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

In the

Supreme Court of the United States

CITY OF GRANTS PASS, OREGON,

Petitioner,

v.

GLORIA JOHNSON AND JOHN LOGAN, ON BEHALF OF

THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,

Respondents.

On Petition For A Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE SPEAKER OF THE

ARIZONA HOUSE OF REPRESENTATIVES

BEN TOMA AND PRESIDENT OF THE

ARIZONA STATE SENATE WARREN

PETERSEN IN SUPPORT OF PETITIONER

RUSTY D. CRANDELL

1700 W. Washington St.

Phoenix, Arizona 85007

(602) 926-5544

RCrandell@azleg.gov

Counsel for Amicus

Petersen

LINLEY WILSON

1700 W. Washington St.

Phoenix, Arizona 85007

(602) 926-5418

LWilson@azleg.gov

Counsel for Amicus Toma

BRUNN W. ROYSDEN III*

FUSION LAW, PLLC

7600 N. 15th St.,

Suite 150

Phoenix, Arizona 85020

(602) 315-7545

beau@fusion.law

Counsel for Amici

Curiae

*Counsel of record

i

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................4

I.

The Opinion Below Injects the Federal Courts

Into a Policymaking Area Reserved for State

and Local Lawmakers. .........................................4

II. The Opinion Below Entrenches a Plainly

Incorrect and Deeply Damaging Construction

of the Eighth Amendment. ...................................7

A. A Law That Merely Defines Criminal

Conduct Does Not Impose a Cruel and

Unusual Punishment. ......................................7

B. This Court Should Reaffirm the Status-Act

Distinction.........................................................9

III. The Opinion Below Improperly Interferes

With State and Local Policymaking on the

Critically Important Issue of Homelessness. .... 11

A. Homelessness Creates Real and Significant

Threats to Public Health. ............................... 11

B. Arizona Suffers From a Crisis of

Unauthorized Homeless Camping in the

Heart of Phoenix. ............................................ 13

C. The Ninth Circuit’s Opinions Thwart the

Legislature’s Efforts to Address a Crisis on

Its Own Doorstep. ........................................... 16

CONCLUSION .......................................................... 20

ii

TABLE OF AUTHORITIES

CASES

Edwards v. California,

314 U.S. 160 (1941) ..................................................5

Estelle v. Gamble,

429 U.S. 97 (1976) ....................................................7

Fund for Empowerment v. City of Phoenix

No. CV-22-02041-PHX-GMS, 2022 WL

18213522 (D. Ariz. Dec. 16, 2022 ) ..........................2

Harmelin v. Michigan,

501 U.S. 957 (1991) .............................................. 3, 8

Johnson v. City of Grants Pass,

72 F.4th 868 (9th Cir. 2023) ................ 3, 6, 7, 11, 16

Jones v. United States,

463 U.S. 354 (1983) ..................................................5

Knoxville Iron Co. v. Harbison,

183 U.S. 13 (1901) ....................................................5

Manning v. Caldwell for City of Roanoke,

930 F.3d 264 (4th Cir. 2019) (en banc) .................. 10

Martin v. City of Boise,

920 F.3d 584 (9th Cir. 2019) ....................................5

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) .............................................. 4, 8

Powell v. Texas,

392 U.S. 514 (1968) ............................................ 9, 10

Robinson v. California,

370 U.S. 660 (1962) ..................................................9

United States v. Lopez,

514 U.S. 549 (1995) ..................................................5

iii

Waterkeeper All., Inc. v. EPA,

399 F.3d 486 (2d Cir. 2005) ................................... 13

OTHER AUTHORITIES

Ariz. Dept. of Housing Press Release

(June 7, 2023) ......................................................... 19

Cassy Fiano-Chesser, Body of Preborn Child

Found Set Ablaze in Phoenix Homeless

Camp, LiveAction (Nov. 18, 2022, 6:34 PM) ......... 14

Central Arizona Shelter Services,

Homelessness as a Health Crisis ..................... 11, 12

Corinne Murdock, A Wasteland of Corpses,

Living and Dead: A Devastating Inside Look

at Phoenix’s Homeless Zone, AZ Free News

(Mar. 6, 2023) ................................................... 14, 15

Debates on the Federal Constitution

(J. Elliot 2d ed. 1854) ...............................................8

H.B. 2284, 56th Leg., 1st Reg. Sess. (Ariz.

2023) ....................................................................... 18

Hearing on H.B. 2284 Before the H. Comm. on

Rules, 56th Leg., 1st Reg. Sess. (Ariz. 2023)......... 18

Hearing on S.B.s 1263 and 1581 Before the H.

Comm. on Appropriations, 55th Leg., 2d

Reg. Sess. (Ariz. 2022) ........................................... 16

Hearing on S.B. 1581 Before the H. Comm. on

Health and Human Serv., 55th Leg., 2d Reg.

