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 A Writ Of Certiorari To The United
States Court Of Appeals For The Ninth Circuit
____________________
BRIEF OF AMICI CURIAE CITY OF PHOENIX
& THE LEAGUE OF ARIZONA CITIES AND
TOWNS SUPPORTING PETITIONER
____________________
JUSTIN S. PIERCE*
*Counsel of Record
TRISH STUHAN
AARON D. ARNSON
STEPHEN B. COLEMAN
PIERCE COLEMAN PLLC
7730 E. Greenway Road, Ste. 105
Scottsdale, AZ 85260
Justin@PierceColeman.com
Tel. (602) 772-5506
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION ........................................................ 3
SUMMARY OF THE ARGUMENT ............................ 5
ARGUMENT ................................................................ 7
I.
CITIES SHOULD NOT BE FORCED TO
WALK A LEGAL TIGHTROPE TO
ENFORCE BASIC PUBLIC HEALTH AND
SAFETY LAWS WHERE SUCH A
BALANCING
ACT
IS
NOT
CONSTITUTIONALLY REQUIRED ................. 7
A. Western States, like Arizona, are
Experiencing a Dramatic Increase in
Homelessness................................................ 7
B. There is Insufficient Shelter Capacity to
House the Homeless Throughout the
Ninth Circuit ................................................ 8
C. Homeless
Encampments
are
Threatening Public Health and Safety ...... 10
D. Municipalities
are
Dedicating
Substantial Resources to Addressing
Homelessness.............................................. 12
ii
E. Due to a Lack of Shelter Space, Many
Cities, like Phoenix, have been Forced to
Curtail
Enforcement
of
Camping
Ordinances and Other Health and Safety
Measures ..................................................... 17
II.
EFFORTS TO ADDRESS HOMELESSNESS
ARE FRUSTRATED BY LITIGATION
SEEKING
TO
SIMULTANEOUSLY
RESTRAIN
AND
REQUIRE
LAW
ENFORCEMENT ACTION .............................. 24
A. The Federal Lawsuit .................................. 24
B. The State Lawsuit ...................................... 25
III. THIS
COURT
SHOULD
ACCEPT
CERTIORARI AND OVERTURN MARTIN
v. BOISE AND JOHNSON v. GRANTS
PASS
AS
THE
CASES
ARE
FUNDAMENTALLY FLAWED ....................... 27
A. The Ninth Circuit Decisions Improperly
Extend the Eighth Amendment ................. 27
B. The Ninth Circuit Decisions Create an
Unworkable Framework Compelling
Judges to Act More as Homelessness
Policy Czars than Judicial Officers
Applying
Discernible
Rules
of
Constitutional Law ..................................... 32
CONCLUSION .......................................................... 33
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Aitken v. City of Aberdeen,
393 F. Supp. 3d 1075 (W.D. Wash. 2019) .............. 17
Coker v. Georgia,
433 U.S. 584 (1977) ................................................ 32
Harmelin v. Michigan,
501 U.S. 957 (1991) ................................................ 27
Ingraham v. Wright,
430 U.S. 651 (1977) ................................................ 31
Johnson v. City of Grants Pass,
50 F.4th 787 (9th Cir. 2022)..................................... 6
Johnson v. City of Grants Pass,
72 F.4th 868 (9th Cir. 2023)
............................ 2, 3, 5, 18-20, 22, 23, 27, 29, 32, 33
Marks v. United States,
430 U.S. 188 (1977) ................................................ 30
Martin v. City of Boise,
902 F.3d 1031 (9th Cir. 2018) ............................ 5, 23
Martin v. City of Boise,
920 F.3d 584 (9th Cir. 2019)
......................................... 2, 3, 6, 18-23, 27-30, 32, 33
iv
Powell v. Texas,
392 U.S. 514 (1968) ................................ 4, 28, 30, 31
Quintero v. City of Santa Cruz,
No. 5:19-CV-01898-EJD, 2019 WL 1924990
(N.D. Cal. Apr. 30, 2019) ........................................ 17
Robinson v. California,
370 U.S. 660 (1962) ................................................ 28
Warren v. City of Chico,
No. 221CV00640MCEDMC, 2021 WL 2894648
(E.D. Cal. July 8, 2021) .......................................... 22
Constitution
U.S. Const. amend. VIII ............................................ 27
Other Authorities
Grant Archer, Half of violent crimes in Phoenix
come from 8% of city blocks, ABC (June 6, 2023,
5:37
PM),
https://www.abc15.com/news/crime/half-ofviolent-crimes-in-phoenix-come-from-8-of-cityblocks .................................................................. 8, 12
Associated Press, Arizona sheriff seeks state and
federal help to handle arrival of asylum-seekers in
rural area, SEATTLE TIMES (Sept. 14, 2023, 4:49
PM),
https://www.seattletimes.com/nationworld/nation/arizona-sheriff-seeks-state-andfederal-help-to-handle-arrival-of-asylumseekers-in-rural-area/ .............................................. 9
v
Complaint, People v. City of Sacramento, No.
23CV008658 (Sacramento Cnty. Superior Ct.
Sept. 19, 2023) ........................................................ 26
Complaint, Prime Auctions, LLC et. al. v. City of
Sacramento, No. 23CV008662 (Sacramento Cnty.
Superior Ct. Sept. 19, 2023) ................................... 26
Def. Ex. 72, Freddy Brown, et al. v. City of Phoenix,
No. CV2022-010439 (Maricopa Cnty. Superior Ct.
May 10, 2023) ......................................................... 15
Depiction of tents within the Zone (Photograph), in
Phoenix’s tent city population INCREASED by
more than 100 people despite massive effort to
clear blocks of homeless people in controversial
rehousing program, DAILYMAIL.COM (June 25,
2023), https://www.dailymail.co.uk/news/article12232615/More-homeless-people-Phoenixsstreets-city-began-massive-rehousingoperation.html ........................................................ 10
Jack Healy, Phoenix Dismantles a Homeless
Encampment, One Block at a Time, N.Y. TIMES
(May
10,
2023),
https://www.nytimes.com/2023/05/10/us/phoenixhomeless-camp-the-zone.html ................................. 8
Items left behind in the Zone (Photograph), in
Phoenix begins clearing “The Zone” homeless
encampment, AXIOS PHOENIX (May 10, 2023),
https://www.axios.com/local/phoenix/2023/05/10/
zone-homeless-encampment-sweep-phoenixcourt-order .............................................................. 11
vi
Andrew I. Lief, Comment, A Prosecutorial Solution
to the Criminalization of Homelessness, 169 U.
