9th Circuit Court declines to rehear ruling that upheld homeless right to sleep outside when no shelter space available

A federal appeals court Wednesday refused to rehear a three-judge panel’s ruling that prohibited the city of Grants Pass, Oregon, from criminally punishing homeless people who sleep in public places when they have nowhere else to go.

The denial of a full court review by the 9th U.S. Circuit Court of Appeals prompted unusually scathing dissents and statements by 16 other 9th Circuit judges who either blasted the original decision and urged it be corrected or argued that at least the full court be given the chance to reconsider the matter.

Many who dissented argued that the Grants Pass ruling created a confusing set of rules based on a flawed interpretation of the U.S. Constitution and made the court’s judges into inappropriate “homeless policy czars.”

The original ruling placed a “straitjacket” on West Coast cities that are now left with little recourse to deal with an insurmountable and widespread rise in homelessness, the dissenters wrote.

In response, the two judges who made up the majority opinion on the three-judge panel defended the denial of a full court review and also stood by their underlying 2022 opinion and claimed those criticizing it had mischaracterized it.

Highlighting the significant division among the 9th Circuit active and senior judges, a lawyer representing the city of Grants Pass said the city plans to petition the U.S. Supreme Court to review the case.

[9th Circuit conservatives blast homelessness ruling, say issue is ‘paralyzing’ US West]


Last year, the three-judge 9th Circuit panel upheld a lower court’s injunction that directed Grants Pass not to enforce its public camping and park exclusion ordinances against “involuntarily homeless persons” for the “mere act of sleeping” or camping in public spaces when “there is no other place in the city for them to go.”

The city appealed to have the case heard by the full federal appellate court. A majority of the court’s 29 active judges voted not to allow a full court rehearing, according to Wednesday’s 155-page order and amended opinion.

The two judges who wrote the majority opinion — Rosyln O. Silver, a U.S. District judge in Arizona designated to sit on the 9th Circuit and 9th Circuit Judge Ronald M. Gould — said the Eighth Amendment imposes “substantive” limits on what’s punishable as a crime.

The attempt by Grants Pass to punish people with nowhere to go for the “life-sustaining act of sleeping” outside rose to one of those circumstances and is consistent with U.S. Supreme Court precedent, Silver and Gould argued.

Senior 9th Circuit Judge Diarmuid O’Scannlain called the panel’s initial ruling an “egregiously flawed and deeply damaging” mistake that is “at war with constitutional text, history, and tradition, and Supreme Court precedent.”

O’Scannlain, joined by 14 other judges, argued that the original opinion has paralyzed cities from addressing the significant problem of homelessness and removed their authority to craft public policy.

Without a fix, the 9th Circuit has required cities, particularly those in the West such as Portland, Los Angeles and San Francisco “to surrender their sidewalks and other public places to homeless encampments,” he wrote.

The full court needed to “reconsider our unfortunate constitutional mistake,” O’Scannlain wrote.

O’Scannlain contended that the Grants Pass decision rested partly on an earlier ruling in a case involving the city of Boise, which he wrote “invented” a federal constitutional right to sleep on public property. He noted that the 9th Circuit remains the “only federal court of appeals to have recognized an individual constitutional ‘right’ to sleep or to camp on sidewalks and other public property.”

The three-judge panel that issued the Grants Pass ruling wrongly applied the Eighth Amendment that prohibits cruel and unusual punishment, O’Scannlain wrote.

It is “not a boundless remedy for all social and policy ills, including homelessness. It does not empower us to displace state and local decisionmakers with our own enlightened view of how to address a public crisis over which we can claim neither expertise nor authority, and it certainly does not authorize us to dictate municipal policy here,” he wrote.

He also argued that the U.S. Supreme Court hasn’t found that the Eighth Amendment applies to conduct not of one’s free choice, and that local officials should have the right to prohibit a “species of antisocial conduct.”

