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 briefMar 4, 2024
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No. 23-175
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------CITY OF GRANTS PASS, OREGON,
Petitioner,
v.
GLORIA JOHNSON AND JOHN LOGAN, on Behalf of
Themselves and All Others Similarly Situated,
Respondents.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
---------------------------------♦---------------------------------
BRIEF AMICUS CURIAE OF GOLDWATER
INSTITUTE IN SUPPORT OF PETITIONER
---------------------------------♦--------------------------------TIMOTHY SANDEFUR*
JOHN THORPE
SCHARF-NORTON CENTER FOR
CONSTITUTIONAL LITIGATION
AT THE GOLDWATER INSTITUTE
500 E. Coronado Rd.
Phoenix, AZ 85004
(602) 462-5000
litigation@goldwaterinstitute.org
*Counsel of Record
Counsel for Amicus Curiae
Goldwater Institute
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Does the enforcement of generally applicable laws
regulating camping on public property constitute
“cruel and unusual punishment” prohibited by the
Eighth Amendment?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
TABLE OF CONTENTS ......................................
ii
TABLE OF AUTHORITIES .................................
iii
IDENTITY AND INTEREST OF AMICUS CURIAE .................................................................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
3
I.
The Ninth Circuit’s illogical concept of
“voluntariness” must be overruled ............
3
II.
Martin and this case have encouraged
poor policy choices ..................................... 11
III.
“Voluntariness” cannot be the sole predicate for enforcing the law .......................... 19
CONCLUSION..................................................... 25
iii
TABLE OF AUTHORITIES
Page
CASES
Bradford v. City of Tucson, No. C20234363
(Pima Cnty. Super. Ct., pending) ............................14
Brown v. City of Phoenix, No. CV 2022-010439,
2023 WL 8524162 (Maricopa Cnty. Super. Ct.
Sept. 20, 2023) ................................................1, 13-15
Ex parte Dillon, 44 Cal. App. 239 (1919) ....................21
Fund for Empowerment v. City of Phoenix, 2:22cv-02041-PHX-GMS (D. Ariz., filed Nov. 30,
2022) ..........................................................................4
Hudson v. McMillian, 503 U.S. 1 (1992).......................2
Jones v. City of L.A., 444 F.3d 1118 (9th Cir.
2006) ...................................................................... 4, 9
Martin v. City of Boise, 920 F.3d 584 (9th Cir.
2019) .............................. 1, 2, 4, 5, 8-15, 17-20, 24, 25
Montana v. Egelhoff, 518 U.S. 37 (1996) ......................6
Navarro v. FDIC, 371 F.3d 979 (7th Cir. 2004) ............9
People ex rel. Barmore v. Robertson, 134 N.E. 815
(Ill. 1922) ........................................................... 21, 22
Powell v. Texas, 392 U.S. 514 (1968) ................... 6, 7, 10
Robinson v. California, 370 U.S. 660 (1962) ...... 5, 8, 21
State ex rel. Kennedy v. Head, 185 S.W.2d 530
(Tenn. 1945) .............................................................21
iv
TABLE OF AUTHORITIES—Continued
Page
Stuyvesant Assocs. v. Doe, 534 A.2d 448 (N.J.
Law. Div. 1987) ..........................................................6
United States v. Cornell, 25 F. Cas. 650 (No.
14,868) (C.C. R.I. 1820) .............................................6
STATUTES
A.R.S. § 36-711 ............................................................21
OTHER AUTHORITIES
Anna Gorman, Medieval Diseases are Infecting
California’s Homeless, The Atlantic, Mar. 8,
2019 .........................................................................22
Bigad Shaban, et al., Mayor Breed’s First Year:
Feces, Needles Complaints Decline; Trash
Gripes, Homelessness Rise, NBC Bay Area,
July 10, 2019 ...........................................................22
City of Phoenix, Housing Phoenix (June 2020) .........17
Corinne Murdock, A Wasteland of Corpses,
Living and Dead: A Devastating Inside Look
at Phoenix’s Homeless Zone, AZ Free News,
Mar. 6, 2023 ...............................................................1
Daniel C. Dennett, Elbow Room: The Varieties of
Free Will Worth Wanting (1984) ................................8
Dennis Culhane, Five Myths about America’s
Homeless, Wash. Post, July 11, 2010 ......................23
Eli Saslow, A Sandwich Shop, a Tent City and an
American Crisis, N.Y. Times, Mar. 31, 2023 ...........14
v
TABLE OF AUTHORITIES—Continued
Page
Herbert Spencer, Social Statics (1851) ......................23
HUD Office of Policy Development & Research,
Boise, Idaho: Our Path Home Brings the
Housing First Model to Idaho .................................18
Judge Glock, Housing First is a Failure, Cicero
Inst. (Jan. 12, 2022) .................................................16
Lord Kames, Principles of Equity (Indianapolis:
Liberty Fund, 3d ed. 2014) (1760) ..........................10
Maricopa Ass’n of Gov’ts, 2023 Point-in-Time
(PIT) Count Report (2023) ......................................17
Marku Saldua, Addressing Social Determinants
of Health Among Individuals Experiencing
Homelessness, SAMHSA Blog (Nov. 15, 2023) ..........15
Paul J. Larkin, Camping and the Constitution,
22 Geo. J.L. & Pub. Pol’y ___ (forthcoming,
