Petition for Writ of Certiorari — City of Boise, Idaho, Petitioner v. Robert Martin, et al.

No. __________=

IN THE

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CITY OF BOISE,

Petitioner,

v.

ROBERT MARTIN, LAWRENCE LEE SMITH, ROBERT

ANDERSON, JANET F. BELL, PAMELA S. HAWKES, AND

BASIL E. HUMPHREY,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

tolson@gibsondunn.com

THEANE D. EVANGELIS

Counsel of Record

BRADLEY J. HAMBURGER

JOSEPH TARTAKOVSKY

SAMUEL ECKMAN

WILLIAM F. COLE

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tevangelis@gibsondunn.com

Counsel for Petitioner

QUESTION PRESENTED

Like many cities and towns across the country, the

City of Boise, Idaho regulates camping and sleeping

in public spaces to ensure that these areas remain

safe, accessible, and sanitary for the continued use of

residents, visitors, and wildlife. In this case, the

Ninth Circuit held that Boise’s enforcement of such

laws constitutes “cruel and unusual punishment”

prohibited by the Eighth Amendment of the

Constitution when “‘there is a greater number of

homeless individuals in [the jurisdiction] than the

number of available beds [in shelters].’” In the Ninth

Circuit’s view, under this Court’s decisions in

Robinson v. California, 370 U.S. 660 (1962), and

Powell v. Texas, 392 U.S. 514 (1968), a “state may not

‘criminalize conduct that is an unavoidable

consequence of being homeless.’”

The Ninth Circuit’s decision elicited multiple

dissents from the denial of rehearing en banc,

including a six-judge dissent emphasizing that other

courts, including the Fourth, Seventh, and Eleventh

Circuits, as well as the California Supreme Court,

“have routinely upheld state laws regulating acts that

were allegedly compelled or involuntary,” and

warning that the decision will “prevent local

governments from enforcing a host of other public

health and safety laws, such as those prohibiting

public defecation and urination.”

The question presented is:

Does the enforcement of generally applicable laws

regulating public camping and sleeping constitute

“cruel and unusual punishment” prohibited by the

Eighth Amendment of the Constitution?

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

The caption contains the names of all the parties

to the proceedings below.

Pursuant to this Court’s Rule 29.6, undersigned

counsel state that the City of Boise, Idaho is a

municipal corporation. It has no parent corporation,

and no publicly held corporation owns 10% or more of

its stock.

iii

RULE 14.1(b)(iii) STATEMENT



Martin v. City of Boise, No. 15-35845 (9th Cir.)

(amended opinion issued, judgment entered, and

petition for rehearing en banc denied Apr. 1, 2019;

mandate issued Apr. 9, 2019).



Martin v. City of Boise, No. 1:09-cv-00540-REB

(memorandum of decision issued and final

judgment entered Sept. 25, 2015).



Bell v. City of Boise, No. 11-35674 (opinion issued

and judgment entered Mar. 7, 2013; mandate

issued Apr. 1, 2013).

There are no additional proceedings in any court

that are directly related to this case.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................................i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT ................................... ii

RULE 14.1(b)(iii) STATEMENT ........................ iii

OPINIONS BELOW.............................................. 1

JURISDICTION .................................................... 1

CONSTITUTIONAL PROVISIONS

INVOLVED ........................................................... 1

STATEMENT ........................................................ 2

REASONS FOR GRANTING THE

PETITION ........................................................... 12

I. THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH THIS COURT’S

PRECEDENT. .................................................. 13

II. THE NINTH CIRCUIT’S DECISION

CREATES A CONFLICT AMONG THE

LOWER COURTS. ........................................... 19

III. THE NINTH CIRCUIT’S DECISION

UNDERMINES THE ABILITY OF STATE

AND LOCAL GOVERNMENTS TO

PROTECT PUBLIC HEALTH AND SAFETY

AND IS UNWORKABLE IN PRACTICE. ............ 26

A. The Decision Below Paralyzes State

And Local Governments’ Ability To

Protect Public Health And Safety. ......... 27

B. The Ninth Circuit’s Decision Is

Unworkable And Nonsensical. ............... 32

CONCLUSION .................................................... 35

v

TABLE OF APPENDICES

Page

APPENDIX A: Amended Opinion and Order

Denying Petition for Rehearing En Banc,

United States Court of Appeals for the

Ninth Circuit, Martin v. City of Boise,

No. 15-35845 (Apr. 1, 2019) ............................... 1a

APPENDIX B: Memorandum Decision and

Order, United States District Court for the

District of Idaho, Martin v. City of Boise,

No. 1:09-cv-00540-REB (Sept. 28, 2015) ......... 69a

APPENDIX C: Memorandum Decision and

Order on Defendants’ Second Motion for

Summary Judgment, United States

District Court for the District of Idaho,

Martin v. City of Boise, No. 1:09-cv-00540REB (Jan. 27, 2014) ......................................... 89a

APPENDIX D: Statutory Provisions Involved ... 123a

APPENDIX E: Affidavit of James R. Hall in

Support of the City of Boise’s Motion for

Summary Judgment, United States

District Court for the District of Idaho,

Martin v. City of Boise, No. 1:09-cv-00540REB (Sept. 30, 2010) ...................................... 126a

APPENDIX F: Affidavit of Sergeant Clair

Walker in Support of the City of Boise’s

Motion for Summary Judgment, United

States District Court for the District of

Idaho, Martin v. City of Boise, No. 1:09-cv00540-REB (Sept. 30, 2010)........................... 131a

vi

APPENDIX G: Affidavit of Sergeant Andrew S.

Johnson in Support of the City of Boise’s

Motion for Summary Judgment, United

States District Court for the District of

Idaho, Martin v. City of Boise, No. 1:09-cv00540-REB (Sept. 30, 2010) .......................... 136a

APPENDIX H: Affidavit of Michael Culton in

Support of the City of Boise’s Motion for

Dispositive Relief, United States District

Court for the District of Idaho, Martin v.

City of Boise, No. 1:09-cv-00540-REB (Apr.

30, 2015) ......................................................... 142a

APPENDIX I: Affidavit of Allison Rae Duman

in Support of the City of Boise’s Motion for

Dispositive Relief, United States District

Court for the District of Idaho, Martin v.

City of Boise, No. 1:09-cv-00540-REB (Apr.

30, 2015) ......................................................... 146a

vii

TABLE OF AUTHORITIES

Cases

Pages(s)

Allen v. City of Sacramento,

183 Cal. Rptr. 3d 654 (Cal. Ct. App. 2015) ......... 20

Harmelin v. Michigan,

501 U.S. 957 (1991) .............................................. 12

Heck v. Humphrey,

512 U.S. 477 (1994) ................................................ 7

Hutchinson v. City of Valdosta,

227 U.S 303 (1913) ............................................... 32

Ingraham v. Wright,

430 U.S. 651 (1977) ................................................ 2

Jacobson v. Mass.,

197 U.S. 11 (1905) ................................................ 32

Joel v. City of Orlando,

232 F.3d 1353 (11th Cir. 2000) .................. 3, 20, 21

Manning v. Caldwell,

930 F.3d 264 (4th Cir. 2019) (en banc) .... 23, 24, 25

Marks v. United States,

430 U.S. 188 (1977) .............................................. 11

Murphy v. Raoul,

380 F. Supp. 3d 731 (N.D. Ill. 2019) .................... 35

Powell v. Texas,

392 U.S. 514 (1968) .......... 2, 3, 9, 14, 15, 16, 17, 18

viii

Robinson v. California,

370 U.S. 660 (1962) ................................ 2, 9, 13, 14

Tobe v. City of Santa Ana,

892 P.2d 1145 (Cal. 1995) .......................... 3, 19, 20

United States v. Black,

116 F.3d 198 (7th Cir. 1997) .......................... 22, 23

United States v. Sirois,

898 F.3d 134 (1st Cir. 2018) .......................... 21, 22

United States v. Stenson,

475 F. App’x 630 (7th Cir. 2012) ......................... 23

Constitutional Provisions

U.S. Const. amend. VIII .................................... passim

U.S. Const. amend XIV ............................................. 14

Statutes

Boise, Idaho, City Code § 5-2-3(A)(1)...................... 6, 7

Boise, Idaho, City Code § 7-3A-2(A) ....................... 6, 7

Other Authorities

About, New Path Community Housing .................... 32

Anh Do, ‘Eye-popping’ Number of

Hypodermic Needles, Pounds of

Waste Cleared from Orange County

Riverbed Homeless Encampment

(L.A. Times Mar. 10, 2018) .................................. 31

ix

Anna Gorman & Harriet Blair Rowan,

The Homeless Are Dying in Record

Numbers on the Streets of Los

Angeles (U.S. News & World Report

Apr. 23, 2019) ....................................................... 28

Anna Gorman & Kaiser Health News,

Medieval Diseases Are Infecting

California’s Homeless (The Atlantic

Mar. 8, 2019) ........................................................ 29

Aria Bendix, San Francisco has a ‘Poop

Patrol’ to Deal with its Feces

Problem, and Workers Make More

than $184,000 a Year in Salary and

Benefits (Bus. Insider Aug. 24, 2018) .................. 31

Cal. Dep’t Pub. Health, Human FleaBorne Typhus Cases in Cal. (2019) ..................... 29

Code Change is Just First Step to Help

Homeless (Thousand Oaks Acorn

July 18, 2019) ....................................................... 33

Commander Dominic H. Choi, L.A.

