Grants Pass v. Johnson homelessness case to go before US Supreme Court

Laura Gutowski resides just down the street from the Grants Pass home that she lived in for 25 years. Her son used to play baseball in Morrison Centennial Park, where she now lives in a tent not far from the diamond. Her children were born and raised in the neighborhood, where her husband died unexpectedly in 2021. “Still hard,” she says. “Still hurts.”

Grants Pass is a city of 39,000 residents in southern Oregon’s Josephine County, an hour’s drive northwest of the California border on Interstate 5. It is nestled between the Siskiyou and Cascade mountain ranges, and the southern edge of the city center sits on the banks of the Rogue River. Baker, Tussing and Riverside Parks offer access to the Rogue, where crows gather near hotel lots and restaurant patios.

Now, the city is also at the center of a US Supreme Court case that is expected to have broad implications for homelessness policy across the entire country.

The court is scheduled to hear oral arguments in Grants Pass v. Johnson on 22 April. Grants Pass says that civil and criminal punishments are necessary for enforcing laws banning people experiencing homelessness from public spaces. Lawyers representing a class of homeless residents argue that penalties against people who have nowhere else to go constitute cruel and unusual punishment — a violation of the Eighth Amendment.

The Oregon Law Center initially filed the class action lawsuit on behalf of Debra Blake in October 2018. Blake died in 2021, and Gloria Johnson and John Logan stepped in as class representatives as the case made its way through the appeals process.

Gutowski became homeless soon after her husband died. She can’t talk about him without choking up, sitting outside her tent, leg resting on a bucket holding a tarp down on the grass. “It kind of all piled on at the same time,” she says. “Flipped my world upside down. I never expected to be out here for this long.”

Gutowski thought that she would be without a home for a month at the most, but a month tumbled into two. She spent a third month sleeping in her car after moving to a different park. More than two years later, she still considers herself part of the Grants Pass community but says that the housed residents in the area do not. “It can happen to anybody,” she says; “anybody, at any time.”

“The point is to make it uncomfortable”

On the afternoon of 28 March 2013, the Grants Pass city council held a community roundtable to “identify solutions to current vagrancy problems.” In its own words, the purpose was to “focus on developing strategies to modify behavior [and] connect people to services.” At that meeting, Lily Morgan, the council president, stated that “the point is to make it uncomfortable enough for them in our city so they will want to move on down the road.”

City code explicitly bars anyone from sleeping in public spaces, including parks, sidewalks and in cars, or using sleeping materials for the purpose of maintaining a temporary place to live, under threat of criminal and civil penalty. In city code, “parks” are defined as city halls, community centers, police and fire stations, parking lots, traffic islands and urban beautification areas owned or maintained by the city.

At times, the city has shut off the water in public parks and closed the toilets, a tactic about which Josephine County Public Health voiced concern, saying that a lack of access to handwashing stations could have ripple effects in the broader community. Some homeless residents have no option but to use the Rogue River for bathing, restrooms and drinking water.

“They’re trying to put us in this situation and put us in society’s view as what they would consider homeless, or how they view homeless in their minds,” Gutowski said.

“Housing as community infrastructure”

Doug Walker, a retired builder and member of the city’s Housing Advisory Committee, seems to never stop working. This winter, Walker and his team have been working to retrofit a building, turning it into an emergency shelter and navigation center, run by local organization Mobile Integrative Navigation Team (MINT).

Early one morning, Walker cut materials and delegated tasks inside “Parker’s Place,” a small building neighboring a used furniture store and a large Bi-Mart parking lot. Inclement weather was expected to settle in, and MINT staff hoped to accommodate people the following weekend.

Walker says that temporary shelters are part of the solution, but Grants Pass needs to get to work building more apartments and affordable housing. He argues that the current scenario is a result of the policies of the past 50 years. “We have woefully underbuilt housing, and I think we have to start to look at housing as infrastructure — as community infrastructure,” he says.

Despite community pushback, MINT opened its emergency shelter for three cold nights the first weekend in March, offering 38 cots and other services to homeless residents.

Grants Pass has been under a district court injunction since July 2020 and a federal injunction since September 2022, barring the city from enforcing its ordinances. The 9th Circuit Court of Appeals held the lower court’s opinion that the ordinance violated the cruel and unusual punishment clause because Grants Pass residents had no other option for shelter.

The only consistent overnight shelter is the Gospel Rescue Mission, a high-barrier shelter, meaning that clients are required to abstain from using substances, attend daily Christian services and abide by a host of other rules as a condition of their stay.

The Mission also requires residents to turn over all medications and stay nicotine-free. It does not permit socializing between men and women except at approved events. The Mission acknowledges gender and sexuality in “Biblical terms,” meaning that residents must “dress and behave according to their birth gender,” according to its house rules.

