Amicus Curiae Brief — City of Grants Pass, Oregon, Petitioner v. Gloria Johnson, et al., on Behalf of Themselves and All Others Similarly Situated

No. 23-175

In The Supreme Court of the United States

__________________

CITY OF GRANTS PASS, OREGON,

Petitioner,

v.

GLORIA JOHNSON, ET AL., 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 OF AMICI CURIAE CITY OF PHOENIX

& THE LEAGUE OF ARIZONA CITIES AND

TOWNS SUPPORTING PETITIONER

__________________

JULIE KRIEGH

City Attorney

CITY OF PHOENIX

200 W. Washington

Phoenix, AZ 85003

Julie.Kriegh@phoenix.gov

(602) 262-6761

JUSTIN S. PIERCE*

*Counsel of Record

TRISH STUHAN

AARON D. ARNSON

STEPHEN B. COLEMAN

ALEXANDRA N. CAYTON

PIERCE COLEMAN PLLC

7730 E. Greenway Road

Ste. 105

Scottsdale, AZ 85260

Justin@PierceColeman.com

(602) 772-5506

NANCY DAVIDSON

General Counsel

LEAGUE OF ARIZONA

CITIES AND TOWNS

1820 W. Washington St.

Phoenix, AZ 85007

ndavidson@azleague.org

(602) 258-5786

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

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

INTRODUCTION ........................................................4

SUMMARY OF THE ARGUMENT ............................8

ARGUMENT ..............................................................10

I.

THE

NINTH

CIRCUIT’S

LEGAL

STANDARD IS UNWORKABLE ...................11

II.

CITIES AND TOWNS REQUIRE LAW

ENFORCEMENT TOOLS TO PROTECT

PUBLIC HEALTH AND SAFETY – BOTH

FOR INDIVIDUALS EXPERIENCING

HOMELESSNESS AND RESIDENTS

AND BUSINESSES WHO LIVE AND

WORK

NEAR

HOMELESS

ENCAMPMENTS ...........................................14

III.

PUBLIC

POLICY

FAVORS

HARMONIZING

THE

EIGHTH

AMENDMENT WITH MUNICIPALITIES’

ENFORCEMENT POWERS ..........................18

A.

Western States Continue to Suffer

from

Dramatic

Increases

in

Homelessness .......................................18

B.

Even After Significant Efforts to

Build Shelter, Insufficient Capacity

Exists ....................................................20

ii

C.

Ninth Circuit Case Law Threatens

Public Health and Safety .....................27

D.

Efforts To Address Homelessness

Are Frustrated by Lawsuits Fueled

by Martin and Johnson ........................31

E.

Restricting Decisions on Whether to

Cite or Arrest for Violation of Public

Camping Laws Compels Judges to

Act More as Homeless Policy Czars

Than Judicial Officers Applying

Discernible Rules of Law .....................34

CONCLUSION ..........................................................36

iii

TABLE OF AUTHORITIES

Cases

Aitken v. City of Aberdeen,

393 F. Supp. 3d 1075 (W.D. Wash. 2019) .............. 27

Boring v. Murillo,

No. LACKV2107305DOCKET, 2022 WL 14740244,

(C.D. Cal. Aug. 11, 2022)........................................ 30

Johnson v. City of Grants Pass,

50 F.4th 787 (9th Cir. 2022)..................................... 6

Johnson v. City of Grants Pass,

72 F.4th 868 (9th Cir. 2023)

....................................... 3-8, 10, 11, 17, 27, 28, 30-36

Martin v. City of Boise,

902 F.3d 1031 (9th Cir. 2018) ................................ 30

Martin v. City of Boise,

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

......................................... 3, 5-8, 11, 17, 27, 28, 30-36

Nat'l Fed'n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................................ 16

Quintero v. City of Santa Cruz,

No. 5:19-CV-01898-EJD, 2019 WL 1924990

(N.D. Cal. Apr. 30, 2019) ........................................ 27

Warren v. City of Chico,

No. 221CV00640MCEDMC, 2021 WL 2894648

(E.D. Cal. July 8, 2021) .......................................... 29

iv

Constitutional Provision and Statutes

U.S. CONST. amend. VIII

..................................... 4-11, 13, 15, 17, 18, 30, 34-37

A.R.S. § 13-707........................................................... 14

A.R.S. § 13-802........................................................... 14

PHX., ARIZ. CODE § 1-5 ............................................... 14

PHX., ARIZ. CODE § 23-30 ........................................... 14

PHX., ARIZ. CODE § 23-48.01 ...................................... 14

Other Authorities

Grant Archer, Half of violent crimes in Phoenix

come from 8% of city blocks, ABC (June 6, 2023,

6:23 PM),

https://www.abc15.com/news/crime/half-ofviolent-crimes-in-phoenix-come-from-8-of-cityblocks ...................................................................... 19

CDC Advises Against Clearing Homeless

Encampments if Alternate Housing Is Not

Available During Coronavirus Outbreak, Nat’l

Low Income Hous. Coal. (Mar. 30, 2020),

https://nlihc.org/resource/cdc-advises-againstclearing-homeless-encampments-if-alternatehousing-not-available ............................................. 20

City of Phoenix Places 585 People in Shelter While

Complying with Court Order Ahead of Deadline,

City of Phx. (Nov. 3, 2023, 4:00 PM),

https://www.phoenix.gov/newsroom/homelesssolutions/2910 ......................................................... 21

v

Katherine Davis-Young, Phoenix clears last

remaining block of ‘The Zone’ encampment,

KJZZ

(Nov.

15,

2023,

7:53

AM),

https://kjzz.org/content/1861760/phoenix-clearslast-remaining-block-zone-encampment ............... 22

Jack Healy, Phoenix Dismantles a Homeless

Encampment, One Block at a Time, N.Y. Times

(May 10, 2023),

https://www.nytimes.com/2023/05/10/us/phoeni

x-homeless-camp-the-zone.html ............................ 19

Jeff King, Judging Social Rights (2012) ................... 35

Andrew I. Lief, Comment, A Prosecutorial

Solution to the Criminalization of Homelessness,

169 U. PA. L. REV. 1971 (2021) .............................. 36

Ben A. McJunkin, Homelessness, Indignity, and

the Promise of Mandatory Citations for Urban

Camping, 52 ARIZ. ST. L.J. 955 (2020) .................. 36

MARICOPA ASS’N OF GOV’TS, 2023 Point-in-Time

(PIT)

Count

Report

(2023),

https://azmag.gov/Portals/0/Homelessness/PITCount/2023/2023-PIT-Count-ReportFinal.pdf?ver=8CRzv7xw28CV2G0sMdKfw%3d%3d ....................................... 1, 20