Sess. (Ariz. 2022) .................................................... 18

Helen Rummel, 8th Block of ‘The Zone’

Homeless Encampment in Phoenix Cleared

Out After Storm, AZ Central

(Sept. 1, 2023, 1:35 PM) ......................................... 13

iv

Juliette Rihl, Phoenix Planning Campground

for Homeless People Living in ‘The Zone.’

Where it May Go, AZ Central

(June 29, 2023, 7:47 AM) ....................................... 14

Justin Lum, Crimes of “The Zone”: Theft,

Assaults, Drugs, Unsanitary Conditions

Plague Area of Downtown Phoenix Tent

City, Fox 10 Phoenix (Sept. 15, 2022, 9:33

PM) ...........................................................................2

Marc Siegel, Is a Dark Ages Disease the New

American Plague Threat?, The Hill

(September 08, 2019, 3:00 PM).............................. 12

Mark Sundeen, Homeless by

Choice: How to Live for Free in America, Th

e Atlantic (Mar. 7, 2012) ..........................................6

Maricopa County Office of the Medical

Examiner, Medical Examiner Annual

Report: 2022, 50 (May 2023) .................................. 15

Miguel Torres, 2 of 3 Suspects in Fatal

Burning Arrested by Phoenix Police, AZ

Central (Apr. 28, 2023, 7:49 AM) .......................... 15

S.B. 1024, 56th Leg., 1st Reg. Sess. (Ariz.

2023) ....................................................................... 19

S.B. 1263, 55th Leg., 2nd Reg. Sess. (Ariz.

2022) ....................................................................... 16

S.B. 1413, 56th Leg., 1st Reg. Sess. (Ariz.

2023) ....................................................................... 19

S.B. 1581, 55th Leg., 2nd Reg. Sess. (Ariz.

2022) ................................................................. 16, 17

S.B. 1720, Sec. 104, 56th Leg., 1st Reg. Sess.

(Ariz. 2023) ............................................................. 19

v

Sally Ann Iverson et al., Hepatitis A Outbreak

Among Persons Experiencing

Homelessness—Maricopa County, Arizona,

2017, 4 Open Forum Infectious Diseases

(2017) ...................................................................... 12

Veto of S.B. 1024 (Ariz. 2023)

(Veto Letter, March 30, 2023)................................ 19

Veto of S.B. 1413 (Ariz. 2023)

(Veto Letter, June 5, 2023) .................................... 19

1

INTEREST OF AMICI CURIAE

Amici are Speaker of the Arizona House of

Representatives Ben Toma and President of the

Arizona State Senate Warren Petersen. They file this

brief in their official capacities as the presiding

officers of their respective chambers on behalf of the

Fifty-sixth Legislature of the State of Arizona (the

“Legislature”). 1

The Opinion Below prevents the Legislature, local

governments in Arizona, and legislatures and local

governments of other states in the Ninth Circuit from

enacting statutes that enhance residents’ safety and

quality of life, and protecting homeless persons from

the public safety and health risks that result from

mass, unlawful encampments.

Lawmakers must use a suite of state and local

government policies, including camping ordinances, to

adequately address the social and public health

effects of homelessness. But the Ninth Circuit’s

jurisprudence interprets the Eighth Amendment as

blocking states and localities alike from enacting nonstatus-based policies, removing a critical tool

previously available to states, counties, and cities

working to combat homelessness. Without this ability,

lawmakers will be unable to work towards a

comprehensive solution to homelessness that respects

the welfare of their residents.

1 Pursuant to Rule 37.2,

the undersigned certifies it provided

notice to Counsel for Petitioner and Respondents at least ten

days before the due date for this brief. Pursuant to Rule 37.6, the

undersigned certifies that no party’s counsel authored this brief,

and only Amici made a monetary contribution to this brief’s

preparation and submission.

2

The Legislature also has a pressing interest in

homelessness because it confronts the realities of

America’s homelessness crisis every day, including

only a few blocks from the state capitol complex.

Phoenix, Arizona, is home to one of the nation’s

largest homeless encampments, commonly known as

“The Zone.” With hundreds of homeless residents, The

Zone is a place of intense poverty, frequent crime

(including multiple homicides), social instability, and

poor living standards. See, e.g., Justin Lum, Crimes of

“The Zone”: Theft, Assaults, Drugs, Unsanitary

Conditions Plague Area of Downtown Phoenix Tent

City, Fox 10 Phoenix (Sept. 15, 2022, 9:33

PM), https://www.fox10phoenix.com/news/crimeszone-theft-assaults-drugs-unsanitary-conditionsplague-downtown-phoenix-tent-city.

The Zone has also been the subject of ongoing

litigation. In Fund for Empowerment v. City of

Phoenix, the United States District Court for the

District of Arizona held that a nonprofit organization

and homeless individuals were likely to succeed on the

merits of their claim that the City of Phoenix’s

camping and public sleeping ordinances violated their

rights under the Eighth Amendment. No. CV-2202041-PHX-GMS, 2022 WL 18213522 (D. Ariz. Dec.

