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DEEGAN ON LA— Federal Judges have just blasted as “fanciful” the “right” for homeless to sleep in public places in a dissenting opinion to a failed appeal to change laws allowing the homeless to sleep in public spaces in the absence of alternatives.
This ruling by the judges of the U.S. 9th Circuit Federal Court of Appeals has set the table for a likely Supreme Court showdown this fall when the new court term begins.
That the homeless have a legal right to sleep in public when there is no alternative is the concept that’s been targeted in the dissenting opinion of the 9th Circuit Court. It cuts to the heart of how City Hall deals with the homeless in LA.
The decisions by communities and lower courts (like cases in Boise, Idaho and Grants Pass, Oregon) to “now effectively guarantee 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,” has been called “a dubious holding premised on a fanciful interpretation of the 8th Amendment”, by conservative Judge Diarmuid O’Scannlain of the 9th Federal Circuit Court of Appeals.
His conservative colleague Judge Milan Smith Jr. agreed and focused on Los Angeles in his statement that “There are stretches of the city where one cannot help but think the government has shirked its most basic responsibilities under the social contract: providing public safety and ensuring that public spaces remain open to all. One-time public spaces like parks — many of which provide scarce outdoor space in dense, working-class neighborhoods — are filled with thousands of tents and makeshift structures, and are no longer welcoming to the broader community.”
The build-up to the 9th’s decision began with homeless laws in Boise, Idaho (population 237,000), and Grants Pass, Oregon (population 39,000)
The Boise case decided that “homeless persons cannot be punished for sleeping outside on public property in the absence of adequate alternatives.”
The Grants Pass case said that “ordinances regulating homelessness were unconstitutional, due to what they considered cruel and unusual punishment and excessive fines.”
“We’re looking at asking the Supreme Court to take a look at the 9th Circuit court’s ruling,” said Grants Pass City Manager Aaron Cubic.
“We hoped the full 9th Circuit would reconsider recent decisions that have contributed to the growing problem of encampments in cities across the West,” the city’s counsel Theane Evangelis said. “The 9th Circuit’s decisions in this case and Martin v. Boise are legally wrong and are only harming the very people they were meant to help.”
The Supreme Court is not obligated to consider the case but if it does and overrules, the consequences for homeless planning in LA could be severely impacted.
The 9th Circuit Court governs the West, including Arizona, California, Nevada, Idaho, Montana, Oregon, Washington, Alaska, Hawaii, Guam and the Northern Mariana Islands.
(Tim Deegan is a civic activist whose Deegan on LA weekly column about city planning, new urbanism, the environment, and the homeless appear in CityWatch. Tim can be reached at [email protected].)
