Cities from Anchorage to San Francisco want anti-camping case reversed

Attorneys for Grants Pass, Oregon asking the U.S. Supreme Court to overturn a 9th U.S. Circuit Court of Appeals homelessness ruling said in a brief filed Wednesday that it “creates a constitutional right to camp on public property” that conflicts with other circuit court rulings.

Theane D. Evangelis, a partner with Gibson, Dunn & Crutcher LLP who represents the city of 39,000 people, cited a host of amicus curiae briefs filed by cities from Anchorage to San Francisco and by Gov. Gavin Newsom to support her argument that the 9th Circuit ruling should be reversed. Johnson v. City of Grants Pass, 23-175 (S. Ct., filed Aug. 22, 2023).

Evangelis cited what she said are circuit splits to persuade justices to take the case, arguing that the 9th Circuit’s decisions in Grants Pass and a predecessor case were “unprincipled” and “unworkable.” Martin v. City of Boise, 2018 DJDAR 8871 (9th Circ., filed Oct. 29, 2015).

“In Martin, this Court heard similar assurances that the Ninth Circuit’s ruling was narrow and would leave local governments with adequate tools to enforce basic health and safety laws,” she wrote. “That was an empty promise, as the unprecedented coalition of amici reflects.”

Kelsi Brown Corkran, an attorney with Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection who represents the homeless plaintiffs, denied in an opposition brief filed this month that the Grants Pass ruling created any circuit splits.

She accused Newsom and the California cities of “political deflection” by blaming court rulings for their own policy choices of failing to build enough housing or to address drug and mental health problems.

Corkran blasted Newsom and San Francisco Mayor London Breed for saying an Oakland magistrate judge’s preliminary injunction, which cited Grants Pass, prohibited them from clearing encampments on sidewalks and other public property. Coalition on Homelessness et al. v. City and County of San Francisco et al., 22-CV-05502 (N.D. Cal., filed Sept. 27, 2022).

“In mid-November, however, they abruptly switched course and ordered a massive encampment sweep ahead of a visit by President Biden and Chinese President Xi Jingpin” for the Asia Pacific Economic Cooperation convention in San Francisco, Corkran wrote.

Evangelis said the APEC convention illustrates the “severe burdens” that Grants Pass and Martin impose on cities, saying San Francisco spent months on plans to clear part of one neighborhood.

“That San Francisco’s monthslong partial cleanup of a neighborhood made national news is a disheartening sign of the new normal under Martin. And within weeks, the ‘homeless encampments have returned,’” Evangelis added, citing a news report.

One of the key precedents in the dispute is a 1962 U.S. Supreme Court decision overturning a law that made it a crime to be addicted to narcotics as cruel and unusual punishment under the Eighth Amendment. Robinson v. California, 370 U.S. 660 (1962).

Corkran argued that Robinson, and a follow-up decision six years later, established that people cannot be punished for involuntary conduct that is the result of their status — in Grants Pass, homeless people sleeping outside because there is not adequate shelter space.

“The anti-camping ordinances prohibit plaintiffs from engaging in activity they cannot avoid,” Senior U.S. District Judge Roslyn Silver of the District of Arizona wrote for the 9th Circuit panel in Grants Pass. “The civil citations issued for behavior plaintiffs cannot avoid are then followed by a civil park exclusion order and, eventually, prosecutions for criminal trespass.”

Thirteen active 9th Circuit judges, all appointees of Republican presidents, along with four senior judges, vehemently objected to the majority decision not to reconsider the case en banc. Senior 9th Circuit Judge Diarmuid F. O’Scannlain, an appointee of President Ronald Reagan, described the majority’s interpretation of the Eighth Amendment as “fanciful.”

All, or all but one, of the 9th Circuit judges appointed by Democratic presidents voted to allow the decision by Silver, an appointee of President Bill Clinton, to stand.

Evangelis wrote that seven circuit courts — unlike the 9th Circuit — and 17 state supreme courts have failed to extend Robinson to include “involuntary” conduct stemming from their status.

“None supports the 9th Circuit’s transformation of the Cruel and Unusual Punishments Clause into a font of judicial power to micromanage municipal housing and land-use policy,” she wrote.

The Supreme Court is expected to decide whether to accept Grants Pass for review as soon as next month.