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
Ask Donna
What actually matters in this document.
Text
No. 23-175
================================================================================================================
In The
Supreme Court of the United States
---------------------------------♦--------------------------------CITY OF GRANTS PASS,
Petitioner,
v.
GLORIA JOHNSON AND JOHN LOGAN,
on Behalf of Themselves and All Others Similarly Situated,
Respondents.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
---------------------------------♦--------------------------------BRIEF OF IDAHO, MONTANA AND
18 OTHER STATES AS AMICI CURIAE
IN SUPPORT OF PETITIONER
---------------------------------♦--------------------------------RAÚL R. LABRADOR
Attorney General
THEODORE J. WOLD
Solicitor General
JOSHUA N. TURNER
Chief Deputy
Solicitor General
Counsel of Record
AUSTIN KNUDSEN
Attorney General
CHRISTIAN B. CORRIGAN
Solicitor General
BRENT MEAD
Deputy Solicitor General
PETER M. TORSTENSEN, JR.
Assistant Solicitor General
IDAHO OFFICE OF THE
ATTORNEY GENERAL
700 W. Jefferson St.
Suite 210
Boise, ID 83720
(208) 334-2400
josh.turner@ag.idaho.gov
MONTANA DEPARTMENT
OF JUSTICE
215 N. Sanders
Third Floor
Helena, MT 59620
(406) 444-2026
christian.corrigan@mt.gov
Counsel for Amicus States of Idaho and Montana
[Additional Counsel Listed On Inside Cover]
================================================================================================================
STEVE MARSHALL
Attorney General
State of Alabama
MICHAEL T. HILGERS
Attorney General
State of Nebraska
TREG R. TAYLOR
Attorney General
State of Alaska
DREW H. WRIGLEY
Attorney General
State of North Dakota
TIM GRIFFIN
Attorney General
State of Arkansas
GENTNER F. DRUMMOND
Attorney General
State of Oklahoma
ASHLEY MOODY
Attorney General
State of Florida
ALAN WILSON
Attorney General
State of South Carolina
THEODORE E. ROKITA
Attorney General
State of Indiana
MARTY JACKLEY
Attorney General
State of South Dakota
KRIS W. KOBACH
Attorney General
State of Kansas
KEN PAXTON
Attorney General
State of Texas
JEFF LANDRY
Attorney General
State of Louisiana
SEAN D. REYES
Attorney General
State of Utah
LYNN FITCH
Attorney General
State of Mississippi
JASON MIYARES
Attorney General
Commonwealth of Virginia
ANDREW BAILEY
Attorney General
State of Missouri
PATRICK MORRISEY
Attorney General
State of West Virginia
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
ii
INTERESTS OF AMICI CURIAE .......................
1
SUMMARY OF THE ARGUMENT .....................
2
REASONS FOR GRANTING CERTIORARI .......
3
I.
The West Has Suffered For Five Years Under Martin’s Regime, And The Ninth Circuit’s Doubling Down Leaves State And
Local Governments Powerless To Help .....
5
II.
The Constitution Commits Criminal Law
And Land-Use Policy To State And Local
Governments, Not Federal Courts............. 12
III.
The Ninth Circuit’s Decision Is An Outgrowth Of The Evolving Standards Of Decency Jurisprudence, Which Is Not Textual,
Historical, Or Logical ................................ 17
A. The evolving standards of decency jurisprudence came out of Warren Court
dicta and has been promoted to the
substantive test for Eighth Amendment meaning ...................................... 18
B. The evolving standards of decency jurisprudence is a lawless standard that
has no regard for any of this Court’s
Eighth Amendment precedents ........... 21
C. The evolving standards of decency jurisprudence cannot be squared with
the text, structure, and history of the
Eighth Amendment ............................. 25
CONCLUSION..................................................... 29
ii
TABLE OF AUTHORITIES
Page
CASES
Atkins v. Virginia, 536 U.S. 304 (2002)................. 22, 23
Baze v. Rees, 553 U.S. 35 (2008) ........................... 26, 28
Boring v. Murillo, 2022 WL 14740244 (C.D. Cal.
Aug. 11, 2022) ............................................................6
Brecht v. Abrahamson, 507 U.S. 619 (1993) ...............13
Bucklew v. Precythe, 139 S. Ct. 1112 (2019) ......... 18, 25
Clark v. Cmty. for Creative Non-Violence, 468
U.S. 288 (1984) .....................................................16
Coker v. Georgia, 433 U.S. 584 (1977) ........................24
Dobbs v. Jackson Women’s Health Org., 142
S. Ct. 2228 (2022) .......................................... 25, 26
Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir.
2019) ........................................................................24
Estelle v. Gamble, 429 U.S. 97 (1976) ....... 18, 21, 22, 26
Farmer v. Brennan, 511 U.S. 825 (1994) ....................22
Fund for Empowerment v. City of Phoenix, 2022
WL 18213522 (D. Ariz. Dec. 16, 2022) ......................6
Furman v. Georgia, 408 U.S. 238 (1972) ....................26
Glossip v. Gross, 576 U.S. 863 (2015) ................... 18, 21
Graham v. Florida, 560 U.S. 48 (2010).......................23
Gregg v. Georgia, 428 U.S. 153 (1976) .................. 25, 26
Heath v. Alabama, 474 U.S. 82 (1985) ........................13
Hopkins v. Sec’y of State Delbert Hosemann, 76
F.4th 378 (5th Cir. 2023) .........................................24
iii
TABLE OF AUTHORITIES—Continued
Page
Ingraham v. Wright, 430 U.S. 651 (1977) ...................14
Johnson v. City of Grants Pass, 72 F.4th 868 (9th
Cir. 2023) .................................... 2-4, 6, 11, 13, 26, 27
Kahler v. Kansas, 140 S. Ct. 1021 (2020) ...................15
Kennedy v. Louisiana, 554 U.S. 407 (2008)...............23
Konigsberg v. State Bar of Cal., 366 U.S. 36
(1961) .......................................................................27
Lane Cnty. v. Oregon, 74 U.S. 71 (1868) .....................15
Leland v. Oregon, 343 U.S. 790 (1952) .......................15
Light v. United States, 220 U.S. 523 (1911) ...............15
Manning v. Caldwell for Roanoke, 930 F.3d 264
(4th Cir. 2019)..........................................................16
Marbury v. Madison, 5 U.S. 137 (1803) ......................25
Martin v. City of Boise, 902 F.3d 1031 (9th Cir.
