Jul 12, 2023

A controversial ruling on homelessness.

A controversial ruling on homelessness.
Photo by Nathan Dumlao / Unsplash

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I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today, we're breaking down a consequential ruling on homelessness. Plus, a new YouTube video on UFOs and a reader question on the Wagner Group.

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Quick hits.

  1. Iowa's legislature finalized a ban on nearly all abortions after six weeks of pregnancy. Gov. Kim Reynolds (R) is expected to sign it Friday. (The bill)
  2. President Biden met with NATO leaders in Lithuania. Ukraine's potential membership status is a main topic of discussion. (The meeting)
  3. Inflation eased to 3% in June, the slowest pace in more than two years, as prices continue to moderate. (The numbers)
  4. A federal judge in San Francisco declined to block Microsoft's $69 billion acquisition of Activision Blizzard, a video game company. (The decision)
  5. Former President Trump's legal team asked for an indefinite postponement of his trial due to the volume of preparation needed in his presidential campaign. (The request)

Today's topic.

The Ninth Circuit's homelessness ruling. On Thursday, the most powerful federal appeals court in the western United States reaffirmed that cities and towns are not allowed to force homeless people off the streets unless those communities provide adequate shelter for them.

The Ninth Circuit is made up of 29 appellate judges whose rulings are binding for nine western states. In Martin v. Boise, a 2018 case, the Ninth Circuit held that cities were prohibited from enforcing anti-encampment law unless they could prove they had enough shelter beds available to house homeless people. For several years, cities and towns across the west have attempted to overturn the high court's position on homelessness, which has limited the ways they can enforce policies on homeless encampments. 

The latest challenge came from Grants Pass, Oregon. It started in July 2020, when a court in Medford, Oregon, decided that Grants Pass's treatment of their homeless population was unconstitutional. The court said the city was violating the Eighth Amendment, which says that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Grants Pass had been levying fines on homeless people in encampments to deter sleeping outside in public places or using things like cardboard boxes to build shelters. The city appealed the ruling to the Ninth Circuit, which — as it has in the past — upheld the ruling with a three-judge panel. Grants Pass then appealed for the full circuit to hear the case. On Thursday, the court declined, leaving the decision in place.

"Allowing cities and counties unfettered discretion to criminalize their homeless citizens will not reduce the number of people who are forced to live outside," Ed Johnson, the director of litigation at the Oregon Law Center and lead attorney on the case, said. "It will increase the number because criminalization destabilizes people who are living outside, and it makes it harder for them to connect with jobs and housing that they need in order to get inside."

For years, the Ninth Circuit’s decision in Martin v. Boise has been dictating how cities like San Francisco and Los Angeles treat homeless people. For instance, Los Angeles has had to tolerate encampments because the city does not have enough shelters to house those it wants to move off the streets. But after years of President Donald Trump appointing conservative justices to the Ninth Circuit, the traditionally liberal court is now more divided on the issue, and a growing number of judges are writing in dissent.

“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,” Judge Diarmuid O’Scannlain wrote in dissent. “We are the first and only federal circuit to have divined such a strange and sweeping mandate from the Cruel and Unusual Punishments Clause.”

The majority framed the decision as narrow, noting that it does not mean homeless people have an "unrestrained right" to sleep anywhere they choose. Instead, the panel's ruling means the government cannot criminalize sleeping with rudimentary protections in public places when a person has nowhere else to sleep.

Reactions to the decision were divisive not just in Grants Pass, where the community appears torn, but also nationally across the left and right. Grants Pass says it now plans to appeal to the Supreme Court. Today, we're going to explore the range of arguments, then my take.

What the left is saying.

  • Many on the left applaud the ruling and criticize the dissent, arguing that criminalizing homelessness will not solve it.
  • Some concede this issue is very complicated, but maintain that the panel's ruling is not a green light for unchecked homelessness.
  • Others say the ruling is almost certain to invite new challenges to encampment laws in West Coast cities like San Diego.

In the Los Angeles Times, LZ Granderson said "jailing unhoused people for sleeping in public" is no solution to homelessness.

"This week a group of conservative judges on the U.S. Court of Appeals for the 9th Circuit spoke out against allowing homeless people to sleep in public spaces, after the court’s liberal majority decided that those with nowhere else to rest cannot be subject to criminal penalties," Granderson wrote. The court ruled that the government was barred from imprisoning people for not having a place to live, but with the 9th Circuit more evenly split, "the next test case or the next election" could upend this ruling "very much for the worse."

