Ending the Ninth Circuit’s “Cruel and Unusual Punishment” of America’s Cities

Vagrancy is conduct, not status. Courts should not force communities to tolerate the despoilation of public areas.

A slightly-revised version of this essay appeared in Law & Liberty on February 27, 2024 (here). Thanks to How Appealing, National Review‘s The Corner (here), the Ace of Spades HQ blog, and Legal Insurrection (here)!

The U.S. Supreme Court recently decided to hear an appeal from the notoriously-liberal Ninth Circuit, in a 2023 case entitled City of Grants Pass v. Johnson, which effectively ruled (in the tongue-in-cheek words of the Wall Street Journal) that there is a “constitutional right to vagrancy.” Many observers believe that the Court will use the Grants Pass case as an opportunity to reverse an earlier Ninth Circuit decision, Martin v. City of Boise (2019), which held that laws prohibiting “camping” in public areas are invalid—and therefore unenforceable—because they violate the Eighth Amendment’s proscription of “cruel and unusual punishment.” The dubious basis for that ruling was that “homelessness” is not a voluntary status, unless the city provides sufficient shelter for all those who seek it. Therefore, the Ninth Circuit reasoned, it is unconstitutional to punish offenders for what amounts to an involuntary condition (ignoring the fact that sleeping in public areas is “conduct”—like public drunkenness–not status).

As explained below, Martin v. Boise is a travesty that the Supreme Court should overturn. Preventing cities from maintaining order in public spaces undermines civic society and ill-serves the population of drug addicts and mentally ill—representing the overwhelming majority of “homeless”– who need help. Grants Pass expanded the specious holding of Martin v. Boise on a class action basis, eliciting a torrent of vociferous dissent from the more sensible judges on the Ninth Circuit. Many cities, counties, and states within the Ninth Circuit are urging the Supreme Court to overturn Martin v. Boise—for good reason.

By banning the enforcement of anti-camping ordinances throughout the jurisdiction of the Ninth Circuit– which includes (among others) the states of Washington, Oregon, California, and Arizona–the Ninth Circuit has overseen the proliferation of homeless encampments in Seattle, Portland, San Francisco, Los Angeles, San Diego, Phoenix, and countless other cities. “Homeless encampments”—a euphemism for the squaliddetritus of vagrants, drunks, drug addicts, and mentally ill formerly derided as “hobo jungles,” “shanty towns,” or, during the Great Depression, “Hoovervilles”—are a blight on the urban locations where they unfortunately often appear. Especially in the western United States, sprawling homeless encampments have become ubiquitous, to the disgust and dismay of local residents. Martin v. Boise is largely to blame.

My first encounter with large congregations of bums and winos was in 1980, upon my arrival in Los Angeles. My workplace at the federal courthouse at 312 North Spring Street was adjacent to a malodorous area known as Skid Row. The difference between then and now is that Skid Row is no longer an isolated area on the fringe of downtown Los Angeles; it has spread throughout the city. Similarly, the filth and pathos once limited to the Tenderloin district of San Francisco is now endemic everywhere in the Golden Gate City. Because of Martin v. Boise, municipalities within the Ninth Circuit are helpless to prevent public areas from being transformed into squatter camps, tent cities, and open-air drug dens.

When activist judges deem anti-camping ordinances to be unconstitutional, vagrants are entitled to sleep—and defecate–on the sidewalks, take up residence in parks and under overpasses, and generally to despoil public spaces that taxpayers formerly enjoyed as safe, serene havens. Martin v. Boise is an abomination that has wreaked havoc on an area of the country that stretches from Alaska to Arizona, and Hawaii to Montana, and contains over 65 million residents—fully twenty percent of the nation’s population. The Supreme Court should overturn Martin v. Boise for these reasons:

It is a classic example of naked judicial activism

The Eighth Amendment does not restrict the types of crimes that states and their political subdivisions can punish, a matter wholly within their plenary police power. The only thing the Eighth Amendment addresses is punishment for crime, in these terms: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Amendment does not grant to unelected federal judges the right to second guess the political decisions of state and local officials. As the dissenters in Grants Pass pointed out, Martin v. Boise seriously misconstrued the Eighth Amendment and the Supreme Court’s caselaw applying it. State and local governments have—since the beginning of the republic—had broad authority to deal with “public order” offenses such as vagrancy, public drunkenness, begging, disorderly conduct, soliciting prostitution, indecent exposure, and so forth.

