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9th Cir Lets Stand Decision Barring Prosecution of Homeless Sleeping on Public Property

By William Vogeler, Esq. | Last updated on

If you are homeless, and you can't sleep on public property, where in the world are you supposed to sleep?!

Exactly. That's why the U.S. Ninth Circuit Court of Appeals refused to reconsider its decision against prosecuting homeless people for sleeping on public property.

Unless there is a shelter nearby, the appeals court said, the homeless have no place else to go. Was there really ever a question? No, but there was definitely a debate at the court of appeals.

Cruel and Unusual

In Martin v. City of Boise, the en banc court denied rehearing but amended a previous ruling of a circuit panel in the case. The appeals court said a Boise ordinance barring homeless people from sleeping on public property violated the Eighth Amendment.

The judges sharply divided, however, on whether to rehear the matter. Judge Milan Smith said the underlying decision was already "wreaking havoc" on local governments dealing with homelessness.

That drew blood from the majority. For starters, Judge Marsha Berzon said, Smith had "inappropriately" included an "outside-the-record" photograph of a homeless camp in his dissent.

"It is not the practice of this circuit to include outside-the-record photographs in judicial opinions, especially when such photographs are entirely unrelated to the case," she wrote.

Berzon noted that Smith did not credit the source of the photograph, although she apparently found it on the internet. The original was attributed to Los Angeles County, she said, and depicts a tent city on San Pedro Street in downtown Los Angeles.

The Real Picture

In a footnote, Smith defended his photographic story. He said nearly 553,000 people in America were homeless on a single night in January 2018.

"This issue affects communities across our country," he said. The majority's decision could lead courts to overturn bans on defacating and urinating in public, he said.

The National Law Center on Homelessness & Poverty, which filed the case in 2009, applauded the decision in a press release. It said homeless people in the west coast states of the Ninth Circuit can now sleep more safely.

"Criminally punishing homeless people for sleeping on the street when they have nowhere else to go is inhumane, and we applaud the Court for ruling that it is also unconstitutional," said Maria Foscarinis, executive director of the law center.

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