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Sunday, July 21, 2024


High Court Upholds Ban on Homeless Sleeping Outdoors

High Court Upholds Ban on Homeless Sleeping Outdoors

By Vince Conti


The U.S. Supreme Court has upheld an Oregon community’s ban on homeless residents sleeping outdoors, in a ruling that may have direct implications for Cape May County.

The court’s 6-3 decision on June 28 concerning Grants Pass, a southern Oregon town of 40,000, is expected to have wide-ranging implications for municipalities dealing with a rise in homeless encampments.

In Cape May County, Middle Township passed an ordinance in August 2023 that banned sleeping overnight in temporary shelters like tents. Township officials were candid that the ordinance was intended to aid police in dealing with homeless encampments in Rio Grande.

At a Township Committee meeting Monday, July 1, Township Solicitor Matthew Rooney said he was “disinclined” to discuss how the Supreme Court decision would impact the township “one way or the other.” He said some cases are still making their way through Municipal Court.

Mayor Christopher Leusner spoke of the success the township has had with Volunteers of America, a faith-based nonprofit that provides social workers to work with police to, among other things, help find shelter and services for the homeless. Leusner said Middle Township is the only municipality in the county that embeds social workers in the Police Department.

The mayor added that the ordinance against temporary shelter is just another tool for use by the township and the police in addressing the problem of homeless encampments. He said he feels the township has made significant progress in reducing the health and safety hazards posed by those encampments since the ordinance was adopted.

In the Supreme Court ruling, Justice Neil Gorsuch wrote for the majority, saying that a local law that penalizes sleeping and camping in public places does not criminalize homelessness, just the act of sleeping outdoors.

Justice Sonia Sotomayor wrote an impassioned dissent that she read from the bench. She called sleeping a “biological necessity.” She called it cruel and unusual punishment to ban sleeping outdoors when that is the only option some people have.

In a 2018 decision, the Ninth Circuit Court of Appeals declared it a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment to forbid sleeping outdoors when no shelter beds are available.

Despite the language in the Gorsuch opinion, Sotomayor said the court decision criminalized homelessness in a way that was likely to cause a “destabilizing cascade for harm.”

Reaction to the ruling was mixed. No state has wrestled with the problem of homelessness more than California, and there the message from the court was received in different ways.

In San Francisco, a number of municipal officials praised the decision. City Attorney David Chiu said the ruling gave law enforcement much needed flexibility to deal with a very visible homeless population.

In Los Angeles, the chair of the Los Angeles Board of Supervisors called the decision a “gut punch,” adding that it was “unconscionable” and “not an effective solution.”

Closer to home, housing advocates from across the state expressed disappointment in the court’s decision. The New Jersey Coalition to End Domestic Violence said, “Research shows that gender-based violence is a leading cause of homelessness. This decision will further force victims to choose between life and death.”

Attorney Jeff Wild, co-founder of the New Jersey Coalition to End Homelessness, said a decision that criminalizes homelessness represents the first time in the country’s history “where involuntary conduct can now be a crime.” Wild has represented homeless clients in Middle Township and elsewhere in the county.

Speaking in advance of the ruling, Wild said that a decision that says people cannot live outdoors means “the government will have no incentive to actually solve the problem which could be easily solved by making more emergency shelters and more affordable homes available.”

Some who worried about a broad ruling in favor of the ban argued that it will allow municipalities to push the homeless from one place to another without addressing the underlying issue of homelessness.

Across the country, and in Cape May County, officials are also responding to public pressure to address issues of unsanitary conditions, petty crime and general public safety concerns about encampments. When Middle Township adopted its ordinance, then-Mayor Timothy Donohue said the governing body was seeking a balance between the rights of the homeless in Rio Grande and the rights of property owners, businesses and other residents of a district that is both residential and a retail hub for the county.

The most recent published count of the homeless in New Jersey, from January 2023, showed more than 10,000 homeless individuals. Cape May County’s count was 198, representing a 66% increase over the prior year.

Federal point-in-time counts show the number of homeless in South Jersey in 2023 at its highest point since 2015. Advocates for the homeless have pushed the county to establish a homeless shelter.

Above is the syllabus issued as part of the ruling in the case of Grants Pass v. Johnson, along with the Opinion of the Court delivered by Gorsuch, a concurrence by Justice Clarence Thomas, and the dissent by Sotomayor.

Contact the reporter, Vince Conti, at


Vince Conti is a reporter for the Cape May County Herald.

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