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

Supreme Court briefMar 4, 2024

Ask Donna

What actually matters in this document.

Text

No. 23-175

In the Supreme Court of the United States

CITY OF GRANTS PASS, OREGON,

Petitioner,

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 THE PACIFIC RESEARCH

INSTITUTE AS AMICUS CURIAE

SUPPORTING PETITIONER

ERIK S. JAFFE

Counsel of Record

SCHAERR|JAFFE LLP

1717 K Street, NW

Suite 900

Washington, DC 20006

(202) 787-1060

ejaffe@schaerr-jaffe.com

Counsel for Amicus Curiae

MARCH 4, 2024

TABLE OF CONTENTS

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

IDENTITY AND INTEREST OF

AMICUS CURIAE ............................................... 1

SUMMARY .................................................................. 2

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

The History and Tradition Surrounding

the Eighth Amendment Demonstrates

that Restricting the Use of Public Spaces

by Vagrants or the Homeless Was Not

Considered

Cruel

and

Unusual

Punishment. .................................................... 5

II.

Homelessness Is a Complex Problem that

Cannot Be Addressed by Arbitrary

Judicial Rules Purporting to Define

Involuntary and Unavoidable Choices......... 13

CONCLUSION .......................................................... 19

TABLE OF AUTHORITIES

Cases

Pages(s)

City of Chicago v. Morales,

527 U.S. 41 (1999) ...................................... 2, 6, 7, 12

Coalition on Homelessness v. City &

County of San Francisco,

90 F.4th 975 (9th Cir. 2024) .......................... 2, 6, 11

Martin v. Boise,

920 F.3d 584 (9th Cir. 2019) .................................. 14

New York State Rifle & Pistol Ass’n, Inc.

v. Bruen, 142 S. Ct. 2111 (2022) ............................ 12

Constitutional Provisions

Del. Declaration of Rights § 16 (1776) ...................... 11

Mass. Const. pt. I, art. XXVI (1780) ......................... 11

Md. Declaration of Rights art. XXII (1776) .............. 11

N.C. Declaration of Rights art. X (1776) .................. 11

N.H. Bill of Rights art. XXXIII (1783) ...................... 11

Va. Declaration of Rights § 9 (1776) ......................... 11

Statutes

ARK. REV. STAT. ch. 154 (1837) .................................. 12

Acts and Laws of the State of Connecticut,

in America (Hartford, Conn.,

Elisha Babcock 1786) ............................................... 7

Laws of the State of Delaware: 1700-1797 .................. 7

GA. PENAL CODE ch. 232 § 22 (1850) ......................... 12

iii

Robert & George Watkins,

A Digest of the Laws of the State of Georgia,

(Philadelphia, Pa., R. Aitken 1800) ......................... 8

IOWA CODE, tit. XXV, ch. 208 § 3319 (1851) ............. 12

MAINE REV. STAT. tit. 11, ch. 128 §§ 18-19

(1883) ...................................................................... 12

The Laws of Maryland Since 1763

(Annapolis, Md., Frederick Green 1787) ................. 8

Acts and Laws, of His Majesty’s Province

of the Massachusetts-Bay in New

England, (Boston, S. Kneeland 1759) ..................... 8

MICH. COMP. LAWS ch. 155 § 1 (1897) ........................ 12

An Act for the Punishment

of Idle and Disorderly Persons,

MICH. COMP. LAWS § 1 (1833) ................................. 12

NEB. REV. STAT. Part 3, ch. 30 § 355 (1866) .............. 12

5 Laws of New Hampshire, 1784-1792,

(Henry Harrison Metcalf ed.,

Rumford Press 1916) ............................................... 8

William Patterson,

The Laws of the State of New Jersey

(New Brunswick, N.J., Abraham Blauvelt

1800) ......................................................................... 9