Police Dep’t, The Los Angeles Police

Department’s 2018 4th Quarter

Report on Homelessness (2019) ............................ 28

Dakota Smith & David Zahniser, Filth

from Homeless Camps is Luring Rats

to L.A. City Hall, Report Says (L.A.

Times June 3, 2019) ............................................. 29

x

Eric Johnson, Komo News Special:

Seattle is Dying (KOMO News Mar.

14, 2019) ............................................................... 28

Gale Holland, Attacked, Abused, and

Often Forgotten: Women Now Make

up 1 in 3 Homeless People in L.A.

County (L.A. Times Oct. 28, 2016) ...................... 29

Jennifer Medina, Los Angeles Fires

Started in Homeless Encampment,

Officials Say (N.Y. Times Dec. 12,

2017) ..................................................................... 30

King Cnty. Med. Examiner, 2018 Annual

Summary of Deaths Among

Individuals Presumed to be Homeless

and Investigated by the King County

Medical Examiner’s Office (2019) ........................ 28

Lolita Lopez & Phil Dreschler, Gangs of L.A.

on Skid Row (NBC L.A. Feb. 19, 2018) ............... 29

Maggie Vespa, Portland Police Will Not

Cite Homeless for Sleeping on

Streets, Citing Court Ruling (KGW 8

Sept. 7, 2018) ........................................................ 33

Molly Harbarger, Spike in Multnomah

County HIV Cases Tied to Drug Use

(Oregonian June 20, 2019) .................................. 30

Orange Cnty. Sheriff’s Dep’t, Coroner

Division Homeless Mortality Report

2014–2018 (2019) ................................................. 28

xi

Peter W. Low, Criminal Law (1990)......................... 18

Sanford H. Kadish, Fifty Years of

Criminal Law: An Opinionated

Review, 87 Cal. L. Rev. 943 (1999) ...................... 18

Scott Wilson, Hepatitis A Outbreak

Among Homeless a Byproduct of

California’s Housing Crunch (Wash.

Post. Oct. 25, 2017) .............................................. 30

Seattle Police Bust Drug Rings in

Homeless Camps (KOMO News May

15, 2019) ............................................................... 29

Thomas Fuller, Life on the Dirtiest

Block in San Francisco (N.Y. Times

Oct. 8, 2018) ......................................................... 31

Tracking HHH, L.A. Office of the Mayor ................. 32

Vianna Davila & Jonathan Martin, Rare

Infectious Diseases are Rising at an

‘Alarming’ Rate in Seattle’s Homeless

Population, Concerning Health Officials

(Seattle Times Mar. 15, 2018) ............................. 30

Virginia Won’t Appeal Ruling Tossing

‘Habitual Drunkard’ Law (Wash.

Post. Aug. 2, 2019) ............................................... 24

PETITION FOR A WRIT OF CERTIORARI

Petitioner City of Boise, Idaho respectfully

petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit.

OPINIONS BELOW

The amended opinion of the Ninth Circuit and its

order denying the City of Boise’s petition for rehearing

or rehearing en banc are published at 920 F.3d 584.

Pet. App. 1a–68a. The district court’s orders are

available at 993 F. Supp. 2d 1237 (D. Idaho 2014), and

2015 WL 5708586 (D. Idaho Sept. 28, 2015). Id.

at 69a–122a.

JURISDICTION

The Ninth Circuit issued its opinion on September

4, 2018, and issued an amended opinion and order

denying rehearing or rehearing en banc on April 1,

2019. On June 4, 2019, Justice Kagan extended the

time to file a petition for a writ of certiorari to and

including August 29, 2019. See No. 18A1264. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment to the Constitution

provides that “[e]xcessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII.

Relevant statutory provisions are reproduced in

the appendix to the petition. Pet. App. 123a–25a.

2

STATEMENT

The “primary purpose” of the Eighth Amendment’s

Cruel and Unusual Punishment Clause “has always

been considered, and properly so, to be directed at the

method or kind of punishment imposed for the

violation of criminal statutes.” Powell v. Texas,

392 U.S. 514, 531–32 (1968) (plurality op.). Although

the Clause “imposes substantive limits on what can be

made criminal and punished as such,” these limits are

“to be applied sparingly.” Ingraham v. Wright, 430

U.S. 651, 667 (1977). In fact, this Court has only ever

found a single statute to violate this aspect of the

Cruel and Unusual Punishment Clause. That statute

was notable in that it “ma[de] the ‘status’ of narcotic

addiction a criminal offense.” Robinson v. California,

370 U.S. 660, 666 (1962) (emphasis added).

The Ninth Circuit’s decision in this case vastly

expands the “sparingly applied” limits imposed by the

Cruel and Unusual Punishment Clause on “what can

be made criminal” through its holding “‘that the

Eighth Amendment prohibits the state from

punishing an involuntary act or condition if it is the

unavoidable consequence of one’s status or being.’”

Pet. App. 61a. The Ninth Circuit then applied this

principle—distilled from the four-Justice dissent in

Powell and a single-Justice opinion concurring in the

result—to Boise’s ordinances prohibiting camping and

sleeping in public spaces, concluding that enforcement

of these commonplace ordinances constitutes cruel

and unusual punishment if “‘there is a greater

number of homeless individuals in [a jurisdiction]

than the number of available beds [in shelters].’” Id.

at 62a (alterations in original).

This Court has never before declared a law

unenforceable on the ground that the Eighth

3

Amendment exempts from regulation purportedly

“involuntary” acts. On the contrary, it declined to do

so more than half a century ago. Writing for a

plurality of the Court, Justice Marshall explained that

“[t]raditional common-law concepts of personal

accountability and essential considerations of

federalism” preclude such an interpretation of the

Eighth Amendment.

Powell, 392 U.S. at 535

(plurality op.). Otherwise, there would be no “limiting

principle that would serve to prevent this Court from

becoming, under the aegis of the Cruel and Unusual

Punishment Clause, the ultimate arbiter of the

standards of criminal responsibility, in diverse areas

of the criminal law, throughout the country.” Id. at

533.

In addition to contradicting this Court’s precedent,

the decision below also creates a conflict among the

lower courts. Every other federal appellate court or

state supreme court to consider whether publiccamping ordinances violate the Cruel and Unusual

Punishment Clause has answered in the negative.

See Joel v. City of Orlando, 232 F.3d 1353 (11th Cir.

2000); Tobe v. City of Santa Ana, 892 P.2d 1145 (Cal.

1995).

Meanwhile, at least three other circuit

courts—including the First, Fourth, and Seventh

Circuits—have rejected the principle, embodied in the

Ninth Circuit’s ruling, that the Eighth Amendment

exempts “involuntary” conduct from generally

applicable criminal laws.

The consequences of the Ninth Circuit’s erroneous

decision have already been—and will continue to be—

far-reaching and catastrophic. The creation of a de

facto constitutional right to live on sidewalks and in

parks will cripple the ability of more than 1,600

municipalities in the Ninth Circuit to maintain the

4

health and safety of their communities. Public

encampments, now protected by the Constitution

under the Ninth Circuit’s decision, have spawned

crime and violence, incubated disease, and created

environmental hazards that threaten the lives and

well-being both of those living on the streets and the

public at large. The expansive rationale adopted by

the Ninth Circuit also imperils a whole host of other

laws regulating public health and safety, including

laws prohibiting public defecation and urination. Pet.

