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9th Circuit Continues on its Merry Way

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In Jones v. City of Los Angeles, a panel of the 9th Circuit Court of Appeals ruled 2 to 1 last week that the city had gone too far in letting police remove the homeless from its streets.

Six homeless individuals, unable to obtain shelter on the night each was cited or arrested, filed an Eighth Amendment challenge to the enforcement of a City of Los Angeles ordinance that criminalizes sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles's city limits. Appellants sought limited injunctive relief from enforcement of the ordinance during nighttime hours, i.e., between 9:00 p.m. and 6:30 a .m., or at any time against the temporarily infirm or permanently disabled.

The court said the city's policy violates the Constitution's Eighth Amendment, but only if the arrested person is homeless. Unless you find them beds in a shelter, the court said, arresting or removing homeless people from the street is both "cruel and unusual" -- even if they're a threat to public safety. So there is a constitutional right to use the streets as one's home, even if one's presence endangers others.

Just checked my dog-eared copy of the Constitution -- I must have missed the last loose-leaf update. And I'm not alone. Complained Investor's Business Daily (IBD):

"The court's decision has no constitutional basis and undermines cities' ability to deal with a growing problem on their streets. It also suggests that the court -- not voters or their duly elected political representatives -- has the right to decide how the problem should be solved."

The Jones case is just another in a long line of bizarre decisions handed by the out-of-control 9th. Among them:

In 2002, in Newdow v. U.S. Congress, the 9th declared the Pledge of Allegiance unconstitutional because it contained the word "God."

In 2003, a three-judge panel temporarily halted California's recall election, in response to a spurious complaint from the ACLU about voting methods and despite having no legal justification or precedent for doing so.

In 2005, in Fields v. Palmdale School District, the court allowed schools to give first, third and fifth graders sexually explicit questionnaires, despite angry objections from parents.

See the IBD editorial, "The New Untouchables," April 18, 2006, here (subscription required):

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.