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 LOCAL GOVERNMENT LEGAL CENTER,

THE NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL LEAGUE OF CITIES, INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION, NORTH

DAKOTA LEAGUE OF CITIES, CITIES OF

ALBUQUERQUE, ANAHEIM, ANCHORAGE,

COLORADO SPRINGS, HENDERSON, LAKE

OSWEGO, LAS VEGAS, REDONDO BEACH,

SACRAMENTO, SEATTLE, AND TOPEKA, THE CITY

AND COUNTY OF HONOLULU, AND

LOUISVILLE-JEFFERSON COUNTY METRO AS

AMICI CURIAE IN SUPPORT OF PETITIONER

__________________

ANN DAVISON

Seattle City Attorney

BRANDON RAIN

Counsel of Record

SEATTLE CITY ATTORNEY’S OFFICE

701 Fifth Avenue, Suite 2050

Seattle, WA 98104

(206) 684-8200

brandon.rain@seattle.gov

[Additional Counsel Listed on Inside Cover]

AMANDA KARRAS

General Counsel

ERICH EISELT

Deputy General Counsel

51 Monroe St.

Suite 404

Rockville, MD 20850

Counsel for Amicus Curiae

International Municipal

Lawyers Association

STEPHANIE D. ENGEBRETSON

Deputy Director

410 E. Front Ave.

Bismarck, ND 58504

Counsel for Amicus Curiae

North Dakota League of

Cities

LAUREN KEEFE

City Attorney

One Civic Plaza NW

Albuquerque, NM 87103

Counsel for Amicus Curiae

City of Albuquerque, NM

ROBERT FABELA

City Attorney

200 S. Anaheim Blvd., #356

Anaheim, CA 92805

Counsel for Amicus Curiae

City of Anaheim, CA

ANNE R. HELZER

Municipal Attorney

632 W. 6th Ave.

Ste. 730

Anchorage, AK 99501

Counsel for Amicus Curiae

City of Anchorage, AK

WYNETTA MASSEY

City Attorney

30 S. Nevada Ave.

Ste. 501

Colorado Springs, CO

80903

Counsel for Amicus Curiae

City of Colorado Springs,

CO

NICHOLAS G. VASKOV

City Attorney

240 S. Water Street

Henderson, NV 89015

Counsel for Amicus

Curiae City of

Henderson, NV

DANA M.O. VIOLA

Corporation Counsel

530 S. King St.

Rm. 110

Honolulu, HI 96813

MICHAEL J. O'CONNELL

Jefferson County Attorney

500 W. Jefferson St.

Ste. 1000

Louisville, KY 40202

Counsel for Amicus Curiae

City and County of Honolulu,

HI

Counsel for Amicus Curiae

Louisville-Jefferson County

Metro Government, KY

ELLEN OSOINACH

City Attorney

380 A Avenue

Lake Oswego, OR 97034

MICHAEL WEBB

City Attorney

415 Diamond St.

Redondo Beach, CA 90277

Counsel for Amicus Curiae

City of Lake Oswego, OR

Counsel for Amicus Curiae

City of Redondo Beach, CA

JEFF DOROCAK

Las Vegas City Attorney

495 S. Main St.

Las Vegas, NV 89101

SUSANA ALCALA WOOD

City Attorney

915 I Street, Fourth Floor

Sacramento, CA 95814

Counsel for Amicus Curiae

City of Las Vegas, NV

Counsel for Amicus Curiae

City of Sacramento, CA

ANN DAVISON

City Attorney

701 Fifth Ave.

Ste. 2050

Seattle, WA 98104

Counsel for Amicus Curiae

City of Seattle, WA

AMANDA L. STANLEY

City Attorney

215 SE 7th St.

Topeka, KS 66603

Counsel for Amicus Curiae

City of Topeka, KS

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTERESTS OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 5

I.

LOCAL GOVERNMENTS ARE ON THE FRONT

LINES ADDRESSING HOMELESSNESS....................... 5

II. THE EIGHTH AMENDMENT DOES NOT

AUTHORIZE FEDERAL COURTS TO AUDIT HOW

LOCAL GOVERNMENTS ENFORCE VALID LAWS ...... 12

A. The Ninth Circuit’s Rule Usurps Local

Functions and Undermines Federalism ...... 13

B. The Cruel and Unusual Punishment

Clause Does Not Apply to Street Level

Enforcement .................................................. 18

C. Robinson Should Not Be Interpreted as

Imposing Substantive Limits on Local

Criminal Laws .............................................. 20

III. THE NINTH CIRCUIT’S RULE IS A POLICY

JUDGMENT ............................................................ 25

A. Providing Shelter and Other Public

Housing Options is Costly ............................ 25

B. Not Every Jurisdiction Believes that

Temporary Shelter Beds are a Viable

Solution to Homelessness ............................. 28

C. Local Policymakers Need to Preserve the

Health and Safety of Their Communities.... 32

CONCLUSION .......................................................... 35

ii

TABLE OF AUTHORITIES

Cases

Argersinger v. Hamlin,

407 U.S. 25 (1972) ................................................. 19

Atkins v. Virginia,

536 U.S. 304 (2002) ............................................... 21

Bell v. Wolfish,

441 U.S. 520 (1979) ............................................... 19

Brown v. Plata,

563 U.S. 493 (2011) ............................................... 17

Carmona v. Ward,

439 U.S. 1091 (1979) ............................................. 22

Chicago, B. & Q. Ry. Co. v. Illinois,

200 U.S. 561 (1906) ............................................... 13

Chicago v. Morales,

527 U.S. 41 (1999) ................................................. 14

City of Revere v. Mass. Gen. Hosp.,

463 U.S. 239 (1983) ............................................... 18

Clark v. Community for Creative Non-Violence,

468 U.S. 288 (1984) ......................................... 14, 15

Coal. on Homelessness v. City & Cty. of San

Francisco, No. 23-15087, 2024 WL 125340

(9th Cir. Jan. 11, 2024) (mem. op.) ....................... 18

Coal. on Homelessness v. City & Cty. of San

Francisco, 90 F.4th 975 (9th Cir. 2024) .......... 13, 16

Coker v. Georgia,

433 U.S. 584 (1977) ............................................... 19

iii

Dandridge v. Williams,

397 U.S. 471 (1970) ............................................... 28

District of Columbia v. Brooke,

214 U.S. 138 (1909) ............................................... 12

Furman v. Georgia,

408 U.S. 238 (1972) ............................................... 22

Harmelin v. Michigan,

501 U.S. 957 (1991) ............................................... 22

Ingraham v. Wright,

430 U.S. 651 (1977) ......................................... 18, 21

In re Eichorn,

69 Cal. App. 4th 382 (1998) .................................. 24

Jefferson v. Hackney,

406 U.S. 535 (1972) ............................................... 34

Johnson v. City of Grants Pass,

72 F.4th 868 (9th Cir. 2023)....... 5, 11, 12, 15-21, 24

Joyce v. City & Cty. of San Francisco,

846 F. Supp. 843 (N.D. Cal. 1994) ........................ 24

Kahler v. Kansas,

589 U.S. ___, 140 S. Ct. 1021 (2020) ..................... 24

Knoxville Iron Co. v. Harbison,

183 U.S. 13 (1901) ................................................. 13

Lambert v. California,

355 U.S. 225 (1957) ............................................... 12

Los Angeles v. Lyons,

461 U.S. 95 (1983) ................................................. 15

iv

Martin v. Boise,

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

.................................................................... 16, 18, 20

O’Shea v. Littleton,

414 U.S. 488 (1974) ............................................... 16

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) ............................................... 14

Patterson v. State of Kentucky,

97 U.S. 501 (1878) ................................................. 12

Powell v. Texas,

392 U.S. 514 (1968) ......................................... 22, 23

Rhodes v. Champman,

452 U.S. 337 (1981) ............................................... 21

Riverside v. McLaughlin,

500 U.S. 44 (1991) ................................................. 15

Robinson v. California,

370 U.S. 660 (1962) ....................... 20, 21, 22, 23, 25

Solem v. Helm,

463 U.S. 277 (1983) ................................... 19, 21, 23

Stefanelli v. Minard,

342 U.S. 117 (1951) ............................................... 16

Tobe v. City of Santa Ana,

892 P.2d 1145 (Cal. 1995) ..................................... 24

United States v. Salerno,

481 U.S. 739 (1987) ............................................... 20

Younger v. Harris,

401 U.S. 37 (1971) ................................................. 16

v

Constitutional Provisions

U.S. Const. amend. VIII

............................... 2, 3, 12, 13, 17-19, 21, 23, 25, 35

Statutes and Legislation

18 U.S.C. § 3626 ........................................................ 17

Or. Rev. Stat. § 161.615(3) ........................................ 19

Anaheim, Cal., Code § 11.10.30 ................................ 14

Colorado Springs, Colo., Code § 9.6.110 ................... 14

D.C. Code § 24-121 .................................................... 14

Denver, Colo., Code § 38-86.2 ................................... 14

Honolulu, Haw., Code § 10-1.2(a)(13) ....................... 14

Las Vegas, Nev., Code § 10.86.010 ........................... 14

Sacramento, Cal., Code § 12.52 et seq. ..................... 14

Seattle, Wash., Code § 18.12.250 .............................. 14

Topeka, Kan., Code § 9.45.340-.400 .......................... 14

2010 Haw. Sess. Laws c 212, §2 ................................ 30

2016 Cal. Stat. c 847 .................................................. 30

Other Authorities

Gustavo Sagrero Álvarez, Seattle steps in to foot

bill for migrants living in hotel, KUOW: NPR

Network (Jan. 31, 2024),

https://www.kuow.org/stories/seattle-steps-into-foot-the-bill-for-migrants-living-in-a-hotel ...... 27

vi

Grace Ashford and Claire Fahy, $2.4 Billion Is Not

Enough for New York’s Migrant Crisis, Adams

Says,

N.Y.