App. 19a–20a.

The constitutional rule adopted by the Ninth

Circuit is both nonsensical in theory and unworkable

in practice. As a result, in the wake of the decision

below, many municipalities have abandoned efforts to

contain the threats to public health and safety posed

by encampments rather than face litigation and

potential civil liability.

Stripped by the Ninth Circuit of their traditional

police powers, state and local governments now

struggle to connect those living anonymously and

transiently in sprawling encampments with resources

available to help them.

These resources are

substantial: Boise has raised millions of dollars to

construct new shelters for homeless individuals, and

Los Angeles voters recently approved more than $1.5

billion to construct supportive housing and expand

services for communities in need.

Meanwhile,

encampments provide a captive and concentrated

market for drug dealers and gangs who prey on the

vulnerable. It is thus no surprise that nearly 1,000

homeless people died on the streets last year in Los

Angeles County alone.

This Court should grant review and reverse the

Ninth Circuit’s decision in order to bring uniformity

5

to Eighth Amendment jurisprudence and to confirm

that it is the prerogative of state and local

governments—not federal courts—to regulate conduct

affecting public health and safety.

1. Like many cities and towns across the country,

the City of Boise, Idaho regulates the public’s ability

to camp or sleep overnight in its outdoor spaces,

including parks, trails, and sidewalks. Pet. App.

123a–25a. Such regulations are critical tools that

allow Boise to maintain its public spaces and to ensure

that these areas remain safe, accessible, and sanitary

for the continued use of residents, visitors, and

wildlife. Id. at 129a. Restrictions on public camping

and sleeping in these spaces are necessary because

many of Boise’s parks and open spaces, which are

adjacent to rivers, streams, and mountains, lack the

services and facilities—such as toilets and trash

collection systems—that are essential to support

secure and hygienic overnight lodging. Id.

The restrictions on public camping and sleeping

are also essential components of Boise’s effort to

address, and preempt, the proliferation of dangerous

encampments. Pet. App. 144a. These encampments,

which are often breeding grounds for crime, violence,

and disease, pose grave threats to public health and

safety. Id. For example, in 2014 a large encampment

took root in a City-owned skate park frequented by

Boise’s youth. Id. The encampment produced trash,

rotting food, and human waste. Id. at 147a–48a. It

also yielded a surge in citations for drug and alcohol

offenses, as well as a number of physical assaults

among campers.

Id. at 144a.

This violence

culminated in a murder perpetrated by one camper

who stomped, kicked, and punched another to death.

Id.

6

Boise has adopted two ordinances related to public

camping to fulfill its public health and safety duties.

First, the “Camping Ordinance” makes it a

misdemeanor “for any person to use any of the streets,

sidewalks, parks or public places as a camping place

at any time.” Boise, Idaho, City Code § 7-3A-2(A)

(renumbering Boise, Idaho, City Code § 9-10-02); Pet.

App. 124a–25a. “Camping” is defined to include “the

use of public property as a temporary or permanent

place of dwelling, lodging or residence, or as a living

accommodation at any time between sunset and

sunrise, or as a sojourn.” Pet. App. 124a. Second, the

“Disorderly Conduct Ordinance” prohibits “[a]ny

person” from “[o]ccupying, lodging or sleeping in any

building, structure or place, whether public or

private … without the permission of the owner or

person entitled to possession or in control thereof.”

Boise, Idaho, City Code § 5-2-3(A)(1) (renumbering

Boise, Idaho, City Code § 6-01-05); Pet. App. 123a–

24a.

Recognizing the homelessness crisis afflicting the

City, Boise has, for nearly a decade, maintained a

policy of not issuing a citation under these ordinances

to any individual who is camping or sleeping in a

public space when there is no available overnight

shelter for that individual. Pet. App. 132a, 137a. To

implement this policy, the Boise Police Department

has worked with the City’s three principal emergency

shelters to develop a system whereby a shelter will

notify the Police Department if it has become full by

11 p.m. on any night. Id. at 132a–34a. This “Shelter

Protocol” was formalized in 2014, when the City

Council amended the Camping and Disorderly

Conduct Ordinances to include provisions declaring

that “[l]aw enforcement officers shall not enforce this

[ordinance] when the individual is on public property

7

and there is no available overnight shelter.” Boise,

Idaho, City Code §§ 5-2-3(B)(1), 7-3A-2(B); Pet. App.

123a–24a, 124a–25a.

2. Plaintiffs are six individuals who were cited

and/or convicted under the Camping and Disorderly

Conduct Ordinances between 2007 and 2009. As a

result, they were fined between $25 and $75 and

sentenced to between 1 and 90 days in jail, although

all of the Plaintiffs, with one exception, were given

credit for time served.

On October 22, 2009, Plaintiffs filed a Complaint

against the City alleging that the Camping and

Disorderly Conduct Ordinances violated the Eighth

Amendment’s Cruel and Unusual Punishment

Clause. All six Plaintiffs sought retrospective money

damages, and two Plaintiffs also sought prospective

declaratory and injunctive relief.

After an initial round of litigation in both the

district court and at the Ninth Circuit, Boise moved

for summary judgment, arguing that the “favorabletermination” rule of Heck v. Humphrey, 512 U.S. 477

(1994)—which forbids a plaintiff from collaterally

attacking a conviction or sentence through a § 1983

action, id. at 487—barred Plaintiffs’ claims. The

district court agreed in part, holding that Plaintiffs’

claims for money damages and injunctive relief were

barred under Heck, but that their claims for

prospective declaratory and injunctive relief could

proceed because those claims arose not under § 1983,

but the Declaratory Judgment Act. Pet. App. 101a–

03a.

Plaintiffs filed an amended complaint on July 31,

2014, elaborating on their claims for prospective

declaratory and injunctive relief. The district court

granted Boise’s motion for summary judgment,

8

holding that Plaintiffs lacked standing to pursue their

claims for prospective relief because (1) Boise had

amended the ordinances to provide that it would not

cite any individual for public camping if no shelter bed

was available, and (2) no Plaintiff had “shown that he

cannot or will not stay in one or more of the available

shelters if there is space available, or that he has a

disability that prevents him from accessing shelter

space.” Pet. App. 71a. Accordingly, the court held

that Plaintiffs did not demonstrate an “actual or

imminent threat” that they would be cited under

either ordinance. Id. at 71a–72a.

3. The Ninth Circuit reversed the district court’s

orders in substantial part and remanded for further

proceedings.

First, the panel held that Plaintiffs had standing

to bring their claims for prospective relief. Although

the ordinances provided that they would not be

enforced when shelters are full, the court concluded

that some shelters may be “practically [un]available”

even if they have open beds. Pet. App. 65a. For

example, two of Boise’s shelters limit the duration of

an individual’s stay, such that Plaintiffs may be

unable to secure a bed even if the shelter is not full.

Id. at 47a. Similarly, those shelters may turn away

individuals even when they have open beds if those

individuals arrive outside of scheduled check-in times

or leave voluntarily and attempt to immediately

return. Id. at 47a–48a. Further, those shelters have

a “religious atmosphere” that includes “Christian

messaging on the shelter’s intake form” and

“Christian iconography on the shelter walls,” such

that, in the panel’s view, an individual cannot be

expected to accept a bed there in order to avoid

citation. Id. at 47a. As a result, the panel found “a

9

genuine issue of material fact as to whether homeless

individuals in Boise run a credible risk of being issued

a citation on a night when [the third shelter] is full

and they have been denied entry to [the other two]

facilit[ies] for reasons other than shelter capacity.” Id.

at 49a.

Second, the Ninth Circuit agreed with the district

court that most Plaintiffs’ claims for retrospective

relief were barred under Heck. But the court then

held, over the dissent of Judge Owens, that “Heck has

no application to plaintiffs’ requests for prospective

injunctive relief.” Pet. App. 58a.

After disposing of these issues, the Ninth Circuit

turned to the merits of Plaintiffs’ Eighth Amendment

claim. The Ninth Circuit explained that the Cruel and

Unusual Punishment Clause “places substantive

limits on what the government may criminalize” and

cited this Court’s decision in Robinson, 370 U.S. at

660, which struck down a statute outlawing the

“status” of being a narcotics addict. Pet. App. 59a–

60a. But because Robinson “did not explain at length

the principles underpinning its holding,” the court

turned to Powell, 392 U.S. at 514, which considered

whether a statute proscribing public drunkenness

violated the Eighth Amendment. Pet. App. 60a. The

Ninth Circuit acknowledged that Justice Marshall,

writing for a four-Justice plurality, held that it did not

because the statute “made criminal not alcoholism but

conduct”—even though that conduct may in some

sense be “‘involuntary’” for chronic alcoholics. Id. at

60a–61a.

