Last week there was a lot of press coverage, much of it inaccurate, regarding a ruling from the 9th Circuit Court of Appeals related to whether cities can make it a criminal offense to “camp” or sleep on public property.
Here’s what the ruling actually says, and what it means.
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The case itself is Martin vs. City of Boise. Here’s the full 9th Circuit ruling from last week.
The ruling itself is a messy 72 pages; it’s an amended version of a ruling a 3-judge panel from the 9th Circuit handed down last September, along with a denial of a petition for the same three judges to rehear it, and also a denial of a petition for an en banc rehearing by the entire 9th Circuit. Several of the other judges who weren’t among the original three who heard the case decided to attach concurrences or dissents related to whether the full 9th Circuit should have heard the case (and in some cases why they think the 3-judge panel decided it wrong). It requires a majority vote of the judges on the 9th Circuit to order an en banc rehearing.
The amended three-judge ruling itself is also a mess; much of it concerns issues related to whether the plaintiffs (several homeless people) have standing to challenge the law in question, and explores several theories as to what mechanism must be used for challenging the punishment for a criminal conviction, and whether the plaintiffs have the right to “prospective” relief for potential future enforcement of the law against them. The actual discussion of the merits of the case finally starts on page 62 and concludes on page 68.
The heart of the case is whether criminalizing unauthorized “camping,” or simply sleeping, on public property is a violation of the 8th Amendment’s ban on cruel and unusual punishments, and of the 14th Amendment’s prohibition on states passing laws that curtail individuals’ liberties (including but not limited to those enumerated in the Bill of Rights). That question, too, is a tangle of case law precedents for several more or less analogous situations.
But first, there is the question of interpreting the 8th Amendment itself, and a long-standing debate about whether “cruel and unusual punishment” refers only to punishments that are imposed after a conviction, or also to the question of what can be criminalized. The seminal case for this issue is Ingraham vs. Wright, a 1977 Supreme Court case about whether public schools can paddle children as a form of punishment. The Court defined the extent of the 8th Amendment as such:
These decisions recognize that the Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes… second, it proscribes punishment grossly disproportionate to the severity of the crime… and third, it imposes substantive limits on what can be made criminal and punished as such… We have recognized the last limitation as one to be applied sparingly.
Despite this case precedent, it’s hardly settled law; there is ongoing debate about how to apply the third way “sparingly.” The dissents in last week’s ruling repeatedly raise that question.
The Ninth Circuit panel then walks through several important cases that touch on this question of what can be made criminal. Those cases highlight distinctions between criminalizing “status” and criminalizing “conduct,” beginning with a 1962 case, Robinson vs. California, in which the Supreme Court found that the State of California could not criminalize the state of being addicted to the use of narcotics (as opposed to the actual use of narcotics). Emphasizing the problems with trying to criminalize status, the court argued, “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” It went on:
It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
On the flip side, the Supreme Court ruled in 1968 in Powell vs. Texas that the state could criminalize public drunkenness, since it is a “condition” rather than strictly a “status.” It toyed with the idea of ruling that a condition that compels involuntary behavior, such as an alcoholic needing a drink, can’t be criminalized, but in the end the Court declined to do so. However, the ruling was a 4-1-4 plurality, where the one swing vote agreed with the conclusion in support of the law but for a different reason, and there was no majority written opinion. That makes it a precedent without any reasoning that can be clearly cited to back it up.
Picking up where Powell vs. Texas left off, last year the 4th Circuit Court of Appeals ruled in Manning vs. Caldwell that a law criminalizing the possession of alcohol by people who had been designated by the state as “habitual drunkards” was not unconstitutional. The ruling doubles down on the notion that conduct — even compelled conduct — can be criminalized.
And in 2000, the 11th Circuit Court of Appeals ruled in Joel vs. City of Orlando that a law criminalizing “camping” on public property (camping is defined to include “sleeping out of doors”) is not unconstitutional. The court found that it was conduct, rather than status, because shelter space was available as an alternative. This advances the debate in an important way, establishing that sleeping is a “life-sustaining act” since all humans need to sleep. The court didn’t go as far as to say that sleeping on public property can’t be criminalized if the person has no alternatives, but it did state the converse: that if the person has alternatives then it definitely can be criminalized.
