Amicus Curiae Brief — City of Grants Pass, Oregon, Petitioner v. Gloria Johnson, et al., on Behalf of Themselves and All Others Similarly Situated
Supreme Court briefSep 25, 2023
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No. 23-175
In the Supreme Court of the United States
__________________
CITY OF GRANTS PASS, OREGON, Petitioner,
v.
GLORIA JOHNSON, ET AL., 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 OF INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION, NATIONAL LEAGUE OF CITIES,
NATIONAL ASSOCIATION OF COUNTIES, NORTH
DAKOTA LEAGUE OF CITIES, CITIES OF
ALBUQUERQUE, ANCHORAGE, COLORADO
SPRINGS, HENDERSON, LAS VEGAS, MILWAUKEE,
PROVIDENCE, REDONDO BEACH, SAINT PAUL,
SAN DIEGO, SEATTLE, SPOKANE, AND TACOMA,
THE CITY AND COUNTY OF HONOLULU, AND THE
COUNTY OF SAN BERNARDINO AS AMICI CURIAE
IN SUPPORT OF PETITIONER
__________________
ANN DAVISON
Seattle City Attorney
BRANDON RAIN
Counsel of Record
TOM KUFFEL
GHAZAL SHARIFI
SEATTLE CITY ATTORNEY’S OFFICE
701 Fifth Avenue, Suite 2050
Seattle, WA 98104
(206) 684-8200
brandon.rain@seattle.gov
[Additional Counsel Listed on Inside Cover]
AMANDA KARRAS
General Counsel
ERICH EISELT
Deputy General Counsel
51 Monroe St.
Suite 404
Rockville, MD 20850
Counsel for Amicus Curiae
International Municipal
Lawyers Association
STEPHANIE D.
ENGEBRETSON
Deputy Director
410 E. Front Ave.
Bismarck, ND 58504
Counsel for Amicus Curiae
North Dakota League of
Cities
LAUREN KEEFE
City Attorney
One Civic Plaza NW
Albuquerque, NM 87103
Counsel for Amicus
Curiae City of
Albuquerque, NM
ANNE R. HELZER
Municipal Attorney
632 W. 6th Ave.
Ste. 730
Anchorage, AK 99501
Counsel for Amicus
Curiae City of
Anchorage, AK
WYNETTA MASSEY
City Attorney
30 S. Nevada Ave.
Ste. 501
Colorado Springs, CO
80903
Counsel for Amicus
Curiae City of Colorado
Springs, CO
NICHOLAS G. VASKOV
City Attorney
240 S. Water Street
Henderson, NV 89015
Counsel for Amicus Curiae
City of Henderson, NV
DANA M.O. VIOLA
Corporation Counsel
530 S. King St.
Rm. 110
Honolulu, HI 96813
Counsel for Amicus Curiae
City and County of
Honolulu, HI
JEFF DOROCAK
Las Vegas City Attorney
495 S. Main St.
Las Vegas, NV 89101
Counsel for Amicus Curiae
City of Las Vegas, NV
TEARMAN SPENCER
City Attorney
ROBIN A. PEDERSON
Deputy City Attorney
200 E. Wells Street
Rm. 800
Milwaukee, WI 53202
Counsel for Amicus
Curiae City of
Milwaukee, WI
JEFF DANA
City Solicitor
444 Westminster St.
Ste. 220
Providence, RI 02903
Counsel for Amicus
Curiae City of
Providence, RI
MICHAEL WEBB
City Attorney
415 Diamond St.
Redondo Beach, CA
90277
Counsel for Amicus
Curiae City of Redondo
Beach, CA
LINDSEY M. OLSON
City Attorney
400 City Hall and
Courthouse
Saint Paul, MN 55102
ANN DAVISON
City Attorney
701 Fifth Ave.
Ste. 2050
Seattle, WA 98104
Counsel for Amicus Curiae
City of Saint Paul, MN
Counsel for Amicus
Curiae City of Seattle,
WA
THOMAS D. BUNTON
County Counsel
385 N. Arrowhead Ave.
San Bernardino, CA 92415
Counsel for Amicus Curiae
San Bernardino County,
CA
MARA W. ELLIOTT
City Attorney
1200 Third Ave.
Ste. 1620
San Diego, CA 92101
Counsel for Amicus Curiae
City of San Diego, CA
LYNDEN SMITHSON
City Attorney
808 W. Spokane Falls
Blvd.
Spokane, WA 99201
Counsel for Amicus
Curiae City of
Spokane, WA
WILLIAM C. FOSBRE
City Attorney
747 Market St.
Rm. 1120
Tacoma, WA 98402
Counsel for Amicus
Curiae City of Tacoma,
WA
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTERESTS OF AMICI CURIAE .............................. 1
SUMMARY OF ARGUMENT ..................................... 3
ARGUMENT ................................................................ 4
I.
THE
HOMELESSNESS
CRISIS
IS
COMPLEX AND THE NINTH CIRCUIT’S
DECISIONS HAVE PARALYZED LOCAL
COMMUNITIES’ ABILITY TO ADDRESS IT
IN THE PLACES WHERE IT IS MOST
ACUTE .................................................................. 4
II. THE NINTH CIRCUIT’S RULE RESHAPES
THE
LOCAL
POLICE
POWER
IN
CONFLICT
WITH
THIS
COURT’S
PRECEDENT AND BASIC FEDERALISM
PRINCIPLES ........................................................ 9
A. The Eighth Amendment Does Not Impose
Substantive
Limits
on
Criminal
Responsibility ............................................... 10
B. “Involuntary
Conduct”
Cannot
Be
Summarily Prejudged for An Entire Class
....................................................................... 12
C. The Ninth Circuit’s Rule Is Inconsistent
with This Court’s Other Decisions
Explaining Similar Exercises of Police
Power............................................................. 15
ii
III. THE “SHELTER AVAILABILITY” TEST IS
UNWORKABLE
AND
IMPOSES
FINANCIAL OBLIGATIONS ON LOCAL
GOVERNMENTS IN VIOLATION OF THE
SEPARATION OF POWERS DOCTRINE......... 17
A. Johnson Requires Local Governments to
Provide Shelters at Public Expense ............. 18
B. Johnson’s Shelter Availability Test Is
Unworkable ................................................... 20
IV. STATES
AND
LOCALITIES
ARE
RESPONDING DEMOCRATICALLY WITH
BIPARTISAN LAWS TARGETING THE
CAUSES OF HOMELESSNESS ........................ 24
CONCLUSION .......................................................... 28
iii
TABLE OF AUTHORITIES
Cases
Bearden v. Georgia,
461 U.S. 660 (1983) ............................................... 16
Clark v. Community for Creative Non-Violence,
468 U.S. 288 (1984) ............................................... 15
City of Chicago v. Morales,
527 U.S. 41 (1999) ................................................. 16
City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239 (1983) ............................................... 14
Coal. on Homelessness v. City and Cty. of San
Francisco, __ F. Supp. 3d __,
2022 WL 17905114 (N.D. Cal. Dec. 23, 2022) ...... 18
Coal. on Homelessness v. City and Cty. of San
Francisco, No. 23-15087
(9th Cir.) (Sept. 5, 2023) ........................................ 23
Dandridge v. Williams,
397 U.S. 471 (1970) ............................................... 20
District of Columbia v. Brooke,
214 U.S. 138 (1909) ................................................. 9
Dixon v. United States,
548 U.S. 1 (2006) ................................................... 14
Freddy Brown v. City of Phoenix,
No. CV2022-010439 (Ariz. Super. Ct.)
