In a ruling today (in Coalition on Homelessness v. City and County of San Francisco), a divided Ninth Circuit panel left in place an injunction that, as Judge Patrick Bumatay observes in dissent, “permit[s] homeless persons to sleep anywhere, anytime in public in the City of San Francisco unless adequate shelter is provided.” (Bumatay’s emphasis.) Bumatay condemns the district court’s “sweeping injunction” as “yet another expansion of our court’s cruel and unusual Eighth Amendment jurisprudence”:

[The Ninth Circuit’s misreading of the Eighth Amendment] is cruel because it leaves the citizens of San Francisco powerless to enforce their own health and safety laws without the permission of a federal judge. And it’s unusual because no other court in the country has interpreted the Constitution in this way.

Beginning with its ruling five years ago in Martin v. City of Boise, Bumatay explains, the Ninth Circuit has been engaged in an illegitimate “campaign to increase the power of the federal judiciary over States’ and localities’ management of the homelessness crisis.” He argues at length (pp. 21-40) that “there’s nothing in the text, history, and tradition of the [Cruel and Unusual Punishments] Clause that comes close to prohibiting enforcement of commonplace anti-vagrancy laws, like laws against sleeping on sidewalks and in parks.”

The Supreme Court declined to grant review of the Ninth Circuit’s decision in the City of Boise case. It will have to clean up this mess soon.