Los Angeles Municipal Code § 41.18(d) (2005) states:
No person shall sit, lie or sleep in or upon any street, sidewalk or other public way.
The provisions of this subsection shall not apply to persons sitting on the curb portion of any sidewalk or street while attending or viewing any parade permitted under the provisions of Section 103.111 of Article 2, Chapter X of this Code; nor shall the provisions of this subsection supply [sic] to persons sitting upon benches or other seating facilities provided for such purpose by municipal authority by this Code.
Violations of the code are misdemeanors.
In a decision published today, Jones v. City of Los Angeles, the Ninth Circuit held that this provision violates the Eighth Amendment’s ban on Cruel & Unusual Punishments by punishing the status of homelessness. To satisfy the Constitution, Judge Wardlaw concluded, the City of Los Angeles must a) provide beds in homeless shelters for every one of Los Angeles’s homeless, or else b) not enforce this provision at night in particular places such that the City’s homeless are not arrested for conduct that is the inevitable consequence of their homelessness. Judge Rymer wrote a strong dissent that accuses the majority of “cobbling together the views of dissenting and concurring justices, creating a circuit conflict on standing, and overlooking both Supreme Court precedent, and our own.”
I am particularly interested in the scope of the holding and the remedy chosen by the court. I’m not an Eighth Amendment expert, but I don’t think I have ever heard of a statute that violated the Eighth Amendment only sometimes (when no beds are available city wide) and only when it was enforced at particular hours. Does any one know if this has been done before? I understand what the majority was trying to do, but at first blush the scope and remedy don’t seem to fit in particularly well with preexisting law.
Thanks to How Appealing for the link.
That’s odd. I would have expected a substantive due process clause ruling, but not an 8th amendment ruling. Isn’t due process the appropriate constitutional provision for defeating a law that’s impossible to obey? I confess to finding the “status crimes” analysis a little odd. After all, the statute doesn’t criminalize “homelessness” as such, it just criminalizes a certain pattern of conduct which a certain percentage of the homeless can’t avoid.
It’s very odd to me that the court didn’t even discuss due process.
Due Process would have been a better fit in my mind, but I find one other thing odd
It seems to me that the 9th Circuit is basically telling Los Angelos that if the government wants to regulate sleeping on the street, that the government has to provide a perfect alternative (ie there has to be a bed available for every homeless person. I find this amazing. It is almost like a newly identified constitutional right to government funded housing.
Could the same logic be stretched to cover panhandling? A city couldn’t limit panhandling unless they had programs in place so that 100% of the panhandlers could get all their food and pocket change from a government program instead.
It feels like this is a ruling that is treading on dangerous ground and is begging to be overturned.
Pingback: Crescat Sententia