Laws of the State of New-York, 1777-1789,

(Samuel Jones & Richard Varick eds.,

Hugh Gaine 1789) .................................................... 9

N.C. REV. STAT. ch. 34 § 43 (1855) ............................ 12

James Iredell,

Laws of North Carolina

(Edenton, N.C., Hodge & Wills 1791) ..................... 9

A Supplement to the Several Acts

of the Assembly of this Province for

the Relief of the Poor, A Compilation

of the Poor Laws of the State of

Pennsylvania, 1700–1788,

(Philadelphia, Pa., Zachariah

Poulson, Jr. 1788) .................................................... 9

The Public Laws of the State of Rhode-Island

and Providence Plantations, 1775–1865

(Providence, R.I., Miller & Hutchens 1822) .......... 10

S.C. CODE ANN. ch. XXIII § 384 (1893) ..................... 12

John Faucheraud Grimke,

The Public Laws of the State of SouthCarolina, 1790, (Philadelphia, Pa.,

R. Aiken & Son 1790)............................................. 10

An Act for the Restraint of Idle and Disorderly

Persons, TENN. REV. STAT. ch. XXII § 2

(1809) ...................................................................... 12

Statutes of the State of Vermont

(Bennington, Vt., Anthony Haswell

1791) ....................................................................... 10

A Collection of All Such Acts of

the General Assembly of Virginia,

1794, (Richmond, Va., Samuel

Pleasants, Jun. & Harry Pace 1803) ..................... 10

Other Authorities

Steven Greenhut & Wayne Winegarden,

Giving Housing Supply a Boost:

How to Improve Affordability and

Reduce Homelessness (2024) .................................. 14

C.J. Ribton-Truner,

A History of Vagrants and Vagrancy and

Beggars and Begging (1887) .................................... 6

Kenneth Schrupp,

Focus Homeless Aid on Transformation,

then Affordability, Pac. Rsch. Inst.

(June 16, 2023) ....................................................... 15

Jason M. Ward et al., Rand Corp.,

Recent Trends Among the Unsheltered

in Three Los Angeles Neighborhoods:

An Interim Report on the Los Angeles

Longitudinal Enumeration and

Demographic Survey (LA LEADS)

Project (2022).......................................................... 15

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

The Pacific Research Institute (PRI) is a nonprofit

nonpartisan 501(c)(3) organization that champions

freedom, opportunity, and personal responsibility by

advancing free market policy solutions to the issues

that impact the daily lives of all Americans. It shows

how free interaction among consumers, businesses,

and voluntary associations is more effective than

government action at providing the important results

we all seek—good schools, quality health care, a clean

environment, and economic growth. Founded in 1979

and with offices in Pasadena and Sacramento, PRI is

supported by private contributions. Its activities

include

publications,

public

events,

media

commentary, invited legislative testimony, and

community outreach.

PRI is interested in this case both as a matter of

constitutional principle and because it is concerned

about the harms that would flow to the public, to the

homeless themselves, and to California towns and

businesses if the Ninth Circuit’s misguided effort to

constitutionalize complex social and economic

problems is allowed to stand. The problem of

homelessness and balancing the rights and

responsibilities of all citizens and their governments

are best dealt with by the political branches and

private institutions. Federal judges in general, and the

1 No counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus, its members, and

counsel, made a monetary contribution to the brief’s preparation

or submission.

Ninth Circuit majority in particular, are neither

authorized nor competent to make policy in this area.

SUMMARY

Amicus agrees with Petitioner, Pet. Br. 2-3, 12-13,

16-28, that the text, history, and traditions of the

Eighth Amendment provide no support for declaring

ordinary and quite mild criminal punishments to be

cruel and unusual. Amicus also agrees that discrete

unlawful actions may be punished, even when taken

under the pressures of a condition such as alcoholism

or circumstances such as homelessness. Id. at 4-5, 13.

Citizens and local governments have the right to

preserve public spaces for common use, not subject to

functional adverse possession by homeless persons

blocking common use by others. Id.

Amicus writes

supplemental points.

separately

raise

two

1. Even if the Court were to look beyond the

intrinsic nature of the punishments duly provided by

law, and consider the proportionality of such ordinary

and otherwise permissible punishments as applied to

homeless persons having few immediate or appealing

shelter alternatives in a particular jurisdiction, the

history of anti-vagrancy laws in the States rebuts any

suggestion that punishing such circumstance-driven

vagrancy is cruel and unusual.

