first page of Supreme Court opinionIn City of Grants Pass, Oregon v. Johnson et al, Case No. 23-175 (June 28, 2024) the Supreme Court, after a very long discussion, found that the prohibition on cruel and unusual punishment in the Eighth Amendment does not forbid cities from passing laws that prohibit public camping. The legal reasoning is simple. The Eighth Amendment covers what happens after a person is convicted of a crime, not what happens before. Thus, it does not cover what can be made illegal in the first place.

Along the way the Court observes that there are many causes of homelessness, including among others mental illness and drug addiction. As a lawyer who spends his time thinking about the ADA my immediate response was that there are ADA implications. Title II of the ADA prohibits discrimination against those with disabilities by cities and other non-federal governmental authorities. The ADA regulations say this requires that:

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.¹

Mental illness is often a disability, and it isn’t hard to imagine the argument that enforcement of a no-camping law should be modified because the effect of such laws falls most heavily on those whose mental illness is the cause of their homelessness.

This isn’t a novel idea. In Ravenna v. Village of Skokie, 388 F. Supp. 3d 999, 1003 (N.D. Ill. 2019) the District Court found a mentally woman stated a Title II claim when she was arrested for disorderly conduct that was caused by her mental illness even though the Village knew she was mentally ill. In Durr v. Slator, 558 F. Supp. 3d 1, 32 (N.D.N.Y. 2021), the District Court summarized earlier decisions to conclude that Title II might be violated when “police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity.” If a person is homeless because of mental illness and therefore won’t seek shelter provided by a third party and must sleep somewhere a town or city should arguably modify enforcement of a “no camping” law to permit sleeping in a public place without criminal penalties.

There are, of course, a host of practical problems. The Supreme Court observed that homelessness has many causes, many of which are not related to any kind of disability. Homeless encampments presumably include individuals who are not disabled, and sorting out the disabled from the not disabled isn’t likely to be easy. There is also the “fundamental alteration” exception to the accommodation policy and the argument that no matter what the cause of homelessness, making an exception to enforcement of a no-camping law would do what it has in fact done in many cities; that is, make public places unusable by ordinary citizens who are not homeless. Those are, however, the kinds of problems of which Justice Gorsuch says:

Through their voluntary associations and charities, their elected representatives and appointed officials, their police officers and mental health professionals, [the American people] display that same energy and skill today in their efforts to address the complexities of the homelessness challenge facing the most vulnerable among us.

I am sure that in the wake of Grants Pass v Johnson advocates for the homeless will be looking for ways to at least exempt those with disabilities from no public-camping laws just as cities and municipalities look for reasons to enforce those laws against everyone, including the disabled. What almost certainly will not happen is that federal judges will be disentangled from ruling on questions of public policy. Justice Gorsuch, citing Justice White’s dissent in the Robinson case wrote that:

Nor can a handful of federal judges begin to “match” the collective wisdom the American people possess in deciding “how best to handle” a pressing social question like homelessness. 

Unfortunately, Congress has, in essence, delegated a large swath of public policy concerning those with disabilities to the courts because the courts are the ultimate decision makers with respect to what the ADA requires. This is always good for lawyers. Whether it is good public policy is a question that could not even be adequately discussed in the space of a thousand blogs like this one.


¹ 28 CFR §35.130(b)(7)