16, 2022). The Ninth Circuit’s caselaw has thus

directly frustrated the Legislature’s ability to

ameliorate harms from unlawful public camping.

SUMMARY OF ARGUMENT

For centuries, state and local governments have

passed laws governing conduct (i.e., acts). Such laws

regulate public spaces, preserve order, and establish

public health codes that protect residents. And it

makes sense that local and state officials set policies

for their communities. After all, these officials are the

3

closest representatives of their constituents and best

situated to craft complex policies for their states.

But in the Opinion Below, the Ninth Circuit

decided it was better at making policy than elected

state legislatures and city councils. Instead of

deferring to their limited constitutional role, appellate

judges “seiz[ed] policymaking authority that our

federal system of government leaves to the democratic

process.” Johnson v. City of Grants Pass, 72 F.4th 868,

925 (9th Cir. 2023) (O’Scannlain, J., statement

respecting denial of rehearing en banc). The Ninth

Circuit brushed aside longstanding caselaw as well as

principles of federalism and separation of powers,

declaring that it should decide how state and local

officials may and may not work to alleviate the effects

of homelessness. The Circuit’s decision was an

exercise of raw and unfounded judicial power.

It was also incorrect as a matter of law. The Eighth

Amendment’s history and tradition show that it

prohibits the federal government (and, through the

Fourteenth Amendment, state and local governments)

from subjecting criminal defendants to unduly harsh

penalties like the rack. The Eighth Amendment’s text

and history also demonstrate that it has nothing to do

with limiting the authority of lawmaking bodies to

define criminal conduct (i.e., acts). Indeed, the

prohibition on cruel and unusual punishment and

laws prohibiting even vagrancy coexisted for

hundreds of years, dating back to the common law. See

Harmelin v. Michigan, 501 U.S. 957, 974–79

(1991) (Scalia, J., concurring) (discussing commonlaw history of prohibition on “cruell and unusuall

punishments” and original public meaning at time of

ratification); Papachristou v. City of Jacksonville, 405

U.S. 156, 161 & n.4 (1972) (discussing history of

4

vagrancy laws that “were ‘derived from early English

law’”). There is no basis to conclude that the Eighth

Amendment curtailed the authority of legislatures to

define the acts that communities deem to be criminal

conduct.

This Court’s precedents reveal that even if a court

were to look beyond the Amendment’s original public

meaning, longstanding law suggests that the

Amendment allows states to criminalize acts so long

as they do not criminalize status. But the Opinion

Below mischaracterizes this longstanding and

workable dichotomy, preferring to limit the degree to

which states may regulate homeless individuals’

conduct by pretending that the states are regulating

the status of “involuntary” homelessness rather than

individual acts.

The Opinion Below has also had terrible real-world

consequences for state and local communities,

including in Arizona. In Phoenix alone, a large

homeless encampment has brought festering crime

and health risks to the public, only blocks from the

state capitol. Yet state legislators are hampered from

taking action to comprehensively address and resolve

this humanitarian crisis. Why? The Opinion Below

strips Arizona’s legislators of the tools they need to do

so.

ARGUMENT

I.

The Opinion Below Injects the Federal

Courts Into a Policymaking Area Reserved

for State and Local Lawmakers.

In stripping lawmakers of their authority to enact

certain types of laws addressing homelessness, the

Opinion Below violates longstanding principles of

federalism and separation of powers. These

5

fundamental principles of our system of government

must inform the proper interpretation of the Eighth

Amendment.

“It is a timeless adage that states have a

‘universally acknowledged power and duty to enact

and enforce all such laws . . . as may rightly be deemed

necessary or expedient for the safety, health, morals,

comfort and welfare of its people.’” Martin v. City of

Boise, 920 F.3d 584, 596 (9th Cir. 2019) (M. Smith, J.,

dissenting from denial of rehearing en banc)

(quoting Knoxville Iron Co. v. Harbison, 183 U.S. 13,

20 (1901)). Indeed, this Court has “repeatedly . . .

affirmed” that it “do[es] not conceive it [the Court’s]

function to pass upon ‘the wisdom, need, or

appropriateness’ of the legislative efforts of the States

to solve such difficulties.” Edwards v. California, 314

U.S. 160, 173 (1941).

Moreover, this Court has long recognized, “[u]nder

our federal system, the ‘states possess primary

authority for defining and enforcing the criminal

law.’” United States v. Lopez, 514 U.S. 549, 561 n.3

(1995) (citation omitted). And when considering

complex factual determinations, including how to

address harmful behavior stemming from supposedly

involuntary conditions, “[t]he lesson [this Court has]

drawn is not that government may not act in the face

of this uncertainty, but rather that courts should pay

particular deference to reasonable legislative

judgments.” Jones v. United States, 463 U.S. 354, 364

n.13 (1983) (discussing insanity).

