By Dan Siegel / Original to ScheerPost
California’s successful effort to convince the U.S. Supreme Court to review two Ninth Circuit Court of Appeals decisions that limit government agencies’ treatment of homeless people threatens to subject the homeless to cruel and dangerous treatment. It also recklessly jeopardizes Supreme Court precedent going back 60 years that limits the government’s authority to punish people based solely upon their “status,” sanctioning them for actions they cannot avoid. The decision to seek Supreme Court review reflects both an admission of California’s failure in its efforts to address homelessness and an unfortunate willingness to abdicate its authority to a Court whose recent accomplishments have eliminated the right of women to choose abortion and to restrict efforts to limit the scourge of gun violence on a population weary of mass shootings.
The two decisions of the Ninth Circuit Court of Appeals now under review are Martin v. City of Boise (CA9 2019) 920 F.3d 584, and Johnson v. City of Grants Pass (CA9 2023) 72 F.4th 868. The thrust of these decisions is that “the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.”
The decisions in Boise and Grants Pass are based upon the Supreme Court’s 1962 ruling in Robinson v. California (370 U.S. 660), holding that a state cannot criminalize a person’s status as a drug addict any more than it can punish someone for having the flu. The idea that someone could not be punished for being addicted to drugs was controversial, and the Supreme Court’s decision was not unanimous. The Court was careful to point out that a person could be punished for using, possessing, or distributing drugs, or for engaging in anti-social behavior while under the influence. Similar limitations were articulated in subsequent Eighth Amendment cases, including the Court’s split decision that alcoholism could not be criminalized. It is not fanciful to imagine that today’s Supreme Court might further limit the Robinson decision it if chose to overturn the decisions on homelessness.
The Ninth Circuit decisions have generated a huge amount of hysteria from members of the public, officials, and even some of the judges who dissented from them. Public diatribes focus on garbage, human waste, vermin, and crime as the unavoidable results of the legal decisions that limit police from the arbitrary destruction of property belonging to homeless people and their arrest or displacement. These concerns are grossly exaggerated. The Boise decision made clear that a city is not required to “provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets … at any time and at any place.” A city may provide a wide range of options for homeless people, and it is not required to allow every street corner, intersection, park, and parking lot to be an encampment site.
What a city cannot do is to simply displace or arrest people with no other place to go. It must make choices about providing places for people to live, for both short and long terms, it must make policy decisions that are not always popular, and it must expend resources. Rather than doing so, many public officials have chosen to hopelessly wring their hands and blame the courts for preventing them from solving city problems.
The real problem is that this issue will not go away any time soon and will continue to get worse until the economy creates vast numbers of new, affordable housing units. California’s unhoused population is about to reach 200,000, about three-fourths of the U.S. total. Many California cities are obstructing the state’s housing mandates, and Wall Street investors continue to buy up vacant housing for speculation.
Governor Newsom and San Francisco Mayor Breed can do better than to blame the courts for their failures to implement reasonable policies to address the plight of California’s homeless residents. The problem is not, or at least not simply, a lack of resources. California is spending over $4 billion per year on an estimated 181,000 homeless people, about $22,000 for each individual. That figure is fairly uniform throughout the State. Oakland spends about $24,000 for each of its homeless residents. The numbers are hard to comprehend. Many homeless people live in filthy encampments scrunched against fences on narrow sidewalks abutting busy streets. It is difficult to understand how the government expends any resources on these unfortunate individuals.
Among the few government officials using their authority to create workable solutions to the crisis are federal judges. David O. Carter, a judge in Los Angeles, has utilized the cases assigned to him to bring the city and county governments, along with business groups and homeless advocates, together to create programs to address the needs of Los Angeles’ 70,000 homeless. Judge Carter convinced the city and the county to spend $1.0 billion to create shelter or housing and provide mental health services. He also issued an injunction requiring that people living in unsafe locations adjacent to freeways be relocated to hotels, motels, or safe parking locations. LA Alliance for Human Rights v. County of Los Angeles, 20-cv-02291.
In another case, Judge William Alsup of the federal court in San Francisco ordered Berkeley officials and advocates for the homeless to each provide him with “practical” plans to “shelter substantially all of Berkeley’s homeless.” Sullivan v. City of Berkeley, 3:17-cv-06051. The City demurred, claiming that it lacked the capacity to shelter the approximately 1,000 people living without housing in Berkeley.
The advocates’ plan suggested a wide variety of temporary and permanent solutions, including 120 existing and 120 new shelter beds. They identified over 40 locations in parks and other public spaces where three to five thousand square feet could be utilized by 20-25 people each, with sanitation, garbage, and police services provided by the city, and locations at city owned parking lots where people could live in their vehicles. By spreading these locations throughout the city, prospects for safety and cleanliness could be maximized, and the impacts on housed residents minimized. No-one suggested that this proposal was ideal, only that it represented a clear improvement on the encampments that had grown on sidewalks, streets, and public spaces throughout Berkeley.
The proposal also called for the development of transitional housing developments made up of Temper Tents, TUFF Sheds, MicroPADS, and of/tiny homes to be created at the south end of the Berkeley Marina. Advocates showed that up to 500 people could be temporarily housed at this location. Judge Alsup did not order the City of Berkeley to implement this plan, perhaps because existing case law did not give him the authority to assume control of city government.
Political polling demonstrates that homelessness is one of voters’ top concerns. The problem gets worse every year, despite the billions being spent to address it. The efforts by the governor and other politicians to free local officials from restraints on their ability to arrest or displace homeless people with literally nowhere else to go will not solve this problem. Instead, the state should help local governments develop reasonable short-term plans to alleviate the problem while they focus on developing the massive number of affordable housing units needed for a long-term solution.
Editor’s Note: This month makes four years since ScheerPost was born, maturing into an award-winning top news source on the most important issues of our time at a moment when the once vaunted model of responsible journalism is overwhelmingly the play thing of self-serving billionaires and their corporate scribes. Alternatives of integrity are desperately needed, and we are one of them. Please support our independent journalism by contributing a “birthday gift” to help us reach our goal of $50,000 — we are 75% there. We can’t thank you enough, and promise to keep bringing you this kind of vital news.
You can also make a donation to our PayPal or subscribe to our Patreon.
Dan Siegel
Dan Siegel is a civil rights attorney in Oakland.