PA. L. REV. 1971 (2021) .......................................... 31
MARICOPA ASS’N OF GOV’TS, 2023 Point-in-Time
(PIT)
Count
Report
(2023),
https://azmag.gov/Portals/0/Homelessness/PITCount/2023/2023-PIT-Count-ReportFinal.pdf?ver=8CRzv7xw28CV2G0sMdKfw%3d%3d ..................................... 1, 7, 8
Ben A. McJunkin, Homelessness, Indignity, and the
Promise of Mandatory Citations for Urban
Camping, 52 ARIZ. ST. L.J. 955 (2020)................... 31
Notice of cleanup sign (Photograph), Phoenix’s first
‘Zone’ homeless encampment cleanup, where did
people go?, AZCENTRAL (June 21, 2023),
https://www.azcentral.com/story/news/local/phoe
nix/2023/06/21/after-first-the-zone-homelesscamp-cleanup-in-phoenix-where-did-peoplego/70331251007/..................................................... 16
Office of Homeless Solutions, CITY OF PHOENIX,
https://www.phoenix.gov/solutions ........................ 13
Opening Br. of Def./Appellant, Freddy Brown, et al.
v. City of Phoenix, No. 1 CA-CV 23-0273 (Ariz. Ct.
App. Aug. 9, 2023) .................................................... 9
Order, City of Phoenix v. Fund for Empowerment,
No. CV-22-02041-PHX-GMS (D. Ariz. 2022)
.......................................................... 3, 21, 23, 24, 25
vii
PHOENIX COMM. OFF., Strategies to Address
Homelessness
(Oct.
2020),
https://www.phoenix.gov/humanservicessite/Doc
uments/Homeless%20Strategies%20Final%20Re
port.pdf ................................................................... 12
Phoenix workers clear Zone (Photograph), in After
Phoenix’s first ‘Zone’ homeless encampment
cleanup, where did people go?, AZCENTRAL (June
21,
2023),
https://www.azcentral.com/story/news/local/phoe
nix/2023/06/21/after-first-the-zone-homelesscamp-cleanup-in-phoenix-where-did-peoplego/70331251007/..................................................... 14
Prelim Inj. Hr’g Tr., Freddy Brown, et al. v. City of
Phoenix, No. CV2022-010439 (Maricopa Cnty.
Superior Ct. Oct. 27, 2022) .................................... 13
Juliette Rihl, Hundreds of people experiencing
homelessness died in Maricopa County last year.
Will 2023 be worse?, AZ REPUBLIC (July 27, 2023,
6:00
AM),
https://www.azcentral.com/story/news/local/phoe
nix/2023/07/26/hundreds-of-maricopa-countyhomeless-population-died-in-2022/69903536007/
................................................................................ 12
U.S. DEP’T OF HOUS. AND URB. DEV., The 2022
Annual Homelessness Assessment Report (AHAR)
to
Congress
(2022),
https://www.huduser.gov/portal/sites/default/file
s/pdf/2022-AHAR-Part-1.pdf ............................... 1, 7
viii
Under Advisement Ruling, Freddy Brown, et al. v.
City of Phoenix, No. CV2022-010439 (Maricopa
Cnty. Superior Ct. 2023) .................. 3, 19, 21, 25, 26
1
INTEREST OF AMICI CURIAE 1
The City of Phoenix (the “City” or “Phoenix”) is
the capital of Arizona and the fifth largest city in the
country, with a population of over 1,600,000 people.
There are more than 13,553 homeless people in
Arizona. 2 In Phoenix, there are more than 3,333
unsheltered individuals. 3
Founded in 1937, the League of Arizona Cities
and Towns (the “League”) is a voluntary membership
organization of all 91 incorporated Arizona
municipalities.
The League advocates for its
members’ interests before the legislature and courts.
The League is advised by its Amicus Committee,
1 Amici state: (1) neither party’s counsel authored the brief in
whole or in part; (2) neither party nor their counsel contributed
money that was intended to fund preparing or submitting the
brief; (3) no person other than Amici, their members, or their
counsel contributed money that was intended to fund preparing
or submitting the brief, and (4) Amici provided timely notice to
the counsel of record regarding submission of this brief on
September 15, 2023.
U.S. DEP’T OF HOUS. AND URB. DEV., The 2022 Annual
Homelessness Assessment Report (AHAR) to Congress at 16
(2022),
https://www.huduser.gov/portal/sites/default/files/pdf/2022AHAR-Part-1.pdf.
2
MARICOPA ASS’N OF GOV’TS, 2023 Point-in-Time (PIT) Count
Report
at
4
(2023),
https://azmag.gov/Portals/0/Homelessness/PITCount/2023/2023-PIT-Count-ReportFinal.pdf?ver=8CRzv7xw28C-V2G0sMdKfw%3d%3d.
3
2
which identified this case as having statewide
significance.
There is no dispute that Arizona suffers from a
homelessness crisis.
The largest homeless
encampment in Arizona is located in downtown
Phoenix, in an area colloquially referred to as the
“Zone,” with populations fluctuating to as high as
1,000 people. From larger cities to rural towns, the
impacts of Johnson are sweeping—reaching public
parks, freeway underpasses, and countless miles of
public rights-of-way repurposed into homeless
encampments.
Amicis’ interest in this case is rooted in federal
and state lawsuits stemming from the Ninth Circuit
decisions in Martin v. City of Boise, 920 F.3d 584 (9th
Cir. 2019) and Johnson v. City of Grants Pass, 72 F.4th
868 (9th Cir. 2023), which combine to significantly
limit the ability of municipalities to address public
health and safety concerns from homeless
encampments.
3
INTRODUCTION
The City is walking a legal tightrope between
competing federal and state lawsuits seeking to enjoin
governmental actions addressing homelessness. On
the one hand, the City is grappling with an injunction
issued by the District of Arizona in City of Phoenix v.
