need to sleep or shelter themselves outside because they have nowhere else to go.”

Alston & Bird, a Law Firm Pro Bono Project member and Law Firm Pro Bono Challenge signatory, served as Counsel of Record for four amicus briefs on behalf of the following organizations:

  • National Coalition for Homeless Veterans, UCLA Veterans’ Legal Clinic and 43 Other Veterans’ Service Providers – noting the U.S. government’s commitment to end veteran homelessness and detailing how unhoused veterans report that criminalization and sweeps make it harder to access services and worsens the homelessness crisis;
  • National Women’s Shelter Network, Inc. and National Organization for Women Foundation (with Greenberg Traurig, both a Law Firm Pro Bono Project member and a Law Firm Pro Bono Challenge signatory) – noting the vulnerability of women and children to homelessness and arguing the city of Grants Pass is punishing women and children experiencing homelessness in violation of the Eighth Amendment;
  • Safety Net Project of the Urban Justice Center – noting insufficient shelter in New York state for multiple marginalized groups and arguing that punishing unhoused individuals for sleeping in public when they have nowhere else to go punishes homelessness as a status and therefore violates the Eighth Amendment; and
  • Current U.N. Special Rapporteurs – noting that human rights bodies have clearly articulated that that punishing homelessness constitutes cruel, inhuman, or degrading treatment under international law.

These briefs lay important groundwork for future advocacy to prevent the criminalization of homelessness, providing context on the breadth of the homelessness crisis and its impact on marginalized communities, as well the real-life and legal implications of anti-sleeping and anti-camping laws that in practice apply only to unhoused individuals.

The Supreme Court’s Grants Pass decision opens the door to additional pro bono advocacy.

The Supreme Court’s decision in City of Grants Pass v. Johnson has significant implications for the future landscape of homelessness policy. While the Court’s majority emphasized the legality of generally applicable laws, dissenting Justices highlighted the humanitarian concerns and constitutional implications of penalizing homelessness. As local jurisdictions continue to test the boundaries of limiting camping and sleeping as a mechanism to displace unhoused individuals and criminalize homelessness, the role of pro bono lawyers will be even more critical and demand novel arguments that criminalizing homelessness raises concerns under various provisions of the Constitution.

* denotes a Law Firm Pro Bono Challenge®signatory

denotes a Law Firm Pro Bono Project®member

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