Ninth Circuit doubles down on third-world West Coast

The federal court of appeals for the West Coast, the Ninth Circuit, issued another opinion yesterday that forbids cities from banning camping in public places. The decision, Johnson v. City of Grants Pass, is here

The three-judge panel was split, with two Clinton appointees voting to invalidate Grants Pass' anti-camping ordinances and one Trump judge voting to uphold them. The ruling reaffirms and expands on a similar decision, Martin v, City of Boise, that the same court issued in 2018. So far, the U.S. Supreme Court has shown no interest in stepping in.

Under the Ninth Circuit decisions, cities and towns can't prosecute people for sleeping in public if – 

there “is a greater number of homeless individuals in [a jurisdiction] than the number of available” shelter spaces.... When assessing the number of shelter spaces,... shelters with a “mandatory religious focus” could not be counted as available due to potential violations of the First Amendment’s Establishment Clause.

In other words, every time a person shows up in a city and wants to sleep outside, the city has to add a new shelter bed, or else any law requiring them or anyone else to get in off the streets and out of the parks at night is void. The Eighth Amendment to the Constitution, forbidding cruel and unusual punishment, supposedly requires this.

Really? Yes, really.

Yesterday's decision rejected the city's argument that the Eighth Amendment applies only to punishment after a criminal conviction. The court held that it applies even to towns that impose civil fines and issue exclusion orders before upgrading them into criminal violations. 

The court also tossed out the city's argument that it is entitled to cite individuals for the use of bedding supplies, such as a blanket, pillow, or sleeping bag. In contrast, the court left standing the city's prohibition of the use of tents, structures, fires, and stoves, but it did not specifically say that those rules were valid. The court hid behind the vague declaration that "the record has not established" whether tents, structures, fires, and stoves were "'the most rudimentary precautions' against the elements," which seems to be the court's ultimate test for what can and can't be restricted.

I can't imagine that the current Supreme Court agrees with any of this. But unless and until it reverses the Ninth Circuit, which it does with some regularity, this is the law that we in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington State must live under. Nothing can be done about it unless the whole country amends the Constitution.

Another possibility is that a majority of the entire Ninth Circuit (29 judges altogether) will vote to have the Grants Pass case re-heard by a larger panel, of 11 judges. They didn't do that in Martin, and I'd be surprised if they did that here. But stranger things have happened.

Given the court's insistence that all of the West Coast's public spaces must be accessible as campgrounds, cities and towns will have to use rules other than anti-vagrancy laws as pretexts for hassling the hoboes and moving them along. Like the laws making possession of narcotics a crime – no, wait, Oregon doesn't have those any more.

I am not a judge, nor will I ever be. But if I were, here is what I would say: Whatever validity the Ninth Circuit decisions have, they go wrong in the test that I quoted earlier. If there are 1,000 homeless in a city, and 200 nonreligious shelter beds there are open, ready and waiting, with no takers, then the city shouldn't have to build 800 more before telling any of the 1,000 that they have to come inside. If you think that's what the federal Constitution requires, you have had too much kombucha. 


  1. Jack,

    Excellent commentary and very timely……..I’m aware of how much you despise “all things Republican” but it would expand the reach of this site if you occasionally gave credit where credit is due? If the Ninth circuit or the Supremes overrule here, it will likely be due to judges appointed by Republicans. We need all of us finding some common ground to save whats left of Portland…..very much enjoy this blog.

  2. Sorry. Trump, McConnell, Gingrich, Fox News – it would be a much better country without the present-day Republcan Party.

    1. Both parties are corrupt and both answer to the same power brokers. The Dim are just better fluffers for the fluffy.

  3. There's a silver lining on this. If it holds up, then cities will have a much bigger incentive to provide shelter space, instead of slowly rolling out expensive "permanent supportive housing." With HUD's Point-in-Time Count showing "only" 3,100 unsheltered homeless in MultCo, it shouldn't be that hard to make available that number of beds. Portland should pull out of the Joint Office of Homeless Services and use that $45 million to build and staff the necessary shelter space.

  4. I wonder if election results will be accepted by the supporters of the candidate that didn’t win

  5. The powers that be want street scum in our faces- all part of the great reset going on. Wait until the economy really starts to drag us down to "you will own nothing and you will like it"...

  6. What about the National Guard building tent cities? That's one thing they're very good at. Of course, it wouldn't be a good long-term solution, but in the meantime, it would enable cities to end the safety hazards and downright dangerous situation of letting anyone camp anywhere no matter the threat they pose to the public.


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