Applied Rights Analysis: Homeless Encampments
Framework: Applied Rights Analysis

Should Cities Ban Homeless Encampments?

An interactive walkthrough of conflicting rights
Based on City of Grants Pass, Oregon v. Johnson (2024)
Background

The Scenario

The Policy Question

A mid-sized city in the western United States is debating an ordinance that would ban camping on all public property — parks, sidewalks, and alleyways. Violations would begin with a $295 fine and escalate to criminal trespass charges for repeat offenders.

The city estimates about 600 residents experience homelessness on a given night. The local shelter, operated by a faith-based nonprofit, has roughly 150 beds and requires residents to attend religious services and maintain sobriety.

Homelessness in the city has risen sharply in recent years. Community members report growing public health and safety concerns in neighborhoods where encampments have formed. At the same time, homeless residents and their advocates argue they have nowhere else to go and that fines and criminal records will only deepen the cycle of homelessness.

This scenario is modeled on a real case that reached the Supreme Court in 2024. The city of Grants Pass, Oregon — population 38,000 — adopted similar ordinances, and the resulting legal challenge forced the Court to weigh competing rights that don't have easy answers.

We're going to work through this case using applied rights analysis : identifying the rights at stake, classifying them, examining the conflicts, and then seeing how different priority rankings lead to different policy recommendations. At the end, we'll see how the Supreme Court itself resolved the case — and what it left unresolved.

Step 1

Identify the Claimed Rights

The first step in applied rights analysis is to identify the rights at stake. In this case, three distinct rights emerge from the arguments made by both sides — the city government, homeless residents, and their respective advocates.

As you read about each right, notice that they aren't abstract. Each one is grounded in real interests that real people are trying to protect.

Right #1: Safe and Accessible Public Spaces

City officials and community members argue that everyone — including the poorest residents — has a right to safely use public streets, sidewalks, and parks. Encampments can create public health hazards, block accessibility for people with disabilities, and concentrate crime in already-vulnerable neighborhoods.

Brief from Western Cities
"[E]ncampments are [often] found in a city's poorest and most vulnerable neighborhoods… Adults and children in these communities are sometimes forced to navigate around used needles, human waste, and other hazards to make their way to school, the grocery store, or work. Those with physical disabilities report this can pose a special challenge for them, as they may lack the mobility to maneuver safely around the encampments."

The cities argued that camping bans are not about punishing homelessness — they are a tool to encourage people to accept shelter and services, and to address encampments that pose genuine health and safety risks.

Right #2: Freedom from Punishment for an Involuntary Condition

Homeless residents argue that when someone has nowhere else to go, sleeping outside isn't a choice — it's a biological necessity. Punishing people for sleeping when they have no alternative effectively punishes them for being homeless, not for anything they've done.

Arguments for the Homeless Plaintiffs
"Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional."

Advocates pointed to a man in Nashville who experienced homelessness for 20 years and was arrested 198 times. His case worker eventually made him a T-shirt that read "Please do not arrest me, my outreach worker is working on my housing." Once he secured housing, he had no further encounters with police — no citations and no arrests.

Right #3: Adequate Shelter

Both sides implicitly invoke this right — but in different ways. Cities argue they've invested in expanding shelter capacity. Advocates argue that shelter doesn't count as "available" if it requires religious participation, bars people struggling with addiction, or simply doesn't have enough beds. The underlying question: does the government have an obligation to provide shelter before it can punish people for sleeping outside?

Cities' Argument
Many cities reported that even as they expanded shelter capacity, "the vast majority of their homeless populations are not actively seeking shelter and refuse all services." Portland, Oregon indicated that between 2022 and 2024, over 70 percent of approximately 3,500 shelter offers were declined. Cities argued they need "access to the full panoply of tools in the policy toolbox" to tackle homelessness.
Advocates' Argument
Advocates responded that the city's only shelter required residents to attend religious services and abstain from smoking — conditions that made it unavailable to many. When people do refuse shelter, it is often because beds come with "restrictions based on gender, age, income, sexuality, religious practice, curfews that conflict with employment obligations, and time limits on stays." Studies showed that "the vast majority of those who are unsheltered would move inside if safe and affordable options were available."
Step 2

Classify the Rights: Claimed or Granted?

