SCOTUS Grants Pass Decision: Ninth Circuit Responds to the Supreme Court Decision to Overturn its Ruling in City of Grants Pass v. Johnson

by on July 10, 2024

posted in Recent Court Decisions,

On July 8, 2024, the Ninth Circuit took its first action in response to the Supreme Court’s decision to overturn their ruling in City of Grants Pass v. Johnson (“Grants Pass”). The Ninth Circuit released an Order and Memorandum vacating, in part, a preliminary injunction in a pending case Coalition on Homelessness v. City and County of San Francisco (“Coalition”), providing a first glimpse into how the largest federal appeals court in the nation interprets Grants Pass; and, potentially, how the Ninth Circuit will address regulations affecting the homeless population of a local entity subsequent to Grants Pass.

How did we get here?

Coalition deals with a challenge brought by Coalition on Homelessness, to an ordinance adopted by the City and County of San Francisco (“San Francisco”) authorizing certain enforcement mechanisms specific to homeless encampments on public property. In January 2024, the Ninth Circuit upheld an extensive preliminary injunction issued by the district court which outlined significant portions of the new law which could not be utilized and dictated operational restraints on San Francisco’s homeless enforcement mechanisms during the pendency of the case.

What just happened?

The Order and Memorandum make clear that the Ninth Circuit issued Memorandum will render the preliminary injunction consistent with the holding in Grants Pass. The Memorandum orders that the preliminary injunction vacates the portion(s) of the injunction that “relates to Plaintiffs’ claims of cruel and unusual punishment under the Eighth Amendment,” the injunction will stay in place requiring the City to comply with its own “detailed policy documents;” and, specifically the “‘bag and tag’ policy as written” in its ongoing enforcement actions. The Ninth Circuit’s Order contains a very brief statement on its interpretation of the decision in Grants Pass, “which held that the enforcement of generally applicable laws regulating camping on public property does not constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment.” This statement, in addition to maintaining those portions of the preliminary injunction, likely indicates the Ninth Circuit’s intention to read Grants Pass narrowly. Certainly, the Ninth Circuit believes that all of San Francisco’s policies for homeless enforcement may legally be imposed following Grants Pass and it specifically calls out the “bag and tag” policy, so governments should be cognizant of that interpretation, include such a provision in subsequent laws passed, and utilize and adhere to such a policy during its enforcement actions.

Where do we go from here?

It is important for those responding to this opinion to proceed with caution. The Supreme Court found, as it relates specifically to regulations restricting public camping, “States and cities are free as well to add additional substantive protections. Since this litigation began, for example, Oregon itself has adopted a law specifically addressing how far its municipalities may go in regulating public camping. For that matter, nothing in today’s decision prevents states, cities, and counties from going a step further and declining to criminalize public camping altogether.” With this nod to the authority of states to determine how these activities may be regulated, local regulatory bodies should proceed with extreme caution when (re) entering the field of regulating the activities of the unhoused population.

It is prudent to include clear and appropriate due process procedures when drafting and enacting any new ordinances and/or enforcing existing laws specifically associated with this population; in particular those which deal with the issue of camping on public property. Any such regulations should include extensive findings describing the public health and safety matters at stake in the regulations, with supportive and recent data and specific local issues which the regulations seek to address. Enforcement policies should also include clear due process protections for those cited; keeping excellent records of past violations by the subject of the enforcement action, and any warnings which have been issued at the location of the incident.

The final decision in Coalition will (hopefully!) provide clearer guidance and more detailed procedures for local governing entities in California to follow in relation to homelessness regulations.


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