I used my first ever press pass for the Supreme Court this week. Johnson v GrantsPass — although the court listed it the other way around. I wrote a story about how this case could impact local folks all across the nation. It was for a Philly area paper that secured my access to the court. You can read the Bucks County Beacon story here. You can read a lot of other stuff I write there too. Most of it’s about poverty, but there are stories on prisons, birth control, healthcare, M4L throwing me out of their conference … you get the picture.
In my spare time I work with a group that gets handmade blankets into the hands of people experiencing homelessness. You know, blankets — something Grants Pass says is a sign of criminality. If you like to make blankets, give us a shout at memorialblanket.org … we’ll put your handiwork to good use.
My story didn’t have room for all the shocking commentary I heard inside the court. Like the justices and the attorney for Grants Pass joking about killing the homeless. It was while they bandied about the idea of cruel and unusual punishment. Justice: “What about killing them?” Attorney: “Are you asking if that’s cruel and unusual?” Justice: “Well, it would certainly be unusual.” Or some such horrid banter. You can listen for yourself, here.
Here are my notes… incase you don’t want to listen to 2 hours and 28 minutes of that. (Although, the end — the last 30 minutes or so — with the attorney for Gloria Johnson et al… was priceless. Wow, is she smart. Oh and the part where one of the conservative justices asked if people couldn’t just be forced to go home… and the attorney for the Justice Department reminded him that this would be a very bad idea for victims of domestic violence.
Seriously — the majority of the justices don’t know jack about homelessness and domestic violence as a cause of homelessness wasn’t even on their radar until then.
But here — read for yourself.
The lawyer for the city called being homeless repeatedly, RECIDIVISM. You know, what is actually chronic homelessness — chronic failure of our safety nets. I think the use of that word says it all.
Notes from 4/22/24
Chief Justice Roberts – What will city do if they don’t prevail GREAT QUESTION. (he never got an answer)
Grants Pass spent millions to get to SCOTUS — maybe they should just provide housing?
**notes are as follows — perhaps not helpful but I need to get it off my chest**
Theane D. Evangelis of California, City of Grants Pass, Oregon – “Beds going unused at gospel mission.” Gospel Mission won’t take you if you have a dog, don’t go by the gender on your birth certificate, fraternize with the opposite sex, etc...
Justice Kagan – “Only stopping from sleeping in public for purpose of homelessness.” The police testified that sleeping on beach, or star gazers or women covered in blankets are not fined.
“Give me one example” – “in which your police officers cannot, of who you’ve given a citation to that has another address.”
“That’s what you say but if you are enforcing it only against homeless…” Justice Sotomayer
The whole 8th amendment argument – Sotomayer asked Theane evangelis if there were hotels for less than 295 a night… said even in New York city there are - “If a homeless person had that kind of $ (the fine) wouldn’t they use a hotel?” “It’s just a simple question.” “Could you criminalize homelessness?” Sotomayer. Lawyer didn’t answer which surprised Sotomayer.
TE “Homelessness is not a status.”
Kagan, Then... “It’s remarkable that you could criminalize homelessness.” Expected her to say no. Lawyer said homelessness is not a status again.
Status v conduct.
Justice Kagan – “I thought you would say no. But you said yes. You are saying the law allows you to criminalize homelessness” “A single person with a blanket. Sleeping is a biological necessity. It’s like breathing. For a homeless person who has nowhere to go – it’s like breathing in public. It’s a necessity.”
Using the example of eating in public – only punishing certain people who can’t afford to do it privately. People who can do a basic human need privately [are fine], people who can’t afford to are punished.
Gorsuch brought up necessity defense. Citing it in Oregon law. Basically: A behavior can’t be against the law if it’s a necessity.
8th amendment — cruel and unusual. “Killng them – would you not agree – that would be unusual.”
Jackson: “I’m trying to understand why this is still a live case. Oregon seems to have already precluded this.” (with necessity law)
TE “the law is there to protect everyone. It’s not safe to live in encampments.”
Brown Jackson, “Suppose city decided to execute homeless people – extreme but indicates the [far extension of the ordinance].”
“The argument is that a blanket is a necessity in Oregon.” (you can fall asleep but not with a blanket. But in Oregon you’ll freeze to death).
“Your attempt was to remove every homeless persona and restrict them from being able to sit down with a banket, and sleep.” Sotomayer, “Every city that passes a law like this lacks compassion.”
