Amicus Curiae Brief — City of Grants Pass, Oregon, Petitioner v. Gloria Johnson, et al., on Behalf of Themselves and All Others Similarly Situated

No. 23-175

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CITY OF GRANTS PASS,

Petitioner,

v.

GLORIA JOHNSON AND JOHN LOGAN, on Behalf of

Themselves and All Others Similarly Situated,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF AMICUS CURIAE OF

GOLDWATER INSTITUTE

IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------TIMOTHY SANDEFUR*

JOHN THORPE

SCHARF-NORTON CENTER FOR

CONSTITUTIONAL LITIGATION

AT THE GOLDWATER INSTITUTE

500 E. Coronado Rd.

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

Counsel for Amicus Curiae

Goldwater Institute

*Counsel of Record

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

In Martin v. City of Boise, 920 F.3d 584 (9th Cir.

2019), the Ninth Circuit held that the Cruel and Unusual Punishments Clause prevents cities from enforcing criminal restrictions on public camping unless the

person has “access to adequate temporary shelter.” Id.

at 617 & n.8. In this case, the Ninth Circuit extended

Martin to a classwide injunction prohibiting the City

of Grants Pass from enforcing its public camping ordinance even through civil citations. That decision cemented a conflict with the California Supreme Court

and the Eleventh Circuit, which have upheld similar

ordinances, and entrenched a broader split on the application of the Eighth Amendment to purportedly involuntary conduct. The Ninth Circuit nevertheless

denied rehearing en banc by a 14-to-13 vote.

The question presented is:

Does the enforcement of generally applicable laws

regulating camping on public property constitute

“cruel and unusual punishment” prohibited by the

Eighth Amendment?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED....................................

i

TABLE OF CONTENTS .......................................

ii

TABLE OF AUTHORITIES ..................................

iii

IDENTITY AND INTEREST OF AMICUS CURIAE .................................................................

1

INTRODUCTION AND SUMMARY OF REASONS FOR GRANTING THE PETITION .........

2

ARGUMENT ........................................................

6

I.

The Martin “involuntariness” theory is irrational ......................................................

6

II.

The Martin “involuntariness” theory has

become a device whereby city officials can

excuse their refusal to enforce the law ..... 11

III.

The homelessness problem which Martin

and Grants Pass have facilitated is crippling cities ................................................. 17

CONCLUSION..................................................... 23

iii

TABLE OF AUTHORITIES

Page

CASES

Armory Park Neighborhood Ass’n v. Episcopal

Cmty. Servs., 712 P.2d 914 (Ariz. 1985) ..................12

Armstrong v. United States, 364 U.S. 40 (1960) .........22

City of Phoenix v. Johnson, 75 P.2d 30 (Ariz.

1938) ........................................................................12

Freddy Brown, et al. v. City of Phoenix, No. CV2022-010439 (Maricopa County Super. Ct.,

filed Aug. 10, 2022) ...................... 1, 12, 13, 15, 16, 20

Frontiero v. Richardson, 411 U.S. 677 (1973) ...............7

Fund for Empowerment, et al. v. City of Phoenix,

et al., CV-22-02041-PHX-GMS (D. Ariz., filed

Nov. 30, 2022) ...................................... 3, 9, 12, 15, 16

Hudson v. McMillian, 503 U.S. 1 (1992).......................2

Jones v. City of L.A., 444 F.3d 1118 (9th Cir.

2006), vacated, 505 F.3d 1006 (9th Cir. 2007) ...... 5, 9

Martin v. City of Boise, 920 F.3d 584 (9th Cir.

2019) ......................................................... 1-19, 21, 22

Robinson v. California, 370 U.S. 660 (1962) ................7

STATUTES

A.R.S. § 49-201 ............................................................12

A.R.S. § 49-206 ............................................................12

A.R.S. § 49-263 ............................................................12

iv

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Anna Gorman, Medieval Diseases are Infecting

California’s Homeless, The Atlantic (Mar. 8,

2019) .................................................................. 17, 18

Bigad Shaban, et al., Mayor Breed’s First Year:

Feces, Needles Complaints Decline; Trash

Gripes, Homelessness Rise, NBC Bay Area

(July 10, 2019) .........................................................18

Corinne Murdock, A Wasteland of Corpses, Living and Dead: A Devastating Inside Look at

Phoenix’s Homeless Zone, AZ Free News (Mar.

