Seattle Residents Rally to Oppose Landmark Case Banning Sleeping in Public

by Lauryn Bray

Following the first day of arguments in a new landmark Supreme Court case, fewer than a few hundred people gathered in the yard behind the William Kenzo Nakamura U.S. Courthouse on Monday, April 22, for a rally organized by the local coalition Services Not Sweeps to protest the criminalization of homelessness.

"No one should be forced to live outside," said Nikkita Oliver, lawyer and 2017 mayoral candidate. "So as we live in one of the richest cities here on Turtle Island, it is our obligation to make these elected officials uncomfortable. It is our obligation to make wealthy people uncomfortable."

The day of action is in response to the Supreme Court taking up a case out of Grants Pass, a small town in Oregon that is arguing for the right to enforce a citywide ordinance that prohibits sleeping in public with a blanket, pillow, or cardboard box. The Supreme Court ruling will have the power to affect how cities across the country respond to homelessness.

"This is a response to the Supreme Court case Johnson v. Grants Pass. [The city is] trying to increase local municipalities' ability to criminalize people living outside," said Jay Jones, an organizer with Services Not Sweeps.

The case of Johnson v. Grants Pass is similar to a lawsuit that was filed against the city of Burien earlier this year (Hale v. City of Burien). In January 2024, three people filed a lawsuit against Burien for enforcing Ordinance 818, legislation that bans homeless people from camping on public property from 10 p.m. to 6 a.m. if shelter is available. The Seattle/King County Coalition on Homelessness is named as a plaintiff in the lawsuit. The lawsuit alleges that the ordinance was enforced while adequate shelter space was not available.

The Supreme Court's ruling in the lawsuit against Grants Pass has the potential to affect the outcome of Hale v. City of Burien and other lawsuits filed against cities after the enforcement of anti-camping ordinances.

Grants Pass' appeal to the Supreme Court stems from a 2022 ruling in Johnson v. City of Grants Pass by the Ninth Circuit Court of Appeals, which decided that Grants Pass' "anti-sleeping" ordinance, prohibiting sleeping in public with a blanket, a pillow, or a cardboard box, was unconstitutional, citing a previous court ruling in the case of Martin v. Boise.

After the city of Boise, Idaho, was sued by six homeless people for trying to enforce an anti-camping ordinance with virtually no available shelter space, the Ninth Circuit Court of Appeals decided it is unconstitutional to punish homeless people with criminal or civil penalties for sleeping in public if there is no shelter available, under violation of the prohibition on "cruel and unusual punishment" under the Eighth Amendment.

"The advocates, the Oregon Law Center, representing these two individuals are saying it is cruel and unusual punishment under the Eighth Amendment to deprive people of a piece of cardboard or a blanket," said Alison Eisinger, executive director of the Seattle/King County Coalition on Homelessness, in an interview with the Emerald at the rally. "Clarence Thomas believes we've been overly generous with interpreting the Eighth Amendment and thinks that cruel and unusual punishments in the original intent is really very narrow and only applies to certain forms of physical punishment. He's never had four other justices who would go along with him, potentially until now."

Grants Pass' appeal to the Supreme Court to overturn the 2022 ruling is what the nine justices are deciding on. One of the Court's concerns is the issue of whether the city's ordinance seeks to criminalize people for their conduct or their status. Under the legal principle of stare decisis, judges are required to respect and follow the precedent set by previous court rulings, which is why the Ninth Circuit Court of Appeals had to rule against Grants Pass and uphold its previous decision in Martin v. Boise.

According to the primary holding of the 1962 Supreme Court ruling in the case of Robinson v. California, "it is unconstitutional for a state to punish a defendant for drug addiction, which is a status rather than an act, when the defendant has not engaged in any illegal conduct involving drugs in the state."

Because Supreme Court judges in 1962 argued that it is unconstitutional to criminalize people just for being addicted to drugs and the principle of stare decisis, other laws that seek to criminalize people on the basis of status are also unconstitutional. Under that same legal principle, the Supreme Court's ruling in the lawsuit against Grants Pass will determine if other cities have the right to enforce anti-camping ordinances when shelter space is available.

Attorney Theane Evangelis and Grants Pass are arguing that the ordinance is based on conduct and not status, because the ordinance will only be enforced against people sleeping in public with a pillow, blanket, or cardboard box. "The conduct is establishing a campsite, and that is something that a person who has a home or shelter could do as well," explained Evangelis in response to a question from Justice Ketanji Brown Jackson regarding the distinction between conduct and status.

Justice Elena Kagan argued, "Sleeping is a biological necessity. It's sort of like breathing — I mean you could say breathing is conduct too — but presumably, you would not think it's okay to criminalize breathing in public. And for a homeless person who has nowhere to go, sleeping in public is a lot like breathing in public," she said.

While speaking at the rally, Ethan Campbell, a University of Washington doctoral candidate studying ocean physics, sea ice, and climate, and an organizer with Whose Streets? Our Streets! (WSOS), argued that breathing outside during climate crises is just as dangerous as sleeping outside.

"Unfortunately for those unsheltered, our region's smoke-filled summer air means that breathing in public is not safe either," Campbell said.

On Tuesday, April 30, the Seattle/King County Coalition on Homelessness will have a community advocacy briefing, co-hosted with the Northwest Justice Project and the ACLU of Washington, to provide an update on Kitcheon v. City of Seattle and Hale v. City of Burien, as well as review and discuss the Johnson v. City of Grants Pass case.

Featured Image: Protesters bear signs protesting an Oregon case that could have widespread effects on how cities address homelessness. (Photo by Jay Jones, courtesy of Services Not Sweeps.)