2018, opinion amended and superseded on denial of reh’g, 920 F.3d 584 (9th Cir. 2019)) ........2, 5-7
McCulloch v. Maryland, 17 U.S. 316 (1819) ...... 27, 28
Miller v. Alabama, 567 U.S. 460 (2012) .... 17, 21, 23, 28
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
519 (2012) ................................................................12
Penry v. Lynaugh, 492 U.S. 302 (1989) .......................22
Powell v. Texas, 392 U.S. 514 (1968) ..................... 13, 14
Robinson v. California, 370 U.S. 660 (1962) ..............14
Roper v. Simmons, 543 U.S. 551 (2005) .......... 17, 23, 25
Shinn v. Shinn, 142 S. Ct. 1718 (2022) ......................13
iv
TABLE OF AUTHORITIES—Continued
Page
Smith v. Follette, 445 F.2d 955 (2d Cir. 1971) ............14
Sossamon v. Texas, 563 U.S. 277 (2011) .....................12
Stanford v. Kentucky, 492 U.S. 361 (1989) .................23
Steamship Co. v. Emigration Comm’rs, 113 U.S.
33 (1885) ..................................................................20
Takahashi v. Fish and Game Comm’n, 334 U.S.
410 (1948) ................................................................15
Trop v. Dulles, 239 F.2d 527 (2d Cir. 1956) ..............19
Trop v. Dulles, 356 U.S. 86 (1958) ..................... 17-21
Trozzi v. Lake Cnty., Ohio, 29 F.4th 745 (6th Cir.
2022) ........................................................................22
United States v. Grant, 9 F.4th 186 (3d Cir.
2021) ...................................................... 18, 20, 21, 27
United States v. Moore, 486 F.2d 1139 (D.C. Cir.
1973) ........................................................................14
Vasquez v. Hillery, 474 U.S. 254 (1986) ......................24
Warren v. City of Chico, 2021 WL 2894648 (E.D.
Cal. July 8, 2021).......................................................5
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. VIII .....1, 2, 6, 13, 14, 17-26, 28, 29
U.S. CONST. amend. X .................................................12
v
TABLE OF AUTHORITIES—Continued
Page
STATUTES
N.J. Stat. Ann. § 17:15B-1.12(a) .................................15
Neb. Rev. Stat. Ann. § 2-3201 .....................................16
W. Va. Code R. § 58-32-1.1 ..........................................16
W. Va. Code R. § 58-32-2.3 ..........................................16
RULES
Sup. Ct. R. 37.2 .............................................................1
OTHER AUTHORITIES
1 W. & M., Sess. 2, c. 2 ............................................. 26
4 William Blackstone, Commentaries 376 (Joseph Chitty ed. 1826) ..........................................25
8 ENGLISH HISTORICAL DOCUMENTS, 1660-1714
(Andrew Browning ed. 1953) ..................................26
Alexis Rivas et al., Human Feces, Other Biohazards on San Diego Sidewalks Cost City Nearly
$1 Million Every Year, 7 SAN DIEGO (Nov. 26,
2021) (https://tinyurl.com/2p96wx9v) .................. 8, 9
Anna Almendrala, Fecal Bacteria In California’s
Waterways Increases With Homeless Crisis,
CAL. HEALTHLINE (Jan. 6, 2020) (https://tinyurl.
com/39nxpemf) ..........................................................8
City & Cnty. of S.F. Office of the Controller,
Street & Sidewalk Maintenance Standards
Calendar Year 2022 Annual Report 10 (2023)
(https://tinyurl.com/5465yw7v) .................................8
vi
TABLE OF AUTHORITIES—Continued
Page
City of Missoula, Urban Camping Update Week
Ending August 11, 2023; August 25, 2023
(https://tinyurl.com/yfubacw2)..................................7
David Zahniser & Emily Alpert Reyes, With L.A.
City Hall infested by rats, one councilman
cites homeless crisis, L.A. TIMES (Feb. 8, 2019)
(https://tinyurl.com/46f5bujn) ...................................7
English Bill of Rights of 1689 ....................................27
Jack Davis, Medieval Diseases Running Rampant Throughout California’s Homeless Population, W. J. (Mar. 11, 2019) (https://tinyurl.
com/auamzem5) ........................................................7
Jade Cunningham, ‘It’s in desperate need of
TLC’: Feces, trash, drug paraphernalia litter
north Phoenix park, 12 NEWS (Apr. 14, 2023)
(https://tinyurl.com/4xxv35sa) ..................................8
James Bayard, A Brief Exposition of the Constitution of the United States (2d ed. 1840) ...............26
Jim Carlton, A Montana Town Faces a Homelessness Problem Similar to San Francisco
and L.A., WALL ST. J. (Sept. 2, 2023) (https://tinyurl.com/35uc952k) .................................................7
Joe Rodriguez, San Francisco Shifts From
Trashing Homeless Camps To Sanctioning
Them Amid COVID-19, NPR (May 14, 2020)
(https://tinyurl.com/3rfmn7hw) ..............................10
vii
TABLE OF AUTHORITIES—Continued
Page
Julie Sabatier, New rules aimed at homeless encampments in Portland could undermine
trust, according to researcher, OR. PUB. BROAD.
(May 21, 2021) (https://tinyurl.com/5n7kuckp)............9
Nick Bowman, Mayor Durkan again at odds
with Seattle council over homeless camps,
MY NW. (May 20, 2020) (https://tinyurl.com/
4d5366uu) ................................................................10
Phil Matier & Andy Ross, SF mayor plans crackdown on homeless camps, S.F. CHRON. (Apr. 8,
2016) (https://tinyurl.com/5n6v9s6v) .....................11
THE FEDERALIST NO. 45 ...............................................12
Tran Nguyen, ‘They’re everywhere’: Rats plague
San Jose’s largest homeless camp, SAN JOSÉ
SPOTLIGHT (Feb. 16, 2022) (https://tinyurl.com/
4vfus4y7) ...................................................................7
1
INTERESTS OF AMICI CURIAE
Families can no longer walk the streets of Portland, San Francisco, and Seattle in safety. The pungent
smell of urine and human feces fills the air. Hypodermic needles used for narcotics cover the ground. And
rats carrying diseases that were once thought eradicated scurry from encampments to nearby businesses
and homes. These cities used to be beacons of the West,
but their sidewalks are now too dangerous to visit.