Brian Bouteller, the Mission’s executive director, says that he believes that people need to be compelled to seek help, and that the problem of homelessness is growing in Grants Pass because organizations are handing out material things like coats to people who choose to sleep in parks. “They have the option to not sleep in the park,” he says. “I mean, we have forests all over the place.”

Bouteller does not believe that the enforcement of city ordinances constitutes cruel and unusual punishment. He says that when he received a $300 speeding ticket as a teenager, it made him think about the way he drove and that he changed his behavior accordingly. “It changed my desires because it was painful,” Bouteller says.

Walker says that the Mission does help certain people, but that the approach “doesn’t work for everybody.” Still, he acknowledges that the idea that people should be made uncomfortable “is in the ethos” of many living in Grants Pass.

The 9th Circuit Court cited its Martin v. Boise decision from 2018 as the backdrop for the Grants Pass case. That ruling found that the US Constitution blocks cities from imposing criminal penalties for sitting, sleeping, or lying outside on public property upon people who are experiencing homelessness and cannot obtain shelter.

The two cases are closely related, and liberal and conservative city and state governments across the West have argued that the court’s injunctions obstruct them from resolving homelessness.

An amicus brief submitted by the city and county of San Francisco said the 9th Circuit Court’s decision has hamstrung its efforts. “The homelessness crisis defies ready solutions,” the brief said. “By restricting San Francisco’s ability to enforce those laws, judicial intervention has thwarted both the city’s ability to provide services to persons experiencing homelessness and its ability to protect the health, safety, and welfare needs of its residents as a whole.”

Local and state governments, police departments and chambers of commerce across the West submitted additional briefs in support of Grants Pass, making similar claims.

Ed Johnson, the Oregon Law Center’s director of litigation, who brought the initial suit against Grants Pass, says that the case is specifically about whether civil and criminal enforcement of anti-camping regulations violates the US Constitution when people have no other place to go.

He says that penalizing people in need of housing will do little to solve the larger problem. “Some politicians and others are cynically and falsely blaming the judiciary for the homelessness crisis to distract the public and deflect blame for years of failed policies,” he says.

Walker says that no matter what he tries to do to address the housing shortage, he tends to face resistance. Glen Crest Cottages, a 14-unit housing project proposed in 2023, faced significant challenges from nearby neighbors despite being a grant-funded project on donated land, specifically built for veterans.

“I think we have the right as tax-paying citizens to want to remain safe and have our property values remain the same as they currently are,” one complaint said. “It is questionable if we can even sell them if this development goes in.”

Walker says that the Foundry Village project, a long, narrow piece of land alongside the railroad tracks offering 17 transitional housing pods, faced similar pushback. The project ultimately went through despite some community members’ objections.

Walker and his team worked for a year and a half to raise the money and spent another year building. He says that half the people living at Foundry Village are ready to move into housing but cannot leave because there is nowhere for them to move into. “That’s the nut at the center of the thing,” he says.

“They’re so misunderstood”

People living in parks are required to move every 72 hours. Police officers visit parks every Monday and Thursday, hand out 72-hour eviction notices, and give $295 citations for “scattering rubbish,” a loosely defined term for leaving any item that officers find near a tent. Left unpaid, fines for violating camping ordinances increase to $537.60.

As police hand out penalties to local residents, MINT has negotiated a relatively workable schedule, offering to help residents to move their tents every Saturday.

MINT began as a community project with Josephine County Public Health, providing vaccines to people experiencing homelessness in 2021. Leah Swanson, the county emergency preparedness coordinator, says that she saw inequities between COVID vaccine rates in people who were housed and those who were unhoused, so she started a program to build trust and meet people where they were.

“That’s quintessential public health work,” she says.

Cassy Leach, who worked as a nurse at a local hospital at the time, volunteered to help early on. As she built trust in the community, people started asking for other supplies, like the life-saving overdose reversal medication Narcan. Leach acquired some to give to people in the parks, and their work grew into a mobile service for responding to multiple needs. That was the beginning of MINT.

The organization recently acquired a van and customized it to allow the team to provide medical care in the parks. Bruce Murray, a retired internist, runs the medical team with his wife, whom he lovingly refers to as the “wound god.” Murray says that the medical situation is dire in Grants Pass parks due to a lack of access to basic hygiene services.

Alongside a small group of volunteers, Murray works with Leach and her colleague Jessica Mueller — who refer to themselves as “Jay and Silent Bob” — checking in on people in the parks during the week. They ask them about upcoming appointments and developments in their daily lives, nurturing personal connections with anyone who wants to talk. “These people are just beautiful souls who have amazing stories, and they’re so misunderstood,” Leach says.

Murray says that the city council and the community have been suspicious of what MINT is doing, and that it is not uncommon for people to drive through the park and take photos and videos of them to share on social media. “They really don’t understand what we’re doing,” he says.

“The ‘crime’ of having a common cold”

City municipal code states that if a person receives two or more citations within a year for violating park rules, officers can give an exclusion order, barring them from being in the park for 30 days under threat of criminal trespass. A person found guilty of criminal trespass can be punished with up to 30 days in jail and a $1,250 fine.

