A Judge-Made Right to Vagrancy

Progressive policies have turned cities like San Francisco and Portland into havens for homelessness and disorder. But spare some blame for liberal judges on the Ninth Circuit Court of Appeals who have now divined in the Constitution a right to public vagrancy.

The Ninth Circuit this week declined to rehear en banc a panel decision (Johnson v. City of Grants Pass) last year that enjoined an Oregon town from enforcing “anti-camping” laws on public property. Fiery dissents from 16 of the appellate court’s 52 judges underscore the decision’s grave practical and constitutional implications and tee up the case for Supreme Court review.

In 2018 a 2-1 Ninth Circuit panel held in Martin v. Boise that the Eighth Amendment’s ban on cruel and unusual punishment prohibits cities from arresting homeless people or imposing penalties for sitting, sleeping, or lying outside on public property when they don’t have enough shelter beds for every vagrant.

Last year a different Ninth Circuit panel affirmed the Martin ruling in a class action brought by homeless activists against Grants Pass, Ore. But as Ninth Circuit Judge Milan Smith Jr. explains in a dissent joined by eight other judges, the two decisions have left “local governments without a clue of how to regulate homeless encampments without risking legal liability.” Martin “handcuffed local jurisdictions as they tried to respond to the homelessness crisis; Grants Pass now places them in a straitjacket,” Judge Smith writes.

For example, a police officer in San Francisco cannot cite a homeless person who has set up a tent and defecated outside the Ninth Circuit’s courthouse even if government workers have offered temporary housing to the individual. As long as the city has fewer shelter beds than homeless people, police can’t force vagrants to move off public property.

Yet many of the homeless decline housing and treatment for drug addictions or mental illness. The Ninth Circuit’s rulings make it harder for local officials to leverage criminal and civil penalties to force vagrants to accept treatment and housing.

“In a democracy, voters and government officials should be able to debate the efficacy and desirability of these types of enforcement actions,” Judge Smith adds. “Regrettably, our court has short-circuited the political process and declared a reasonable policy response to be off-limits and flatly unconstitutional.”

The Ninth Circuit decisions contravene the Constitution and rulings by two other appellate courts, as senior Judge Diarmuid O’Scannlain and 14 other judges explain. The Constitution’s ban on cruel and unusual punishment “was directed to modes of punishment” and was “never intended to arrogate the substantive authority of legislatures to prohibit ‘acts’ like those at issue here, and ‘certainly not before conviction,’” Judge O’Scannlain writes.

He adds that it “is not a boundless remedy for all social and policy ills, including homelessness. It does not empower us to displace state and local decisionmakers with our own enlightened view of how to address a public crisis over which we can claim neither expertise nor authority, and it certainly does not authorize us to dictate municipal policy here.”

Grants Pass plans to appeal to the Supreme Court. The Justices may be getting tired of cleaning up the Ninth Circuit’s messes, but they are the only ones who can do it.