The States of Idaho, Montana, Alabama, Alaska, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Oklahoma,
South Carolina, South Dakota, Texas, Utah, Virginia,
and West Virginia (Amici States)1 are entrusted with
protecting their citizens’ health and safety. Their core
sovereign functions involve defining crimes and enforcing a criminal code within their borders. But the Ninth
Circuit believes that the Eighth Amendment prohibits
states from enforcing laws that prevent public spaces
from becoming homeless encampments. The Constitution does no such thing. It commits to states broad and
general powers to provide for their citizens’ welfare, including by preventing the public health crises stirred
by homeless encampments.
For over 65 million Americans and over 40% of
the Nation’s land mass, the Ninth Circuit’s decision is
now the controlling law in federal courts. The Ninth
Circuit has had at least two opportunities to correct its
erroneous Eighth Amendment interpretation but has
1
Pursuant to Rule 37.2, Amici States provided timely notice
of this brief to all parties.
2
refused. Its entrenched holdings need this Court’s correction so that state and local governments can meet
the challenges their communities face.
Granting certiorari will also allow this Court to
course-correct its errant Eighth Amendment holdings. The Ninth Circuit relied on this Court’s “evolving
standards of decency” jurisprudence, and this case is
the unfortunate fruit of that standardless approach.
Until the Court grounds the Eighth Amendment in the
Constitution’s text, history, and structure, states will
continue to be on the receiving end of federal overreach. And their citizens will be forced to live with the
consequences of states’ eroded ability to address matters of local concern. Certiorari is warranted.
SUMMARY OF THE ARGUMENT
In 2018, the Ninth Circuit discovered an Eighth
Amendment right to sleep, camp, and defecate in public spaces. Martin v. City of Boise, 902 F.3d 1031 (9th
Cir. 2018), opinion amended and superseded on denial
of reh’g, 920 F.3d 584 (9th Cir. 2019). The panel below
went further and held the Eighth Amendment even
prevents civil fines for “engaging in involuntary, unavoidable life sustaining acts.” Johnson v. City of Grants
Pass, 72 F.4th 868, 895 (9th Cir. 2023). While homelessness has surged in the years that followed, state and
local government efforts to address their community
concerns have been thwarted—time and again. All the
while, their citizens suffer.
3
The Ninth Circuit’s holdings are wrong on at least
two levels. First, the Constitution nowhere strips states
of their right to regulate use of public spaces. It empowers states and guarantees an inviolable sovereignty meant to address local issues like homelessness.
Second, the Ninth Circuit relied on this Court’s “evolving standards of decency” jurisprudence, which lacks
textual, historical, or structural support. The Court
should put that troublesome jurisprudence to bed once
and for all.
REASONS FOR GRANTING CERTIORARI
This case presents compelling reasons to grant certiorari. Four separate opinions from Judges O’Scannlain,
Collins, M. Smith, and Bress—joined by a host of their
colleagues—ably dismantle the Ninth Circuit’s legal
analysis. Those opinions describe the Ninth Circuit’s
holding as “deeply flawed,”2 “egregiously wrong,”3
“clearly wrong,”4 “untenable,”5 “dubious,”6 “deeply damaging,”7 and a “startling misapplication of Supreme
2
Grants Pass, 72 F.4th at 943 (Collins, J., dissenting from
denial of rehearing en banc).
3
Id.
4
Id. at 945 (Bress, J., dissenting from denial of rehearing en
banc).
5
Id. at 925 (O’Scannlain, J., respecting the denial of rehearing en banc).
6
Id.
7
Id.
4
Court precedent,”8 an “inventive, judge-made novelty,”9
“a strange and sweeping mandate,”10 and an “objectively unreasonable constitutional straitjacket.”11 The
Court will be hard-pressed to find a decision more
flogged by members of its own court.
Amici States share the concerns raised in the opinions dissenting from denial of rehearing. The excellent
legal analysis need not be repeated here, and Amici
States instead commend the Court’s close attention to
each of those opinions. The States write now to highlight particular problems that the Ninth Circuit’s holding poses for state and local governments. Those
problems have worsened in the few years since the
Ninth Circuit divined a personal right to camp in cities, and they have shown no signs of relenting.
The Ninth Circuit is not going to fix the mess it
made for much of the country. This Court’s intervention is needed.
8
Id. at 929
Id. at 930
10
Id. at 925
11
Id. at 944 (Collins, J., dissenting from denial of rehearing
en banc).
9
5
I.
The West Has Suffered For Five Years Under Martin’s Regime, And The Ninth Circuit’s Doubling Down Leaves State And
Local Governments Powerless To Help.
When the Ninth Circuit decided Martin v. City of
Boise in 2018, it claimed its holding was “a narrow one”
that left local governments latitude to regulate public
encampments. 920 F.3d at 617. Judges dissenting from
denial of rehearing en banc in Martin were not reassured. And unfortunately, their “fear that the panel’s
decision will prohibit local governments from fulfilling
their duty to enforce an array of public health and
safety laws” has come to pass. Id. at 596 (M. Smith, J.,
dissenting from denial of rehearing en banc). Western
States have been hogtied and repeatedly prevented
from addressing the serious issues public encampments inflict on their communities. The Ninth Circuit’s
five-year experiment needs to be stopped.
State and local governments in the Ninth Circuit
have tried various ways to address public encampments. These efforts are regularly met with litigation
and shut down by federal courts. For example, the City
of Chico sought to enforce its anti-camping ordinance
by “construct[ing] an outdoor temporary shelter facility at the Chico Municipal Airport that accommodate[d] all 571 of the City’s homeless persons.” Warren
v. City of Chico, 2021 WL 2894648, at *3 (E.D. Cal. July
8, 2021). The district court understood Martin to require “indoor” beds—not shelter beds—before the City
could enforce its anti-camping prohibitions, so it enjoined Chico’s ordinance. Id. at *3-4.
6
The City of Santa Barbara limited its anti-camping
ordinance to downtown areas and made it enforceable
only between 7:00 a.m. and 2:00 a.m. Boring v. Murillo,
2022 WL 14740244, at *6 (C.D. Cal. Aug. 11, 2022). But
it was still sued to stop enforcement of the more modest limitations. Id. And even though nothing prevented
individuals from sleeping or camping in other areas of
Santa Barbara, the court held that the plaintiffs stated
a plausible Eighth Amendment claim under Martin.