Laws agains fires, public urination, etc have been upheld… only the sleeping ordinance is cruel and unusual.
Chief Justice wants to know if bank robber is a status. Implication that it’s a behavior, — someone isn’t always robbing a bank… just from time to time. He says the fluidity of homelessness means it’s not a status.
Robinson is the law they are arguing. Former case before the Supreme Court. Can punish drug use but not punish for being an addict. Condition v behavior.
Thomas – Is there a crime for being homeless? “No there is not. Just a crime to sleep outside.” Implying you can be homeless, you just can’t act on it.
Alito – drug addicts can refrain from using. Homeless can’t refrain from sleeping indefinitely. If a person has legitimately not another place to sleep….
TE sleeping isn’t a case of illegality, only camping with intent which is demonstrated by a blanket, pillow or cardboard. Sleeping in car.
Sotomayer, “Why can’t they park somewhere in the city and sleep?” California has designated locations and times where people can sleep — why can’t Grants Pass do that? Citing: Necessity defense.
If they have no legal alternative (breaking into a house is not a legal alternative)
Kagan, “This is at the moment a very narrow defense.” “Sleeps outside with blanket.” Person says, ‘I have nowhere to sleep.’
Asserted as a defense. Kagan give a citation for something that some will would have a necessity defense for… only to be used as a defense. “Issue the citation and we’ll see if the person knows enough to assert that defense.” City is not telling officers to use consistent respect for necessity defense. Kagan says, the officers should know of the necessity defense and apply it in advance.
“The necessity defense is like insanity defense.”
Kavanaugh, “Laws like this allow cities to intervene and incentivize people to get “the help they need.” “How does this help if there are not enough beds?”
Miss Johnson doesn’t want to go to the Gospel Mission because she has a dog.
TE says the law, “encourages people to accept other circumstances.”
Kavanaugh “Do you think the constitutional rule should be different when there are enough beds.” CONSTITUTIONAL RULE.
TE “Could have harm from a person’s conduct if they were camping near a school.” (bitch) (yeah, I said she was a bitch under my breath).
Kavanaugh “When you get out of jail what happens then. You still don’t have a bed. And you’re not going to be any better off than after 30 days in jail.”
TE [this] “that intervention ultimately saves lives.” Although she offered no proof of this.
Coney-Barrett “Are you seeing that there’s a place for people to go.”
TE “No, but that’s a policy question.”
TE “Can’t let people sleep outside because, it’s a very slippery slope.” “They might say compulsive behaviors” (???)
Coney-Barrett “you’re just fighting over whether or not it’s a status.”
Brown Jackson, “You say pertains to conduct and not status. Everyone must sleep. You only punish those without options. Sleeping outside homeless rather sleeping outside period. The action is sleeping and sleeping is not a criminal act.” “to the extent that this only happens to people with nowhere to go.” Not just like trespass, “trespass is based on the premise that you have somewhere else to go.
END COUNSEL FOR GRANTS PASS
Edwin Kneedler – deputy solicitor general department of justice supporting neither party
It’s a crime to be homeless while in Grants Pass – “adhere to the core principle of Robinson”
Oregon law says there can be designation for time, manner and place. Time, manner and place ordinances are the way to go. (like above — the California statue that people can go to a place at a time and sleep)
Thomas – what’s the difference between drug addiction and sleeping outside?
Gorsuch – can’t make status a crime but can make their conduct a crime. Certainly the gov’t wants us to enforce drug laws. People are forced to use, drink in public. Gorsuch implying that we’ll have to legalize all the illegal behaviors because the homeless have nowhere to hide them.
Jackson, AGAIN – SLEEPING IS NOT ILLEGAL.
Jackson tried to help the justice department lawyer – who was unable to pushback on Gorsuch and Thomas. “Not everyone is a drug addict but everyone has to sleep”
Grants Pass background – used to purchase bus tickets to ship homeless out of town. The aim is to make it so impossible here – that they move down the road.
Chief Justice Roberts “If a nearby town had a shelter and had beds – an officer could give a person a ride 30 miles down the road.” Roberts doesn’t see anything wrong with relocating homeless people regardless of their work, school, family… If you give citation for not leaving – Grants Pass would effectively. Be requiring people to leave – banishing.
Roberts – Municipalities have competing priorities, maybe one “municipality needs to get rid of lead pipes” implying that they can’t prioritize housing.
