The Farmington City Council was being proactive when adopting ordinances addressing homelessness, but now the constitutionality of those codes are being determined by the U.S. Supreme Court.

In a historic case addressing the criminalization of homelessness, the Supreme Court will decide City of Grants Pass, Oregon vs. Gloria Johnson, et al., in June. The case challenged the legality of the municipal code in Grants Pass, Oregon, which prohibits camping in public places, such as sidewalks, streets, alleys, public rights of way, benches and other publicly owned property.

“We’re monitoring the Supreme Court case, and we’re looking forward to seeing what opinion they may issue to determine what guidelines they are going to provide on how to deal with a problem that every community is dealing with which the homeless encampments,” said Farmington City Attorney Jennifer Breakell.

Farmington’s city code closely mirrors that of Grants Pass by prohibiting camping in public areas, which are defined as “street, highway, park, parking lot, pedestrian way, and the common areas of a school, hospital, apartment building, office building, public building, transport facility or business,” according to Sec. 18-3-17 of the municipal code.

Sec. 18-3-18 of Farmington’s code also prohibits “sitting or lying down on public sidewalks or sleeping outdoors.”

The city code of Grants Pass prohibits “sleeping on sidewalks, streets or alleyways at anytime as a matter of individual and public safety.”

The code was challenged and went to the U.S. 9th Circuit Court of Appeals, which in a 2-1 opinion struck down the law.

“It basically found that under the Eighth Amendment that it was cruel and unusual punishment to basically charge someone with a crime and incarcerate them for the simple fact that they had nowhere to sleep,” said civil rights lawyer Luis Robles of Albuquerque.

A brief filed in the case by the Biden administration, which is “in support of neither party” states there are more than 6,000 homeless individuals in the U.S. and that “in 2023, nearly 40% of homeless individuals slept in unsheltered, public locations – under bridges, in cars, in parks, on the sidewalk or in abandoned buildings.”

The brief does argue against the criminalization of homelessness stating that studies show “laws that effectively criminalize the inability to obtain shelter often serve only to exacerbate the problem of homelessness,” and “can also harm the physical, psychological, and socioeconomic well-being of individuals experiencing homelessness.”

Criminalization based on status has been the argument against the Grants Pass code, and the Supreme Court ruled in 1962 that “you could not impose a criminal penalty on someone because they were a heroin addict” in Robinson vs. California. “You can’t criminalize someone’s status,” Robles said.

“There’s a distinction between your status and your conduct,” Robles said, using the analogy of a drunken driver, who would say they could not be charged with DWI, because, “I’m an alcoholic, that’s my status. You can’t criminalize it.”

“Just because you’re an alcoholic doesn’t mean you get to engage in conduct otherwise illegal. Thus, that’s why you can arrest and charge and convict someone who’s an alcoholic driving under the influence,” Robles said. “Just because you have a certain status doesn’t mean that you get to go and engage in conduct and have your status protected.”

Robles said he believes the same would apply to the homelessness issue as the Supreme Court “focused on this whole distinction about whether being homeless is a status that allows you basically to force the government into this Hobson’s choice that you provide me housing or you let me sleep in the park was giving people who are homeless this right that no one else has – government give me housing or let me sleep wherever it is on city property that I want to sleep.”

Robles worked on the state’s opioid litigation for five years, and through that he came to learn about the nature of homelessness in New Mexico. “Homelessness is so many different things” in this state, he said.

There is the domestic violence survivor, who is homeless with her children because she was beaten by her husband and had to leave home. “They do not seek to live on the streets,” Robles said.

But then, there are those who are addicted to opioids or methamphetamine or they might suffer from bipolar disorder.

“Those are the folks who want nothing more than to stay out of those confines which are homeless shelters. … They would much rather live on the streets,” Robles said.

“That essentially is a choice, even if there is government housing available to them, they will voluntarily choose, because of the nature of their addiction, to live out on the streets,” he said.

This leads to another set of legal problems, according to Robles. The city of Albuquerque ran into this when officials seized the property of homeless people who were camping on the streets. The homeless had everything they owned with them when they were arrested and then, the city had nowhere to store their belongings.

“You have to take all of those belongings and keep them in storage and safeguarded,” Robles said.

With the Supreme Court set to decide in June, Robles said he thinks the high court will overturn the 9th Circuit’s opinion, “finding that the ordinance in Grants Pass is constitutional.”