(Maricopa Cty.) ...................................................... 23
Herrera v. Collins,
506 U.S. 390 (1993) ......................................... 13, 14
iv
Ingraham v. Wright,
430 U.S. 651 (1977) ........................................... 9, 14
Jefferson v. Hackney,
406 U.S. 535 (1972) ............................................... 27
Johnson v. City of Grants Pass,
72 F.4th 868 (9th Cir. 2023)
...................................2-4, 8, 10-13, 15-21, 23, 24, 27
Joyce v. City & Cty. of San Francisco,
846 F. Supp. 843 (N.D. Cal. 1994) ............ 11, 12, 21
Kahler v. Kansas,
589 U.S. ___, 140 S. Ct. 1021 (2020) ..................... 11
Kolender v. Lawson,
461 U.S. 352 (1983) ............................................... 16
Lambert v. California,
355 U.S. 225 (1957) ................................................. 9
Lunn v. City of Los Angeles,
629 F. Supp. 3d 1007 (C.D. Cal. 2022) ................. 23
Martin v. City of Boise,
920 F.3d 584 (9th Cir. 2019)
............................................. 2, 3, 8, 11-13, 17, 23, 27
Papachristou v. City of Jacksonville,
405 U.S. 156 (1972) ......................................... 16, 21
Patterson v. State of Kentucky,
97 U.S. 501 (1878) ................................................... 9
Powell v. Texas,
392 U.S. 514 (1968) ................................... 10, 11, 12
Raines v. Byrd,
521 U.S. 811 (1997) ............................................... 20
v
Robinson v. California,
370 U.S. 660 (1962) ......................................... 10, 12
State v. Deer,
287 P.3d 539 (Wash. 2012) .................................... 14
Tobe v. City of Santa Ana,
892 P.2d 1145 (Cal. 1995) ..................................... 11
Tozer et al v. City of Portland,
No. 3:22-CV-01336 (D. Or. Sept. 6, 2022)............. 23
United States v. Bailey,
444 U.S. 394 (1980) ............................................... 14
United States v. Raines,
362 U.S. 17 (1960) ................................................. 13
Village of Belle Terre v. Boraas,
416 U.S. 1 (1974) ................................................... 17
Legislation
2019 Cal. Stat. ch. 654 (signed Oct. 9, 2019) ...... 25, 26
2019 Or. Laws ch. 639 (signed Aug. 8, 2019) ........... 26
2023 Haw. Sess. Laws act 94 (signed Jun. 21,
2023) ...................................................................... 26
2023 Haw. Sess. Laws act 96 (signed Jun. 21,
2023) ...................................................................... 26
2023 Idaho Sess. Laws ch. 277 (signed Mar. 28,
2023) ...................................................................... 27
2023 Idaho Sess. Laws ch. 67 (signed Mar. 20,
2023) ...................................................................... 27
2023 Mont. Laws ch. 445 (signed May 4, 2023) ....... 26
2023 Wash. Sess. Laws ch. 332 (signed May 10,
2023) ...................................................................... 26
vi
Other Authorities
Roman Battaglia, Grants Pass narrowly approves
$1 million grant for homeless campground,
Oregon
Public
Broadcasting,
https://www.opb.org/article/2022/07/12/grantspass-oregon-grant-funding-homelesscampground/, (July 12, 2022)................................ 19
California Legislative Analyst’s Office, The 202223 Budget: The Governor’s Homelessness Plan,
https://lao.ca.gov/reports/2022/4521/homelessn
ess-plan-020922.pdf, (Feb. 2022) ............................ 7
California State Auditor, Housing, Homelessness,
& Employment Legislation We’re Tracking,
https://www.auditor.ca.gov/issues/legislation/h
ousing-homelessness-and-employment
(last
visited Sept. 18, 2023) ........................................... 26
City of Boise, Modern Zoning Code Documents,
https://www.cityofboise.org/departments/plann
ing-and-development-services/planning-andzoning/zoning-code-rewrite/zoning-codedocuments/, (last visited Sept. 18, 2023) .............. 26
City of Grants Pass, Adopted Operating &
Capital
Budget
Fiscal
Year
2017-18,
https://www.grantspassoregon.gov/DocumentC
enter/View/10828/Complete-Adopted-BudgetFY18?bidId=, (2018) ........................................ 18, 19
City of Los Angeles, Budget Summary FY 20232024, https://cao.lacity.org/budget23-24/202324Budget_Summary.pdf, (last visited Sept. 18,
2023) ...................................................................... 25
vii
City of San Francisco, Dep’t of Homelessness &
Supportive Housing: HSH Budget FY22-23
Adopted,
https://hsh.sfgov.org/about/budget/,
(last visited Sept. 18, 2023) ................................... 25
City of Seattle Mayor Bruce Harrell, One Seattle
Homelessness
Action
Plan,
https://experience.arcgis.com/experience/af548f
d66fc94e98a5067b299b7d1209, (last visited
Sept. 18, 2023) ....................................................... 25
Dennis P. Culhane & Seongho An, Estimated
Revenue of the Nonprofit Homeless Shelter
Industry in the United States: Implications for
a More Comprehensive Approach to Unmet
Shelter Demand, 32 Housing Policy Debate
823 (2022) .............................................................. 19
Chris Daniels, Seattle spent nearly $1 billion on
homelessness, but number of unsheltered
grew,
KOMO
News,
https://komonews.com/news/local/seattlehomeless-crisis-spent-a-billion-dollars-onhomelessness-but-numbers-of-unshelteredgrew-washington-king-county-homelessbudget-money-citywide-spending-humanservices-department-decade-labor-contractstate-of-emergency-organizations-peopleliving, (Apr. 3, 2023) .............................................. 21
viii
KCAL News, Hundreds Of Pounds Of Human
Waste, Needles Cleaned From Former
Homeless Encampment At Echo Park, CBS
Los
Angeles,
https://www.cbsnews.com/losangeles/news/hun
dreds-of-pounds-human-waste-needlescleaned-from-former-homeless-encampmentecho-park/, (May 6, 2021) .................................... 5, 6
Laura Lundquist, Homeless Encampments
Create Additional River Pollution in Missoula,
Missoula
Current
https://missoulacurrent.com/homeless-riverpollution/, (July 24, 2023) ....................................... 6
Steve McCarron, Many homeless people decline
shelter offers by city of Seattle, new report
finds,
KOMO
News,
https://komonews.com/news/projectseattle/many-homeless-people-decline-shelteroffers-by-city-of-seattle-report-finds, (Mar. 23,
2022) ...................................................................... 22
National Association of Counties, Advancing
Local Housing Affordability: Best Practice and
Policy Recommendations for County Leaders,
https://www.naco.org/sites/default/files/docume
nts/Housing%20Task%20Force%20Toolkit_fina
l_1.pdf, (July 2023) ................................................ 25
ix
Anna Patrick, Fentanyl has devastated King
County’s homeless population, and the toll is
getting
worse,
The
Seattle
Times,
https://www.seattletimes.com/seattlenews/homeless/fentanyl-has-devastated-kingcountys-homeless-population-and-the-toll-isgetting-worse/, (May 21, 2023)............................ 6, 7
Seattle Parks & Recreation, Clean City Initiative
June
2022,
https://www.seattle.gov/parks/about-us/plansand-reports/clean-cityinitiative#cleancityreports, (last visited Sept.