Homelessness is an issue that touches on the

safety, health, morals, comfort, and welfare of each

locality that it affects. It requires policy solutions

informed by (implicit or explicit) legislative

factfinding in the face of uncertainty. It is thus a

6

challenge that each state’s elected legislatures are

best positioned to address. But the Opinion Below

approaches this complicated problem differently. By

removing a significant part of the power to regulate

homelessness from the legislature and vesting it with

the judiciary, the Opinion Below’s “strange and

sweeping mandate” unconstitutionally injects the

judiciary into the state’s lawmaking process,

foreclosing a legislature’s ability to take the steps

necessary to protect its population from serious and

significant harms. 72 F.4th at 925 (O’Scannlain, J.,

statement respecting denial of rehearing en banc).

For example, under the Opinion Below, if a judge

merely determines that there are more individuals

without homes than the number of beds available in

specific

non-sectarian

shelters,

cities

and

municipalities are prohibited from applying the

deterrent of criminal law to unlawful public camping.

Such a conclusion—unlike democratically made

policies—allows no room for nuance. It pays no

attention to the possibility that some homeless

individuals may stay with friends or family on a given

night. Nor does it consider that some individuals

prefer to live outdoors and that laws may properly

regulate such decisions. Mark Sundeen, Homeless by

Choice: How to Live for Free in America, The Atlantic

(Mar. 7, 2012), https://www.theatlantic.com/national

/archive/2012/03/homeless-by-choice-how-to-live-forfree-in-america/254118/. Instead, the Opinion Below

takes a blunderbuss approach to policymaking that

supplants state and local governments addressing the

complex and everchanging homeless population

within their jurisdictions.

As Judge Milan Smith wrote in his dissent from

the denial of rehearing en banc, the Opinion has

7

“require[d] unelected federal judges . . . to act more

like homelessness policy czars” instead of “Article III

judges applying a discernible rule of law.” 72 F.4th at

943. And as Judge O’Scannlain wrote in his statement

respecting denial of rehearing en banc, the Opinion

Below and Martin deserve blame for “paralyzing local

communities from addressing the pressing issue of

homelessness, and seizing policymaking authority

that our federal system of government leaves to the

democratic process”—two problems that “will be

greatly worsened by the doctrinal innovations

introduced” in the Opinion Below. 72 F.4th at 925.

II. The Opinion Below Entrenches a Plainly

Incorrect

and

Deeply

Damaging

Construction of the Eighth Amendment.

A. A Law That Merely Defines Criminal

Conduct Does Not Impose a Cruel and

Unusual Punishment.

When the Framers drafted the Eighth

Amendment, the language they used had an

understood public meaning, which was “to

proscribe . . . methods of punishment.” Estelle v.

Gamble, 429 U.S. 97, 102 (1976). This is supported by

the words used in the amendment itself—“impos[ing]”

excessive fines or “inflict[ing]” cruel and unusual

punishments. U.S. Const. amend. VIII.

In Harmelin v. Michigan, Justice Scalia analyzed

historical sources and explained that the prohibition

on “cruell and unusuall punishments” as found in the

English Declaration of Rights of 1689, “was primarily

a requirement that judges pronouncing sentence

remain within the bounds of common-law tradition.”

501 U.S. 957, 974 (1991) (Scalia, J., concurring)

(citations omitted). “Wrenched out of its common-law

8

context[] and applied to the actions of a legislature . . .

the Clause [in the Bill of Rights] disables the

Legislature from authorizing particular forms or

‘modes’ of punishment—specifically, cruel methods of

punishment that are not regularly or customarily

employed.” Id. at 975–76 (Scalia, J., concurring).

Moreover,

evidence

from

state

ratifying

conventions “confirms the view that the cruel and

unusual punishments clause was directed at

prohibiting certain methods of punishment.” Id. at

979 (Scalia, J., concurring) (internal quotation marks

and citation omitted). Patrick Henry, speaking at the

Virginia Ratifying Convention, fought against the

absence of a Bill of Rights, arguing that “Congress will

lose the restriction of not . . . inflicting cruel and

unusual punishments. . . . What has distinguished our

ancestors?—They would not admit of tortures, or cruel

and barbarous punishment.” 3 Debates on the Federal

Constitution 447 (J. Elliot 2d ed. 1854). The

Massachusetts Convention likewise heard a

delegate’s objection that, without a ban on such

punishments, “racks and gibbets may be amongst the

most mild instruments of [Congress’s] discipline.” 2

id., at 111.

Ample historical evidence shows that neither the

Framers, nor the state legislators who ratified the

Eighth Amendment, understood it to reach the

substantive authority to criminalize certain acts—

even vagrancy. State and local laws and ordinances on

vagrancy “were ‘derived from early English law.’”