Id. The City’s ordinance remains under litigation today.
The City of Phoenix directed its officers to make
individualized assessments before citing individuals
under its anti-camping ordinances, but that did not
stop a court from enjoining enforcement of the ordinances wholesale. Fund for Empowerment v. City of
Phoenix, 2022 WL 18213522, at *3 (D. Ariz. Dec. 16,
2022). The Court held that the ordinances likely failed
under Martin and Grants Pass because “the unsheltered in the city outnumber the available bed spaces.”
Id. The Ninth Circuit’s purportedly “narrow” holding
has instead taken on a broad application: all jurisdictions must demonstrate that available bed space
outnumbers homeless persons before even thinking
about enforcing an anti-camping ordinance.
The impact of that approach has had far-reaching
consequences. Dense population centers are not the only
places suffering serious health and safety concerns.
Smaller towns like Missoula, Montana are now facing
encampments throughout their public spaces. As of
August, Missoula had 60 separate encampments across
7
its 400 acres of public parks.12 Missoula does not have
enough beds to meet Martin’s metrics, so it cannot enforce its decades-old anti-camping ordinance.13 And it
cannot respond to resident concerns that “parks have
become dirty and unsafe.”14 Missoula must instead be
content to clean “unsalvageable” vehicles “full of human
waste” and “debris such as mattresses, couches, and tables” clogging the city’s irrigation and waterways.15
The increase in public encampments has led to surging public health and safety issues. Medieval diseases
like typhus, shigella, and trench fever are spreading in
public encampments.16 Rats and fleas plague these
spaces and spread diseases to people and pets.17 They
also infest nearby public buildings, placing all who enter at risk.18
12
See Jim Carlton, A Montana Town Faces a Homelessness
Problem Similar to San Francisco and L.A., WALL ST. J. (Sept. 2,
2023) (https://tinyurl.com/35uc952k).
13
Id.
14
Id.
15
City of Missoula, Urban Camping Update Week Ending
August 11, 2023; August 25, 2023 (https://tinyurl.com/yfubacw2).
16
See Jack Davis, Medieval Diseases Running Rampant
Throughout California’s Homeless Population, W. J. (Mar. 11,
2019) (https://tinyurl.com/auamzem5).
17
Id.; see also Tran Nguyen, ‘They’re everywhere’: Rats plague
San Jose’s largest homeless camp, SAN JOSÉ SPOTLIGHT (Feb. 16,
2022) (https://tinyurl.com/4vfus4y7).
18
See, e.g., David Zahniser & Emily Alpert Reyes, With L.A.
City Hall infested by rats, one councilman cites homeless crisis,
L.A. TIMES (Feb. 8, 2019) (https://tinyurl.com/46f5bujn).
8
Encampments in cities also inevitably lead to
human fecal matter smearing sidewalks, paths, and
playgrounds.19 The human waste is even polluting
water sources.20 And children walking to school and
volunteer clean-up crews are increasingly exposed to
discarded needles, condoms, and feminine products.21
These and other biohazards litter public spaces. The
following pictures are a snapshot of the crisis the
Ninth Circuit largely roped off from state and local
government regulation:
19
See, e.g., City & Cnty. of S.F. Office of the Controller,
Street & Sidewalk Maintenance Standards Calendar Year 2022
Annual Report 10 (2023) (https://tinyurl.com/5465yw7v) (finding
that “[f ]eces was another notable observed hazard, on approximately 50% of street segments in Key Commercial Areas”); Jade
Cunningham, ‘It’s in desperate need of TLC’: Feces, trash, drug
paraphernalia litter north Phoenix park, 12 NEWS (Apr. 14, 2023)
(https://tinyurl.com/4xxv35sa).
20
Anna Almendrala, Fecal Bacteria In California’s Waterways Increases With Homeless Crisis, CAL. HEALTHLINE (Jan. 6,
2020) (https://tinyurl.com/39nxpemf ).
21
Alexis Rivas et al., Human Feces, Other Biohazards on San
Diego Sidewalks Cost City Nearly $1 Million Every Year, 7 SAN
DIEGO (Nov. 26, 2021) (https://tinyurl.com/2p96wx9v).
9
22
23
22
Alexis Rivas et al., Human Feces, Other Biohazards on San
Diego Sidewalks Cost City Nearly $1 Million Every Year, 7 SAN
DIEGO (Nov. 26, 2021) (https://tinyurl.com/2p96wx9v).
23
Julie Sabatier, New rules aimed at homeless encampments
in Portland could undermine trust, according to researcher, OR.
PUB. BROAD. (May 21, 2021) (https://tinyurl.com/5n7kuckp).
10
24
25
24
Nick Bowman, Mayor Durkan again at odds with Seattle
council over homeless camps, MY NW. (May 20, 2020) (https://tiny
url.com/4d5366uu).
25
Joe Rodriguez, San Francisco Shifts From Trashing Homeless Camps To Sanctioning Them Amid COVID-19, NPR (May 14,
2020) (https://tinyurl.com/3rfmn7hw).
11
26
Homelessness can be hard to look at. It is a stark
reminder of our society’s shortcomings. But as the pictures illustrate, the Ninth Circuit’s approach has only
worsened the problem, while forcing communities “to
surrender the use of many of their public spaces (including sidewalks) to homeless encampments.” Grants
Pass, 72 F.4th at 932 (O’Scannlain, J., respecting the
denial of rehearing en banc). Once safe and thriving
communities now “must live by the criminal violence,
narcotics activity, and dangerous diseases that plague
the homeless encampments.” Id. Communities should
not be forced to live under these conditions. Nor should
the “threat to the public welfare . . . be taken lightly.”
Id.
26
Phil Matier & Andy Ross, SF mayor plans crackdown on
homeless camps, S.F. CHRON. (Apr. 8, 2016) (https://tinyurl.com/
5n6v9s6v).
12
Amici States understand that the issues presented by homelessness are not susceptible to easy answers. What the underlying causes are and how to
address them have been difficult to decipher. But the
complexity of these issues underscores the need for
states and local governments to be empowered to address them.
II.
The Constitution Commits Criminal Law
And Land-Use Policy To State And Local
Governments, Not Federal Courts.