Times

(Feb.

6,

2024),

https://www.nytimes.com/2024/02/06/nyregion/

adams-albany-migrant-crisis.html ....................... 27

Center for Sustainable Systems, Univ. of Mich.,

U.S. Cities Factsheet, No. CSS09-06 (Aug.

2023),

https://css.umich.edu/sites/default/files/202310/U.S.%20Cities_CSS09-06_0.pdf ......................... 9

City of Grants Pass, Adopted Operating & Capital

Budget

Fiscal

Year

2017-18

(2018),

https://www.grantspassoregon.gov/DocumentC

enter/View/10828/Complete-Adopted-BudgetFY18?bidId= .......................................................... 26

City of Houston Housing & Community

Development Dep’t, Supportive Services: Our

Role

in

Ending

Homelessness,

https://houstontx.gov/housing/supportiveservices.html.......................................................... 31

City of Los Angeles, Budget Summary FY 20232024 (2023), https://cao.lacity.org/budget2324/2023-24Budget_Summary.pdf ......................... 33

City of San Francisco, Dep’t of Homelessness &

Supportive Housing, HSH Budget (FY 202324), https://hsh.sfgov.org/about/budget/ ............... 33

City of San Francisco, Healthy Streets Data and

Information,

https://sf.gov/data/healthy-streets-data-andinformation#-data-and-information ..................... 29

vii

Callie Craighead, Mayor Harrell signs City of

Seattle’s 2024 Budget into Law, Office of the

Mayor (Dec. 1, 2023),

https://harrell.seattle.gov/2023/12/01/mayorharrell-signs-city-of-seattles-2024-budget-intolaw/................................................................... 32, 33

Dennis P. Culhane & Seongho An, Estimated

Revenue of the Nonprofit Homeless Shelter

Industry in the United States: Implications for

a More Comprehensive Approach to Unmet

Shelter Demand, 32 Housing Policy Debate 823

(2022) ..................................................................... 26

Dave Davies, How NYC is coping with 175,000

migrants from the Southern border, Fresh Air

on

NPR

(Feb.

15,

2024),

https://www.npr.org/2024/02/15/1231712535/ho

w-nyc-is-coping-with-175-000-migrants-fromthe-southern-border .............................................. 27

Samantha Delouya, 2022 had the lowest total

unemployment rate ever, CNN (Dec. 20, 2023),

https://www.cnn.com/2023/12/20/economy/lowe

st-unemployment-rate-year-2022/ ........................ 34

Jeremy Harris, 200K pounds of debris removed

from encampments along I-5 in Seattle’s UDistrict, KOMO News (Feb. 22, 2024),

https://komonews.com/news/local/homelessencampments-interstate-5-univeristy-districtseattle-king-county-homelessness-crisistreatment-housing-shelter-services-fencingwashington-state-department-oftransportation-funding-governor-jay-insleelegislators-house-senate-wsdot-proposal-spd ......... 6

viii

Kim Horner, Seattle’s 1811 Eastlake Project Puts

Housing First, Saves Lives & Money, The

Carter Center (Nov. 4, 2009),

https://www.cartercenter.org/health/mental_he

alth/fellowships/archive/documents/seattle_hor

ner.html ................................................................. 30

HUD Continuum of Care (“CoC”) Homeless

Populations, WA-500 (2007),

https://files.hudexchange.info/reports/publishe

d/CoC_PopSub_CoC_WA-5002007_WA_2007.pdf .................................................. 9

HUD CoC Homeless Populations, WA-500 (2023),

https://files.hudexchange.info/reports/publishe

d/CoC_PopSub_CoC_WA-5002023_WA_2023.pdf .................................................. 9

HUD CoC Homeless Populations, CA-600 (2007),

https://files.hudexchange.info/reports/publishe

d/CoC_PopSub_CoC_CA-6002007_CA_2007.pdf................................................. 10

HUD CoC Homeless Populations, CA-600 (2023),

https://files.hudexchange.info/reports/publishe

d/CoC_PopSub_CoC_CA-6002023_CA_2023.pdf................................................. 10

HUD CoC Housing Inventory, CA-600 (2007),

https://files.hudexchange.info/reports/publishe

d/CoC_HIC_CoC_CA-600-2007_CA_2007.pdf ...... 10

HUD CoC Housing Inventory, CA-600 (2023),

https://files.hudexchange.info/reports/publishe

d/CoC_HIC_CoC_CA-600-2023_CA_2023.pdf ...... 10

ix

HUD CoC Housing Inventory, WA-500 (2007),

https://files.hudexchange.info/reports/publishe

d/CoC_HIC_CoC_WA-500-2007_WA_2007.pdf .... 10

HUD CoC Housing Inventory, WA-500 (2023),

https://files.hudexchange.info/reports/publishe

d/CoC_HIC_CoC_WA-500-2023_WA_2023.pdf .... 10

HUD Office of Policy Development & Research,

Housing First Works, Evidence Matters

(Spring/Summer 2023),

https://www.huduser.gov/portal/periodicals/em/

spring-summer-23/highlight2.html ...................... 30

HUD Office of Policy Development & Research,

Salt Lake City Housing Authority Serves

Residents Experiencing Homelessness, Edge: An

Online

Magazine

(Sept.

20,

2022),

https://www.huduser.gov/portal/pdredge/pdredge-inpractice-092022.html ................................ 31

Miriam Jordan, Big Burden of Migrant Influx

Strains Denver, N.Y. Times (Feb. 12, 2024

updated Feb. 15, 2024),

https://www.nytimes.com/2024/02/12/us/denver

-colorado-migrants.html........................................ 27

Michael Kimmelman, How Houston Moved 25,000

People From the Streets Into Homes of Their

Own,

N.Y.

Times

(June

14,

2022),

https://www.nytimes.com/2022/06/14/headway/

houston-homeless-people.html ............................. 31

x

King County Regional Housing Authority, FiveYear Plan: 2023-2028 (2023),

https://kcrha.org/wpcontent/uploads/2023/06/FINAL-KCRHA-FiveYear-Plan-6.1.23.pdf ............................................. 30

King County Regional Housing Authority, Our

Approach,

https://kcrha.org/about/our-approach/ .................. 30

KIRO 7 News Staff, Mount Baker preschool begs

Seattle to remove nearby encampment, KIRO 7

(Feb. 8, 2024),

https://www.kiro7.com/news/local/mountbaker-preschool-begs-seattle-remove-nearbyencampment/KIDDQBBJGZFUPFPAVARQLP

FQM4/ ...................................................................... 6

Andrew I. Lief, A Prosecutorial Solution to the

Criminalization of Homelessness, 169 U. Pa. L.

Rev. 1971 (2021) .................................................... 20

Joshua McNichols, Seattle’s first affordable

housing high-rise tower in 50 years welcomes its

first residents, KUOW: NPR Network (May 5,

2023), https://www.kuow.org/stories/seattle-sfirst-affordable-housing-high-rise-in-50-yearswelcomes-its-first-residents .................................. 32

National Low Income Housing Coalition, The Gap:

A Shortage of Affordable Homes, (Mar. 2023),

https://nlihc.org/sites/default/files/gap/GapReport_2023.pdf ...................................................... 8

xi

Andy Newman, A Record 100,000 People in New

York Homeless Shelters, N.Y. Times (June 28,

2023),

https://www.nytimes.com/2023/06/28/nyregion/

nyc-homeless-shelter-population.html ................. 27

Sara K. Rankin, Hiding Homelessness: The

Transcarceration of Homelessness, 109 Cal. L.

Rev. 559 (2021) ...................................................... 29

Bethany Rodgers, Utah’s ‘housing first’ model is

keeping people off the streets. So why are

auditors worried? Salt Lake Tribune (Nov. 16,

2021),

https://www.sltrib.com/news/politics/2021/11/1

6/utahs-housing-first-model/ ................................. 31

Claire Rush, Cities crack down on homeless

encampments. Advocates say that’s not the

answer,

KGW

8

(Nov.