2024) ........................................................................21
Phil Matier, Cleaning Up S.F.’s Tenderloin Costs
a Lot of Money—Soon it Might Cost Even
More, S.F. Chronicle, May 1, 2019 ..........................22
Robert C. Ellickson, Controlling Chronic
Misconduct in City Spaces: Of Panhandlers,
Skid Rows, and Public-Space Zoning, 105 Yale
L.J. 1165 (1996) ..................................................... 3-5
Robert Nozick, Anarchy, State, and Utopia
(1974) .......................................................................19
vi
TABLE OF AUTHORITIES—Continued
Page
Sally Krutzig, New Data Show Homeless
Population Numbers in Boise, Ada County. Are
Efforts Working? Idaho Statesman, June 1,
2023 .........................................................................18
Stephen J. Morse, The Non-Problem of Free Will
in Forensic Psychiatry and Psychology, 25
Behav. Sci. L. 203 (2007) ...........................................5
Thomas Aquinas, Summa Theologiae pt. II-I
(Fathers of the English Dominican Province
trans. 1920)................................................................8
Timothy Sandefur, City of Phoenix Says: If You
Don’t Like Homeless Encampments, Vote Us
Out, Goldwater Inst. (Nov. 1, 2022) ........................12
U.S. Dep’t of Housing & Urban Dev., Annual
Homelessness Assessment Report (2015) ..............15
U.S. Dep’t of Housing & Urban Dev., HUD 2022
Continuum of Care Homeless Assistance
Programs
Homeless
Populations
and
Subpopulations (Dec. 2022) ....................................23
U.S. Interagency Council on Homelessness,
State of Homelessness (Dec. 19, 2022) ....................23
Wayne Winegarden, “Housing First” Puts Lofty
Goals Above Real-World Results, Pac. Rsch.
Inst. (Oct. 3, 2022) ...................................................18
1
IDENTITY AND INTEREST OF
AMICUS CURIAE1
The Goldwater Institute (“GI”) is a public policy
foundation devoted to individual freedom and limited
government. Through its Scharf-Norton Center for
Constitutional Litigation, GI litigates and files amicus
briefs when its or its clients’ objectives are implicated.
GI’s Project on Homelessness devotes substantial
resources to the question of municipal governments’
handling of the ongoing homelessness crisis—a crisis
greatly exacerbated both by the Ninth Circuit’s ruling
in Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019),
and by local governments’ misinterpretations of that
ruling. Specifically, GI is involved in litigation in its
hometown of Phoenix over the city’s refusal to enforce
anti-camping ordinances—a refusal the City rationalized as necessitated by the Martin decision. See Brown
v. City of Phoenix, No. CV 2022-010439, 2023 WL
8524162, at *1 (Maricopa Cnty. Super. Ct. Sept. 20,
2023).
GI has also produced research and journalism on
the ongoing homelessness problem in Phoenix and
other western cities. See Corinne Murdock, A Wasteland of Corpses, Living and Dead: A Devastating Inside
1
Counsel for amicus affirm no counsel for any party authored this amicus brief in whole or in part, and that no person or
entity, other than amicus, its members, or counsel, made a monetary contribution to the preparation or submission of this brief.
2
Look at Phoenix’s Homeless Zone, AZ Free News, Mar.
6, 2023.2
GI believes its experience and policy expertise will
assist this Court in deciding this case.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
This Court should overrule Martin v. City of Boise,
920 F.3d 584 (9th Cir. 2019), and reverse the decision
here, because both rulings embody an untenable assumption that people lack free will—and therefore
cannot be held responsible for their actions—whenever
the government fails to provide them with a free-ofcharge alternative to breaking the law. Laying aside
the question of whether the Eighth Amendment’s
Cruel and Unusual Punishment Clause applies at all
to the arrest of individuals violating municipal anticamping ordinances,3 both rulings rest on the same
core fallacy: treating voluntary actions as if they were
involuntary. This is a false conception of human nature, and of the principle of personal responsibility
that undergirds the entire legal tradition. It is
2
https://www.goldwaterinstitute.org/a-wasteland-of-corpsesliving-and-dead-a-devastating-inside-look-at-phoenixs-homelesszone/.
3
It does not, because the Clause applies only to “punishment,” which refers only to penalties imposed after trial and conviction. Therefore, properly interpreted, it simply does not apply
to arrests. See generally Hudson v. McMillian, 503 U.S. 1, 18–20
(1992) (Thomas, J., dissenting).
3
inconsistent with, and ultimately undermines, a wide
range of longstanding legal doctrines.
A corollary mistake in both cases is the assumption that the government cannot penalize “involuntary” conduct—and is thus powerless to protect
innocent citizens from harms inflicted by people who
are unable to control their actions. On the contrary,
even when a wrongdoer acts involuntarily, the government can legitimately protect people against harms
she inflicts, including through civil and criminal penalties. The law cannot punish people for who they are,
but it certainly can arrest and incarcerate people for
what they do.