Pima

County

Administrator

warns

of

'homelessness on steroids’ as federal funding for

asylum seekers ends, Tucson Sentinel (Feb. 19,

2024, 2:11 PM),

https://www.tucsonsentinel.com/local/report/02

1924_migrant_shelter_funding/pima-countyadministrator-warns-homelessness-steroids-asfederal-funding-asylum-seekers-ends/ .................... 3

vi

Phoenix Community Court Creates Alternative

Legal Solutions for People Experiencing

Homelessness, City of Phx. (Jan. 26, 2024 6:00

PM),

https://www.phoenix.gov/newsroom/citymanager/2999 ......................................................... 14

Taylor Stevens, Metro Phoenix cities turn to

homeless courts to help people navigate the

justice system, Ariz. Republic (June 3, 2022, 4:30

PM),

https://www.azcentral.com/story/news/local/ariz

ona/2022/06/03/homeless-courts-help-peoplestreets-navigate-legal-system/9584678002/ .......... 15

U.S. DEP’T OF HOUS. AND URB. DEV., The 2023

Annual Homelessness Assessment Report

(AHAR) to Congress (2023),

https://www.huduser.gov/portal/sites/default/fil

es/pdf/2023-AHAR-Part-1.pdf .................. 1, 2, 18, 19

1

INTEREST OF AMICI CURIAE 1

The City of Phoenix (the “City” or “Phoenix”) is

the capital of Arizona and the fifth largest city in the

country, with a population of over 1,600,000 people.

As of 2023, there were an estimated 14,237 homeless

people in Arizona. 2 According to the U.S. Department

of Housing and Urban Development statistics,

western states like Arizona report some of the highest

concentrations of people experiencing homelessness. 3

In Arizona, 54% of individuals experiencing

homelessness were unsheltered in 2023. 4 Phoenix

was burdened with housing a significant portion of

these individuals, with almost half of the State’s

unsheltered population residing in Phoenix, according

to the 2023 Point-in-Time count. 5

1 Amici certify that: (1) neither party’s counsel authored the brief

in whole or in part; (2) neither party nor their counsel contributed

money that was intended to fund preparing or submitting the

brief; and (3) no person other than Amici, their members, or their

counsel contributed money that was intended to fund preparing

or submitting the brief.

2 U.S. DEP’T OF HOUS. AND URB. DEV., The 2023 Annual

Homelessness Assessment Report (AHAR) to Congress at 16

(2023),

https://www.huduser.gov/portal/sites/default/files/pdf/2023AHAR-Part-1.pdf.

3 Id.

4 Id.

5 The 2023 Point-in-Time count by the Maricopa Association of

Governments counted 3,333 unsheltered individuals. MARICOPA

ASS’N OF GOV’TS, 2023 Point-in-Time (PIT) Count Report at 4

(2023),

https://azmag.gov/Portals/0/Homelessness/PITCount/2023/2023-PIT-Count-ReportFinal.pdf?ver=8CRzv7xw28C-V2G0sMdKfw%3d%3d.

2

Founded in 1937, the League of Arizona Cities

and Towns (the “League”) is a voluntary membership

organization of all 91 incorporated Arizona

municipalities.

The League advocates for its

members’ interests before the legislature and courts.

The League is advised by its Amicus Committee,

which identified this case for statewide significance.

Arizona suffered from one of the Nation’s worst

surges in homelessness from 2022 to 2023, with an

estimated 23.8% increase. 6 During this same time,

the largest homeless encampment in Arizona was

located in downtown Phoenix, in an area colloquially

referred to as the “Zone,” with populations fluctuating

to as high as 1,000 people. Although the area has now

been closed to public camping and cleaned after

millions of dollars of taxpayer money were expended

to create new shelter beds and outdoor campground

space, the City continues to struggle to accommodate

the fluctuation of homeless individuals, provide

shelter to people moving into the City from other

areas, and prevent people experiencing homelessness

from reoccupying its downtown area.

And Phoenix is not alone. From larger cities to

rural towns, municipalities are struggling to address

large increases in homelessness, which is evident from

encampments taking over public parks, freeway

underpasses, and downtown areas, in addition to

countless miles of public rights-of-way repurposed

from community spaces to makeshift encampments.

Cities and towns are simply overwhelmed with the

6 U.S. DEP’T OF HOUS. AND URB. DEV., supra note 2, at 81.

3

services

and

homelessness. 7

shelters

needed

to

address

Amicis’ interest in this case is rooted in federal

and state lawsuits stemming from the Ninth Circuit

decisions in Martin v. City of Boise, 920 F.3d 584 (9th

Cir. 2019) and Johnson v. City of Grants Pass, 72 F.4th

868 (9th Cir. 2023), which combine to significantly

limit municipalities’ ability to address public health

and safety concerns arising from homeless

encampments. This brief intends to provide the Court

with a snapshot into the unworkable standard the

Ninth Circuit precedent sets, and to examine how the

rule advocated for by Respondents wreaks havoc on

local governments and law enforcement. The City’s

struggles with addressing homelessness provide

important context for this Court’s consideration in

deciding whether to affirm Ninth Circuit

jurisprudence that unreasonably impedes the

enforcement of critical public health and safety laws.

7 The challenges posed by homelessness are further complicated

for border states. For example, during one week in December,

Pima County hosted 10,187 people who were released by U.S.

Customs and Border Protection. Pima County Administrator

warns of 'homelessness on steroids’ as federal funding for asylum

seekers ends, Tucson Sentinel (Feb. 19, 2024, 2:11 PM),

https://www.tucsonsentinel.com/local/report/021924_migrant_sh

elter_funding/pima-county-administrator-warns-homelessnesssteroids-as-federal-funding-asylum-seekers-ends/.

Of those,

nearly 6,100 were families arriving in the U.S. with children. Id.

Without federal funding to provide shelter to asylum seekers,

cities and towns in border states struggle to locate temporary or

long-term housing for immigrants, which compounds an already

stark lack of shelter in the aftermath of a global pandemic,

record-high inflation, and affordable housing gap.

4

INTRODUCTION

Unlike the officials tasked with

addressing homelessness, the members

of our court are neither elected nor policy

experts. Of course, the political process

must yield to the fundamental rights

protected by the Constitution, and some

of federal courts’ finest moments have

come in enforcing the rights of politically

marginal groups against the majority.

But when asked to inject ourselves into a

vexing and politically charged crisis, we

should tread carefully and take pains to

ensure that any rule we impose is truly

required by the Constitution not just

what our unelected members think is

good public policy.

Johnson, 72 F.4th at 943 (denial of rehearing en banc)

(Smith, J. dissenting).

The question before this Court is whether the

rule imposed by the Ninth Circuit has misinterpreted

the Eighth Amendment in a manner that frustrates

municipalities’ ability to address public health and

safety hazards. The Eight Amendment is intended to

protect individuals from cruel and unusual

punishment, not restrict the ability of municipalities

to protect residents from conditions that are

unsanitary or unsafe, such as human waste, detritus,

used syringes, and other hazardous conditions that

have been associated with homeless encampments.