States and localities play a central role in our system of government. They have “numerous and indefinite” powers that “extend to all the objects which, in
the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” THE
FEDERALIST NO. 45 (James Madison). The federal government plays a different role. Its powers are “few and
defined” and concern national matters. Id. That principle of federalism “is a defining feature of our Nation’s
constitutional blueprint.” See Sossamon v. Texas, 563
U.S. 277, 283 (2011). Its demands are simple but important: the federal government does not get to tell
states how to provide for the health, safety, and welfare
of their citizens. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012).
The Constitution codifies the states’ reserved
police powers in the Tenth Amendment—a clear demarcation that would seem difficult to ignore. But the
13
Ninth Circuit managed to do just that. And worse, it
turned federal judges into local land commissioners.
Because two federal judges decided decentralized government was no longer working very well, 40% of the
country is now forced to recognize a constitutional
right to camp on public property. That decision improperly snatches sovereignty over criminal lawmaking
and property from states.
The states’ sovereign power to administer a criminal code is at the core of their sovereign interests. See
Heath v. Alabama, 474 U.S. 82, 93 (1985). “From the
beginning of our country, criminal law enforcement has
been primarily a responsibility of the States.” Shinn v.
Shinn, 142 S. Ct. 1718, 1730 (2022); see also Brecht v.
Abrahamson, 507 U.S. 619, 635 (1993) (“States possess
primary authority for defining and enforcing the criminal law.”). Ratification did not change that. “The power
to convict and punish criminals lies at the heart of the
States’ residuary and inviolable sovereignty.” Shinn,
142 S. Ct. at 1730.
The Ninth Circuit’s blurring of the lines between
a person’s act and their status threatens to erode—if
not eliminate—states’ ability to enforce a criminal
code. Involuntary acts, the Ninth Circuit reasons, are
protected from any criminal punishment (and apparently civil fines now too) under the Eighth Amendment.
Grants Pass, 72 F.4th at 891 (equating “involuntary
conduct” and “status”). The “sweep of that holding [is]
startling.” See Powell v. Texas, 392 U.S. 514, 545 (1968)
(Harlan, J., concurring).
14
Under the Ninth Circuit’s interpretation of the
Eighth Amendment, a drug user cannot be punished so
long as he is addicted to drugs. Id. (Harlan, J., concurring). And “[a] wide variety of sex offenders would be
immune from punishment if they could show that their
conduct was not voluntary but part of the pattern of a
disease.” Id. (Harlan, J., concurring). This radical view
renders “States powerless to punish any conduct that
could be shown to result from a ‘compulsion,’ in the
complex, psychological meaning of that term.” Id. at
544 (Harlan, J., concurring). This Court has never accepted that approach. See United States v. Moore, 486
F.2d 1139, 1150 (D.C. Cir. 1973) (en banc) (explaining
that “there is definitely no Supreme Court holding”
prohibiting the criminalization of involuntary conduct). For good reason: “if every criminal act which was
the result in some degree of a socially developed compulsion was beyond society’s control, the interests and
safety of the public would be seriously threatened.”
Smith v. Follette, 445 F.2d 955, 961 (2d Cir. 1971).
In one case only, this Court held that the Eighth
Amendment “imposes substantive limits on what can
be made criminal and punished as such.” Ingraham v.
Wright, 430 U.S. 651, 667 (1977) (citing Robinson v.
California, 370 U.S. 660 (1962)). It has since emphasized that “limitation as one to be applied sparingly.”
Id. And other than in Robinson, the Court has never
used the Eighth Amendment as a limit on what
states may punish as opposed to how states may punish. A chief reason for the Court’s refusal to extend
Robinson is the “paramount role of the States in
15
setting ‘standards of criminal responsibility.’ ” Kahler
v. Kansas, 140 S. Ct. 1021, 1028 (2020). The Ninth Circuit’s holding not only tells states what they may
criminally sanction, but it also has the effect of imposing on states a particular test of criminal responsibility, which this Court has rejected. See Leland v. Oregon,
343 U.S. 790 (1952).
States also possess primary authority over the
land within their boundaries. “The right to control the
ownership of land rests in sovereign governments and,
in the United States, it rests with the individual states
in the absence of federal action by treaty or otherwise.”
Takahashi v. Fish and Game Comm’n, 334 U.S. 410,
428 n.3 (1948). They hold public lands in trust for the
people. To this end, the People have committed to
states “nearly the whole charge of interior regulation.”
Lane Cnty. v. Oregon, 74 U.S. 71, 76 (1868). Just as “it
is not for the courts to say how [federal land] shall be
administered,” it is also not their place to say how state
land shall be administered. See Light v. United States,
220 U.S. 523, 537 (1911). But the Ninth Circuit’s decision improperly meddles in this area and makes federal judges overseers of state land.
When it comes to public encampments, states have
significant land interests. States regulate public encampments to protect natural resources, prevent
wildfires, preserve the value of recreation, and maintain an area’s dignity and public value. See, e.g., N.J.
Stat. Ann. § 17:15B-1.12(a) (prohibiting camping at the
New Jersey World War II Memorial to protect the condition of the Memorial, to ensure the grounds are open
16
for access by all members of the public and to facilitate
security); Clark v. Cmty. for Creative Non-Violence, 468
U.S. 288, 296 (1984) (concluding that a regulation
prohibiting camping on federal park lands outside of
designated campgrounds was supported by a substantial government interest in “maintaining the parks in
the heart of our Capital in an attractive and intact
condition, readily available to the millions of people
who wish to see and enjoy them by their presence”);
Neb. Rev. Stat. Ann. § 2-3201 (regulating camping to
“conserve, protect, develop, and manage the natural resources”); W. Va. Code R. §§ 58-32-1.1, 58-32-2.3 (regulating camping “is necessary to provide for public
health, safety and welfare; to protect state property;
and to assure state recreational area guests of a safe,
beneficial and enjoyable experience.”). The Ninth Circuit’s decision leaves states unable to protect those interests.
It is no exaggeration that the Ninth Circuit’s logic
is “an assault upon the constitutional, democratic, and
common law foundations of American civil and criminal law.” Manning v. Caldwell for Roanoke, 930 F.3d
264, 305 (4th Cir. 2019) (Wilkinson, J., dissenting specially). The Court should take action.