Nevertheless, the Ninth Circuit held that Powell

compelled a finding for Plaintiffs. In doing so, it

looked to Justice White’s concurrence, which states

that, with respect to at least some people, “‘a showing

10

could be made that resisting drunkenness is

impossible and that avoiding public places when

intoxicated is also impossible,’” in which case “‘th[e]

statute is in effect a law which bans a single act for

which they may not be convicted under the Eighth

Amendment.’” Pet. App. 61a. Because “[t]he four

dissenting Justices adopted a position consistent with

that taken by Justice White,” the Ninth Circuit

concluded that “five Justices gleaned … the principle

that ‘the Eighth Amendment prohibits the state from

punishing an involuntary act or condition if it is the

unavoidable consequence of one’s status or being.’” Id.

Concluding that the amalgamated views of the

dissenting Justices and Justice White constituted the

true holding of Powell, the Ninth Circuit held that “‘so

long as there is a greater number of homeless

individuals in [a jurisdiction] than the number of

available beds [in shelters],’ the jurisdiction cannot

prosecute homeless individuals for ‘involuntarily

sitting, lying, and sleeping in public.’” Pet. App. 62a

(alterations in original).

The Ninth Circuit claimed that its decision was

“narrow” because it does not “‘dictate to the City that

it must provide sufficient shelter for the homeless.’”

Pet. App. 62a. The court also claimed that its holding

would not extend to “individuals who do have access

to adequate temporary shelter … but who choose not

to use it,” or to “an ordinance barring the obstruction

of public rights of way or the erection of certain

structures,” but it offered no guidance on how these

provisos may be operationalized in day-to-day law

enforcement. Id. at 62a–63a & n.8 (emphasis added).

For example, the court suggested that a shelter with

“Christian messaging on [its] intake form” or

“Christian iconography on [its] walls” would not be

11

“adequate” for a nonbeliever, id. at 47a, but did not

explain how police officers in practice could make

those fact-intensive determinations about shelters’

religious messaging and homeless persons’ religious

beliefs.

4. The Ninth Circuit denied rehearing en banc

over two separate dissents.

The first dissent,

authored by Judge Milan Smith and joined by five

other judges, explained that the panel’s attempt to

“metamorphosize[] the Powell dissent into the

majority opinion … defies logic” as well as this Court’s

decision in Marks v. United States, 430 U.S. 188

(1977). Pet. App. 9a. It then explained that the

“panel’s opinion also conflicts with the reasoning

underlying the decisions of other appellate courts”

that have rejected Eighth Amendment challenges to

laws banning similar purportedly involuntary

conduct. Id. at 12a.

Judge Smith’s dissent emphasized the disastrous

consequences of the court’s decision, which “leaves

cities with a Hobson’s choice: They must either

undertake an overwhelming financial responsibility

to provide housing for or count the number of

homeless individuals within their jurisdiction every

night, or abandon enforcement of a host of laws

regulating public health and safety.” Pet. App. 15a–

16a. Judge Smith said that this choice is illusory.

“Given the daily fluctuations in the homeless

population, the panel’s opinion would require this

labor-intensive task be done every single day.” Id. at

16a.

But performing a daily count would be

“impossible”: even with thousands of volunteers

devoting countless hours, it still takes three days to

perform an annual count in Los Angeles—and even

then “not everybody really gets counted.” Id.

12

Nor are the effects of the panel’s sweeping decision

limited to ordinances regulating public camping and

sleeping.

As Judge Smith emphasized, by

categorically “holding that the Eighth Amendment

proscribes the criminalization of involuntary conduct,

the panel’s decision will inevitably result in the

striking down of laws that prohibit public defecation

and urination.” Pet. App. 19a.

A second dissent from the denial of rehearing en

banc, authored by Judge Bennett and joined by four

other judges, argued that “except in extraordinary

circumstances not present in this case, and based on

its text, tradition, and original public meaning, the

Cruel and Unusual Punishments Clause of the Eighth

Amendment does not impose substantive limits on

what conduct a state may criminalize.” Pet. App. 26a.

Drawing from the sources cited in Justice Scalia’s

concurring opinion in Harmelin v. Michigan, 501 U.S.

957 (1991), Judge Bennett concluded that “[a]t

common law and at the founding,” the Cruel and

Unusual Punishment Clause was only “a limit on the

types of punishments that government could inflict

following a criminal conviction.” Pet. App. 34a. The

panel’s extension of that Clause “to encompass preconviction challenges to substantive criminal law

stretches the Eighth Amendment past its breaking

point.” Id. at 33a.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s decision is irreconcilable with

this Court’s precedent, which has never held that the

Eighth Amendment categorically exempts from

regulation purportedly “involuntary” conduct. It also

creates a conflict among the lower courts. The

California Supreme Court and the Eleventh Circuit

13

have upheld similar public-camping ordinances

against Eighth Amendment challenges, and the First,

Fourth, and Seventh Circuits have rejected

arguments that the Eighth Amendment exempts

purportedly involuntary conduct from generally

applicable criminal laws.

I. THE NINTH CIRCUIT’S DECISION CONFLICTS WITH

THIS COURT’S PRECEDENT.

The Ninth Circuit held that laws barring public

camping and sleeping are unconstitutional insofar as

they apply to “any ‘conduct [that] is involuntary and

inseparable from status.’” Pet. App. 62a. But this

Court has never held that the Constitution exempts

from generally applicable criminal laws any conduct

that is purportedly involuntary—and it has certainly

never struck down a law on that basis. On the

contrary, this Court’s caselaw confirms that the

authority of state and local governments to enforce

laws promoting public health, safety, and welfare is

not contingent upon inquiries into the voluntariness

of the regulated conduct.

In Robinson v. California, 370 U.S. 660 (1962), the

Court considered the constitutionality of a California

law providing that “[n]o person shall … be addicted to

the use of narcotics.” Id. at 660 n.1. The Court

emphasized that the statute “[wa]s not one which

punishes a person for the use of narcotics, for their

purchase, sale or possession, or for antisocial or

disorderly

behavior

resulting

from

their

administration,” but rather “ma[de] the ‘status’ of

narcotic addiction a criminal offense, for which the

offender may be prosecuted ‘at any time before he

reforms.’” Id. at 666. Analogizing narcotics addiction

to “an illness which may be contracted innocently or

14

involuntarily,” the Court “h[e]ld that a state law

which imprisons a person thus afflicted as a criminal,

even though he has never touched any narcotic drug

within the State or been guilty of any irregular

behavior there, inflicts a cruel and unusual

punishment in violation of the Fourteenth

Amendment.” Id. at 667.

Six years later, the Court considered whether to

extend Robinson to cases involving purportedly

involuntary conduct, but declined to do so. In Powell

v. Texas, 392 U.S. 514 (1968), the defendant had been

convicted for violating a state law proscribing public

drunkenness. Id. at 517. The trial court found the

defendant was a chronic alcoholic who was unable “to

resist the constant, excessive consumption of alcohol”

and was drunk in public not “by his own volition but

under a compulsion symptomatic of the disease of

chronic alcoholism.” Id. at 521. Likening his case to

Robinson, the defendant argued that because his

conduct was not volitional and flowed from his

disease, “to punish him criminally for that conduct

would be cruel and unusual.” Id. at 517.

The Court disagreed and affirmed the defendant’s

conviction, but no opinion garnered a majority.

Writing for a four-Justice plurality, Justice Marshall

described Robinson’s holding as turning on a

distinction between status and conduct:

The entire thrust of Robinson’s interpretation

of the Cruel and Unusual Punishment Clause

is that criminal penalties may be inflicted only

if the accused has committed some act, has

engaged in some behavior which society has an

interest in preventing, or perhaps in historical

common law terms, has committed some actus

reus. It thus does not deal with the question of

15

whether

certain

conduct

cannot

constitutionally be punished because it is, in

some sense, “involuntary” or “occasioned by a

compulsion.”