---------------------------------♦---------------------------------
ARGUMENT
I.
The Ninth Circuit’s illogical concept of
“voluntariness” must be overruled.
Professor Ellickson warned almost 30 years ago
that activists were seeking to “take advantage of [the]
legal doctrine” of status crime in order “to characterize
municipal crackdown ordinances that purportedly
target behavior as actually targeting status.” Robert
C. Ellickson, Controlling Chronic Misconduct in City
Spaces: Of Panhandlers, Skid Rows, and Public-Space
Zoning, 105 Yale L.J. 1165, 1187 (1996) (emphasis
added). These activists, Ellickson observed, think the
poor are “so constrained by economic and social circumstances that they lack real choices . . . [and] always
act under duress,” and thus believe that “society
4
should not . . . ask them to bear any responsibilities.”
Id.
In both Martin and this case, these activists succeeded. They persuaded the Ninth Circuit to adopt the
principle that whenever the government fails to give
people a free place to sleep, such people have “no option
of sleeping indoors,” and therefore their residing in
parks, streets, vacant lots, etc., is the “universal and
unavoidable consequence[ ] of being human.” 920 F.3d
at 617 (citation omitted).
Among the absurd results of that victory are cases
such as Fund for Empowerment v. City of Phoenix,
2:22-cv-02041-PHX-GMS (D. Ariz., filed Nov. 30, 2022),
where the plaintiffs include mentally competent and
physically capable people who have remained homeless for three decades, and who have financial income
and even credit cards, but who nonetheless characterize themselves as “involuntarily” homeless, and therefore as constitutionally entitled to live indefinitely in
tents on public property.4
Simply put, Martin and this case classify volitional acts and omissions as if they were inevitable,
4
According to the operative complaint, the plaintiffs are a
man who “has been chronically unsheltered off and on since
2000,” and a woman who is at least sufficiently self-responsible
enough to maintain a credit card account. See First Amended
Complaint (Doc. 45) ¶¶ 20, 80. It should be obvious that a person
who has been homeless for 23 years is not doing so because of the
“unavoidable consequences of being human.” Martin, 920 F.3d at
617 n.8 (quoting Jones v. City of L.A., 444 F.3d 1118, 1136 (9th
Cir. 2006)).
5
and human beings as if they are helpless victims of
fate. That is wrong. To regard the homeless as lacking
free will—or, in today’s fashionable jargon, as lacking
“agency”—not only paralyzes public officials and
harms the hardworking taxpayers who expect their
public employees to enforce the law for the protection
of their neighborhoods; it’s also dehumanizing to the
homeless themselves. “To treat the destitute as choiceless underestimates their capacities and, by failing to
regard them as ordinary people, risks denying them
full humanity.” Ellickson, supra at 1187.
Martin and this decision represent a fallacious application of the principle of “status crime.” That principle, articulated in Robinson v. California, 370 U.S. 660
(1962), embodies the obvious truth that people cannot
legitimately be punished either for immutable characteristics or for “acts of God.” Doing so would be selfcontradictory, because the purpose of law (and punishment) is to require people to conform their actions to
rules, whereas if people lack free will, they cannot
conform to rules. Stephen J. Morse, The Non-Problem
of Free Will in Forensic Psychiatry and Psychology, 25
Behav. Sci. L. 203, 205 (2007).
The “status crime” principle is limited, by its own
premises, to situations involving things truly outside
one’s control. Yet, as traditional tort concepts of causation and attenuation teach, such situations are extremely rare. Because people are responsible for
foreseeable consequences of their actions, including attenuated or unlikely ones, the law requires them to
take precautions against accidents, blind spots, and
6
vices that might lead to catastrophe. That is why voluntary intoxication is not a defense to most torts or
crimes. See Montana v. Egelhoff, 518 U.S. 37, 43–45
(1996). Every person is obligated to avoid becoming so
intoxicated that she loses control of her faculties—especially when she’s aware of her own vulnerabilities or
susceptibilities. Otherwise, as Justice Story observed,
“the commission of one crime [would become] an excuse for another. Drunkenness is a gross vice, and . . .
so far from its being in law an excuse for [crime], it is
rather an aggravation of its malignity.” United States
v. Cornell, 25 F. Cas. 650, 657–58 (No. 14,868) (C.C. R.I.
1820). Likewise, a person who needs psychotropic medication to maintain self-control can be held liable for
harms that come about due to her not taking that medication, because it’s foreseeable that this would lead to
harming others. See, e.g., Stuyvesant Assocs. v. Doe, 534
A.2d 448, 450 (N.J. Law. Div. 1987). The fact that the
defendant cannot control what she does without that
medication is no excuse.
The Powell v. Texas, 392 U.S. 514 (1968) plurality
recognized how narrowly limited the status crime principle is when it rejected an Eighth Amendment argument by a defendant who, in Justice Marshall’s words,
was “convicted, not for being a chronic alcoholic, but for
being in public while drunk on a particular occasion.”
