The 2018 decision of the U.S. Court of Appeals for the Ninth Circuit in Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019) was, depending on your point of view, a scandalizing judicial usurpation or a sweeping blow to the dignity of homeless residents. The panel held that because “human beings are biologically compelled to rest,” a city may not “criminalize conduct that is an unavoidable consequence of being homeless—namely sitting, lying, or sleeping on the streets.” The Ninth Circuit declared such restrictions illegal under the Cruel and Unusual Punishments Clause of the Eighth Amendment. Martin caused immediate alarm among cities because it meant that a city could not enforce general prohibitions against habitation on public walkways, overpasses, plazas, or parks, unless that city was prepared to offer an indoor “alternative sleeping space.” Most sizable cities have far more unsheltered residents than shelter beds. 

Yet as it happened, in the dozen or so district court decisions to follow Martin, virtually all courts held that the decision was applicable only to use of the mechanisms of criminal law, i.e., fines, arrests, or prosecutions, on grounds that Martin, which rests on the Cruel and Unusual Punishment Clause, governs only where “punishment” is at issue. See, e.g., Frank v. City of St. Louis, No. 20-CV-00597-SEP, 2020 WL 2116392, at *4 (E.D. Mo. May 2, 2020) (St. Louis could close an encampment in part because there was no indication that the homeless plaintiff “faces a genuine threat of criminal punishment”); Young v. City of Los Angeles, No. 20-cv-709-JFW-RAO, 2020 WL 616363, at *5 (C.D. Cal. Feb. 10, 2020) (Martin covers only “criminally prosecuting” individuals); Le Van Hung v. Schaaf, No. 19-CV-01436-CRB, 2019 WL 1779584, at *1 (N.D. Cal. Apr. 23, 2019) (a “clear and clean” operation does not implicate Martin since it does not require arrest of plaintiffs).

But now, last week, for the first time, a district court deciding a homelessness case held that the Eighth Amendment applies “whether the punishment is designated as civil or criminal.” Blake v. City of Grants Pass, No. 18-CV-01823-CL, 2020 WL 4209227, at *8 (D. Or. July 22, 2020). The implications are immense: the decision forbids a city from enforcing a citywide ban on camping, even a decriminalized ban—unless, once again, the city can offer homeless individuals a shelter bed. This effectively creates a constitutional right to be homeless, all under what seemed, a few years ago, to be the unlikely aegis of the Cruel and Unusual Punishment Clause.

Why this matters: homelessness is a complex and agonizing issue, especially in the western United States, where most chronically unsheltered homeless Americans live. Our fellow humans suffering under the privations and distress of homelessness deserve our sympathy—and mostly receive it, along with hundreds of millions in medical assistance, housing support, and more. But the inability to get a grip on growing tent cities and car break-ins, on the one hand, and a sense of futile police harassment on the other, has stripped all sides of their patience. This has prompted lawyers and activists to seek the finality of federal judges, who can ignore political deadlocks or command police chiefs and city councils to act when the pleas of activists go unheeded. The result has been, in the last year, the beginnings of the federal judicialization of the homelessness crisis. The Grants Pass case is one example. Another is the spectacle of Judge David O. Carter, of Los Angeles’s federal district court, a 76-year-old personally touring Skid Row during COVID-19 to the applause of its denizens, holding free-wheeling, multi-hour hearings that “invite” city mayors to appear with solutions, and micro-managing the relocation of thousands.  

Some may welcome these interventions as overdue, commonsensical, and compassionate; others may fear the way that they can undermine self-government and flexibility by replacing public policy with lawsuits. Either way, last week’s Grants Pass decision augurs something new in federal jurisprudence.