A panel of the Ninth Circuit Court of Appeals in 2022 blocked the Oregon town of Grants Pass from enforcing “anti-camping” laws on public property. The judges said the Eighth Amendment’s ban on cruel and unusual punishment prohibits cities from arresting or imposing penalties on homeless people for squatting on public property if there aren’t enough shelter beds for every vagrant.
Progressives have used the ruling to sue to stop cities across the West from enforcing similar laws. Under the appellate court’s precedent, a police officer in, say, San Francisco can’t cite a homeless person who has set up a tent inside a public playground even if he has been offered temporary housing.
Many homeless reject temporary shelter because they’d rather live on the streets where they can freely use drugs. The Ninth Circuit decision has made it harder for local officials to use the threat of penalties to force vagrants to accept treatment for mental illness and drug addiction, which has contributed to the increasing disorder in West Coast cities.
San Francisco Mayor London Breed last summer held a rally in front of the Ninth Circuit courthouse to protest a lower-court injunction blocking the city from clearing homeless camps. The judges weren’t moved. On Thursday a 2-1 majority of a three-judge panel upheld the lower-court ruling.
In a fiery dissent, Judge Patrick Bumatay explained that nothing in “the text, history and tradition” of the Eighth Amendment “comes close to prohibiting enforcement of commonplace anti-vagrancy laws.” The court’s “sweeping injunction has no basis in the Constitution or our precedent,” he added. “San Francisco should not be treated as an experiment for judicial tinkering.”
“Our decision is cruel because it leaves the citizens of San Francisco powerless to enforce their own health and safety laws without the permission of a federal judge,” Judge Bumatay wrote. “And it’s unusual because no other court in the country has interpreted the Constitution in this way.” This may be one reason the High Court agreed to hear the Grants Pass appeal.
Local governments in the Ninth Circuit’s jurisdiction, including Los Angeles, San Francisco and Phoenix, also urged Justices to hear the case. That includes California Gov. Gavin Newsom, who argued in a friend-of-court brief that “courts are not well-suited to micromanage such nuanced policy issues based on ill-defined rules.” We look forward to Mr. Newsom’s constitutional communion with Justice Clarence Thomas.
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