Conservative federal judges slammed a ruling by their colleagues Wednesday that found a constitutional right to sleeping on public property, calling the decision “paralyzing” and “half-reasoned.”
The 9th Circuit Court of Appeals declined to rehear a case Wednesday challenging city ordinances designed to prevent sleeping on public property, leaving in place a three-judge panel’s ruling that found individuals who are “involuntarily homeless” have a right to sleep in public places when they have nowhere else to go. Dissenting from the decision, the court’s conservative judges took aim at the “right” found by the three-judge panel.
“There are stretches of the city where one cannot help but think the government has shirked its most basic responsibilities under the social contract: providing public safety and ensuring that public spaces remain open to all,” Judge Milan Smith, an appointee of former President George W. Bush, wrote. “One-time public spaces like parks — many of which provide scarce outdoor space in dense, working-class neighborhoods — are filled with thousands of tents and makeshift structures, and are no longer welcoming to the broader community.”
Eight judges joined Smith’s dissent, which highlighted homelessness as “presently the defining public health and safety crisis in the western United States,” in part or in whole.
Writing separately, Judge Diarmuid O’Scannlain, an appointee of former President Ronald Reagan, called the decision “egregiously flawed and deeply damaging.”
“With this decision, our Circuit’s jurisprudence now effectively guarantees a personal federal constitutional ‘right’ for individuals to camp or to sleep on sidewalks and in parks, playgrounds, and other public places in defiance of traditional health, safety, and welfare laws—a dubious holding premised on a fanciful interpretation of the Eighth Amendment,” he wrote. “The jurisprudence in this case is egregiously flawed and deeply damaging—at war with constitutional text, history, tradition, and Supreme Court precedent.”
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