28,

2023),

https://www.kgw.com/article/news/local/homele

ss/cities-crack-down-homeless-encampmentsadvocates-protest/283-a3a40ddb-9d0a-484583e5-dd0486d4ee44 ................................................. 6

Eli Saslow, A Once Despairing Sandwich Shop

Owner Sees ‘a Miracle’, N.Y. Times (Dec. 26,

2023),

https://www.nytimes.com/2023/12/26/us/phoeni

x-homeless-encampment-zone.html ....................... 6

Seattle Human Services, Quarterly Report (June

29, 2023),

https://clerk.seattle.gov/~cfpics/cf_322689q1.pdf .... 28

xii

Seattle Human Services, Quarterly Report (Aug. 2,

2023),

https://clerk.seattle.gov/~cfpics/cf_322689q2.pdf .... 28

Seattle Human Services, Quarterly Report (Dec. 8,

2023),

https://clerk.seattle.gov/~cfpics/cf_322689q3.pdf .... 28

Ari Shapiro, Why Some Homeless Choose The

Streets Over Shelters, Talk of the Nation on

NPR (Dec. 6, 2012),

https://www.npr.org/2012/12/06/166666265/wh

y-some-homeless-choose-the-streets-overshelters .................................................................. 29

The South King County Housing First Pilot:

Innovations & Lessons Learned, Building

Changes: End Homelessness Together (May

2010),

https://www.hud.gov/sites/documents/DOC_10

137.PDF ................................................................. 30

U.S. Dep’t of Housing and Urban Dev., 2023

Annual Homelessness Assessment Report to

Congress, (Dec. 2023),

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

es/pdf/2023-AHAR-Part-1.pdf. ........................ 7, 8, 9

U.S. Interagency Council on Homelessness, ALL

IN: The Federal Strategic Plan to Prevent and

End

Homelessness,

(Dec.

2022),

https://www.usich.gov/sites/default/files/docum

ent/All_In.pdf........................................... 7, 8, 30, 34

xiii

Wash. State Auditor, Contracted Homeless

Services: Improving how local governments

prioritize services and manage provider

performance, no. 103130 (Nov. 15, 2022),

https://sao.wa.gov/sites/default/files/audit_repo

rts/PA_Contracted_Homeless_Services_ar1031310.pdf ........................................................... 33

Wash. State Dep’t of Ecology, $4 Million for

Homeless Encampments Cleanup, pub. no. 2007-002 (Jan. 2020),

https://apps.ecology.wa.gov/publications/docum

ents/2007002.pdf, (Jan. 2020) ................................. 5

Daniel Wu, When a homeless encampment was

cleared, no one went to a shelter. The reasons are

complicated, Seattle Times (Aug. 19, 2021),

https://www.seattletimes.com/seattlenews/homeless/when-a-homeless-encampmentwas-cleared-no-one-went-to-shelter-thereasons-why-are-complicated/ .............................. 29

1

INTERESTS OF AMICI CURIAE 1

The Local Government Legal Center (“LGLC”) is a

coalition of national local government organizations

formed in 2023 to educate local governments on

pending Supreme Court proceedings and to advocate

for local governments in appropriate cases. The

National Association of Counties, the National League

of Cities, and the International Municipal Lawyers

Association are the founding members of the LGLC.

The National Association of Counties (“NACo”) is

the only national organization that represents county

governments in the United States. Founded in 1935,

NACo provides essential services to the nation’s 3,069

counties through advocacy, education, and research.

The National League of Cities (“NLC”) is the

country’s largest and oldest organization serving

municipal governments and represents more than

19,000 cities and towns in the United States. NLC

advocates on behalf of cities on critical issues that

affect municipalities and warrant action.

Established in 1935, the International Municipal

Lawyers Association (“IMLA”) is the oldest and largest

association of attorneys representing United States

municipalities, counties, and special districts. IMLA’s

mission is to advance the responsible development of

municipal law through education and advocacy by

providing the collective viewpoints of local

Pursuant to Supreme Court Rule 37.6, Amici Curiae state

that no counsel for any party authored this brief in whole or in

part, and no outside entity made any monetary contribution to

fund the preparation or submission of this brief.

1

2

governments around the county on legal issues before

state and federal appellate courts.

The North Dakota League of Cities (“NDLC”) is

comprised of 355 member cities and was formed in

1912 to support municipal governance throughout the

state through information sharing, education, and

legal advocacy.

The Cities of Albuquerque, Anaheim, Anchorage,

Colorado Springs, Henderson, Lake Oswego, Las

Vegas, Redondo Beach, Sacramento, Seattle, and

Topeka, the City and County of Honolulu, and

Louisville-Jefferson County Metro, are local

governments of different sizes from all over the

country whose communities are significantly affected

by the homelessness crisis. Each of these entities is

committed to solutions that appropriately balance

compassion with efficacy while also protecting the

livelihood of local businesses and residents.

Homelessness is complex at both the societal and

individual levels. Effective sustainable solutions will

require compromise to meet this increasingly nuanced

contemporary challenge. Solutions will be expensive,

they will take time, and there will be intense

disagreement along the way about what methods work

best and which philosophies make the most sense.

The Ninth Circuit’s novel application of the Eighth

Amendment is untenable. The holding stations federal

courts at the center of every town for the purpose of

deciding when and where local authorities may

enforce basic regulations against public camping. The

rule has no limiting principle, constitutionalizes a

policy judgment in a complex social arena, and turns

3

federal judges into townhall chancellors. Amici

support reversing this extraordinary incursion into

local autonomy.

SUMMARY OF ARGUMENT

Homelessness is complicated. The constitutional

question presented in this case is not. The Ninth

Circuit liberated the Eighth Amendment from its text

and purpose, setting federal courts free to wander

about deciding when local governments may use their

police power to enforce basic regulations against living

in public spaces. This unilateral judicial action

amounts to an ongoing federal audit of how local

authorities enforce generally applicable facially valid

laws. The Ninth Circuit justified this extraordinary

derogation of federalism by relying on the substantive

limits on criminal responsibility that have, until now,

been slumbering in the Constitution.

This novel interpretation of the Eighth

Amendment is legally wrong, and the devised remedy

is harmful. Safe parks and functioning arterials are

the circulatory system essential to any vibrant

locality. Local policymakers have always been tasked

with keeping these municipal passageways open. In

the context of homelessness this may require

compromise, and result in encampments being

tolerated for a time before authorities need them to

disperse. The Ninth Circuit, however, imposed a

constitutional prerequisite to this basic exercise of the

police power: local governments must first provide an

alternative place to go before telling someone they

cannot stay where they are.

4

That rule is a rigid policy judgment. Imposing a

requirement that local governments offer temporary

shelter as an antecedent to enforcement has

substantial financial implications and encourages

jurisdictions to mass produce a form of shelter that

most people do not want and that most advocates say

does not work. In addition to creating practical

problems for local governments, this unprincipled rule

is also legally unsupportable. Supervising local

enforcement of facially valid public camping

regulations runs counter to the notions of comity and

respect that underpin our dual sovereign system. The

pretense that enforcement is equivalent to

punishment has no support in this Court’s cases.

Subjecting individual jurisdictions to litigation and

federal injunctions that effectively mandate the

construction of shelter space is practically

counterproductive and constitutionally unjustifiable.

Homelessness is a serious social and economic

issue impacting communities across the country.

Voters in many places prefer compassionate responses

and local governments continue to increase

investments in housing and other supportive services.

At the same time, encampments have devastated

surrounding neighborhoods and businesses. Many

affected community members are not prepared to

accept that kind of social harm indefinitely and turn

to their local governments for immediate relief. One

tool that governments use to address the imminent

health and environmental hazards created by

encampments are public order regulations like anticamping ordinances. Laws like these are neither new

nor unusual.

5

Navigating the situational social friction created

by encampments needs to be left in the hands of locally

elected representatives who are sensitive to the needs,

priorities, and resources of the region. These tough

decisions involve philosophical compromises and fiscal

tradeoffs; a balancing act the Constitution leaves to

local governments to perform.

ARGUMENT

I.

LOCAL GOVERNMENTS ARE ON THE FRONT

LINES ADDRESSING HOMELESSNESS.

Everyone agrees that “homelessness is a serious

issue ‘caused by a complex mix of economic, mentalhealth, and substance-abuse factors.’” Johnson v. City

of Grants Pass, 72 F.4th 868, 923 (9th Cir. 2023)

(statement regarding denial of reh’g) (quoting M.

Smith, J., id. at 935, dissenting from denial of reh’g)).

The dispute lies in finding an agreeable response.

At the local level, long-term solutions to these

underlying issues need to be balanced with responding

to the environmental and public health harms that

encampments can cause to the surrounding area.

These harmful impacts are evident and welldocumented. Solid waste, for example, is “an

inevitable result of most homeless encampments.” 2 In

a recent removal prompted by community complaints

after a shooting, 210,000 pounds of debris were

removed from a 38-resident encampment located on

Wash. State Dep’t of Ecology, $4 Million for Homeless

Encampments

Cleanup,

No.

20-07-002

(Jan.

2020),

https://apps.ecology.wa.gov/publications/documents/2007002.pdf

.

2

6

land beside the interstate just blocks away from the

University of Washington campus. 3 Encampments

located near places like daycares upset parents who

are concerned about exposing their children to these

heightened health hazards and potential for violence. 4

Encampments also present an existential risk to

nearby businesses by deterring the formerly reliable

stream of customers, 5 and impede access to sidewalks

by disabled persons.

