Chesa Boudin and Homeless Activists Ask Supreme Court Not to Overturn 9th Circuit Decision

As regular readers know, there is a case about to be argued before the Supreme Court which could have a major impact on homelessness on the west coast. At the moment, decisions issued by the 9th Circuit Court of Appeals make it impossible for cities to force homeless people to move (off sidewalks or out of public parks) because the court decided doing so was cruel and unusual punishment under the 8th Amendment to the Constitution.

Cities like San Francisco can still clear homeless encampments but only if they had a bed to offer every person who needs one. But the catch here is that a high percentage of homeless people who are offered shelter refuse to accept it. They would rather be on the street, with no rules and where drugs are easy to get, than in a shelter packed with other homeless people, some of whom are dangerous.

In effect, cities are being required to spend money they don’t have to shelter people who they know will decline help as a prerequisite to maintaining order on the streets. 

Fortunately, earlier this year the Supreme Court agreed to take up this case. San Francisco, Los Angeles, Portland and Gov. Newsom have all submitted friend of the court briefs begging SCOTUS to fix the problem created by the 9th Circuit. Here’s a bit of San Francisco’s brief.

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.

The city actually accuses the 9th Circuit of judicial activism.

 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.

But even as the Democrats running these cities realize they need a conservative Supreme Court to rescue them from a left-leaning court’s activism, there are still leftists who oppose making any changes to the status quo. This week, former DA Chesa Boudin and various left-wing activists submitted their own friend of the court brief asking them to leave the 9th Circuit decision alone.

Former San Francisco District Attorney Chesa Boudin, now a professor at UC Berkeley School of Law, joined with a group of Bay Area lawyers in an amicus brief filed Tuesday in the Oregon case about penalizing homeless camping that the Supreme Court will hear oral arguments on later this month…

The latest amicus curiae brief was filed by the Lawyers Committee for Civil Rights of the San Francisco Bay Area (LCCRSF), on behalf a host of local “amici,” or friends of the court, including Boudin; SF Public Defender Mano Raju; Damon Bennett, the former supervisor of the Homeless Encampment Resolution Team; and a host of local advocacy and political organizations including the San Francisco Labor Council, the Harvey Milk LGBTQ Democratic Club, Democratic Socialists of America SF, and the San Francisco Tenants Union.

In a release today, LCCRSF says that their brief contends that SF and other California cities have “unfairly scapegoated unhoused residents for an affordable housing crisis that State and local governments created with decades of virulently racist anti-housing policies.”

Hasn’t Boudin done enough? Apparently he’s not done making things worse in San Francisco:

On Tuesday, Boudin appeared to predict how the decision would unfold at the high court, which has leaned conservative for years on issues like abortion. Legal observers believe it’s likely the Supreme Court could overturn or reverse key aspects of the Ninth Circuit’s positions on homelessness.

“The stakes are extremely high in the case pending before the Supreme Court,” said Boudin, who was recalled in 2022, at a virtual press conference. “We all know what the likely outcome is supposed to be.”

The likely outcome is that the Supreme Court will recognize cities have competing interests (public safety, cleanliness, accessibility, etc.) and allows cities up and down the west coast to treat people who refuse offers of shelter as voluntarily homeless rather than involuntarily homeless. That is the basic issue here:

In San Francisco, U.S. Magistrate Judge Donna Ryu cited the 9th Circuit ruling in her December 2022 injunction prohibiting the city from sweeping homeless encampments without giving them somewhere else to live. City officials say police have evicted residents of the encampments, and seized their property, only after they rejected offers of shelter, but Ryu has found that San Francisco’s public shelters are full and the waiting lists are closed. 

That was disputed Tuesday by Mayor London Breed’s spokesperson, Jeff Cretan. “San Francisco has the resources to offer people help, but there are some people who continue to refuse offers of shelter,” he said by email. “The Mayor will continue to do what is necessary to get people help but also to make it clear that when we have places for people to go and people refuse, we will enforce the law.”

The Supreme Court will hear arguments in the case on April 22 and a decision is expected in June. Here’s hoping Chesa Boudin’s losing streak continues.