6, 2023) ......................................................................1

Eli Saslow, A Sandwich Shop, a Tent City and an

American Crisis, N.Y. Times (Mar. 31, 2023) ..... 20, 21

Foundation for the Homeless, Homeless Myths .........19

Jon Kamp & Shannon Najmabadi, Homeless

Numbers Rise in U.S. Cities, Wall St. J. (June

19, 2023) ..................................................................17

Juliette Rihl, Arizona Has One of the Worst

Homelessness Crises in the Nation, Federal

Data Shows, Ariz. Republic (Jan. 5, 2023) .............17

Phil Matier, Cleaning Up S.F.’s Tenderloin Costs

a Lot of Money – Soon it Might Cost Even

More, S.F. Chronicle (May 1, 2019) .........................18

Piper McDaniel, Homeless People are More

Likely to be Victims of Violence Than Housed

People, Street Roots (July 13, 2022) .......................18

v

TABLE OF AUTHORITIES—Continued

Page

Sophie Flay & Grace Manthey, What is Really

Going on with Homeless Crime? We Crunched

the Numbers, ABC7 (Oct. 21, 2021) ........................18

The Zone, Goldwater Institute (Sept. 15, 2023) .........11

Timothy Sandefur, In Defense of Substantive

Due Process, or The Promise of Lawful Rule,

35 Harv. J. L. & Pub. Pol’y 283 (2012) ......................7

U.S. Dept. of Housing & Urban Dev., HUD 2022

Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations (Dec. 2022) ......................................................19

U.S. Interagency Council on Homelessness,

State of Homelessness (Dec. 19, 2022) ....................19

1

IDENTITY AND INTEREST

OF AMICUS CURIAE1

The Goldwater Institute (“GI”) is a public policy

foundation devoted to individual freedom and limited

government. Through its Scharf-Norton Center for

Constitutional Litigation, GI litigates and files amicus

briefs when its or its clients’ objectives are implicated.

GI’s Project on Homelessness devotes substantial resources to the question of municipal governments’ handling of the ongoing homelessness crisis—a crisis

greatly exacerbated both by the Ninth Circuit’s ruling

in Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019),

and by local governments’ misinterpretations of that

ruling. Specifically, GI is involved in ongoing litigation

in its hometown of Phoenix over the city’s refusal to

enforce anti-camping ordinances—a refusal the City

rationalizes as necessitated by the Martin decision. See

Freddy Brown, et al. v. City of Phoenix, No. CV-2022010439 (Maricopa County Super. Ct., filed Aug. 10,

2022).2 GI has also produced research and journalism

on the ongoing homelessness problem in Phoenix and

other western cities. See Corinne Murdock, A Wasteland of Corpses, Living and Dead: A Devastating Inside

1

Counsel for amicus affirm no counsel for any party authored this amicus brief in whole or in part, and that no person or

entity, other than amicus, its members, or counsel, made a monetary contribution to the preparation or submission of this brief.

All parties received timely notice of amicus’ intention to file.

2

The parties to that case are also appearing separately as

amici in support of the Petition.

2

Look at Phoenix’s Homeless Zone, AZ Free News (Mar.

6, 2023).3

GI believes its experience and policy expertise will

assist this Court in considering the Petition.

---------------------------------♦---------------------------------

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s rulings here and in Martin v.

City of Boise, 920 F.3d 584 (9th Cir. 2019), reflect profoundly flawed reasoning, and have had massively deleterious consequences for citizens seeking to keep

their communities safe and clean—as well as for the

homeless themselves, who are being denied interventions that could help improve and even save their lives.

The situation has reached crisis level in several cities,

especially Amicus’s hometown of Phoenix, Arizona—

and intervention by this Court is the only means by

which the problem can be addressed.

Even assuming that the Eighth Amendment’s

Cruel and Unusual Punishment Clause applies to the

arrest of individuals violating municipal anti-camping

ordinances,4 the “status crime” theory the Ninth Circuit employed in these cases treats voluntary actions

3

https://www.goldwaterinstitute.org/a-wasteland-of-corpsesliving-and-dead-a-devastating-inside-look-at-phoenixs-homelesszone/.

4

Properly interpreted, the Amendment applies only to “punishments meted out by statutes or sentencing judges.” Hudson v.

McMillian, 503 U.S. 1, 18 (1992) (Thomas, J., concurring).

