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A Supreme Court case out of Oregon could change how Arizona addresses homelessness

Can you punish someone for sleeping on the street? That’s one of the questions at the heart of an Oregon case that’s been playing out before the U.S. Supreme Court this week.

It has sweeping implications for how cities around the country — including here in Arizona — regulate the growing problem of homelessness.

Here to break it all down for us is Stefanie Lindquist, a professor of law and political science at ASU’s Sandra Day O’Connor College of Law. Good morning, Stefanie, thanks for coming on The Show.

Full interview

LAUREN GILGER: Good morning, Stephanie, thanks for coming on the show.

STEFANIE LINDQUIST: Good morning. Thank you for having me.

GILGER: So begin for us by describing sort of where this case came from. It began in this town Grants Pass, Oregon. Local authorities, there had been sort of ticketing people for sleeping or camping in public spaces. Tell us who challenged these ordinances. How did this case come about?

LINDQUIST: Yes, this is a class action by homeless individuals in Grants Pass, which has experienced a significant homelessness problem, a humanitarian crisis, one might say. There are about 600 people who are homeless in Grants Pass. And at the present time, the number of shelter beds available for those individuals is insufficient to provide shelter for the homeless population in Grants Pass. And so a class action was brought on their behalf challenging an ordinance which is what's called a camping ban. It's a ban. It bans individuals from sleeping in a public place if they are deploying certain kinds of protection such as a blanket or a cardboard box to protect them from the elements.

And so that's what the ban imposes and it comes with certain consequences if it's violated. First, there are several civil penalties that can be imposed financial fines. And then if those financial fines are ultimately not paid, then an individual can be put in prison for trespass for up to 30 days. So there is both civil and criminal penalties associated with violating this campaign.

GILGER: And this was all this case was all kind of affected by another Supreme Court decision that came down a few years ago in Boise, right, that sort of set the precedent for how cities handle these situations. 

LINDQUIST: That's right. And even more importantly, by two much earlier precedents, called Robinson and Powell, because those precedents manage how courts evaluate whether or not a statute a law criminalizes status as opposed to conduct. And that's really what's at issue in this case. The argument goes that by criminalizing or by imposing these camping bans, what the law is essentially doing is criminalizing the status of being homeless. And any law that criminalizes an individual status can be challenged under an early precedent called Robinson, in which the Supreme Court struck down a law that made a criminal act to be a drug addict. And the Supreme Court concluded that no such law could stand under the Eighth Amendment because it criminalizes status rather than conduct.

On the other hand, the court later in a case called Powell upheld a law that criminalized a public drunkenness on grounds that that was conduct rather than status. Yes, someone can be addicted to alcohol and the law cannot criminalize the addiction, but it can criminalize the conduct that comes with it. And I think it's important to note here that the law in Oregon in Grants Pass does not specify that it is criminalizing homelessness. What it does is it criminalizes or at least imposes civil violations for penalties for camping in, in a public place on a sidewalk in a public park in a doorway while using some measure of shelter such as a blanket.

GILGER: So talk a little bit about the arguments we heard at the Supreme Court. It got pretty heated, it sounds like and it sounds like the justices were pretty split along ideological lines here. At one point, Justice Kagan asked if cities could outlaw sleeping, if they could also outlaw like breathing.

LINDQUIST: Right. That's right. I mean, some of the justices claim that this law basically criminalizes breathing in public right that this is a law that you can violate simply by being in a particular place and being human. And I think that the city would argue that and I think the previous Supreme Court precedents make clear that certain conduct that are, that certain laws that protect the public in terms of health and safety are perfectly legitimate under the constitution. What the argument goes here is that effectively, this law is imposed and applied only to homeless individuals and thus is in essence a criminalizing the status of being homeless.

Now, what the city would argue in response is that there is a defense, the defense of necessity and that if an individual is charged under these laws, then they can in court come forward and claim that there were no beds available in the shelter and thus, where they were at the time that they were sleeping and protected by a blanket, for example, was a matter of necessity. And thus, if that necessity offense, that necessity defense, I'm sorry, I'm sorry.

[Dog barking]

No, I apologize. Sometimes you don't have control that necessity defense is available. Then in effect, the law does not criminalize the actual status of being home.

GILGER: Yeah. So tell us lastly here, I mean, how could this decision affect cities nationwide that are dealing with homelessness and encampments? Similar to the, the conversation we've seen and lawsuits we've seen play out here in Phoenix.

LINDQUIST: That's right. I mean, this is a real challenge, right, both for the courts and for local jurisdictions because we're balancing the constitutional rights of individuals against the need of cities to manage their public spaces and ensure that they're safe for the public to use. And so how that balance is struck is extremely important and how much of an individualized determination needs to be made for each person who was charged under the law to be able to claim that their situation is one of necessity rather than choice. And that is really what's at the crux of this case.

Are we, and is Oregon the Grant Grants Pass, are they criminalizing someone's status or the conduct that follows from that status? And I think the liberal justices would say that this conduct follows from the status and is in fact in inexplicably entwined with that status, such that any criminalization of the conduct that is sleeping in a public place is in essence a criminalization of the status itself.

And so how that balance is struck in court by local jurisdictions is extremely important going forward. And one of the big issues in this case, I think is an issue of banishment because one of the city council members claim that if we enforce this law more strongly, perhaps the homeless will leave. And that is not a good fact for the city.

GILGER: All right, we'll have to leave it there. Stefanie Lindquist, professor of law at ASU Sandra Day O'Connor College of Law. Stefanie, thank you for coming on. I appreciate it.

LINDQUIST: Thank you very much.

KJZZ's The Show transcripts are created on deadline. This text may not be in its final form. The authoritative record of KJZZ's programming is the audio record.

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Lauren Gilger, host of KJZZ's The Show, is an award-winning journalist whose work has impacted communities large and small, exposing injustices and giving a voice to the voiceless and marginalized.