Portland, Oregon – Ed Johnson, a prominent lawyer and tour guide at the U.S. Supreme Court in the late 1980s, is set to return to the iconic building on April 22. However, this time he won’t be giving tours. Johnson, the director of litigation at the Oregon Law Center, will be involved in arguing “Grants Pass v. Johnson,” a significant case that could shape how cities address the issue of homelessness.
In this case, Johnson will be representing Gloria Johnson, a homeless woman who alleges that the Grants Pass police attempted to force her out of town simply because she had nowhere to sleep. The attorney became involved in the matter in 2017 after homeless individuals in Grants Pass informed staffers at the Oregon Law Center about police officers disturbing their sleep in the middle of the night and prohibiting them from sleeping anywhere in the city. As a result, many of these individuals were hit with $295 tickets.
Digging deeper into the issue, Johnson and his colleagues discovered that city leaders in Grants Pass had implemented a coordinated system of ordinances aimed at driving homeless individuals out of town. These ordinances included prohibitions on using blankets, pillows, or cardboard boxes for protection against the elements.
Seeking justice for all homeless individuals in the town, the Oregon Law Center filed a lawsuit against Grants Pass in 2018, with three individuals acting as representatives of the entire unhoused population. A year later, a district court in Medford certified the unhoused people as a class. In 2020, the same court ruled that the camping and sleeping ordinances in Grants Pass amounted to cruel and unusual punishment, violating the Eighth Amendment of the U.S. Constitution. This decision was subsequently concurred by a panel of the 9th Circuit Court of Appeals in 2022.
The city of Grants Pass appealed the decision to the Supreme Court, which agreed in January to hear the case. Representing the city will be Kelsi Brown Corkran, an experienced lawyer from Washington, D.C., while Johnson will sit at the counsel table. When recently asked about the case, Johnson discussed the significance and implications of the impending legal battle.
One of the key arguments raised by critics of the 9th Circuit’s decision, including the city of Grants Pass, is that the court unduly usurped the authority of elected officials who were attempting to address issues such as crime, fire hazards, and public health concerns associated with homeless encampments. In response, Johnson emphasized that the case is primarily about the punitive actions taken against individuals who are living outside due to homelessness, rather than the city’s ability to regulate the locations of tents.
Johnson pointed out that according to long-standing precedents set by the Supreme Court, the government cannot punish someone based on their status or for matters they have no control over. He cited the landmark 1962 case of “Robinson v. California,” where the Supreme Court struck down a statute that criminalized drug addiction, noting that even one day in prison would be considered cruel and unusual punishment for the “crime” of having a common cold. Johnson argued that it is essential to ensure that the rights protected by the Bill of Rights are upheld, particularly in cases where individuals have been driven into homelessness due to failed housing policies.
Contrary to claims made by California Governor Gavin Newsom, who filed a brief with the Supreme Court, Johnson stressed that the 9th Circuit’s decision does not prevent cities from implementing regulations on tents. Rather, it requires that individuals be allowed to have basic bedding to survive and prevent hypothermia. The decision also acknowledges that cities can impose reasonable time, place, and manner restrictions. Johnson stated that a favorable outcome in the case would not significantly impact existing regulations on public camping in cities like Portland since it would only prevent cities from criminalizing attempts to survive with even a blanket on any public property, at any time.
Reflecting on his experience as a legal aid lawyer, Johnson noted that the ordinances implemented in Grants Pass stood out for their concerted effort to find and punish homeless individuals. Unlike in other places where enforcement is often complaint-driven, Grants Pass authorities actively sought out homeless individuals and threatened them with legal repercussions. Johnson described this approach as both cruel and unusual, highlighting its deviation from the practices observed in most other areas.
Given the current composition of the Supreme Court, with many justices claiming adherence to “originalist” theories, Johnson expressed optimism that the case could resonate with this conservative group. He argued that the founding-era laws demonstrated more compassion than the practices implemented by Grants Pass in 2018. In the past, individuals were expected to take care of themselves, but if unable to do so, the community would step in to provide support. Johnson suggested that the founding-era lawmakers would have been appalled by Grants Pass’ approach to homelessness.
As the Supreme Court prepares to hear the “Grants Pass v. Johnson” case, the outcome could have significant implications for how cities address the issue of homelessness across the country. The ultimate decision may redefine the boundaries of municipal authority concerning the treatment of homeless individuals and their fundamental rights in public spaces.