Id. at 532. The status crime principle, he wrote, simply
means “that criminal penalties may be inflicted only
if the accused has committed some act, has engaged
in some behavior, which society has an interest in
preventing,” and does not prohibit the state from
7
punishing conduct “because it is, in some sense, ‘involuntary’ or ‘occasioned by a compulsion.’ ” Id. at 533.
In his concurrence, Justice White (who did not join
the plurality) contended that the question of whether
or not punishing an alcoholic for becoming intoxicated
qualified as a status crime could only be answered by
reference to the particular circumstances of each individual case. The Eighth Amendment, he wrote, “might
. . . forbid conviction,” but only if the “record satisfactorily show[ed] that it was not feasible for [the defendant] to have made arrangements to prevent his being
in public when drunk and that his extreme drunkenness sufficiently deprived him of his faculties on the
occasion in issue.” Id. at 552 (White, J., concurring).
Remarkably, the dissenters agreed on that point:
the nature of alcoholism, wrote Justice Fortas, “provide[s] only a context for consideration of the instant
case . . . [and] should not dictate our conclusion. . . .
Our task is to determine . . . whether, in the case now
before us, [constitutional] principles preclude the imposition of . . . punishment.” Id. at 565–66 (Fortas, J.,
dissenting) (emphasis added).
In other words, every justice in Powell recognized
that the “status crime” theory could not work an
across-the-board exoneration of persons accused of
public disorder; instead, it requires an assessment of
each defendant’s particular circumstances.
This recognition of free will is even more applicable to cases that, like this one, involve broad economic
and social influences. As Professor Ellickson observed,
8
the idea that an anti-camping law falls into the same
category as the prohibition of addiction involved in
Robinson, equates to a presumption that poor people
lack free will and cannot be held responsible for their
acts. But this represents a misunderstanding of free
will. People still have volition even when their choices
are caused.5 The fact that circumstances influence
one’s choices doesn’t make one a helpless “victim” of
those circumstances—particularly where the circumstances in question are ones a person has placed herself into, only to later find them hard to escape.
The irrationality of Martin and the decision below
are exacerbated by the Ninth Circuit’s across-theboard numerical formula, whereby the presumption of
helplessness applies based not on circumstances specific to the individual in question, but on society-wide
economic factors. Specifically, the Ninth Circuit declared it cruel and unusual “to criminally punish involuntarily homeless persons for sleeping in public if
there are no other public areas or appropriate shelters
5
Indeed, to assume that free will means an uncaused will is
to commit a self-contradiction. A will that acts without causality
is a will that acts randomly. So under this (surprisingly common)
assumption, only irrational or insane people—whose minds act
causelessly—could have free will. See Daniel C. Dennett, Elbow
Room: The Varieties of Free Will Worth Wanting 27 (1984) (refuting the idea that “the only hope of having a rational will involves
the exemption from physical causality of one’s mind”); see also
Thomas Aquinas, Summa Theologiae pt. II-I, question 6, art. 1,
Reply to Obj. 3 (Fathers of the English Dominican Province trans.
1920) (“just as by moving natural causes [God] does not prevent
their acts being natural, so by moving voluntary causes He does
not deprive their actions of being voluntary”).
9
where those individuals can sleep,” regardless of the
person’s actual acts or omissions. App. 19a.6 In other
words, a person is per se “involuntarily” sleeping on the
streets—even when she “engag[es] in conduct necessary to protect themselves [sic] from the elements
when there [is] no shelter space available,” such as
building a makeshift shelter on public property, id. at
5a,—whenever the government fails to give her free
shelter.
That’s simply not what “involuntariness” means.
An involuntary act is an unavoidable act—one about
which the individual can make no deliberate choice.
Navarro v. FDIC, 371 F.3d 979, 981 (7th Cir. 2004). It
means the “universal and unavoidable consequences of
being human.” Jones, 444 F.3d at 1136. But a person
who chooses to live indefinitely on the streets—or
chooses not to take steps to avoid such a situation, or
who, while living there, takes deliberate steps to maintain that mode of living—is not doing so as an unavoidable consequence of being human.
By the Ninth Circuit’s logic, if a person drives
home intoxicated from a bar, and gets into a collision
that kills someone, she cannot be held criminally responsible—because the government failed to provide
her with a taxicab. That is illogical. Likewise, someone
6
This numerical formula, of course, does not include beds at
church-run shelters, because the Ninth Circuit said that counting
them would violate the Establishment Clause. Martin, 920 F.3d
at 609–10. Given that churches are probably the most common
source of shelter for the homeless, this discrimination against
church-run shelters biases the formula at the outset.
10
who chooses to start a fire that gets out of control and
consumes a neighbor’s house has no “involuntariness”
defense to an arson charge just because the government did not give him an electric heater. And a person
who pours poisonous waste into a river is not “involuntarily polluting” simply because the government failed
to provide her with a toxic waste disposal service.
In any event, as the dissent below observed, the
entire theory of “status crime” requires “an assessment
of a person’s individual situation before it can be said
that the Eighth Amendment would be violated by applying a particular provision against that person.” App.
at 80a (Collins, J., dissenting). As all the justices in
Powell agreed, it requires a court to inquire as to
whether the particular person in question is capable of
taking responsibility for his or her acts. The Ninth Circuit’s numerical formula makes this individual assessment impossible.
