Major Effort to Overturn 9th Circuit Ruling Allowing Homeless Camps

The Criminal Justice Legal Foundation has joined the city of Grants Pass, Oregon to seek a Supreme Court review of the Ninth Circuit Court of Appeals’ extension of its 2019 ruling in Martin v. City of Boise. That decision announced, in effect, that the homeless had an Eighth Amendment right to camp on public property in any city where the number of homeless exceeded the number of beds in shelters. The ruling covers the nine western states in the Ninth Circuit which includes Alaska, Washington, Montana, Idaho, Oregon, Nevada, California, Arizona and Hawaii. In 2019, the U.S. Supreme Court declined a petition by the City of Boise, supported by a brief by CJLF, to review and overturn that ruling.

This year the City of Grants Pass is appealing a federal judge’s ruling citing Martin as requiring him to enjoin enforcement of local ordinances prohibiting camping on public property. Last July a divided panel of the Ninth Circuit upheld the judge’s order. The case is City of Grants Pass v. Johnson.

In addition to CJLF, dozens of other organizations have submitted amicus curiae (friend of the court) briefs in support of the City of Grants Pass. Among them are: the Speaker of the Arizona House and the President of the Arizona Senate, the Los Angeles Alliance for Human Rights, the League of Oregon Cities, the California State Association of Counties, the League of California Cities, the Association of Idaho Cities, and the states of Idaho, Montana, Missouri, West Virginia, Mississippi, Virginia, Utah, Louisiana, Texas, Kansas, South Dakota, Indiana, South Carolina, Florida, Oklahoma, Arkansas, North Dakota, Alaska, Nebraska and Alabama.

Many of the other amicus briefs explain the impact of these rulings on the cities’ efforts to maintain quality of life. Some also explain how the rulings increase the difficulty of getting addicted or mentally ill homeless people into treatment by withdrawing important incentives.

The CJLF brief, authored by Legal Director Kent Scheidegger, notes that the Eighth Amendment was adopted to bar the cruel and unusual punishment of convicted criminals, which has nothing to do with cities and counties enforcing municipal ordinances to regulate camping on public land. He also points out that the Ninth Circuit’s Martin ruling is in direct conflict with the California Supreme Court’s 1995 decision in Tobe v. Santa Ana (won by CJLF). The Tobe court rejected the same Eighth Amendment theory, that the Ninth Circuit adopted. This is precisely the kind of conflict that the Supreme Court was created to settle.

“The catastrophic damage inflicted on communities within the Ninth Circuit will certainly spread to the other circuits if the Supreme Court fails to address the expansion of the Eighth Amendment by this case and Martin,” said Scheidegger.