18, 2023)................................................................... 6
SF.Gov, Health Streets Data and Information,
https://sf.gov/data/healthy-streets-data-andinformation#-data-and-information,
(last
visited Sept. 20, 2023) ........................................... 22
Adam Shanks, What should solving S.F.’s
unsheltered homelessness cost?, San Francisco
Examiner,
https://www.sfexaminer.com/news/whatshould-solving-sfs-unsheltered-homelessnesscost/article_3431cdcc-ae44-11ed-814fe7827eb49891.html, (updated Mar. 8, 2023)........ 19
Ari Shapiro, Why Some Homeless Choose The
Streets Over Shelters, Talk of the Nation,
https://www.npr.org/2012/12/06/166666265/wh
y-some-homeless-choose-the-streets-overshelters, (Dec. 6, 2012) .......................................... 22
x
U.S. Dep’t of Housing & Urban Dev. (HUD), 2022
Annual Homelessness Assessment Report to
Congress,
29,
(Dec.
2022),
https://www.huduser.gov/portal/sites/default/fil
es/pdf/2022-AHAR-Part-1.pdf ................................ 7
Wilson Walker, San Francisco’s cleanup of
Tenderloin
District
faced
with
steep
challenges,
CBS
News
Bay
Area,
https://www.cbsnews.com/sanfrancisco/news/sf
s-cleanup-of-tenderloin-district-faced-withsteep-challenges/, (Apr. 7, 2023) ....................... 7, 22
Wash. State Auditor, Contracted Homeless
Services: Improving how local governments
prioritize services and manage provider
performance,
report
no.
103130,
https://sao.wa.gov/sites/default/files/audit_repo
rts/PA_Contracted_Homeless_Services_ar1031310.pdf, (Nov. 15, 2022)............................. 5, 27
Wash. State Dep’t of Ecology, $4 Million for
Homeless Encampments Cleanup, pub. no. 2007-002,
https://apps.ecology.wa.gov/publications/docum
ents/2007002.pdf, (Jan. 2020) ................................. 6
Wash. State Dep’t of Transportation, Public
Health
Associated
with
Homeless
Encampments on Department Owned Rights
of
Way,
https://wsdot.wa.gov/sites/default/files/202211/Public-Health-Homeless-EncampmentsReport-November2022.pdf, (Nov. 2022) ................. 6
xi
Nick Watt, California has spent billions to fight
homelessness. The problem has gotten worse,
CNN,
https://www.cnn.com/2023/07/11/us/californiahomeless-spending/index.html, (July 11, 2023)
.......................................................................... 21, 25
Wayne Yoshioka, Homelessness Expected to Top
2018 Legislative Agenda (Again), Hawaii
Public
Radio,
https://www.hawaiipublicradio.org/government
-politics/2018-01-14/homelessness-expected-totop-2018-legislative-agenda-again, (Jan. 14,
2018) ........................................................................ 7
1
INTERESTS OF AMICI CURIAE 1
Established in 1935, the International Municipal
Lawyers Association (“IMLA”) is the oldest and
largest association of attorneys representing United
States municipalities, counties, and special districts.
IMLA’s mission is to advance the responsible
development of municipal law through education and
advocacy by providing the collective viewpoints of
local governments around the county on legal issues
before state and federal appellate courts.
The National League of Cities (“NLC”) is the
country’s largest and oldest organization serving
municipal governments and represents more than
19,000 cities and towns in the United States. NLC
advocates on behalf of cities on critical issues that
affect municipalities and warrant action.
The National Association of Counties (“NACo”) is
the only national organization that represents county
governments in the United States. Founded in 1935,
NACo provides essential services to the nation’s
3,069 counties through advocacy, education, and
research.
The North Dakota League of Cities (“NDLC”) is
comprised of 355 member cities and was formed in
Pursuant to Supreme Court Rules 37.2 and 37.6, Amici
Curiae state that counsel for all parties received notice of the
intention to file this brief at least 10 days prior to the filing
deadline, no counsel for any party authored this brief in whole
or in part, and no outside entity or person, other than Amici
Curiae and its counsel, made any monetary contribution for the
preparation and submission of this brief.
1
2
1912 to support municipal governance throughout
the state through information sharing, education,
and legal advocacy.
The Cities of Albuquerque, Anchorage, Colorado
Springs, Henderson, Las Vegas, Milwaukee,
Providence, Redondo Beach, Saint Paul, San Diego,
Seattle, Spokane, and Tacoma, the City and County
of Honolulu, and the County of San Bernardino, are
local governments of different sizes throughout the
country whose communities are significantly affected
by the homelessness crisis. Each of these entities is
committed to solutions that appropriately balance
compassion with efficacy while also protecting the
livelihood of local businesses and residents.
The decisions in Johnson v. City of Grants Pass,
72 F.4th 868 (9th Cir. 2023), and Martin v. City of
Boise, 920 F.3d 584 (9th Cir. 2019), are of significant
concern to local governments nationwide. Martin
crossed into frontier territory by invoking the Eighth
Amendment to prevent local governments from
enforcing neutral laws against camping on public
property. Four years later, Johnson reinforces that
expedition and establishes a federal outpost in the
West passing a priori judgments on criminal
responsibility by using simple math.
This remodeling of the Constitution’s architecture
is not supported by any precedent, flouts traditional
principles of federalism, and uses a “shelter
availability” test that lacks any limiting principle.
This Court should grant certiorari and overrule both
Martin and Johnson to restore the power to address
homelessness to local communities and their elected
officials.
3
SUMMARY OF ARGUMENT
A town’s power to keep the town square open to
the public has never been seriously questioned
before. But under the guise of the Eighth
Amendment, the Ninth Circuit in Johnson affirmed a
permanent injunction restraining a city of 38,000
people from enforcing public camping prohibitions
unless the city first provides a shelter bed for each of
the estimated 600 homeless individuals in the
jurisdiction. The majority reasoned that the class of
homeless
plaintiffs
were
immunized
from
enforcement of camping bans because living on public
land is an “involuntary act or condition [that] is the
unavoidable consequence” of being homeless.
Johnson, 72 F.4th at 892 (quotation omitted).
Homelessness is a complex and serious social
issue that cries out for effective legislative responses.
The Ninth Circuit’s decisions in Martin and Johnson
tie the hands of local policymakers and make solving
this crisis harder. The unprincipled “shelter
availability” test encourages federal courts to place
new substantive limits around the police power and
then prejudge whether a person’s future conduct will
be “involuntary” without any individualized inquiry.
