Conservative federal judges slammed a ruling by their colleagues Wednesday that found a constitutional right to sleeping on public property, calling the decision “paralyzing” and “half-reasoned.”
The 9th Circuit Court of Appeals declined to rehear a case Wednesday challenging city ordinances designed to prevent sleeping on public property after a three-judge panel ruled in September that individuals who are “involuntarily homeless” have a right to sleep in public places when they have nowhere else to go. Dissenting from the decision, the court’s conservative judges took aim at the “right” found by the three-judge panel.
“There are stretches of the city where one cannot help but think the government has shirked its most basic responsibilities under the social contract: providing public safety and ensuring that public spaces remain open to all,” Judge Milan Smith, an appointee of former President George W. Bush, wrote. “One-time public spaces like parks — many of which provide scarce outdoor space in dense, working-class neighborhoods — are filled with thousands of tents and makeshift structures, and are no longer welcoming to the broader community.” (RELATED: City Builds ‘Safe Sleeping Sites’ Instead Of Actually Dealing With Its Homeless Crisis)
Tents line the street in Skid Row in Los Angeles, California on September 17, 2019. – US President Donald Trump has indicated he plans to address the homeless crisis in California as he lands later today in Los Angeles for a two-day visit with stops for fundraising in Palo Alto, Beverly Hills and San Diego. (Photo by Robyn Beck / AFP) (Photo credit should read ROBYN BECK/AFP via Getty Images)
Eight judges joined Smith’s dissent, which highlighted homelessness as “presently the defining public health and safety crisis in the western United States,” in part or in whole.
Writing separately, Judge Diarmuid O’Scannlain, an appointee of former President Ronald Reagan, called the decision “egregiously flawed and deeply damaging.”
“With this decision, our Circuit’s jurisprudence now effectively guarantees a personal federal constitutional ‘right’ for individuals to camp or to sleep on sidewalks and in parks, playgrounds, and other public places in defiance of traditional health, safety, and welfare laws—a dubious holding premised on a fanciful interpretation of the Eighth Amendment,” he wrote. “The jurisprudence in this case is egregiously flawed and deeply damaging—at war with constitutional text, history, tradition, and Supreme Court precedent.”
U.S. District Court of Arizona Judge Roslyn O. Silver and 9th Circuit Judge Ronald M. Gould, the two Clinton-appointed judges responsible for the September decision, said the dissenting judges “significantly exaggerate” their ruling, which “holds only that governments cannot criminalize the act of sleeping with the use of rudimentary protections, such as bedding, from the elements in some public places when a person has nowhere else to sleep.”
“It does not establish an unrestrained right for involuntarily homeless persons to sleep anywhere they choose,” the judges wrote in a statement accompanying the denial of rehearing.
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