Nahmod Law

It is typically prisoners who bring §1983 Eighth Amendment claims for damages and prospective relief against prison officers and officials. But what of §1983 Eighth Amendment actions brought by non-prisoners such as the homeless who allege that they are punished either because of their status—see Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), or because of their involuntary acts—see Powell v. State of Tex., 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968)?

The 2006 Jones Decision

After an extensive analysis of these and other Supreme Court decisions, a panel of the Ninth Circuit held seventeen years ago in a subsequently vacated opinion (the case was settled) that the Eighth Amendment prohibits the enforcement of an ordinance criminalizing sitting, lying or sleeping on public streets at all times and in all places within the city limits of Los Angeles, as applied to homeless persons between 9 p.m. and 6:30 a.m., given the unavailability of shelters in the city. The Ninth Circuit characterized the prohibited conduct as “an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.” Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), opinion vacated, 505 F.3d 1006 (9th Cir. 2007). Judge Rymer dissented in Jones, 444 F.3d at 1138, arguing, among other things, that the Los Angeles ordinance punished conduct, not status.

The 2019 Martin Decision

Thirteen years later another panel of the Ninth Circuit, quoting Jones, reaffirmed in Martin v. City of Boise, 920 F.3d 584, 616 (9^th Cir. 2019), that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” But Martin also clarified that a city is not required to provide “sufficient shelter for the homeless.”

The 2022 Johnson Decision

Then, in 2022, in Johnson v. City of Grants Pass, 50 F.4^th 787 (9^th Cir. 2022), amended and superseded on denial of reh’g en banc, 2023 WL 4382635 (9th Cir. 2023), yet another panel of the Ninth Circuit followed Martin and applied it to a putative class action suit brought by homeless persons successfully challenging the constitutionality of certain city anti-camping ordinances. Judge Collins dissented, 50 F.4^th 787, 814, arguing that the majority’s decision was “egregiously wrong” because, even assuming Martin was still good law, the majority misread and misapplied Martin. Further, the majority disregarded class-certification principles.

Subsequently, the Ninth Circuit amended the majority’s opinion in Johnson when it denied rehearing en banc. This denial was accompanied by a dissent by Judge Collins who argued that both Martin and the decision in Johnson were wrong and should be overturned. It was further accompanied by lengthy statements of various judges defending or criticizing the denial of rehearing en banc, as well as by several opinions dissenting from the denial of rehearing en banc, including one by Judge Bress, joined by eleven other judges, which maintained that there was no Eighth Amendment violation here.

Comments

Many of the opinions in Johnson were quite spirited. This is not surprising given the divisive nature of the homelessness issue, especially in urban areas around the country. The overall flavor of the Ninth Circuit judges who disagreed on the merits with the majority in Johnson is perhaps captured by a part of Judge Bress’s opinion dissenting from denial of rehearing en banc:

“But on top of everything that our localities [including San Francisco] must now contend with, our court has injected itself into the mix by deploying the Eighth Amendment to impose sharp limits on what local governments can do about the pressing problem of homelessness …. With no mooring in the text of the Constitution, our history and traditions, or the precedent of the Supreme Court, we have taken our national founding document and used it to enact judge-made rules governing who can sit and sleep where, rules whose ill effects are felt not merely by the states and not merely by our cities, but block by block, building by building by building, doorway by doorway.”

Notice that the 2019 Martin case soundly determined that the Eighth Amendment on its own does not give rise to an affirmative duty to provide shelter to the homeless. Still, the deep issue here, in my view, is whether and to what extent §1983 Eighth Amendment litigation of this kind can realistically bring about any meaningful reforms. I suspect that, at most, it may prod legislative bodies to respond in some way. But I am skeptical that it can do much more than that. Ultimately, the remedies are political and require political will.