Now we need to determine which of these rights satisfy accepted moral standards and whether they are already established by government. This matters because granted rights — those with legal or constitutional backing — generally carry more weight in policy analysis than claimed rights that rest on moral grounds alone.

But as this case shows, the boundary between "claimed" and "granted" is sometimes the heart of the dispute.

Right Status Interests Protected Basis
Safe & Accessible Public Spaces
Granted 		Granted by longstanding government police power and federal law Physical safety of all residents; public health and sanitation; ADA accessibility; neighborhood livability, especially in low-income areas Government police power; Americans with Disabilities Act; public health authority. Cities have regulated public spaces since the founding era.
Freedom from Punishment for Involuntary Condition
Disputed 		Genuinely disputed — the central legal question in this case Human dignity; ability to perform essential bodily functions without criminal penalty; protection from criminalization of poverty; preventing downstream harms of criminal records 8th Amendment (Cruel and Unusual Punishment); Robinson v. California (1962) held you can't criminalize a status . The dispute: does punishing people for sleeping outside when they have no shelter effectively punish their status as homeless?
Adequate Shelter
Claimed 		Claimed — strong moral basis but not constitutionally guaranteed Housing security; physical and mental health; stability for employment and education; children's welfare; freedom from deprivation UN Universal Declaration of Human Rights (Article 25); moral consensus on human dignity. Not in the U.S. Constitution. Some states and cities have created limited shelter obligations by statute.
Why Classification Matters
Notice that the middle right — freedom from punishment — is genuinely disputed , not clearly granted or claimed. This is the exact question the Supreme Court had to resolve. That's a useful reminder that the claimed/granted distinction isn't always clean. Sometimes the most important policy debates happen in exactly this gray zone.
Step 3

Identify Actions & Conflicts

For each right, we can identify the policy actions that would be consistent with protecting or promoting it. When those actions point in different directions, we have a conflict among rights.

Right Status Actions Consistent with the Right
Safe & Accessible Public Spaces
Granted 		Granted Enforce the camping ban. Clear encampments that pose health and safety risks. Use escalating penalties to encourage individuals to accept services. Give city employees legal authority to address dangerous conditions.
Freedom from Punishment
Disputed 		Disputed Do not enforce camping bans against individuals who have no available shelter. Prohibit fines and criminal penalties for sleeping in public when no alternative exists. Protect people from criminal records that make escaping homelessness harder.
Adequate Shelter
Claimed 		Claimed Invest in expanding low-barrier shelter capacity (no religious or sobriety requirements). Fund permanent supportive housing. Ensure that shelter is genuinely available before enforcement begins.

The Conflict

The actions are clearly in tension. Enforcing the ban protects public safety but punishes people with nowhere to go. Refusing to enforce protects human dignity but leaves communities bearing the costs of encampments. And investing in shelter is consistent with all three rights — but it doesn't resolve the immediate question of what to do right now .

Public Safety

→ Enforce the ban

Clear encampments, restore public spaces

Freedom from Punishment

→ Don't punish

No fines or arrests when shelter is unavailable

Adequate Shelter

→ Invest first

Build capacity before enforcement

⇅ These actions conflict ⇅
The Case for Enforcement
"These public-camping regulations are not usually deployed as a front-line response to criminalize homelessness. Instead, they are used to provide city employees with the legal authority to address encampments that pose significant health and safety risks and to encourage their inhabitants to accept other alternatives like shelters, drug treatment programs, and mental-health facilities."
The Case Against Enforcement
Advocates argued that the city's logic was like saying "it is cruel and unusual to punish someone for having a common cold" but "it is not cruel and unusual to punish them for sniffling or coughing because of that cold." A police officer in Grants Pass acknowledged that a person stargazing on a blanket or a tourist with a sleeping bag would never be cited — only someone who had no home to return to. The ordinance, they argued, targets the status of homelessness, not the conduct of camping.