As recounted recently by Judge Bumatay in

Coalition on Homelessness v. City and County of San

Francisco, 90 F.4th 975, 982-89 (9th Cir. 2024)

(Bumatay, J., dissenting), and earlier in a different

context by Justice Thomas in City of Chicago v.

Morales, 527 U.S. 41, 102-106 (1999) (THOMAS, J.,

dissenting), anti-vagrancy laws come with a long

historical pedigree spanning periods before, during,

and after the Adoption of the Bill of Rights and the

Fourteenth Amendment. Amicus elaborates on and

supplements those analyses with a survey of the many

vagrancy laws that existed during the historically

relevant time periods.

The long history of prohibiting and punishing

vagrancy (which encompasses unlawful camping or

sleeping on the streets by the homeless), is a definitive

rebuttal of any claim that such punishment is

constitutionally unusual and strong evidence that it

was not viewed as cruel within the original public

understanding of that term. The constitutional text,

history, and tradition of anti-vagrancy laws coexisting with prohibitions on cruel and unusual

punishment are more than sufficient for this Court to

conclude that the Eight Amendment does not prohibit

the ordinary and relatively mild punishments for

vagrancy at issue in this case.

Furthermore, the fact that homeless vagrants of all

eras were often the unlucky victims of economic or

other circumstances likewise rebuts any notion that

the “involuntary” or “unavoidable” resort to sleeping

and camping in the streets and parks somehow

converts a generally permissible restriction into a

cruel and unusual punishment as applied. Rather,

responsibility for one’s actions, even if taken in the

face of adverse circumstances, remained the rule. And

the punishments and other burdens placed upon such

vagrants were often far more severe than the mild

penalties at issue here yet were not denounced as cruel

and unusual.

2. Amicus also writes to highlight the complex and

multi-faceted nature of the homelessness problem,

especially in California. The complexity extends to

issues surrounding the circumstantial pressures

facing the homeless, the difficult choices they must

face and make, and the policy-driven lines

surrounding individual responsibility and agency, the

consequences for those thought to have partially

limited agency, and the proper decisionmakers for

drawing such lines.

While there are no easy solutions to homelessness,

and multiple perspectives on how to balance the

competing rights and interests of different parts of

society regarding the use of public spaces, two things

seem apparent: First, using narrowly confined notions

of involuntary behavior or unavoidable choices as the

touchstone for deeming even the mildest punishment

to be disproportionately cruel and unusual is an overly

simplistic approach to a complex social problem.

Constitutionalizing such simplistic rules can only

hurt, rather than help, in finding solutions to the

problem. Second, whatever the difficulties of state and

local governments in addressing such complex

problems, inserting the unmoored policymaking of the

federal judiciary into the mix is not the answer, either

from a constitutional or a policy-making perspective.

The disconnect and internal inconsistency of the

Ninth Circuit’s approach to determining whether

sleeping or camping in public spaces is voluntary or

unavoidable highlight the general lack of judicial

competence to meddle in this complicated area

without clear and concrete guidance from the

constitutional text. To the extent judges have a role in

the issues raised by this case, it is the role delegated

to them by statute or via common-law doctrines such

as mens rea, necessity, insanity, and sentencing

considerations in individual criminal cases. Those are

the means of addressing true problems with genuinely

involuntary conduct or claims that violation of a

particular law at a particular time was justified by

supervening

circumstance.

instead

constitutionalize ever-malleable and subjective

notions of voluntariness or necessity via the Eighth

Amendment in lieu of those flexible and variable

common law concepts goes against the text and history

of that Amendment and ignores this Court’s

appropriate aversion to federal judicial policymaking.

ARGUMENT

The History and Tradition Surrounding the

Eighth Amendment Demonstrates that

Restricting the Use of Public Spaces by

Vagrants or the Homeless Was Not

Considered Cruel and Unusual Punishment.

