Jim Hartman
Leaders from every Western state are asking the Supreme Court to overturn rulings from the liberal Ninth U.S. Circuit Court of Appeals that local governments may not clear homeless encampments unless they can offer shelter for all those taken off the streets.
Homeless encampments are soaring alongside crime.
In 2018 a Ninth Circuit panel held 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 when they don’t have shelter beds for every vagrant. (Martin v. City of Boise).
In 2023 a different Ninth Circuit panel affirmed the Martin ruling in a class action brought by homeless activists against Grants Pass, Ore. (Johnson v. City of Grants Pass).
In August, Grants Pass petitioned for Supreme Court review. The court has yet to decide whether to hear this significant case. A decision is likely by year end.
The Martin and Johnson cases only apply to the nine Western states (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) covered by the Ninth Circuit.
A broad bipartisan coalition of cities and states is asking the Supreme Court to intervene. Groups filing briefs span the political spectrum from Arizona’s conservative Goldwater Institute through the progressive governor of California, Gavin Newsom, all taking the same side.
“It’s time for the courts to stop these confusing, impractical and costly rulings that only serve to worsen this humanitarian crisis,” Newsom wrote.
More than one in four homeless Americans live in California. In Los Angeles alone, 75,000 people are living outside nightly. California devotes $7.2 billion of its state budget to homelessness.
In September, dozens of amicus briefs from local governments were filed pleading with the court to reconsider, including from liberal cities like San Francisco, Los Angeles, Honolulu, Portland and Seattle.
The cities of Las Vegas and Henderson signed the brief, arguing they are “at a breaking point” and court rulings have “paralyzed local communities,” limiting the power of law enforcement to enforce ordinances, and preventing towns from keeping sidewalks clean.
In August, the annual Southern Nevada count of homelessness totaled 6,566 people —a 16% increase from 2022.
The Martin and Johnson decisions have left local governments without a clue on how to regulate growing homeless encampments without risking legal liability. Martin handcuffed local jurisdictions as they tried to respond to the homeless crisis; Johnson now places them in a straitjacket, critics argue.
For example, a police officer in San Francisco can’t 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 and or mental illness. The Ninth Circuits rulings make it harder for local officials to leverage criminal and civil penalties to force vagrants to accept treatment and housing.
What liberals need to acknowledge is that we are reaping the results of policies they promoted for decades.
In hindsight, the deeply misguided idea to close mental health hospitals across the United States and “deinstitutionalize” patients was wrong.
And, in promoting commercial “recreational marijuana” legalization we effectively normalized drug use as part of daily life igniting an opioid drug epidemic among the homeless.
Homeless tent cities are not a problem of housing policy — addressed by “affordable housing.”
Liberal cities and states must make major course corrections. The homeless should be taken off the streets, including involuntary commitment, drug use discouraged, and recognition made that housing costs are not the reason for homeless encampments.
The Supreme Court needs to clean up the Ninth Circuit’s legal mess.
E-mail Jim Hartman at lawdocman1@aol.com