Court Invalidates City’s Attempts to “Evade” Martin

Over the last few years, courts have significantly narrowed the permissible scope of local regulation of public camping. The catalyst for this shift was Martin v. City of Boise (“Martin”), a Ninth Circuit Court of Appeals decision that prohibits criminalizing sitting, sleeping or lying on public property, i.e., “status crimes” when applied to homeless or unsheltered individuals. Martin struck down Boise’s city-wide public camping prohibition because it lacked adequate emergency public shelter beds. The court left open the question of whether any regulation of the location or scope of public camping can be constitutional. After years of silence, the Ninth Circuit partially answered this question in Johnson v. City of Grants Pass (“Johnson”), which is discussed in further detail below.

Recap: Martin v. City of Boise

Unpacking Johnson requires a brief overview of Martin. In that case, homeless individuals sued the City of Boise, Idaho, after being criminally prosecuted under city ordinances banning public camping. As relevant here, the Ninth Circuit in Martin held that the Cruel and Unusual Punishment Clause of 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.” These laws could stand, but not where Boise lacked public shelters. The court explained that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

The court characterized its decision in Martin as “narrow,” cautioning that it “in no way dictate[s] to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets ... at any time and at any place.” The court further allowed that “an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible,” as well as “an ordinance barring the obstruction of public rights of way or the erection of certain structures.” The Johnson decision relates to this last idea, i.e., the permissible physical scope—not location—of public camping.

Grants Pass’s Regulations and the Court’s Decision

Grants Pass, Oregon’s municipal code regulates camping on public property. The Ninth Circuit’s decision in Johnson focused on—and ultimately struck down—two camping-related provisions regarding penalties for violations and prohibitions on the use of bedding, sleeping bags and related items. Both provisions and the court’s analysis are summarized below.

Prohibitions on Bedding Supplies

Following Martin, Grants Pass amended its camping ordinance to allow the act of sleeping in public. Despite this amendment, the camping ordinance continued to prohibit homeless persons from using “bedding, [a] sleeping bag, or other material used for bedding purposes.” The City defended this distinction by arguing that Martin’s holding was limited to prohibitions on sleeping in public. On that basis, the City asserted that local regulations—such as a complete prohibition on the use of bedding, sleeping bags and related items—were outside the scope of Martin and thus permissible.

The Ninth Circuit was not amused. The court noted that Grants Pass gets snow in the winter and the record indicated that homeless persons in the city have struggled against frostbite. Against this backdrop, the court concluded that the “only plausible reading” of the term “sleeping” in the context of Martin is that it “includes sleeping with rudimentary forms of protection from the elements.”

Penalties for Violations

Martin prohibits the “imposition of criminal penalties for sitting, sleeping or lying outside on public property…” In light of (or as the court suspected, to “evade”) this restriction, Grants Pass issued civil citations to first time violators. If an individual received two civil citations, they were subject to a non-criminal “exclusion order” for the subject area. If the individual violated the exclusion order, they could then be cited for criminal trespass.

The court rejected this civil-then-criminal enforcement framework, reasoning that Grants Pass simply added “a few extra steps” before criminalizing the “very acts Martin explicitly says cannot be criminalized.” The court concluded that Martin’s holding applies to civil citations where, as in the case before it, “the civil and criminal punishments are closely intertwined.”

Takeaways from Johnson v. City of Grants Pass

The Ninth Circuit’s decision in Johnson adds to the growing body of case law interpreting Martin. From Johnson, it’s clear that municipalities may not circumvent Martin’s holding by penalizing camping with civil penalties that are “closely intertwined” with criminal offenses (e.g., by issuing civil citations that can later become criminal offenses). Additionally, Johnson serves as a cautionary tale against barring or seizing unhoused individuals’ essential personal property such as “rudimentary” bedding supplies on public property.