3

as if they were involuntary. As a result, it bars—or at

least appears to bar—municipal governments from enforcing laws for the public health, safety, and welfare,

due to the government’s perceived failure to provide

adequate taxpayer-funded services to those who engage in lawbreaking. The irrationality of this body of

precedent is exemplified in cases like Fund for Empowerment, et al. v. City of Phoenix, et al., CV-22-02041PHX-GMS (D. Ariz., filed Nov. 30, 2022), where the

plaintiffs include mentally competent people who have

remained homeless for three decades, but nonetheless

characterize themselves as “involuntarily” homeless

for purposes of Martin.

The Martin court did say that local governments

can still enforce anti-camping ordinances. It said that

“[e]ven where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular

times or in particular locations might well be constitutionally permissible.” 920 F.3d at 617 n.8. Yet in practice, Martin’s bizarre application of the concept of

“involuntary homelessness” is difficult to square with

these limitations on its holding. As the dissenters below observed, the Martin case “treats a shelter-beds

deficit, when combined with conclusory allegations of

involuntariness, as sufficient for an individual to show

that he or she is involuntarily homeless,” and that, in

turn, entitles the person as a matter of constitutional

right, to reside indefinitely in parks, streets, or sidewalks—in dangerous, unclean, and inhumane conditions—exempt from law enforcement intervention.

App. 148a (Smith, J., dissenting).

4

That, at least, is how many municipal officials interpret Martin. Notwithstanding the caveats in that

case recognizing that cities can continue to enforce

bans on public camping, loitering, pollution, etc., these

officials have taken its bizarre notion of “involuntariness” as an opportunity to shrug off their responsibilities to enforce laws that are wholesome and necessary

for the public good. The result is a stark crisis in homelessness in cities such as San Francisco, Los Angeles,

and Phoenix.

Phoenix’s case is particularly shocking: for well

over a year now, Phoenix officials have essentially operated an open-air homeless shelter in the streets of

downtown Phoenix—known locally as “The Zone”—

where over 750 people now reside, and at one point

over 1,000. The City has conceded in court that it has

done this intentionally, as a “policy choice” in response

to the Martin ruling. The consequences have been not

only the open discharge of sewage into the streets and

gutters, and the physical and economic destruction of

neighboring businesses, but even incidents of arson

and homicide. But while police officers themselves

want to enforce the law in The Zone, their superiors

will not allow them to do so. Those superiors claim that

their hands are tied by Martin—and continue to maintain this, despite an injunction from a state superior

court, which orders the City to stop maintaining this

public nuisance.

The decision in this case exacerbates the confusion and illogic of Martin. In a ruling that certainly

would have astonished the drafters of the Eighth

5

Amendment, the Ninth Circuit found that “it is an

Eighth Amendment violation to criminally punish involuntarily homeless persons for sleeping in public if

there are no other public areas or appropriate shelters

where those individuals can sleep.” App. 19a. Its rationale is that a person is per se “involuntarily” sleeping on the streets even when that person “engag[es] in

conduct necessary to protect themselves [sic] from the

elements when there [is] no shelter space available,”

id. at 5a, including even the building of makeshift

shelters on public property and residence there for an

indefinite period of time without any inclination to

comply with the law.

That’s simply not what “involuntariness” means.

An involuntary act is an unavoidable act—one about

which no individual can make a deliberate choice. It

means, as the Ninth Circuit put it in another case,

“universal and unavoidable consequences of being

human.” Jones v. City of L.A., 444 F.3d 1118, 1136

(9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007).

But a person who chooses to live indefinitely on the

streets—and during that period takes deliberate actions to maintain that mode of living—is not doing so

as an unavoidable consequence of being human, and it

does not become any more involuntary just because

there are no shelter beds available in the city that the

individual considers “adequate.” People can choose alternatives—they can choose to obtain shelter, to seek

employment, or to take advantage of the social, medical, or psychological services necessary to bring themselves into compliance with the law. Both Martin and

6

the decision below ignore this fact due to their bizarre

conception of “involuntariness”—and the result is to

give cities an excuse not to enforce the law; to abdicate

their responsibilities and endanger the public in the

process. Phoenix’s “Zone” crisis is a prime example.

The result of the Martin case—at least as interpreted by city officials across the country—has been a

startling increase in public homelessness, accompanied by a refusal by municipal officials to take action.

