(CN) — A divided Ninth Circuit Court of Appeals agreed that an Oregon city's anti-camping ordinances that make it illegal for homeless people to use blankets and other bedding when sleeping in public violate their Eighth Amendment right against cruel and unusual punishment.
In a split decision the panel said that the Ninth Circuit's landmark 2018 decision in a lawsuit against the city of Boise, Idaho, under which homeless people can't be prosecuted for sleeping in public if the number of homeless in a jurisdiction exceeds the number of available shelter beds, applied to the amended anti-camping ordinances implemented in the city of Grants Pass, Oregon.
Grants Pass, in direct response to the 2018 Martin v. Boise decision had amended its the anti-camping ordinance to make it clear that the act of sleeping was to be distinguished from the prohibited conduct of camping, according to the ruling.
However, the Ninth Circuit majority agreed with the judge who had issued an injunction against the city that the anti-camping ordinances amounted to cruel and unusual punishment to the extent they prohibit homeless people from “taking necessary minimal measures to keep themselves warm and dry while sleeping when there are no alternative forms of shelter available.”
"The City appears to have conceded it cannot cite homeless persons merely for sleeping in public but the City maintains it is entitled to cite individuals for the use of rudimentary bedding supplies, such as a blanket, pillow, or sleeping bag for bedding purposes," Senior District Judge Roslyn Silver, a Bill Clinton appointee who sat on the appellate panel by designation, wrote for the majority. "The City is incorrect."
Circuit Judge Ronald Gould, also a Clinton appointee, joined in Silver's opinion.
The majority instructed the judge who had issued the injunction to narrow it so that it enjoins enforcement of the anti-camping ordinances only against involuntarily homeless people for engaging in conduct necessary to protect themselves from the elements when there is no shelter space available. The judge would also need to refine the injunction to take into account whether the city can prohibit the use of stoves or fires, as well as the erection of structures, Silver said.
An attorney representing Grants Pass didn't immediately respond to request for comment on the decision after regular business hours.
Circuit Judge Daniel Collins, a Donald Trump appointee, dissented and said the other two judges had misread the Martin v. Boise decision, which he didn't think was correct to start with, and greatly expanded its scope.
According to Collins, his colleagues went wrong by agreeing that the purportedly homeless people who sued Grants Pass could proceed as lead plaintiffs in a class-action because, according to Collins, under the analysis that applied to the 2018 Martin v. Boise case, the Eighth Amendment violations can only be based on an assessment of each individual's specific circumstances.
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