Here is the Amicus Curiae (“friend of the court”) brief from Gov. Newsom to the U.S. Supreme Court, filed on Sept. 22, 2023, supporting the City of Grants Pass, Oregon, in asking for a Writ of Certiorari, or a request for SCOTUS to review a ruling by a lower court.
The lower court in question is the 9th Circuit Federal Court of Appeals It’s the court that issued the infamous Martin v. Boise 2018 decision, which held that “that the Cruel and Unusual Punishments Clause of the Eighth Amendment [of the Constitution] precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter.” As a result of that decision, municipalities, including Oakland and San Francisco, have claimed an inability to clear encampments, or even order the removal of single tents, unless they were able to provide “alternative shelter.” “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.”
That 9th Circuit ruling was appealed by the city of Boise to the U.S. Supreme Court, which in December, 2019, without explanation refused to hear it, meaning that the 9th Circuit decision remains the final word.
Martin v. Boise is now headed back to the Supreme Court because of the Grants Pass case. It’s not clear why the Newsom administration believes SCOTUS will now accept the request that it refused to consider four years ago. He may believe that a more conservative Court will be more inclined to reconsider Martin v. Boise. He may believe that adding his weight as the Governor of California on an Amicus brief will be persuasive. Or it may be a case of “if at first you don’t succeed, try again.” His Amicus is in support of the case of Blake vs. Grants Pass (now known as Johnson v. Grants Pass), in which Grants Pass, a city in Oregon, filed a brief with the 9th Circuit; Newsom’s amicus is in support of Grants Pass’s petition. The 9th Circuit had “upheld the U.S. District Court’s prior ruling that persons experiencing homelessness are entitled to take necessary minimal measures to keep themselves warm and dry while sleeping outside,” a ruling Newsom says “perpetuates the risk that district courts will [continue to] misunderstand or misinterpret Martin.”
I should make clear that Newsom has always been relatively tough on encampments for someone with so liberal a political reputation. When he was Mayor of San Francisco (2004-2011) he introduced a variety of measures, including his Care Not Cash program, that came under heavy fire from progressives; it reduced monthly financial assistance to homeless persons and redirected the money toward affordable housing and shelters. Care Not Cash was a failure, of course, insofar as San Francisco’s homeless count soared; but it also did everywhere else across the country.
Newsom’s Amicus contains certain key arguments. Among these are:
• “The Governor…has a strong interest in ensuring that judicially created rules, however well-intentioned those rules may be, do not hamstring state and local governments' ability to address these problems, and do not impede common-sense measures to keep people safe.” Newsom has repeatedly claimed that Martin v. Boise in effect makes it impossible to clean up the messes and dangers that unrestricted encampments pose. The streets of Oakland and San Francisco are clear examples of this unintended result.
• “The Governor does not take issue with the narrow rule adopted by the Ninth Circuit in Martin v. City of Boise that people experiencing homelessness should not be criminally prohibited by a municipality from sleeping outside when they have nowhere else to go… But lower courts have interpreted Martin far more broadly than that.” Referring to Martin v. Boise’s “ambiguity and unworkability,” Newsom points out that lower courts have “expand[ed] Martin in troubling and uncertain ways by authorizing the use of classwide injunctions divorced from individualized inquiries into whether individuals truly have nowhere else to go.” An example: U.S. District Judge William Orrick (the same judge who has repeatedly attacked the Oakland Police Department), who, in 2023, blocked Oakland from clearing the Wood Street slum until the city provided alternative shelter for the hundreds of people living there. (Orrick later amended his decision.) Newsom’s Amicus makes the reasonable argument that “state and local leaders need the flexibility to craft policies that balance competing interests…courts are not well-suited to micromanage such nuanced policy issues.”
• “Our government officials are trapped, at risk of suit for taking action but also accountable for the consequences of inaction. Our communities will suffer for it.” Caught between a rock and a hard place, cities simply don’t know what to do. For example, on the one hand they’re sued (as San Francisco is currently being sued by the Coalition on Homelessness) for being too tough on encampments. On the other hand, they’re sued (as Sacramento just was) “for failure to dismantle homeless encampments and move people into shelters,” i.e. for not being tough enough. This is a prime example of the “ambiguity and unworkability” of Martin v. Boise.
Newsom’s brief states unambiguously that “Martin did not purport to prohibit every effort by state and local governments to clear encampments or to regulate the time, place, and manner in which an unhoused person may sleep…Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside." In fact, the Amicus argues, “[e]ven where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible.” The Amicus then goes to great length in describing the situation in California cities that have been “paralyzed”—Santa Barbara, Los Angeles, San Rafael—in which “These courts [e.g. the 9th Circuit] have stretched Martin's reasonable limit into an insurmountable roadblock, preventing cities and towns from imposing common-sense time and place restrictions to keep streets safe…”.
The Amicus concludes by stressing something we’ve been saying for years: “Encampments are dangerous. These semi-permanent tent cities…indisputably threaten public safety and health.” It describes the “concerns” of businesses and residents near encampments: “fires…criminals…exposure to controlled substances…subjugation to…physical abuse…trash, used needles, and human waste…open drug use, property damage, theft, and break-ins…the decline of property values…small business failure [while] public spaces become uninhabitable.”
The Amicus asks SCOTUS to fully review the 9th Circuit’s decision [Martin v. Boise] and intervene, so that “localities can enforce policies to address specific encampments that are impacting the ability of the public to use specific public spaces…”.
We’ll see what SCOTUS does. But Newsom is to be commended for taking a bold step that will undoubtedly by criticized by the Left and the pro-homeless lobby. Martin v. Boise is clearly a troubled ruling; it’s needed clarification for years. As for those Oakland leaders who for so long have unapologetically supported encampment slums and refused to do anything about them (Carroll Fife, Rebecca Kaplan, Sheng Thao, Nikki Bas in particular), their fingerprints are all over the “trash, used needles and human waste” the homeless leave behind.
Steve Heimoff