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Daily Dicta: Bitterly Divided Ninth Circuit Judges Snipe at Each Other Over Homelessness Decision

Photo of homeless on sidewalk in Los Angeles included in a dissenting opinion in Martin v. Boise.

It’s all but impossible to spend time in the vicinity of the U.S. Court of Appeals for the Ninth Circuit in San Francisco without encountering homeless people.

Not a stray panhandler or two, but entire blocks—Jones between Golden Gate and Market, for example, about a tenth of a mile from the courthouse—where the sidewalks have been completely taken over by tents. There are people passed out on pieces of cardboard and tarp-covered shopping carts piled high. You have to watch where you step to avoid human feces.

For the judges—even the ones who aren’t based in San Francisco and only periodically visit—homelessness is not an abstract issue. It’s in their faces. Perhaps that explains in part why the court is so bitterly divided in a decision that addresses how local governments can combat the problem.

On April 1, a three-judge panel declined to rehear a case brought by the city of Boise. It’s a win for a pro bono team from Latham & Watkins representing six homeless people who had been cited for sleeping in public places. The full court also voted against hearing the case en banc.

Sounds routine, right?

Not this time. Nine judges on the court issued a combined 72 pages of opinion, concurrence, dissent and partial dissent—and they weren’t very nice about it, either.

The fracturing shows a depressingly predictable partisan divide. Much as we’d like to think there are no Obama judges or Bush judges or Trump judges, this holding indicates otherwise.

Some background: About a decade ago, Boise began issuing criminal citations to members of its homeless population for sleeping outside—even if the people had no other choice because the city’s three homeless shelters (which have just 354 beds plus 92 overflow mats) were full.

In 2009, Latham teamed up with Idaho Legal Aid Services, in coordination with the National Law Center on Homelessness, to challenge two Boise ordinances. On appeal, Latham partner Michael Bern argued that the laws violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

After oral argument in 2017, the three-judge panel—Marsha Berzon, Paul Watford and John Owens, all Democratic appointees—issued a decision in September, ruling that the ordinances were unconstitutional.

Sitting, sleeping, and lying down are “universal and unavoidable consequences of being human,” the panel held. Therefore, “just as the state may not criminalize the state of being homeless in public places, the state may not criminalize conduct that is an unavoidable consequence of being homeless—namely sitting, lying, or sleeping on the streets." Or at least not when there is no indoor shelter available.

“Our holding is a narrow one,” the panel cautioned, and it “in no way” dictates that Boise must provide sufficient shelter for the homeless. It just can’t bring criminal charges against them.

The decision did not go over well with a number of their colleagues on the court.

Judge Milan Smith, who was appointed to the bench in 2006 by President George W. Bush, wrote a scathing dissent from the denial of rehearing in banc. He was joined by Consuelo Callahan, Carlos Bea, Sandra Ikuta, Mark Bennett and Ryan Nelson—all fellow Republican appointees.

Here’s his first sentence: “In one misguided ruling, a three-judge panel of our court badly misconstrued not one or two, but three areas of binding Supreme Court precedent, and crafted a holding that has begun wreaking havoc on local governments, residents, and businesses throughout our circuit.”

He predicts dire consequences. “The panel’s reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination.”

This strikes me as a dubious conclusion. The essence of the panel’s holding is that you can’t prosecute people for sleeping on the street if (and only if) there is nowhere else for them to sleep.

I guess by extension this could mean you can’t cite someone for pooping in the street if there are absolutely no bathrooms—but realistically, there are always bathrooms somewhere. It’s not the same as Boise having 354 homeless shelter beds for 753 homeless people.

Still, the case presents an interesting underlying question—is it acceptable to criminalize conduct that is involuntary or compelled?

Smith doesn’t see a problem, though he’s thin on precedent. For example, he noted, the Seventh Circuit held it was OK to punish a defendant on parole for consuming alcohol, even though the man was an alcoholic.

What Boise did was comparable, he argued. They “do not criminalize the status of homelessness, but only the act of camping on public land or occupying public places without permission.”

Except sleeping is something everyone has to do, and drinking is not. Alcoholics can get sober. No one can quit sleeping.

Smith also pointed out that the California Supreme Court in 1995 rejected an Eighth Amendment challenge to a city ordinance that banned public camping, and that the Eleventh Circuit also upheld a city ordinance prohibiting sleeping on public property. “By holding that Boise’s enforcement of its ordinances violates the Eighth Amendment, our panel has needlessly created a split in authority on this straightforward issue.”

Further, Smith argued that the decision oversteps the role of the courts. “By creating new constitutional rights out of whole cloth, my well-meaning, but unelected, colleagues improperly inject themselves into the role of public policymaking,” Smith wrote. “The Eighth Amendment is not a vehicle through which to critique public policy choices or to hamstring a local government’s enforcement of its criminal code.”

He warned that the decision will only make the problem of homelessness worse—and included in his dissent a photo of a random homeless encampment in Los Angeles (above) to underscore his warning. “As we have already begun to witness, our neighborhoods will soon feature “tents . . . equipped with mini refrigerators, cupboards, televisions, and heaters, that vie with pedestrian traffic.’”

Berzon, who wrote the panel opinion, was not about to let this all go unanswered. She penned a concurrence to the denial of rehearing en banc—a move which she said she undertook “Despite my distaste for these separate writings.”

She kicked off by railing against a practice that she said has become increasingly common:  “ubiquitous dissents in the denial of rehearing en banc.” Moreover, she noted, “the dramatic tone of these dissents leads them to read more like petitions for writ of certiorari on steroids, rather than reasoned judicial opinions.”

Without countering Smith blow-for-blow, Berzon reiterated that the holding applies only “when no alternative sleeping space is available.”

And she blasted her colleague for including the photo. “For starters, the picture is not in the record of this case and is thus inappropriately included in the dissent,” she wrote. “It is not the practice of this circuit to include outside-the-record photographs in judicial opinions, especially when such photographs are entirely unrelated to the case. And in this instance, the photograph is entirely unrelated. It depicts a sidewalk in Los Angeles, not a location in the City of Boise, the actual municipality at issue.”

It’s also misleading, she said. “The opinion clearly states that it is not outlawing ordinances ‘barring the obstruction of public rights of way or the erection of certain structures,’ such as tents,” she wrote.

She also noted that the photo was taken before the panel’s decision was issued, so it can’t be used to illustrate the parade of horrors that Smith predicts.

What the photo does demonstrate, she wrote, “is that the ordinances criminalizing sleeping in public places were never a viable solution to the homelessness problem. People with no place to live will sleep outside if they have no alternative. Taking them to jail for a few days is both unconstitutional, for the reasons discussed in the opinion, and, in all likelihood, pointless.”

Jenna Greene