Weighing in on one of the most charged political issues of the last decade, on the West Coast and elsewhere, the Ninth Circuit Court of Appeals issued a ruling this week that upholds an earlier precedent that precludes city governments from punishing homeless people for sleeping on streets if they lack alternative shelter to offer them.
The case came out of the city of Grants Pass, Oregon, a city of less than 40,000 residents along the Rogue River which has its own issue with homeless encampments. The city had passed ordinances which, among other things, banned homeless people from using cardboard boxes as shelter, banned them camping in city parks, and allowed for fines for people sleeping or camping on city property.
The Ninth Circuit issued a decision Wednesday not to rehear the case "en banc" — with a larger judge panel — after it had earlier been ruled on by a smaller, three-judge panel of the court. That panel had ruled against the city in September, citing an earlier, 2018 decision by the Ninth Circuit, Martin v. City of Boise, which established the right of homeless people to stay on public property when no other shelter could be made available to them.
The three-judge panel ruled that homeless plaintiffs had been harmed by the city, and that a lower court ruling in their favor was correct.
Let's start by saying this issue is complicated and often leads to arguments about what to do with homeless people who refuse traditional shelter, either because they prefer the independence of the street or because they don't want to be told they can't do drugs.
But the fact remains that the cities of San Francisco and Los Angeles, among others, do not have nearly the shelter capacity to temporarily house everyone who is unsheltered. And given that fact, the next question is about how cities treat people who want to lie down or camp on a sidewalk or empty lot, and what the city can do under the constitution.
And a key to this case was the fact that Grants Pass imposed fines and punishment on individuals for violating laws against sleeping and camping in public spaces.
"Pursuant to Martin, it is an Eighth Amendment violation to criminally punish involuntarily homeless persons for sleeping in public if there are no other public areas or appropriate shelters where those individuals can sleep," writes Judge Roslyn O. Silver of the U.S. District Court of Arizona in her original majority opinion.
The ruling by the appeals court included caveats, saying that city ordinances prohibiting camping in the public right-of-way, and prohibiting camping in certain locations or during certain hours, might prove constitutional. And, the court said, "Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside."
So, cities may still enact rules, but they can't unreasonably punish people for breaking them, especially when there is no alternative shelter to offer.
The most salient part of Wednesday's decision may be in the multiple dissents by conservative judges, including several nominated to the Ninth Circuit by Donald Trump. As the LA Times writes, "the court’s conservative wing painted a dystopian portrait of an American West deprived of its public spaces and under siege by an overwhelming epidemic of homelessness."
In a dissent railing against the liberal majority for declining an en banc hearing of the case, Judge Daniel Bress, a Trump appointee, writes, "The most pressing problems plaguing big-city America" are visible right outside the windows of the Ninth Circuit's building in San Francisco — which overlooks the crime-plagued plaza in front of the federal building at Mission and Seventh.
Judge Milan Smith Jr., a George W. Bush appointee, writes, "There are stretches of (Los Angeles) where one cannot help but think the government has shirked its most basic responsibilities under the social contract: providing public safety and ensuring that public spaces remain open to all."
Judge Diarmuid O’Scannlain, an older judge appointed by Ronald Reagan, wrote in a dissent, "One need only walk through our neighborhoods — through the Tenderloin (San Francisco) or Skid Row (Los Angeles) — to know that our communities are fast coming undone. Tents crowding out sidewalks, needles flooding parks, and rubbish (and worse) marring public squares reflect a threat to the public welfare that should not be taken lightly."
To date, President Biden has appointed seven judges to the Ninth Circuit, while in his single term, Trump appointed 10 — and it's certainly been a priority of Mitch McConnell to de-liberalize the Ninth Circuit.
Judge Smith and Ninth Circuit Judge Ronald M. Gould, a Clinton nominee, responded to O'Scannlain's dissent and the others saying that their September ruling in the case was much narrower than they are making out. They said the decision "holds only that governments cannot criminalize the act of sleeping with the use of rudimentary protections, such as bedding, from the elements in some public places when a person has nowhere else to sleep." They add that the ruling "does not establish an unrestrained right for involuntarily homeless persons to sleep anywhere they choose. Nor does it require jurisdictions to cede all public spaces to involuntarily homeless persons.”
Still, the bitter fight evident in the dissents and response shows a Ninth Circuit somewhat unusually divided. As political pundit Jessica Levinson says to CBS News, "This decision really shows the break in the Ninth Circuit. It shows how much President Trump's judicial nominees have changed the Ninth Circuit, in the sense that there is now a solid conservative block."
San Francisco has largely heeded the Martin v. City of Boise decision, though homeless advocates would reject that notion. And that led to a lawsuit last year on which a district judge ruled in December, saying that San Francisco could not clear any more tents or encampments until it could prove it had adequate shelter for every unhoused person in the city.
City Attorney David Chiu subsequently pushed back on that ruling, asking the judge for clarification in January, and saying that the ruling "defied logic."
"It would take years and an additional $1.45 billion to build the required shelter beds and provide homeless services," Chiu said at the time.
San Francisco has had a 1,000-person waitlist for city shelters which only just reopened for the first time since the start of the pandemic.
And it should be noted that the most recent point-in-time count of homeless people in Los Angeles found over 75,000 in the county, and over 45,000 in the city of Los Angeles. Los Angeles County has just under 16,500 shelter beds currently.
Photo: Naomi August