The interests in protecting people from cruel and

5

unusual punishments and unsafe and unsanitary

conditions are not in competition. Both interests can

be advanced simultaneously.

Under the Ninth

Circuit’s approach, however, it is necessary to sacrifice

one interest for the sake of the other. This is an

untenable result.

This Court may harmonize the diverse interests

posed by allowing municipalities to clean up

encampments

while

permitting

unsheltered

individuals who refuse a lawful directive to vacate an

area or otherwise cease engaging in unlawful

activities to assert the Eighth Amendment as a

defense to criminal liability in prosecution.

In

contrast, the Ninth Circuit’s rule advocated for by

Respondents ties law enforcement hands before they

even

encounter

an

individual

experiencing

homelessness. Ultimately, the Ninth Circuit decisions

in Martin v. Boise and Johnson v. Grants Pass are

unworkable, bad public policy, and, frankly, are

internally inconsistent.

First, in Martin v. Boise, 8 the Ninth Circuit

appeared to adopt a broad rule prohibiting

enforcement of anti-camping and sleeping laws if

there are more unsheltered individuals in a

jurisdiction than there are shelter beds available.

While the goal may have been laudable, the result was

problematic, insofar as it operates as an impediment

to a municipality’s ability to maintain clean and

orderly public areas. Although lower courts may

disagree on the scope of the Martin decision, the

decision cast doubt on the enforcement of public

8 920 F.3d at 617.

6

camping laws for jurisdictions struggling to provide

shelter to involuntarily homeless individuals.

This rule continued in Johnson v. Grants Pass, 9

with the Ninth Circuit seeming to adopt either (1) a

mathematically driven restraint on all enforcement,

or (2) at a minimum, a requirement that a

municipality conduct an individualized inquiry tied to

the number of available shelter beds. In other words,

if the total number of homeless individuals exceeds

the available shelter beds, or alternatively, if there is

no shelter bed for a specific individual to go to, a

municipality cannot enforce public camping laws and

ask people to leave public property in order to address

hazardous and unsanitary living conditions

endangering both the homeless population and the

surrounding public.

Then, in an amended Johnson v. Grants Pass

decision, 10 the Ninth Circuit excised this language and

replaced it with a more flexible recitation of the law:

“Pursuant to Martin, it is an Eighth Amendment

violation to criminally punish involuntarily homeless

persons for sleeping in public if there are no other

public areas or appropriate shelters where those

individuals can sleep.” 11 Thus, Johnson, as amended,

recognizes that anti-camping and sleeping ordinances

may be enforced so long as there are alternative public

spaces—not

just

“beds

in

shelters”—where

unsheltered persons may reside. However, there

9 50 F.4th 787, 813 (9th Cir. 2022).

10 72 F.4th at 877.

11 Id. (emphasis added).

7

remains a lack of clarity regarding the application of

this standard.

Although this later recitation of the Eighth

Amendment rule may provide some much-needed

flexibility, problems exist based on ambiguity

regarding any alleged duty to assess the availability

and adequacy of alternative spaces to accommodate

each unsheltered person’s circumstances. This, in

turn, has made it exceedingly difficult for cities and

towns to vacate an area even when health and safety

concerns demand it.

However, the truth is that it is unnecessary to

unravel the Ninth Circuit’s vague pronouncements.

To the extent the Eighth Amendment is applicable, it

should not be applied at the outset of an encounter

with an unsheltered person during a municipality’s

cleanup efforts – circumstances that necessarily

restrict or significantly delay the ability to address

public hazards. Rather, it should be asserted as a

defense in the case of criminal prosecution. With a

simple change, the Eighth Amendment can be applied

in a manner that protects individual interests while

protecting public health and safety.

Phoenix and the League file this brief to assist

the Court in understanding the errors the Ninth

Circuit and the Respondents make in arguing for

upholding the Martin/Johnson standard, and to

provide this Court context for its ruling – namely, the

extraordinary expense and effort required of Phoenix

to comply with Ninth Circuit precedent.

8

Ultimately, efforts at compliance require a legal

tightrope walk, with the risk of injunction and liability

every time a city or town tries to close an encampment

that threatens public health and safety. The judiciary

should adopt an approach that allows both the

protections of the Eighth Amendment and a

municipality’s ability to enforce health and safety laws

to coexist.

SUMMARY OF THE ARGUMENT

The Ninth Circuit’s decisions in Martin and

Johnson should be reversed because they improperly

and unnecessarily intrude upon the enforcement of

health and safety laws.

Respondents would have this Court adopt a

mathematical formula that restricts the ability to

address hazardous conditions, or at the very least,

requires detailed individualized inquiries before even

a simple citation or arrest can be made if an

unsheltered person refuses to vacate an area that

requires cleanup. Neither interpretation is workable.

Both jeopardize public health and safety.

At bottom, the Eighth Amendment does not

prohibit a municipality from addressing hazardous

conditions stemming from a homeless encampment,

nor does the Eighth Amendment blanketly prohibit

the imposition of fines and misdemeanor criminal

penalties for violations of generally applicable public

health and safety laws.

This Court may reject the Martin/Johnson

standard while still allowing the assertion of

9

constitutional rights by the involuntarily homeless at

various stages during judicial proceedings.

For

example, prosecutors may be persuaded not to charge

a person based on his or her status as involuntary

homeless, or to agree to a diversion program that

provides much needed services. Furthermore, defense

attorneys may assert the Eighth Amendment as a

defense to criminal liability, or as a mitigating

circumstance during the sentencing phase. Thus, the

approach advocated by Amici strikes an appropriate

balance by allowing for the enforcement of health and

safety laws while preserving constitutional arguments

against the imposition of criminal penalties for

violating anti-camping ordinances.

This Court should correct course and reject the

problematic standard urged by Respondents. Neither

of the Ninth Circuit’s tests work in practice, and both

unnecessarily restrict a municipality’s enforcement

powers.

10

ARGUMENT

In granting certiorari, this Court asked

whether the Eighth Amendment restricts the

enforcement of certain health and safety laws. The

answer is an emphatic no. The Eighth Amendment

states: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.” 12 The Ninth Circuit erred in

reading into this clause a requirement that law

enforcement assess the voluntariness of an

individual’s actions before enforcing health and safety

laws or conducting cleanups that require a hazardous

area to be vacated.

Cities and towns require discretion to address

homelessness and tailor programs best suited for their

communities. For example, cities like Phoenix have

chosen to lead with services and increase shelter

capacity. However, whether a citation or an arrest

may at some point be necessary to address

encampments threatening public health and safety is

fundamentally a decision best left to local officials.