A 2018 ruling from the 9th Circuit said clearly that "city law 'violates the 8th Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors on public property, when no alternative shelter is available to them.' ... The sight of encampments or a homeless person having a mental health episode can be frightening," Granderson said. "But the 8th Amendment was established so that the government would not forget the humanity of the people over whom it has power… Surely the law must protect individuals whose only 'crime' is having no place to sleep."

In the SFist, Jay Barmann said Grants Pass had tried to ban homeless people from using cardboard boxes as shelter or sleeping in city parks.

"Let's start by saying this issue is complicated and often leads to arguments about what to do with homeless people who refuse traditional shelter, either because they prefer the independence of the street or because they don't want to be told they can't do drugs," Barmann said. "But the fact remains that the cities of San Francisco and Los Angeles, among others, do not have nearly the shelter capacity to temporarily house everyone who is unsheltered. And given that fact, the next question is about how cities treat people who want to lie down or camp on a sidewalk or empty lot, and what the city can do under the constitution."

Key to this case was that Grants Pass imposed fines and punishment, given that it's unconstitutional to criminally punish involuntary homeless persons. "The ruling by the appeals court included caveats, saying that city ordinances prohibiting camping in the public right-of-way, and prohibiting camping in certain locations or during certain hours, might prove constitutional," Barmann said. The court also indicated that homeless people who have the means to pay for shelter or accessible free shelter can be held criminally liable if they opt to stay on the street. "So, cities may still enact rules, but they can't unreasonably punish people for breaking them, especially when there is no alternative shelter to offer."

The San Diego Union-Tribune editorial board said the ruling adds questions to the city's homeless crackdown.

"San Diego’s controversial new law bans homeless camps in public areas at all times when shelter beds are available. But it goes even further, forbidding homeless people from sleeping outside in large parts of the city, in particular within two blocks of K-12 schools, existing shelters, transportation hubs and waterways, even if all shelters are at capacity," the board noted. The differences between the Grants Pass and San Diego laws "are many," but the court focused on how controlling cities can be in regulating homelessness.

"Two of the 29 active appellate judges on the 9th Circuit argued that this was a narrow ruling. But activists and legal bloggers depicted it as further affirmation of the view that cities can’t find ‘loopholes’ to ‘evade’ honoring the constitutional rights of the unsheltered," the board said. Vigorous challenges “certainly await what can be described as 'loopholes' in San Diego’s ordinance designed to allow for the cruel punishment of homeless people — even when there are no beds for them."

What the right is saying.

  • Many on the right criticize the ruling and encourage a challenge to the Supreme Court.
  • Some argue the "right to vagrancy" has been wholly invented.
  • Others suggest the court's ruling is helping to destroy many West Coast cities.

The Washington Examiner editorial board called on the Supreme Court to save the West Coast from the 9th Circuit.

"Last week’s denial by the circuit for a full court review of the efforts of Grants Pass, Oregon, to address that city’s homelessness crisis creates an opportunity for the Supreme Court to step in and undo the 9th Circuit’s mistake. There is no Eighth Amendment right to camp in a public park — the 9th Circuit’s invention of such a right is spreading disease and chaos across the West, and the Supreme Court should fix the problem as soon as possible," the board said. "Anti-vagrancy laws are older than the Constitution itself, first originating in England and crossing the Atlantic with the first colonists."

Not one person "suggested there should be a right to camp on city property" when the founders adopted the Bill of Rights. The Eighth Amendment was about protecting people from torture and extortion, and "has since been used to overturn sentences for crimes that were considered disproportionate, including life sentences for juvenile offenders. Never has the Eighth Amendment been used to invalidate a criminal statute entirely. Never, that is, until the 9th Circuit did exactly that in 2018." The homeless population was growing before 2018, but since then it has "exploded.. More than half of all unsheltered homeless people now live in California alone, and Los Angeles has over 70,000 homeless people in encampments today."

The Wall Street Journal editorial board called it a "judge-made right to vagrancy."

This case is "ripe for Supreme Court appeal," the board said. "Progressive policies have turned cities like San Francisco and Portland into havens for homelessness and disorder. But spare some blame for liberal judges on the Ninth Circuit Court of Appeals who have now divined in the Constitution a right to public vagrancy." Martin has handcuffed local jurisdictions. "For example, a police officer in San Francisco cannot cite a homeless person who has set up a tent and defecated outside the Ninth Circuit’s courthouse even if government workers have offered temporary housing to the individual. As long as the city has fewer shelter beds than homeless people, police can’t force vagrants to move off public property."

