Ninth Circuit Upholds Civil Rights for Homeless Persons – but Trouble is Brewing

A few weeks ago, the 9th Circuit Court of Appeals denied a motion by the City of Grants Pass, Oregon, for a rehearing en banc of a 3-judge panel’s prior decision in September 2022 in Johnson v. City of Grants Pass (50 F.4th 787, 2022 U.S. App. LEXIS 27187, 113 Fed. R. Serv. 3d (Callaghan) 1716) (hereinafter “Johnson“).

By refusing to revisit its prior decision, the 9th Circuit upheld and expanded its reasoning in Martin v. City of Boise (920 F.3d 584, 2019 U.S. App. LEXIS 9453), a 2019 case holding that it is a violation of the Eighth Amendment “insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.” (id.) A landmark case for the rights of unhoused persons, Martin v. City of Boise (hereinafter “Martin“), brought municipal efforts to criminalize homelessness to a screeching halt. A few months later, the Supreme Court declined an appeal by the City of Boise to review Martin, and its ruling became binding precedent across the American West.

While Martin has become a powerful legal and persuasive tool for unhoused communities and their advocates to argue for more humane, evidence-based, and effective strategies for combating homelessness than criminalization, Martin has hardly been a cure-all for the problem. Localities have continued to try and find workarounds – in July 2021, the City of Los Angeles passed changes to its traditional vagrancy statute, Los Angeles Municipal Code (LAMC) 41.18 forbidding camping in large swathes of the city. By imposing limits on where, when, and how people camp, Los Angeles sought to enable the same kind of legal harassment that previous anti-camping ordinances created, while staying within Martin‘s technical limitations. It remains to be seen when and how advocates will challenge this new strategy.

Notably, Johnson expanded Martin‘s reasoning as it applies to civil penalties for camping that are “intertwined” with criminal penalties. In the Grants Pass statute in question, persons given civil fines for camping violations that were subsequently found on city property were liable to be prosecuted for criminal trespass. Citing a Fourth Circuit case related to “habitual drunkenness” statutes in Virginia (Manning v. Caldwell, 930 F.3d 264, 2019 U.S. App. LEXIS 21084, 2019 WL 3139408), the court noted that merely separating a criminal statute into two steps beginning with civil penalties did not exempt that statute from Eighth Amendment review, as the “Cruel and Unusual Punishment Clause looks to the eventual criminal penalty, even if there are preliminary civil steps.” (Martin, at 37.) Same as the alcoholism ordinance in Manning v. Caldwell, the Grants Pass statutes “effectively criminalize an illness” and thereby unconstitutionally “provide[] punishment based on the plaintiffs’ status”. (id.)

Additionally, the court clarified that although the Grants Pass ordinance was carefully written to permit sleeping in parks so long as unhoused persons didn’t use “bedding, sleeping bag, or other material used for bedding purposes,” such a technicality was not enough to get around Martin‘s ruling, as the right to sleep necessarily includes such “rudimentary precautions” against the elements as blankets and pillows. (id.) You’d think that would go without saying, but the city claimed it had a right to outlaw sleeping with blankets and pillows. Go figure.

While Johnson was a victory for unhoused persons, their advocates, and civil rights generally, trouble is brewing on the horizon. The City of Grants Pass has vowed to appeal the decision to the historically, notoriously, conservative and partisan Supreme Court. It seems unlikely, if reviewed by the Supreme Court, that Martin and Johnson‘s interpretation of the 8th Amendment would stand. Limiting cruelty to society’s outcasts while simultaneously restricting the police power of state and local governments are not ideological or policy goals of the 21st century conservative movement, including its Justices. Unfortunately, the rights and livelihoods of unhoused persons are not politically destabilizing enough for Justice Roberts to seek a middle way, nor niche enough for someone like Justice Gorsuch, who has shown sympathy in particular to issues of indigenous tribal sovereignty, to join the liberals.

As such, we must hope that SCOTUS again declines review, as it did in 2020 in the wake of Martin. The only other circuit to take up this question is the 4th in Manning v. Caldwell, which cited the decision approvingly. Until we get a circuit split it seems unlikely the Court would grant cert, especially in a matter that by its nature concerns the vagaries and idiosyncrasies of local governance. Yet, as myths of liberal-city lawlessness persist, and the right wing continues to punch down on marginalized groups more likely to experience homelessness, such as LGBT, Black, and disabled Americans, it only seems a matter of time before their political mob turns its baleful gaze to homelessness specifically. In the meantime, Democrats and their allies to the left must continue to organize and push back against the classist, capitalist interests that continue to frame poverty as a failing of personal responsibility instead of a societal problem, including those in Democrat-controlled localities.