Amici respectfully request that this Court overturn

Grants Pass and adopt a more practical standard that

permits reasonable action to address health and safety

hazards.

12 U.S. CONST. amend. VIII. (emphasis added).

11

I.

THE

NINTH

CIRCUIT’S

STANDARD IS UNWORKABLE.

LEGAL

Under Martin and Johnson, it is only an Eighth

Amendment violation if a municipality arrests or

civilly cites an involuntarily homeless person for

public camping or sleeping. 13 Cities across the Ninth

Circuit struggle with what this means. 14 Ordinarily,

police operate on well-defined standards when dealing

with individuals’ constitutional rights, such as

informing them that they have the right to remain

silent.

However, determining whether someone

qualifies as “involuntarily” homeless is anything but

straightforward.

The Ninth Circuit tests and pre-penalty

application of the Eighth Amendment raise more

questions than answers. Before an officer decides

whether they may legally cite or arrest someone for

public camping, they need clarity on how to assess

whether an individual’s homeless status is voluntary

or involuntary. For instance, is it sufficient to ask if

the person has somewhere else to go? Or is it

necessary to conduct a deeper inquiry into the person’s

financial status, mental health, and other personal

circumstances?

13 920 F.3d at 617; 72 F.4th at 896.

14 The court in Grant Pass stated that people are not

involuntarily homeless if they have access to adequate,

temporary shelter. See 72 F.4th at 877. Simply accepting that

definition at face value is insufficient. Rather, further analysis is

required as cities and towns must determine whether a person

has “access” to shelter and, if so, whether the shelter they have

access to is “adequate.”

12

This raises the question of whether these

inquiries can or should be performed by police – or is

it necessary to involve case workers, which will delay

the process and require additional personnel (and

cost) to address basic health and safety concerns?

The bottom line is that this type of investigation

is no simple Miranda warning. Officers need to make

quick decisions in the field. Without additional

clarity, efforts to address health and safety hazards

will continue to be unnecessarily hamstrung.

Fortunately, there is a more effective and

doctrinally sound solution than to presume

involuntariness at the outset of a law enforcement

encounter. The criminal justice system provides a

superior venue to assess whether an individual is

involuntarily homeless, following an arrest or citation.

First, citations and arrests are reviewed by

prosecutors, who, with the application of prosecutorial

discretion and availability of discovery, are better

suited to determine whether the individual possessed

the necessary intent or culpability to be held

accountable for the alleged offense.

Beyond

prosecutors, defense counsel is equipped to defend

clients, whether based on the involuntariness of the

conduct, insanity, or any other number of defenses.

And trusted trial court judges remain the gatekeepers,

ensuring fair process and punishment based on the

facts of particular criminal cases and the law.

Severely restricting action to address health

and safety concerns, however, puts the cart before the

horse. The solution is not to allow prophylactic bans

13

on enforcement of health and safety statutes, but to

allow the criminal justice system to adjudicate an

individual defendant’s status as a defense to the

alleged violation.

If the Ninth Circuit’s interpretation of the

Eighth Amendment is adopted by this Court as the

rule of law for the Nation, the Court will be endorsing

an approach that infringes on state and local rights by

restricting the ability to perform the fundamental

duty of providing safe and sanitary conditions for their

residents. Further, and perhaps most disappointing,

the Court would be denying individuals experiencing

homelessness the dignity of being treated as an

individual, rational actor with meaningful choices, as

well as denying them access points to obtain services

to assist those struggling with addiction or mental

health disorders, which court systems and diversion

programs commonly provide.

The result is an

ineffective constitutional standard that fails to

provide law enforcement with workable tools and

similarly fails to help the homeless individuals on the

streets.

14

II.

CITIES AND TOWNS REQUIRE LAW

ENFORCEMENT TOOLS TO PROTECT

PUBLIC HEALTH AND SAFETY – BOTH

FOR

INDIVIDUALS

EXPERIENCING

HOMELESSNESS AND RESIDENTS AND

BUSINESSES WHO LIVE AND WORK

NEAR HOMELESS ENCAMPMENTS.

In the case of Phoenix, the City adopted laws to

regulate camping and sleeping on public property. 15

Under Arizona law, these types of offenses are

punishable as misdemeanors with a maximum

consequence of six months in jail, 36 months’

probation, and a fine of not more than $2,500.00 at the

highest

misdemeanor

level

(a

class

one

16

misdemeanor).

However, as a practical matter, municipal

courts commonly offer diversion programs and

community courts provide homeless individuals

resources in lieu of prosecution and/or defer criminal

penalties or fines for unsheltered individuals seeking

assistance. 17 Community courts are common in

See PHX., ARIZ. CODE §§ 23-30 (prohibiting camping in any

park, preserve, or building, parking lot or structure owned,

possess, or controlled by the City) and 23-48.01 (prohibiting use

of public right-of-way for lying, sleeping, or otherwise remaining

in a sitting position except in the case of physical emergency or

administration of medical assistance).

16

A.R.S. §§ 13-707 and 802; see also PHX., ARIZ. CODE § 1-5.

17 Phoenix Community Court Creates Alternative Legal Solutions

for People Experiencing Homelessness, City of Phx. (Jan. 26, 2024

6:00 PM),

https://www.phoenix.gov/newsroom/city-manager/2999.

15

15

Arizona to assist people experiencing homelessness. 18

The Eighth Amendment’s text and history

provide no basis for barring states and local

governments from enforcing public camping and

sleeping laws through civil fines and misdemeanor

prosecutions.

Instead, the Amendment was

established to prevent punishments that were grossly

disproportionate to the offense committed—

circumstances that do not exist here. Moreover, under

the approach urged by the Amici, there would be no

loss of Eighth Amendment protection, as involuntarily

unsheltered persons would be free to raise

constitutional issues in any enforcement proceedings.

The City asks this Court to hold that the Eighth

Amendment’s prohibition against cruel and unusual

punishment does not operate as a preemptive

restriction on misdemeanor arrests or citations for

civil offenses related to camping on public property.

To the extent that the Eighth Amendment applies to

these types of low-level offenses, the constitutional

protections should follow the initial citation or arrest

when levying the sentence – not before the officers

have even decided whether to cite or arrest.

The power to enact intra-state criminal laws and

civil ordinances belongs exclusively to state and local

governments. This is because, through the Tenth

18 Taylor Stevens, Metro Phoenix cities turn to homeless courts to

help people navigate the justice system, Ariz. Republic (June 3,

2022, 4:30 PM),

https://www.azcentral.com/story/news/local/arizona/2022/06/03/

homeless-courts-help-people-streets-navigate-legalsystem/9584678002/.

