Nearly half of America’s homeless population – some 42 percent – lives in nine Western states stretching from Alaska and Montana to Arizona and Hawaii. The vast majority of them – 30 percent of America’s homeless – live in California alone, even though California accounts for only 12 percent of the general population of the United States.
The reason isn’t simply the temperate climate of the West’s coastal cities that makes living on sidewalks amid trash, crime, rodents, and disease more tolerable—or the free meals and other benefits that the progressive governments of those cities typically offer. One major factor is that the nine states are under the thumb of the Ninth U.S. Circuit Court of Appeals, most of whose judges are still famously liberal despite a short-lived influx of Donald Trump appointees.
The Ninth Circuit, alone among federal appeals courts, has made it nearly impossible for states and cities in the West to enforce their longstanding public nuisance laws that ban camping, sleeping, and lodging on public sidewalks and in public parks and buildings. The Ninth Circuit deems such enforcement “cruel and unusual punishment” that violates the Eighth Amendment of the U.S. Constitution. That, in turn, makes it impossible for cities to clear their streets of the tent encampments that are not only unsightly and dangerous but are also public health hazards for the street people themselves.
Take the city of San Francisco, with one of the highest homelessness rates in the nation. More than 4,000 homeless people, many of them alcoholics, drug addicts, or mentally ill, live mostly outdoors in the city’s downtown and Tenderloin districts that have become so-called “doom loops” because businesses and residents are fleeing the filth and crime. San Francisco has been fighting a legal battle in federal court since 2022 over its efforts to get rid of homeless encampments in its central city. All to no avail. On Jan. 11, a three-judge panel of the Ninth Circuit issued a 2–1 ruling upholding a federal district judge’s preliminary injunction that bars the enforcement of state and city anti-camping laws in San Francisco pending a full trial that has yet to take place.
Signing onto the Ninth Circuit’s opinion, in a lawsuit filed by the ultra-progressive Coalition on Homelessness, were Circuit Judges Lucy Koh and Roopali Desai, both appointed by President Joe Biden. The lone dissenter was Trump appointee Patrick J. Bumatay. Judge Bumatay pointed out that the Eighth Amendment had originally been designed to protect Americans against barbarous methods of punishment—whipping and torture, for example. It wasn’t supposed to be used to strike down criminal laws themselves, especially longstanding anti-vagrancy laws typically enforced by small fines and misdemeanor convictions. Otherwise, “we impermissibly usurp powers left to the States and crown ourselves czars over homeless policy,” Judge Bumatay wrote.
The ruling was no surprise. California and its neighboring states have been hamstrung by the Ninth Circuit since 2018—by a decision in a case titled Martin v. City of Boise that created a precedent for using the Eighth Amendment to strike down anti-camping laws—in this case, a Boise ordinance aimed at the tent encampment that had cropped up in the Idaho capital. The theory was Boise was actually punishing people simply for being homeless, because the homeless often have no other place to sleep besides public places.
“[S]o long as there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters,” Boise couldn’t enforce its ordinance, the Ninth Circuit ruled.
The Martin decision had an electric effect. Homeless advocates launched federal lawsuits all over the West to try to get anti-camping ordinances invalidated, and they usually succeeded. Meanwhile, localities covered by the Ninth Circuit scrambled to change their laws to comply with Martin and still do something about the tent encampments.
One of those localities was Grants Pass, a town of 38,000 in southern Oregon. The Grants Pass ordinance was milder than Boise’s. It allowed only civil penalties, such as being barred from parks, not criminal fines or jail terms, for such offenses as putting down bedding in a public place. But the Ninth Circuit was even tougher on Grants Pass than it had been on Boise. In 2022, it issued a 2–1 ruling (amended slightly in 2023) that not only did localities have to make alternative shelter space available before they could enforce their anti-camping policies, but they also had to ensure there was a bed available for every single homeless person who happened to be in the locality at any given time. Beds provided by religious organizations such as gospel missions, which typically set behavioral standards, didn’t count.
Fortunately, on Jan. 12, the U.S. Supreme Court agreed to review the Johnson v. Grants Pass decision. As well it should. Not a single other federal appeals court has accepted the Ninth Circuit’s Eighth Amendment line of reasoning. Two federal circuits, the Fifth and the Eleventh, covering mostly Southern states, have actively rejected it. So has the California Supreme Court, not otherwise known for conservative leanings. Dozens of Western states and cities, including progressive San Francisco and Los Angeles, had filed amicus briefs urging the Supreme Court to overturn Grants Pass and allow them to try to alleviate the crime, squalor, and human misery that tent camps foster.
Even California’s liberal Gov. Gavin Newsom had submitted an amicus brief arguing that the Ninth Circuit was essentially permitting “dangerous” homeless encampments to become permanent fixtures in his state’s cities and towns. San Francisco complained that it had spent $672 million on shelter beds for its homeless population but still hadn’t managed to comply with Grant Pass’s unworkable standards.
The Ninth Circuit seems to be administering its own form of cruel and unusual punishment—on localities that believe their public places should be available for all their citizens to enjoy. It’s time for the Supreme Court to put a stop to this travesty of Eighth Amendment interpretation.
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