17
III. The Ninth Circuit’s Decision Is An Outgrowth Of The Evolving Standards Of Decency Jurisprudence, Which Is Not Textual,
Historical, Or Logical.
The Ninth Circuit’s decision goes far beyond this
Court’s Eighth Amendment holdings. That much is
clear. But it is also true that the Ninth Circuit’s decision is the progeny of this Court’s precedents—and one
that should surprise no one. When this Court subjected
the Eighth Amendment’s meaning to “the evolving
standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 100-01
(1958) (plurality opinion), it engrafted increase, instability, and subjectivity to the text. Now, every
case presents a fresh opportunity for state law to
fall before the Eighth Amendment’s “evolving” morality.
So while the Ninth Circuit may have jumped the
gun today, there is no telling what tomorrow holds. As
this Court has instructed, courts must constantly revisit whether state penal judgments are cruel and unusual. See Roper v. Simmons, 543 U.S. 551, 561 (2005)
(affirming “the necessity” of “the evolving standards
of decency” test to determine which punishments violate the Eighth Amendment). Such an indeterminate
standard is no standard at all.
The Court’s Eighth Amendment jurisprudence is
a problematic outlier, and its forward march “has no
discernible end point.” Miller v. Alabama, 567 U.S. 460,
501 (2012) (Roberts, C.J., dissenting). It has caused
18
much mischief already and will continue to do so until
corrected. Glossip v. Gross, 576 U.S. 863, 899 (2015)
(Scalia, J., concurring). Courts should not be tasked
with judging the changing winds of society’s evolving
morals. Their job is to declare what the law says—not
what they think society would like it to say. This case
confirms the need for this Court to ground the Eighth
Amendment’s meaning in text, structure, and history.
Doing so will protect the sovereign role states have
over the health, safety, and welfare of their communities. And it will bring harmony to the Court’s constitutional interpretive framework. See Bucklew v. Precythe,
139 S. Ct. 1112, 1122 (2019).
A. The evolving standards of decency jurisprudence came out of Warren Court
dicta and has been promoted to the
substantive test for Eighth Amendment
meaning.
The story of the Court’s Eighth Amendment jurisprudence begins like other novel constitutional
announcements. A plurality of the Warren Court unnecessarily “waxed historical” about the Eighth Amendment, see United States v. Grant, 9 F.4th 186, 202 (3d
Cir. 2021) (Hardiman, J., concurring), and declared for
the first time that “[t]he Amendment must draw its
meaning from the evolving standards of decency that
mark the progress of a maturing society.” Trop, 356
U.S. at 101 (plurality). That stray line of dicta was later
repurposed as the Amendment’s governing standard.
See Estelle v. Gamble, 429 U.S. 97, 102 (1976). A closer
19
look at Trop confirms the impropriety of propagating
the evolving standards of decency jurisprudence.
In 1958, this Court considered whether American
Private Albert Trop lost his national citizenship because he was convicted by a military court of desertion “in time of war.” Trop, 356 U.S. at 88 n.1. The
Second Circuit rejected Trop’s due process challenge
to his expatriation. Trop v. Dulles, 239 F.2d 527, 529
(2d Cir. 1956). With Judge Learned Hand writing for
the majority, the court explained that “[w]e have not
considered, and do not consider, whether under the
circumstances at bar ‘expatriation’ was, or was not,
a ‘cruel and unusual’ punishment under the Eighth
Amendment.” Id. The reason was because Trop
“did not suggest anything of the kind in his complaint, or upon the motion for summary judgment;
Judge Inch did not mention it in disposing of the
motion, nor did the plaintiff do so in argument.” Id.
at 529-30.
In a 4-1-4 decision, this Court reversed. Chief Justice Warren explained that under the holding of Perez
v. Brownell, “citizenship is not subject to the general
powers of the National Government and therefore cannot be divested in the exercise of those powers.” Trop,
356 U.S. at 92. On that “ground alone,” the Court reversed. Id. at 93.
But Chief Justice Warren did not stop there. He
took up an unrelated and unpreserved Eighth Amendment question. And he did so even though “the words
of the Amendment are not precise” and the Court had
20
“had little occasion to give precise content to the
Eighth Amendment.” Id. at 100-01. What should have
been a clear instance of constitutional avoidance, see
Steamship Co. v. Emigration Comm’rs, 113 U.S. 33, 39
(1885), was instead embraced as an invitation to develop the Eighth Amendment.
In interpreting the Amendment, the plurality
barely addressed the text. It questioned whether there
was any difference between the words “cruel” and “unusual” but quickly noted that “precise distinctions between cruelty and unusualness do not seem to have
been drawn” in prior decisions. Trop, 356 U.S. at 100
n.32. Without further textual hang-up, the plurality
concluded that because the Amendment’s “scope is not
static,” it “must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society.” Id. at 101. On that understanding, the
plurality found “that use of denationalization as a punishment is barred by the Eighth Amendment.” Id. The
Amendment’s prohibition reaches beyond “physical
mistreatment” and “primitive torture,” the plurality
explained—it also reaches forms of punishment that
destroy an accused’s “political existence.” Id.
The “evolving standards of decency . . . phrase
went unmentioned in [this] Court for ten years after
Trop, until it surfaced in a footnote in a death-penalty
case,” after which “it was then quoted only in passing
in seven death-penalty cases in the 1970s.” Grant, 9
F.4th at 202-03 (Hardiman, J., concurring). In 1976,
the Court looked to the “idealistic” phrase and held
that “punishments which are incompatible with ‘the
21
evolving standards of decency that mark the progress
of a maturing society’ ” violate the Eighth Amendment.
Estelle, 429 U.S. at 102. Although the Trop plurality
had merely said that the Eighth Amendment “must
draw its meaning” from the evolving standards of decency, the Court in Estelle turned “Trop’s dicta [in]to a
constitutional test.” Grant, 9 F.4th at 203 (Hardiman,
J., concurring).
In the following years, the test has been “a standard bearer for the view that the Constitution’s meaning changes over time.” Id. It is “bad wine of a recent
vintage,” id. at 201, and it “has caused more mischief
. . . than any other that comes to mind.” Glossip, 576
U.S. at 899 (Scalia, J., concurring).
B. The evolving standards of decency jurisprudence is a lawless standard that
has no regard for any of this Court’s
Eighth Amendment precedents.