16

Amendment, states have a “police power” to protect

the health, safety, and welfare of state citizens. 19 The

standard urged by Respondents robs state and local

governments of the ability to enact public health and

safety laws ranging from restrictions on urban

camping and fire code violations to potential laws

prohibiting public urination, defecation, and other

disorderly and unsanitary acts.

Large homeless encampments pose significant

threats to public health and safety, primarily due to

hazardous living conditions such as overcrowding,

inadequate waste disposal, open fires, substance

abuse, and rampant crime.

Furthermore, these

encampments may draw a criminal element to the

area that preys on the population.

The

implementation of ordinances prohibiting public

camping and sleeping on rights-of-way serves to

prevent the emergence of such encampments.

Municipalities must possess the authority to arrest,

cite, or forcibly remove individuals camping on public

property when their actions jeopardize public safety.

The Ninth Circuit erred in creating a legal

standard that obstructs such public health and safety

measures before any meaningful opportunity to

evaluate the defendant’s particular facts and

19 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 535–36

(2012) (“The States thus can and do perform many of the vital

functions of modern government—punishing street crime,

running public schools, and zoning property for development, to

name but a few—even though the Constitution’s text does not

authorize any government to do so. Our cases refer to this general

power of governing, possessed by the States but not by the

Federal Government, as the ‘police power.’”).

17

circumstances, ideally with the assistance of defense

counsel. Consideration of involuntariness is better

addressed after the individual has been arrested or

cited.

At that point, individuals can assert

involuntariness as a defense to criminal prosecution

or civil penalties. This approach allows homeless

individuals and their counsel to articulate their

circumstances to the court.

By resolving the

involuntariness element post-apprehension, the

judicial system can better uphold the principles of

justice while allowing municipalities to retain the

practical ability to create and enforce generally

applicable laws that protect public health and safety.

At a minimum, the Eighth Amendment is more

appropriately applied once a homeless individual has

been formally charged with a violation of an anticamping and sleeping ordinance or issued a civil

citation for such conduct (in the civil context, citation

amounts to nothing more than a promise to appear in

court with an opportunity to enter a plea and have a

trial on the merits—no fee is charged simply for

receiving a citation and making an appearance in

court on such citation).

However, the Martin and Johnson holdings

restrict cities and towns from being able to make an

arrest or even civilly cite individuals, presumably,

unless they can demonstrate the individual had

another place to stay or the financial resources to

obtain a hotel room or other residence. But at the

arrest/citation phase, the individual has not been

found guilty, undergone criminal sentencing, or been

subject to civil fines, nor have officers had the time to

18

engage in any detailed analysis of the individual’s

financial circumstances. Deferred consideration of

Eighth Amendment defenses preserves both

constitutional rights and a municipality’s ability to

address public health and safety hazards.

III.

PUBLIC

POLICY

FAVORS

HARMONIZING

THE

EIGHTH

AMENDMENT WITH MUNICIPALITIES’

ENFORCEMENT POWERS.

In its brief in support of Petitioner’s request for a

writ of certiorari, Phoenix presented this Court with a

snapshot of its efforts to address homelessness to

illustrate the exceptional importance of these issues.

Since that brief was filed, the City has made huge

strides in addressing homelessness downtown. But

that effort came at a significant cost and has no clear

end. The City provides this brief to update the Court

on the continuing efforts to address public health and

safety concerns and related challenges due to the state

of the law.

A.

Western States Continue to Suffer

from

Dramatic

Increases

in

Homelessness.

The homeless population in western states

continues to escalate. In 2022, Arizona recorded a

population of over 13,000 homeless people, with more

than 59% residing in unsheltered locations, such as on

streets, in abandoned buildings, or other places

unsuitable for habitation. 20 The City’s downtown area

20 U.S. DEP’T OF HOUS. AND URB. DEV., supra note 2, at 16.

19

has borne the brunt of this dramatic spike, with up to

1,000 people camping in a once sprawling homeless

encampment that local businesses and property

owners called the “Zone.” This area garnered national

media attention as the City struggled to combat

criminal activity and address public health hazards

from the concentration of unsheltered people camping

downtown. 21

As of November 2023, the City successfully

closed the encampment downtown by conducting an

extensive cleanup and outreach effort with the

removal of all tents, makeshift structures, and

homeless individuals camping in the public right-ofway. The City offered shelter to each displaced

individual. This accomplishment follows months of

around-the-clock efforts dedicated to improving

conditions in the area, and to this day, requires

constant vigilance to prevent people from returning to

the area. Unfortunately, the unsheltered homeless

count continues to rise in Arizona. 22

21 See, e.g., Grant Archer, Half of violent crimes in Phoenix come

from 8% of city blocks, ABC (June 6, 2023, 6:23 PM),

https://www.abc15.com/news/crime/half-of-violent-crimes-inphoenix-come-from-8-of-city-blocks;

Jack

Healy,

Phoenix

Dismantles a Homeless Encampment, One Block at a Time, N.Y.

Times (May 10, 2023),

https://www.nytimes.com/2023/05/10/us/phoenix-homelesscamp-the-zone.html.

22 U.S. DEP’T OF HOUS. AND URB. DEV., supra note 2, at 16.

20

B.

Even After Significant Efforts to

Build Shelter, Insufficient Capacity

Exists.

Recognizing the burgeoning homeless crisis

before it, in 2020, the Phoenix City Council adopted

strategies to respond to homelessness and address

complicating factors from the opioid epidemic,

COVID-19 pandemic, and affordable housing crisis. 23

The City further established the Office of Homeless

Solutions to more efficiently administer a litany of

programs and services for individuals experiencing

homelessness. Key among these strategies was the

immediate construction of shelter space.

Construction of Shelters. In Phoenix, like

numerous cities in the Ninth Circuit, local officials

struggle with addressing health and safety concerns

associated with homeless encampments because there

are insufficient shelter beds to accommodate the

entire unsheltered population. To illustrate, in 2023,

there were approximately 3,333 homeless individuals

in Phoenix, but only 3,219 shelter beds (the vast

majority of which were already occupied on any given

night). 24 Many of the existing shelter beds had

restrictions—limiting them to families with children,

23 During the COVID-19 pandemic, CDC guidelines provided that

cities and towns should not close encampments unless individual

housing units were available. CDC Advises Against Clearing

Homeless Encampments if Alternate Housing Is Not Available

During Coronavirus Outbreak, Nat’l Low Income Hous. Coal.

(Mar. 30, 2020), https://nlihc.org/resource/cdc-advises-againstclearing-homeless-encampments-if-alternate-housing-notavailable.

24 MARICOPA ASS’N OF GOV’TS, supra note 5, at 4.

21

victims of domestic violence, or working unsheltered,

to name a few. Put simply, there were not enough

beds to accommodate all the unsheltered downtown,

let alone the entire City.