Supporters of the Ninth Circuit’s approach typically claim to be acting in the name of “equity.” Yet equity itself is inherently individualized. That is, equity
operates based on the circumstances of particular
cases. See Lord Kames, Principles of Equity 27 (Indianapolis: Liberty Fund, 3d ed. 2014) (1760) (“To determine every particular case according to what is just,
equal, and salutary, taking in all circumstances, is undoubtedly the idea of a court of equity in its perfection.”). Yet contrary to centuries of equity practice, the
Martin rule applies a per se rule based on a mathematical formula—a rule that categorically prohibits the
11
case-by-case determinations that are, in any event,
necessary to aid the homeless.
Martin’s presumption of helplessness is also manifested in such rhetorical tricks as the Respondents engage in when they accuse Petitioners of “criminalizing
homelessness.” Resp’ts’ Opp’n to Pet. at 4. This is a semantic device intended to substitute intimidation and
accusation in place of rational legal analysis. It’s safe
to say that no party or amicus in this case seeks to
criminalize homelessness. Rather, the laws in question
are laws against sleeping in public parks, polluting
public areas, and other acts which are voluntary, at
least in the vast majority of cases, and that the exceptions can only be discerned on a case-by-case basis. Yet
the Martin rule effectively bars that case-by-case determination, substituting a false and insulting paternalism whereby people are viewed as per se incapable
of taking responsibility for their own lives.
II.
Martin and this case have encouraged poor
policy choices.
True, Martin said local governments can still enforce anti-camping ordinances. 920 F.3d at 617 n.8. Yet
in practice, Martin’s bizarre application of the concept
of “involuntary homelessness” is hard to square with
that limitation on its holding. As the dissenters below
observed, Martin “treats a shelter-beds deficit, when
combined with conclusory allegations of involuntariness, as sufficient for an individual to show that he or
she is involuntarily homeless,” App. 148a (Smith, J.,
12
dissenting), and that, in turn, entitles the person, as a
matter of constitutional right, to reside indefinitely in
parks, streets, or sidewalks—in dangerous, unclean,
and inhumane conditions—exempt from law enforcement intervention.
At least that’s how many municipal officials interpret Martin. Notwithstanding the caveats in that case,
such officials have taken Martin’s bizarre “involuntariness” theory as an opportunity to shrug off their responsibility to enforce laws that are wholesome and
necessary for the public good. The result is a stark
homelessness crisis in cities across the west.
Phoenix’s case is particularly shocking. For well
over a year—until commanded to change their ways by
a state judge—Phoenix officials essentially operated
an open-air homeless shelter in the streets of downtown Phoenix, known locally as “The Zone.” Its population rose to over 1,000 people at one point—people
living in tents on sidewalks and vacant lots, during the
COVID pandemic, and during summers that can easily
reach 120°.
The City repeatedly admitted in court that it decided to maintain this encampment intentionally, as a
“policy choice,”7 in response to the Martin ruling. While
police wanted to enforce the law in The Zone, testimony
in court showed that their superiors would not let
7
See Timothy Sandefur, City of Phoenix Says: If You Don’t
Like Homeless Encampments, Vote Us Out, Goldwater Inst. (Nov.
1, 2022), https://www.goldwaterinstitute.org/city-of-phoenix-saysif-you-dont-like-homeless-encampments-vote-us-out/.
13
them. Those superiors claimed their hands were tied
by Martin—and continued to maintain this, even after
an Arizona trial court issued a preliminary injunction
finding The Zone a public nuisance and ordering the
City to desist. Indeed, the City embraced both Martin
and the panel decision here as a rationalization for
their own refusal to enforce existing laws, regardless
of the actual limitations on those holdings specified by
the Ninth Circuit.8
The consequences of Phoenix’s deliberate inaction
included not only the open discharge of sewage into
streets and gutters, and the physical and economic destruction of neighborhood businesses, but even incidents of arson and homicide. Brown, 2023 WL 8524162,
at *5–6. Finally, in September 2023—almost a year after the parties argued the case—the court issued a permanent injunction ordering the City to abate the
public nuisance it had created. Id. at *17. The City consequently ordered the population of The Zone to disperse, and provided those who needed temporary
shelter with space in a campground the City created
on its own property.
Respondents and their allies here point to this as
proof that cities can address the problem of homeless
encampments already, and thus that Martin need not
be overruled, see, e.g., Resp’ts’ Opp’n to Pet. at 27, but
this is wrong. First, the circumstances in Phoenix
were unusually extreme, given the City’s explicit,
8
This point is explained in detail in Amicus Goldwater’s
brief in support of the Petition.
14
announced policy of refusing to enforce existing law.
Moreover, The Zone was probably the largest homeless
encampment in the United States. See Eli Saslow, A
Sandwich Shop, a Tent City and an American Crisis,
N.Y. Times, Mar. 31, 2023.9 The circumstances were so
egregious that the court determined that the City itself
was actually operating a public nuisance in The Zone.
Indeed, the City essentially conceded that in litigation.