Fund for Empowerment, which largely enjoined the
City from enforcing camping and sleeping
ordinances. 4 On the other hand, the City is being
compelled to remove tents and take enforcement
action against “individuals committing offenses
against the public order” under an injunction issued
by the Maricopa County Superior Court in Freddy
Brown, et al. v. City of Phoenix. 5 This injunction
ordered the City to clean up homeless encampments
downtown and remove people camping in the area,
finding the encampments constituted a public
nuisance. The injunction was made permanent in a
sweeping order issued September 20, 2023. 6
The state of the law is simply unworkable after
Martin and Johnson, which are driven more by policy
4 Order at 2, City of Phoenix v. Fund for Empowerment, No. CV-
22-02041-PHX-GMS (D. Ariz. Dec. 15, 2022), ECF No. 34.
5 Under Advisement Ruling at 22, Freddy Brown, et al. v. City of
Phoenix, No. CV2022-010439 (Maricopa Cnty. Superior Ct. Mar.
27, 2023).
6 Under Advisement Ruling at 26, Freddy Brown, et al. v. City of
Phoenix, No. CV2022-010439 (Maricopa Cnty. Superior Ct. Sept.
20, 2023). Notably, the state court judge lamented that the
Martin and Johnson decisions are unworkable and urged this
Court to accept review of Johnson. Id. at n.7.
4
considerations than constitutional law.
Smith observed in his dissent:
As Judge
Unlike the officials tasked with
addressing homelessness, the members
of our court are neither elected nor policy
experts. Of course, the political process
must yield to the fundamental rights
protected by the Constitution, and some
of federal courts’ finest moments have
come in enforcing the rights of politically
marginal groups against the majority.
But when asked to inject ourselves into a
vexing and politically charged crisis, we
should tread carefully and take pains to
ensure that any rule we impose is truly
required by the Constitution—not just
what our unelected members think is
good public policy. 7
At bottom, the issues raised strike at the heart
of legislative and executive functions and warrant
review by this Court to assess whether the rights
cobbled together by the Ninth Circuit are, in fact,
constitutionally required. As explained in the Petition
for Writ of Certiorari and further discussed in this
brief, the Ninth Circuit has strayed far from the
historical origins of the Eighth Amendment based on
a misreading of the plurality decision in Powell v.
Texas, 392 U.S. 514 (1968). Amici respectfully request
that the Court grant the petition for certiorari and,
7 Johnson v. City of Grants Pass, 72 F.4th 868, 936 (9th Cir. 2023)
(Smith, J., dissenting).
5
ultimately, correct the constitutional wrongs by
overturning Martin and Johnson.
SUMMARY OF THE ARGUMENT
The Ninth Circuit erred in ruling that
municipalities cannot enforce laws restricting public
camping, sitting, lying, and sleeping against an
unsheltered person when there are no available
shelter beds. This holding was first articulated in
Martin, in which the Ninth Circuit struck down an
ordinance limiting public camping under the guise of
the Eighth Amendment’s Cruel and Unusual
Punishment
Clause
because
it
purportedly
criminalized
the
“status”
of
unsheltered
homelessness. 8 The Ninth Circuit wrote, “[A]s long as
there is no option of sleeping indoors, the government
cannot criminalize indigent, homeless people for
sleeping outdoors, on public property, on the false
premise they had a choice in the matter.” 9
Subsequently, in Johnson, the Ninth Circuit
reaffirmed its holding in Martin, broadening Martin’s
application to civil enforcement if “closely
intertwined” with criminal penalties and extending
constitutional protections to “rudimentary forms of
8 Martin v. City of Boise, 902 F.3d 1031, 1049 (9th Cir. 2018), op.
am. and superseded on denial of reh’g, 920 F.3d 584 (9th Cir.
2019).
9 Id. at 1048.
6
precautions” against the elements. 10 These decisions
create unprecedented rights to occupy public
property, obstructing municipalities’ ability to
address sprawling encampments that threaten health
and safety.
The decisions are hard to decipher, harder to
comply with, and risk inaction at the expense of public
health. The decisions compel municipalities to engage
in a delicate balancing act to navigate impending
litigation and class action lawsuits, all while
addressing the pressing needs of basic sanitation and
social services aimed at transitioning people off the
streets. The Eighth Amendment requires none of this.
The Ninth Circuit’s decisions should be
reversed because: (1) cities should not be forced to
walk a legal tightrope to enforce fundamental public
health and safety laws where the Constitution
requires no such balancing act, (2) litigation stemming
from Martin and Johnson impedes enforcement of
public health and safety laws, and (3) the Ninth
Circuit erred in its interpretation of the Eighth
Amendment. The Supreme Court should take this
opportunity to correct course and provide guidance
and uniformity nationwide.
10 Johnson v. City of Grants Pass, 50 F.4th 787, 813 (9th Cir.
2022), op. am. and superseded on denial of reh’g, 72 F.4th 868,
896 (9th Cir. 2023).
7
ARGUMENT
I.
CITIES SHOULD NOT BE FORCED TO
WALK
A
LEGAL
TIGHTROPE
TO
ENFORCE BASIC PUBLIC HEALTH AND
SAFETY
LAWS
WHERE
SUCH
A
BALANCING
ACT
IS
NOT
CONSTITUTIONALLY REQUIRED.
A. Western States, like Arizona, are
Experiencing a Dramatic Increase in
Homelessness.
The population of homeless individuals in
western states continues to escalate. In 2022, Arizona
recorded a population of over 13,000 homeless people,
with more than 59% residing in unsheltered locations,
such as on streets, in abandoned buildings, or other
places unsuitable for habitation. 11 Over the past three
years, Phoenix experienced a significant increase in
homelessness, with a Point-in-Time (“PIT”) survey
conducted in late January 2023 identifying 3,333
unsheltered persons compared with 2,380 at the same
time in 2020. 12
U.S. DEP’T OF HOUS. AND URB. DEV., supra note 2, at 16.
https://www.huduser.gov/portal/sites/default/files/pdf/2022AHAR-Part-1.pdf.
11
MARICOPA ASS’N OF GOV’TS, supra note 3, at 4. The terms
“homeless” and “unsheltered” are often used interchangeably.