Brodia Minter, a Southern Oregon public defender, said that in three weeks, her clients, Helen Cruz and her partner, each received $295 citations for violating park use regulations, two separate $295 citations for camping in parks, followed by an exclusion order that barred them from Morrison Park on 2 June 2022. She added that court scheduling made it impossible for Cruz to have her day in court on the initial citations before officers issued the exclusion order, violating a right to due process.

“We’d tried to adjudicate them but she was getting an exclusion order and swept before those tickets were adjudicated,” Minter says. “There was literally nothing she could ever do to be doing it right.”

Cruz decided to appeal after reading a notice at the bottom of a ticket that said that she had the right to do so within two days of receiving the order. She was the first person in Grants Pass to appeal an exclusion order but had to wait for the proceeding until 27 June 2022 — nearly as long as the 30-day exclusion order itself.

Cruz lost everything when she was swept. She said that police dumped an ice chest onto sentimental photos and important documents. Her blankets were soaked. She could not set up her tent again because the police intentionally broke the tent poles. “Everything was just destroyed,” she says. “It took my self-esteem and … just stomped on it, basically.”

Minter says that unless the city is giving no-barrier shelter, there are no legitimate options for people with no source of income. This encapsulates the narrow question before the Supreme Court, which is tasked with determining whether people can be punished for involuntary homelessness. Johnson says that decades of precedent holds that people cannot be punished for any involuntary status.

The 9th Circuit Court affirmed that basic principle in Martin v. Boise, saying that “a person cannot be prosecuted for involuntary conduct if it is an unavoidable consequence of one’s status.” That decision was based in part on a 1962 Supreme Court case, Robinson v. California, which determined that states cannot punish a person simply for the involuntary status of being addicted to narcotics.

Justice Stewart’s majority opinion illustrated the cruelty of punishing a person for something they cannot help. “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold,” Potter said.

“I thought it was a lynch mob”

On 17 May 2023, three days after one man experiencing homelessness killed another in Riverside Park, the city council held a public hearing and closed the park to all members of the public for one month.

During contentious public testimony, community members doubled down on the push to make residents experiencing homelessness uncomfortable, calling to privatize the parks, and describing Narcan as a “crutch” and the idea of providing shelter as “crummy.”

“We’re just so scared,” one person said.

Cruz says that she was planning to speak on behalf of the homeless residents but backed down quickly when she saw the community’s ire. “It's kind of scary because these people were … furious,” she says. “I thought it was a lynch mob.”

Her fear is not unwarranted. Vigilante groups calling themselves park watch groups have started to harass homeless residents, slashing their tents, emptying shampoo bottles and scattering their belongings.

Walker says that some in the community misdirect their anger, focusing on crime and drug use because it is too difficult to address the fact that homelessness is a broad, societal issue affecting a diverse population, including young children.

The most recent Oregon Point in Time (PIT) count revealed that 756 school-age children were homeless in Josephine County in 2023. PIT counts are widely understood to be a substantial undercount but provide a baseline for annual homelessness statistics.

Organizations like Maslow Project work in Josephine and nearby Jackson County to provide children experiencing homelessness with the resources that they need.

Many young people have moved into the nearby hills despite their danger and distance from services. Nicole Ritterbush, a case worker for Maslow Project, says that this is a consequence of the city pushing people to the edges, where there is a lower threat of criminal penalties. “The mental health stress and toll it takes on them to have to constantly be moving and not be able to sleep is not good,” she says.

Phone service is also less accessible out of town, meaning that young homeless residents have a difficult time staying in school and connecting with case managers like Ritterbush, who could help them to integrate into other parts of society.

Gutowski knows the struggle of trying to stay in school while experiencing homelessness. After her husband died and she lost her housing, she went back to college to study family support services so that she could support young people struggling with social and behavioral challenges. But without consistent access to electricity, she was often unable to keep her laptop charged, and she could not afford fuel to drive to and from school each day. She had to drop out after the first term, “which was irritating, because I had finally gotten up the guts to actually go to college in the first place,” she says.

She says that it is unfeasible to take steps out of homelessness in Grants Pass, as debts from citations become insurmountable and police and vigilante groups provoke and harass people for various reasons — in her case, for doing her homework.

Johnson says that despite the national attention to the case, the Supreme Court’s decision may do little to materially change the situation in Oregon. ORS 195.530 and Article I, section 16 of the Oregon Constitution require city ordinances to be objectively reasonable regarding people experiencing homelessness. Still, the decision is likely to impact the way that cities and states approach homelessness, regardless of whether it is sound public policy.

“My fear is if cities are allowed to criminalize without any limitation, we’re going to wake up in a few years and we’re going to have twice as many homeless people as we have right now,” Johnson says.

Courtesy of Street Roots / INSP.ngo