Cities will rarely be that brazen or candid. For example, officials in Tucson have been similarly derelict
in enforcing anti-camping and anti-pollution ordinances, but have not created a single, massive Zonelike area.10 It’s little comfort to law-abiding, taxpaying
Tusconans that perhaps, if the situation becomes as
atrocious as Phoenix’s Zone, they might eventually be
able to sue. Even the judge in the Brown case said as
much, writing:
The Martin and Grants Pass decisions created
an unworkable mandate based upon questionable legal analysis. . . . One need only look at
the multitude of dangerous and dehumanizing homeless encampments and open-air drug
markets in cities under the jurisdiction of the
Ninth Circuit—such as the Zone in Phoenix—
to see the profound impact that Martin and
Grants Pass have had. The Court received evidence that after the Martin decision, states
9
https://www.nytimes.com/2023/03/19/us/phoenix-businesseshomelessness.html.
10
See Bradford v. City of Tucson, No. C20234363 (Pima
Cnty. Super. Ct., pending).
15
under the jurisdiction of the Ninth Circuit
saw a 25% increase in unsheltered homeless,
while states outside of the Ninth Circuit’s jurisdiction saw a 25% decrease in unsheltered
homeless. The [principles] enunciated in Martin and Grants Pass partially tie the hands of
cities that seek in good faith to address the
growing homeless encampment epidemic. And
the decisions also provide a convenient excuse
for other city leaders that wish to do nothing
while such encampments grow and fester.
Brown, 2023 WL 8524162, at *15 n.7.
Along with the type of official dereliction involved
in Brown, cities have also seen Martin and this case as
rationales for implementing profoundly flawed policy
responses to the homelessness crisis. Foremost among
these is a foolhardy policy called the “Housing First
Model,” which holds that the fundamental solution to
homelessness is to give homeless people the keys to
taxpayer funded apartments, with absolutely no conditions or rules required to maintain that housing. It is
widely known and understood that the largest single
factors responsible for chronic homelessness are mental health or substance abuse issues. See Dep’t of Housing & Urban Dev., Annual Homelessness Assessment
Report (2015)11; Marku Saldua, Addressing Social Determinants of Health Among Individuals Experiencing
11
https://www.huduser.gov/portal/datasets/ahar/2015-aharpart-1-pit-estimates-of-homelessness.html.
16
Homelessness, SAMHSA Blog (Nov. 15, 2023).12 Once
placed in an apartment, many of these individuals
simply continue the same lifestyle choices they made
on the streets, only now taxpayers must financially
support that lifestyle.
The idea behind “Housing First” is simple: there
will be no more homelessness if everyone has a home.
The fault with that logic is that there are many individuals who do not want housing—at least, not at the
cost of giving up their addictions or other poor lifestyle
choices—and for that reason choose not to take advantage of available aid. Because “Housing First” does
not require people to attend treatment for mental
health or substance abuse, or to stay clean and sober
while living in a new shelter space, it merely treats a
symptom while perpetuating, and even exacerbating,
the problem itself.
In San Francisco, in 2004, then-Mayor Gavin Newsom (amicus in this case) pledged that the city would
eliminate homelessness entirely within a decade. Since
then, San Francisco has become a proverb and a byword of how to not address the homelessness crisis.13
The city built enough permanent supportive housing
to shelter every homeless individual—and the result
has been an increase in the number of people living on
the streets. See Judge Glock, Housing First is a Failure,
12
https://www.samhsa.gov/blog/addressing-social-determinantshealth-among-individuals-experiencing-homelessness.
13
The brief of Amici Neighbors for a Better San Francisco, et
al., in Support of the Petition addresses this in detail.
17
Cicero Inst. (Jan. 12, 2022).14 Similarly, Phoenix Mayor
Kate Gallego announced the “Housing Phoenix Plan”
in June of 2020, which follows the “Housing First” approach.15 Since the implementation of that policy,
Phoenix has seen an overall increase in homelessness
rates from 2,380 to 3,333 in 2023. Maricopa Ass’n of
Gov’ts, 2023 Point-in-Time (PIT) Count Report 4
(2023).16
Obviously, if there are no preconditions to enter
housing via the “Housing First” policy, then there are
no conditions to maintaining that housing as well. This
means an individual can continue the self-destructive
lifestyle that caused him or her to live on the streets in
the first place—yet with less fear of being held accountable to the law, and less likelihood of being referred to
mental health or substance abuse treatment programs. Thus “Housing First” essentially incentivizes
the downward spiral that led to homelessness to begin
with—all at the expense of law-abiding taxpayers.
Even before the Martin decision, “Housing First”
was obviously a failed strategy. From 2014 to 2020,
California, Washington, and Oregon, relied heavily on
“Housing First.” Yet homelessness in these states during that period increased, by 41.8% in California,
24.3% in Washington, and 20.5% in Oregon. During the
14
https://ciceroinstitute.org/research/housing-first-is-a-failure.
See City of Phoenix, Housing Phoenix (June 2020)
https://www.phoenix.gov/housingsite/Documents/Final_Housing_
Phx_Plan.pdf.