The Ninth Circuit has usurped this authority by dictating whether, and under what circumstances, vagrants can despoil public spaces. The activist decisions of the Ninth Circuit majorities in Grants Pass and Martin v. Boise improperly handcuff local elected officials, and are out-of-step with every other federal appellate court and state supreme court in the country. In the fiery words of the dissenting judges in Grants Pass:

With this decision, our Circuit’s jurisprudence now effectively guarantees 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—a dubious holding premised on a fanciful interpretation of the Eighth Amendment.  We are the first and only federal circuit to have divined such a strange and sweeping mandate from the Cruel and Unusual Punishments Clause.  Our jurisprudence in this case is egregiously flawed and deeply damaging—at war with constitutional text, history, and tradition, and Supreme Court precedent.  

It is an affront to federalism

In our constitutional scheme, citizens are governed in most respects by elected officials at the state and local levels, where they are most accountable to the people. The powers of the federal government are limited and enumerated, and the federal judiciary was envisioned to be (per Federalist 78) the “least dangerous” branch, exercising “neither force nor will, but merely judgment.” Micromanaging the local affairs of forty percent of the nation’s land mass is a subversion of federalism.

As the dissenters in Grants Pass explained:

The Cruel and Unusual Punishments Clause—a constitutional prohibition fundamentally centered on modes of punishment—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….

It is troubling that our Circuit—in inventing a new individual “right” unmoored from text, history, or tradition—has twisted the Eighth Amendment to displace the substantive authority of local officials to prohibit a species of antisocial conduct that was neither originally nor traditionally thought to warrant the protection of the Constitution, let alone immunity under the Cruel and Unusual Punishments Clause….

Under our federal system, state and local leaders—not distant federal judges—are primarily entrusted with the power and duty to protect the common welfare of our towns, cities, and neighborhoods, and to ensure that our streets, squares, and sidewalks remain clean and safe.

These excerpts merely scratch the surface of the outrage conveyed by the Ninth Circuit dissenters. I have read many dissenting opinions over the years, but I recall none as vehement and persuasive as those in Grants Pass. The impassioned dissents in Martin v. Boise inexplicably failed to attract the Supreme Court’s attention in 2019. Grants Pass has provided the Court with the opportunity to correct that oversight.

It is the result of “pro bono” litigation run amok

Martin v. Boise was not a home-grown litigation brought by well-intentioned, locally-based do-gooders in Boise. Rather, it was the product of a well-funded, national organization (the National Homelessness Law Center, formerly known as the National Law Center on Homelessness & Poverty) based in Washington, D.C. that believes “housing is a human right” and seeks to establish, via litigation, “a right to housing in the United States”—a phony “right” that nowhere appears in the Constitution. The radical activists at the National Homelessness Law Center partner with large law firms to utilize the vast resources of their so-called “pro bono” programs to overwhelm outmatched municipalities in a tsunami of litigation to invalidate local laws restricting public vagrancy—with the goal of forcing cities to provide public housing for all.

As I explained in The American Conservative, in the case of Martin v. Boise, the behemoth law firm Latham & Watkins (where I practiced for 30 years)

contributed over 7,000 hours of attorney time to defeat Boise’s attempt to maintain order, safety, and sanitation in its public spaces…. Not content to strip Boise and other cities of their municipal sovereignty, Latham’s crack legal team, playing the role of the Harlem Globetrotters running up the score against the hapless Washington Generals, coerced the city of Boise into what the firm gloated was a “momentous settlement” in which Boise agreed to spend $1.3 million for additional shelter spaces, pay $435,000 for the plaintiffs’ attorneys’ fees, and train its police not to arrest individuals or issue citations when no shelter space is available.  

For nearly a decade, the city of Boise gamely defended its ordinance, despite the mismatch of resources. At the trial-court level, the city twice won a summary judgment in its favor, first in 2011 and again in 2015, only to see those decisions overturned on appeal.  

 The Martin v. Boise case was an affront to the public interest, but the instigators of the litigation were “thrilled” by the Ninth Circuit decision and “hailed” the outrageous result. Cause-oriented “pro bono” litigation such as Martin v. Boise is a disgraceful racket. Reversal would serve the  public interest.

Ninth Circuit needs to be rebuked

The Ninth Circuit has made a mess of cities throughout the western United States. As the dissenters in Grants Pass observed:

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.  

Forcing cities to allow dangerous, unhygienic encampments does not help the dysfunctional souls who choose to live there. The dissenters in Grants Pass commented on the misplaced empathy of homeless advocates: “The homeless disproportionately risk being the victims of violence, sexual assault, and drug-related death, and encampments’ unsanitary conditions have caused resurgences of plagues such as typhus, tuberculosis, and hepatitis-A.”

Martin v. Boise has been an utter disaster. Mayors and governors in the western United States unanimously oppose the decision. Even uber-progressive California Governor Gavin Newsom has filed a “friend of the court” brief seeking reversal. The Ninth Circuit, the nation’s most-reversed appellate court, has created a crisis that only the Supreme Court can correct. The cruel and unusual punishment of America’s cities must come to an end.

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