Sacramento won't get new chance for ruling stopping judges from blocking city from clearing encampments

A federal appeals court has refused to take up, again, the question of whether a federal judge had overstepped his authority and misinterpreted the Constitution in siding with activists and forbidding the city of Sacramento on multiple occasions from clearing homeless encampments during the summer.

But some of the judges on the appeals court said the court should not shy away from the topic in the future and address what they said was a faulty understanding of the rights of homeless campers under the 14th Amendment, which critics have said amounts to a backdoor requirement for cities to shelter the homeless.

On Sept. 10, the full U.S. Ninth Circuit Court of Appeals declined to reconsider a decision from a panel of three of the court's judges to turn aside an appeal of the lower court's ruling, because the case is now "moot."

The city of Sacramento had asked the court to take up the matter en banc, which at the Ninth Circuit would mean before a group of 11 judges.

The matter had landed before the Ninth Circuit earlier this year when Sacramento had appealed the ruling of U.S. District Judge Troy Nunley. 

In the summer of 2023, Nunley had barred city workers from clearing and relocating homeless encampments from city sidewalks and other public areas. That ruling had come in response to actions filed by the activist group Sacramento Homeless Union. The activists had asserted clearing the encampments during the summer would leave the homeless exposed to high temperatures with no shelter. They said clearing the settlements under those conditions would subject the homeless campers to an unconstitutional "state-created danger," violating their 14th Amendment rights to due process.

The judge agreed and issued an injunction preventing the city from clearing the encampments.

It marked the latest in a series of similar rulings from the judge since 2022 at the behest of the homeless advocates.

The most recent injunction expired in August 2023.

Homeless encampments have become a heated issue in recent years, as the number of homeless people in California continue to multiply.  According to the most recent count, more than 186,000 people are homeless in the state of California.

Many of those homeless people have flocked to so-called encampments, in which the homeless set up tents and other makeshift group camp sites on sidewalks and in parks and other public areas.

Such encampments have long been cited as dangers to public health, as they have been havens for illegal drug use; have befouled sidewalks and streets and nearby waterways with feces and other human waste; and have generally increased rates of violent crime and property crime in the communities in which they are located.

In San Francisco, for instance, residents and business owners in that city's notorious Tenderloin neighborhood have gone to court to force city officials there to take action against encampments and criminal gatherings in the Tenderloin, saying such problems have threatened to destroy businesses and have left residents with disabilities, in particular, unable to navigate the streets and sidewalks outside their homes.

In Sacramento, District Attorney Thien Ho has also sued that city over homeless encampments, saying they presented a public nuisance because they made it unsafe for his workers to get to the courthouse and also allowed waste to pollute nearby rivers, in violation of environmental laws and regulations.

For years, however, two Ninth Circuit rulings have generally barred cities, like Sacramento and San Francisco, from taking action against the encampments, because the court said so-called "anti-camping" rules amount to violations of the Constitution's prohibition on cruel and unusual punishment.

However, this summer, the U.S. Supreme Court tossed out those rulings, mostly restoring the ability of cities to use force, if necessary, to clear the encampments, without first making sure the campers had fixed shelter alternatives.

While those larger actions were pending, the city of Sacramento had appealed Judge Nunley's injunction, saying the judge had overreached into legal turf left by the Constitution to lawmakers and mayors.

They argued the injunctions have blocked the city from upholding its duties to protect all of its citizens from a public health threat.

In July, a three-judge Ninth Circuit panel did not rule on those legal questions, however. They said they could not rule because they believed the questions had been mooted by the expiration of the injunction last year.

They instead suggested the city and activists should enter talks in mediation to resolve the dispute.

Homeless activists had welcomed the ruling, calling it a victory for their side.

The city had responded by asking a full en banc panel of the Ninth Circuit to take up the question and overrule the panel, saying they believed this issue would come up again.

No other judges on the court agreed that the matter should go on, according to the Ninth Circuit's Sept. 10 ruling. 

While agreeing with their colleagues in this particular case, a group of Ninth Circuit judges, however, said the court must address the matter in the future.

In a statement attached to the larger order, Ninth Circuit Judge Ryan Nelson said the lower court's rulings in this matter represent a misinterpretation of the 14th Amendment's guarantee to due process.

Nelson was joined in the statement by judges Patrick Bumatay and Lawrence Vandyke.

They said such constitutional misunderstandings have worsened the homelessness crisis in Sacramento and elsewhere California, and have "hamstrung" cities and other local officials attempting to address the situation.

The judges said the lower court misapplied the "state-created danger doctrine" to bar Sacramento from clearing homeless encampments and they should reject attempts by federal judges to use it in the future.

"The City did not create the extreme heat that made it dangerous for those living in encampments," Nelson wrote. "Indeed, those living in encampments suffered from heat stroke and other heat-related illnesses without any government action. Removing the homeless from the encampments, thus, did not create a danger that they were not already facing - nor did removal increase the danger."

Nelson and his colleagues said the lower court's ruling, coupled with the decision by the Ninth Circuit to refuse the city's appeal, "further enshrines our circuit’s troubling trend of misinterpreting the original meaning of the Due Process Clause of the Fourteenth Amendment."

"... A constitutional violation occurs only when the state uses its monopoly on physical force to coerce an individual’s actions,"  Nelson wrote. "The lawful clearing of encampments does not rise to that level of constitutional deprivation. 

"And by straying from the Fourteenth Amendment’s original meaning, the district court turned the Fourteenth Amendment into just another 'font of tort law'" and lawsuits, the judges said.

 "... In future cases, district courts in our circuit should reorient their decisions in this area to a more faithful reading of the original meaning of the Fourteenth Amendment."