'Senior 9th Circuit Judge Diarmuid O’Scannlain called the panel’s initial ruling
an “egregiously flawed and deeply damaging” mistake
that is “at war with constitutional text, history, and tradition, and Supreme Court precedent.”
https://www.oregonlive.com/crime/2023/07/9th-circuit-court-declines-to-rehear-ruling-that-upheld-homeless-right-to-sleep-outside-when-no-shelter-space-available.html
"...the city of Boise, which he wrote “invented” a federal constitutional right to sleep on public property"
"He also argued that the U.S. Supreme Court hasn’t found that the Eighth Amendment applies to
conduct not of one’s free choice,
and that local officials should have the right to prohibit a
“species of antisocial conduct.”
"O’Scannlain and judges who signed onto his statement
urged the court to come out
from behind its “marble walls and sealed doors”
"needles flooding parks,
and rubbish (and worse)
marring public squares"
"the city couldn’t prosecute homeless people
for sleeping in public “if there is a greater number of homeless individuals
in a jurisdiction than the number of available shelter spaces.”
"When there is no shelter space, jurisdictions may still enforce limitations on sleeping at certain locations,” they wrote in their amendment"
"They accused O’Scannlain and Smith of mischaracterizing their ruling with exaggerations."
Their decision, they wrote, holds only that governments can’t criminalize the act of sleeping
“with the use of rudimentary protections,
such as bedding, from the elements in some public places
when a person has nowhere else to sleep.”
Senior Circuit Judge Susan P. Graber sought to offer a middle ground. She said she agreed with the legal premise
that the Eighth Amendment protects against criminal prosecution
of the “involuntary act of sleeping,”
The panel found that “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.”
"When Boise sought a full court review of the ruling, the 9th Circuit rejected such a review.
The U.S. Supreme Court in 2019 then denied a Boise petition to review the case."