That has led not only to the destruction of public

spaces and private property, and to incidents of violence and pollution, but also to the perpetuation of inhumane conditions for the homeless themselves. Thus,

for example, Phoenix has transported hundreds of

homeless people to The Zone, to reside in tents on the

streets in summertime weather that often tops 110°—

during the COVID pandemic.

The lower court’s rulings here and in Martin have

made clear that, absent action by this Court, the Ninth

Circuit will not desist from its misguided and counterproductive interpretation of the law. The Petition must

be granted, this case reversed, and Martin overruled.

---------------------------------♦---------------------------------

ARGUMENT

I.

The Martin “involuntariness” theory is irrational.

The entire theory of Martin and of this case originates with the notion of a “status crime”—that is, a

7

punishment for what one is as opposed to what one

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

this Court rightly concluded that the Constitution forbids the government from establishing status crimes.

To punish someone for being something—something

one might “innocently or involuntarily” be, id. at 667—

is obviously not only cruel and unusual, but violates

the principle of Due Process of Law, because the entire

principle of legal punishment for criminal acts presupposes that the accused has the capacity to make a

decision to act or desist from acting. See generally Timothy Sandefur, In Defense of Substantive Due Process,

or The Promise of Lawful Rule, 35 Harv. J. L. & Pub.

Pol’y 283 (2012).

The distinction is between, on one hand, an act

which a person can be expected not to engage in—and

which the state may lawfully punish—and, on the

other, “an immutable characteristic determined solely

by the accident of birth” or by inescapable forces—punishment for which would “violate ‘the basic concept of

our system that legal burdens should bear some relationship to individual responsibility.’ ” Frontiero v.

Richardson, 411 U.S. 677, 686 (1973) (citation omitted).

That distinction is elemental to any rational system of

law.

But the Martin decision fallaciously shifted from

one category to the other, and deemed voluntary acts involuntary, if the individual in question is not given “adequate” taxpayer-funded social services (with “adequacy”

8

left undefined). 920 F.3d at 617 n.8.5 But the idea that

one is “involuntarily” homeless if the government does

not give that person an “adequate” place to sleep, is illogical. An action is involuntary if a person literally

cannot help it—not if the person could help it, but fails

to do so, and the government fails to give that person

some benefit. A person who leaves a bar intoxicated,

and drives drunk, is not “involuntarily” engaged in

drunk driving just because the government failed to

provide him with a taxi or an Uber. A person who pours

liquid waste into a river is not “involuntarily” polluting

just because the government failed to provide him with

a toxic waste removal service. A person who chooses to

start a fire that gets out of control and consumes a

neighbor’s house is not “involuntarily” engaged in arson just because the government failed to provide him

with an electric heater.

The Martin conception of “involuntary” is not only

illogical, but plainly encompasses a political, rather

than a legal, assumption—one according to which people are deemed incapable of acting responsibly, and

therefore blameless, if they can ascribe their condition to the government’s failure to provide them with

taxpayer-funded benefits. If nothing else, that paternalism is demeaning to the homeless themselves—

5

The decision below doubles down on this by, among other

things, finding that a shelter, to be “adequate,” must be “secular.”

App. at 53a. Obviously, given that care for the homeless has traditionally been a major concern of churches, this rules out a great

many available options.

9

because it implicitly assumes they lack free will.6 And

it embodies a policy preference rather than neutral

constitutional analysis: namely, the preference that

the state take charge of people’s fates, because otherwise they are incapable of taking responsibility for

their own lives. Of course, one who is incapable of taking responsibility is also incapable of freedom.

A prime example of the absurd consequences of

Martin-style “involuntariness” is provided by an ongoing lawsuit in the Arizona Federal District Court that

involves The Zone. In Fund for Empowerment, et al. v.

City of Phoenix, et al., CV-22-02041-PHX-GMS (D.

Ariz., filed Nov. 30, 2022), the plaintiffs argue that

Phoenix is violating the Martin rule by cleaning up illegal campsites in The Zone, where hundreds of homeless people have been congregating for well over a

year. Yet the plaintiffs in that case consist of a man

who—according to the operative complaint—“has been

chronically unsheltered off and on since 2000,”7 and a

woman who is at least sufficiently self-responsible

enough to maintain a credit card account.8

It should be obvious that a person who has been

homeless for 23 years is not sleeping on the streets as

part of the “ ‘universal and unavoidable consequences

of being human,’ ” Martin, 920 F.3d at 617 n.8 (quoting

Jones, 444 F.3d at 1136), and that a person who can

6

In contemporary jargon, the assumption “denies their

agency.”