Yet many of the homeless "decline housing and treatment" for addiction or mental health issues. "The Ninth Circuit’s rulings make it harder for local officials to leverage criminal and civil penalties to force vagrants to accept treatment and housing," the board said. As Ninth Circuit Judge Diarmuid O'Scannlain wrote in dissent, the ban on cruel and unusual punishment was meant for modes of punishment, not intended to arrogate authority from the legislature to prohibit acts like the ones considered here.

In PJ Media, Victoria Taft mocked the Ninth Circuit as promising "more tent cities for everyone."

"The city sought to have a larger panel of judges to hear its appeal. Leftists on the court said no way, and conservative judges on the court asked, in so many words, the crazy judges if they’d bothered to look out the window lately to see what they’d done," Taft said. "Reagan appointee Diarmuid O’Scannlain issued a dissenting statement calling the original ruling 'a dubious holding premised on a fanciful interpretation of the 8th Amendment,' which '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.'"

"But there’s potentially great news,” Taft said. “The most reversed court in the land is likely to be reversed when this case gets to the U.S. Supreme Court. The bad news is that those worse-off cities could become Thunderdome before a ruling overturning this insanity is issued.” 

My take.

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  • As a matter of policy, fining or jailing homeless people is a very bad way to reduce homelessness.
  • That being said, I also think cities and towns are well within their rights to create policies that keep homeless people out of certain public spaces.
  • This case is extremely complicated and I don't know what would happen if it made it to the Supreme Court.

But the most compelling piece I've ever read about how to address homelessness was written by Aaron Carr, an actual expert on the issue. Carr lays out in very simple and easy-to-follow terms that the most important driver of homelessness is not addiction, mental illness, or poverty. It's the cost of housing. I won't try to summarize the piece here, I will just say that it is very convincing and it changed my mind about the issue in several important ways. You can (and should) go read it when you're done with this newsletter.

From a policy perspective, the implication of Carr’s work is that the best way to address homelessness is to find ways to make shelter and housing more affordable for the homeless. And, perhaps more importantly, to find ways to make temporary free housing more readily available for people to transition off the streets.

In that regard, the Ninth Circuit's ruling has some appeal to me. It serves as a gigantic incentive for cities and jurisdictions to ramp up efforts to shelter their homeless population if they want to move them off the streets. This is good. Forcing people who can't afford to pay for shelter to pay fines for sleeping outside — and then potentially throwing them in jail — is not going to reduce homelessness. In fact, it will probably do the opposite. This is self-explanatory on the fines: Taking more money from people who have little and hoping it will result in them finding a place to live is nonsensical. Meanwhile, prison is often a pipeline to homelessness (the Prison Policy Initiative estimates people who have been incarcerated more than once are 13 times more likely to end up homeless), therefore criminalizing homelessness actually perpetuates it.

When I think of things I want the local government doing, caring for the most downtrodden people in our communities and keeping our streets clean and safe are two things near the top of the list. Sheltering the homeless seems to touch both of those issues.

As for the ruling itself, I think it’s more narrow than some of the conservative coverage of it implies. As judges on the circuit said quite explicitly:

"Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside."

This is good, too. Hypothetically, a person setting up an encampment in a public place when they can afford housing or to sleep in a shelter with open beds down the street should be subject to getting moved out of that public space and into shelter or housing. I think the legal outcome there is fine.

And yet... I can't shake the feeling this ruling doesn't look right. To get from the Eighth Amendment — "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" — to the idea that a city can't cite a homeless person for sleeping in a public space if it has one fewer bed than total homeless people, does, in fact, seem like a stretch.

On the one hand, determining what constitutes an excessive fine for a person with very little is tough to do, as is determining whether it would be "cruel and unusual punishment" to force a homeless person into a prison for violating vagrancy laws. But more to the point, this case is not a policy suggestion — it's a matter of constitutional law. If a city council elected by the people decides that it wants to impose rules about where homeless people can sleep and what the city should do to enforce those rules, they seem well within their rights to do that.