Because these rights and their associated actions conflict, we need to prioritize . Different priority rankings will lead to different policy outcomes — and reasonable people will disagree about which ranking is correct.

Step 4

Prioritize the Rights

This is the core of applied rights analysis — and the hardest part. You must decide which rights take priority, knowing that honoring one right will constrain another.

There's no objectively correct answer here. Your ranking will depend on how you weigh the competing interests and which values you think should guide public policy. After you see your result, we'll compare your analysis to how the Supreme Court actually decided the case.

Drag to reorder. Place the right you think should have the highest priority at the top.

  • Safe & Accessible Public Spaces

    Protect community health, safety, and accessibility for all residents

    ⠿

  • Freedom from Punishment for Involuntary Condition

    Don't criminalize people for sleeping when they have nowhere else to go

    ⠿

  • Adequate Shelter

    Ensure housing and shelter are available before enforcement begins

    ⠿
Your Ranking Recommends

Policy A: Full Enforcement with Services Offered

The city enforces the camping ban across all public property. Officers inform individuals of available services at the point of contact, but enforcement does not depend on whether shelter is actually available. First offenses draw fines; repeat violations lead to park exclusion orders and eventually criminal trespass charges.

The city also funds outreach workers, partners with nonprofits, and invests in expanding shelter — but these are complements to enforcement, not prerequisites for it.

Tradeoff you've accepted Some people with nowhere to go will be fined or arrested. Criminal records may make their situations worse. But public spaces remain accessible and safe for all residents, and enforcement creates an incentive to accept services.
Your Ranking Recommends

Policy B: Conditional Enforcement

The city enforces camping bans only when adequate, low-barrier shelter beds are available . "Adequate" means no requirements for religious participation or sobriety as a condition of entry. When beds are available, individuals can be required to use them and camping bans are enforceable. When beds are full, individuals cannot be penalized for sleeping in public.

Tradeoff you've accepted When shelter is full, encampments persist and communities bear the associated public health and safety costs. Cities must invest in tracking shelter capacity in real time, which creates administrative complexity. But no one is punished for a condition they cannot control.
Your Ranking Recommends

Policy C: Managed Alternatives

The city does not enforce criminal camping bans. Instead, it designates specific public areas as sanctioned camping zones with basic services: portable toilets, running water, trash collection, and on-site case workers. Unsanctioned camping outside these zones can be redirected but not criminally punished. Simultaneously, the city invests in permanent supportive housing.

Tradeoff you've accepted Some public spaces are formally dedicated to encampments. Neighbors near designated zones bear a disproportionate burden. The approach requires sustained public investment with uncertain timelines. But it preserves human dignity and creates a path toward long-term solutions.
Your Ranking Recommends

Policy D: Housing-First with Emergency Safety Authority

The city's primary response is major investment in affordable housing, mental health services, and substance abuse treatment . No camping bans are enforced except in narrowly defined emergencies — encampments blocking hospital access, creating immediate fire hazards, or posing documented public health crises. The goal is to make enforcement unnecessary by solving the underlying shortage.

Tradeoff you've accepted This is the most expensive approach and the slowest to show results. In the interim, encampments continue and public safety concerns persist. It depends on sustained political will and funding over many years. But it addresses the root cause rather than the symptoms.
Step 5

How Did the Court Rule?

You've worked through the rights, classified them, identified conflicts, and made your own priority ranking. Now let's see how nine Supreme Court justices resolved the same question.

City of Grants Pass, Oregon v. Johnson

6 – 3

The Court upheld the city's camping ban. Writing for the majority, Justice Gorsuch held that generally applicable laws regulating camping on public property do not constitute "cruel and unusual punishment" under the Eighth Amendment — even when enforced against homeless individuals with no access to shelter.

Justice Sotomayor dissented from the bench, joined by Justices Kagan and Jackson.

The majority and dissent effectively endorsed different priority rankings — illustrating exactly the kind of disagreement that applied rights analysis is designed to surface.

Majority (6) — Gorsuch

Implicit ranking: Safety first. The majority held that camping bans regulate conduct , not status , and emphasized that democratic processes — not federal judges — should craft homelessness policy.

