Is there a constitutional right to sleep in a public park or beach? In the western U.S. 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 last 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 Reagan, wrote separately, taking issue with the Ninth Circuit rule for “paralyzing local communities from addressing the pressing issue of homelessness,” in defiance of “traditional health, safety, and welfare laws.”
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?