Being unsheltered is a category within homelessness. The PIT
count is of unsheltered persons; the actual number of people
experiencing homelessness includes persons living temporarily
with relatives or in transitional housing and is a larger total.
12
8
The City’s downtown area has borne the brunt
of this dramatic spike in homelessness, with up to
1,000 people camping in a sprawling homeless
encampment that local businesses and property
owners call the “Zone.” This area has garnered
national media attention as the City struggles to
combat criminal activity and address health hazards
from the concentration of unsheltered people camping
downtown. 13
B. There is Insufficient Shelter Capacity to
House the Homeless Throughout the
Ninth Circuit.
In Phoenix, like numerous cities in the Ninth
Circuit, local officials struggle with addressing
homelessness as there are insufficient shelter beds to
accommodate the entire unsheltered population. To
illustrate, in 2023, there were about 3,333 homeless
individuals in Phoenix. 14 There were approximately
https://azmag.gov/Portals/0/Homelessness/PITCount/2023/2023-PIT-Count-ReportFinal.pdf?ver=8CRzv7xw28C-V2G0sMdKfw%3d%3d
13 See, e.g., Grant Archer, Half of violent crimes in Phoenix come
from 8% of city blocks, ABC (June 6, 2023, 5:37 PM),
https://www.abc15.com/news/crime/half-of-violent-crimes-inphoenix-come-from-8-of-city-blocks;
Jack
Healy,
Phoenix
Dismantles a Homeless Encampment, One Block at a Time, N.Y.
TIMES
(May
10,
2023),
https://www.nytimes.com/2023/05/10/us/phoenix-homelesscamp-the-zone.html.
MARICOPA ASS’N OF GOV’TS, supra note 3,
https://azmag.gov/Portals/0/Homelessness/PITCount/2023/2023-PIT-Count-ReportFinal.pdf?ver=8CRzv7xw28C-V2G0sMdKfw%3d%3d
14
at
4.
9
3,219 shelter beds, without accounting for any already
occupied. 15 Many of the existing shelter beds had
restrictions—limiting them to families with children,
victims of domestic violence, or working unsheltered,
to name a few. Put simply, there are not enough
shelter beds to accommodate all the unsheltered
downtown, let alone the entire City.
Small and rural municipalities in Arizona are
not immune from the homelessness crisis; they face an
uphill battle to address homelessness surges due to a
shortage of staff, resources, and inadequate support
systems. 16
15 Opening Br. of Def./Appellant at 5, Freddy Brown, et al. v. City
of Phoenix, No. 1 CA-CV 23-0273 (Ariz. Ct. App. Aug. 9, 2023).
16 Locating housing for the unsheltered is further complicated in
border states by migrants seeking asylum. See, e.g., Associated
Press, Arizona sheriff seeks state and federal help to handle
arrival of asylum-seekers in rural area, SEATTLE TIMES (Sept. 14,
2023,
4:49
PM),
https://www.seattletimes.com/nationworld/nation/arizona-sheriff-seeks-state-and-federal-help-tohandle-arrival-of-asylum-seekers-in-rural-area/.
10
C. Homeless
Encampments
are
Threatening Public Health and Safety.
17
In Phoenix’s case, the homeless encampments
downtown consist of hundreds of tents and makeshift
structures erected along public sidewalks. 17
See Photograph 17. Depiction of tents within the Zone
(Photograph), in Phoenix’s tent city population INCREASED by
more than 100 people despite massive effort to clear blocks of
homeless people in controversial rehousing program,
(June
25,
2023),
DAILYMAIL.COM
https://www.dailymail.co.uk/news/article-12232615/Morehomeless-people-Phoenixs-streets-city-began-massiverehousing-operation.html.
17
11
Significant health concerns include trash, debris,
public urination, defecation, and hazardous waste. 18
18
18 See Photograph 18. Items left behind in the Zone (Photograph),
in Phoenix begins clearing “The Zone” homeless encampment,
PHOENIX
(May
10,
2023),
AXIOS
https://www.axios.com/local/phoenix/2023/05/10/zone-homelessencampment-sweep-phoenix-court-order.
12
The Phoenix downtown area also suffered from
the most reported violent crimes within City boundaries
in 2022-2023.19 The encampments are simply unsafe.20
D. Municipalities
are
Dedicating
Substantial Resources to Addressing
Homelessness.
In response to the growing problems of
homelessness and complicating factors from the opioid
epidemic, COVID-19 pandemic, and affordable
housing crisis, the Phoenix City Council (the
“Council”) adopted strategies to address homelessness
and assist private property owners downtown. 21
Construction of Shelters.
The Council
appropriated over $140 million to build hundreds of
Archer,
supra
note
13.
https://www.abc15.com/news/crime/half-of-violent-crimes-inphoenix-come-from-8-of-city-blocks;
19
20 The City has prioritized indoor shelter due to concerns about
heat-related deaths. Juliette Rihl, Hundreds of people
experiencing homelessness died in Maricopa County last year.
Will 2023 be worse?, AZ REPUBLIC (July 27, 2023, 6:00 AM),
https://www.azcentral.com/story/news/local/phoenix/2023/07/26/
hundreds-of-maricopa-county-homeless-population-died-in2022/69903536007/ (“At least 76 unhoused people died primarily
from heat exposure”).
21 PHOENIX COMM. OFF., Strategies to Address Homelessness (Oct.
2020),
https://www.phoenix.gov/humanservicessite/Documents/Homele
ss%20Strategies%20Final%20Report.pdf.
13
new shelter beds. 22 The Council established an Office
of Homeless Solutions to oversee the construction of
shelter space, allocate funding for operational needs of
shelters, and manage the litany of services provided to
the homeless. 23 Phoenix has invested significant
taxpayer money to increase shelter capacity and
provide resources to assist the homeless.
The City maintains public records documenting its shelter
projects, accessible online at Office of Homeless Solutions, CITY
PHOENIX,
https://www.phoenix.gov/solutions,
which
OF
highlights that over the last year, the City has completed a 175person shelter in partnership with Central Arizona Shelter
Services, a 100-person sprung structure at the Human Services
Campus downtown known as Respiro; a 200-bed shelter operated
by St. Vincent de Paul known as the Washington Relief Center;
and 117-room hotel named Rio Fresco with Community Bridges,
Inc. In total, the City created approximately 600 shelter beds in
2022, with more in various stages of construction.