These community members bring their valid

concerns to local authorities and demand solutions.

Other community members also voice strong

opposition to any type of removal action unless each

person is immediately placed in housing. 6 Local

Jeremy Harris, 200K pounds of debris removed from

encampments along I-5 in Seattle’s U-District, KOMO News (Feb.

22,

2024),

https://komonews.com/news/local/homelessencampments-interstate-5-univeristy-district-seattle-kingcounty-homelessness-crisis-treatment-housing-shelter-servicesfencing-washington-state-department-of-transportationfunding-governor-jay-inslee-legislators-house-senate-wsdotproposal-spd.

4

KIRO 7 News Staff, Mount Baker preschool begs Seattle to

remove nearby encampment, KIRO 7 (Feb. 8, 2024),

https://www.kiro7.com/news/local/mount-baker-preschool-begsseattle-remove-nearbyencampment/KIDDQBBJGZFUPFPAVARQLPFQM4/.

5

Eli Saslow, A Once Despairing Sandwich Shop Owner Sees ‘a

Miracle’,

N.Y.

Times

(Dec.

26,

2023),

https://www.nytimes.com/2023/12/26/us/phoenix-homelessencampment-zone.html.

6

Claire Rush, Cities crack down on homeless encampments.

Advocates say that’s not the answer, KGW 8 (Nov. 28, 2023),

https://www.kgw.com/article/news/local/homeless/cities-crackdown-homeless-encampments-advocates-protest/283-a3a40ddb9d0a-4845-83e5-dd0486d4ee44.

3

7

leaders caught in this tension are tasked with doing

the hard work of democracy that requires juggling

limited budgets and different views to find the right

recipe of compassion, stewardship, safety, and

accountability. These political processes often reach

different decisions in our diverse nation.

While local governments are tasked with

navigating these imminent community health and

safety concerns, homelessness is a much larger

national issue. The U.S. Department of Housing and

Urban Development (“HUD”) conducted its first

national point-in-time count in 2007 to estimate how

many people were experiencing homelessness on a

given night. 7 That year, HUD estimated that 647,258

people were experiencing homelessness (391,401

sheltered, 255,857 unsheltered). Id. at 10. Almost two

decades later, the 2023 estimated total was 653,104

people (396,494 sheltered, 256,610 unsheltered). Id.

Notably, this total population increased by 12% from

2022. Id. at 12. Although these total population

estimates are similar, the population itself is not static

as each year an average of 908,530 people become

homeless while 900,895 people exit homelessness to

housing. 8

U.S. Dep’t of Housing and Urban Dev., 2023 Annual

Homelessness Assessment Report to Congress, 12 (Dec. 2023)

[hereinafter “AHAR”],

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

8

U.S. Interagency Council on Homelessness, ALL IN: The

Federal Strategic Plan to Prevent and End Homelessness, 61 (Dec.

2022), [hereinafter “ALL IN”],

https://www.usich.gov/sites/default/files/document/All_In.pdf.

7

8

In contrast with this relatively flat national trend,

some parts of the country have seen homeless

populations spike since 2007. California, for example,

experienced an increase of 42,413 people (+30.5%)

during this period. New York increased by 40,599

(+64.9%) people, with 29,022 added from 2022-23

alone. Washington (+19.9%), Massachusetts (+26.5%),

and Oregon (+14.5%) round out the top five states with

the largest increases from 2007 to 2023. 9 Conversely,

other states such as Florida and Texas have generally

trended downwards over this same this period.

Determining the reasons for these disparate trends

is tricky when there are so many factors that can affect

whether someone is housed. Tangible issues like low

wages, high rent, domestic violence, natural disasters,

mental health, and substance abuse can all play a role,

but federal agencies also attribute homelessness to

deeper problems such as systemic racism and

discriminatory

housing

practices. 10

Further

complicating these individual and social factors is the

current national shortage of available affordable

housing, with some estimates ranging as high as a

7.3M home deficit. 11 This housing market is

particularly squeezed in metropolitan regions with

limited land and high costs of living, and cities

everywhere struggle to match supply to demand as

AHAR, supra n. 7, at 17.

ALL IN, supra n. 8, at 15-16.

11

National Low Income Housing Coalition, The Gap: A

Shortage

of

Affordable

Homes,

7

(Mar.

2023),

https://nlihc.org/sites/default/files/gap/Gap-Report_2023.pdf.

9

10

9

83% of the nation’s population is now concentrated in

urban areas. 12

Although more public housing does not cure this

overall deficit in the housing stock, many communities

in the country agree that it plays an important role in

any compassionate response to homelessness and

accordingly have worked hard to create more. At the

national level, HUD reports the total number of yearround beds (i.e., emergency shelter, transitional

housing, permanent housing) rose from 611,169 in

2007 to 1,112,545 in 2023, with 662,978 of those beds

in permanent housing. 13

In many of the hardest hit cities, however,

homeless populations have continued to rise faster

than shelter and housing options can be constructed.

In Seattle, for example, the estimated homeless

population increased from 7,902 in 2007 to 14,149 in

2023, 14 while the total number of year-round beds

doubled from 9,668 to 19,809, and the number of

Center for Sustainable Systems, Univ. of Mich., U.S. Cities

Factsheet,

No.

CSS09-06

(Aug.

2023),

https://css.umich.edu/sites/default/files/202310/U.S.%20Cities_CSS09-06_0.pdf.

13

See AHAR, supra n. 7, at 89-91.

14

HUD Continuum of Care (“CoC”) Homeless Populations, WA500 (2007),

https://files.hudexchange.info/reports/published/CoC_PopSub_C

oC_WA-500-2007_WA_2007.pdf; see also, HUD CoC Homeless

Populations, WA-500 (2023),

https://files.hudexchange.info/reports/published/CoC_PopSub_C

oC_WA-500-2023_WA_2023.pdf.

NOTE:

The

homeless

populations estimated by the annual point-in-time count do not

include formerly homeless people residing in permanent

supportive housing. See AHAR, supra n. 7, at 6.

12

10

permanent supportive housing beds almost tripled

from 2,775 to 7,251. 15 At the other end of the West

Coast, the homeless population in Los Angeles

increased from 47,862 in 2007 to 71,320 in 2023, 16

while the total number of year-round beds tripled from

19,335 to 59,112, and the number of permanent

supportive housing beds almost quadrupled from

6,870 to 24,172. 17

There are many ways to interpret these data and

many potential reasons for these trends. No matter

the potential explanations, it is indisputable that in

some areas homeless populations have increased at

much higher rates than the national average even as

local governments have multiplied the regional supply

of public housing options. This simply illustrates the

point that homelessness is behaviorally complex, the

product of many different social factors, and probably

HUD

CoC

Housing

Inventory,

WA-500

(2007),

https://files.hudexchange.info/reports/published/CoC_HIC_CoC_

WA-500-2007_WA_2007.pdf; see also, HUD CoC Housing

Inventory, WA-500 (2023),

https://files.hudexchange.info/reports/published/CoC_HIC_CoC_

WA-500-2023_WA_2023.pdf.

16

HUD CoC Homeless Populations, CA-600 (2007),

https://files.hudexchange.info/reports/published/CoC_PopSub_C

oC_CA-600-2007_CA_2007.pdf; see also, HUD CoC Homeless

Populations, CA-600 (2023),

https://files.hudexchange.info/reports/published/CoC_PopSub_C

oC_CA-600-2023_CA_2023.pdf.

17

HUD

CoC

Housing

Inventory,

CA-600

(2007),

https://files.hudexchange.info/reports/published/CoC_HIC_CoC_

CA-600-2007_CA_2007.pdf; see also, HUD CoC Housing

Inventory, CA-600 (2023),

https://files.hudexchange.info/reports/published/CoC_HIC_CoC_

CA-600-2023_CA_2023.pdf.

15

11

not amenable to simple one-dimensional solutions.

Just building more shelter beds and public housing

options is almost certainly not the answer by itself.

Local governments take different approaches to

homelessness but regulations like public camping

ordinances are common and used in many places. The

jurisdictions where most homeless individuals reside

do not use this type of police power to criminalize

homelessness. Instead, these regulations provide the

statutory authority that officials need to clear

problematic encampments that pose significant health

and safety risks. They are necessary tools for keeping

certain areas in the community free from

encampments, such as downtown economic zones and

areas near schools and children’s baseball fields.

Citations, whether civil or criminal, can also be used

to as way to encourage cited individuals to address

underlying factors like substance abuse or mental

illness by participating in treatment-based diversion

programs.

Navigating these considerations and reaching the

right compromises is a difficult task that requires

nuance and sensitivity. As the nation looks for the way

out of the current housing shortage and homelessness

crisis, “we must preserve for our localities the ability

to make tough policy choices unobstructed by courtcreated mandates that lack any sound basis in law.”

Johnson 72 F.4th at 945 (Bress, J.) (dissenting from

denial of reh’g). Local jurisdictions welcome federal

assistance in addressing homelessness. But that help

should come from a political branch of government,

not the judiciary.

12

II.