This unprecedented methodology is unworkable.
As a practical matter, these decisions compel local
governments to choose between providing shelter or
surrendering public lands to encampments that harm
local communities. This separation of powers
violation has a substantial impact on local budgets
and appropriates limited tax dollars for the direct
benefit of a disproportionately small percentage of
4
the population. It also presupposes that temporary
shelter beds are the solution to homelessness,
channeling local resources away from longer-term
solutions like permanent supportive housing, mental
healthcare, drug rehabilitation, and low-income
housing support.
The social complexities of homelessness defy this
compulsory one-dimensional response. State and
local legislatures across the country are enacting new
responses to address both the underlying causes of
homelessness and the imperative to preserve
communities as desirable places to live and work.
These tough decisions involve philosophical
compromises and fiscal tradeoffs; a balancing act the
Constitution leaves to local governments to perform.
The Ninth Circuit’s approach is flawed in theory and
unworkable in practice. This Court should grant
certiorari to end this harmful experiment.
ARGUMENT
I.
THE HOMELESSNESS CRISIS IS COMPLEX AND
THE NINTH CIRCUIT’S DECISIONS HAVE
PARALYZED LOCAL COMMUNITIES’ ABILITY TO
ADDRESS IT IN THE PLACES WHERE IT IS MOST
ACUTE.
Everyone agrees that “homelessness is a serious
issue ‘caused by a complex mix of economic, mentalhealth, and substance-abuse factors.’” Johnson, 72
F.4th at 923 (Silver, J., statement regarding denial of
reh’g, (quoting M. Smith, J., at 935, dissenting from
denial of reh’g)). The dispute lies in finding an
5
agreeable response. Local elected representatives
searching for answers have the arduous task of
balancing strong human emotions, nuanced data,
competing community interests, complex underlying
causes of the problem, and limited budgets. This is a
quintessentially democratic endeavor.
The friction in many communities affected by
homelessness is at a breaking point. Despite massive
infusions of public resources, businesses and
residents are suffering the increasingly negative
effects of long-term urban camping. As summarized
last year by a state auditor, “Washingtonians are
growing more frustrated and concerned as the
number of people living on the streets and in
encampments continues to grow, even as government
spends more on programs to address homelessness.” 2
The impact that homeless encampments have on
surrounding areas is undeniable. In addition to
monopolizing common spaces like parks and
sidewalks, the “unavoidable consequence” of
encampments includes enormous volumes of garbage,
human waste, and other health hazards like used
needles. 3 In just one month in 2022, the City of
Wash. State Auditor, Contracted Homeless Services:
Improving how local governments prioritize services and
manage provider performance, report no. 103130, 3,
https://sao.wa.gov/sites/default/files/audit_reports/PA_Contracte
d_Homeless_Services_ar-1031310.pdf, (Nov. 15, 2022).
2
KCAL News, Hundreds Of Pounds Of Human Waste, Needles
Cleaned From Former Homeless Encampment At Echo Park,
CBS
Los
Angeles,
https://www.cbsnews.com/losangeles/news/hundreds-of-pounds3
6
Seattle collected 671,169 pounds of undisposed trash
and 46,497 used needles from encampments. 4
Similarly, the vast majority of encampment cleanups
on Washington thoroughfares since 2017 have
required disposal of human waste, hypodermic
needles, and trash. 5 Solid waste is an “inevitable
result of most homeless encampments.” 6 These
environmental effects are even more pronounced
when encampments are located near waterways,
such as the river running through Missoula. 7
Encampments are dangerous to the homeless with
disease, physical violence, and skyrocketing fentanyl
overdoses. 8 They also have an intensely negative
human-waste-needles-cleaned-from-former-homelessencampment-echo-park/, (May 6, 2021).
Seattle Parks & Recreation, Clean City Initiative June 2022,
https://www.seattle.gov/parks/about-us/plans-and-reports/cleancity-initiative#cleancityreports, (last visited Sept. 18, 2023).
4
Wash. State Dep’t of Transportation, Public Health
Associated with Homeless Encampments on Department Owned
Rights of Way, https://wsdot.wa.gov/sites/default/files/202211/Public-Health-Homeless-Encampments-ReportNovember2022.pdf, (Nov. 2022).
5
Wash. State Dep’t of Ecology, $4 Million for Homeless
Encampments
Cleanup,
pub.
no.
20-07-002,
https://apps.ecology.wa.gov/publications/documents/2007002.pdf
, (Jan. 2020).
6
Laura Lundquist, Homeless Encampments Create Additional
River
Pollution
in
Missoula,
Missoula
Current
https://missoulacurrent.com/homeless-river-pollution/, (July 24,
2023).
7
Anna Patrick, Fentanyl has devastated King County’s
homeless population, and the toll is getting worse, The Seattle
Times,
https://www.seattletimes.com/seattle8
7
impact on neighboring residents. Most report a
plummeting quality of life, and businesses
exasperated by the increased crime and decreased
sales will often relocate to new markets. 9 These
circumstances strain local infrastructure and make
homelessness a top legislative priority in many
areas. 10
In the last fifteen years, homeless populations
have also spiked in regional pockets from coast to
coast. From 2007-2022, the number of homeless
individuals in California increased by 31.6%; in New
York by 40.3%; in Washington by 40.9%; in Oregon
by 47.8%; and in Minnesota by 51.6%. U.S. Dep’t of
Housing & Urban Dev. (HUD), 2022 Annual
Homelessness Assessment Report to Congress, 29,
(Dec. 2022). 11 Today, more than half of the people
news/homeless/fentanyl-has-devastated-king-countys-homelesspopulation-and-the-toll-is-getting-worse/, (May 21, 2023).
Wilson Walker, San Francisco’s cleanup of Tenderloin District
faced with steep challenges, CBS News Bay Area,
https://www.cbsnews.com/sanfrancisco/news/sfs-cleanup-oftenderloin-district-faced-with-steep-challenges/, (Apr. 7, 2023);
see also Petition at 31-34 n. 5-13.
9
E.g., California Legislative Analyst’s Office, The 2022-23
Budget:
The
Governor’s
Homelessness
Plan,
https://lao.ca.gov/reports/2022/4521/homelessness-plan020922.pdf, (Feb. 2022); Wayne Yoshioka, Homelessness
Expected to Top 2018 Legislative Agenda (Again), Hawaii
Public Radio, https://www.hawaiipublicradio.org/governmentpolitics/2018-01-14/homelessness-expected-to-top-2018legislative-agenda-again, (Jan. 14, 2018).
10
https://www.huduser.gov/portal/sites/default/files/pdf/2022AHAR-Part-1.pdf.
11
8
experiencing homelessness live in the four corners of
the continental states, with over a third on the
western seaboard. See id. at 16 (states with highest
percentages of national homeless population are
California (30%), New York (13%), Florida (5%), and
Washington (4%)). Altogether, 42% of the Nation’s
homeless reside in the nine states in the Ninth
Circuit, and more than half of the unsheltered
population are in California alone. Id.
