Opinion | Liberals seek Supreme Court permission to control homeless encampments

Of the estimated 577,000 homeless people in the United States, as of last year, roughly 40 percent lived in California, Oregon, Washington and Arizona. California, Oregon and Hawaii ranked first, third and fourth nationally in per capita rates of homelessness. Unkempt, often unsafe tent cities clog parks and sidewalks in Los Angeles, San Francisco, Portland and Phoenix.

And all of the above states and cities are under the jurisdiction of the U.S. Court of Appeals for the 9th Circuit.

This is no coincidence. Rulings of the 9th Circuit make it hard for local officials to control homeless encampments, according to two dozen recent friend-of-the-court briefs filed at the Supreme Court by state and local governments, business leaders and law enforcement officials in the West (and elsewhere).

The broad coalition includes GOP attorneys general of 20 mostly red states — but also California’s liberal Democratic governor, Gavin Newsom, and progressive Democratic cities such as Los Angeles, San Francisco and Portland. They are all but begging the justices to hear a challenge to the 9th Circuit filed by Grants Pass, a small Oregon city, in hopes the Supreme Court will use the case to restore power to local officials and safety to public spaces.

At issue is a unique 9th Circuit rule, established for the nine westernmost U.S. states in 2018, that enforcing a ban on public-property camping can be an unconstitutional “cruel and unusual punishment” if the campers lack alternative shelter.

Homeless rights organizations urged the famously left-leaning 9th Circuit toward this conclusion by arguing that it’s wrong to “criminalize” poverty. They assert that curtailing enforcement makes cities and towns likelier to provide long-term solutions, in the form of housing and services.

This is a novel use of the Eighth Amendment, typically invoked to limit specific punishments, such as branding or life without parole for juvenile offenders — not the laws themselves that penalize certain behavior. Apart from a single 1962 case, Supreme Court precedent for the 9th Circuit rulings is thin; and Grants Pass, in its own petition, makes a persuasive case that the regional court vastly overreached.

The appeals court ruling against Grants Pass, finalized in July, was especially aggressive, given that the first punishment provided for in its anti-camping law was a civil fine, with criminal sanctions possible only after repeated violations. What’s more, the 9th Circuit allowed the town’s homeless to sue as a class, regardless of whether any particular individual had actually been cited for living outdoors.

Bad as the 9th Circuit’s doctrine is, it has gotten worse as interpreted by lower district court judges. Confusion has festered as each new judge assesses the quantity and quality of publicly provided shelter space that would suffice before authorities could clear homeless campers out of public areas.

In many cases, localities have spent heavily on safe, clean shelter space. But without clear legal authority, they have no leverage to require the homeless to use these facilities.

According to a brief submitted by San Francisco and its mayor, London Breed (D): “San Francisco has seen over half of its offers of shelter and services rejected by unhoused individuals, who often cite the district court’s order” — an order interpreting the 9th Circuit’s ruling — “for their justification to permanently occupy and block public sidewalks.” The League of Oregon Cities avers: “Between May 2022 and July 2023, Portland, Oregon officials report that they made 3,399 offers of shelter beds to homeless individuals and were declined 2,560 times” — a rejection rate of 75 percent.

In short, the law that prevails out West is the law of unintended consequences. The presumably well-meaning 9th Circuit has left “California’s elected officials … without options,” in the words of Newsom’s brief, as unsafe encampments remain all but untouchable at the expense of “efforts to make the spaces occupied by unhoused people safer for those within and near them.”

Newsom’s cri de coeur to the justices, like the others from blue-state politicians, is ironic, given his recent denunciation of the Supreme Court’s conservative majority as “radical” and “hellbent on rolling back basic rights.”

But if the justices put hurt feelings above sound law in this situation, they will be letting down Americans — both homeless and housed — who need something more than the current state the law allows for in the 9th Circuit. The justices passed up a chance to review the 9th Circuit’s position when Boise, Idaho, asked them to do so in 2019; there was no contrary ruling in another circuit to create the kind of “split” that often triggers Supreme Court intervention.

There still isn’t one; the Supreme Court can and should act anyway, given what’s happened over the past four years. Businesses, residents and homeless people themselves, across an area where nearly 1 in 5 Americans lives, are suffering avoidable harm because of one outlier circuit court.

Restoring local power to ban camping in parks and on sidewalks will not solve a crisis rooted in poverty, addiction and untreated mental illness. But it will give governments tools to address the problem — and deprive them of excuses if they fail.

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