The Supreme Court recently agreed to hear the case of City of Grants Pass v. Johnson, dealing with whether the homeless have a constitutional right to camp on public property. As a result, the Court may soon overturn rulings by the Ninth Circuit Court of Appeals that have greatly contributed to the West Coast’s homelessness crisis.
Six years ago, the Ninth Circuit first decided Martin v. City of Boise, ruling that, unless sufficient shelter beds were available, imposing criminal penalties on people for sleeping and camping in public violated the constitutional prohibition against cruel and unusual punishment. In 2022, the Ninth Circuit strengthened this precedent in the Grants Pass case, stating that even civil citations and citations for putting down bedding were forbidden.
No other circuit adopted this strange reading of the Eight Amendment’s cruel and unusual punishment clause, which certainly would have perplexed the Founders. The rulings were made even stranger by the Ninth Circuit’s claim that the numerous shelters with “mandatory religious programs” were not acceptable alternatives because of the First Amendment’s prohibition of government establishment of religion. In Grants Pass, the court argued that camping enforcement by authorities in the Oregon city was illegal because not enough “secular shelter space” was available.
These rulings have had a dire effect on West Coast cities’ ability to enforce their own laws. In the four years after Boise, homelessness in Ninth Circuit states grew by about 25 percent, while in the rest of the U.S. it diminished. Unsheltered homelessness in Ninth Circuit states increased even more. Deaths among the homeless in the largest Ninth Circuit cities have spiraled out of control. In Los Angeles and Seattle, for example, they have risen by as much as 50 percent in a year.
Though many view Boise and Grants Pass as typical instances of Left Coast insanity, cities and political leaders in the region, even very progressive ones, have almost unanimously opposed the Ninth Circuit rulings. The City of Los Angeles told the Supreme Court that homeless camps are denying pedestrians and the disabled use of the streets, and that the Ninth Circuit decision has made “incremental improvement, and progress unworkable.” Phoenix and other Arizona cities argued that the “state of the law is simply unworkable,” and that the two major decisions were “driven more by policy considerations than constitutional law.” Even California governor Gavin Newsom submitted a brief on the “Ninth Circuit’s failure to provide clarity” and said that the rulings’ broad scope has made clearing encampments difficult, even though “[e]ncampments are dangerous” and clearing them is “vital.”
Some cities in the Ninth Circuit have tried to keep their streets clear, despite the court rulings. Portland and San Diego have adopted a combination of enforcement with sanctioned camping alternatives. Las Vegas strengthened its camping ban and expanded its Courtyard Homeless Resource Center, which keeps a running tab of available sleeping spots to ensure that the city can clear the streets and parks in compliance with Boise. But cities still must deal with persistent lawsuits from homelessness activists. Phoenix and Portland are also under legal obligation to keep streets clear of homeless encampments because of suits brought by citizens fed up with the camps. These conflicting pressures make adherence to the odd terms of the Ninth Circuit rulings even more onerous.
The tragedy of the Boise and Grants Pass cases is that they resulted from pure political preferences, untethered to legitimate constitutional grounds. The judges seemed to think that they were being compassionate to the homeless. As with many such cases of good intentions gone awry, they instead wound up worsening the very crisis that they hoped to prevent.