392 U.S. at 533 (plurality op.). Because the statute in

Powell “ha[d] not sought to punish a mere status,” but

rather “imposed upon [the defendant] a criminal

sanction for public behavior which may create

substantial health and safety hazards, both for [the

defendant] and for members of the general public, and

which offends the moral and esthetic sensibilities of a

large segment of the community,” id. at 532, the

statute did not contravene Robinson.

In reaching this conclusion, Justice Marshall

warned of the practical implications that would

attend a broader reading of Robinson, emphasizing

that “the most troubling aspects of this case, were

Robinson to be extended to meet it, would be the scope

and content of what could only be a constitutional

doctrine of criminal responsibility.” Id. at 534. For

example, “[i]f [the defendant] cannot be convicted of

public intoxication, it is difficult to see how a State can

convict an individual for murder, if that individual,

while exhibiting normal behavior in all other respects,

suffers from a ‘compulsion’ to kill.” Id. Even if it were

possible to distinguish among particular categories of

behavior, the courts are ill-suited to the task. As

Justice Marshall explained, “unless Robinson is so

viewed it is difficult to see any limiting principle that

would serve to prevent this Court from becoming,

under the aegis of the Cruel and Unusual Punishment

Clause, the ultimate arbiter of standards of criminal

responsibility, in diverse areas of the criminal law,

throughout the country.” Id. at 533. Such a result

would be irreconcilable with “[t]raditional common-

16

law concepts of personal accountability and essential

considerations of federalism.” Id. at 535.

Justice Black wrote a concurring opinion in which

Justice Harlan joined. He agreed with the plurality

that Robinson was “explicitly limited … to the

situation where no conduct of any kind is involved.”

Id. at 542 (Black, J., concurring). According to Justice

Black, the “revolutionary doctrine of constitutional

law” advocated by the defendant would “significantly

limit the States in their efforts to deal with a

widespread and important social problem” and would

take the Court “far beyond the realm of problems for

which we are in a position to know what we are

talking about.” Id. at 537–38. Justice Black thus

declined to “depart[] from … the premise that

experience in making local laws by local people

themselves is by far the safest guide for a nation like

ours to follow.” Id. at 548.

The Ninth Circuit’s decision cannot be reconciled

with Robinson or the plurality or concurring opinions

in Powell. Boise’s ordinances are generally applicable

laws that regulate conduct, not status. Such laws

undoubtedly serve compelling public interests,

including the maintenance of public health and

safety—not just for the public at large, but for those

living on the streets, as well. And the decision below

presents precisely the practical difficulties Justice

Marshall feared, thrusting federal courts into a new

role as “the ultimate arbiter of standards of criminal

responsibility,” while upending long-established

concepts of “personal accountability and essential

considerations of federalism.” Powell, 392 U.S. at 533,

535 (plurality op.).

The Ninth Circuit, however, refused to follow the

plurality opinion in Powell, and instead located its

17

novel constitutional rule in Justice White’s opinion

concurring in the result in Powell, which provided the

fifth vote to uphold the defendant’s conviction. In that

opinion, Justice White appeared to agree with the

view of Robinson articulated in Justice Fortas’s fourJustice dissent, reasoning that “[i]f it cannot be a

crime to have an irresistible compulsion to use

narcotics, I do not see how it can constitutionally be a

crime to yield to such a compulsion.” Id. at 548

(White, J., concurring in the result) (citation omitted);

see also id. at 567 (Fortas, J., dissenting). According

to the Ninth Circuit, these “five Justices gleaned from

Robinson the principle that ‘the Eighth Amendment

prohibits the state from punishing an involuntary act

or condition if it is the unavoidable consequence of

one’s status or being.’” Pet. App. 61a. It was this

principle, the Ninth Circuit concluded, that provided

the governing rule under the Eighth Amendment. Id.

at 62a.

Even if the Ninth Circuit was correct to derive a

sweeping rule of constitutional law from a position

adopted by a dissent, the court still erred because

Justice White’s purported support for the dissent’s

view of Robinson was irrelevant to his disposition of

the case. As Justice White explained, “[w]hether or

not [the defendant] established that he could not have

resisted becoming drunk …, nothing in the record

indicates that he could not have done his drinking in

private.” Powell, 392 U.S. at 552–53 (White, J.,

concurring in the result) (emphasis added). Thus,

irrespective of Justice White’s discussion of the

broader implications of Robinson, “[f]or purposes of”

Powell itself, it was “necessary to say only that [the

defendant] showed nothing more than that he was to

some degree compelled to drink and that he was

drunk at the time of his arrest. He made no showing

18

that he was unable to stay off the streets on the night

in question.” Id. at 554–55.

This Court has never suggested that Justice

White’s single-Justice concurring opinion in Powell

provides a rule of constitutional dimension under the

Cruel and Unusual Punishment Clause. On the

contrary, “Powell turned out to be the end of the

Court’s flirtation with the possibility of a

constitutional criminal law doctrine.” Sanford H.

Kadish, Fifty Years of Criminal Law: An Opinionated

Review, 87 Cal. L. Rev. 943, 966 (1999). That

flirtation ended where it began—with the power to

regulate conduct, including purportedly involuntary

conduct, reposed in state and local authorities. Thus,

“Robinson, though of great theoretical interest, has no

practical importance today” because “[n]othing has

come of it, and th[is] Court has not gone on to find a

‘voluntary act’ principle in the Constitution.” Peter

W. Low, Criminal Law 361 (1990). As Professor

Kadish has explained, although “[t]he Robinson

decision could plausibly have been seen as a vital

opening toward establishing lack of self-control as a

constitutional bar to punishment,” “[j]ust a half dozen

years later the Court closed the door … reject[ing] the

broader reading of Robinson that one could not be

punished for what is beyond one’s power of control.”

Kadish, Fifty Years of Criminal Law, 87 Cal. L. Rev.

at 965–66.

The Ninth Circuit’s decision in this case reopens

the door this Court closed more than half a century

ago. That decision is not only inconsistent with this

Court’s precedent, but presents the intolerable

practical consequences foreseen by Justice Marshall.

19

II. THE NINTH CIRCUIT’S DECISION CREATES A

CONFLICT AMONG THE LOWER COURTS.

The Ninth Circuit’s decision also creates a conflict

among the lower courts. Every other federal appellate

court or state supreme court to consider the

constitutionality of public-camping laws against

Eighth Amendment challenges has upheld the laws.

Moreover, the Ninth Circuit’s interpretation of

Robinson and Powell creates a three-way split on the

broader question whether involuntary conduct can

ever be punished consistent with the Cruel and

Unusual Punishment Clause.

A. The California Supreme Court and the

Eleventh Circuit have upheld laws virtually identical

to Boise’s ordinances against virtually identical

attacks under the Cruel and Unusual Punishment

Clause. If this case were before either of those courts,

the outcome would have been different.

In Tobe v. City of Santa Ana, 892 P.2d 1145 (Cal.

1995), the California Supreme Court upheld an

ordinance making it “‘unlawful for any person to

camp, occupy camp facilities or use camp

paraphernalia in … any street [or] any public parking

lot or public area.’” Id. at 1150. As the court

explained, “[t]he ordinance permits punishment for

proscribed conduct, not punishment for status,” id. at

1166, and thus does not contravene the Eighth

Amendment. Although the California Court of Appeal

had held that the ordinance “imposed punishment for

the ‘involuntary status of being homeless,’” id., the

California Supreme Court emphasized that “[n]o

authority [wa]s cited for the proposition that an

ordinance which prohibits camping on public property

punishes the involuntary status of being homeless or

… is punishment for poverty,” and recognized that

20

this “Court has not held that the Eighth Amendment

prohibits punishment of acts derivative of a person’s

status,” id. And although Tobe involved a facial

challenge, subsequent decisions have applied it to asapplied challenges, as well. See Allen v. City of

Sacramento, 183 Cal. Rptr. 3d 654, 670–71 (Cal. Ct.

App. 2015) (“Sacramento’s ordinance punishes the act

of camping, occupying camp facilities, and using camp

paraphernalia, not homelessness. … Because the

Eighth Amendment does not prohibit the punishment

of acts, plaintiffs’ challenge based on cruel and

unusual punishment lacks merit” (citations omitted)).

The Eleventh Circuit reached a similar result in

Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000),

where it considered the constitutionality of a city

ordinance providing that “[c]amping is prohibited on

all public property, except as may be specifically

authorized by the appropriate governmental

authority.” Id. at 1356. As the court explained, “[a]

distinction exists between applying criminal laws to

punish conduct, which is constitutionally permissible,

and applying them to punish status, which is not.” Id.

at 1361. Under this framework, the court “h[e]ld that

[the ordinance] does not violate the Eighth

Amendment.” Id. at 1362.