THE EIGHTH AMENDMENT DOES NOT

AUTHORIZE FEDERAL COURTS TO AUDIT HOW

LOCAL GOVERNMENTS ENFORCE VALID LAWS.

A town’s authority to keep its sidewalks clear and

parks open is not ordinarily a controversial notion.

Without this authority it is not really a town at all, but

just a group of people haphazardly living close to each

other. This preeminent function of local governance

has always been recognized by this Court. As Justice

Harlan wrote more than a century ago, “the police

power extends, at least, to the protection of the lives,

the health, and the property of the community against

the injurious exercise by any citizen of his own rights.”

Patterson v. State of Kentucky, 97 U.S. 501, 504 (1878).

Thus, “of all the powers of local government, the police

power is ‘one of the least limitable.’” Lambert v.

California, 355 U.S. 225, 228 (1957) (quoting District

of Columbia v. Brooke, 214 U.S. 138, 149 (1909)).

Taking steps to stop people from living in common

spaces is at the bedrock of this “least limitable”

authority. The Ninth Circuit, however, decided that

this fundamental power must yield to the Eighth

Amendment’s “substantive limits on what can be

made criminal” and, to eliminate any potential for a

violation, created a prophylactic rule prohibiting

enforcement of public camping regulations “when

there is no shelter space available.” Johnson, 72 F.4th

at 896. Although obfuscated as amended, “[t]he

original majority opinion made clear that the bedsversus population ‘formula’ is all that matters.” Id. at

938 (M. Smith, J., dissenting from denial of reh’g).

From this approach, whenever the estimated

homeless population in a jurisdiction exceeds the

13

number of shelter beds, federal courts must

continuously supervise local governments who try to

use the police power to regulate conduct like public

camping.

The principal issue with this misinterpretation of

the Eighth Amendment is how the rule is applied.

Local governments should not need to seek permission

from the federal judiciary before enforcing valid laws

prohibiting camping in public spaces. The rule lacks

any legal or factual basis justifying this sharp

departure from federalism principles and stretches

the meaning of “punishment” to encompass preconviction enforcement actions at the street level. The

Eighth Amendment does not provide a basis to

prospectively impose substantive limits on state

criminal law in this manner.

A. The Ninth Circuit’s Rule Usurps Local

Functions and Undermines Federalism.

Regulating behaviors like erecting tents on public

land has always been within the scope and substance

of the local police power. See Coal. on Homelessness v.

City & Cty. of San Francisco, 90 F.4th 975, 987-89 (9th

Cir. 2024) (Bumatay, J., dissenting). Camping bans

and park restrictions are precisely the sort of

“regulations [designed] to preserve order, to promote

freedom of communication, and to facilitate the

transaction of business in crowded communities.”

Chicago, B. & Q. Ry. Co. v. Illinois, 200 U.S. 561, 593

(1906) (quotation omitted). Local authority is at its

highest when used to promote “the safety, health,

morals, comfort and welfare” of the people within the

jurisdiction. Knoxville Iron Co. v. Harbison, 183 U.S.

13, 20 (1901) (quotation omitted).

14

Whether the ordinance pertains to camping, or to

loitering, or to vagrancy, laws regulating these types

of public behavior “have been a fixture of AngloAmerican law at least since the time of the Norman

Conquest.” Chicago v. Morales, 527 U.S. 41, 103 (1999)

(Thomas, J., dissenting). This custom continues. Local

ordinances addressing this type of conduct (and

camping specifically) remain commonplace in this

country. 18 Traditionally, the limitations this Court

has placed on this category of laws have been

procedural

rather

than

substantive.

E.g.,

Papachristou v. Jacksonville, 405 U.S. 156, 170-71

(1972).

With respect to public camping regulations

specifically, this Court highlighted the government

interests justifying them in a free speech case. In

Clark v. Community for Creative Non-Violence, the

National Park Service granted an advocacy group’s

application to erect a short-term symbolic tent city in

Lafayette Park “to call attention to the plight of the

homeless,” but denied the group’s request for a special

use permit that would have allowed demonstrators to

sleep there overnight. 468 U.S. 288, 289 (1984).

Agreeing that “sleeping” was conduct and assuming

that it was also expressive, this Court had “very little

E.g., Anaheim, Cal., Code § 11.10.30 (camping in public areas

prohibited); Colorado Springs, Colo., Code § 9.6.110 (camping);

D.C. Code § 24-121 (tents, trailer camps, and other temporary

abodes); Denver, Colo., Code § 38-86.2 (camping); Honolulu,

Haw., Code § 10-1.2(a)(13) (camping in public parks); Las Vegas,

Nev., Code § 10.86.010 (camping, lodging, and similar activities);

Sacramento, Cal., Code § 12.52 et seq. (camping); Seattle, Wash.,

Code § 18.12.250 (camping in public parks); Topeka, Kan., Code

§ 9.45.340-.400 (camping).

18

15

trouble concluding that the Park Service may prohibit

overnight sleeping in the parks involved here.” Id. at

295. The “substantial interest” in maintaining

attractive parks was sufficient:

To permit camping – using these areas as

living accommodations – would be totally

inimical to these purposes, as would be

readily understood by those who have

frequented the National Parks across the

country and observed the unfortunate

consequence of the activities of those who

refuse to confine their camping to

designated areas.

Id. at 296.

This

Court

has

always

respected

the

counterbalanced governance central to our dual

sovereign system and has hesitated to place federal

courts in a supervisory role over how local authority is

exercised. On many occasions this Court has

reiterated “the normal principles of equity, comity and

federalism that should inform the judgment of federal

courts when asked to oversee state law enforcement

authorities.” Los Angeles v. Lyons, 461 U.S. 95, 112

(1983); see also, Riverside v. McLaughlin, 500 U.S. 44,

53 (1991) (acknowledging “proper deference to the

demands of federalism”).

The Ninth Circuit displayed no restraint and

assumed the reins of local police power by

prospectively enforcing the new constitutional rule

that “a person cannot be prosecuted for involuntary

conduct if it is an unavoidable consequence of one’s

status.” Johnson, 72 F.4th at 893. For cities like San

16

Francisco, this becomes a perpetual process of seeking

“the permission of a federal judge” and appealing the

disagreements that will inevitably arise in the district

court. Coal. on Homelessness, 90 F.4th at 982

(Bumatay, J., dissenting). Additional appeals will,

evidently, be needed to resolve questions like whether

encampment resolutions that are “limited [in]

geographic scope” or “time-limited [in] nature” violate

the district court’s injunction. Id. at 977 (panel

majority). The San Francisco case clearly illustrates

the type of continuing hands-on federal involvement

contemplated by the Ninth Circuit.

As this appellate ping pong makes clear, the type

of injunction at issue here amounts to “nothing less

than an ongoing federal audit” of the enforcement of

“seemingly valid state laws.” See O’Shea v. Littleton,

414 U.S. 488, 500 (1974). However, other than quick

standing analyses, see Martin v. Boise, 920 F.3d 584,

608-10 (9th Cir. 2019), see also, Johnson, 72 F.4th at

881-83, the Ninth Circuit ignored the imperative for

“courts of equity to exercise discretion” when asked to

interject “federal courts in the administration of the

criminal law.” Stefanelli v. Minard, 342 U.S. 117, 120

(1951). The “crude population-level inquiry” used to

predict the involuntariness of future conduct,

Johnson, 72 F.4th at 936 (M. Smith, J., dissenting

from denial of reh’g), is incongruent with this Court’s

descriptions of the type of “extraordinary

circumstance” where a federal court may order

“injunctive relief against state criminal prosecutions.”

Younger v. Harris, 401 U.S. 37, 53 (1971). If abstention

principles keep federal courts from interfering with an

17

ongoing state prosecution, the same should be true for

the underlying enforcement action that gave rise to it.

Setting aside capital cases, in the Eighth

Amendment context this Court has only ever

authorized such sweeping class-wide injunctive relief

as a last-resort necessity to redress unconstitutional

conditions of confinement. See, e.g., Brown v. Plata,

563 U.S. 493 (2011). That post-conviction context is

entirely different. The injunction was pursuant to a

specific Act of Congress, see 18 U.S.C. § 3626, and after

conviction the State owes an affirmative duty to

prisoners because “[t]o incarcerate, society takes from

[them] the means to provide for their own needs.”

Brown, 563 U.S. at 510. The Ninth Circuit’s rule turns

that reasoning inside out: “to incarcerate, society must

first offer a person the means to provide for their own

needs.”

Even in that post-conviction context, Justice Scalia

pointed out that these sorts of structural injunctions

are dangerous because they “turn[] judges into longterm administrators of complex social institutions . . .

to play a role essentially indistinguishable from the

role ordinarily played by executive officials.” Id. at 555

(Scalia, J., dissenting). Those words are an apt

description of the injunctive regime at issue in this

case. The Ninth Circuit’s rule takes control of

governance from local authorities and turns federal

courts into “homeless policy czars” deciding when

basic public camping regulations may be enforced.

Johnson, 72 F.4th at 943 (M. Smith, J., dissenting

from denial of reh’g). This departure from federalism

principles is not supported by the Eighth Amendment.

