A federal appeals court will allow a group of homeless people to continue their class action lawsuit against a southern Oregon city, over accusations the city’s bans on sleeping in parks and on other public property amounted to violations of their constitutional rights.
That decision drew sharp dissents from many judges on the court, who declared the ruling all but created a new constitutional right for people to sleep and camp wherever they wish, even in parks and on sidewalks, and will only worsen the problems caused by homelessness in cities in California and all along the Pacific Coast.
On July 5, the U.S. Ninth Circuit Court of Appeals rejected the request from the city of Grants Pass, Oregon, for a rehearing of the dispute before the court’s full judicial roster, as Grants Pass seeks to undo a 2022 decision from one of the Ninth Circuit’s three-judge panels.
In that ruling, the appeals panel agreed to allow a class action lawsuit to proceed against the city, seeking to block Grants Pass from enforcing its “anti-sleeping” and “anti-camping” ordinances. Those ordinances were generally used to prohibit the use of city parks and other public property from being used as homeless encampments. Violators of the ordinances could be subjected to fines and potential bans from public property in the city.
That 2-1 ruling built on the Ninth Circuit’s 2018 decision in Martin v City of Boise, which declared criminal penalties against homeless people for “sitting, sleeping or lying outside on public property” amounted to violations of the Eighth Amendment to the U.S. Constitution, if those individuals cannot otherwise obtain shelter.
Grants Pass had argued, however, that the Martin decision should not be read to allow class actions, because grouping all homeless people together in a class action against such city ordinances amounted to an improper assumption that all homeless people cannot find shelter other than in otherwise illegal encampments on public land.
Following the Ninth Circuit panel’s ruling, the city of Grants Pass asked the full Ninth Circuit court to give the city a new chance to argue the case before all of the Ninth Circuit’s judges, in a rehearing en banc.
That petition was denied, as the motion failed to get enough support from the judges.
That denial then set off a rare exchange of written statements and further dissents among many of the Ninth Circuit’s judges, as dissenters squared off against defenders over just how far the Grants Pass decision goes in gutting the ability of cities to keep their parks and sidewalks open and accessible to anyone other than homeless campers.
On one side, defenders of the decision say the two decisions in question – Grants Pass and Martin – work together only to limit the ability of cities to criminally punish people who are homeless, and have nowhere else to go.
In a statement published July 5, Judges Roslyn O. Silver and Ronald M. Gould asserted the Grants Pass case addressed only the situation in the city of Grants Pass, where they said plaintiffs presented evidence that on most days, hundreds of homeless people in the city cannot find any shelter in Grants Pass, as the city regularly experiences a dearth of public shelter space.
As such, they said, under the Eighth Amendment, the city should not be allowed to criminally punish people who appear to have literally nowhere else to sleep in the city other than public spaces, like parks and sidewalks.
The Grants Pass decision, building on Martin, “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,” Silver and Gould wrote.
“It 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.”
Dissenters, however, said that is precisely what the decisions do, now guaranteeing “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.”
That view was presented in a dissent authored by Judge Diarmuid F. O'Scannlain. The dissent was joined by judges J. Clifford Wallace, Consuelo M. Callahan, Carlos T. Bea, Sandra S. Ikuta, Mark J. Bennett, Rryan D. Nelson, Bridget S. Bade, Daniel P. Collins, Kenneth Kiyul Lee, Daniel A. Bress, Danielle J. Forrest, Patrick J. Bumatay and Lawrence VanDyke. Judge Milan D. Smith Jr.partially joined the dissent, as well.
These dissenters asserted the decision was “egregiously flawed and deeply damaging,” greatly expanding the scope and reach of the Eighth Amendment’s prohibitions on cruel and unusual punishments.
“We are the first and only federal circuit to have divined such a strange and sweeping mandate” from that clause, the dissenters wrote.
Further, they said the decision would effectively paralyze “local communities from addressing the pressing issue of homelessness,” usurping the ability of the people and their elected representatives to craft policies addressing the scourge of homelessness, under which many cities in California and elsewhere now suffer.
The Eighth Amendment, they said, served as a constitutional limit on “modes of punishment” and was not intended to be a “boundless remedy for all social and policy ills, including homelessness.”
“We should not pretend that our Circuit’s divination of a personal constitutional ‘right’ to encamp on public property (including sidewalks) is anything but the inventive, judge-made novelty that we all know it to be,” the dissenters wrote.
That view was echoed in a separate dissent authored by Judge Smith, who declared the Ninth Circuit had now bound local governments to a regime in which cities are powerless to enforce nearly any kind of restriction on the behaviors of homeless people within their boundaries.
The Grants Pass decision leaves cities with little more than a “crude population-level inquiry,” Judge Martin said:
If a city does not somehow possess enough open beds for every possible homeless person that could arrive within its boundaries, then it cannot restrict where those homeless people choose to camp or sleep, without facing the risk of lawsuits and court orders.
“Martin handcuffed local jurisdictions as they tried to respond to the homelessness crisis,” Smith wrote. “Grants Pass now places them in a straitjacket.”
Judge Martin repeated his call, issued in his initial dissent to the original Grants Pass decision, for the U.S. Supreme Court to take up the case, and overturn both Grants Pass and the earlier Martin v Boise decision, to restore what the dissenters believe to be a proper understanding of the Eighth Amendment with regard to the issue of such ordinances, designed to keep public spaces clear and clean in the name of public health and welfare.
The O’Scainlann dissenters said the Ninth Circuit’s prior decision in Martin already has “created grave and troubling consequences for the state and local communities within our jurisdiction,” including the states of California, Oregon and Washington.
“And no one meaningfully contests that these harms will be greatly worsened by the doctrinal innovations introduced by Grants Pass,” the dissenters wrote. “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. Nor do such troubling blights mark an area where we should be eager to throw caution to the wind and to embrace judicial adventurism so far removed from the guardrails set by the Constitution’s text and the Supreme Court’s precedent.”
With the en banc rehearing now denied, the dissenters warned the decisions “will readily be wielded effectively” in communities in the states included in the Ninth Circuit, including California, Oregon, Washington, Idaho, Arizona, Nevada, Hawaii and Alaska, “to require jurisdictions … to surrender the use of many of their public spaces (including sidewalks) to homeless encampments.”
“It is easy enough for us, behind marble walls and sealed doors, to dismiss the consequences of our decisions,” the dissenters wrote. “But for those who call these communities home—who must live by the criminal violence, narcotics activity, and dangerous diseases that plague the homeless encampments buttressed by our decisions—the consequences of our judicial arrogation are harder to accept.”