Papachristou v. City of Jacksonville, 405 U.S. 156, 161

(1972). This Court explained that these laws persisted

even through the British Parliament’s “reform of the

Poor Law in the first half of the 19th century.” Id. at

161 n.4. In fact, it was not until 1972 that this Court

9

invalidated commonplace vagrancy laws, and it did so

on void-for-vagueness grounds under the Due Process

Clause of the Fourteenth Amendment. Id. at 162. The

historical record therefore shows that the Eighth

Amendment cannot be read to limit the legislature’s

authority to define criminal conduct.

B. This Court Should Reaffirm the StatusAct Distinction.

The Opinion Below contravenes this Court’s cases

by prohibiting states from passing criminal

ordinances dealing with acts that are in some

instances incident to homelessness. Doing so upends

decades of precedent and needlessly muddies how

state legislatures and local governments may

implement policy solutions. To address this confusion,

the Court should explicitly reaffirm that the proper

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

is that the Eighth Amendment does not prohibit

criminalizing acts, even if those acts involuntarily

flow from status.

As Judge O’Scannlain explained in his statement

regarding denial of rehearing en banc, the Opinion

Below relies on a mistaken reading of Robinson and

Powell v. Texas, 392 U.S. 514 (1968). In Robinson, this

Court held that the Eighth Amendment prohibited

making it a crime “to be addicted to the use of

narcotics.” 370 U.S. at 662 (cleaned up). A state may

create laws “punish[ing] a person for the use of

narcotics, for their purchase, sale or possession, or for

antisocial or disorderly behavior resulting from their

administration.” Id. at 662, 666. The holding and logic

of Robinson are commonly referred to as the “statusact distinction.” States may enact criminal laws that

punish conduct (e.g., “the use of narcotics”) but not

10

those that punish status (e.g., “be[ing] addicted to the

use of narcotics”).

The status-act distinction is supported by this

Court’s caselaw. In Powell, this Court upheld a Texas

statute prohibiting public drunkenness against an

Eighth Amendment challenge asserting that the

alcoholic’s status made him drink in public. 392 U.S.

514. Notably, no majority rejected the status-act line

drawn in Robinson, although the opinion was

fractured along other lines. See id. Justice Marshall’s

four-justice plurality upheld the statute based on

Robinson’s status-act distinction. Id. at 516–37

(plurality). Then, Justice White’s lone concurring

opinion, which provided the dispositive fifth vote,

upheld the statute because it involved a deliberate

act. Id. at 548–54 (White, J., concurring). Although

Justice White upheld the law, he declined to

determine whether a non-volitional act could be

criminalized. Id. Because Justice White did not reach

whether the act in question was compelled, he left

Robinson’s core holding undisturbed. See Manning v.

Caldwell for City of Roanoke, 930 F.3d 264, 289 (4th

Cir. 2019) (en banc) (Wilkinson, J., dissenting).

Despite this Court’s continued application of the

status-act distinction, the Opinion Below, like the

Fourth Circuit’s decision in Manning, turned to

Powell’s fractured decision, attempting to “tease [its]

preferred reading from the dicta” of Justice White’s

concurrence. Manning, 930 F.3d at 290 (Wilkinson, J.,

dissenting). Setting aside the fact that such readings

clearly distort this Court’s instruction from Marks v.

United States that the narrowest position that gained

the support of five justices is treated as the Court’s

holding, 403 U.S. 188 (1977), no majority in Powell

disrupted Robinson’s status-act distinction. Nor did

11

any majority adopt Justice White’s position. Thus, any

attempt to claim that the Opinion Below follows this

Court’s precedent is incorrect. As Judge O’Scannlain

explained, the majority reaches its conclusion by

“stitching together dicta in a lone concurrence with a

dissent.” 72 F.4th at 925 (O’Scannlain, J., statement

respecting denial of rehearing en banc).

III. The Opinion Below Improperly Interferes

With State and Local Policymaking on the

Critically Important Issue of Homelessness.

A. Homelessness

Creates

Real

and

Significant Threats to Public Health.

Homelessness is a complex and persistent problem

that results in health and environmental risks, most

significantly to the homeless themselves.

Homeless men, women, and children are exposed

to an increased risk of rare and serious diseases. The

Central Arizona Shelter Service reports that

Tuberculosis (“TB”) has a prevalence of only 5 out of

100,000 in the general population. Central Arizona

Shelter Services, Homelessness as a Health Crisis,

https://www.cassaz.org/2022/02/homelessness-as-ahealth-crisis. However, it increases by a staggering

880%—to 44 out of 100,000—in the homeless

population. Id. And, because treatment requires an

extended regimen, many of those afflicted will

experience advanced TB. Id. Researchers have also

found increasing numbers of Hepatitis A virus

(“HAV”) in the homeless population, including in

Maricopa County. They concluded that “crowding and

suboptimal hygiene practices might have facilitated

. . . transmission.” Sally Ann Iverson et al., Hepatitis

A

Outbreak

Among

Persons

Experiencing

Homelessness—Maricopa County, Arizona, 2017, 4

12

Open Forum Infectious Diseases (2017). Professor

Marc Siegel, a NYU Langone Health faculty member,

explains that homeless areas are “at risk for the

reemergence of another deadly ancient disease—

leprosy.” Marc Siegel, Is a Dark Ages Disease the New

American Plague Threat?, The Hill (September 08,

2019, 3:00 PM), https://thehill.com/opinion/healthcar

e/460442-is-a-dark-ages-disease-the-new-americanplague-threat/. These diseases are exceptionally rare

in the general population. But they are a fact of life in

homeless encampments.