7

First Amended Complaint (Doc. 45) ¶ 20

8

Id. ¶ 80.

10

maintain a credit card account has sufficient freedom

of will to make financial and other plans for her future.

If these individuals can exercise that much freedom of

choice, their failure to do so cannot be ascribed to who

they are, but, rather, to the actions they have chosen to

take or failed to take. Yet Martin-style involuntariness

disregards this fact, and characterizes such people as

“involuntarily” homeless based solely on the numerical

formula of the number of (“adequate”) shelter beds

available in taxpayer-funded homeless shelters.

This is irrational. As the dissent below put it, the

entire theory of “status crime” on which the Martin

court purportedly relied, “requires an assessment of a

person’s individual situation before it can be said that

the Eighth Amendment would be violated by applying

a particular provision against that person.” App. at 80a

(Collins, J., dissenting). That is—it requires a court to

inquire as to whether a person is capable of taking responsibility for his or her acts. But no individualized

assessment is being conducted in many communities

in the Ninth Circuit—and the decision below appears

to categorically rule it out. That is due to the absurd

notion of “involuntariness” embedded in the Martin decision.

But, as explained in the next section, many city officials welcome that outcome.

11

The Martin “involuntariness” theory has become a device whereby city officials can excuse their refusal to enforce the law.

II.

The situation in Phoenix’s Zone offers a prime example of the chaos caused by the Martin theory of involuntariness. For well over a year now, the City has

chosen to allow, and even to encourage, over 1,000

homeless residents to live in tents and makeshift shelters (or in no shelter) on city streets, vacant lots, and

sidewalks in a large section of downtown Phoenix.

Zone residents regularly defecate and urinate in the

streets, gutters, and on private property; set fires—

which sometimes cause tents or nearby buildings to

catch fire; to loiter on or near privately owned businesses and residences; to partake of drugs and alcohol;

and to engage in other criminal activities. See The

Zone, Goldwater Institute (Sept. 15, 2023).9 At least

two human bodies—including one of an unborn fetus—

have been found in The Zone. Id.

Not only does the city abide such behavior, it actively encourages it, both by refusing to enforce the law

in The Zone, and by actually transporting homeless

people from other locations in Phoenix into The Zone.10

The City is not merely neglecting its responsibilities in

The Zone; it is actively operating an open-air homeless

shelter where residents are free to violate the law—

9

https://www.goldwaterinstitute.org/policy-report/homelessness/.

It is generally known, also, that neighboring communities

instruct homeless persons to move on to The Zone, as a cheap

means of eliminating the homeless populations from their communities.

10

12

including environmental laws which prohibit the release of sewage onto public property11—and to continue

to do so indefinitely.

This is obviously a public nuisance under Arizona

law. See Armory Park Neighborhood Ass’n v. Episcopal

Cmty. Servs., 712 P.2d 914 (Ariz. 1985); City of Phoenix

v. Johnson, 75 P.2d 30 (Ariz. 1938). And it has given

rise to two lawsuits, one in state court (Brown, et al. v.

City of Phoenix, No. CV-2022-010439 (Maricopa Cnty.

Super. Ct. (filed Aug. 10, 2022)), and one in federal

court (Fund for Empowerment, supra). The plaintiffs in

the Brown case have filed their own amicus brief in

this case, in which they explain how Phoenix officials

have used the Martin decision as a rationale for their

refusal to enforce city and state laws against pollution,

public camping, etc. In March, the Superior Court issued a preliminary injunction which found that the

City has indeed “created and maintains the dire situation that currently exists in The Zone through its failure, and in some cases refusal, to enforce criminal and

quality of life laws.” Order Granting Preliminary Injunction, Brown v. City of Phoenix (Mar. 27, 2023) at

15.

Throughout that litigation, the City’s position has

been that its hands are tied by the Martin ruling. The

City’s attorney, for example, argued to the court that

“so long as there is a greater number of homeless individuals in a jurisdiction than the number of available

shelter beds, right—so homeless individuals, shelter

11

A.R.S. §§ 49-263, 49-201, 49-206.