It is not clear why certain areas have seen such
dramatic increases in homeless populations. As
observed by Judge Bress, homelessness is “the result
of a complex interaction of forces that defies any easy
solution.” Johnson, 72 F.4th at 945 (Bress, J.,
dissenting from denial of reh’g). What is clear,
however, is that while homelessness presents a
vexing societal problem for local governments across
the country, the decisions in Martin and Johnson
have an outsized impact given the disproportionately
large homeless population out West.
The circuit split discussed in the Petition
warrants certiorari on its own. The fact that such a
large portion of the national homeless population
resides in the Ninth Circuit increases the urgency of
this Court’s intervention.
9
II. THE NINTH CIRCUIT’S RULE RESHAPES THE
LOCAL POLICE POWER IN CONFLICT WITH THIS
COURT’S PRECEDENT AND BASIC FEDERALISM
PRINCIPLES.
A town that is not allowed to keep its sidewalks
clear and parks open is not really a town at all. It is
just a cluster of people living close together.
This preeminent, fundamental function of local
governance has always been recognized by this
Court. As Justice Harlan wrote more than a century
ago, “the police power extends, at least, to the
protection of the lives, the health, and the property of
the community against the injurious exercise by any
citizen of his own rights.” Patterson v. State of
Kentucky, 97 U.S. 501, 504 (1878). It is axiomatic
that “of all the powers of local government, the police
power is ‘one of the least limitable.’” Lambert v.
California, 355 U.S. 225, 228 (1957) (quoting District
of Columbia v. Brooke, 214 U.S. 138, 149 (1909)).
Taking steps to stop people from living in
common spaces is at the bedrock of this “least
limitable” authority. The Ninth Circuit held,
however, that this basic use of local power is
preempted by the tiny corner of the Eighth
Amendment that imposes “substantive limits on
what can be made criminal.” See Ingraham v. Wright,
430 U.S. 651, 667 (1977). Even more troubling, the
Ninth Circuit decided that enforcement of these
traditional laws should be enjoined as to anyone who
is “involuntarily homeless” whenever a local
government does not provide sufficient shelter space
to house them.
10
This
is
problematic
on
several
levels.
Substantively, it creates a federal doctrine of
criminal responsibility. Procedurally, it converts
generalized assumptions about individual conduct
into a class-based immunity against enforcement of
facially constitutional laws. Institutionally, the rule
and reasoning in Johnson sharply clash with this
Court’s other decisions describing the substance and
scope of the police power.
A. The Eighth Amendment Does Not
Impose Substantive Limits on Criminal
Responsibility.
In Robinson v. California, 370 U.S. 660 (1962),
this Court held that a California statute
criminalizing the illness of narcotic addiction violated
the Eighth Amendment’s prohibition against cruel
and unusual punishment. This result was reached
because on its face the law was “not one which
punishes a person for the use of narcotics” or “for
antisocial
or
disorderly
behavior
resulting”
therefrom, but rather allowed a person to “be
continuously guilty of this offense, whether or not he
has ever used or possessed any narcotics within the
State . . . [or] been guilty of any antisocial behavior
there.” Id. at 660.
The statute at issue there was unique. Six years
later this Court refused to extend Robinson to
purportedly involuntary conduct because “there is a
substantial definitional distinction between a ‘status’
. . . and a ‘condition.’” Powell v. Texas, 392 U.S. 514,
533 (1968). If this line is blurred, then “it is difficult
11
to see any limiting principle” that would “prevent
this Court from becoming . . . the ultimate arbiter of
the standards of criminal responsibility.” Id. This
Court reiterated this point three years ago,
explaining that defining criminal responsibility is an
ever-evolving endeavor “demanding hard choices
among values” and so “is a project for state
governance, not constitutional law.” Kahler v.
Kansas, 589 U.S. ___, 140 S. Ct. 1021, 1037 (2020).
In two decisions over four years, the Ninth Circuit
unraveled this precedent and started sculpting
substantive criminal law “under the aegis of the
Cruel and Unusual Punishment Clause.” See Powell,
392 U.S. at 533. First, in Martin, the Ninth Circuit
decided that a person’s purportedly involuntary
conduct cannot be punished “on the false premise
they had a choice in the matter.” 920 F.3d at 617.
Next, the court amplified this reasoning in Johnson
by upholding a class-wide injunction and explaining
that “a person cannot be prosecuted for involuntary
conduct if it is an avoidable consequence of one’s
status.” 72 F.4th at 893.
Homelessness is too impermanent and amorphous
to be a “status.” Factors “such as the involuntariness
of the acquisition of that quality (including the
presence or not of that characteristic at birth), and
the degree to which an individual has control over
that characteristic” distinguish a “status” from a
“condition.” Tobe v. City of Santa Ana, 892 P.2d 1145,
1166-67 (Cal. 1995) (citations removed). Labelling
homelessness a “status” also denies “the efficacy of
acts of social intervention to change the condition of
those currently homeless.” Joyce v. City & Cty. of San
12
Francisco, 846 F. Supp. 843, 857 (N.D. Cal. 1994).
The act of camping on a public street is like the
alcoholic compelled to drink in Powell. Prohibiting
this conduct is nothing like a law that imposes
punishment for passively suffering from an addiction.
The decisions in Martin and Johnson erode any
distinction between “status” and “condition” and
create “a federal constitutional prohibition on the
criminalization of purportedly nonvolitional conduct.”
Johnson, 72 F.4th at 928 (O’Scannlain, J., respecting
denial of reh’g). That result flies in the face of this
Court’s holdings in Robinson and Powell.
B. “Involuntary Conduct” Cannot Be
Summarily Prejudged for An Entire
Class.
Even imagining that the rule from Martin could
somehow be squared with Robinson and Powell, the
outcome in Johnson plainly cannot. This on its own
warrants the Court’s intervention.
The procedural differences between the two
decisions are significant. In Martin there were six
identified plaintiffs who, after being cited for
violating Boise’s ordinances, brought individual §
1983 actions seeking retrospective and prospective
relief. 920 F.3d at 603-04. The district court granted
summary judgment for Boise, but the Ninth Circuit
reversed because there was a “genuine issue of
material fact concerning whether [the plaintiffs] have
been denied access to shelter.” Id. at 617 n. 9. The
Martin court at least stayed within earshot of the
admonition to only “adjudge the legal rights of
13
litigants in actual controversies” and not “formulate
a rule of constitutional law broader than is required.”
See United States v. Raines, 362 U.S. 17, 21 (1960).
By contrast, the district court in Johnson certified
a class of all “involuntarily homeless individuals
living in Grants Pass,” granted summary judgment,
and then issued a permanent injunction. 72 F.4th at
878. The Ninth Circuit affirmed that individualized
inquiries were not needed given the “complete
absence of evidence that Plaintiffs are voluntarily
homeless.” Id. at 894. As pointed out by Judge
Graber, this moon leap from Martin “is a step too far
from the individualized inquiries inherent” to the
Eighth Amendment and injunctive relief. Id. at 932
(Graber, J., dissenting from denial of reh’g).