To address this issue, the City invested

substantial resources in housing and shelter

alternatives, particularly in its downtown area. In

total, the City added 600 shelter beds in 2022 and 482

shelter beds in 2023, with approximately 800 more in

various stages of construction. 25

Ultimately, the City needs more shelter,

including options tailored to specific groups such as

victims of domestic violence, families with school-age

children, and those seeking heat respite. The City is

actively constructing shelter to meet the diverse needs

of its homeless population. There is, however, no way

to predict the ebbs and flows of homelessness to ensure

the City will have sufficient capacity to house the

homeless in perpetuity, especially considering that a

large amount of the City’s investments in this area are

funded by temporary federal COVID relief funds. The

City will struggle next year to maintain shelter spaces

when this temporary funding dries up unless new

monies are appropriate by the federal government or

the State of Arizona. Construction—and long-term

maintenance—of homeless shelters is a costly

endeavor.

25 City of Phoenix Places 585 People in Shelter While Complying

with Court Order Ahead of Deadline, City of Phx. (Nov. 3, 2023,

4:00

PM),

https://www.phoenix.gov/newsroom/homelesssolutions/2910.

22

Cleanup of Homeless Encampments. To

address encampment concerns, cities have developed

detailed cleaning procedures. In Phoenix’s case, the

City

focused

on

implementing

“enhanced

engagements,” which refers to a process the City

developed to methodically clean streets and sidewalks,

close blocks to urban camping, and connect

unsheltered people with appropriate shelter and

services.

Facilitating enhanced engagements is a

meticulous undertaking that demands careful

consideration of various factors, including, most

significantly, the constitutional rights of involuntarily

unsheltered.

In 2023, the City conducted

approximately sixteen enhanced engagements with a

shelter acceptance rate of 80%. 26 In early November

2023, after a dedicated, nearly-year-long effort, the

City cleared the area referred to as the Zone of all

homeless encampments. 27

26 Katherine Davis-Young, Phoenix clears last remaining block of

‘The Zone’ encampment, KJZZ (Nov. 15, 2023, 7:53 AM),

https://kjzz.org/content/1861760/phoenix-clears-last-remainingblock-zone-encampment.

27 Id.

23

This herculean feat was only possible because the

City was able to close public right-of-way and

easements to public camping. And the results of

Phoenix’s efforts are striking, as illustrated by

pictures taken from January 2023 to November 2023

in downtown Phoenix. Before the City’s enhanced

engagements, homeless encampments lined City

rights-of-way, blocking sidewalks: 28

FN 28

Madison Street and 9th Avenue, January 2023 &

November 2023

28 See images of Madison Street and 9th Avenue. Def’s Hr’g Mem.

Ex. 2, Freddy Brown, et al. v. City of Phoenix, No. CV2022-010439

(Maricopa Cnty. Super. Ct. Nov. 20, 2023).

24

The encampments limited public access and

visibility to City-owned property, downtown buildings,

and public art: 29

FN 29

Mural on Madison

November 2023

Street,

January

2023

29 See images of the City Mural on Madison Street. Id.

&

25

Cities and towns, especially Phoenix—which is

among the geographically largest cities in the

country—maintain massive amounts of public rightof-way and easements lining city streets in every

neighborhood, downtown area, and intersection across

the United States. Restricting law enforcement’s

ability to intervene can quickly transform anything

from vacant lots to narrow six-foot rights-of-way into

havens for dangerous encampments: 30

FN 30

Jackson Street and 9th Avenue, January 2023 &

November 2023

30 See images of Jackson Street and 9th Avenue. Id.

26

Closing Areas to Public Camping.

Following each enhanced engagement, the City would

close the area to

FN 31

camping. 31 But the

work does not end

with merely offering

homeless individuals

appropriate

shelter

and assisting them in

transportation

to

such shelter. Instead,

cities

must

implement proactive

measures to deter

homeless individuals

from returning to

public

property.

Homelessness

numbers

are

not

static, with economic,

political, and social

conditions beyond the

control

of

any

municipality

impacting the number of unsheltered across the

nation and Arizona in particular. Although Phoenix

is committed to addressing homelessness, it cannot,

like every other government before it, guarantee

freedom from poverty, crime, or homelessness.

31 See image of City of Phoenix Clean Up Notice. Def’s Hr’g Mem.

Ex. 3, Freddy Brown, et al. v. City of Phoenix, No. CV2022-010439

(Maricopa Cnty. Super. Ct. Nov. 20, 2023).

27

Cities must have the ability to remove tents and

other structures from sidewalks. Similarly, cities

must be able to tell people they cannot camp

indefinitely on public property and rights-of-way.

Some individuals may prefer to live on the streets

instead of in shelters. In such instances, cities must

be able to enforce public camping laws without first

establishing enough shelter capacity for the

jurisdiction’s entire unsheltered population.

C.

Ninth Circuit Case Law Threatens

Public Health and Safety.

Due to a lack of shelter space, municipal efforts

to address sprawling encampments have been

curtailed—either voluntarily while legal guidance is

promulgated or by way of court order (or both). 32

Municipalities are grappling with the scope of Martin

and Johnson, including how to make an individualized

determination of what constitutes adequate shelter,

whether someone is involuntarily homeless, and what

regulations might survive constitutional scrutiny.

When homelessness within Phoenix escalated

over the last three years, the City relied on the

precedent set in the rigid Martin decision, employing

the one-person, one-bed formula to assess whether

32 See, e.g., Quintero v. City of Santa Cruz, No. 5:19-CV-01898-

EJD, 2019 WL 1924990, at *3 (N.D. Cal. Apr. 30, 2019) (“The City

has suspended the enforcement of its camping ordinance to

ensure that no indigent homeless individual will be cited for

sleeping outdoors or camping.”); Aitken v. City of Aberdeen, 393

F. Supp. 3d 1075, 1085 (W.D. Wash. 2019) (observing that the

city’s camping ordinance was not being enforced due to the city’s

inability to provide adequate shelter to the homeless).

28

citations could be issued for public camping. 33 This

posed a significant problem because the population of

homeless individuals in the Phoenix downtown area

consistently surpassed the available shelter beds on

any given night. By adhering to this approach, the

City struggled to effectively tackle the issues

downtown in fear of violating the homeless

individuals’ rights under Martin. Not only was it

impossible for individual officers to know how many

beds were available in shelters nightly, but the

number of unsheltered was clearly more than the

number of available shelter beds city-wide. This

required a dedicated effort to locate appropriate

shelter for each individual prior to enforcement action.

Following Johnson’s revised decision in July

2023, the City’s discretion was broadened, which

helped facilitate the closure of downtown areas to

camping and the relocation of individuals from the

Zone—but only so long as there was adequate shelter

or another appropriate public area where the person

could go. 34 The City was able to construct shelter and

build outdoor campgrounds.

Yet, the lingering

question revolves around what qualifies as “adequate”

shelter or “appropriate” public areas for camping.