16
https://azmag.gov/Portals/0/Homelessness/PIT-Count/2023/
2023-PIT-Count-Report-Final.pdf.
15
18
same time frame, every other state in America saw a
combined decline in the homeless population of 11.7%.
Wayne Winegarden, “Housing First” Puts Lofty Goals
Above Real-World Results, Pac. Rsch. Inst. (Oct. 3,
2022).17 Yet Martin has encouraged cities to adopt and
expand the “Housing First” approach, on the theory
that the alternatives are “cruel and unusual.”
Phoenix, for example, adopted its failed “Housing
First” approach largely as a consequence of Martin. See
Br. Amici Curiae Freddy Brown, et al., in Support of
Pet. at 18a–19a. Even Boise itself cited Martin as one
reason it adopted a “Housing First” approach, see HUD
Office of Policy Development & Research, Boise, Idaho:
Our Path Home Brings the Housing First Model to
Idaho,18 yet recent studies show that homelessness has
increased by at least 6% since 2020. See Sally Krutzig,
New Data Show Homeless Population Numbers in
Boise, Ada County. Are Efforts Working? Idaho Statesman, June 1, 2023.19
“Housing First” is not a viable solution when housing demands are already at an all-time high, and when
government refuses to address root causes of homelessness such as mental health issues and substance
abuse. The more cities and states turn to “Housing
17
https://www.pacificresearch.org/housing-first-puts-loftygoals-above-real-world-results/.
18
https://www.huduser.gov/portal/casestudies/study-112921.
html.
19
https://www.idahostatesman.com/news/local/community/
boise/article275965821.html.
19
First”—as encouraged by the Martin rule—the more
homeless populations will continue to grow.
III. “Voluntariness” cannot be the sole predicate for enforcing the law.
Along with the essential fallacy embedded in the
Martin rule—which leads to the faulty policies described above—there is an additional fallacy at issue
here: the proposition that the state can legitimately act
against lawbreaking only if that lawbreaking is “voluntary” in the first place.
While it’s true that the state may not legitimately
penalize people simply for who they are, it does not follow that the state can take no action against people
who violate the rights of others through an unintentional, involuntary, or innocent act. On the contrary,
the government certainly may protect innocent victims
against harms unintentionally inflicted by another
person. Cf. Robert Nozick, Anarchy, State, and Utopia
34 (1974) (explaining, with a famous hypothetical example, that one may use coercion to defend oneself
against innocent threats). If an intoxicated or insane
person, lacking self-control or self-awareness, threatens the life, liberty, or property of an innocent person,
the latter may defend herself, and the state may defend
her, including through the use of coercion.
The Ninth Circuit ostensibly acknowledged this,
see, e.g., Martin, 920 F.3d at 616, but its logic mandates
the conclusion that the state cannot take steps to protect citizens against threats to their rights posed by
20
people who, for whatever reason, lack self-control. Indeed, the decision below takes this position explicitly,
at times: “The anti-camping ordinances,” it declares,
“prohibit Plaintiffs from engaging in activity they cannot avoid . . . [but these] cannot be criminalized.” App.
46a (emphasis added). The court also held that a person cannot be held civilly liable for such things. See
App. 3a.
Yet there are many activities a person “cannot
avoid” for which she is nonetheless properly held responsible—or, at least, she is obligated to take steps to
avoid inflicting harms on others as a consequence of
the inability to control her actions. The obvious cases
are simple: a person who breaks the speed limit may
be driving so fast that she “cannot avoid” hitting a pedestrian—but that hardly exonerates her, because she
had a duty not to break the speed limit; a person who
stores flammable substances on her property may be
unable to avoid the fire that later breaks out—perhaps
literally through no fault of her own—but is still liable
for the resulting damage; people cannot avoid emitting
bodily waste, but they must do so in a sanitary manner;
people cannot avoid eating, but this does not excuse
even a poor person stealing food.
As for addiction, the Martin theory would empower addicts to use their addiction as a defense for
whatever crimes committed while high. That would
“transform a constitutional provision designed to ban
only hideously painful punishments into a right to injure the person or property of someone else to satisfy
the offender’s insatiable need for pleasure (or pain
21
avoidance) that he or she voluntarily acquired at some
past time.” Paul J. Larkin, Camping and the Constitution, 22 Geo. J.L. & Pub. Pol’y ___ (forthcoming, 2024)
at 29.20 And, as Justice Story warned, would transform
an aggravating factor into an exonerating factor. Cornell, 25 F. Cas. 650, 657–58. That cannot be the law.
In fact, even the famous example in Robinson—
that “[e]ven one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common
cold,” 370 U.S. at 667—is doubtful. Quarantine laws
are ubiquitous and have been for centuries. These may
not inflict criminal liability—although a person who
breaks quarantine is subject to civil and/or criminal
punishment for doing so. State ex rel. Kennedy v. Head,
185 S.W.2d 530, 531 (Tenn. 1945). In any event, they
provide for the involuntary confinement of contagious
individuals, and legitimately so21—even though they
do not turn on the question of the individual’s fault, let
alone the person’s ability to prevent infection. See, e.g.,
Ex parte Dillon, 44 Cal. App. 239 (1919); People ex rel.