EK (lawyer for justice department) time, place, manner ordinance – places designated to sleep rather than expect people not to sleep. It’s a necessity to sleep.
Roberts wants to say, then they’ll have to let people steal food. If people have to eat, they’ll be asking the court to legalize stealing food next.
Alito – “Do the homeless get to set their conditions?” Can they say they can’t rely on people to take them in just because they may not like it or the family. “That family hates me!”
EK – “Can’t expect a victim of domestic violence to go to that home just because it’s available.”
Alito – Does it matter if a person was born there? It’s “much rather sleep outside in California than in Fargo.”
Alito – When I lived in New Jersey, “I could go on a twenty-minute walk and be in 3 different municipalities.” WITH EVERYTHING HE OWNS?
Alito seems to understand that this will impact the whole country. He is arguing that this will be hard on communities. “What if a small town has no park?”
EK – “class [in class action] is identified based on aggregate numbers of people not individualized.” In the ordinance, “Sleeping in a vehicle counts as camping.” — not homelessness.
Kagan, “Get hypothermia and the constitutional issue goes away.” Meaning sleeping without a blanket means you're not homeless. But by then you’ve frozen to death. Sort of like seeing if a witch can float. If she drowns and floats, she’s not a witch.
Question is one of core principle of Robinson – “You can’t criminalize homelessness – you cannot punish a person for a status.”
Gorsuch – wants to know if it’s that you can’t regulate sleeping because “sleeping happens.”
Gorsuch wants to know if they can force people with Mental health problems to accept shelter, or if they’ll be allowed to sleep outside. Because of mental health problems someone won’t have to take shelter.
EK – a bed is technically not available if the mental health issue the person is dealing with makes it unsuitable and effectively unavailable. Individualized determination of eligibility to sleep in shelter.
EK Hoping the Supreme Court won’t set this aside because Oregon has a necessity law — kick it back down to a lower court because Oregon could force Grants Pass to accept that sleeping is a necessity. Lawyer knows that this is very important for the whole country. Especially states without a necessity law. (Florida) Homeless folks — at bare minimum — should have TIME, MANNER AND PLACE.
Kavanaugh, don’t wave away the hunger issue. Wants to know if legalized stealing of food is next.
Coney Barrett 8th amendment claim used as a defense. If I sleep in an encampment I can be sanctioned. Can the conduct be criminalized? Can you hassle people?
Hypo – can’t eat outside.
EK says It is and should be a long process to clear a camp. Not steady harassment to leave Grants Pass. Grants Pass behaves as though it’s okay to steadily harass people so they opt for going away. EK says, the correct way to treat people is already happening. So long as we have fewer beds than homeless – we can’t prosecute for homelessness. “If you say a person can’t sleep outside, it implies they have a way to sleep inside.”
Jackson to the attorney for the justice department – why doesn’t the federal gov’t tell folks they can’t treat people this way? If there’s another way to stop this, the highest court don’t necessarily need a comment on the constitutional issues.
Kelsi Corkran attorney for Johnson et al. – Any place a homeless person is with a blanket. But picnic persons can have blankets. Effectively it’s outlawing homeless while “breathing, sleeping or blinking.” The ordinance turns city’s homeless problem into someone else’s problem.
Only tool city wants and doesn’t have is the ability to make 24/7 sleeping subject to banishment or chronic criminal violation.
Roberts says, “a number of us have a problem with using homelessness as a status.” – how many?
Roberts is Inferring homelessness is not a status because you can end it by getting a home.
KC says no. A status is something a person does when not doing anything. “Being a bank robber means you rob banks.” Homelessness is something that happens to you.
KC “our history is to be against pushing the burden of poverty into another community” jurisdiction or municipality.
Coney Barrett – define community. How do we know what their community is? (such a jerk)
KC Pushing the burden into another community – community is based on where ordinances apply (duh… like grants pass only does it in their community… pushing people out of Grants Pass).
KC Punishment means suffering for a crime. Punishment based on status.
Stealing food analogy doesn’t apply, nor does public urinating, deficating et al… not definition of homelessness and not a universal attribute. Sleeping outside is the definition of homelessness non homeless people urinate or deficate outside. (or on public or private property)
There is a credible threat of future punishment.
Gorsuch says 8th amendment wrong one to use. Should be 14th amendment. But doesn’t say why.
KC says the goal is to move the problem to another town. 8th amendment cruel and unusual.
Targeted Banished & Displaced – the evolution of oppression