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During college in the late 1980s, Portlander Ed Johnson gave tours at the U.S. Supreme Court. He hasn’t been in the building since, but he’s going back April 22, and not to give tours.
Johnson, the director of litigation at the Oregon Law Center, is returning to help argue Grants Pass v. Johnson, a case that could shape the way cities address the epidemic of homelessness.
Johnson (the lawyer) is representing Gloria Johnson (no relation), a homeless woman who says Grants Pass police tried to run her out of town simply for having nowhere to sleep.
Johnson got involved in the matter in 2017, after homeless people in Grants Pass told Oregon Law Center staffers that cops were waking them up in the middle of the night and telling them they couldn’t sleep anywhere in town. Many got $295 tickets, Johnson says.
He and his colleagues did some digging and learned that city leaders had decided to deal with homelessness by driving people out of town with a coordinated system of ordinances, including prohibitions against using a blanket, pillow or cardboard box for protection from the elements.
The Oregon Law Center filed a lawsuit against Grants Pass in 2018 on behalf of three individuals as representatives of all the homeless people in town. A year later, a district court in Medford certified the unhoused people as a class. In 2020, the same court ruled that because people who had been forced to live outside in Grants Pass had no place else to go, its camping and sleeping ordinances constituted cruel and unusual punishment and thus violated the Eighth Amendment to the U.S. Constitution. In 2022, a panel of the 9th Circuit Court of Appeals concurred.
The city of Grants Pass appealed to the Supreme Court, which agreed in January to take the case. Kelsi Brown Corkran, a Washington, D.C., lawyer with extensive experience before the court, will argue the case, but Johnson will sit at the counsel table. He spoke to WW this week about what’s at stake.
WW: Critics of the 9th Circuit’s decision, including the city of Grants Pass, say the court took control of homeless policy out of the hands of elected officials trying to deal with camps rife with crime, fire and “the reemergence of medieval diseases.” Is that correct?
Ed Johnson: The issue is whether a city can make it illegal on every inch of public property, 24 hours a day, for someone to try to survive by using a blanket when they have nowhere else to go. This case is about the tickets, fines, arrests and the jail time that get doled out to people who are living outside, not about the city’s ability to move tents. In Oregon, you can move a tent with 72 hours’ notice, anytime, and with no notice when there’s an emergency.
What are the Eighth Amendment precedents here?
For decades and decades, the Supreme Court has said that the government can’t punish someone based on their status. You can’t punish someone for something that they have no ability to control. In the famous Robinson v. California case from 1962, the Supreme Court struck down a statute in California that basically made it illegal to be addicted to drugs. Their famous line from that case was, “Even one day in prison would be cruel and unusual punishment for the ‘crime’ of having a common cold.” The bare minimum we should expect from the Bill of Rights is that we don’t punish people who have been driven out of the housing market because of failed policies.
California Gov. Gavin Newsom, a trusted liberal, filed a brief with the court saying that prior decisions by the 9th Circuit block “the most common-sense and good faith laws to limit the impacts of encampments.” Does he have it right?
That is not correct. The 9th Circuit decision doesn’t prohibit a city from regulating tents. It requires that people be allowed to have the bare minimum of bedding to survive, and so they don’t die of hypothermia. It also specifically says that a city can have a reasonable time, place and manner restriction. So, if there was a place where people could go and survive in Grants Pass, it wouldn’t have been an Eighth Amendment problem.
Oregon has a law requiring cities to set reasonable limits on camping through such “time, place and manner” laws. Portland, for example, limits public camping to nighttime. How much will things change in Portland if you win at the Supreme Court?
Not that much. The only thing that the Grants Pass decision prohibits cities from doing is making it illegal to try to survive with so much as a blanket on every inch of property, 24 hours a day.
How do the Grants Pass ordinances compare with those in other places?
I’ve been a legal aid lawyer for almost 30 years, and I’ve represented people who’ve been forced to live outside for that entire time. I’d never really seen anything quite like this. The unique thing about Grants Pass was the concerted effort to find people and threaten and punish them. They would send out patrols to look for people, so it wasn’t complaint driven. They were hunting for people, and when they found them, they would tell them, “You’re not allowed to be here.” It’s the very definition of cruel and unusual. It’s cruel for obvious reasons, and it’s unusual because most places don’t do it like that.
Many justices on the current court claim to adhere to “originalist” theories, ruling according to what Americans thought the Constitution meant around the time it was written. Is there anything in your case that might appeal to that conservative group?
Founding-era laws on some of these issues were considerably more compassionate than what Grants Pass is doing. People were expected to take care of themselves, but if they couldn’t, the community would. In Grants Pass, there was no distinction. The founding-era folks would’ve been appalled by what Grants Pass was doing in 2018.