22
23 Prelim Inj. Hr’g Tr. at 116:16-118:15, Freddy Brown, et al. v.
City of Phoenix, No. CV2022-010439 (Maricopa Cnty. Superior
Ct. Oct. 27, 2022).
14
Cleanup of Homeless Encampments. To
address encampment concerns, cities have developed
detailed cleaning procedures. 24
24
24 See Photograph 24. Phoenix workers clear Zone (Photograph),
in After Phoenix’s first ‘Zone’ homeless encampment cleanup,
where did people go?, AZCENTRAL (June 21, 2023),
https://www.azcentral.com/story/news/local/phoenix/2023/06/21/
after-first-the-zone-homeless-camp-cleanup-in-phoenix-wheredid-people-go/70331251007/.
15
Phoenix’s procedures were discussed at a
hearing on the plaintiffs’ request for a preliminary
injunction in the Freddy Brown lawsuit.
City officials testified that the City adopted
procedures to allow for enhanced cleanings where
homeless people would move their tents and other
items to allow for the cleaning of sidewalks. The
procedures require notice and storage of possessions
left unattended on public property. 25
25 See Def. Ex. 72 at 1, Freddy Brown, et al. v. City of Phoenix,
No. CV2022-010439 (Maricopa Cnty. Superior Ct. May 10, 2023).
16
After notice, cleanups are conducted block by
block, starting with closing streets, moving
belongings, deep cleaning the area, and removing
trash and debris. While the City has regularly
conducted cleanings downtown, the City began
enhanced cleanings in December 2022, which continue
today, with the new step of closing blocks to public
camping after cleaning beginning in May 2023. 26
See Photograph 26. Notice of cleanup sign (Photograph),
Phoenix’s first ‘Zone’ homeless encampment cleanup, where did
AZCENTRAL
(June
21,
2023),
people
go?,
https://www.azcentral.com/story/news/local/phoenix/2023/06/21/
after-first-the-zone-homeless-camp-cleanup-in-phoenix-wheredid-people-go/70331251007/.
26
17
Closing Areas to Public Camping. This last
step—closing the blocks to public camping—is crucial
to address sprawling campgrounds. Cities must be
able to tell people they cannot camp indefinitely on
public property and rights-of-way.
Similarly, cities must have the ability to remove
tents from the sidewalk, and, as available, work with
vulnerable populations to provide shelter and social
services to address their underlying issues, whether
addiction, mental health, or other complicating
factors. Some individuals may be service-resistant,
preferring to live on the streets. In such instances,
cities must be able to enforce public camping laws
without first establishing enough shelter capacity for
the jurisdiction’s entire unsheltered population.
E. Due to a Lack of Shelter Space, Many
Cities, like Phoenix, have been Forced
to Curtail Enforcement of Camping
Ordinances and Other Health and
Safety Measures.
Due to a lack of shelter space, municipal efforts
to address sprawling encampments have been
curtailed—either voluntarily while legal guidance is
promulgated or by way of court order (or both). 27
27 See, e.g., Quintero v. City of Santa Cruz, No. 5:19-CV-01898-
EJD, 2019 WL 1924990, at *3 (N.D. Cal. Apr. 30, 2019) (“The City
has suspended the enforcement of its camping ordinance to
ensure that no indigent homeless individual will be cited for
sleeping outdoors or camping.”); Aitken v. City of Aberdeen, 393
F. Supp. 3d 1075, 1085 (W.D. Wash. 2019) (observing that the
18
Municipalities are grappling with the scope of Martin,
including how to make an individualized
determination of whether someone is involuntarily
homeless, what constitutes adequate shelter, and
what regulations might survive constitutional
scrutiny. As explained below, these questions have
confused and delayed responses to encampments
appropriating public spaces.
The Scope of the Law. Despite the Ninth
Circuit’s efforts to refine its Eighth Amendment
jurisprudence, the scope of the law is unclear. First,
in Martin, the Ninth Circuit held: “We conclude that a
municipality cannot criminalize [camping on public
property] consistently with the Eighth Amendment
when no sleeping space is practically available in any
shelter.” 28 Then, in Johnson, the Ninth Circuit held:
“We affirm the district court's ruling that the City of
Grants Pass cannot, consistent with the Eighth
Amendment, enforce its anti-camping ordinances
against homeless persons for the mere act of sleeping
outside with rudimentary protection from the
elements, or for sleeping in their car at night, when
there is no other place in the City for them to go.” 29
Municipalities are grappling with these holdings.
Does the Ninth Circuit merely demand
application of a mathematical formula—if the number
of homeless individuals exceeds the available shelter
city’s camping ordinance was not being enforced due to the city’s
inability to provide adequate shelter to the homeless).
28 920 F.3d at 618.
29 72 F.4th at 896.
19
beds,
public
sleeping
bans
are
entirely
unenforceable—or is the dispositive issue the
immediate availability of shelter space for a specific
individual on a particular day? 30 In the latter case,
what type of individual assessment must a public
entity perform (e.g., is the entity required to conduct
an inquiry regarding the person’s mental health,
medical impairments, familial status, property, pets,
etc. to determine if they meet the criteria for a shelter
vacancy)?
What options are available if the
unsheltered person is uncooperative? The law is
unclear. Frankly, both propositions are challenging,
but at least in the latter scenario, if shelter can be
identified, a city may lawfully enforce camping bans.
In Phoenix’s case, due to the uncertainty as to
what is required by Martin and Johnson, it is
modeling its policies on the narrower reading of the
law—which is particularly important because, as
discussed above, the population of homeless
individuals in the Phoenix downtown area, let alone
the entire City, consistently surpasses the available
shelter beds on any given night. If the City adheres to
the mathematical approach, the City may never
enforce public camping bans unless the City
reallocates substantial financial resources to
construct massive amounts of shelter. Even then, the
See Under Advisement Ruling, supra note 5, at 20 (“[T]he
burden is on any party arguing that Martin or Grants Pass
preclude enforcement against a particular individual to establish
– based upon credible evidence – that the individual cannot
otherwise obtain shelter and/or that the individual’s offending
conduct is an unavoidable consequence of his or her status.”).