Adequate/Appropriate Shelter. The Ninth

Circuit has not established clear guidance for defining

“adequate and/or appropriate shelter.” The Martin

decision originally suggested that “adequate shelter”

necessitates indoor sleeping arrangements. 35 Based

33 920 F.3d at 617.

34 72 F.4th at 877.

35 920 F.3d at 617.

29

on this premise, a California District Court found that

a city’s temporary outdoor shelter facility at the

municipal airport was unsuitable for people. 36 The

court’s reasoning highlighted that the airport site was

essentially an “asphalt tarmac with no roof and no

walls, no water and no electricity. It is an open space

with what amounts to a large umbrella for some

shade. It affords no real cover or protection to

anyone.” 37

While the amended decision in Johnson

appears to suggest that there is no rigid, one-size-fitsall definition of adequate shelter, the law is far from

clear as to how the standard is applied.

The

acceptability of outdoor camping facilities under

Ninth Circuit precedent remains ambiguous. Given

the numerous unresolved questions regarding shelter

space, many municipalities temporarily halted

cleanup efforts over the past few years. Municipalities

have tried to develop policies and procedures to

withstand judicial scrutiny in a changing landscape

only exacerbated by continuous litigation.

The Availability of Shelter. Historically,

most cities in Arizona, like Phoenix, have not owned,

operated, or maintained shelters. Instead, shelters

have been run by nonprofits, county or state health

departments, or third-party vendors. In Phoenix’s

case, because it does not own or operate most of the

shelter facilities within the metropolitan area, there is

no easy way to determine the number of available beds

36 Warren v. City of Chico, No. 221CV00640MCEDMC, 2021 WL

2894648, at *3 (E.D. Cal. July 8, 2021).

37 Id. at 4.

30

on any given day. City employees must contact

various facilities to ascertain capacity.

Bed

availability fluctuates regularly, requiring constant

research before law enforcement engagement.

There is also an unsettled question of how long

an offer of shelter must remain open—may a city take

enforcement action against an unsheltered individual

a day after rejecting an offer of shelter, a week? This

ambiguity persists and taxes insufficient resources.

Time, Place, and Manner Restrictions. The

fact that Martin may allow restrictions on the time,

place, and manner of encampments does not provide

much relief either. 38 In practice, the injunctions being

issued against the enforcement of camping laws have

been sweeping in nature 39 and do not allow for such

restrictions. Moreover, the Ninth Circuit in Martin

and Johnson failed to explain what time, place, and

manner restrictions might be valid, thus diminishing

the utility of this exception. Ultimately, even if a city

prohibits camping on public property, it still faces the

38 See Martin v. City of Boise, 902 F.3d 1031, 1048 n.8 (9th Cir.

2018), opinion amended and superseded on denial of reh’g, 920

F.3d 584 (9th Cir. 2019) (“Even where shelter is unavailable, an

ordinance prohibiting sitting, lying, or sleeping outside at

particular times or in particular locations might well be

constitutionally permissible.”) (emphasis added). But cf. Boring

v. Murillo, No. LACKV2107305DOCKET, 2022 WL 14740244, at

*6 (C.D. Cal. Aug. 11, 2022) (a California district court allowed

an Eighth Amendment challenge to survive a motion to dismiss

despite the ordinance being framed as a time, place, and manner

restriction providing that homeless people could sleep anywhere

in the City except for its downtown area at specified times).

39 Order at 3, City of Phoenix v. Fund for Empowerment, No. CV22-02041-PHX-GMS (D. Ariz. Oct. 17, 2023), ECF No. 119.

31

threat of federal litigation and broad injunctions if

there is insufficient shelter space for the homeless.

D.

Efforts to Address Homelessness Are

Frustrated by Lawsuits Fueled by

Martin and Johnson.

Despite the City’s considerable efforts to adhere

to Ninth Circuit precedent, it found itself facing

conflicting lawsuits both in federal and state court.

On the one hand, the District of Arizona issued an

injunction significantly constraining the City’s efforts

to enforce its camping and sleeping ordinances against

the homeless. 40 On the other hand, the Maricopa

County Superior Court compelled the City to remove

tents and take enforcement action against the

homeless. 41 The City found itself treading carefully to

avoid violating either injunction.

In the state lawsuit, Freddy Brown, et al. v. City

of Phoenix, the Plaintiffs, comprised of property and

business owners in the Zone, sought an injunction to

declare the area a public nuisance requiring

abatement. The trial court issued a permanent

injunction in their favor, compelling the City to

remove all tents and makeshift structures in the Zone

and take enforcement action against “individuals

40 Order at 2, City of Phoenix v. Fund for Empowerment, No. CV-

22-02041-PHX-GMS (D. Ariz. Dec. 15, 2022), ECF No. 34.

Under Advisement Ruling, Freddy Brown, et al. v. City of

Phoenix, No. CV2022-010439 (Maricopa Cnty. Super. Ct. Sept.

20, 2023).

41

32

committing offenses against the public order” 42 by

November 4, 2023.

The trial court provided the City with less than

seven weeks to relocate hundreds of homeless persons

while navigating the legal minefields created by the

Ninth Circuit’s undefined test for voluntariness and

indeterminate standard for the adequacy of shelter.

Fortunately, the City successfully complied with the

deadline set by the trial court, accomplished, in part,

by erecting a safe outdoor campground for temporary

shelter.

However, the permanent injunction

threatens to tie the City’s hands for years as the City

must prevent camping in the Zone in perpetuity

(thereby forcing those individuals who come to the

area for services into surrounding neighborhoods or

other areas of the City absent a continuing effort to

increase shelter capacity).

In the federal lawsuit, Fund for Empowerment

et al. v. City of Phoenix et al., the plaintiffs sought an

injunction barring enforcement of the City’s camping

and sleeping ordinances and halting cleaning

activities in the Zone. The District Court largely

agreed with the plaintiffs and enjoined the City from

“[e]nforcing the Camping and Sleeping Bans against

individuals who practically cannot obtain shelter as

long as there are more unsheltered individuals in

Phoenix than there are shelter beds available.” 43 The

District Court’s decision was largely in line with

Martin’s mathematical formula. However, after the

amended Johnson decision was issued, the City filed a

42 Id.

43 Order, supra note 40, at 2.

33

motion to modify the federal preliminary injunction

based on Johnson’s interpretation of the Martin

holding.

Fortunately, the federal judge agreed with the

City’s position and modified the injunction as follows:

The City cannot enforce “Camping and Sleeping Bans

against involuntarily homeless persons for sleeping in

public if there are no other public areas or appropriate

shelters where those individuals can sleep.” 44

Although this modified injunction allowed the City to

offer both indoor shelter beds and safe outdoor spaces

when individuals were simply not ready to accept

shelter, the injunction continues to strain resources as

the City grapples with determining what constitutes

appropriate shelter or adequate public areas for

camping.