The homeless also suffer from common disorders

and diseases at rates far greater than the general

public and struggle to manage those diseases once

they arise. They are more likely to suffer from

hypertension (61% of the homeless have hypertension,

compared to 45% of the general population), major

depressive disorder (“MDD”) (45% of homeless women

have MDD, double the rate of the general population),

Hepatitis C (36% of homeless people have Hepatitis C,

compared to 1% of the general population), and

diabetes (18% of the homeless population have

diabetes, double the rate of the general population).

Central Arizona Shelter Services, supra. A lack of

hygiene practices, an inability to meet dietary

requirements, and a lack of access to shelter means

that even minor issues like skin lesions can become

multi-system health complications. Id. Treatment

options are limited or inaccessible until the problem

becomes emergent, fueling high healthcare costs and

poor outcomes. Id.

13

Homelessness also creates improper waste

disposal that can harm a state’s natural environment.

Homelessness often involves public urination and

defecation. The resulting human waste is a biological

hazard that can enter waters and public lands. Circuit

courts interpreting the Clean Water Act have long

recognized that “the most common way by which

pollutants reach the surface waters is through

improper ‘land application’” because “when waste is

excessively or improperly land-applied, the nutrients

contained in the waste become pollutants that can and

often do run off into adjacent waterways or leach into

soil and ground water.” Waterkeeper All., Inc. v. EPA,

399 F.3d 486, 494 (2d Cir. 2005).

All of these health and environmental issues are

proper bases for legislative action.

B. Arizona Suffers From a Crisis of

Unauthorized Homeless Camping in the

Heart of Phoenix.

Arizona has seen a dramatic increase in the

homeless population in the middle of its largest city.

A significant concentration of the homeless population

is in an area known as “The Zone,” located only blocks

from the Arizona capitol building. With up to 1,000

“residents” at certain times, The Zone is one of the

nation’s largest homeless campsites. 2

2 An estimate from the beginning of this month places the

number of residents at “around 550 people,” but recognizes that

the number “could still fluctuate in the coming weeks.” Helen

Rummel, 8th Block of ‘The Zone’ Homeless Encampment in

Phoenix

Cleared

Out

After

Storm,

AZ

Central (Sept. 1, 2023, 1:35 PM), https://www.azcentral.com/sto

ry/news/local/phoenix/2023/09/01/8th-block-of-the-zone-to-becleared-friday-morning-phoenix/70703047007/. Earlier this

summer, it was reported that The Zone was “home to between

14

This area has thus been transformed into a place

of intense poverty, frequent crime, and social

instability. Before 2018, the City of Phoenix enforced

its urban camping ordinances, which allowed people

to sleep on the streets but not to pitch tents. Officers

could prevent a large homeless encampment from

forming. But in 2018, the Ninth Circuit’s decision in

Martin enjoined the city from enforcing camping

ordinances if no shelter beds were available. Although

the City of Phoenix and Maricopa County offer more

than 12,300 beds in homeless shelters, the city’s

ballooning homeless population possibly exceeds

those available beds. Corinne Murdock, A Wasteland

of Corpses, Living and Dead: A Devastating Inside

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

6,

2023),

https://www.goldwaterinstitute.org/awasteland-of-corpses-living-and-dead-a-devastatinginside-look-at-phoenixs-homeless-zone/. Because of

this potentiality, the Ninth Circuit’s precedents have

operated to discourage city and state officials from

preventing public camping as a practical matter.

The result has been an unmitigated disaster. In

November 2022, residents found the burned remains

of a premature baby in the middle of a street. Cassy

Fiano-Chesser, Body of Preborn Child Found Set

Ablaze in Phoenix Homeless Camp, LiveAction

(Nov. 18, 2022, 6:34 PM), https://www.liveaction.org/

news/burned-body-preborn-child-phoenix-homeless/.

A few months later, a homeless man’s burned body

600 and 1,000 people each night.” Juliette Rihl, Phoenix

Planning Campground for Homeless People Living in ‘The Zone.’

Where

it

May

Go,

AZ

Central

(June 29, 2023, 7:47 AM), https://www.azcentral.com/story/news

/local/phoenix/2023/06/27/phoenix-to-build-campground-forhomeless-residents-of-the-zone/70362299007/.

