As most readers already know, the entire western US has been dealing with a growing homeless problem for years. That problem has been exacerbated by a couple of court decisions issued by the 9th Circuit (whose decisions only apply to western states). The two decisions, Boise and Grants Pass, both found that municipalities do not have the right to force homeless people off of benches or sidewalks because doing so would constitute a violation of the 8th Amendment which protects Americans against cruel and unusual punishment.

Basically the thinking is that you can't penalize people for sleeping outside if they have nowhere else to sleep. And this has been extended to the idea that cities and counties could require homeless people to move but only if the city can offer them a bed (in a shelter, for instance). 

However, there's yet another wrinkle, which is that as it stands now the court's opinion says cities can't remove homeless people (from streets, parks, etc.) unless they have enough beds available for every homeless person known to be present in that city. The problem with that being that a significant percentage of homeless people who are offered shelter refuse it. So the current decision basically forces cities to maintain empty beds they know will never be filled, which is obviously wasteful and stupid.

Last month the often derided conservative Supreme Court agreed to take up this case and progressive throughout the west, including Gov. Newsom and cites like LA, Portland and San Francisco are begging them to fix the problems created by the 9th Circuit. Today, the city of San Francisco submitted an amicus brief in the case:

In a filing with the U.S. Supreme Court on Friday, San Francisco came out squarely against a lower court's decision that firmly cemented restrictions on the ability to abate homeless encampments.

The filing, known as an amicus brief or a "friend of the court" filing, urges the high court to reverse the Ninth Circuit Court of Appeals ruling on Johnson v. Grants Pass, a case that has affirmed an individual's right to sleep outside if local officials can't offer shelter space.

The full brief is here. Let's consider some of the highlights. First, here's the problem San Francisco is currently dealing with.

Amici Curiae City and County of San Francisco (“San Francisco” or the “City”) and Mayor London Breed have experienced firsthand the harms caused by the decision below in Johnson v. City of Grants Pass, 72 F.4th 868 (9th Cir. 2023). Like so many other cities across the country, San Francisco is wrestling with an overwhelming homelessness crisis. The City has responded by devoting billions of dollars in funds and resources to provide a range of social services for individuals experiencing homelessness. San Francisco seeks to balance its commitment to a compassionate, services-first approach with its responsibility to ensure that sidewalks and public spaces are safe and accessible for residents, visitors, and local businesses...

As a result of the Ninth Circuit’s decision in Johnson and the district court’s application of it, the City has been unable to implement the considered policy decisions of its Mayor and local legislature; unable to enforce the will of San Francisco voters; unable to allow conscientious City employees to do their jobs; and unable to protect its public spaces. This judicial intervention has harmed both San Francisco’s housed and unhoused populations by causing obstructed and inaccessible sidewalks, unsafe encampments, and fewer unhoused people to accept services.

The brief grants that criminalizing sleeping at all times, in all places when people have nowhere else to go would indeed violate the 8th Amendment. However, the city argues there ought to be some nuance allowed.

The Eighth Amendment does not otherwise restrict local jurisdictions’ powers to address the variety of public health, safety, and welfare issues stemming from the ongoing homelessness crisis. It does not require municipalities to provide shelter for all unhoused persons within their jurisdictions before enforcing public safety ordinances. Nor does it require cities to allow unchecked tent encampments or lodging on public property, especially where encampments block access to businesses, schools, sidewalks, and accessible routes required under the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq.2 The Eighth Amendment does not prohibit restrictions on using stoves or setting fires in public spaces, particularly where those activities have caused millions of dollars in damage to both public and private property.3 And it does not prevent local jurisdictions from enforcing time, place, or manner restrictions on sleeping in certain public spaces or at certain times, including but not limited to in front of schools, libraries, courts, hospitals, and doctor’s offices.4 When properly applied, the Eighth Amendment does not strip local governments of their ability to address health, safety, and welfare issues arising from encampments in public places, nor prohibit restrictions on how anyone – unhoused or not – may use and occupy public property.

The Ninth Circuit’s decision below erred in misconstruing the proper scope of the Eighth Amendment. Instead of recognizing a narrow limit on prohibiting the existence of unhoused individuals in a given jurisdiction, the Ninth Circuit and its lower courts have repeatedly misapplied and overextended the Eighth Amendment, effectively constitutionalizing a wide swath of local policy questions concerning how best to address the homelessness crisis. 

Again, I hope you're stopping to appreciate the deep irony of one of the most progressive cities in the country, a city which had banned doing business with more than half of the states in the US for violating its loftey values, is now begging a conservative majority on the US Supreme Court to rescue it from the progressive extremism of the 9th Circuit Court. Because when it all comes down to brass tacks, San Francisco can't afford to solve everyone else's problems.

In recent years, San Francisco has spent billions of dollars providing shelter and housing to unhoused persons, including over $672 million during the past fiscal year. But the City cannot feasibly provide shelter for, and address the specific needs of, every unhoused individual. At a minimum, San Francisco would need an additional $1.45 billion to provide housing for all individuals experiencing homelessness within the City, assuming every unhoused individual would accept such an offer of housing – which the City knows, based on its experience, is far from true. Combined, such an expenditure would total more than a third of San Francisco’s general fund budget, an allocation that is simply unrealistic, particularly at a time when San Francisco has a projected $728 million budget deficit.

This brief is just as satisfying to me as watching sanctuary city mayors suddenly sounding like red state border hawks. Not only is homelessness too expensive to deal with it's also, well...the city just needs more law and order on the streets! 

The sad fact is that thousands of persons experiencing homelessness sleep on San Francisco streets in tents and other makeshift structures. Many of these individuals refuse offers of services and shelter. These encampments frequently block sidewalks, prevent employees from cleaning public thoroughfares, and create health and safety risks for both the unhoused and the public at large. Local businesses, residents, and visitors also need to use these same public spaces, but frequently cannot. Often, encampments exist just outside of apartment buildings, schools, senior centers, and other community buildings, forcing families with children, persons with disabilities, and older community members to navigate around them or try to avoid going outside or using the area altogether.

San Francisco is fed up with this unlawful judicial activism and begs the conservatives on the Supreme Court to tell the progressives on the 9th Circuit to back off!

In short, the district court has improperly enjoined San Francisco’s lawful, compassionate, and balanced approach to addressing its homelessness crisis. As a result of the Ninth Circuit’s decision below, the district court has strayed far beyond its judicial role and established Supreme Court precedent, and has inserted itself as a policy maker that second-guesses San Francisco’s well-considered – and constitutionally permissible – choices. 

Anyway, I hope you enjoyed that as much as I did. It's really not something you're likely to see every day. I wonder, if SCOTUS does overrule the 9th Circuit and rule the way San Francisco, Portland, LA, Newsom, etc. want this to go, will any of them take a break from bashing the court to praise them for their thoughtful approach? I guess it's possible but I'm not going to hold my breath waiting.