June 28, 2024 Article

Supreme Court Clarifies Constitutionality of Outdoor Camping Bans

Earlier today the United States Supreme Court issued its decision in the City of Grants Pass, Oregon v. Johnson et al., overturning a 2019 decision from the 9th Circuit Court, which held that local ordinances criminalizing outdoor camping violated the Eighth Amendment’s prohibition on cruel and unusual punishment.  The 9th Circuit Court had held that the City of Boise, Idaho could not criminally prosecute individuals within a homeless encampment for sleeping outdoors because Boise was not able to provide an adequate number of shelter beds and doing so amounted to criminalizing their status as unhoused individuals and violated the Eighth Amendment.  Based on the 9th Circuit’s decision, individuals in Grants Pass challenged the City’s enforcement of its ordinance prohibiting camping in public places.

In its decision, the Supreme Court determined that laws criminalizing the “status” of an individual were different from those criminalizing the disruptive or dangerous behaviors that might result from that status.  The Supreme Court reasoned that generally applicable laws that prohibit camping on public property for extended periods do not criminalize an individual’s status as unhoused and instead only criminalize a particular activity, which either housed or unhoused individuals may engage in.  As a result, the Supreme Court determined that municipalities may enforce outdoor camping ordinances by using criminal penalties without violating the U.S. Constitution.

While the Supreme Court’s decision resolves the uncertainty over municipal authority to enforce ordinances regulating outdoor camping, it does not affect Title 17-A, Section 18 of the Maine Revised Statutes, which required all Maine law enforcement agencies to adopt and comply with homelessness crisis protocols. Similarly, the Supreme Court has not legalized ordinances specifically targeting individuals on the basis of housing or other status.

Preti Flaherty will continue monitoring these developments but recommends contacting your municipal attorney with any questions relating to your local ordinances and their enforcement in light of the Supreme Court’s recent decision.