Neither Manning vs. Caldwell nor Joel vs. City of Orlando are binding precedent for the 9th Circuit, since they are rulings from other circuits that the Supreme Court never reviewed. Nor is the 9th Circuit’s own 2006 ruling in a prior, almost identical case to the current one, Jones vs. City of Los Angeles, binding precedent. In that case, the court found that the city cannot criminalize “sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles’s city limits” when no alternative shelter is available. But after the court issued its ruling, the parties settled the case before further appeals were resolved; that automatically vacated the court’s ruling.
Nevertheless, in this latest case, the three-judge panel reiterated the arguments from Jones vs. City of Los Angeles, concluding:
We are not alone in reaching this conclusion. As one
court has observed, “resisting the need to eat, sleep or engage
in other life-sustaining activities is impossible. Avoiding
public places when engaging in this otherwise innocent
conduct is also impossible. . . . As long as the homeless
plaintiffs do not have a single place where they can lawfully
be, the challenged ordinances, as applied to them, effectively
punish them for something for which they may not be
convicted under the [E]ighth [A]mendment — sleeping,
eating and other innocent conduct”…
We conclude that a municipality cannot
criminalize such behavior consistently with the Eighth
Amendment when no sleeping space is practically available
in any shelter.
What remains is the question of how broad the implications are of this ruling — and the ones the preceded it. The 1962 Robinson vs. California ruling recognized that the state has powers, beyond criminalizing behavior, that are outside the scope of the court’s decision:
The broad power of a State to regulate the narcotic drugs traffic within its borders is not here in issue. More than forty years ago, in Whipple v. Martinson, 256 U.S. 41, this Court explicitly recognized the validity of that power:
There can be no question of the authority of the state in the exercise of its police power to regulate the administration, sale, prescription and use of dangerous and habit forming drugs. . . . The right to exercise this power is so manifest in the interest of the public health and welfare that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question.
Such regulation, it can be assumed, could take a variety of valid forms. A State might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders. In the interest of discouraging the violation of such laws, or in the interest of the general health or welfare of its inhabitants, a State might establish a program of compulsory treatment for those addicted to narcotics. Such a program of treatment might require periods of involuntary confinement. And penal sanctions might be imposed for failure to comply with established compulsory treatment procedures. Cf. Jacobson v. Massachusetts, 197 U.S. 11. Or a State might choose to attack the evils of narcotics traffic on broader fronts also — through public health education, for example, or by efforts to ameliorate the economic and social conditions under which those evils might be thought to flourish. In short, the range of valid choice which a State might make in this area is undoubtedly a wide one, and the wisdom of any particular choice within the allowable spectrum is not for us to decide.
In last week’s ruling, the three-judge panel quoted the Jones vs. City of Los Angeles ruling in discussing the limits of its decision:
Our holding is a narrow one. Like the Jones panel, “we
in no way dictate to the City that it must 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.”
Id. at 1138. We hold only that “so long as there is a greater
number of homeless individuals in [a jurisdiction] than the
number of available beds [in shelters],” the jurisdiction
cannot prosecute homeless individuals for “involuntarily
sitting, lying, and sleeping in public.” Id. That is, as long as
there is no option of sleeping indoors, the government cannot
criminalize indigent, homeless people for sleeping outdoors,
on public property, on the false premise they had a choice in
It expands its explanation in a footnote:
Naturally, our holding does not cover individuals who do have
access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. See Jones, 444 F.3d at 1123. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the “universal and unavoidable consequences of being human” in the way the ordinance prescribes.
In short: the 9th Circuit did not just grant homeless people the right to camp or sleep anywhere they like at any time, nor did it bind the government’s hands in removing homeless people from public places in the interest of public health and welfare, or in preventing homeless people from setting up structures (such as tents) or accumulating possessions on public property. Rather, it simply ruled that the government can’t criminalize involuntary behavior, such as sleeping in public, for people who have no other choice. Governments have many options beyond simply criminalizing certain acts, and how jurisdictions choose to exercise their powers will no doubt be the topic of future litigation.
Further, the City of Boise may still decide to appeal this case to the Supreme Court. While there isn’t a “circuit split” yet where two circuits have conflicting rulings that present the identical circumstances and issues of law, it’s close enough, and of enough public interest, that the Supreme Court may want to hear the case. The 9th Circuit dissents alone show that there is far from consensus on the legal issues involved. And the case law defining the differences between “status,” “condition,” “voluntary conduct,” “compelled conduct,” and “involuntary conduct” are now confusing enough that the Supreme Court may decide that it’s time to step in and provide some clarity.