30
20
City must deal with the confounding question of what
is “adequate” shelter.
Conversely, under the second approach, if the
City establishes that an individual has immediate
access to shelter, then camping or sleeping bans could
be enforced against that person individually. Still, the
time and difficulty in determining whether someone is
involuntarily homeless or if the shelter available is
adequate, bars or at least delays most enforcement
actions. Neither approach is practicable in the real
world.
Involuntariness. The Martin and Johnson
decisions establish that a municipality cannot ban
public sleeping when an involuntarily homeless
person engages in conduct necessary for selfprotection against the elements and there is no
available shelter space. 31 These rulings introduced a
layer of complexity in distinguishing between those
who are involuntarily homeless and those who
voluntarily choose to be homeless. Ordinarily, police
operate on well-defined standards when dealing with
individuals’ constitutional rights, such as informing
them they have the right to remain silent. However,
determining
whether
someone
qualifies
as
“involuntarily” homeless is not straightforward.
The Martin and Johnson decisions raise
questions about whether police should inquire into the
financial situations or personal relationships of
homeless individuals to determine whether they
31 Johnson, 72 F.4th 868.
21
genuinely lack housing. How else can one truly
ascertain an individual’s status as involuntarily
homeless? And how long is an offer of shelter “good”
for Martin purposes—may a city take enforcement
action against an unsheltered individual a day after
rejecting an offer of shelter, a week? The unanswered
questions are endless.
The parallel lawsuits and conflicting court
orders confronting the City illustrate the practical
difficulties of applying Ninth Circuit precedent on the
issue of voluntariness. In the Freddy Brown lawsuit,
the judge chastised the City for failing to present
“credible evidence that every individual in the Zone
lacks access to adequate temporary shelter.” 32
Conversely, the District Court in Fund for
Empowerment appeared to discard the idea of
involuntariness and, instead, focused on whether a
homeless individual “practically cannot obtain
shelter.” 33 The legal principles are moving targets,
confusing municipalities and frustrating action to
address health and safety issues.
The Availability of Shelter. Historically,
many cities like Phoenix have not owned, operated, or
maintained shelter facilities. Instead, shelters have
been run by nonprofits, county or state health
departments, or third-party vendors. In Phoenix’s
case, because it does not own or operate most of the
shelter facilities within the metropolitan area, there is
no easy way to determine the number of available beds
32 Under Advisement Ruling, supra note 5, at 5.
33 Order, supra note 4, at 2.
22
on any given day. City employees must contact
various facilities to ascertain capacity.
Bed
availability fluctuates regularly, requiring constant
research before law enforcement engagement.
Adequate Shelter. The Ninth Circuit has not
established clear guidance for defining “adequate
shelter” either.
The Martin decision originally
suggested that “adequate shelter” necessitates indoor
sleeping arrangements. 34 Based on this premise, in a
California District Court case, a court found that a
city’s temporary outdoor shelter facility at the
municipal airport was unsuitable for people. 35 The
court’s reasoning highlighted that the airport site was
essentially an “asphalt tarmac with no roof and no
walls, no water and no electricity. It is an open space
with what amounts to a large umbrella for some
shade. It affords no real cover or protection to
anyone.” 36
While the amended decision in Johnson
appears to clarify that there is no rigid, one-size-fitsall definition of adequate shelter, the law is far from
clear. The acceptability of outdoor camping facilities
under Ninth Circuit precedent remains ambiguous.
Given the numerous unresolved questions regarding
shelter space, many municipalities have temporarily
34 Martin, 920 F.3d at 617.
35 Warren v. City of Chico, No. 221CV00640MCEDMC, 2021 WL
2894648, at *3 (E.D. Cal. July 8, 2021).
36 Id. at 4.
23
halted cleanup efforts while trying to develop policies
and procedures to withstand judicial scrutiny.
Time, Place, and Manner Restrictions. The
fact that Martin appears to possibly allow regulations
for time, place, and manner of encampments does not
provide much relief either. In practice, the injunctions
being issued against the enforcement of camping laws
have been sweeping in nature 37 and do not account for
reasonable time, place, and manner restrictions. 38
Moreover, the Ninth Circuit in Martin and Johnson
failed to explain what time, place, and manner
restrictions might be valid, thus diminishing the
utility of this exception. Ultimately, even if a city
prohibits camping on public property, it still faces the
threat of federal litigation and broad injunctions if
there is insufficient shelter space for the homeless.
37 There is no reference to any time, place, or manner restriction
that Phoenix may place against public camping in the District
Court injunction. See Order, supra note 4, at 2. The order broadly
enjoins: “Enforcing the Camping and Sleeping Bans against
individuals who practically cannot obtain shelter as long as there
are more unsheltered individuals in Phoenix than there are
shelter beds available.” Id. The order provides no flexibility for
use of camping ordinances unless the City shows first that shelter
is practically available.
See Martin, 902 F.3d at 1048 n.8 (“Even where shelter is
unavailable, an ordinance prohibiting sitting, lying, or sleeping
outside at particular times or in particular locations might well
be constitutionally permissible.”) (emphasis added)
38
24
II.
EFFORTS TO ADDRESS HOMELESSNESS
ARE FRUSTRATED BY LITIGATION
SEEKING
TO
SIMULTANEOUSLY
RESTRAIN
AND
REQUIRE
LAW
ENFORCEMENT ACTION.
Despite the City’s considerable efforts to adhere
to Ninth Circuit precedent, the City has found itself
entangled between two competing lawsuits: a federal
and state court case seeking diametrically opposed
relief, where both sets of plaintiffs seek to use the
judiciary to compel their preferred approach to
tackling homelessness. Collectively, these cases
illustrate the tension within the legal framework
established by the Ninth Circuit. A summary of the
cases is presented to illustrate the intricacies and
importance of the issues.