The Ninth Circuit acknowledged the holding in

Joel, but attempted to distinguish that case on the

ground that, there, “the defendants presented

unrefuted evidence that the homeless shelters in the

City of Orlando had never reached capacity and that

the plaintiffs had always enjoyed access to shelter

space.” Pet. App. 63a–64a n.9. But this was not the

basis for the Eleventh Circuit’s holding. Rather, the

Eleventh Circuit relied on the fact that the ordinance

“target[ed] conduct, and d[id] not provide criminal

21

punishment based on a person’s status”—expressly

citing Justice Marshall’s plurality opinion in Powell.

Joel, 232 F.3d at 1362.

The court raised the

availability of shelter only in explaining why the

position adopted by certain district courts, which had

held that involuntary conduct could not be punished

under the Eighth Amendment, would not help the

challenger under the facts presented: “[E]ven if we

followed the reasoning of the district courts in

Pottinger and Johnson this case is clearly

distinguishable” because “[t]he ordinance in question

here does not criminalize involuntary behavior”

insofar as “the availability of shelter space means that

Joel had an opportunity to comply with the

ordinance.” Id. (emphasis added).

In short, every other appellate court to consider

challenges to public-camping laws under the Cruel

and Unusual Punishment Clause has upheld the

laws. The Ninth Circuit is the only court to reach a

contrary conclusion. This, standing alone, warrants

the Court’s review.

B. The

Ninth

Circuit’s

unprecedented

interpretation of the Eighth Amendment also conflicts

with decisions from the First, Fourth, and Seventh

Circuits, which together with the Ninth Circuit have

now adopted three different conclusions regarding

whether involuntariness can ever serve as a basis for

an exemption from generally applicable laws.

1. At least two circuits have rejected the

argument that purportedly “involuntary” conduct is

exempt from generally applicable criminal laws.

The First Circuit in United States v. Sirois, 898

F.3d 134 (1st Cir. 2018), considered whether the

Eighth Amendment “precludes incarceration for [the

defendant’s] use of illegal drugs because that use is

22

compelled by his addiction, which is a disease.” Id. at

137. Although the defendant relied on Justice White’s

concurrence in Powell, the First Circuit reasoned that

“Justice White’s Powell concurrence is both good news

and bad news for [the defendant].” Id. at 138. While

that opinion “express[es] skepticism that the

compulsive use of narcotics can even be a crime,” “it is

only a concurring opinion” and, “[e]ven worse, it is one

that has yet to gain any apparent relevant traction, as

[the defendant] is unable to point us to any federal

court of appeals case in the fifty years since the Court

decided Powell and Robinson that has either

interpreted those cases to hold that the Eighth

Amendment proscribes criminal punishment for

conduct that results from narcotic addiction, or has

extended their reasoning to this effect.”

Id.

Ultimately, the First Circuit concluded that

“[w]hatever Powell holds, it does not clearly establish

a prohibition on punishing an individual, even an

addict, for possessing or using narcotics.” Id.

The Seventh Circuit has reached a similar

conclusion. In United States v. Black, 116 F.3d 198

(7th Cir. 1997), that court rejected the defendant’s

argument that his child-pornography conviction

violated the Cruel and Unusual Punishment Clause

“because as a pedophile or ephebophile he [wa]s

compelled to collect, receive and distribute child

pornography” as “‘a pathological symptom of [his]

pedophilia and/or ephebophilia.’”

Id. at 201

(alteration in original). Although the “[d]efendant’s

principal reliance [wa]s on the concurring opinion of

Justice White in Powell,” the court explained that

“since no other Justice joined in that opinion, it need

not be discussed further.” Id. at 201 n.2. It then

upheld the conviction, reasoning that “Robinson is

simply inapposite on its face because the statutes

23

involved here do not criminalize the statuses of

pedophile or ephebophile” but rather the “conduct of

receiving, possessing and distributing child

pornography.” Id. at 201; see also United States v.

Stenson, 475 F. App’x 630, 631 (7th Cir. 2012) (“As in

Powell, Stenson was not punished for his status as an

alcoholic but for his conduct. Therefore, his claim for

cruel and unusual punishment fails.”).

2. The en banc Fourth Circuit, on the other hand,

recently held that involuntary conduct may be exempt

from punishment under the Cruel and Unusual

Punishment Clause, but only when the law at issue is

not a generally applicable law, but rather one that

targets individuals for whom the proscribed conduct

is involuntary.

In Manning v. Caldwell, 930 F.3d 264 (4th Cir.

2019) (en banc), the Fourth Circuit considered a

Virginia law that permitted state courts to issue “civil

interdiction order[s] ‘prohibiting the sale of alcoholic

beverages … until further ordered’ to a person who

‘has been convicted of driving … while intoxicated or

has shown himself to be an habitual drunkard.’” Id.

at 268 (omissions in original). “Once declared an

‘habitual drunkard,’ an interdicted person is subject

to incarceration for the mere possession of or attempt

to possess alcohol, or for being drunk in public.” Id. at

269.

After concluding that the term “habitual

drunkard” was unconstitutionally vague, id. at 277–

78, the Fourth Circuit held in the alternative that the

law violated the Eighth Amendment. As the court

emphasized, however, “[w]hat matters under the

Eighth Amendment is that Plaintiffs allege that the

Commonwealth has singled them out for special

punishment for otherwise lawful conduct that is

24

compelled by their illness.” Id. at 281 n.14. The court

conceded that “[a] state undoubtedly has the power to

prosecute individuals, even those suffering from

illnesses, for breaking laws that apply to the general

population … because such laws—even when enforced

against sick people—reflect a state’s considered

judgment that some actions are so dangerous or

contrary to the public welfare that they should lead to

criminal liability for everyone who commits them.” Id.

at 284–85 (emphases in original). But it held that

“[w]hat the Eighth Amendment cannot tolerate is the

targeted criminalization of otherwise legal behavior

that is an involuntary manifestation of an illness.” Id.

at 285 (emphasis in original).1

Even this narrower interpretation of Justice

White’s concurrence in Powell sparked an

impassioned, six-judge dissent authored by Judge

Wilkinson, who excoriated the majority for

“f[inding]—in the Eighth Amendment’s prohibition on

‘cruel and unusual’ punishments, of all places—

constitutional protection for any act that is alleged to

be ‘non-volitional.’” Id. at 286–87 (Wilkinson, J.,

dissenting). The dissent characterized the decision as

“an assault upon the constitutional, democratic, and

common law foundations of American civil and

criminal law, and most importantly, to the judge’s

place within it.” Id. at 287. And in adopting this view,

the court “discarded any pretense of a workable

limiting principle, expanded the Eighth Amendment

1

Virginia has announced that it will not petition for certiorari

from the Fourth Circuit’s decision. See Virginia Won’t Appeal

Ruling Tossing ‘Habitual Drunkard’ Law (Wash. Post. Aug. 2,

2019), https://www.washingtonpost.com/national/virginia-wontappeal-ruling-tossing-habitual-drunkard-law/2019/08/02/

b932e504-b552-11e9-acc8-1d847bacca73_story.html.

25

beyond any discernible limits, and overturned sixty

years of controlling Supreme Court precedent.” Id.

This “new theory of the Eighth Amendment,” Judge

Wilkinson warned, “will foreclose a state’s ability to

take reasonable steps to protect its citizens from

serious and long recognized harms.” Id.

But the disagreements between the majority and

the dissent are immaterial for present purposes

because Boise’s ordinances survive even under the

majority’s rule. Unlike the civil-interdiction regime at

issue in Manning, the ordinances here are generally

applicable criminal laws that do not target a specific

subset of the population based on their involuntary

conduct: it is illegal for anyone to camp on the City’s

sidewalks and in its parks. And because the Fourth

Circuit made clear that its “holding neither creates

nor supports the notion of a nonvolitional defense

against generally applicable crimes,” id. at 285

(majority op.), the ordinances here would have been

upheld by that court.

3. The Ninth Circuit stands alone in holding “‘that

the Eighth Amendment prohibits the state from

punishing an involuntary act or condition if it is the

unavoidable consequence of one’s status or being.’”

