Is there a constitutional right to sleep in a public park or beach? In the western United States there is, and that is wrong, according to the conservative minority of judges on the United States Court of Appeals for the Ninth Circuit. The court’s conservative bloc spoke out this week in dissenting from the majority’s refusal to rehear a three-judge panel’s decision on the point, affirming the rule in the western circuit establishing that right until and unless the Supreme Court holds to the contrary.
Judge Milan Smith Jr., a George W. Bush appointee, wrote in one dissent that homelessness is “presently the defining public health and safety crisis in the western United States.” Pointing to Los Angeles, where the latest census put the homeless population of the county at some 70,000, he wrote, “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. 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.” Smith’s opinion was joined, in whole or in part, by eight other members of the court, in a clear effort to get the attention of the Supreme Court’s conservative majority.
Judge Diarmuid O’Scannlain, an appointee of President Ronald Reagan, wrote separately as well, taking issue with the Ninth Circuit rule for “paralyzing local communities from addressing the pressing issue of homelessness.” O’Scannlain wrote that the decision “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,” which he called “a dubious holding premised on a fanciful interpretation of the 8th Amendment.”
How can it be that I find myself nodding in agreement with the 10 judges who joined these dissenting opinions, all of whom were appointed by Republican presidents I voted against?
The answer is painfully simple.
I live in Los Angeles County with that growing population of homeless people who have the constitutional right to sleep in the parks, which, trust me, is doing nothing whatsoever to assure them a safe night’s sleep. It is, as Smith rightly observes, an apparent example of a colossal failure by someone to ensure both that public spaces are maintained for the public and that men, women and children have a safe and decent place to live — there are two colossal failures on display and the failure of the social contract is manifest.
The question of law, however, is where you find a constitutional right in this morass that limits the rights of cities and towns to maintain public spaces, and try as I might, compassionate as I feel, I don’t see the right to sleep on the beach or pitch a tent in the park or park a van on the street and block the handicap access or the street cleaning in the morning.
There is a tendency, and don’t I know it well, to look for an answer in the courts. In Los Angeles, more than elsewhere, the courts have tried, with activist judges trying to hold public officials’ feet to the fire to do something about the homelessness crisis, to little avail. I have no answers. There have been huge budget allocations to fight homelessness, and yet they fail to make a dent in the problem. Obviously, it is a multifaceted problem, complicated by housing shortages as well as the mental health crises that plague the homeless population. I wish a court order could solve the problem, but sometimes it only makes things worse, and this may be one of those times.