13

beds, we’re putting these together—the jurisdiction

cannot prosecute homeless individuals for involuntarily sitting, lying, and sleeping in public. [This includes]

public parks, public right of way.”12

In fact, the City has argued that Martin and the

decision below make it “unclear”13 whether the City is

even allowed to create a “structured campground” (i.e.,

a constructed facility where the homeless could reside

temporarily while alternative arrangements are explored, as opposed to living on the streets). In other

words, the City contends that these Ninth Circuit precedents are “not clear” on whether the City can construct a facility and require homeless individuals to

resort to those facilities on pain of criminal punishment.14

At trial in the Brown case, the City offered an expert witness who testified as follows:

Q. Can you explain to the Court exactly how

the Boise decision affected and changed how

providers and cities provide services to those

experiencing homelessness?

A. It’s created an era of uncertainty. And I

think that’s probably why we are here today

is to try and clarify, what is that.

12

Transcript of Oral Argument regarding Defendants’ Motion to Dismiss, Brown v. City of Phoenix (Dec. 15, 2022), at 13.

13

Id. at 29.

14

Id.

14

Q. Okay. So if we weren’t here today and we

didn’t receive any guidance from the Court,

would there still be that state of unclarity in

the future if we weren’t here today?

A.

To the best of my knowledge, yes.15

Later, when asked “is the City of Phoenix currently confused as to what is or is not legal as a result

of that decision?” she answered in the affirmative.16

To emphasize, the City itself elicited this testimony from its own expert—to underscore its position

that the Martin precedent has caused confusion and

tied its hands with respect to The Zone crisis.

This alone militates in favor of a grant of certiorari

here: to clarify whether and how municipalities can

take action with respect to vagrancy and lawbreaking

in their streets.

But the reality is actually worse: the City—like

many municipal governments in the Ninth Circuit—

actually welcomes the confusion Martin has caused. In

part, that is because enforcing the law against homeless individuals is hard work, and often politically unpalatable, which creates a strong incentive for local

politicians to disclaim their responsibility for such

matters, and Martin and the decision below offer them

an exceptionally convenient device for doing so.

15

Transcript of Proceedings of Bench Trial, July 11, 2023, at

16

Id. at 174.

172.

15

This is proven by the fact that the City has gone

far beyond what these decisions actually say. Despite

the Martin court’s express statement that cities can

still enforce laws against public sleeping and camping,

920 F.3d at 617 n.8, the City has chosen to withhold

law enforcement in The Zone to a far greater degree

than that. The Superior Court in the Brown litigation

concluded that the City not only chose not to arrest

people for “involuntarily” residing on the streets, but

also “stopped or greatly decreased enforcement of other

health, quality of life, and even criminal laws and ordinances in The Zone,” as well. Order Granting Prelim.

Inj., Brown v. Phoenix (Mar. 27, 2023) at 3 ¶ 7. And although the Martin precedent would permit the City to

create a structured camping area on city-owned property, to shelter the homeless until other alternatives

could be arranged, the Court found that “City leaders

are not considering” doing so, “despite admitting [the]

viability” of this option. Id. at 12 ¶ 42, 20 (emphasis in

original).

Even better evidence of the City’s exploitation of

the rulings in this case and in Martin, as excuses for

inaction, compare the Brown case with the Fund for

Empowerment case. In Brown—the state lawsuit

against the City for illegally maintaining the “Zone”—

City officials have filed multiple motions to dismiss or

delay. The case was filed in August 2022; the City

moved to dismiss in September 2022; opposed the

plaintiffs’ motion for a preliminary injunction on the

same day; moved in December 2022 to stay the case or

extend the filing deadlines; later moved to vacate the

16

trial date; and even welcomed an intervenor-defendant

who sought to dismiss the case. (All, fortunately, without success.)

The City has responded to Fund for Empowerment

quite differently. That’s the federal lawsuit which

seeks to block the City from taking even modest steps

to enforce the law in the “Zone.” That case was filed in

November 2022, and the City has still never filed a motion to dismiss, abstain, or delay. The reason is clear:

the City welcomes the Fund for Empowerment case as

yet more justification for its refusal to enforce the law.