Determining facts like whether someone has
previously “declined offers of temporary housing” are
an essential part of assessing whether that person’s
conduct is involuntary. Id. at 938 (M. Smith, J.,
dissenting from denial of reh’g). “It blinks reality to
say that the district court could, ‘in one stroke,’
resolve the constitutionality of the public-camping
ban as applied to each of the” class members here. Id.
at 939 (quoting majority opinion, at 811).
There is no precedent for issuing an injunction
against a facially constitutional law on the theory
that a class of prospective defendants might engage
in conduct that may be an “unavoidable consequence”
of their future status or being. Judgments about
culpability do not typically precede the conduct. They
are instead made at trial – “the paramount event for
determining the defendant’s guilt or innocence” –
rather than on affidavits that provide no
14
“opportunity to make credibility determinations.” See
Herrera v. Collins, 506 U.S. 390, 416 (1993).
Trial courts resolve comparable questions of
individual culpability every day. Familiar common
law defenses like necessity, duress, and automatism
excuse similar claims of unavoidable conduct
purportedly caused by circumstances outside the
defendant’s control. E.g., United States v. Bailey, 444
U.S. 394, 411-12 (1980) (necessity); Dixon v. United
States, 548 U.S. 1, 13(2006) (duress); State v. Deer,
287 P.3d 539 (Wash. 2012) (somnambulism). For
each of these defenses, the burden is generally on the
defendant to prove it at trial.
There is no principled reason for a federal court
to prejudge whether a group of people will engage in
involuntary conduct in the future. If the Constitution
prohibits penalizing someone who violates public
camping bans because they say they have nowhere
else to go, then that issue can only be decided with
the benefit of the specific facts and context of a
particular incident, either during pretrial hearings,
trial, or sentencing before punishment is imposed. Cf.
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244
(1983) (noting “the Eighth Amendment has no
application” until there has been a “formal
adjudication of guilt,” citing Ingraham, 430 U.S. at
671 n. 40).
15
C. The Ninth Circuit’s Rule Is Inconsistent
with This Court’s Other Decisions
Explaining Similar Exercises of Police
Power.
The blanket exemption from criminal process
created in Johnson conflicts with this Court’s
analyses in past cases describing the scope and
substance of the local police power. Faced with
different constitutional questions but similar fact
patterns, this Court has explained the interests
justifying the police power and the limitations on its
use but has not implied that there might also be a
hidden immunity protecting those who suffer the
socioeconomic or behavioral issues often associated
with homelessness.
This Court highlighted these state interests in a
free speech case presenting almost identical facts. In
Clark v. Community for Creative Non-Violence, the
National Park Service granted an advocacy group’s
application to erect a short-term symbolic tent city in
Lafayette Park “to call attention to the plight of the
homeless,” but denied the group’s request for a
special use permit that would have allowed
demonstrators to sleep there overnight. 468 U.S. 288,
289 (1984). Agreeing that “sleeping” was conduct and
assuming that it was also expressive, this Court had
“very little trouble concluding that the Park Service
may prohibit overnight sleeping in the parks involved
here.” Id. at 295. This Court explained why the
“substantial interest” in maintaining attractive parks
was sufficient:
16
To permit camping – using these areas
as living accommodations – would be
totally inimical to these purposes, as
would be readily understood by those
who have frequented the National Parks
across the country and observed the
unfortunate
consequence
of
the
activities of those who refuse to confine
their camping to designated areas.
Id. at 296.
The limits this Court has placed on the police
power are typically more procedural than
substantive. For example, in the vagrancy cases this
Court struck down unconstitutionally vague laws
directed at behaviors akin to camping on public land.
See, e.g., Papachristou v. City of Jacksonville, 405
U.S. 156, 170-71 (1972) (e.g., “nightwalking”);
Kolender v. Lawson, 461 U.S. 352, 361 (1983)
(“credible and reliable identification”); City of
Chicago v. Morales, 527 U.S. 41, 64 (1999) (“criminal
street gang loitering”). The authority to regulate the
underlying conduct was never truly in doubt, and
this Court never suggested there might be a general
“vagrancy status” immunity lurking in the shadows.
Cf. Bearden v. Georgia, 461 U.S. 660, 669 (1983)
(“poverty in no way immunizes a person from
punishment”). The problem was simply insufficient
notice of what conduct was prohibited.
Zoning laws provide a bird’s eye view of the
disconnect between Johnson and the government
interests justifying the police power. This Court has
explained that zoning schemes are valid because the
“police power is not confined to elimination of filth,
17
stench and unhealthy places” but also extends to
legislation that sets “out zones where family values,
youth values, and the blessings of quiet seclusion and
clean air make the area a sanctuary for people.”
Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974).
Homeless encampments directly undermine these
legitimate aims and turn zoning schemes into hollow
promises.
The premise of Martin is directly contradicted by
this Court’s Eighth Amendment jurisprudence.
Johnson inflates this incorrect premise and creates
conflict with other constitutional doctrines. Certiorari
is warranted.
III. THE “SHELTER AVAILABILITY” TEST IS
UNWORKABLE
AND
IMPOSES
FINANCIAL
OBLIGATIONS ON LOCAL GOVERNMENTS IN
VIOLATION OF THE SEPARATION OF POWERS
DOCTRINE.
The shelter availability calculus is unworkable
and has the practical effect of imposing a judge-made
financial obligation on local governments to provide
public shelter options, regardless of whether local
policymakers and their experts believe that is the
best way to address homelessness. This test is made
even more impracticable because it determines
whether a population is “involuntarily homeless”
while also failing to supply a workable definition of
that term. Unconstrained by any limiting principle,
this cursive separation of powers violation has
massive budgetary ramifications.
18
A. Johnson Requires Local Governments to
Provide Shelters at Public Expense.
The holding in this case is that Grants Pass may
not enforce its anti-camping ordinances “when there
is no shelter space available.” Johnson, 72 F.4th at
896. Applying this holding, district courts have
ordered similar injunctions to remain in effect “as
long as there are more homeless individuals in [the
jurisdiction] than there are beds available.” Coal. on
Homelessness v. City and Cty. of San Francisco, __ F.
Supp. 3d __, 2022 WL 17905114, *28 (N.D. Cal. Dec.
23, 2022).
Injunctions like these amount to a forced choice:
build more shelter or surrender public spaces. As
noted infra at n. 14, many jurisdictions are devoting
hundreds of millions of dollars each year to homeless
services but continue losing ground. Because local
governments are not usually permitted to incur
budget deficits, spending in any amount necessarily
means fewer resources for other programs or forms of
public assistance. Smaller jurisdictions have even
less flexibility to absorb these types of costs as a
constitutional obligation.
The numbers from the City of Grants Pass
illustrate this point. When this case was commenced
in 2018 Grants Pass had an annual budget of
$133,684,078. 12 The town’s population at that time
was about 38,000 and “there were at least 600
City of Grants Pass, Adopted Operating & Capital Budget
Fiscal
Year
2017-18,
25,
https://www.grantspassoregon.gov/DocumentCenter/View/10828
/Complete-Adopted-Budget-FY18?bidId=, (2018).