A. The Federal Lawsuit.
In the federal lawsuit, Fund for Empowerment
et al. v. City of Phoenix et al., the plaintiffs sought an
injunction barring enforcement of the City’s camping
and sleeping ordinances and halting cleaning
activities. The District Court largely agreed with the
plaintiffs and enjoined the City from “[e]nforcing the
Camping and Sleeping Bans against individuals who
practically cannot obtain shelter as long as there are
more unsheltered individuals in Phoenix than there
are shelter beds available.” 39 The City continues to
grapple with the preliminary injunction and defend
39 Order, supra note 4, at 2.
25
against plaintiffs’ request to make it permanent—
threatening to tie the City’s hands for years. 40
B. The State Lawsuit.
In the state-court lawsuit, Freddy Brown et al.
v. City of Phoenix, the Maricopa County Superior
Court issued a preliminary injunction in favor of
businesses and private property owners, who sued the
City over the homeless encampment they call the
Zone. 41 The injunction ordered the City to take the
following actions, among others:
1.
Abate the nuisance in the downtown area
by removing tents, biohazards, drug
paraphernalia, and trash from the public
right-of-way; and
40 Shortly after the preliminary injunction was issued, Phoenix
paused its enhanced cleanings to comply with federal orders. See
Order at 2, City of Phoenix v. Fund for Empowerment, No. CV22-02041-PHX-GMS (D. Ariz. May 22, 2023), ECF No. 71 (“IT IS
FURTHER ORDERED that Defendants shall not conduct any
cleanup in the Zone until the Court has held the hearing and
provided further orders to the parties.”); Order at 1, City of
Phoenix v. Fund for Empowerment, No. CV-22-02041-PHX-GMS
(D. Ariz. May 26, 2023), ECF No. 87 (“IT IS FURTHER
ORDERED that the Court’s previous stay ordering Defendants
to ‘not conduct any cleanups in the Zone until the Court has held
the hearing and provided further orders to the parties,’ (Doc. 71),
is lifted).”).
41 Under Advisement Ruling, supra note 5, at 22.
26
2.
Stop individuals from committing
offenses against the public order. 42
Most recently, on September 20, 2023, the trial
court entered a permanent injunction requiring the
City to “abate the nuisance it presently maintains on
the public property in the Zone, including the removal
of all tents and other makeshift structures by
November 4, 2023.” 43 Thus, the trial court has
provided the City with less than seven weeks to
relocate hundreds of homeless persons while
navigating the legal minefields created by the Ninth
Circuit’s undefined test for voluntariness and
indeterminate standard for the adequacy of shelter—
a Herculean, if not unachievable, task in light the
Ninth Circuit’s evisceration of the City’s enforcement
powers.
Ultimately, the tension between the lawsuits
illustrates the practical difficulties municipalities face
when trying to tackle homeless encampments—and
Phoenix is not alone in facing competing lawsuits
stemming from encampments. On September 19,
2023, two lawsuits were filed against the City of
Sacramento, one by private businesses and residents
and another by the Sacramento County District
Attorney, 44 both alleging unsanitary conditions in
42 Id.
43 Under Advisement Ruling, supra note 6, at 26.
44 Complaint, Prime Auctions, LLC et. al. v. City of Sacramento,
No. 23CV008662 (Sacramento Cnty. Superior Ct. Sept. 19, 2023);
Complaint, People v. City of Sacramento, No. 23CV008658
(Sacramento Cnty. Superior Ct. Sept. 19, 2023).
27
homeless encampments and seeking to compel city
action—the very action that Martin and Johnson
threaten to restrain. The state of the law is not
workable.
III.
THIS
COURT
SHOULD
ACCEPT
CERTIORARI AND OVERTURN MARTIN
v. BOISE AND JOHNSON v. GRANTS PASS
AS THE CASES ARE FUNDAMENTALLY
FLAWED.
A. The Ninth Circuit Decisions Improperly
Extend the Eighth Amendment.
Application of the Eighth Amendment to public
camping is doctrinally wrong.
The Eighth
Amendment states: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” 45
Historical Origin. The Eighth Amendment,
as originally contemplated, was a rebuke against the
arbitrary power used by Chief Justice Jeffreys in
defining new and unusual punishments from the
King’s Bench from 1683 to 1685 in response to the
Monmouth’s Rebellion, where a special commission
tried, convicted, and executed hundreds of suspected
insurgents. 46 Vicious punishments for treason were
common in this period—including
drawing,
47
quartering and disemboweling.
The Eighth
45 U.S. CONST. amend. VIII. (emphasis added).
46 Harmelin v. Michigan, 501 U.S. 957, 967–68 (1991).
47 Id. at 968.
28
Amendment was intended to address modes of
punishment that are not regularly or customarily
employed. 48
Status v. Act Considerations. Over time, this
Court further held that while “acts” such as drug use,
public intoxication, or other behaviors threatening
public health and safety may be subject to prosecution,
the mere “status” of being an addict is not subject to
prosecution. Compare Robinson v. California, 370 U.S.
660, 667 (1962) (overturning state law which made the
status of narcotic addiction a criminal offense) with
Powell v. Texas, 392 U.S. 514, 536–37 (1968)
(upholding conviction targeting act of being drunk in
public). Unfortunately, this distinction has been
muddled as courts move beyond status or act
considerations to the voluntariness or involuntariness
of the act or status.
Voluntariness Considerations. Consideration
of the voluntariness or involuntariness of an act
becomes problematic in the case of homelessness. The
Ninth Circuit has essentially barred enforcement of
camping and sleeping ordinances by reasoning that
the Eighth Amendment prohibits the state from
punishing an involuntary act or condition if it is the
unavoidable consequence of one’s status or being. 49
Moving far beyond the historical focus of the Eighth
Amendment on modes of punishment, the Ninth
Circuit determined that if a person does not have the
option to sleep indoors, criminalizing sitting, sleeping,
48 Id. at 976.
49 Martin, 920 F.3d at 617.
29
or lying outside on public property is the same as
punishing that person for being homeless. 50
Using the Martin decision as a springboard, the
Ninth Circuit further determined that the City of
Grants Pass cannot, consistent with the Eighth
Amendment, enforce its anti-camping ordinances
against homeless persons “for the mere act of sleeping
outside with rudimentary protection from the
elements, or for sleeping in their car at night, when
there is no other place in the City for them to go.” 51
Thus, Johnson expanded Eighth Amendment
protections to encompass rudimentary protections
from the elements.