Chief Justice Warren may not have intended his
homiletic words to become a barometer for constitutionally permissible punishments. But they have. And
they have been used to overturn precedent after precedent and to justify the ballooning reach of the Eighth
Amendment. The test’s track record shows that its ambitions know no bounds. It stands ready for its next call
“to shap[e] the societal consensus of tomorrow.” Miller,
567 U.S. at 509 (Thomas, J., dissenting).
A few cases suffice to show the test’s character. Start
with Estelle. Before that case, the Court understood
22
the Eighth Amendment to prohibit the government
from acting cruelly and unusually. But Estelle used the
evolving standards test to extend the Eighth Amendment to prohibit the government from failing to act.
429 U.S. at 104. That extension lacked constitutional
grounding, and the Court later had to “stabilize Estelle’s flimsy foundation.” Trozzi v. Lake Cnty., Ohio, 29
F.4th 745, 751 (6th Cir. 2022) (citing Farmer v. Brennan, 511 U.S. 825, 829 (1994)).
The test picked up steam at the turn of the 21st
century. In 2002, the Court considered whether the
Eighth Amendment prohibited executing a man with
mental disabilities and held that it did. See Atkins v.
Virginia, 536 U.S. 304 (2002). That decision overturned
the Court’s holding from just thirteen years prior,
when the Court addressed the very same question and
held the opposite. Penry v. Lynaugh, 492 U.S. 302, 340
(1989). Perhaps Penry’s short-lived holding should not
have come as a surprise, given that the Court noted in
its closing sentences that “a national consensus
against execution of the mentally retarded may someday emerge reflecting the ‘evolving standards of decency that mark the progress of a maturing society.’ ” Id.
In the 13 years between the two decisions, the Court
found that the American consensus shifted and consolidated around condemnation of executing such persons.
Atkins, 536 U.S. at 315-17. The so-called “national consensus” the Court relied on for its 180 was that 18 of
the 38 states with capital punishment in some way excused mentally incompetent persons. Id. at 343 (Scalia,
J., dissenting) (“How is it possible that agreement
23
among 47% of the death penalty jurisdictions amounts
to ‘consensus’?”). As the Court saw it, determining consensus depended more on “the consistency of the direction of change” than on actual numbers. Id. at 315.
Soon after Atkins, the Court again used the
evolving standards test to overturn another of its
1989 decisions. See Roper, 543 U.S. 551. In Stanford v.
Kentucky, 492 U.S. 361 (1989), the Court held that the
Eighth Amendment did not prohibit capital punishment for juvenile murderers. Id. at 380. In 2005, the
Court held just the opposite in a 5-4 decision. The “national consensus” on which the Court relied was the
same as in Atkins: 18 of 38 states with the death penalty excluded juveniles from its sanction. Roper, 543
U.S. at 552-53.
The pace quickened following Roper. In 2008, the
Court found that a national consensus formed against
executing child rapists. Kennedy v. Louisiana, 554 U.S.
407, 446 (2008). In 2010, the Court held that lifewithout-parole sentences for non-homicide juvenile offenders violated the Eighth Amendment. Graham v.
Florida, 560 U.S. 48, 82 (2010). In 2012, the Court held
that mandatory life-without-parole sentences for juveniles—even those convicted of murder—violated the
Eighth Amendment. Miller, 567 U.S. at 479. And in
2014, the Court held that the Eighth Amendment requires states to consider an IQ test’s standard error of
measurement for death-row inmates. Hall, 572 U.S. at
724. Each of these decisions were 5-vote majorities
with sharp dissents.
24
As this case shows, the evolving standards of decency jurisprudence has creeped beyond death-penalty
and life-without-parole cases. The Ninth Circuit has
also found that the Eighth Amendment guaranteed a
prisoner the right to “gender confirmation surgery.”
Edmo v. Corizon, Inc., 935 F.3d 757, 797 (9th Cir. 2019).
And the Fifth Circuit found “a national consensus
against punishing felons by permanently barring them
from the ballot box.” Hopkins v. Sec’y of State Delbert
Hosemann, 76 F.4th 378, 407 (5th Cir. 2023).
Any expectation that the evolving standards of decency jurisprudence is just a modest method to address
modern punishments is now naïve. The standard has
lost any tie to “objective factors.” Coker v. Georgia, 433
U.S. 584, 592 (1977) (plurality opinion). Eighth Amendment jurisprudence instead is laced with uncertainty,
merely reflecting “the subjective views of individual
Justices.” Id. Our constitution made the law king,
and the rule of law means that “bedrock principles”—
not “the proclivities of individuals”—govern. Vasquez v.
Hillery, 474 U.S. 254, 265-66 (1986). The evolving
standards of decency jurisprudence is contrary to basic
legal norms: it lacks notice and predictability; it invites
arbitrariness and cannot be applied consistently; and
it undermines the integrity of the judicial process. It is
time this Court do something about it.
25
C. The evolving standards of decency jurisprudence cannot be squared with
the text, structure, and history of the
Eighth Amendment.
The Court can, and should, normalize its Eighth
Amendment jurisprudence. Instead of requiring judges
to act as sociologists and tempting them to exercise
their own will, the Court should return to declaring
what the law is. Marbury v. Madison, 5 U.S. 137, 177
(1803). The text and object of the Eighth Amendment
stand against the evolving standards of decency approach.
All agree that the Eighth Amendment is not a
“static” command. See Gregg v. Georgia, 428 U.S. 153,
173 (1976); Roper, 543 U.S. at 589 (O’Connor, J., dissenting); Bucklew, 139 S. Ct. at 1135. It of course prohibits more than the methods of torture rejected in
1791, like “embowelling alive, beheading, and quartering.” 4 William Blackstone, Commentaries 376 (Joseph
Chitty ed. 1826). But pinning an “evolving” standards
approach to the Amendment is not the only way to protect it from becoming “little more than a dead letter
today.” Roper, 543 U.S. at 589 (O’Connor, J., dissenting).
First, the Court has already signaled an interpretive course-correction. In Bucklew, the Court explained
that the Eighth Amendment must be interpreted according to its “original and historical understanding.”