Petitioner amply discusses the text and history of

the Eighth Amendment as it relates to the nature and

severity of punishments in general. Pet. Br. 2-3, 12-13,

16-28. Amicus further notes, however, that the claims

in this case go more to whether any punishment at all

is permissible for so-called “involuntary” sleeping or

camping in public spaces within a particular

jurisdiction. That issue might be better conceptualized

as a proportionality question: Is any and all

punishment disproportional for conduct one cannot

control? But see Pet. Br. 28 (proportionality claim not

raised by plaintiffs). Amicus thus writes to add that

regardless of how the question is framed, the history

of anti-vagrancy laws around the time of the Founding

and later demonstrate that prohibitions and

punishments for the vagrant behavior at issue in this

case, even where driven by force of circumstance, was

quite common, was often more severe, and would not

have been deemed cruel under the common

understanding of the Eighth Amendment and its

analogues.

As Judge Bumatay recently wrote in Coalition on

Homelessness, 90 F.4th at 987-88 (Bumatay, J.,

dissenting), the long history of anti-vagrancy laws in

England and the United States refutes any notion that

ordinary punishments for vagrancy, including the

behaviors at issue here, were cruel and unusual as

those terms were understood.

Even after the enactment of the English

Declaration of Rights prohibiting “cruell and

unusuall” punishments, anti-vagrancy laws enacted

by local governments were enforced by punishment.

See Coalition on Homelessness, 90 F.4th at 987-988

(Bumatay, J., dissenting) (citing C.J. Ribton-Truner, A

History of Vagrants and Vagrancy and Beggars and

Begging 173-203 (1887)). And restriction and

punishment of vagrancy were also fixtures of early

American law. Id. at 987 (Bumatay, J., dissenting)

(citing City of Chicago v. Morales, 527 U.S. 41, 103

(1999) (THOMAS, J., dissenting)).

A survey of state anti-vagrancy laws from around

the time of the Founding and the Fourteenth

Amendment confirm those conclusions. For example,

at the time the Eighth Amendment was enacted,

fourteen states were granted statehood. All except

Vermont had laws prohibiting vagrancy per the

collection of state laws closest to 1791 (ranging from

1759 to 1800). 2 These laws provided various

punishments

for

vagrancy,

including

fines,

imprisonment, forced labor, whipping, and sending

vagrants back to their last place of settlement. And

while some of those specific punishments would

undoubtedly be considered cruel by modern standards,

and would certainly be unusual today, they

nonetheless establish that there was no general

prohibition on punishment for vagrancy and no

limitation that would reach the far milder penalties

now common for unlawfully sleeping or camping in

many public spaces.

To aid the Court with the details, if necessary, the

early laws in the States are as follows:

Connecticut. Acts and Laws of the State of

Connecticut, in America 104 (Hartford, Conn.,

Elisha Babcock 1786) (vagrants sent back to their

last settlement; return vagrants whipped ten

stripes and then again sent back), available at

https://tinyurl.com/39kn3jm2.

Delaware. Laws of the State of Delaware: 17001797, at 134-138 (1797) (defining a vagrant as a

beggar who travels without a license, imposing

charges and taxes upon them, and imprisoning

2 These laws were accessed as scanned copies uploaded to

LLMC Digital (www.llmc.com) and via the Internet Archive

(https://archive.org/) where noted; see also City of Chicago v.

Morales, 527 U.S. at 103 n.2 (THOMAS, J., dissenting) (citing early

state laws punishing vagrancy reprinted in compilations by J.

Cushing).

vagrants who did not pay the charges and taxes),

https://tinyurl.com/2srwptak.

Georgia. Robert & George Watkins, A Digest of

the Laws of the State of Georgia, No. 391, 376-377

(Philadelphia, Pa., R. Aitken 1800) (vagrant who is

loitering and unable to provide security jailed until

either security is provided or court binds the

vagrant to one year of service with wages given to

the county; absent such service, vagrant subject to

no more than thirty-nine lashes at the whipping

pole),

available

https://digitalcommons.law.uga.edu/ga_code/11/.