If the point were still in doubt, the City’s arguments in the Brown case make it clear: City attorneys

argued that the state court should dismiss because the

City’s decision to maintain The Zone was a conscious

policy choice on the City’s part, and therefore subject

to the “political question” doctrine.17 The City’s refusal

to enforce anti-camping laws, its attorneys said, was a

deliberate “policy choice that the City of Phoenix has

made.”18

The bottom line is that Martin and this case have

leveraged a faulty notion of “involuntariness” to conclude that people who choose to reside in public parks,

on streets, on sidewalks, etc., are per se incapable of

doing otherwise absent government providing them

with shelter—and consequently that punishing such

acts amounts to a “status crime.” Meanwhile, receptive

17

Transcript of Oral Argument regarding Defendants’ Motion to Dismiss, Brown v. City of Phoenix (Dec. 15, 2022), at 83.

18

Id. at 76.

17

City officials have viewed these decisions as opportunities to justify their refusal to discharge their law-enforcement responsibilities.

There is no reason to imagine that anything will

change absent action by this Court.

III. The homelessness problem which Martin

and Grants Pass have facilitated is crippling cities.

Cities across the country—especially in the west—

have experienced an explosion of homelessness, largely

as a result of the dynamic described above. The Wall

Street Journal recently reviewed data from cities nationwide and found an increase of between 9 and 13

percent since 2020. Jon Kamp & Shannon Najmabadi,

Homeless Numbers Rise in U.S. Cities, Wall St. J. (June

19, 2023).19 Between 2020 and the present day, the

number of homeless in Phoenix has increased by

nearly 25 percent. Juliette Rihl, Arizona Has One of the

Worst Homelessness Crises in the Nation, Federal Data

Shows, Ariz. Republic (Jan. 5, 2023).20

This crisis consists not only of people residing on

the streets, but of outbreaks of disease—including

typhus, typhoid fever, and tuberculosis in modern

American cities, such as Los Angeles. Anna Gorman,

19

https://www.wsj.com/articles/homeless-numbers-rise-in-u-scities-fd59bc7b.

20

https://www.azcentral.com/story/news/local/arizona/2023/01/

05/federal-report-shows-arizona-has-one-of-the-worst-homelessnesscrises/69778359007/.

18

Medieval Diseases are Infecting California’s Homeless,

The Atlantic (Mar. 8, 2019).21 Public streets and sidewalks in San Francisco and other cities are covered in

human excrement and used syringes. Phil Matier,

Cleaning Up S.F.’s Tenderloin Costs a Lot of Money—

Soon it Might Cost Even More, S.F. Chronicle (May 1,

2019)22; Bigad Shaban, et al., Mayor Breed’s First Year:

Feces, Needles Complaints Decline; Trash Gripes,

Homelessness Rise, NBC Bay Area (July 10, 2019).23

Homelessness is associated with increases in violent crime, see Sophie Flay & Grace Manthey, What is

Really Going on with Homeless Crime? We Crunched

the Numbers, ABC7 (Oct. 21, 2021),24 but it is also the

case that the homeless themselves are far more likely

than average to be victims of violent crime. See Piper

McDaniel, Homeless People are More Likely to be Victims of Violence Than Housed People, Street Roots

(July 13, 2022).25 But City officials use Martin and this

case as excuses to do nothing.

Homelessness is not an unpredictable malady that

randomly befalls people. Although it is often claimed

21

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

22

https://www.sfchronicle.com/bayarea/philmatier/article/

Cleaning-up-SF-s-Tenderloin-costs-a-lot-of-13808447.php.

23

https://www.nbcbayarea.com/news/local/mayor-london-breedfirst-year-in-office/154431/.

24

https://abc7.com/feature/homeless-crime-los-angeles-dataresponse/10827722/.

25

https://www.streetroots.org/news/2022/07/13/violenceconflated.

19

that “[o]ver the course of a year, more than a million

individuals and families experience homelessness,”

U.S. Interagency Council on Homelessness, State of

Homelessness (Dec. 19, 2022),26 the reality is that

most of these people are homeless for only a day or two.

See Foundation for the Homeless, Homeless Myths.27

Chronic or long-term homelessness, by contrast, is

most often a result of addiction or mental illness. About

a quarter of homeless individuals, in fact, suffer from

serious mental illnesses. See U.S. Dept. of Housing &

Urban Dev., HUD 2022 Continuum of Care Homeless

Assistance Programs Homeless Populations and Subpopulations (Dec. 2022) at 2.28

Allowing people to live on the streets or in tents in

a park is not a compassionate response to the problem.

