Supreme Court Should Overrule Ninth Circuit’s Disastrous Homelessness Rule

Five years ago, the Ninth Circuit Court of Appeals decided a case called Martin v. City of Boise that radically transformed how local governments address the problem of homelessness and vastly worsened the nation’s homelessness crisis. Now, the Supreme Court is poised to consider whether to overrule that decision—and a subsequent decision called Johnson v. Grants Pass. Today, the Goldwater Institute filed a brief urging the justices to do just that, and to restore sanity to discussions of addressing the problems of homelessness.

The Martin and Grants Pass cases declared that it’s unconstitutional to arrest people for living in tents in public parks or other public property, any time there aren’t enough beds available in government-run homeless shelters to accommodate the city’s unsheltered population. Relying on a 1962 precedent called Robinson v. California, which said that the Eighth Amendment’s prohibition on “cruel and unusual punishment” bars the government from punishing people for things that are outside their control, the Ninth Circuit reasoned that if the number of homeless people is greater than the number of shelter beds available, those who sleep on the streets must be doing so because they can’t help it. Everyone must sleep, after all, so a person who can’t find a place to stay, and falls asleep on a sidewalk, is doing so as part of what the judges called the “inevitable consequences of being human.”

That reasoning is riddled with fallacies. For one thing, it’s just not true that whenever there aren’t enough beds in shelters, anyone sleeping on the streets must be unable to avoid doing so. Take, for example, the plaintiffs in an ongoing federal lawsuit brought by the ACLU involving Phoenix’s infamous “Zone”—which until recently was occupied by as many as 1,000 people living in tents on downtown sidewalks. In that case, the plaintiffs are a man who admits he’s lived on the streets for nearly 25 years, and a woman who is not only physically and mentally competent, but even maintains a credit card account. These people are clearly not incapable of making decisions in their lives, and characterizing them as “involuntarily homeless” is ludicrous. So is giving them a constitutional right to reside indefinitely in tents on public property.

For another thing, the fact that a person isn’t given a taxpayer-funded alternative doesn’t mean he or she can’t help breaking the law. If a person drinks too much at a bar, and drives home, only to crash into someone because he’s intoxicated, he can’t claim that his acts were “involuntary” just because the government didn’t get him a taxi. A person who pours toxic waste into a stream can’t claim that, since the government didn’t provide her with a free toxic waste disposal service, she was polluting as part of the “necessary consequences of being human.”

Obviously homelessness is a distressing, often tragic problem. But the most common factors leading to chronic homelessness are addiction and mental illness, and neither of these have ever been viewed as exempting people from the law. Someone who needs psychotropic medication to remain stable—a person who suffers from schizophrenia, for example—is still legally liable for harms she may cause when she fails to take her medicine, even though she may be unable to control herself without that medicine. Why? Because she had an obligation to take the medicine in the first place. Likewise, alcoholism and drug addiction have never been viewed as legal excuses for committing crimes. On the contrary, as Justice Joseph Story wrote two centuries ago, “far from [addiction] being an excuse for [crime], it is rather an aggravation of its malignity.”

A third problem with the Martin/Grants Pass rule is that it’s just not true that the government isn’t allowed to protect innocent people against those who are unable to control their actions. For example, quarantine laws have for centuries provided that a person with a dangerous infectious disease can be isolated and confined in order to protect others—even though he or she can’t do anything about being infectious. The reason is that the government canprotect innocent people against harm, even if the harm is inflicted by other innocent people. So even if it were true that all homeless people are per se “involuntarily” homeless whenever shelters run out of bed space, it doesn’t follow that police can’t enforce laws against camping in public spaces.

But probably the biggest flaw in the Ninth Circuit’s reasoning lies in the fact that the Robinson v. California principle—that the government can’t punish people for things that are beyond their control—can only work on a case-by-case basis. In other words, a judge can only know whether a person truly is “involuntarily” homeless is by examining the specific circumstances of his or her case. Yet the numerical formula that Martin and Grants Pass mandate actually bars courts from examining the individual circumstances of particular cases. Instead, it imposes a one-size-fits-all “numerical formula” that subtracts the number of beds available from the total homeless population. (To compound the error, the Ninth Circuit said that beds at church-run shelters don’t count, because that would violate the First Amendment. Since church-run shelters are probably the primary source of shelter for the homeless, that rule biases the formula at the outset.)

As we explain in our brief, the Martin/Grants Pass rule has not only worsened the homelessness problem—by confusing and frustrating city officials who want to do something to clean up their communities and help the unsheltered—but it has also encouraged irresponsible and foolhardy policies that only exacerbate the homelessness crisis. Cities such as Phoenix and San Francisco responded to those precedents by adopting the failed policy known as “Housing First,” which has actually increased homeless populations. And some cities, including Phoenix, took Martin and Grants Pass as handy excuses to do nothing about the homelessness problem—ignoring the laws they’re supposed to enforce, and endangering the hardworking taxpayers who have the right to police protection. We saw the practical consequences of that in The Zone.

The Supreme Court will hear arguments in the Grants Pass case on April 22. You can read our brief here, and learn more about what Goldwater is doing to protect taxpayers against the foolish and unlawful policies cities are following here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.