Johnson v. Grants Pass
In Part I, I reviewed the Martin v. Boise case, and the implications for those subject to 9th Circuit jurisdiction, including Chico, CA. In part II, I review the Grants Pass case, which extended and expanded the original Martin v. Boise holding.
The basic setup for the Grants Pass case is very similar to Martin v. Boise, Warren v. Chico, and Homeless Coalition v. San Francisco. The city enacted several ordinances barring sleeping in public parks. The 9th Circuit order, issued on July 5, 2023, described the situation this way:
“The five municipal ordinances, described as an “anti-sleeping” ordinance, two “anti-camping” ordinances, a “park exclusion” ordinance, and a “park exclusion appeals” ordinance, result in civil fines up to several hundred dollars per violation. Persons found to violate ordinances multiple times could be barred from all City property. If a homeless person is found on City property after receiving an exclusion order, they are subject to criminal prosecution for trespass.”
The 9th Circuit panel of judges in Grants Pass stated Martin v. Boise “…served as the backdrop for this entire litigation.” They summarize the holdings of Martin this way:
“Pursuant to Martin, it is an Eight Amendment violation to criminally punish involuntarily homeless persons for sleeping in public if there are no other public areas or appropriate shelters where those individuals can sleep.”
Based on my explanation of Martin above, you can see how slippery the language can be, yet they clearly state sleeping must be decriminalized by providing EITHER “public areas or appropriate shelters” for the “involuntary homeless.”
The phrase “involuntary homeless” is a new invention, and leverages the precedent cases that distinguish between voluntary conduct and involuntary conditions or status. By their logic, all those who were “homeless” were involuntarily so, as a class. This reduced the Martin scheme of individual assessment and determination to a numerical formula: First count the homeless, and then count the beds, and there must always be more beds than people, or removal from public land is prohibited.
Dissenting Judge Collins who objected to the majority opinion explained it this way:
“…Martin seriously misconstrued the Eighth Amendment and the Supreme Court’s caselaw construing it, but even assuming that Martin remains good law, today’s decision—which both misreads and greatly expands Martin’s holding—is egregiously wrong.”
In Martin, an individual inquiry was required to determine whether an individual’s homeless condition was “voluntary.” If it was voluntary, it became conduct, but if involuntary, a condition or status. Only conduct can be criminalized.
The right to enforcement was a product of that assessment. A voluntary homeless person “rejected” shelter when offered, and therefore continued occupation of public land could be criminalized, (even civil penalties eventually could graduate to criminal offenses) and the person could be removed without also providing shelter.
The Grants Pass court sets up a certified class structure whose members are “involuntary homeless” as a group without regard to individual conditions or assessments. The net impact? Judge Collins elaborates:
[The] “…gross misreading of Martin” and “…a flagrant disregard of settled class-certification principles… is that any issue of individualized involuntariness is set aside and Martin is thereby reduced to a simplistic formula to be resolved on a classwide basis—into whether the number of homeless persons in the jurisdiction exceeds the number of available shelter beds.”
No less than thirteen judges, one sort of the majority needed to hear the case en banc, joined in this criticism of the Grants Pass holding:
“…this 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.”
“…the Boise panel made no effort to ground its decision in the text, history, or tradition of the Eighth Amendment. Unfortunately, the problems created by Boise have now been visited upon the City of Grants Pass by the panel majority here, which has expanded Boise’s faulty holding to affirm an injunction effectively requiring the City to resign all but one of its public parks to be used as homeless encampments.”
“This Circuit is the first and only federal circuit to have divined such a strange and sweeping mandate from the Cruel and Unusual Punishments Clause. The jurisprudence in this case is egregiously flawed and deeply damaging—at war with constitutional text, history, tradition, and Supreme Court precedent.
And it conflicts with other circuits on a question of exceptional importance—paralyzing local communities from addressing the pressing issue of homelessness, and seizing policymaking authority that the federal system of government leaves to the democratic process.”
In summary, in both Martin v. Boise and Johnson v. Grants Pass, activist judges managed to bend and contort the traditional and appropriate role of the judiciary, to interpret laws based on the traditions and precedents of Constitutional law, and by the slimmest of majority margins, fabricated a policy conclusion they favored, mandating that a large swath of the United States and its major population centers abandon all hope of controlling health and safety standards, or providing any assurance of protecting, much less improving the quality of life for its law-abiding citizens.
After the Grants Pass decision was published, San Francisco was sued after they attempted to clear certain homeless encampments that were causing public nuisance, safety, and health problems for citizens and businesses.
