Cities can’t prohibit the homeless from using blankets or pillows on public property, court rules

Bob Egelko

Sep. 28, 2022 Updated: Sep. 29, 2022 7:15 p.m. (

Four homeless men sleep on Larkin Street in San Francisco, California, on June 18, 2019.
Four homeless men sleep on Larkin Street in San Francisco, California, on June 18, 2019. Gabrielle Lurie / The Chronicle
A federal appeals court ruled local governments could not make it a crime to sleep on a public street or sidewalk, nor may they prohibit unhoused people from using pillows or blankets.

A city can’t punish homeless people for sleeping on public property or using blankets and pillows to protect themselves from the elements, a federal appeals court ruled Wednesday.

The Ninth U.S. Circuit Court of Appeals in San Francisco had already ruled in 2018 that local governments could not make it a crime to sleep on a public street or sidewalk when no homeless shelters are available. Wednesday’s decision, in a case from Grants Pass, Ore., went a step further and said cities can’t prohibit simple self-protective measures for the homeless, like using blankets, pillows or cardboard boxes in an encampment, or punish them by imposing civil fines that turn into criminal penalties when unpaid.

People cannot be punished “for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the city for them to go,” Judge Roslyn Silver wrote in the 2-1 ruling. “Grants Pass is cold in the winter,” she said, and “the choice to use rudimentary protection of bedding to protect against snow, frost, or rain is not volitional; it is a life-preserving imperative.”

The ruling, if it stands, will be binding on federal courts in nine Western states, including California. Silver, a federal judge from Arizona temporarily assigned to the Ninth Circuit, was joined in the majority by judge Ronald Gould, over a heated dissent by Judge Daniel Collins.

Collins said the court should overturn its 2018 ruling, and quoted a colleague in an earlier dissent who said it has already resulted in “dire practical consequences for the hundreds of local governments within our jurisdiction.” And although he and other Ninth Circuit judges are bound to follow that ruling, he said, Wednesday’s decision goes too far by prohibiting a city from enforcing anti-camping laws unless it has shelter space for its entire homeless population, including those who could have found beds in a nearby community.

The ruling “effectively requires the City of Grants Pass to allow all but one of its public parks to be used as homeless encampments,” wrote Collins, an appointee of President Donald Trump. Both Silver and Gould were appointed by President Bill Clinton.

Grants Pass, a city of 38,000 in Southern Oregon, passed a law in 2014 banning sleeping on streets, sidewalks and alleyways and camping in public parks. It also prohibited keeping a motor vehicle in a park for two hours or more between midnight and 6 a.m. Violators could be fined for a first offense and, for repeated offenses, barred from all city property and criminally prosecuted for trespassing.

The court quoted a City Council member as saying the goal of the ordinance was “to make it uncomfortable enough for (homeless persons) in our city so they will want to move on down the road.”

A police official estimated that Grants Pass has 50 homeless people, but a local nonprofit service organization said there were at least 600, a figure accepted by a federal judge who blocked enforcement of the ordinance in 2019. The city has four homeless shelters but none generally open to all homeless people, the court said; two have no beds, one is for youths, and the fourth is run by a church and requires residents to work six days a week and attend weekly services.

The class-action lawsuit by homeless people argued that the Grants Pass ordinance, like the Boise, Idaho, law that the court struck down in 2018, violated the constitutional ban on cruel and unusual punishment. Lawyers for the city countered that the constitutional prohibition does not apply to the civil fines imposed by the ordinance, but the appeals court disagreed.

While the 2018 ruling barred Boise and other cities from imposing criminal penalties on the homeless, “a local government cannot avoid this ruling by issuing civil citations that, later, become criminal offenses,” Silver said. “The anti-camping ordinances prohibit Plaintiffs from engaging in activity they cannot avoid … sleeping outside with rudimentary protection from the elements, or … sleeping in their car at night, when there is no other place in the City for them to go.”

The ruling was applauded by Jennifer Friedenbach, executive director of the Coalition on Homelessness in San Francisco.

“Being forced to sleep outside simply because you are poor is cruel in and of itself,” she said. “Being forced to do so without basic protection from the elements goes even further. From our perspective, people out there in the cold put a lot of energy into just trying to survive. Our society and our governments should not be making that any harder than it already is, and when they do make it harder, they should be held accountable.”

Attorney Ed Johnson of the Oregon Law Center, who represents the plaintiffs, said the ruling was “rooted in settled law and sensible policy.”

When people “have no option but to live outside, they should not be punished for doing what all human beings must do to survive in that condition,” Johnson said.

A lawyer for Grants Pass could not be reached for comment. The city could ask the full appeals court for a new hearing before a larger panel, a request that failed to gain a majority vote in the 2018 case.

Bob Egelko is a San Francisco Chronicle staff writer. Email: Twitter: @BobEgelko

Written By Bob Egelko

Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.

His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.

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