9th Circuit denies Johnson En Banc Petition: What Does This Mean for your City?

On July 6, 2023, the 9^th Circuit denied the City of Grants Pass's En Banc Petition to rehear the case of Johnson v. City of Grants Pass—a 2022 decision that had invalidated various local camping regulations. The Johnson decision followed the 2018 decision Martin v. City of Boise which also invalidated several local camping ordinances on the same grounds. As a result, municipalities are still prohibited from criminally prosecuting homeless individuals for camping or sleeping in public spaces if no adequate shelter is available to them. Individuals who cannot find adequate shelter are considered "involuntarily homeless." Municipalities should note five key points from the 9^th Circuit’s recent ruling:

1. Courts will continue to perform individualized assessments of a homeless person to determine whether that person is involuntarily homeless and whether anti-camping or sleeping ordinances can be enforced against them.
2. “Involuntarily homeless” persons can still file class-action lawsuits against municipalities for enforcement of anti-camping or anti-sleeping ordinances against them.
3. Municipalities are still prohibited from criminalizing the use by homeless persons of certain items, such as tents and blankets, to shield themselves from the elements while sleeping outdoors.
4. Municipalities are still allowed to place certain time and place restrictions, such as daytime camping prohibitions, on camping, or sleeping on public property. However, municipalities cannot categorically prohibit camping or sleeping on public property at all places and at all times.
5. The 9^th Circuit did not clarify whether a municipality can use shelter space outside of its municipal boundaries to assess whether adequate shelter is available to a homeless person.

Ogden Murphy Wallace’s Municipal Practice Group will continue to monitor the developments in homelessness policy and the legal implications impacting cities across Washington. More information about homelessness prevention efforts, coordination, and other resources can be found at the MRSC's homelessness page: https://mrsc.org/explore-topics/planning/homelessness/homeless-housing.

This update is a summary of a complex topic that is subject to change at any time and should not be relied upon in lieu of legal advice. If you have any questions or require guidance, please contact Drew Pollom.