Bucklew, 139 S. Ct. at 1122. That is also the “standard”
approach the Court applies when interpreting constitutional text. Dobbs v. Jackson Women’s Health Org.,
26
142 S. Ct. 2228, 2271 (2022). Under that approach,
the Amendment forbids “tortures and other barbarous methods of punishment.” Estelle, 429 U.S. at 102
(cleaned up). As one early commentator explained, the
Amendment prohibits “the use of the rack or the stake,
or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.” James Bayard, A Brief Exposition of the
Constitution of the United States 154 (2d ed. 1840).
The text itself came straight from the English Bill
of Rights of 1689, which stated that “excessive bail
ought not to be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” 1 W. &
M., Sess. 2, c. 2; 8 ENGLISH HISTORICAL DOCUMENTS,
1660-1714, p. 122 (Andrew Browning ed. 1953). The
purpose was to protect “against punishments unauthorized by statute and beyond the jurisdiction of the
sentencing court, as well as those disproportionate to
the offense involved.” Gregg, 428 U.S. at 169. Similar
provisions were in Virginia’s Constitution of 1776, the
constitutions of seven other states, and the Northwest
Ordinance. Furman v. Georgia, 408 U.S. 238, 243-44
(1972) (Douglas, J., concurring). The history of those
enactments confirms that “the evil the Eighth Amendment targets is intentional infliction of gratuitous
pain.” Baze v. Rees, 553 U.S. 35, 102 (2008) (Thomas, J.,
concurring). The Amendment is “directed to modes of
punishment”—it does not limit “the substantive authority of legislatures to prohibit ‘acts’ like those at issue here, and ‘certainly not before conviction.’ ” Grants
27
Pass, 72 F.4th at 927 (O’Scannlain, J., respecting denial
of rehearing en banc) (emphasis in original).
Second, the original and historical understanding
does not proscribe only those punishments thought
cruel and unusual at ratification. The evolving standards of decency approach attempts to address the fact
that society’s understanding may mature and develop
about what constitutes a cruel and unusual punishment. But it errs by cutting the tie between law and
judgment. In its most modest application, the approach suffers from majoritarianism, which is exactly
what the Bill of Rights protects against. In its recent,
broader applications, it substitutes “judicial preferences” about all aspects of penological policy for the
will of the People. Grant, 9 F.4th at 205. That is not
how the rule of law works.
Law “is a rule: not a transient sudden order from
a superior, to, or concerning, a particular person; but
something permanent, uniform, and universal.” Konigsberg v. State Bar of Cal., 366 U.S. 36, 58 n.5 (1961)
(quoting Daniel Webster). The “permanent, uniform,
and universal” nature of law reflects the “being” and
“becoming” attributes built into the Constitution. See
Jeffrey C. Tuomala, The Casebook Companion pt. 1,
ch. 5, at 10 (September 12, 2023) (on file with author);
see also McCulloch v. Maryland, 17 U.S. 316, 407
(1819) (explaining that the Constitution lacks “the
prolixity of a legal code” and its “nature” instead “requires, that only its great outlines should be marked,
its important objects designated, and the minor ingredients which compose those objects, be deduced from
28
the nature of the objects themselves”). In this way, the
law allows for new applications, but it does so by remaining faithful to constitutional text and embedded
principles.
With the Eighth Amendment, the text and object
of the Amendment contemplate punishments existing
and not yet imagined at the time of the founding.
Some amount of deduction from “its great outlines”
may be required. See McCulloch, 17 U.S. at 407. And
society’s present understanding of “decency” may be
evidence of what is cruel and unusual—it also may
not be. See Miller, 567 U.S. at 510 (2012) (Alito, J., dissenting) (“Is it true that our society is inexorably
evolving in the direction of greater and greater decency? Who says so, and how did this particular philosophy of history find its way into our fundamental
law?”). Redirecting judges from a targeted inquiry
guided by fixed principles and commissioning them to
make vague determinations about society’s evolving
sense of decency is contrary to the very premise of
civil society: punishment for crimes has been removed from the hands of the few and committed to
society—judges are no exception. Ultimately the text,
structure, and history must control the analysis.
Faithfully applied, that approach protects against
both ancient and modern cruel and unusual punishments. See Baze, 553 U.S. at 102 (Thomas, J., concurring).
29
It is long overdue for the Court to remove the
evolving standards of decency test from its Eighth
Amendment jurisprudence. The Court should grant
certiorari here and do so.
CONCLUSION
For the reasons stated, this Court should grant
certiorari and reverse the decision below.
Respectfully Submitted,
RAÚL R. LABRADOR
Attorney General
THEODORE J. WOLD
Solicitor General
JOSHUA N. TURNER
Chief Deputy
Solicitor General
Counsel of Record
AUSTIN KNUDSEN
Attorney General
CHRISTIAN B. CORRIGAN
Solicitor General
BRENT MEAD
Deputy Solicitor General
PETER M. TORSTENSEN, JR.
Assistant Solicitor General
IDAHO OFFICE OF THE
ATTORNEY GENERAL
700 W. Jefferson St.
Suite 210
Boise, ID 83720
(208) 334-2400
josh.turner@ag.idaho.gov
MONTANA DEPARTMENT
OF JUSTICE
215 N. Sanders
Third Floor
Helena, MT 59620
(406) 444-2026
christian.corrigan@mt.gov
Counsel for Amicus States of Idaho and Montana
September 25, 2023
30
ADDITIONAL COUNSEL
STEVE MARSHALL
Attorney General
State of Alabama
MICHAEL T. HILGERS
Attorney General
State of Nebraska
TREG R. TAYLOR
Attorney General
State of Alaska
DREW H. WRIGLEY
Attorney General
State of North Dakota
TIM GRIFFIN
Attorney General
State of Arkansas
GENTNER F. DRUMMOND
Attorney General
State of Oklahoma
ASHLEY MOODY
Attorney General
State of Florida
ALAN WILSON
Attorney General
State of South Carolina
THEODORE E. ROKITA
Attorney General
State of Indiana
MARTY JACKLEY
Attorney General
State of South Dakota
KRIS W. KOBACH
Attorney General
State of Kansas
KEN PAXTON
Attorney General
State of Texas
JEFF LANDRY
Attorney General
State of Louisiana
SEAN D. REYES
Attorney General
State of Utah
LYNN FITCH
Attorney General
State of Mississippi
JASON MIYARES
Attorney General
Commonwealth of Virginia
ANDREW BAILEY
Attorney General
State of Missouri
PATRICK MORRISEY
Attorney General
State of West Virginia
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.