Last September, I highlighted the Ninth Circuit panel ruling in Johnson v. City of Grants Pass that held—over a vigorous dissent from Judge Daniel Collins—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. I’m sorry to report that last Wednesday the Ninth Circuit denied en banc review of the panel ruling.
Over five separate opinions, seventeen Ninth Circuit judges—three of them in senior status, including Clinton appointee Susan Graber—expressed their strong disagreement with the panel ruling. Here’s how Judge Diarmuid O’Scannlain opens his opinion:
With this decision, our Circuit’s jurisprudence now effectively guarantees a personal federal constitutional ‘right’ for individuals to camp or to sleep on sidewalks and in parks, playgrounds, and other public places in defiance of traditional health, safety, and welfare laws—a dubious holding premised on a fanciful interpretation of the Eighth Amendment. We are the first and only federal circuit to have divined such a strange and sweeping mandate from the Cruel and Unusual Punishments Clause. Our jurisprudence in this case is egregiously flawed and deeply damaging—at war with constitutional text, history, and tradition, and Supreme Court precedent. And it conflicts with other circuits on a question of exceptional importance—paralyzing local communities from addressing the pressing issue of homelessness, and seizing policymaking authority that our federal system of government leaves to the democratic process. We should have reheard this case en banc to reconsider our unfortunate constitutional mistake.
Here’s a striking illustration by Judge Milan Smith of how cities’ efforts “to mitigate the challenging issues of homelessness have been wholly or partially frustrated by an alleged constitutional right conjured by a panel of our court that finds no support in United States Supreme Court jurisprudence”:
Assume, for example, that you are a police officer and you encounter a homeless person in some public space—say, San Francisco’s Civic Center near the James R. Browning Building where our court sits. Assume further that the person has set up a tent and “engage[d] in other life-sustaining activities” like defecation and urination on the sidewalk nearby. You also know that, pursuant to the city’s good-faith efforts to comply with the dictates of Martin [v. City of Boise], government workers have conducted outreach and offered temporary housing to the homeless persons in this area. Nonetheless, under the majority’s reasoning, you are powerless to cite this person even for public defecation because San Francisco has fewer shelter beds than total homeless persons.
Look for this case to reach the Supreme Court soon. As the Wall Street Journal put it in an editorial on the en banc denial: “The Justices may be getting tired of cleaning up the Ninth Circuit’s messes, but they are the only ones who can do it.”