18

B. The Cruel and Unusual Punishment

Clause Does Not Apply to Street Level

Enforcement.

According to the Ninth Circuit, “the Cruel and

Unusual Punishment Clause bars enforcement of the

anti-camping ordinances.” Johnson, 72 F.4th at 880

(emphasis added). Under this rule, even “threatening

to enforce” camping ordinances can constitute

unconstitutional

punishment.

See

Coal.

on

Homelessness v. City & Cty. of San Francisco, No. 2315087, 2024 WL 125340, *1 (9th Cir. Jan. 11, 2024)

(mem. op.). That conflicts with this Court’s numerous

statements that “the State does not acquire the power

to punish with which the Eighth Amendment is

concerned until after it has secured a formal

adjudication of guilt in accordance with due process.”

E.g., Ingraham v. Wright, 430 U.S. 651, 671 n. 40

(1977). The Ninth Circuit sidestepped this problem by

explaining in a footnote that when “plaintiffs are

raising challenges to the ‘substantive limits on what

can be made criminal,’ Ingraham does not prohibit a

challenge before a criminal conviction.” Johnson, 72

F.4th at 889 n. 26.

As many of the dissenting judges have noted,

extending the Clause “to encompass pre-conviction

challenges to substantive criminal law stretches the

Eighth Amendment past its breaking point.” Martin,

920 F.3d at 603 (Bennet, J., dissenting from denial of

reh’g). In the pretrial context, this Court has

consistently held that when “there has been no formal

adjudication of guilt . . . the Eighth Amendment has

no application.” City of Revere v. Massachusetts

General Hospital, 463 U.S. 239, 244 (1983); see also,

19

e.g., Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979)

(“[t]he Court of Appeals properly relied on the Due

Process Clause rather than the Eighth Amendment in

considering the claims of pretrial detainees”).

Attaching the Eighth Amendment right to preenforcement actions could only ever be justified where

the challenged law on its face permitted an

unconstitutional punishment. See, e.g., Coker v.

Georgia, 433 U.S. 584 (1977) (regarding the death

penalty for non-homicide offense). That is not the

situation for the facially valid ordinances in this case

that only contemplate the possibility of a jail sentence

after a person is issued two successive civil violations,

followed by a park exclusion order, followed by a

trespass charge for violating that order. See Johnson,

72 F.4th at 890 (“[i]mposing a few extra steps . . . does

not cure the anti-camping ordinances’ Eighth

Amendment infirmity”); compare, id. at 933 (Graber,

J., respecting denial of reh’g) (“the Eighth Amendment

does not prohibit all civil remedies that could, in

theory lead to” criminal prosecution).

In addition to being attenuated from the initial

civil violations, a conviction for criminal trespass in

the second degree does not carry a mandatory jail

sentence under Oregon law. See Johnson, 72 F.4th at

890; and see, Or. Rev. Stat. § 161.615(3) (maximum

jail sentence for a class C misdemeanor is 30 days with

no minimum term). This Court has explained that

“[t]here is a clear line between sentences of

imprisonment and sentences involving no deprivation

of liberty.” Solem v. Helm, 463 U.S. 277, 294 n. 18

(1983) (citing Argersinger v. Hamlin, 407 U.S. 25

(1972)). It is entirely possible that even the cases that

20

eventually result in a criminal charge will not also

result in a jail sentence. Indeed, many jurisdictions

use citations like these as a means of compelling

individuals to participate in diversion programs

designed to connect participants with supportive

services. See Andrew I. Lief, A Prosecutorial Solution

to the Criminalization of Homelessness, 169 U. Pa. L.

Rev. 1971, 1989-90 n. 125 (2021). 19

No opinion from this Court supports the theory

that facially valid criminal laws may be enjoined

because someone might eventually receive an

unconstitutional sentence. Although they feel punitive

in the colloquial sense of the word, arrests, threats to

arrest, and pretrial detention on bail are not properly

categorized as punishment under this Court’s cases.

See also, United States v. Salerno, 481 U.S. 739, 74647 (1987). The Ninth Circuit’s contrary conclusion is a

“step too far” and requires a “double leap in logic” that

has no legal basis. Johnson, 72 F.4th at 933 (Graber,

J., respecting denial of reh’g).

C. Robinson Should Not Be Interpreted as

Imposing Substantive Limits on Local

Criminal Laws.

The legal error central to this case is the Ninth

Circuit’s interpretation of Robinson v. California, 370

U.S. 660 (1962). In Martin the court “gleaned from

19

Some communities have taken innovative approaches in

implementing different types of community court, including

using “mobile courts” to help reach homeless participants where

they are located. See, e.g., City of Boulder, Colo., Community

Court,

https://bouldercolorado.gov/services/community-court

(last viewed Feb. 28, 2024).

21

Robinson the principle that the Eighth Amendment

prohibits the state from punishing an involuntary act

or condition if it is the unavoidable consequences of

one’s status or being.” 920 F.3d at 616 (quotation

removed). Reinforcing this questionable premise, the

Ninth Circuit placed extraordinary emphasis on dicta

from Ingraham regarding the “substantive limits on

what can be made criminal and punished as such.” See

id. at 613-14. Starting from that narrow view, the

court has had no problem concluding that “Robinson

limits the reach of criminal law.” See Johnson, 72

F.4th at 921 (statement regarding denial of reh’g).

This Court has, in passing, described the holding of

Robinson that way. See e.g., Rhodes v. Champman,

452 U.S. 337, 346 n. 12 (1981); Ingraham, 430 U.S. at

667. This Court has not, however, ever applied

Robinson that way. Interpreting Robinson as

imposing “substantive limits on what can be made

criminal” is a ticking time bomb that invites future

federal incursions on state law. Amici respectfully

suggest that, rather than treating Robinson as a oneoff outlier case susceptible to permitting substantive

limitations on criminal law, a more parsimonious

understanding of the opinion is as the extreme

example of disproportionate sentencing.

Many members of this Court have described

Robinson as an excessive sentencing case. Justice

Stevens, for example, explained that while the jail

sentence in Robinson was not cruel or unusual “in the

abstract,” it was held to “be excessive” when used to

penalize the status of narcotic addiction. Atkins v.

Virginia, 536 U.S. 304, 311 (2002). Justice Powell

similarly explained in Solem, supra, that the “90-day

22

sentence [in Robinson] was found to be excessive.” 463

U.S. at 287; see also, Harmelin v. Michigan, 501 U.S.

957, 1012 (1991) (White, J., dissenting) (discussing

Robinson along with other proportionality cases).

Justice Thurgood Marshall endorsed this

interpretation, explaining that in Powell and

Robinson “[t]he analysis in both cases was the same;

only the conclusion as to whether or not the

punishment was excessive differed.” Furman v.

Georgia, 408 U.S. 238, 328 (1972) (Thurgood Marshall,

J., concurring); see also, Carmona v. Ward, 439 U.S.

1091, 1094-95 (1979) (Thurgood Marshall, J.,

dissenting from denial of certiorari) (citing Robinson

to demonstrate that “this Court has invalidated

punishments that were disproportionate to the nature

of the offense charged”).

From this perspective, the holdings in Robinson

and Powell are more easily reconciled. The mandatory

jail sentence in Robinson was unconstitutionally

excessive because instead of being imposed for “the

use of narcotics” or “antisocial or disorderly behavior”

it criminalized “an illness which may be contracted

innocently” and permitted a person “to be

continuously guilty” of the offense anywhere in the

State. 370 U.S. at 666-67. The complete absence of any

actus reus allowed this Court to hold that any penalty

would be disproportionate to statutory elements of the

crime.

By contrast, in Powell v. Texas a plurality of

justices explained that the “primary purpose” of the

Clause has always been properly considered “to be

directed at the method or kind of punishment

imposed.” 392 U.S. 514, 531-32 (1968). Examining “the

23

nature of the conduct made criminal is ordinarily

relevant only to the fitness of the punishment

imposed.” Id. From that starting place, five justices

agreed that the fine imposed for the purportedly

involuntary conduct in that case was not

unconstitutional. Recognizing the case could present a

slippery slope, the plurality explained that Robinson

did not control the outcome because “there is a

substantial definitional distinction between a ‘status’

. . . and a ‘condition,’” and when this line is blurred it

becomes “difficult to see any limiting principle” that

would prevent the federal judiciary from becoming

“the ultimate arbiter of the standards of criminal

responsibility.” Id. at 533.

Reading Robinson as the extreme example of

disproportionate sentencing is a cleaner fit within this

Court’s jurisprudence than interpreting it to mean

that there are “substantive limits” on state criminal

laws hibernating within the recesses of the Eighth

Amendment. If a penal statute is facially valid, then

the constitutionality of a particular penal sentence can

only be analyzed by looking at the individual

characteristics of the defendant and the factual basis

for the conviction. As this Court has explained, the

“inherent nature of our federal system and the need

for individualized sentencing decisions result in a

wide range of constitutional sentences” and “no single

criterion can identify when a sentence is so grossly

disproportionate that it violates the Eighth

Amendment.” Solem, 463 U.S. at 290 n. 17.

