(CN) – The Ninth Circuit denied Boise, Idaho’s request for a rehearing Monday, leaving in place its panel’s September 2018 finding the city can’t bar homeless people from sleeping outdoors unless there are other shelter options available.
Six homeless Boise residents said in a 2009 federal lawsuit that the city and its police department violated their Eighth Amendment rights against cruel and unusual punishment by arresting them for sleeping on public property when they had no other option but to violate the city’s “anti-camping” law.
A three-judge Ninth Circuit panel ruled this past September that under the Eighth Amendment, Boise’s ordinance is unconstitutional. The case was closely watched by advocates for the homeless, which number more than more than 550,000, according to a January 2018 report by the U.S. Department of Housing and Urban Development.
The panel’s landmark ruling led to lawsuits against cities in Orange County, California, where homeless residents were ticketed and their property seized for sleeping outdoors when shelter space wasn’t available.
The three-judge panel unanimously denied Boise’s petition for rehearing, and while the city’s request for an en banc rehearing did not receive enough votes by the full court to go forward, that didn’t stop several Ninth Circuit judges from taking the opportunity to express their displeasure with the ruling.
Joined by five of his colleagues, U.S. Circuit Judge Milan Smith Jr. said the panel’s ruling conflicts with an 11th Circuit ruling which allows cities to decide where camping can occur and a Fourth Circuit ruling that cities do not violate the Eighth Amendment rights of homeless residents by ticketing them for drinking alcohol in public.
“We ought to have adopted the sound reasoning of these other courts,” Smith, a George W. Bush appointee, wrote. “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.”
Smith added the panel’s ruling will hamper cities’ efforts to curb homelessness by, for example, forcing cities to determine on a daily basis whether homeless residents have a shelter bed available to them.
“Moreover, 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,” Smith wrote. “Without an absolute confidence that they can house every homeless individual, city officials will be powerless to assist residents lodging valid complaints about the health and safety of their neighborhoods.”
For her part, U.S. Circuit Judge Marsha Berzon – who wrote the original opinion for the panel – said she doesn’t like the practice of dissenting to denials of en banc rehearing as it could lead people to think the panel made a legal error when it did not.
“Often times, the dramatic tone of these dissents leads them to read more like petitions for writ of certiorari on steroids, rather than reasoned judicial opinions,” Berzon, a Bill Clinton appointee, wrote. She declined to address the dissent’s issues with the substance of the panel’s ruling.
She noted panel’s ruling is limited and does not bar cities from passing and enforcing ordinances that prohibit blocking public rights of way. Furthermore, nothing in the ruling requires cities to provide shelter for the homeless or allow anyone to sleep in public areas at any time.
“People with no place to live will sleep outside if they have no alternative,” Berzon wrote. “Taking them to jail for a few days is both unconstitutional, for the reasons discussed in the opinion, and, in all likelihood, pointless.”
Boise mayor spokesman Mike Journee said in an email the challenge will go on in the courts.
“Today’s ruling does not mean the city ordinances are unconstitutional. it simply has the effect of forcing the matter to be litigated further,” Journee said. “Therefore, the city’s camping and disorderly conduct ordinances remain in effect until further clarification can be obtained from the courts; the ruling will not cause us to change our procedures.
“Since 2014, the city of Boise’s policy has been to suspend ticketing for camping in the city when there is no room in our local homeless shelters. Language in the appellate court’s complicated ruling seemed to affirm that practice, yet the panel still remanded the case back to the district court for further findings,” he added.
Carol Sobel, an attorney for advocates for the homeless who sued Orange County cities and the county government over enforcement of anti-camping laws, praised the panel’s decision in a statement Monday.
“Once again, the Ninth Circuit has recognized the extraordinary housing crisis we face, the homelessness it creates, and rejected allowing local governments to put poor people in jail because they have no place to sleep at night,” Sobel said. “We can’t police our way out of this emergency.”