As Maine struggles to address homelessness, many people have cited limitations imposed on West Coast cities by the 9th Circuit Court of Appeals as a barrier to implementing solutions. However, these 9th Circuit opinions are narrow, and they do not ban tent removal; the protection of specific public spaces, or enforcement strategies that do not inevitably result in criminal prosecution.

People camp in tents at the Department of Transportation Park & Ride lot on Marginal Way in Portland. Gregory Rec/Staff Photographer

While it is important to note that Maine is governed by the 1st Circuit Court of Appeals, which has not ruled on the issue, Mainers need to understand the national legal landscape to formulate sound public policy and help those experiencing homelessness. To do that, we must examine several appellate court rulings.

The 11th Circuit, which is no more or less binding on Maine than the 9th Circuit, has held that a city ordinance prohibiting sleeping on public property was constitutional. In Joel v. City of Orlando, the court rejected the plaintiffs’ challenge because the ordinance “targets conduct, and does not provide criminal punishment based on a person’s status.”  The court concluded that “(t)he City is constitutionally allowed to regulate where ‘camping’ occurs.”

Two 9th Circuit decisions came to a different conclusion when addressing laws that made sleeping outside on public land a crime or finable offense that, if unpaid, became a crime. Because the laws prohibited sleeping outside everywhere in the cities, and the city shelters were full, the 9th Circuit Court found that criminalizing sleeping outside violated the Eighth Amendment prohibition on cruel and unusual punishment.

According to the judge who wrote the opinion, the opinion is narrow in that it holds “only that municipal ordinances that criminalize sleeping, sitting, or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment.”

The judge also wrote that the opinion did not “outlaw ordinances ‘barring the obstruction of public rights of way or the erection of certain structures,’ such as tents,  and that the holding ‘in no way dictate(s) to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets … at any time and at any place.’”


In a subsequent holding, the 9th Circuit again emphasized that the decision was “narrow” and said “we hold simply that it is ‘unconstitutional to (punish) simply sleeping somewhere in public if one has nowhere else to do so.’” The court added that it “slightly” reaches beyond the original opinion in that it “includes sleeping with rudimentary forms of protection from the elements” and applies to fines that, if unpaid, lead to criminal punishment.

When the dissent asserted that the opinion established “the right to use (at least) a tent”, the majority replied: “This assertion is obviously false. The district court’s holding that the City may still ‘ban the use of tents in public parks’ remains undisturbed by our opinion.”

Creating confusion, arguably, is a preliminary district court injunction against San Francisco based on these opinions that goes well beyond the limited holdings described above, seizing on language outside the limited conclusions of the courts and prohibiting prosecution so long as the number of homeless individuals exceeds the number of available shelter beds. According to the district court, this resulted from the fact that San Francisco “never properly raised the issue of how Ninth Circuit precedent should be applied to the facts” of the case in question and “wholly fail(ed) to object to or even address the substance or scope of the proposed preliminary injunction, thereby conceding these issues.”

Thus, assuming they make the argument, even cities bound by the 9th Circuit decisions can prohibit tents and other structures, designate certain public land off limits for sleeping outside or even ban all sleeping outside. Whether any of this constitutes sound public policy is a different issue, but one that should be informed by an accurate understanding of the legal landscape.

What is certain is that encampments can cause devastating harm to those experiencing homelessness, including the rape, murder, sex trafficking, drug trafficking and other exploitation of encamped and marginalized persons with substance use disorder and mental health issues.

The 9th Circuit rulings clearly do not authorize or mandate public policy that inflicts such cruelty upon the homeless. As Maine begins the long-overdue task of addressing its homelessness crisis, citizens should understand that the legal landscape is not nearly as constricting as some have been led to believe.

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