The Ninth Circuit’s determination that any penal

sentence for any individual within a diverse class

would be per se unconstitutional is legally

24

unjustifiable. Homelessness is too impermanent to be

considered a status like addiction. Tobe v. City of

Santa Ana, 892 P.2d 1145, 1166-67 (Cal. 1995). As

noted in the previous section, approximately 900,000

people become housed each year. This tends to show

“the efficacy of acts of social intervention to change the

condition of those currently homeless.” Joyce v. City &

Cty. of San Francisco, 846 F. Supp. 843, 857 (N.D. Cal.

1994). Additionally, individual facts like whether

someone has previously “declined offers of temporary

housing” are critical. Id. at 938 (M. Smith, J.,

dissenting from denial of reh’g). “It blinks reality to

say that the district court could, ‘in one stroke,’ resolve

the constitutionality of the public-camping ban as

applied to each of the” class members here. Id. at 939

(quoting panel op., id. at 811).

By enjoining even threats to enforce the applicable

ordinances, the Ninth Circuit’s rule guarantees that

no individualized inquiry or sentencing proceeding

will occur. This “federal constitutional prohibition on

the criminalization of purportedly nonvolitional

conduct,” Johnson, 72 F.4th at 928 (O’Scannlain, J.,

respecting denial of reh’g), also displaces common law

trial defenses that might otherwise apply to the

charged violation. See, e.g., In re Eichorn, 69 Cal. App.

4th 382, 391 (1998) (granting writ because petitioner

“is entitled to raise a necessity defense to charges he

violated the camping ordinance”). New federal rules

defining “the purposes of the criminal law [and] the

ideas of free will and responsibility” should be rejected

because crafting those definitions is “a project for state

governance, not constitutional law.” E.g., Kahler v.

Kansas, 589 U.S. ___, 140 S. Ct. 1021, 1037 (2020).

25

Instead of interpreting Robinson as creating

malleable limitations on substantive criminal law,

that case should be read simply as the far-end of this

Court’s proportionality jurisprudence. This view

provides an appropriate resting place for Robinson,

while removing the danger of future courts similarly

pushing this corner of the constitutional envelope.

III.

THE NINTH CIRCUIT’S RULE

JUDGMENT.

IS A

POLICY

The rule created below dictates that local

authorities may only stop people from living in public

spaces if the government first provides them with an

alternative place to go. That concept is not supported

by the Eighth Amendment or any other constitutional

principle. Instead, this is a policy judgment that

federal courts are not engineered or equipped to

administer.

That policy can have substantial financial

implications for local governments. It can also

incentivize overwhelmed jurisdictions to concentrate

public resources on temporary shelter beds even if

policymakers would prefer to invest in more

permanent solutions. Homelessness is complicated,

caused in part by national economic forces, and local

leaders struggling to preserve the livelihood of their

communities need the authority to impose reasonable

regulations designed to further legitimate public

interests.

A. Providing Shelter and Other

Housing Options is Costly.

Public

Building and maintaining shelter space is

expensive. Although numbers can vary widely by

26

region, the national average cost for shelter beds has

been estimated to be around $16,000 per unit per

year. 20 In small and large jurisdictions alike, finding

the funding to provide a multitude of shelter beds can

be difficult and can require compromising other parts

of the local budget.

Take the City of Grants Pass. Relying on this

$16,000 per unit per year estimate, the annual cost to

Grants Pass of providing shelter for the 50 to 600

homeless persons in the jurisdiction might be

anywhere from $800,000 to $9.6M. When this action

was commenced in 2018 Grants Pass had an annual

budget of just over $133M. 21 Using some quick napkin

math, the Ninth Circuit’s rule effectively obligates the

City to dedicate up to 7.2% of its annual budget to

shelter services. Alternatively, of course, Grants Pass

might choose to save the money by foregoing

enforcement of its camping regulations.

Some jurisdictions simply do not have the fiscal

flexibility to accommodate new inroads to the budget

like this. And even in areas committed to providing

shelter, fluctuations in the local homeless population

can strain the social safety net to its breaking point.

For example, New York City is a jurisdiction that

Dennis P. Culhane & Seongho An, Estimated Revenue of the

Nonprofit Homeless Shelter Industry in the United States:

Implications for a More Comprehensive Approach to Unmet

Shelter Demand, 32 Housing Policy Debate 823, 830-33 tbl. 4

(2022) (relying on 2015 HUD Housing Inventory Count data).

21

City of Grants Pass, Ore., Adopted Operating & Capital

Budget Fiscal Year 2017-18, 25, (2018),

https://www.grantspassoregon.gov/DocumentCenter/View/10828

/Complete-Adopted-Budget-FY18?bidId=.

20

27

implemented a right-to-shelter policy decades ago, but

the recent influx of tens of thousands of unhoused

immigrants has pushed the city to the financial

brink. 22 The cost is estimated to be several billion

dollars and counting. 23 Across the country, Denver is

confronting a similar situation and reaching similarly

dire financial straits. 24 Regions that are less affected

by this recent trend have still scrambled to match

unhoused immigrants with shelter options, and have

needed to confront the budgetary realities created by

these unplanned expenditures. 25

The impulse to provide shelter to those who do not

have it is compassionate, and the humanitarian

responses taken by these local governments are

commendable. It is also likely, however, that some of

these places may soon reach financial impasses that

Andy Newman, A Record 100,000 People in New York

Homeless

Shelters,

N.Y.

Times

(June

28,

2023),

https://www.nytimes.com/2023/06/28/nyregion/nyc-homelessshelter-population.html; see also, Dave Davies, How NYC is

coping with 175,000 migrants from the Southern border, Fresh

Air on NPR (Feb. 15, 2024),

https://www.npr.org/2024/02/15/1231712535/how-nyc-is-copingwith-175-000-migrants-from-the-southern-border.

23

Grace Ashford and Claire Fahy, $2.4 Billion Is Not Enough

for New York’s Migrant Crisis, Adams Says, N.Y. Times (Feb. 6,

2024),

https://www.nytimes.com/2024/02/06/nyregion/adamsalbany-migrant-crisis.html.

24

Miriam Jordan, Big Burden of Migrant Influx Strains

Denver, N.Y. Times (Feb. 12, 2024 updated Feb. 15, 2024),

https://www.nytimes.com/2024/02/12/us/denver-coloradomigrants.html.

25

Gustavo Sagrero Álvarez, Seattle steps in to foot bill for

migrants living in hotel, KUOW: NPR Network (Jan. 31, 2024),

https://www.kuow.org/stories/seattle-steps-in-to-foot-the-bill-formigrants-living-in-a-hotel.

22

28

necessitate hard choices and re-examination of fiscal

priorities. As this Court has recognized, “the

intractable economic, social, and even philosophical

problems presented by public welfare assistance

programs are not the business of this Court.” See

Dandridge v. Williams, 397 U.S. 471, 487 (1970). Local

governments need the breathing room to adapt

policies and spending to meet community needs, and

sometimes on short notice. Striking a balance between

local resources and priorities is inherently a political

process. Federal courts should not be putting a thumb

on those scales.

B. Not Every Jurisdiction Believes that

Temporary Shelter Beds are a Viable

Solution to Homelessness.

The Ninth Circuit’s rule is also a bad policy

judgment because it encourages overwhelmed

jurisdictions to narrowly focus on building up a large

supply of temporary shelter beds. This incentivizes a

race to the bottom denominator of housing options.

Temporary shelter beds are generally unappealing,

and offers are frequently declined. In cities like

Seattle, for example, these offers are accepted less

than half of the time. 26 San Francisco reports similar

See Seattle Human Services, Quarterly Report (Dec. 8, 2023),

1,830

https://clerk.seattle.gov/~cfpics/cf_322689q3.pdf

(Q3:

shelter offers, 587 accepted); and see, Seattle Human Services,

Quarterly Report (Aug. 2, 2023),

1,333

https://clerk.seattle.gov/~cfpics/cf_322689q2.pdf

(Q2:

shelter offers, 554 accepted); and see, Seattle Human Services,

Quarterly Report (June 29, 2023),

1,352

https://clerk.seattle.gov/~cfpics/cf_322689q1.pdf

(Q1:

shelter offers, 616 accepted).

26

29

numbers. 27 Commonly stated reasons include

congregate sleeping, past negative experiences,

vehicle related issues, and preferring to wait for a

more permanent option like a tiny house to become

available. In contrast to offers of temporary shelter,

offers for more permanent options like prepaid motel

rooms or tiny homes are almost always accepted. 28

Declining offers of temporary shelter is not a new

phenomenon. 29 Often times the people who are most

likely to refuse an offer are also those who have been

homeless the longest. Scholars explain that this may

be because chronically homeless individuals are

familiar with what the offer entails and know this

short-term relief will not be a long-term housing

option. See e.g., Sara K. Rankin, Hiding Homelessness:

The Transcarceration of Homelessness, 109 Cal. L.

Rev. 559, 583 (2021). Many commentators therefore

suggest that government resources are better used

investing in permanent housing options instead. Id.

Emphasizing permanent housing over temporary

shelter beds is also a key component of the Housing

First model. This approach endorses the philosophy

See City of San Francisco, Healthy Streets Data and

Information,

https://sf.gov/data/healthy-streets-data-andinformation#-data-and-information, (last visited Feb. 25, 2024).