Pet. App. 61a. Unlike the First and Seventh Circuits,

the Ninth Circuit has abandoned the act-status

distinction adopted in Robinson and by the Powell

plurality in favor of a broader voluntariness principle

attributed to Justice White’s concurrence in Powell.

And unlike the Fourth Circuit, the Ninth Circuit has

held that it is irrelevant whether the law at issue is

one of general application or rather one that targets a

specific subset of the population.

26

*

*

*

If this case were decided in any of the jurisdictions

discussed above, Boise’s ordinances would have been

upheld. But because the Ninth Circuit has adopted

an unprecedented approach to the Cruel and Unusual

Punishment Clause that departs from other courts

with respect to public-camping laws specifically, and

involuntary conduct generally, Boise—and all other

municipal governments in the nine States and two

territories in the Ninth Circuit—now finds itself

powerless to enforce laws that fall within the core of

its police power. This Court should grant certiorari to

restore

uniformity

to

Eighth

Amendment

jurisprudence. And, as explained below, it should

especially do so given the calamitous consequences

that will follow if the decision below is allowed to

stand.

III.

THE NINTH CIRCUIT’S DECISION UNDERMINES

THE ABILITY OF STATE AND LOCAL

GOVERNMENTS TO PROTECT PUBLIC HEALTH

AND SAFETY AND IS UNWORKABLE IN

PRACTICE.

Although the Ninth Circuit’s decision purports to

be “narrow,” Pet. App. 62a, its far-reaching

consequences are already being felt across the

country. As Judge Smith correctly predicted, the

panel’s opinion “has begun wreaking havoc on local

governments, residents, and businesses” and, if not

reversed, “will soon prevent local governments from

enforcing a host of … public health and safety laws.”

Id. at 6a.

27

A. The Decision Below Paralyzes State And

Local Governments’ Ability To Protect

Public Health And Safety.

Under the Ninth Circuit’s decision, state and local

governments may not enforce public-camping laws

against any individual unless and until they provide

adequate shelter space to house all individuals. Yet

in virtually every city of considerable size—such as

Los Angeles, San Francisco, Portland, and Seattle—

this will prove an impossible task because the number

of homeless individuals vastly surpasses the current

supply of housing and emergency shelter. In Los

Angeles County, for example, there are nearly 22,000

shelter beds available, but the homeless population

approaches 60,000.2 The practical effect of the Ninth

Circuit’s decision, then, is to create a de facto

constitutional right to live on public sidewalks and in

public parks.

The Ninth Circuit’s decision is understandably

causing alarm in communities across the West. Its

all-or-nothing rule undercuts local governments’

ability to safeguard public health and safety and

ensures that homeless encampments will proliferate

throughout our cities and towns. These encampments

pose grave threats not only to the health and safety of

the general public, but also to the safety and physical,

mental, and emotional well-being of the vulnerable

populations who reside—and are often trapped—in

them.

The homeless living on city streets are a frequent

target of violent crime. An encampment in Boise

2

2019 Greater L.A. Homelessness Count Presentation, L.A.

Homeless Servs. Auth. 6–7 (2019).

28

created an increase in crime and violence, including

drug and alcohol offenses, physical assaults, and even

a homicide. Pet. App. 143a–44a, 147a–48a. Boise is

not alone. Crimes against the homeless in Los

Angeles spiked between 2017 and 2018: robbery

increased by 89%, larceny by 86%, and rape by 71%.3

This is to say nothing of the agonies suffered by often

helpless homeless individuals who suffer from

untreated

physical,

mental,

and

emotional

conditions.4 Such individuals are dying in record

numbers—in 2018 alone, 918 homeless individuals in

Los Angeles County, 210 in Orange County, and 194

in King County (which includes Seattle) died on the

streets.5

Criminals not only prey on these homeless

populations, but also hide among them. In Seattle,

police recently confiscated “over $20,000 in cash,

nearly a pound of crack cocaine, heroin,

methamphetamine, marijuana, pills,” as well as

3

Commander Dominic H. Choi, L.A. Police Dep’t, The Los

Angeles Police Department’s 2018 4th Quarter Report on

Homelessness 2 (2019).

4

Eric Johnson, Komo News Special: Seattle is Dying (KOMO

News Mar. 14, 2019), https://komonews.com/news/local/komonews-special-seattle-is-dying.

5

King Cnty. Med. Examiner, 2018 Annual Summary of Deaths

Among Individuals Presumed to be Homeless and Investigated by

the King County Medical Examiner’s Office 1 (2019); Orange

Cnty. Sheriff’s Dept., Coroner Division Homeless Mortality

Report 2014–2018 7 (2019); Anna Gorman & Harriet Blair

Rowan, The Homeless Are Dying in Record Numbers on the

Streets of Los Angeles (U.S. News & World Report Apr. 23, 2019),

https://www.usnews.com/news/healthiest-communities/

articles/2019-04-23/homeless-dying-in-record-numbers-on-thestreets-of-los-angeles.

29

firearms, other weapons, and stolen goods from a drug

ring run in part out of tents in encampments.6 In Los

Angeles, gangs engage in sex trafficking and “hid[e] in

plain sight” in tents on “Skid Row”—a locale where

“more than a quarter” of women have reported being

sexually assaulted—in order to “prey on many who

live [t]here looking for services and help.”7

The encampments now protected by the Ninth

Circuit’s decision have also contributed to a growing

public health crisis by serving as incubators for

diseases such as typhus, typhoid fever, and

tuberculosis.8 In Los Angeles, mountains of trash,

rotting food, and human waste around encampments

have contributed to a rodent infestation that, in turn,

has precipitated a sharp rise in flea-borne typhus—up

from 18 cases in 2009 to 174 in 2018.9 In Seattle,

6

Seattle police bust drug rings in homeless camps (KOMO News

May 15, 2019), https://komonews.com/news/local/seattle-policebust-drug-rings-in-homeless-camps.

7

Lolita Lopez & Phil Dreschler, Gangs of LA on Skid Row (NBC

Los Angeles Feb. 19, 2018), https://www.nbclosangeles.com/

news/local/Gangs-of-LA-on-Skid-Row-474531353.html;

Gale

Holland, Attacked, abused and often forgotten: Women now make

up 1 in 3 homeless people in L.A. County (L.A. Times Oct. 28,

2016),

https://www.latimes.com/projects/la-me-homelesswomen/.

8

Anna Gorman & Kaiser Health News, Medieval Diseases Are

Infecting California’s Homeless (The Atlantic Mar. 8, 2019),

https://www.theatlantic.com/health/archive/2019/03/typhustuberculosis-medieval-diseases-spreading-homeless/584380/.

9

Cal. Dep’t of Pub., Health, Human Flea-Borne Typhus Cases in

Cal. 1 (2019); Dakota Smith & David Zahniser, Filth from

homeless camps is luring rats to L.A. City Hall, report says (L.A.

Times June 3, 2019), https://www.latimes.com/local/lanow/la-

30

“crowded conditions with poor hygiene and

sanitation” have contributed to “outbreaks of Group A

Streptococcus, shigella, and a rare group of infections

transmitted by body lice.”10 And Portland has seen an

uptick in HIV among the homeless, which has been

attributed to “the rise of cheap accessible

methamphetamine and heroin, and an increase in

people who use the drugs to manage life on the

streets.”11 An outbreak of hepatitis A that infected

more than 500 Californians originated in an

encampment in San Diego, where it killed 19 people,

most of whom were homeless.12

Encampments also pose significant environmental

hazards. The devastating Skirball fire that ripped

through parts of Los Angeles in December 2017,

burning roughly 400 acres, started as a cooking fire at

me-ln-rats-homelessness-city-hall-fleas-report-20190603story.html.

10

Vianna Davila & Jonathan Martin, Rare infectious diseases are

rising at an ‘alarming’ rate in Seattle’s homeless population,

concerning health officials (Seattle Times Mar. 15, 2018),

https://www.seattletimes.com/seattle-news/homeless/infectiousdisease-oubreaks-in-seattle-homeless-people-concern-healthofficials/.

11

Molly Harbarger, Spike in Multnomah County HIV cases tied

to

drug

use

(Oregonian

June

20,

2019),

https://www.oregonlive.com/health/2019/06/spike-inmultnomah-county-hiv-cases-tied-to-drug-use.html.