Barmore v. Robertson, 134 N.E. 815 (Ill. 1922). The
woman confined in Barmore was an asymptomatic carrier of the typhoid bacillus, through no fault of her
own—and she could not avoid infecting others. Yet the
court rightly held that the state had lawful authority
20
https://www.law.georgetown.edu/public-policy-journal/wpcontent/uploads/sites/23/2024/02/Paul-J.-Larkin.pdf.
21
During the early 20th Century, Arizona became a particular destination for tuberculosis patients, because its desert climate makes it easier for them to breathe. Consequently, Arizona
has an entire statutory chapter specifically addressing tuberculosis
quarantine. A.R.S. § 36-711 et seq.
22
to keep her in custody, and to fine her for violating that
custody—as long as it accorded her sufficient individualized due process protections—in order to protect
others from being infected. See id. at 818–20.
The bottom line is: voluntariness is not a sine qua
non of state intervention; rather, state intervention is
justified by the protection of others.
Unsurprisingly, the failure of local governments to
enforce the type of laws at issue here is partly responsible for the recent resurgence in the U.S. of diseases
previously encountered only in third-world cities, including typhoid fever, typhus, and tuberculosis. Anna
Gorman, Medieval Diseases are Infecting California’s
Homeless, The Atlantic, Mar. 8, 2019.22 Public streets
and sidewalks in San Francisco and other cities are
covered in human excrement and used syringes. Phil
Matier, Cleaning Up S.F.’s Tenderloin Costs a Lot of
Money—Soon it Might Cost Even More, S.F. Chronicle,
May 1, 201923; Bigad Shaban, et al., Mayor Breed’s
First Year: Feces, Needles Complaints Decline; Trash
Gripes, Homelessness Rise, NBC Bay Area, July 10,
2019.24 Obviously, these are all disease vectors.
But homelessness is not like typhoid—something
a person just happens to catch through no fault of her
22
https://www.theatlantic.com/health/archive/2019/03/typhustuberculosis-medieval-diseases-spreading-homeless/584380/.
23
https://www.sfchronicle.com/bayarea/philmatier/article/
Cleaning-up-SF-s-Tenderloin-costs-a-lot-of-13808447.php.
24
https://www.nbcbayarea.com/news/local/mayor-londonbreedfirst-year-in-office/154431/.
23
own. Although it’s often claimed that “[o]ver the course
of a year, more than a million individuals and families
experience homelessness,” U.S. Interagency Council on
Homelessness, State of Homelessness (Dec. 19, 2022),25
the reality is that most people who are homeless are
only so for a day or two. See Dennis Culhane, Five
Myths about America’s Homeless, Wash. Post, July 11,
2010.26 Chronic or long-term homelessness, by contrast, is most often a result of addiction or mental illness. See U.S. Dep’t of Housing & Urban Dev., HUD
2022 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations
(Dec. 2022) at 2.27 And these are precisely the “involuntary” cases that the decision below prevents cities
from effectively addressing.
Leaving people to remain living indefinitely on the
streets, or in tents in a park—precisely on the grounds
that they are unable to do otherwise!—is not a compassionate response. On the contrary, it simply reasserts,
under the strangest of disguises, the cold attitude of a
past era that viewed the poor as a mere “surplus population” beyond possibility of rescue. Cf. Herbert Spencer, Social Statics 380 (1851) (“Beings thus imperfect
are nature’s failures, and are recalled by her laws
when found to be such. . . . If they are sufficiently complete to live, they do live, and it is well. . . . If they are
25
https://www.usich.gov/guidance-reports-data/data-trends.
https://www.washingtonpost.com/wp-dyn/content/article/
2010/07/09/AR2010070902357.html.
27
https://files.hudexchange.info/reports/published/CoC_PopSub_
NatlTerrDC_2022.pdf.
26
24
not sufficiently complete to live, they die, and it is best
they should die.”).
A compassionate response would consist of providing people with the care they need—including taking
them into custody against their will if they are unable
or unwilling to manage themselves. And it would include what the dissent below called “an assessment of
a person’s individual situation.” App. 80a (Collins, J.,
dissenting). That individualized assessment is what
the Ninth Circuit, here and in Martin, has rendered
impossible.
Finally, the law-abiding, taxpaying public deserves compassion, also. The victims of municipalities’
abdication of their law-enforcement duties aren’t just
the homeless—who certainly deserve better than to be
left to live on the streets—but also members of the
community who must suffer threats, pollution, damage
to their properties, and the ruin of their businesses as
the consequence of a legal principle that is indefensible
either as a matter of precedent, of Originalism, of textualism, or of policy.
---------------------------------♦---------------------------------
25
CONCLUSION
The Martin decision should be overruled and the
decision in this case reversed.
Respectfully submitted,
TIMOTHY SANDEFUR*
JOHN THORPE
SCHARF-NORTON CENTER FOR
CONSTITUTIONAL LITIGATION
AT THE GOLDWATER INSTITUTE
500 E. Coronado Rd.
Phoenix, AZ 85004
(602) 462-5000
litigation@goldwaterinstitute.org
*Counsel of Record
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.