12
19
homeless persons in the City.” Johnson, 72 F.4th at
886. The national average cost of providing basic
shelter has been conservatively 13 estimated to be
about $16,000/unit/year. Dennis P. Culhane &
Seongho An, Estimated Revenue of the Nonprofit
Homeless Shelter Industry in the United States:
Implications for a More Comprehensive Approach to
Unmet Shelter Demand, 32 Housing Policy Debate
823, 830-33 tbl. 4 (2022) (relying on 2015 HUD
Housing Inventory Count data).
Using these numbers, to avoid the injunction
Grants Pass needed to apportion at least $9.6M
($16,000/bed x 600 people) that year. That would
have meant earmarking 7.2% of the town’s budget for
the direct benefit of 1.6% of the population at more
than four times the $2.25M allocation for park
operations and maintenance. See Grants Pass
Budget, 143, supra, n. 12.
This new spending must be offset by either
cutting other programs or levying higher taxes.
Tradeoffs like these are, in any context,
This estimate is likely well below what the actual cost would
be. Annual shelter costs per unit are estimated to be between
$58,400 and $70,400 in San Francisco, and at least $50,000 in
New York. See Adam Shanks, What should solving S.F.’s
unsheltered homelessness cost?, San Francisco Examiner,
https://www.sfexaminer.com/news/what-should-solving-sfsunsheltered-homelessness-cost/article_3431cdcc-ae44-11ed814f-e7827eb49891.html, (updated Mar. 8, 2023). Just building
a homeless campground in Grants Pass would require $1M.
Roman Battaglia, Grants Pass narrowly approves $1 million
grant for homeless campground, Oregon Public Broadcasting,
https://www.opb.org/article/2022/07/12/grants-pass-oregongrant-funding-homeless-campground/, (July 12, 2022).
13
20
fundamentally local compromises that should be
struck democratically. This is particularly true for
spending on public assistance, where this Court has
recognized that other than imposing procedural
safeguards, “the intractable economic, social, and
even philosophical problems presented by public
welfare assistance programs are not the business of
this Court.” See Dandridge v. Williams, 397 U.S. 471,
487 (1970); cf. Raines v. Byrd, 521 U.S. 811, 820
(1997) (noting the “overriding and time-honored
concern about keeping the Judiciary’s power within
its proper constitutional sphere”).
B. Johnson’s Shelter Availability Test Is
Unworkable.
Johnson’s narrow focus on shelter availability
exacerbates these budgetary impacts by failing to
supply any discernable limiting principle. In addition
to filtering out any inquiry into an individual’s
personal circumstances or decisions, Johnson’s
approach provides no room to consider a local
government’s size or resources, or the world outside
of that isolated jurisdiction. Moreover, the decision
fails to define what makes someone “involuntarily”
homeless or what constitutes “adequate” shelter.
If there were, for example, five homeless people in
a small town with one park and few residents,
Johnson requires that town to provide either shelter
or camping space. This is true even if that would
mean cutting the library’s budget or relinquishing
the children’s ballfield. Then, if the homeless
population increased to ten people, or to one
21
hundred, the rule says the town must keep pace.
Other factors like whether a person had just arrived,
or if they had options available in another
jurisdiction, don’t come into play.
The inevitable ratcheting effect this will have on
local budgets is obvious. Compounding that, Johnson
also has the perverse impact of requiring
municipalities to disparately enforce local laws.
“[A]ny persons who did not possess such a residence
would be immunized from enforcement of camping
and lodging prohibitions, while those who did possess
such a residence would not.” See Joyce, supra, 846 F.
Supp. at 852. Requiring this result runs against the
principle that “[t]he rule of law, evenly applied to
minorities as well as majorities, to the poor as well as
the rich, is the great mucilage that holds society
together.” Papachristou, 405 U.S. at 171.
On top of these structural flaws, Johnson also
glosses over the reality that homeless populations
continue to rise in jurisdictions that are already
devoting considerable public resources to homeless
services. 14 There are many reasons for this, but one
E.g., Nick Watt, California has spent billions to fight
homelessness. The problem has gotten worse, CNN,
https://www.cnn.com/2023/07/11/us/california-homelessspending/index.html, (July 11, 2023); also, Chris Daniels,
Seattle spent nearly $1 billion on homelessness, but number of
unsheltered
grew,
KOMO
News,
https://komonews.com/news/local/seattle-homeless-crisis-spenta-billion-dollars-on-homelessness-but-numbers-of-unshelteredgrew-washington-king-county-homeless-budget-money-citywidespending-human-services-department-decade-labor-contractstate-of-emergency-organizations-people-living, (Apr. 3, 2023).
14
22
source of frustration for local governments has been
the high rate of shelter offers that are declined. A
2021 study in Seattle found that offers of shelter
were declined 52% of the time. 15 San Francisco
similarly reports that over half of shelter offers have
been declined since 2021. 16 A person’s reasons for
declining shelter will vary by individual and
circumstance but can include such factors as policies
prohibiting pets or drugs, uncomfortable congregate
sleeping arrangements, theft of personal belongings,
in-out schedules, physical violence, and the lack of
private accommodations for couples. 17
These reasons are not irrational. Undoubtedly,
sleeping outdoors can afford more freedom and
autonomy than congregate sleeping arrangements.
But this also shows that, at least for some people
sometimes, personal decisions and preferences can
play a role in whether someone continues to be
unsheltered. Getting a person off the street is not
Steve McCarron, Many homeless people decline shelter offers
by city of Seattle, new report finds, KOMO News,
https://komonews.com/news/project-seattle/many-homelesspeople-decline-shelter-offers-by-city-of-seattle-report-finds,
(Mar. 23, 2022).
15
See SF.Gov, Health Streets Data and Information,
https://sf.gov/data/healthy-streets-data-and-information#-dataand-information, (last visited Sept. 20, 2023).
16
E.g., Ari Shapiro, Why Some Homeless Choose The Streets
Over
Shelters,
Talk
of
the
Nation,
https://www.npr.org/2012/12/06/166666265/why-some-homelesschoose-the-streets-over-shelters, (Dec. 6, 2012); see also, Walker,
supra n. 9.
17
23
always as simple as just providing an alternative
place to go.
This underscores the fundamental problem with
the Ninth Circuit’s failure to define “involuntarily
homeless” as anything other than those who “do not
‘have access to adequate temporary shelter.’”
Johnson, 72 F.4th at 875 n.2 (quoting Martin, 920
F.3d at 617 n.8). These opinions also leave “adequate
temporary shelter” undefined other than to exclude
facilities with a “mandatory religious focus.” Id. at
877. These ambiguities will continue to give rise to
appeals that “raise[] the sole issue of the definition of
‘involuntarily homeless.’” See Coal. on Homelessness
v. City and Cty. of San Francisco, No. 23-15087, Dkt.
88 (9th Cir.) (Sept. 5, 2023) (minute entry denying
San Francisco’s motion to modify injunction).
Local governments need clarity now (not later) to
tackle this mounting social problem. Homeless
encampments have grown while federal injunctions
under Martin have enjoined local governments from
removing them. See, Johnson, 72 F.4th at 940-43 (M.
Smith, J., dissenting from denial of reh’g). But
localities are also being sued for not removing
encampments, by business proprietors losing their
livelihood, Freddy Brown v. City of Phoenix, No.
