Federal appeals court refuses to rehear Grants Pass homelessness case

By Jane Vaughan (JPR)
July 7, 2023 12:37 a.m.

The original 2020 decision had implications for regulating homelessness across the West.

Wednesday’s ruling stems from a decision in July 2020, when a court in Medford decided that Grants Pass’s ordinances regulating homelessness were unconstitutional, due to what they considered cruel and unusual punishment and excessive fines.

The city appealed that decision to the 9th Circuit Court, which upheld it last year in a three-judge panel. Grants Pass then requested that all the judges on the 9th Circuit Court hear the case, but on Wednesday, they voted not to.


Ed Johnson, director of litigation at the Oregon Law Center and lead attorney on the case, said he’s pleased with the court’s decision because criminalizing homelessness destabilizes people and exacerbates the problem.

“Allowing cities and counties unfettered discretion to criminalize their homeless citizens will not reduce the number of people who are forced to live outside. It will increase the number because criminalization destabilizes people who are living outside, and it makes it harder for them to connect with jobs and housing that they need in order to get inside,” he said.

Grants Pass has restricted camping and sleeping of people experiencing homelessness in recent years through fines and other regulations. The court’s decision said it’s a violation of the Eighth Amendment to punish people for sleeping in public when there is nowhere else for them to go. The city can place restrictions on where, when and how people can camp, but it cannot prohibit people from sleeping everywhere in the city if there’s no place for them to sleep indoors, like a shelter.

This case was preceded by Marvin v. City of Boise from 2018, which found that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.”


Grants Pass says it plans to appeal this week’s decision to the U.S. Supreme Court.

“From the local court, we went to the 9th Circuit Court. And now we’re looking at asking the Supreme Court to take a look at the 9th Circuit court’s ruling,” said Grants Pass City Manager Aaron Cubic.

“We hoped the full 9th Circuit would reconsider recent decisions that have contributed to the growing problem of encampments in cities across the West,” the city’s counsel Theane Evangelis said in an emailed statement. “The 9th Circuit’s decisions in this case and Martin v. Boise are legally wrong and are only harming the very people they were meant to help.”

The 9th Circuit Court governs the West, including Arizona, California, Nevada, Idaho, Montana, Oregon, Washington, Alaska, Hawaii, Guam and the Northern Mariana Islands.

In a statement disagreeing with the Wednesday decision, Senior 9th Circuit Judge Diarmuid O’Scannlain wrote, “With this decision, our Circuit’s jurisprudence now effectively guarantees a personal federal constitutional ‘right’ for individuals to camp or to sleep on sidewalks and in parks, playgrounds, and other public places in defiance of traditional health, safety, and welfare laws — a dubious holding premised on a fanciful interpretation of the Eighth Amendment.”

The decision paralyzes “local communities from addressing the pressing issue of homelessness,” he continued.

However, in a statement supporting the decision, District Judge Roslyn Silver and Circuit Judge Ronald Gould wrote, “The assertion that jurisdictions must now allow involuntarily homeless persons to camp or sleep on every sidewalk and in every playground is plainly wrong. Jurisdictions remain free to address the complex policy issues regarding homelessness in the way those jurisdictions deem fit, subject to the single restriction that involuntarily homeless persons must have “somewhere” to sleep and take rudimentary precautions (bedding) against the elements.”

“Criminalizing the act of sleeping in public when an individual has nowhere else to sleep is, in effect, criminalizing the underlying status of being homeless,” they continue.

The consequences of this ruling overlap with Oregon’s HB 3115, which took effect on July 1 and states that cities and counties that choose to regulate where people can camp in public spaces must create “objectively reasonable” restrictions about where, when and how that camping can occur.