12

Scott Wilson, Hepatitis A outbreak among homeless a

byproduct of California’s housing crunch (Wash. Post Oct. 25,

2017),

https://www.washingtonpost.com/national/hepatitis-aoutbreak-among-homeless-a-byproduct-of-californias-housingcrunch/2017/10/25/e9038a62-acf9-11e7-be94fabb0f1e9ffb_story.html?utm_term=.26e72d4fdd04.

31

an encampment near the Bel-Air neighborhood.13 In

Orange County, a February 2018 clean-up of a twomile-long encampment that had hosted more than 700

people uncovered “404 tons of debris, 13,950 needles,

and 5,279 pounds of waste,” including human waste,

propane, and pesticides.14 The clean-up site was “part

of a flood control channel” where debris could have

easily contaminated the water supply. And in San

Francisco, hundreds of thousands of used needles

litter the city’s streets—“164,264 needles [were

recovered] in August [2018] alone.”15 Along with these

syringes, so much human waste has accumulated on

the streets that the city has established a “proactive

human waste” unit to clean it up daily, appropriating

over $830,977 to tackle the city’s “feces problem.”16

Cities and towns across the Ninth Circuit have

been sensitive to the problems afflicting their growing

13

Jennifer Medina, Los Angeles Fires Started in Homeless

Encampment, Officials Say (N.Y. Times Dec. 12, 2017),

https://www.nytimes.com/2017/12/12/us/california-firehomeless.html.

14

Anh Do, ‘Eye-popping’ number of hypodermic needles, pounds

of waste cleared from Orange County riverbed homeless

encampment

(L.A.

Times

Mar.

10,

2018),

https://www.latimes.com/local/lanow/la-me-ln-riverbed-debris20180310-story.html.

15

Thomas Fuller, Life on the Dirtiest Block in San Francisco

(N.Y. Times Oct. 8, 2018), https://www.nytimes.com/

2018/10/08/us/san-francisco-dirtiest-street-london-breed.html.

16

Id.; Aria Bendix, San Francisco has a ‘Poop Patrol’ to deal with

its feces problem, and workers make more than $184,000 a year

in salary and benefits (Bus. Insider Aug. 24, 2018),

https://www.businessinsider.com/san-francisco-poop-patrolemployees-make-184000-a-year-2018-8.

32

homeless populations and have acted in publicly

minded ways to address these issues, including by

dedicating vast sums to build shelters and working

with service organizations to ensure homeless

individuals have access to the care they need.17 Yet

the Ninth Circuit’s decision ensures that these

conditions will persist—and worsen—in each of the

Ninth Circuit’s more than 1,600 municipalities unless

and until those cities can provide enough beds to

shelter every person within their boundaries. But

nothing in the Constitution or this Court’s precedent

requires cities to surrender their streets, sidewalks,

parks, riverbeds, and other public areas to vast

encampments and thereby abdicate their duty to

provide clean, safe, and accessible public spaces to all

residents. On the contrary, this Court has long

recognized that the heartland of local governments’

police power includes “such reasonable regulations …

as will protect the public health and the public safety.”

Jacobson v. Mass., 197 U.S. 11, 25 (1905). And there

is simply nothing to “justify a court in interfering with

so salutary a power and one so necessary to the public

health.” Hutchinson v. City of Valdosta, 227 U.S 303,

308 (1913).

B. The

Ninth

Circuit’s

Decision

Unworkable And Nonsensical.

Is

Through its sweeping interpretation of the Eighth

Amendment, the Ninth Circuit has arrogated to

federal courts the power to oversee the use of city

streets, parks, and other public areas. Even if that

17

Tracking

HHH,

L.A.

Office

of

the

Mayor,

https://www.lamayor.org/HomelessnessTrackingHHH

(describing Los Angeles’ $1.2 billion bond measure aimed at

building 10,000 units of housing); About, New Path Community

Housing, http://www.newpathboise.org/.

33

were proper (it is not), the rule imposed by the Ninth

Circuit for carrying out the traditional functions of

city councils and town halls is ill-defined and

unworkable in practice, raising more questions than

it answers. Indeed, in the wake of the decision below,

cities such as Portland, Oregon and Thousand Oaks,

California have given up even trying to enforce their

public-camping laws in light of the unworkable

administrative morass created by the Ninth Circuit.18

To take one example, the Ninth Circuit’s decision

bars the enforcement of laws against public camping

or sleeping unless shelter is “practically available.”

Pet. App. 65a. But the court gives virtually no

guidance as to what that term means. The decision

assumes that the only relevant form of shelter is a

formal service provider with beds that are deemed

acceptable by the individual. But what about other

forms of shelter, such as the home of a friend or

relative? The court also held that some shelters,

despite having beds available, may not be “practically

available” because the shelter has certain rules or

features by which individuals may be unwilling to

abide, such as check-in times, limitations on the

duration of one’s stay, restrictions on ingress and

egress, or religious “messaging on the shelter’s intake

form” and “iconography on the shelter walls.” Id.

at 47a. If so, what other attributes may render a

18

Code change is just first step to help homeless (Thousand

Oaks Acorn July 18, 2019), https://www.toacorn.com/articles/

code-change-is-just-first-step-to-help-homeless/; Maggie Vespa,

Portland police will not cite homeless for sleeping on streets, citing

court

ruling

(KGW

8

Sept.

7,

2018),

https://www.kgw.com/article/news/local/homeless/portlandpolice-will-not-cite-homeless-for-sleeping-on-streets-citingcourt-ruling/283-591977968.

34

shelter unfit? The Ninth Circuit does not say, leaving

the details of its novel scheme to be resolved through

endless litigation in federal courts instead of through

local democratic deliberation. The court’s silence

leaves cities and counties paralyzed, unable or

unwilling to act out of fear of substantial liability.

Similarly, the Ninth Circuit’s decision provides no

guidance on the methods a jurisdiction should use to

ascertain the number of beds available for homeless

individuals on a given night. For instance, how often

must such counts be performed—nightly, monthly,

annually, or at some other interval? And who should

count as “hav[ing] access to adequate temporary

shelter”? Pet. App. 62a n.8. Here, for example, one

Plaintiff conceded that he had a job and money, and

camped only because he “do[es]n’t like to pay rent”

and “shelters suck.” Id. at 140a. Another Plaintiff

was cited while visiting his family in Boise. Id. at

40a–41a. Should these individuals be included in

calculating the number of shelter beds a city must

provide before enforcing laws regulating public

camping and sleeping? The court is again silent,

exposing cities who do attempt to comply with the

court’s newfound framework subject to lawsuits

seeking substantial monetary and other relief. Id. at

17a.

More fundamentally, the Ninth Circuit’s holding

simply does not make sense. Under the all-or-nothing

rule adopted below, a city may not enforce laws

regulating public camping or sleeping against

anybody unless shelter is “practically available” to

everybody. But why should the inability of a large city

such as Los Angeles to provide shelter for each of the

more than 60,000 homeless individuals within its

35

borders prevent it from requiring any individual to

accept available shelter?

While the Ninth Circuit claims that its decision is

a “narrow” one, limited to laws regulating public

camping or sleeping, it will not remain so for long. As

Judge Smith accurately observed, the “logic of the

panel’s opinion reaches even further in scope,”

imperiling “laws that prohibit public defecation and

urination” and rendering cities “powerless to assist

residents lodging valid complaints about the health

and safety of their neighborhoods.” Pet. App. 19a.

One district court has already applied the Ninth

Circuit’s logic to invalidate a statutory scheme

requiring sex offenders to secure a “qualifying host

site” before serving a term of supervised release.

Murphy v. Raoul, 380 F. Supp. 3d 731, 763–65 (N.D.

Ill. 2019). Similar decisions are sure to follow without

this Court’s intervention.

CONCLUSION

The Ninth Circuit’s decision misapplies and

radically expands this Court’s precedent, creates

conflicts with five other circuit or state supreme

courts, and stretches the Eighth Amendment beyond

recognition. In doing so, it eliminates the ability of

state and local governments to protect the health and

safety of their residents. And it is already having

devastating consequences. This Court should grant

review, reverse the Ninth Circuit’s decision, and

restore the traditional police powers of cities and

States to regulate these critical local issues.

36

Respectfully submitted.

THEODORE B. OLSON

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

tolson@gibsondunn.com

THEANE D. EVANGELIS

Counsel of Record

BRADLEY J. HAMBURGER

JOSEPH TARTAKOVSKY

SAMUEL ECKMAN

WILLIAM F. COLE

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tevangelis@gibsondunn.com

Counsel for Petitioner

August 22, 2019