1 TO: City Council
FROM: Andrew Vialpando, City Manager
PREPARED BY: Trevor Rusin, City Attorney
MEETING DATE: November 5, 2024
SUBJECT: Report on Impact of City of Grants Pass v. Johnson U.S. Supreme Court Ruling (Grants Pass Decision) Regarding Camping/Sleeping in Public Areas
RECOMMENDATION
Receive and file and provide direction to staff on next steps.
BACKGROUND
After the recent ruling of the U.S. Supreme Court regarding the City of Grants Pass v.
Johnson, the City Council directed City staff to return with a report discussing the decision, the City’s municipal code, and potential revisions to the City’s municipal code to address camping/sleeping in public areas. Following this direction, the City Manager and City Attorney met with members of the Los Angeles County Sheriff’s Department (LASD) including Lomita Station Captain Kristine Guerrero, Lieutenant Michael White, and Special Enforcement Deputy Jeremy Kellogg.
This report discusses the Grants Pass decision and the City’s municipal code below, and then addresses issues discussed with LASD and seeks direction from the Council on next steps.
DISCUSSION
City of Grants Pass, Oregon v. Johnson, No. 23-175 (U.S. June 28, 2024) In this recent ruling, the Supreme Court held that enforcement of three city laws restricting camping in public spaces was constitutional under the Eighth Amendment’s Cruel and Unusual Punishment Clause. Opinion of the Court, at 21. The city prohibited sleeping “on public sidewalks, streets, or alleyways,” “[c]amping” on public property, and
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2 “[c]amping” and “[o]vernight parking” in city parks. Grants Pass Municipal Code §§
5.61.030, 5.61.010(A)–(B), 6.46.090(A)–(B). Initial violation of these ordinances may result in a fine. Id. §§ 1.36.010(I)–(J). Multiple citations may lead to an order of a 30-day bar from city parks. Id. §§ 6.46.350. Violating the order can further lead to a $1,250 fine and a maximum of 30 days imprisonment for criminal trespass. Ore. Rev. Stat. §§ 164.245, 161.615(3), 161.635(1)(c) (2023).
The Court reasoned that because the laws only prohibited specific actions which the state deemed unlawful, and did not criminalize a particular status (i.e. being homeless), it was neither cruel nor unusual to subject violators to such moderate and commonplace penalties. Opinion of the Court, at 17. And even if a homeless individual were to illegally camp, the court mentioned that defenses such as “necessity,” “insanity, diminishedcapacity, and duress” could be applicable in precluding conviction. Id. at 24. Moreover, “[s]tates and cities are free . . . to add additional substantive protections” like “law[s] specifically addressing how far . . . municipalities may go in regulating public camping” or “declining to criminalize public camping altogether.” Id. at 24 (citing Ore. Rev. Stat. § 195.530(2) (2023)). In holding enforcement of the Grants Pass laws constitutional, the Court refused to extend the narrow holding of Robinson v. California, 370 U.S. 660 (1962), where a state law effectively criminalized the “status” of being addicted to narcotics. Opinion of the Court, at 18. And according to the Court, status alone could not result in “involuntary” violation of the laws at issue, if the violator had met the requisite mens rea and actus reus. Id. at 22–23 (citing Powell v. Texas, 392 U.S. 514 (1968)). The Court thus held that it should be left to the “broad power” of state governments, and not courts, to decide whether violating the laws was “involuntary” whenever there were not enough “adequate” and “practically available” shelter beds to accommodate local homeless populations. Id. at 34.
However, the Court left room for and did not decide on concerns relating to due process and selective prosecution. Id. at 21, fn. 5. The dissent stressed these concerns, as well as the potential for unconstitutionality through statutory vagueness or Fourth Amendment property violations. Dissent, at 28–29 (Sotomayor, J., dissenting). Highlighting the main point of disagreement with the majority, Justice Sotomayor maintained that “[t]he Eighth Amendment prohibits punishing homelessness by criminalizing sleeping outside when an individual has nowhere else to go.” Id. at 29.