A compassionate response would consist of providing

people with the care they need—including taking them

into custody against their will if they are incapable of

managing themselves. It would consist of what the dissent below called “an assessment of a person’s individual situation.” App. 80a (Collins, J., dissenting). That

individualized assessment is considered irrelevant under the Martin theory of “involuntariness.”

What’s more, the law-abiding, taxpaying public deserves compassion, as well. The victims of municipalities’ abdication of their law-enforcement duties aren’t

26

https://www.usich.gov/fsp/state-of-homelessness/.

https://www.foundationhomeless.org/homeless-myths-old.

28

https://files.hudexchange.info/reports/published/CoC_Pop

Sub_NatlTerrDC_2022.pdf.

27

20

just the homeless—who certainly deserve better than

to be left to live in filth in the streets of Phoenix

through record-breaking summer temperatures—but

also members of the community who must suffer

threats, pollution, damage to their properties and the

ruin of their businesses.

In March, the New York Times profiled Joe and

Debbie Faillace, well-known Phoenix restaurant owners whose business, the Old Station Sandwich Shop, is

located in The Zone; they are among the plaintiffs in

the Brown case. Eli Saslow, A Sandwich Shop, a Tent

City and an American Crisis, N.Y. Times (Mar. 31,

2023).29 Surrounded by scores of tents, their restaurant

has suffered a drastic decrease in customers since the

City began operating The Zone. They also have been

forced to deal with countless mentally ill and potentially violent homeless individuals entering their business and harassing customers and employees:

Soon there were hundreds of people sleeping

within a few blocks of Old Station, most of

them suffering from mental illness or substance abuse as they lived out their private

lives within public view of the restaurant.

They slept on Joe and Debbie’s outdoor tables,

defecated behind their back porch, smoked

methamphetamine in their parking lot,

washed clothes in their bathroom sink, pilfered bread and gallon jars of pickles from

their delivery trucks, had sex on their patio,

29

https://www.nytimes.com/2023/03/19/us/phoenix-businesses-homelessness.html.

21

masturbated within view of their employees

and lit fires for warmth that burned down

palm trees and scared away customers. Finally, Joe and Debbie could think of nothing

else to do but to start calling their city councilman, the city manager, the mayor, the governor and the police.

Id. This, of course, accomplished nothing, as local officials, citing Martin and this case, have refused to enforce the law. Police have responded to calls of violent

crimes, however:

Within a half-mile of their restaurant, the police had been called to an average of eight incidents a day in 2022. There were at least

1,097 calls for emergency medical help, 573

fights or assaults, 236 incidents of trespassing, 185 fires, 140 thefts, 125 armed robberies,

13 sexual assaults and four homicides. The

remains of a 20-to-24-week-old fetus were

burned and left next to a dumpster in November. Two people were stabbed to death in their

tents. Sixteen others were found dead from

overdoses, suicides, hypothermia or excessive

heat. The city had tried to begin more extensive cleaning of the encampment, but advocates for the homeless protested that it was

inhumane to move people with nowhere else

to go, and in December the American Civil

Liberties Union successfully filed a federal

lawsuit to keep people on the street from being “terrorized” and “displaced.”

Id.

22

People like the Faillaces have not caused the

homelessness problem. Of all people involved in this

awful drama, they and conscientious business and

property owners like them are the most innocent. It is

unjust to inflict upon them the burden of the City’s own

dereliction of duty. Cf. Armstrong v. United States, 364

U.S. 40, 49 (1960) (noting the injustice of “forcing some

people alone to bear public burdens which . . . should

be borne by the public as a whole”).

Whether or not Martin and this case are correctly

interpreted as having imposed a “constitutional straitjacket” on cities, App. 159a (Collins, J., dissenting),

they have certainly been viewed that way by government officials who, opportunistically, find its ambivalent and fallacious conception of “involuntariness” a

rationale for failing to do their duties. The result is a

humanitarian crisis that cannot be resolved absent

correction from this Court.

---------------------------------♦---------------------------------

23

CONCLUSION

The Petition for Certiorari must be granted.

Respectfully submitted,

TIMOTHY SANDEFUR*

JOHN THORPE

SCHARF-NORTON CENTER FOR

CONSTITUTIONAL LITIGATION

AT THE GOLDWATER INSTITUTE

500 E. Coronado Rd.

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

*Counsel of Record