Their approach is closest to Policy A — enforcement paired with services, with no constitutional requirement to provide shelter first.

Dissent (3) — Sotomayor

Implicit ranking: Dignity first. The dissent argued that punishing people for sleeping outside when they have no shelter effectively criminalizes their status as homeless — not their conduct.

Their approach is closest to Policy B — enforcement conditional on the actual availability of shelter.

The Strongest Arguments on Each Side

The majority emphasized that the camping ordinance applies to everyone — not just the homeless:

Majority — Justice Gorsuch
"Under the city's laws, it makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building."

Sotomayor responded with two words:

Dissent — Justice Sotomayor
"That view describes a fantasy."

She pointed to the testimony of a Grants Pass police officer who acknowledged that someone lying on a blanket to stargaze or a tourist with a sleeping bag would never be cited — only someone who had no other home. The law, in practice, targeted only the homeless.

Majority — Justice Gorsuch
"A handful of federal judges cannot begin to match the collective wisdom the American people possess in deciding how best to handle a pressing social question like homelessness… The Constitution's Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation's homelessness policy."
Dissent — Justice Sotomayor
"The majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested."

Sotomayor closed her dissent — which she read from the bench — with a challenge to her colleagues:

Dissent — Justice Sotomayor (closing)
"It is the role of this Court to safeguard constitutional liberties for the most vulnerable among us, even when, and perhaps especially when, doing so is uncomfortable or unpopular. Otherwise, the words of the Constitution become little more than good advice."

What the Court Left Unresolved

Neither the majority nor the dissent fully addressed the right to adequate shelter — the claimed right that sits at the foundation of this debate. The majority said homelessness policy belongs to democratic processes, not courts. The dissent said the Constitution provides a floor of protection. But neither answered the deeper question: Does the government have an affirmative duty to provide shelter?

That question — about positive rights and government obligations — connects directly to the other ethical frameworks we've studied. A utilitarian might ask which approach produces the greatest aggregate wellbeing. A Rawlsian would ask which policy most benefits the least advantaged. Applied rights analysis asks which rights should take priority and what actions follow from that prioritization.

Completed Applied Rights Analysis

Here is the full table with all columns filled in — the kind of completed analysis you would produce at the end of your own applied rights walkthrough.

Right Claimed or Granted Interests the Right Protects Priority Actions Consistent with the Right
Safe & Accessible Public Spaces
 Granted
Police power; ADA; public health law 		Physical safety; public health and sanitation; ADA accessibility; neighborhood livability in low-income areas Majority: 1st
Dissent: 2nd–3rd 		Enforce the camping ban. Clear encampments posing health and safety risks. Use escalating penalties to encourage acceptance of shelter and services.
Freedom from Punishment for Involuntary Condition
 Disputed
8th Amendment; Robinson v. California . Majority: does not apply. Dissent: does apply. 		Human dignity; protection from criminalization of poverty; preventing criminal records that deepen homelessness Dissent: 1st
Majority: not prioritized 		Do not enforce camping bans when no shelter is available. Prohibit fines and criminal penalties for sleeping in public when the person has no alternative.
Adequate Shelter
 Claimed
UN Declaration of Human Rights; moral consensus. Not in U.S. Constitution. 		Housing security; physical and mental health; stability for employment and education; freedom from deprivation Not directly prioritized by either side Invest in low-barrier shelter (no religious or sobriety requirements). Fund permanent supportive housing. Ensure shelter is genuinely available before enforcement.
The Takeaway
The same set of facts, the same rights, the same legal framework — and the nine justices of the Supreme Court reached starkly different conclusions. That's not a failure of analysis. It's what happens when rights genuinely conflict. The value of applied rights analysis isn't that it gives you the "right" answer. It's that it makes your reasoning transparent: which rights you prioritize, which tradeoffs you accept, and why .

City of Grants Pass, Oregon v. Johnson , 603 U.S. 520 (2024). Opinion by Justice Gorsuch; concurrence by Justice Thomas; dissent by Justice Sotomayor, joined by Justices Kagan and Jackson. Quotations have been lightly condensed for readability.