15

was recovered nearby. Miguel Torres, 2 of 3 Suspects

in Fatal Burning Arrested by Phoenix Police, AZ

Central (Apr. 28, 2023, 7:49 AM), https://www.azcent

ral.com/story/news/local/phoenixbreaking/2023/03/23/2-arrested-after-body-foundburning-phoenix-dumpster-the-zone/70043611007/.

The deaths of a man and child, while tragic, were but

two of an increasing number of homeless deaths in

Phoenix. In 2022, the Maricopa County Medical

Examiner’s Office reported 732 homeless deaths in

2022, a 42% increase from the prior year. Maricopa

County Office of the Medical Examiner, Medical

Examiner Annual Report: 2022, 50 (May 2023), https

://www.maricopa.gov/ArchiveCenter/ViewFile/Item/5

601. Defecation, urination, drug deals, assaults,

sexual acts, and rape also occur in the open air with

increasing impunity. Lum, supra

Unsurprisingly, The Zone presents a significant

challenge for law enforcement. In 2022, the Phoenix

Police Department reported 200 incidents in The

Zone’s few-block radius. Murdock, supra. The Zone

has generated well over 4,000 police calls from 2019

through 2022, with 1,200 calls for fire department

assistance alone last year. Id. Press outlets reported

that the Phoenix Fire Department would not respond

to calls about fires in The Zone without police

assistance and assurance that the scene of an incident

is secure. Id. In addition, those articles indicate that

crowds in The Zone are likely to assault the

emergency responders, further hampering any

attempts to alleviate the harsh living conditions

there. Id.

16

C. The Ninth Circuit’s Opinions Thwart the

Legislature's Efforts to Address a Crisis

on Its Own Doorstep.

While The Zone is only a few blocks from the

Arizona capitol, the Ninth Circuit’s Opinion Below

makes it harder for lawmakers to take appropriate

action. As Judge Smith correctly observed, “Martin

handcuffed local jurisdictions as they tried to respond

to the homelessness crisis; [the Opinion Below] now

places them in a straitjacket.” 72 F.4th at 936 (M.

Smith, J., dissenting from denial of rehearing en

banc). Judge Smith is absolutely correct that the

perception by many state and local lawmakers

regarding the effect of the Ninth Circuit’s decisions is

that they create a straitjacket and unnecessary legal

risk, hampering the legislative process.

For example, in 2022, the Arizona Senate passed

Senate Bill (“S.B.”) 1581, which would have allowed

the Arizona Department of Housing to distribute

grants to municipalities and counties to establish

sanctioned camping sites for homeless individuals,

and S.B. 1263, which would have allocated funds to

support emergency and transitional homeless shelter

services. S.B. 1581, 55th Leg., 2nd Reg. Sess. (Ariz.

2022); S.B. 1263, 55th Leg., 2nd Reg. Sess. (Ariz.

2022). In a hearing before the House Appropriations

Committee, the sponsor of these bills, Senator David

Livingston, explained that he had been working on

homeless-related bills for three years and that he was

proud of those bipartisan efforts. See Hearing on S.B.s

1263 and 1581 Before the H. Comm. on

Appropriations, 55th Leg., 2d Reg. Sess. (Ariz. 2022),

https://www.azleg.gov/videoplayer/?eventID=202203

1106, at 2:00:00–2:00:20. Senator Livingston

explained that although “any one of these bills by

17

themselves won’t solve any problems,” legislators

have an “opportunity here to make a historic

difference on homelessness.” Id. at 2:00:28–2:00:41.

He emphasized, “[W]e’ve had 600 people die in

Maricopa County on the streets last year. I don’t know

what else we need to say [but] we need to do more than

what we’re doing and what we’re doing is not

working.” Id. at 2:00:50–2:01:02.

The legislative committee also heard public

testimony about the significant rise in homelessness

over recent years in Maricopa County and The Zone

in particular, as well as the community’s efforts to

provide statewide emergency shelter and services. Id.

at 2:02:23–2:03:02. The Vice Chairman of the

committee, Representative John Kavanagh, discussed

his extensive experience dealing with the homeless

population in New York City as a police officer. Id. at

2:11:42–2:12:50. Representative Kavanagh added, “I

also know that the history of tent encampments in

this country is a disaster.” Id. at 2:12:51–2:12:54. He

criticized “the jungle in San Francisco—which was

eventually shut down by the woke San Francisco

police [who] tolerated it until it got totally out of

control with murders, rapes, and rampant drug use.”

Id. at 2:12:54–2:13:10.

Testifying in support of S.B. 1581 on behalf of a

nonprofit, The Cicero Institute, a consultant told the

committee:

The problem with homelessness is it’s not easily

solvable. We know that. It’s not easily dealt with.