Again: I think cities fining or imprisoning the homeless is counterproductive — in fact, I think that is a pretty obviously bad solution to the problem. But I'm also not convinced it should be illegal for cities to fine or imprison homeless people as a deterrent to sleeping in certain places, if those cities determine that to be the best policy for their communities. I find it plausible that the simple threat of fines or prison time would actually move some homeless people off the street, which would be a positive outcome. 

This is a very, very challenging case, and I'll be curious to see what happens if it goes to the Supreme Court. For now, though, I think it's fair to note that the combination of this decision and the policies the cities in question have used to address homelessness are creating a crisis — one in which too few homeless people are getting the help they need and too many public spaces are turning into campgrounds. Working from that position, these jurisdictions would be better off focusing on creating more affordable housing than figuring out how to move those people from camps to prisons. 

Your questions, answered.

Q: Some news outlets have been reporting on the demise of the Wagner Group and merger with Russian regular army troops. If that is the case, what does the future look like for the Wagner troops operating in sub-Saharan Africa and the Middle East? Russia can't afford to be seen as the prime manager of those troops, can it?

— Jim from Rogers, Arkansas

Tangle: No, it can't. As a refresher, for the past ten years, the Wagner Group has operated as a private military company in Russia, fighting for the governments of African and Middle Eastern countries like Syria, Libya, Central African Republic, and Mali in their civil wars. It's widely believed that their operations in these countries have allowed Russian-linked companies to win lucrative resource contracts in these areas while the Kremlin can maintain plausible deniability of having a regional military presence — especially one credibly accused of routinely committing war crimes. I definitely don't see the Russian military taking up arms in these conflicts directly.

Instead, I would actually expect there to be more of the same from Russia in Africa. For the Wagner troops themselves, I don't think all or even most of them will join the Russian military. I actually find it more convincing that Wagner fighters, who are used to getting paid much more than what they would get in the Russian military, would instead just continue fighting for the countries that still have the Wagner Group under contract. Wagner existed before Prigozhin, and it will likely continue to exist after him. And if it doesn't, Russia still has other paramilitary organizations that will probably expand to fill the void left behind.

The interesting prospect to me, though, is that there's an opportunity for other countries to fill the void, too. When Russia first invaded Ukraine, the UN passed a resolution demanding Russia to stop. The resolution itself wasn't too surprising or interesting, but it was definitely eye-opening to me to see how many African countries voted against the resolution or abstained. In addition to its willingness to deploy paramilitary companies, Russia has been able to claim some moral high ground on the continent by dragging out Europe’s and the United States’ imperial histories to look good by comparison. China can make the same argument, and has already invested very heavily in the continent. It's possible Xi Jinping seizes the moment to run some of Putin's playbook.

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Under the radar.

In a novel campaign fundraising strategy, Republican candidate Vivek Ramaswamy is running a "commission-based fundraising program." It appears to be the first fundraising strategy of its kind, in which any person who fundraises for the campaign will get a 10% commission on all the money they raise. Ramaswamy framed the idea as a way to "democratize the ability to make money" on campaigns, calling the traditional structures an "oligopoly" of the managerial class. Critics of the idea called it a "Ponzi scheme" with a similar framework to multi-level marketing schemes. ABC News has the story.


  • 582,000. The rough estimate of how many Americans experienced homelessness in 2022.
  • 18 of 10,000. The rate of Americans who experienced homelessness in 2022.
  • 20 of 10,000. The rate of veterans who experienced homelessness in 2022.
  • 48 of 10,000. The rate of black Americans who experienced homelessness in 2022.
  • 121 per 10,000. The rate of Pacific Islanders who experienced homelessness in 2022, the highest of any group.
  • 8%. The increase in the homeless population for every 10% increase in housing cost.

The extras.

Have a nice day.

Since 1974, the beaches of Cape Cod and the Gulf of Maine have hosted a strange sight: sea turtles. The turtles (Kemp's Ridley turtles, specifically) like warm water, but with the Atlantic Ocean getting warmer they have wandered north from the Gulf of Mexico all the way to Maine, which is a problem for the critically endangered species when the weather starts to get cold. However, the Animal Care Center at the New England Aquarium outside Boston has helped to recuperate these turtles to be healthy enough to travel back home to Texas. The only problem was how to get them there. Enter "Turtles Fly Too," a nonprofit that organizes hundreds of pilots who volunteer their time and resources to help get these sea turtles back home and out of the cold. According to Ken Andrews, the nonprofit's director, "Ninety percent of the turtles that we've moved to rehab have ended up back in the ocean." CBS News has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.