Lomita Municipal Code
The following section in the Lomita Municipal Code is available, but does not specifically address camping or the erection of encampments:
Section 4-3.07 (Disorderly) of the Lomita Municipal Code provides:
“No person shall lie and sleep on any of the sidewalks, streets, or other public places within the city, or appear therein in such a state of intoxication or drunkenness as to be unable to take proper care of himself, or disturb the peace or quiet of any person, family or neighborhood, by drunkenness or by making loud and unusual noises, or by violent or offensive language, or by boisterous, tumultuous or offensive conduct, or by the 3 threatening, traducing, quarreling, fighting or offering or challenging to fight, or in any other way or manner whatever disturb the peace, quiet and decency of any person, street or neighborhood.” (emphasis added)
As in Grants Pass, violation of this Section results in commonly moderate penalties that the municipalities may choose not to enforce if circumstances require. It also does not expressly criminalize homelessness, and applies to anyone who violates the Section.
Thus, enforcement of this Section would likely not be found to violate the Cruel and Unusual Punishment Clause of the Eighth Amendment under Grants Pass.
However, whether enforcement could potentially implicate other constitutional considerations such as due process or Fourth Amendment search and seizure, are open questions beyond the scope of Grants Pass. Under Grants Pass, the more specific the statute is with its mens rea and actus reus, the more common and moderate the associated penalties, and the broader the statute’s applicability, the higher the likelihood of Eighth Amendment constitutionality. Greater predictability in the constitutionality of these and similar statutes will develop as the Court continues to refine its jurisprudence on this issue.
Partnership with LASD
As mentioned above, the City Manager and City Attorney met with LASD Captain Guerrero and Lomita deputies to discuss the implications of the Grant’s Pass decision, the Department’s approach to dealing with individuals experiencing homelessness and those camping/sleeping without permission in the City. Also discussed was the scope and impact of these types of issues in Lomita.
At this point in time, the LASD has not changed its general approach which involves first seeking to provide services to individuals experiencing homelessness and helping to connect them with housing and shelter. LASD has a team specially dedicated to handling these types of situations. County counsel and the LASD are currently evaluating their approach, particularly in light of Governor Newsom’s Executive Order of July 25, 2024, directing state agencies to adopt policies to address encampments on State property and encouraging local agencies (such as Lomita) to “take action with the urgency this crisis demands to humanely remove encampments from public spaces, prioritizing those encampments that most threaten the life, health, and safety of those in and around them.” During the meeting Staff asked if the LASD recommended that the City adopt any changes to its municipal code to assist the LASD in addressing the above issues. LASD did not have any recommendations or requests at that time. They did state that they were happy to review any potential changes internally and with County Counsel.
It is important that any changes to the municipal code be enforced by the LASD.
Provisions that conflict with the approach of the LASD or that are constitutionally fraught are unlikely to be regularly enforced or assist the City and LASD in addressing the above issues.
4 Next Steps
Should the City Council desire to add additional provisions to the Municipal Code to specifically address camping and storage of possessions in the public areas of the City, staff will work with the LASD to provide suggested modifications to the City’s code and return with a draft ordinance. As an example, staff could bring back an ordinance that makes it unlawful for any person to camp or maintain an encampment in or upon any public property, including in any street, sidewalk, or park. Such an ordinance could not prohibit a person from sitting on a sidewalk or in a public area, but it could prevent the erection of structures and other items that pose a danger to the public.
Staff requests that the City Council provide direction if such an ordinance is desired, and any priorities for the City which it wants addressed in such an ordinance.
FISCAL IMPACT
There are no financial implications resulting from this recommendation.
OPTIONS
1. Receive and file report; and
2. Direct Staff to return with an update upon any significant developments in the law or LASD policy; or,
3. Direct Staff to return with a draft ordinance addressing camping and storage of possessions in public areas of the City; or,
4. Provide alternative direction.
ATTACHMENTS
None
Reviewed by: Approved by:
_______________________ ______________________
Gary Y. Sugano Andrew Vialpando
Assistant City Manager City Manager
Prepared by:
Trevor Rusin
__________________________
Trevor Rusin, City Attorney