And we know that. This bill . . . envisions us having

a short-term solution where there is none now. We

have cities that are in stasis; they are afraid of

being litigated against, rightfully so. We are

operating under a Ninth Circuit Court of Appeals

18

decision which says that you have to offer a bed for

a homeless person if you ban them from sleeping

on the streets. . . . And you see the result of that.

We see people everywhere. There are a thousand

people just two blocks from here that are camped

out around the human services campus.

Id. at 2:21:24–2:22:23. In the House, lengthy

discussions ensued among legislators about the

impact and legal effect of the Martin decision and

various aspects of this complex humanitarian crisis.

See, e.g., Hearing on S.B. 1581 Before the H. Comm.

on Health and Human Serv., 55th Leg., 2d Reg. Sess.

(Ariz. 2022), https://www.azleg.gov/videoplayer/?even

tID=2022031094&startStreamAt=13307, at 3:22:33–

4:47:06. Neither S.B. 1263 nor S.B. 1581 made it to

the House Floor.

In the spring of 2023, the 56th Legislature

considered even more bills aimed at addressing the

homelessness crisis. Representative Livingston

introduced a comprehensive measure, House Bill

(“H.B.”) 2284. H.B. 2284, 56th Leg., 1st Reg. Sess.

(Ariz. 2023). During a committee hearing, a legislative

attorney

flagged

the

bill

as

potentially

unconstitutional under Martin. See Hearing on H.B.

2284 Before the H. Comm. on Rules, 56th Leg., 1st

Reg. Sess. (Ariz. 2023),https://www.azleg.gov/videopl

ayer/?eventID=2023031023,

at

1:46–5:12.

Representative Livingston later sponsored a Floor

Amendment to the bill, removing the criminal-penalty

provisions. H.B. 2284 (Adopted Floor Amendment),

56th Leg., 1st Reg. Sess. (Ariz. 2023).

19

The Legislature successfully passed S.B. 1413, a

bill that required counties, cities and towns, upon

notice of the existence of a homeless encampment, to

notify the owner to remove the structure from the

location and designated a violation as criminal

trespassing. S.B. 1413, 56th Leg., 1st Reg. Sess. (Ariz.

2023). However, Governor Hobbs vetoed S.B. 1413,

stating that the bill “effectively criminalizes

experiencing homelessness.” Veto of S.B. 1413 (Ariz.

2023) (Veto Letter, June 5, 2023), https://www.azleg.

gov/govlettr/56leg/1r/sb1413.pdf. The Legislature also

passed S.B. 1024, which prohibited persons from

erecting or maintaining full or partial enclosures

(such as tents and boxes) for habitation on public

rights-of-way. S.B. 1024, 56th Leg., 1st Reg. Sess.

(Ariz. 2023). Unfortunately, S.B. 1024 met the same

fate as S.B. 1413. In Governor Hobbs’ veto letter, she

asserted that S.B. 1024 was not “comprehensive”

enough to address Arizona’s housing and

homelessness crisis. See Veto of S.B. 1024 (Ariz. 2023)

(Veto Letter, March 30, 2023), https://www.azleg.gov/

govlettr/56leg/1r/sb1024.pdf.

Despite

these

challenges

and

policy

disagreements, in May 2023, the Legislature passed

and the Governor signed a bipartisan budget that

immediately awarded nearly $20 million in grants to

local governments “for programs that provide shelter

and services to unsheltered persons who are

experiencing homelessness.” S.B. 1720, Sec. 104, 56th

Leg., 1st Reg. Sess. (Ariz. 2023). The City of Phoenix

received more than $13 million of that total, and the

cities of Flagstaff, Mesa, Scottsdale, Tempe, and

Tucson also received grants to serve the unsheltered

population. See Ariz. Dept. of Housing Press Release

(June 7, 2023), https://housing.az.gov/sites/default/fil

20

es/PRESS-State-acts-quickly-and-awards-millions-toaddress-homelessness.pdf.

Accordingly, the Legislature has a strong interest

in crafting policy to address this complex

humanitarian crisis and ensuring that its legislative

judgments and appropriations can be implemented

efficiently without fear of legal invalidity based on an

erroneous interpretation of the Eighth Amendment.

CONCLUSION

Amici respectfully request that the Court grant the

petition for certiorari and provide clarity to

lawmakers on the critically important issue of their

authority to legislate regarding homelessness.

Respectfully submitted,

RUSTY D. CRANDELL

1700 W. Washington St.

Phoenix, Arizona 85007

(602) 926-5544

RCrandell@azleg.gov

Counsel for Amicus

Petersen

LINLEY WILSON

1700 W. Washington St.

Phoenix, Arizona 85007

(602) 926-5418

LWilson@azleg.gov

Counsel for Amicus Toma

BRUNN W. ROYSDEN III*

FUSION LAW, PLLC

7600 N. 15th St.,

Suite 150

Phoenix, Arizona 85020

(602) 315-7545

beau@fusion.law

Counsel for Amici Curiae

*Counsel of record