San Francisco has one of the highest property crime rates in the entire country. San Francisco, once my home and one of the most naturally beautiful cities on earth, had turned into an armpit of filth, crime, and decay. Many key businesses determined they could no longer survive in San Francisco, so they packed up and left the city. According to this article in the New York Post, nearly half of all retail stores in San Francisco have closed, from entire chains of drugstores to some of the most prestigious stores surrounding the world-famous Union Square. The national convention business for San Francisco has all but disappeared. See: NY Post-half of retailers have fled drug-ridden downtown San Francisco
In a typical pattern of homeless industry lawfare, the City and County of San Francisco were sued by the Coalition for Homelessness in District Court. In their appeal of the preliminary injunction issued by the lower court, the City advanced the “time and place” authority of a city as a defense. The ordinances they sought to enforce only prescribe when public property could be occupied, and when it must be vacated. This was the argument that was memorialized in the original Martin v. Boise case. But that was before the Grants Pass ruling was handed down.
Appeals are generally limited to the legal record developed in the lower court, so new factual issues normally cannot be raised on appeal. For this and other reasons, the 9th Circuit declined to reverse the lower court’s ruling imposing a preliminary injunction against further enforcement. They did not rule on the merits of the City’s “time and place” defense.
Instead, they relied on the recent Grants Pass holding. The City contended in the lower court that they had satisfied the Martin standard because they offered shelter to individuals before removing them. The homeless people subject to such enforcement testified otherwise, and the 9th Circuit sided with their accounts. On appeal, the 9th Circuit refused to consider the “time and place” argument for the reasons already stated concerning the rules of the appeal process.
The crux of the argument advanced by the City is that, since shelter was offered and refused, the plaintiffs were not “involuntarily homeless” within the meaning of the Grants Pass holding. Reading from the San Francisco 9th Circuit opinion:
“For the first time on appeal, the City argues that the shelter offers were irrelevant all along. The City now contends that unlike in Martin and Johnson, the challenged enforcement actions do not leave unhoused individuals with nowhere else to go—instead, they require individuals to relocate from specific encampment sites. In Johnson, the court declined to decide a somewhat similar question about “alternate outdoor space.” See 72 F.4th at 894 n.33. This appeal is not a proper vehicle to address this unsettled question, either.”
Whether cities have a time and place regulation authority remains an “unsettled question,” after the 9th Circuit has heard no less than three landmark cases on these issues!
As you can see, cities are in a lose-lose situation. While Martin established that only failure to allow sleeping anywhere outside was without access to shelter, under Grants Pass, all homeless persons were considered “involuntarily homeless,” and therefore offering alternatives to parks ceased to be the safe haven it was under Martin.
In both the San Francisco and Grants Pass courts, they refused to consider this argument for technical reasons, while it was the same court that established this standard in Martin! The 9th Circuit S.F. opinion expressly acknowledges their discretionary power to consider new evidence, but declined to do so here because as they said in their opinion,
“The [City] has no excuse for its failure to raise these arguments below. Unlike cases in which we have exercised our discretion to consider arguments that were not raised below, the [City] had ample opportunity to craft its response to the district court.”
In the absence of the court’s consideration of the key legal arguments against their holdings in Grants Pass and Martin, it is not difficult to deny legal challenges to them. We might be forgiven for thinking the 9th Circuit court had a specific outcome in mind, and created this ruling to get there, creating a policy framework they favored in the process.
On the question of determining the limiting principles of Martin or Grants Pass, the 9th Circuit has consistently chosen to leave these crucial questions of law, including those addressing the proper balance of competing Constitutional rights of different classes of citizens, completely unanswered. Hopefully, the Supreme Court will finally sort this mess out.
As a side note, the 9th Circuit is well known for having a very high rate of reversals. In 2021, the Supreme Court reversed 15 of 16 cases they reviewed. That’s a rate of 95%, against an average since 2007 of only 79%. But don’t get too excited, that is still over ¾ of all cases heard by SCOTUS. Some have argued that that is only because the 9th Circuit hears so many more cases than other Circuits.
To settle that question, a 2018 study looked at reversal rates in terms of the number of cases heard. That is the way they report crime statistics to compare crime rates in cities with vastly different populations. It turns out that indeed, the 9th Circuit has the highest reversal rate of all other Circuits, 2.5/1,000 cases, compared to 1.73/1,000 cases in the second-place 6th Circuit.
I predict the 9th circuit will be reversed in this instance too. It is an open question, however, whether even if that’s true, it will help Chico get through the next few years. For that story, we must wait for Part III.
That’s Grants Pass.