O’Scannlain and judges who signed onto his statement urged the court to come out from behind its “marble walls and sealed doors” to consider the practical “grave and troubling” ramifications of the Grants Pass ruling.

“One need only walk through our neighborhoods — through the Tenderloin (San Francisco) or Skid Row (Los Angeles) — to know that our communities are fast coming undone,” he wrote. “Tents crowding out sidewalks, needles flooding parks, and rubbish (and worse) marring public squares reflect a threat to the public welfare that should not be taken lightly.”

Ninth Circuit Judge Milan D. Smith Jr. in his own dissent, wrote that the Grants Pass and Boise decisions have left “local governments without a clue of how to regulate homeless encampments without risking legal liability.”

Smith said the Grants Pass ruling has set up unelected federal judges as “homelessness policy czars” instead of doing what they should be doing: Applying the rule of law.

The Boise ruling, he said, “handcuffed local jurisdictions” trying to respond to the homelessness crisis while the Grants Pass case “now places them in a straitjacket.”


Smith criticized the formula that the judges set in the Grants Pass case — that the city couldn’t prosecute homeless people for sleeping in public “if there is a greater number of homeless individuals in a jurisdiction than the number of available shelter spaces.”

That’s unrealistic and doesn’t take into account individual circumstances, such as people who refuse an offer to go to a shelter, Smith wrote.

In response to the vigorous dissents, the majority slightly amended its original ruling, removing the “beds-versus-population” formula.

To clear up any potential confusion, Silver and Gould removed a statement from their original opinion that referenced the number of homeless individuals in a jurisdiction compared to the number of shelter spaces available.

“When there is no shelter space, jurisdictions may still enforce limitations on sleeping at certain locations,” they wrote in their amendment. “The assertion that jurisdictions must now allow involuntarily homeless persons to camp or sleep on every sidewalk and in every playground is plainly wrong.”

They accused O’Scannlain and Smith of mischaracterizing their ruling with exaggerations.

Their decision, they wrote, holds only that governments can’t 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.”

Silver and Gould said nowhere in their ruling do they “establish an unrestrained right for involuntarily homeless persons to sleep anywhere they choose. Nor does it require jurisdictions to cede all public spaces to involuntarily homeless persons.”


“The holding in Grants Pass is not that involuntarily homeless persons in the City of Grants Pass and elsewhere in the Ninth Circuit are allowed to sleep wherever and whenever they wish,” the two wrote. “When there is space available in shelters, jurisdictions are free to enforce prohibitions on sleeping anywhere in public.”

Further, when someone refuses an offer of shelter, that person may be punished for sleeping in public, the majority judges wrote.

Senior Circuit Judge Susan P. Graber sought to offer a middle ground. She said she agreed with the legal premise that the Eighth Amendment protects against criminal prosecution of the “involuntary act of sleeping,” but that the relief granted in the Grants Pass case went too far.

“Given the widespread nature of the homelessness crisis in our jurisdiction, it is crucial that we get it right,” she wrote. “Our court should have reheard this case en banc.”

Theane Evangelis, the attorney representing the city of Grants Pass, said the city plans to petition the U.S. Supreme Court for review.

“We hoped the full Ninth Circuit would reconsider recent decisions that have contributed to the growing problem of encampments in cities across the West,” Evangelis said by email. “The Ninth Circuit’s decisions in this case and Martin v. Boise are legally wrong and are only harming the very people they were meant to help.”

In Boise, a three-judge panel of the the 9th U.S. Circuit Court of Appeals in 2018 upheld the city’s enforcement of its camping and disorderly conduct ordinances against persons experiencing homelessness. The panel found that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.” When Boise sought a full court review of the ruling, the 9th Circuit rejected such a review. The U.S. Supreme Court in 2019 then denied a Boise petition to review the ruling.

Senior status judges don’t have a vote on whether a case should be heard by the full court. That’s why O’Scannlain’s position is called a “statement,” rather than a formal dissent.