Four years ago, a Ninth Circuit panel ruled (in Martin v. City of Boise) that “the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” In his dissent from the denial of rehearing en banc, Judge Milan D. Smith Jr. objected that the “misguided ruling … badly misconstrued not one or two, but three areas of binding Supreme Court precedent, and crafted a holding that has begun wreaking havoc on local governments, residents, and businesses throughout our circuit.” In a second dissent, Judge Mark J. Bennett argued that “text, tradition, and original public meaning” establish that the Eighth Amendment does not ordinarily “impose substantive limits on what conduct a state may criminalize.” (Smith and Bennett joined the other’s dissent, as did several colleagues.)
In the world of liberal judicial activism, every bad opinion provides an opportunity to make things worse. So it is that a divided Ninth Circuit panel ruled yesterday in Johnson v. City of Grants Pass that the district court properly certified a plaintiff class of involuntary homeless persons and that the City of Grants Pass violated the Eighth Amendment when it enforced its anti-camping ordinances against the plaintiffs.
In dissent (pp. 50-86), Judge Daniel P. Collins complains that the panel majority “both misreads and greatly expands Martin’s holding” and “then combines its gross misreading of Martin with a flagrant disregard of settled class-certification principles.” After applying Martin as binding circuit precedent, he closes by explaining why “both Martin and today’s decision should be overturned or overruled at the earliest opportunity, either by this court sitting en banc or by the U.S. Supreme Court.”
Here are excerpts (emphasis in original) from Judge Collins’s application of Martin. First, on class certification:
[T]he Eighth Amendment theory adopted in [Martin] requires an individualized inquiry in order to assess whether any individuals to whom the challenged ordinances are being applied “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.” … In light of this understanding of Martin, the district court clearly erred in finding that the requirement of commonality was met here…. Under Martin, the answer to the question whether the City’s enforcement of each of the anti-camping ordinances violates the Eighth Amendment turns on the individual circumstances of each person to whom the ordinance is being applied on a given occasion.
On the one proper plaintiff’s claims:
Johnson’s sole complaint in this case is that, by enforcing the anti-camping ordinances, the City will not let her sleep in her van. But the sparse facts she has presented fail to establish that she lacks any alternative place where she could park her van and sleep in it. On the contrary, her factual showing establishes that the BLM will let her do so on BLM land for a “few days” at a time and that she also has “often” been able to do so on county land. Given that Johnson has failed to present sufficient evidence to show that she lacks alternatives that would allow her to avoid violating the City’s anti-camping ordinances, she has not established that the conduct for which the City would punish her is involuntary such that, under Martin and the Powell [Supreme Court] opinions on which Martin relies, it would violate the Eighth Amendment to enforce that prohibition against her.
[T]he majority apparently relies on the premise that the question of whether an individual has options for avoiding violations of the challenged law must be limited to alternatives that are within the City limits. Under this view, if a large homeless shelter with 1,000 vacant beds were opened a block outside the City’s limits, the City would still be required by the Eighth Amendment to allow hundreds of people to sleep in their vans in the City and, presumably, in the City’s public parks as well. Nothing in law or logic supports such a conclusion.