Ultimately, the tension between the lawsuits

illustrates the practical difficulties municipalities face

when trying to tackle homeless encampments—and

Phoenix is not alone in facing competing lawsuits. On

September 19, 2023, two lawsuits were filed against

the City of Sacramento, one by private businesses and

residents and another by the Sacramento County

District

Attorney, 45 both alleging unsanitary

conditions in homeless encampments and seeking to

44 Order, supra note 39, at 3 (emphasis added).

45 Compl., Prime Auctions, LLC et. al. v. City of Sacramento, No.

23CV008662 (Sacramento Cnty. Super. Ct. Sept. 19, 2023);

Compl., People v. City of Sacramento, No. 23CV008658

(Sacramento Cnty. Super. Ct. Sept. 19, 2023).

34

compel city action—the very action that Martin and

Johnson purport to restrain.

Twenty-five briefs supporting the City of

Grants Pass’ petition for a writ of certiorari painted

this Court a bleak picture of the real-world impact

judicial rulings on homelessness have had on local

attempts to enforce public health and safety laws and

assist individuals experiencing homelessness in

getting off the streets. Public policy favors construing

the Eighth Amendment in a manner that preserves

individual rights yet avoids hamstringing efforts to

address other municipal interests such as sanitation,

public safety, and providing access points for services

and appropriate shelter.

E.

Restricting Decisions on Whether to

Cite or Arrest for Violation of Public

Camping Laws Compels Judges to

Act More as Homeless Policy Czars

Than Judicial Officers Applying

Discernible Rules of Law.

As some members of this Court have

analogized, judges are like umpires calling balls and

strikes, not players in the game. This Court should

reject the substantial overreach by the Ninth Circuit,

which unnecessarily adopted a legal standard that

compels judges to act as policy experts, secondguessing local officials and slowing law enforcement

responses to public health and safety concerns.

The constitutional principles at hand strike at

core legislative and executive functions, including how

to best use law enforcement resources, expend

35

taxpayer money to remedy homelessness, and use

prosecutorial discretion when faced with criminal

conduct

and

individualized

mitigating

circumstances. 46 The practical results of the decisions

in Martin and Johnson have municipalities

scrambling to reallocate resources and build massive

amounts of shelter, safe outdoor campgrounds, and

other public facilities to accommodate dramatic

increases in homelessness under the threat of liability

for both action and inaction amid sprawling homeless

encampments taking over public property.

The Eighth Amendment does not require this

result. Homelessness raises quintessential legislative

questions that are more appropriate for political

debate and policy discussion than applying what

should be discernible principles of constitutional law.

The Ninth Circuit approach may be wellintended, and indeed, cities like Phoenix have adopted

strategies to lead with services, not citations, but the

adoption of a standard that preemptively bars citation

absent adequate shelter space for the entire

unsheltered population within a jurisdiction is not

constitutionally sound. Even the amended Johnson

approach – allowing unsheltered individuals to move

to other outdoor public spaces to camp – leaves

significant legal questions regarding what is adequate

46 Courts do not have the expertise to adjudicate social questions

such as how to prevent homelessness. See, e.g., JEFF KING,

JUDGING SOCIAL RIGHTS 5–6 (2012) (Courts do not have the

expertise to determine “whether some proposed procedural right

will cause unsustainable problems in a modern bureaucracy are

matters on which expertise must be brought to bear.”).

36

public space. Must there be air conditioning in the

summer? Heaters in the winter? More than an

airport tarmac with tents and sanitation stations?

At bottom, municipalities deploy multiple tools

to minimize impacts of camping laws—including cite

and release options, diversion programs, and specialty

homeless courts. 47

While the wisdom of these

different approaches may be debatable, there is no

reason to construe the Eighth Amendment in a

manner that preemptively and unnecessarily impedes

a municipality’s ability to use its enforcement powers

to eliminate hazards. A better path exists that

preserves constitutional rights while allowing

municipalities to provide citizens with the safe and

sanitary conditions they deserve. This Court should

take it.

CONCLUSION

Municipalities have struggled to walk the legal

tightrope established by the Ninth Circuit in Martin

and Johnson. The Ninth Circuit construed the Eighth

Amendment in a manner that preemptively restricts

enforcement of health and safety laws. This is wrong.

The involuntariness standard, which paralyzes

enforcement action to address health and safety

hazards, has been stretched beyond any recognizable

jurisprudence and requires judicial correction. State

47 See, e.g., Andrew I. Lief, Comment, A Prosecutorial Solution to

the Criminalization of Homelessness, 169 U. PA. L. REV. 1971

(2021); Ben A. McJunkin, Homelessness, Indignity, and the

Promise of Mandatory Citations for Urban Camping, 52 ARIZ. ST.

L.J. 955 (2020).

37

and local legislatures, executive officers, prosecutors,

as well as nonprofit organizations, churches,

community advocates, and various other stakeholders

at city and town hall meetings across the nation, are

debating how to best address inflation, lack of

affordable housing, and unprecedented levels of drug

and alcohol addiction.

Injunctions against enforcement of public

health and safety laws serve no purpose other than to

frustrate local decisions to address these societal ills,

replacing the decisions of individuals on the ground in

their own communities working for positive change

with sweeping federal court preferences for how cities

and towns should be run. The Constitution does not

compel this result.

The City of Phoenix and the League of Arizona

Cities and Towns respectfully ask this Court to

reverse the Ninth Circuit decision and adopt a

standard that harmonizes the Eighth Amendment

with the need to address dangerous and unsanitary

conditions. Individuals experiencing homelessness

deserve better.

Residents and business owners

requesting law enforcement action in the face of

sprawling encampments deserve better. And state

and local officials struggling to manage this

unprecedented crisis require basic police powers, law

enforcement tools, and discretion to provide viable

options for managing this crisis.

38

RESPECTFULLY SUBMITTED THIS 4th day

of March 2024.

JULIE KRIEGH

City Attorney

CITY OF PHOENIX

200 W. Washington

Phoenix, AZ 85003

Julie.Kriegh@phoenix.gov

(602) 262-6761

NANCY DAVIDSON

General Counsel

LEAGUE OF ARIZONA

CITIES AND TOWNS

1820 W. Washington St.

Phoenix, AZ 85007

ndavidson@azleague.org

(602) 258-5786

JUSTIN S. PIERCE*

*Counsel of Record

TRISH STUHAN

AARON D. ARNSON

STEPHEN B. COLEMAN

ALEXANDRA N. CAYTON

PIERCE COLEMAN PLLC

7730 E. Greenway Road

Ste. 105

Scottsdale, AZ 85260

Justin@PierceColeman.com

(602) 772-5506