Ninth Circuit Again Refuses To Let West Coast Cities Remove Homeless People Until They Provide Shelter For All

Three conservative justices slammed the appeals court's decision in dissents.
Tents for the homeless line a street corner in Los Angeles, California, on December 6, 2022. - A state of emergency over spiralling levels of homelessness was declared in Los Angeles December 12,2022 as the new mayor Karen Bass pledged a "seismic shift" for America's second biggest city. Tens of thousands of people sleep rough on Los Angeles' streets, in an epidemic that shocks many visitors to one of the wealthiest urban areas on the planet. Mayor Karen Bass, who was sworn into office Sunday, used her first full day in office to declare a state of emergency. (Photo by Frederic J. BROWN / AFP) (Photo by FREDERIC J. BROWN/AFP via Getty Images)
FREDERIC J. BROWN/AFP via Getty Images

The 9th Circuit Court of Appeals on Wednesday again denied West Coast cities the ability to remove homeless people from the streets unless they can provide enough shelter for all of them.

The court declined to rehear a case involving the Oregon city Grant’s Pass, meaning a lower court’s ruling in July 2020 against the city will remain in effect.

The lower court’s decision in the case, Johnson v. Grants Pass, said that Grant’s Pass cannot have ordinances against homeless people camping or sleeping outside in public areas because this violates the Eighth Amendment, which prohibits excessive punishments. The fines for violating such ordinances also violate the Eighth Amendment, the court ruled.

Judge Roslyn Silver wrote in the court’s opinion declining to hear the case again that the number of homeless people in Grants Pass is higher than the available shelter beds.

Three conservative justices slammed the appeals court’s decision in dissents.

Justice Daniel Bress, a Trump appointee, argued that by citing the Eighth Amendment, the court has hamstrung local authorities and said the homelessness problem even extends to the Ninth Circuit’s doorstep.

“Looking out the windows of the Ninth Circuit’s courthouse in San Francisco, one sees the most difficult problems plaguing big-city America on display. Homelessness, drug addiction, barely concealed narcotics dealing, severe mental health impairment, the post-COVID hollowing out of our business districts,” Bress wrote in his dissent.

Conservative Ninth Circuit justice Milan Smith Jr., called homelessness the “defining public health and safety crisis” in the western states and said “unelected federal judges” are acting like “homelessness policy czars.”

“There are stretches of [Los Angeles] 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,” Smith said.

Another Trump appointee, Justice Daniel Collins, said the court’s rulings in this case and another 2018 homelessness case should be “overturned or overruled at the earliest opportunity, either by this court sitting en banc or by the U.S. Supreme Court.”

The other case is Martin v. City of Boise, in which the Ninth Circuit ruled that if a homeless person has no option to sleep inside, a city cannot cite the person for violating an ordinance against sleeping outside in a public area.

Homelessness in major cities like San Francisco and Los Angeles as well as many smaller cities dotting the western coast has only gotten worse since before the pandemic. Harrowing scenes of homeless people engaging in open-air drug use and living in filth on city streets continue to come out of the neighborhoods most in need of help.

In Los Angeles, homelessness is up 10% this year, according to the latest count, released last month. Los Angeles County’s homeless population rose to about 75,518 people, up from 69,144 in 2022.

In the Bay Area, about 38,000 people are homeless on a given night, up 35% since 2019. More than 7,000 people are homeless in San Francisco itself. Crime as well as open-air drug use often comes with the homeless issue, causing businesses to flee San Francisco’s downtown, where foot traffic has thinned.

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