28

Daniel Wu, When a homeless encampment was cleared, no one

went to a shelter. The reasons are complicated, Seattle Times

(Aug.

19,

2021),

https://www.seattletimes.com/seattlenews/homeless/when-a-homeless-encampment-was-cleared-noone-went-to-shelter-the-reasons-why-are-complicated/

29

E.g., Ari Shapiro, Why Some Homeless Choose The Streets

Over Shelters, Talk of the Nation on NPR (Dec. 6, 2012),

https://www.npr.org/2012/12/06/166666265/why-some-homelesschoose-the-streets-over-shelters.

27

30

that “[w]hen a person is housed, they have a platform

to address all their needs, no matter how complex.” 30

Federal agencies encourage Housing First and report

that it provides greater long-term housing stability at

lower overall costs than treatment first models. 31

Many states and local governments throughout the

country also strongly support the Housing First

model. Seattle was one of the first cities to embrace

this approach over two decades ago, 32 and this

remains the model endorsed by the King County

Regional Housing Authority today. 33 California

passed legislation formally adopting Housing First as

the required model for all state housing programs in

2016. See 2016 Cal. Stat. c 847. Hawaii did the same

in 2010. See 2010 Haw. Sess. Laws c 212, §2.

ALL IN, supra n. 8, at 42.

See HUD Office of Policy Development & Research, Housing

First Works, Evidence Matters (Spring/Summer 2023),

https://www.huduser.gov/portal/periodicals/em/spring-summer23/highlight2.html.

32

See Kim Horner, Seattle’s 1811 Eastlake Project Puts Housing

First, Saves Lives & Money, The Carter Center (Nov. 4, 2009),

https://www.cartercenter.org/health/mental_health/fellowships/

archive/documents/seattle_horner.html; see also, The South King

County Housing First Pilot: Innovations & Lessons Learned,

Building Changes: End Homelessness Together (May 2010),

https://www.hud.gov/sites/documents/DOC_10137.PDF.

33

King County Regional Housing Authority, Our Approach

https://kcrha.org/about/our-approach/ (last visited Feb. 25, 2024);

see also, King County Regional Housing Authority, Five-Year

Plan:

2023-2028,

27

(2023),

https://kcrha.org/wpcontent/uploads/2023/06/FINAL-KCRHA-Five-Year-Plan6.1.23.pdf, (explaining approach to creating new housing

options).

30

31

31

While these are among the many regions where

homelessness has continued to increase, other

jurisdictions have realized tremendous success using

Housing First. Houston, for example, is often held out

as the gold standard, 34 successfully reducing overall

homelessness by 53% since switching to Housing First

in 2011. 35 Similarly, in 2005 Utah became the first

state to formally adopt Housing First, and reported

reducing chronic homelessness by 90% over the next

ten years. 36 That success has also, however, at times

drawn criticism due to fiscal concerns as the annual

costs have multiplied. “The problem, according to

auditors, is that these communities are costly to build

and often become long-term homes for those who stay

there.” 37

There are many regional differences between these

jurisdictions, and many potential reasons for these

Michael Kimmelman, How Houston Moved 25,000 People

From the Streets Into Homes of Their Own, N.Y. Times (June 14,

2022), https://www.nytimes.com/2022/06/14/headway/houstonhomeless-people.html.

35

City of Houston Housing & Community Development Dep’t,

Supportive Services: Our Role in Ending Homelessness,

https://houstontx.gov/housing/supportive-services.html,

(last

visited Feb. 25, 2024).

36

See HUD Office of Policy Development & Research, Salt Lake

City Housing Authority Serves Residents Experiencing

Homelessness, Edge: An Online Magazine (Sept. 20, 2022),

https://www.huduser.gov/portal/pdredge/pdr-edge-inpractice092022.html.

37

Bethany Rodgers, Utah’s ‘housing first’ model is keeping

people off the streets. So why are auditors worried? Salt Lake

Tribune (Nov. 16, 2021),

https://www.sltrib.com/news/politics/2021/11/16/utahs-housingfirst-model/.

34

32

disparate outcomes. New permanent housing options

are expensive and time consuming to build,

particularly in high-density urban areas. 38 Local

governments that have made substantial investments

aligning with Housing First policies should be

permitted to continue these policy decisions without

sacrificing the authority to enforce the basic

regulations that are needed to keep the community

functioning as a collective.

The

Ninth

Circuit’s

rigid

all-or-nothing

constitutional formula creates the danger of

encouraging overwhelmed jurisdictions to think about

shifting resources back to short-term temporary

shelter options even if they do not believe this

approach will be effective in the long run.

C. Local Policymakers Need to Preserve the

Health and Safety of Their Communities.

Many communities throughout the country have

made housing and homeless services a top local

priority. Local governments have backed up these

commitments with funding, and spending in some

areas is at levels that would have been unthinkable

twenty years ago. In 2024 Seattle will invest $339M in

affordable housing and $109M in homeless outreach

and shelter. 39 Los Angeles is set to spend $1.3B on

Joshua McNichols, Seattle’s first affordable housing high-rise

tower in 50 years welcomes its first residents, KUOW: NPR

Network (May 5, 2023), https://www.kuow.org/stories/seattle-sfirst-affordable-housing-high-rise-in-50-years-welcomes-its-firstresidents.

39

Callie Craighead, Mayor Harrell signs City of Seattle’s 2024

Budget into Law, Office of the Mayor (Dec. 1, 2023),

38

33

homelessness this year, a tenth of its annual budget. 40

San Francisco, in line with recent years, has allocated

$713.3M this annum for homelessness and supportive

housing. 41 It might seem obvious that, in jurisdictions

like these, incarcerating someone for violating local

camping regulations is not the ultimate goal.

These jurisdictions do, however, want to remain

attractive places to live and do business. Spending in

these amounts can be locally controversial even if

perfect outcomes are achieved, but when these

expenditures are coupled with surrendering public

spaces to encampments local friction can become

combustible. As summarized recently by a state

auditor, communities “are growing more frustrated

and concerned as the number of people living on the

streets and in encampments continues to grow, even

as government spends more on programs to address

homelessness.” 42 These localities need the breathing

room to juggle the dynamic complexities and

immediate social harms that are often presented with

homelessness.

https://harrell.seattle.gov/2023/12/01/mayor-harrell-signs-cityof-seattles-2024-budget-into-law/.

40

City of Los Angeles, Budget Summary FY 2023-2024, 4

(2023),

https://cao.lacity.org/budget23-24/2023-24Budget_Summary.pdf.

41

City of San Francisco, Dep’t of Homelessness & Supportive

Housing, HSH Budget (FY 2023-24),

https://hsh.sfgov.org/about/budget/, (last visited Feb. 26, 2024).

42

Wash. State Auditor, Contracted Homeless Services:

Improving how local governments prioritize services and manage

provider performance, No. 103130, 3 (Nov. 15, 2022),

https://sao.wa.gov/sites/default/files/audit_reports/PA_Contracte

d_Homeless_Services_ar-1031310.pdf.

34

The current crisis is also a contemporary iteration

of historical cycles. “Homelessness in the United

States has surged and receded throughout our nation’s

history.” 43 There is no doubt that our country is

confronting a complicated homelessness crisis that is

exacerbated by a national shortage of available

affordable housing. Although of course not

guaranteed, history indicates that the affordable

housing deficit will likely stabilize in time. Indeed,

this issue is in the spotlight of townhalls and state

legislatures throughout the nation. Moreover, the

American economy continues to outperform

expectations, and unemployment has been at record

lows. 44 These positive indicators signal some hope that

the supply of affordable housing in this country will

catch up to the demand.

Resolving

the

questions

presented

by

homelessness is hard work. Indeed, “[t]he very

complexity of the problems suggests that there will be

more than one constitutionally permissible method of

solving them.” See Jefferson v. Hackney, 406 U.S. 535,

546 (1972). Local governments need flexibility and

should not be placed in the “constitutional

straitjacket” imposed by the Ninth Circuit’s rule. Id.

There will be times when even the localities that

are the most committed to humanitarian responses

will need to make decisions that not everyone will be

happy about. Sometimes this will involve telling

ALL IN, supra n. 8, at 15.

Samantha Delouya, 2022 had the lowest total unemployment

rate ever, CNN (Dec. 20, 2023),

https://www.cnn.com/2023/12/20/economy/lowestunemployment-rate-year-2022/.

43

44

35

people that they may not camp in the park, the

planting strip next to a road, or the sidewalk.

Sometimes local authorities will be able to provide an

alternative place to go. Other times they will not. In

either case, the Eighth Amendment does not have

anything to say about it.

CONCLUSION

For the foregoing reasons, this Court should

reverse the decision below.

Respectfully submitted,

ANN DAVISON

Seattle City Attorney

BRANDON RAIN

Counsel of Record

Seattle City Attorney’s Office

701 Fifth Avenue, Suite 2050

Seattle, WA 98104

(206) 684-8200

brandon.rain@seattle.gov

Counsel for Amici Curiae