What constitutes “rudimentary protection”
from the elements is unclear but foreseeably includes
blankets, pillows, tents, and perhaps even portable
heaters intended to protect the unsheltered from
inclement weather. Johnson further expanded the
Eighth Amendment to civil acts such as removing
encampments from public property or securing
personal property to clean public property. 52
Read together, these decisions impose robust
restrictions on enforcement of public health and safety
laws ranging from urban camping and fire code
violations to potential laws prohibiting public
urination, defecation, and other acts attendant with
50 Id. at 618.
51 Johnson, 72 F.4th at 896.
52 Id.
30
survival. This is far afield from mere regulation of
modes of punishment.
The Confusion from Powell. The Powell
decision, which considered application of the Eighth
Amendment
to
status-based
conduct,
has
understandably caused confusion as no single opinion
was supported by the majority. Under the Marks rule,
courts applying plurality decisions are to view the
holding of the case as the “position taken by those
Members who concurred in the judgments on the
narrowest grounds.” 53 Unfortunately, that is not what
happened in the Martin line of cases.
In Powell, the narrowest rationale shared by
the plurality and concurrence is that Powell could be
punished because being in public while drunk was a
voluntary act. 54 But rather than applying the Marks
rule, the Martin court focused on mere dicta. Four
Justices in Powell upheld the Texas statute because it
punished conduct, not status.
Justice White
concurred because “Powell could have drunk at home
and made plans while sober to prevent ending up in a
public place.” 55 Justice White did not find it necessary
to pursue any analysis of the circumstances or state of
intoxication which might bar the conviction of a
chronic alcoholic for being drunk in public. 56 Justice
White did not adopt the dissent’s rationale that
Marks v. United States, 430 U.S. 188, 193 (1977) (citation
omitted).
53
54 Powell v. State of Tex., 392 U.S. 514 (1968).
55 Id. at 553.
56 Id.
31
conduct symptomatic of a condition is protected from
punishment. Therefore, the Ninth Circuit read into
Justice White’s concurrence a rationale that this
Court never adopted.
The Ninth Circuit approach may be wellintended, and indeed, cities like Phoenix have adopted
strategies to lead with services, not citations, but the
extension of Eighth Amendment protections to
completely bar prosecution absent adequate shelter
space for the entire unsheltered population within a
jurisdiction
is
not
constitutionally
sound.
Municipalities deploy multiple tools to minimize
impacts of camping laws—including cite and release
options, diversion programs with municipal
prosecutors, and specialty homeless courts. 57
While the wisdom of these different approaches
may be debatable, there is no reason to twist the
Eighth Amendment from its historical origins, or rely
on dicta from this Court’s Powell decision, to craft a
constitutional right for the unsheltered homeless to
camp on public property. This Court has held that the
Eighth Amendment’s limits on what a state may
criminalize must be “applied sparingly.” 58 The Ninth
Circuit, in holding that involuntary homelessness
cannot be punished, has based its decisions on a
57 See, e.g., Andrew I. Lief, Comment, A Prosecutorial Solution to
the Criminalization of Homelessness, 169 U. PA. L. REV. 1971
(2021); Ben A. McJunkin, Homelessness, Indignity, and the
Promise of Mandatory Citations for Urban Camping, 52 ARIZ. ST.
L.J. 955 (2020).
58 Ingraham v. Wright, 430 U.S. 651, 667 (1977).
32
misreading
precedent.
and
overextension
of
this
Court’s
B. The Ninth Circuit Decisions Create an
Unworkable Framework Compelling
Judges to Act More as Homelessness
Policy Czars than Judicial Officers
Applying
Discernible
Rules
of
Constitutional Law.
The constitutional principles at hand strike at
core legislative and executive functions, including how
to best use law enforcement resources, expend
taxpayer money to remedy homelessness, and use
prosecutorial discretion when faced with criminal
conduct.
The Ninth Circuit justices have
inappropriately intruded into what are essentially
political questions and substituted their own judicially
preferred plan for managing the homelessness crisis
by carving out new constitutional rights. 59 The
practical results of the decisions in Martin and
Johnson have municipalities scrambling to reallocate
resources and build massive amounts of shelter or be
faced with potential liability for inaction amid
sprawling homeless encampments taking over public
property.
This is no mere codification of an established
constitutional principle—it is the creation of a broad
See Coker v. Georgia, 433 U.S. 584, 592 (177) (holding that
“Eighth Amendment judgments should not be, or appear to be,
merely the subjective views of individual Justices; judgment
should be informed by objective factors to the maximum possible
extent.”) (citation omitted) (emphasis added).
59
33
new right that undercuts the enforcement of basic
public health and safety laws.
The Eighth
Amendment
does
not
require
this result.
Homelessness raises quintessential legislative
questions that are more appropriate for political
debate and policy discussion than applying what
should be discernible principles of constitutional law.
As some members of this Court have
analogized, judges are like umpires calling balls and
strikes, not players in the game. This Court should
intervene to address a substantial overreach by the
Ninth Circuit, which improvidently expanded the
protections of the Eighth Amendment beyond its
historical basis, disrupted the separation of powers
between the judiciary and the legislature, and
improperly usurped a policymaking function.
Therefore, a grant of certiorari is appropriate.
CONCLUSION
Municipalities have struggled to walk the legal
tightrope established by the Ninth Circuit in Martin
and Johnson—with little success. The Ninth Circuit
improperly extended the scope of the Eighth
Amendment to bar enforcement of urban camping
laws based on a tenuous argument that camping on
public property is involuntary and thus cannot be
criminalized. This is wrong. It is also bad public
policy. The decisions may be well-intentioned, but the
questions posed are squarely legislative. For these
reasons, and the reasons stated in the Petition, this
Court should grant certiorari and overturn the Ninth
34
Circuit decisions limiting the enforcement of public
health and safety laws.
RESPECTFULLY SUBMITTED THIS 25th day
of September, 2023.
PIERCE COLEMAN PLLC
By: /s/ Justin S. Pierce
JUSTIN S. PIERCE*
*Counsel of Record
TRISH STUHAN
AARON D. ARNSON
STEPHEN B. COLEMAN
PIERCE COLEMAN PLLC
7730 E. Greenway Road, Ste. 105
Scottsdale, AZ 85260
Justin@PierceColeman.com
Tel. (602) 772-5506
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.