CV2022-010439 (Ariz. Super. Ct.) (Maricopa Cty.)
(Aug. 10, 2022), homeowners upset by the expanding
nuisance across the street, Lunn v. City of Los
Angeles, 629 F. Supp. 3d 1007 (C.D. Cal. 2022), and
people in wheelchairs who are unable to use the
sidewalks. Tozer et al v. City of Portland, No. 3:22CV-01336 (D. Or. Sept. 6, 2022).
24
The legal pandemonium created by Johnson’s
“crude population-level inquiry” is dizzying to elected
officials struggling to find answers to homelessness.
72 F.4th at 936 (M. Smith, J., dissenting from denial
of reh’g). They are left wondering what tools remain
available, and what the rules of this new game are.
This Court should grant certiorari on this issue of
“exceptional practical and institutional importance”
and reverse the Ninth Circuit’s unworkable decision
that “undermines the power of the state and local
governments to address the homelessness crisis.” Id.
at 931 (O’Scannlain, J., respecting denial of reh’g).
IV. STATES AND LOCALITIES ARE RESPONDING
DEMOCRATICALLY WITH BIPARTISAN LAWS
TARGETING THE CAUSES OF HOMELESSNESS.
At its center, this case is not really about the
Eighth Amendment. It is about what role the
Constitution and federal judges should play in
solving the complex social issues that emerge in
modern life. Judge Bress, joined by eleven other
judges, expressed this point. “Not every challenge we
face is constitutional in character. Not every problem
in our country has a legal answer that judges can
provide. This is one of those situations.” 72 F.4th at
945 (Bress, J., dissenting from denial of reh’g).
Elected representatives at the state and local
level are performing the hard work of democracy
while also investing enormous resources in homeless
services. For example, Los Angeles is devoting a
staggering $1.3B (10% of its total budget) to
25
homelessness in the 2023-24 fiscal year. 18 San
Francisco invested $672M in 2022-23 which is
comparable to surrounding years. 19 Seattle similarly
spent $153.7M in 2023. 20 In the last four years, the
State of California allocated $17.5B for homelessness
responses. See Watt, supra n. 14.
While these emergency responses are being
delivered, state and local governments are also
following the policy research that emphasizes using
coordinated efforts to address the “complex,
multifaceted and interdependent” factors that drive
unaffordable housing and long-term homelessness. 21
California, for example, implemented a wide array of
housing reforms as part of the Housing Crisis Act of
2019, see 2019 Cal. Stat. ch. 654 (signed Oct. 9,
City of Los Angeles, Budget Summary FY 2023-2024, 4,
https://cao.lacity.org/budget23-24/2023-24Budget_Summary.pdf,
(last visited Sept. 18, 2023).
18
City of San Francisco, Dep’t of Homelessness & Supportive
Housing:
HSH
Budget
FY22-23
Adopted,
https://hsh.sfgov.org/about/budget/, (last visited Sept. 18, 2023).
19
City of Seattle Mayor Bruce Harrell, One Seattle
Homelessness
Action
Plan,
https://experience.arcgis.com/experience/af548fd66fc94e98a5067
b299b7d1209, (last visited Sept. 18, 2023).
20
E.g., National Association of Counties, Advancing Local
Housing
Affordability:
Best
Practice
and
Policy
Recommendations
for
County
Leaders,
3,
https://www.naco.org/sites/default/files/documents/Housing%20
Task%20Force%20Toolkit_final_1.pdf, (July 2023).
21
26
2019), and continues to introduce new laws each year
that are monitored for efficacy by the state auditor. 22
Just earlier this year, Washington and Montana
passed bipartisan measures overhauling traditional
single-family zoning laws to increase urban housing
density. See, e.g., 2023 Wash. Sess. Laws ch. 332
(signed May 10, 2023) (establishing minimum
development densities in residential zones); 2023
Mont. Laws ch. 445 (signed May 4, 2023) (revising
municipal zoning laws). Oregon passed similar
legislation in 2019. See 2019 Or. Laws ch. 639 (signed
Aug. 8, 2019) (requiring duplexes in single-family
dwelling zones). The City of Boise is also
implementing comparable changes to its zoning code
that will take effect December 1, 2023. 23
Different states are trying other measures as well.
Hawaii, for example, passed new legislation this past
session to help reunify homeless individuals with
their families in the continental states, see 2023
Haw. Sess. Laws act 94 (signed Jun. 21, 2023), and to
defray unaffordable housing by providing home
financing assistance. See 2023 Haw. Sess. Laws act
96 (signed Jun. 21, 2023). Idaho also passed new laws
bolstering renters’ protections and increasing
California State Auditor, Housing, Homelessness, &
Employment
Legislation
We’re
Tracking,
https://www.auditor.ca.gov/issues/legislation/housinghomelessness-and-employment (last visited Sept. 18, 2023).
22
City of Boise, Modern Zoning Code Documents,
https://www.cityofboise.org/departments/planning-anddevelopment-services/planning-and-zoning/zoning-coderewrite/zoning-code-documents/, (last visited Sept. 18, 2023).
23
27
available workforce housing. See 2023 Idaho Sess.
Laws ch. 67 (signed Mar. 20, 2023) (renters’ rights);
2023 Idaho Sess. Laws ch. 277 (signed Mar. 28, 2023)
(workforce housing).
Debates on the optimal response to social issues
like homelessness need to be held in legislatures, not
in courtrooms. Each jurisdiction “must determine
how it wants to address this complex, human
problem based on the needs of the people
experiencing homelessness and the availability of
local resources.” Wash. State Auditor, supra n. 2, at
38. These rational “legislative efforts to tackle the
problems of the poor and needy” demand social and
political compromises and should not be placed in the
“constitutional straitjacket” created by the Ninth
Circuit. See Jefferson v. Hackney, 406 U.S. 535, 546
(1972). “The very complexity of the problems suggests
that there will be more than one constitutionally
permissible method of solving them.” Id.
Homelessness was not created by Martin or
Johnson and will not end with this Court overruling
them. The same is true for public assistance
programs and legislative responses. However, as this
democratic process unfolds, it is crucial that states
and local governments have the latitude to find
effective solutions to this humanitarian crisis while
simultaneously
protecting
the
remaining
community’s right to safely enjoy public spaces.
Johnson and Martin handcuff local policymakers by
preventing them from enforcing neutral laws
regulating camping on public property while they
explore other tools in their legislative toolbox.
Injunctions and the threat of federal litigation
28
impede this democratic process and pose an
imminent threat to the livelihood of local
governments and their constituents throughout the
Ninth Circuit.
CONCLUSION
For the foregoing reasons, this Court should
grant the Petition for certiorari.
Respectfully submitted,
ANN DAVISON
Seattle City Attorney
BRANDON RAIN
Counsel of Record
TOM KUFFEL
GHAZAL SHARIFI
SEATTLE CITY ATTORNEY’S OFFICE
701 Fifth Avenue, Suite 2050
Seattle, WA 98104
(206) 684-8200
brandon.rain@seattle.gov
Counsel for Amici Curiae
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