Maryland. The Laws of Maryland Since 1763,

ch. XXIX, 35-36 (Annapolis, Md., Frederick Green

1787) (vagrants and idle persons without

employment shall be taken to the poor house and

kept for no more than three months of hard labor),

available at https://tinyurl.com/y5asecwz.

Massachusetts. Acts and Laws, of His Majesty’s

Province of the Massachusetts-Bay in New

England, chs. V & XIII, 20-21, 99 (Boston, S.

Kneeland 1759) (requiring that idle persons be

employed; penalties for unemployed loitering

including imprisonment, up to ten lashes, and hard

labor; requiring counties to maintain a house of

corrections for vagrants and idle persons),

available at https://tinyurl.com/5eu68esb.

New Hampshire. 5 Laws of New Hampshire,

1784-1792, at 690 (Henry Harrison Metcalf ed.,

Rumford Press 1916) (idle persons must be

committed to the poor house or to prison, with

punishments including hard labor, wearing fetters

or shackles during conferment, or whipping no

more than thirty-nine times), available at

https://tinyurl.com/2uaf734h.

New Jersey. William Patterson, The Laws of the

State of New Jersey, ch. XXXIII, 35-36 (New

Brunswick, N.J., Abraham Blauvelt 1800)

(vagrants to be apprehended and sent back to their

last place of settlement; returning vagrant subject

to no more than twenty bare-back lashes),

https://tinyurl.com/25krcx58.

New York. Laws of the State of New-York, 17771789, ch. LXV, 128-129 (Samuel Jones & Richard

Varick eds., Hugh Gaine 1789) (vagrants arrested

and required to post bail; failure to post bail

subjected vagrant to corporal punishment not

exceeding thirty-nine lashes in one day and then

confinement to house of labor for up to six months

of hard labor and then transfer back to their last

place of settlement; additional punishment and

labor for return vagrants).

North Carolina. James Iredell, Laws of North

Carolina, ch. XXXIII, 508-509 (Edenton, N.C.,

Hodge & Wills 1791) (vagrant subject to arrest and

demand for security; jail for up to ten days absent

such security, and escalating imprisonment,

charges for costs, forced labor, and up to thirty-nine

lashes).

Pennsylvania. A Supplement to the Several Acts

of the Assembly of this Province for the Relief of the

Poor, A Compilation of the Poor Laws of the State

Pennsylvania,

1700–1788,

13-21

(Philadelphia, Pa., Zachariah Poulson, Jr. 1788)

(providing additional punishments for vagrants,

including being removed to the place of their last

settlement and sending the vagrant to workhouses

to remain without bail for ten days), available at

https://tinyurl.com/37n996vc.

Rhode Island. The Public Laws of the State of

Rhode-Island and Providence Plantations, 1775–

1865, at 463-464 (Providence, R.I., Miller &

Hutchens 1822) (vagrants who fail to depart after

being so ordered committed to a work-house for a

period not to exceed one month), available at

https://tinyurl.com/2vecyytz.

South Carolina. John Faucheraud Grimke, The

Public Laws of the State of South-Carolina, 1790,

Nos. 1081 & 1491, 431-433 (Philadelphia, Pa., R.

Aiken & Son 1790) (vagrants and idle persons to be

kept in the poor house, detained and punished, sold

for labor for up to a year, or absent sale, subjected

to between ten and thirty-nine lashes), available at

https://tinyurl.com/ypuc8ww6.

Virginia. A Collection of All Such Acts of the

General Assembly of Virginia, 1794, ch. CII, 180186 (Richmond, Va., Samuel Pleasants, Jun. &

Harry Pace 1803) (vagrant, defined as one who is

loitering without means for employment, would be

employed for labor not exceeding three months),

available at https://tinyurl.com/yxcm7tmz.

Vermont. At the time Vermont became a state,

it did not prohibit vagrancy. Statutes of the State of

Vermont (Bennington, Vt., Anthony Haswell 1791),

available at https://tinyurl.com/37hnrfca.

As the above descriptions show, many early States

subjected vagrants to far more onerous punishments

than the limited penalties imposed by Petitioner in

this case for a limited class of conduct that is deemed

to misuse public spaces. And many of those States did

so in the face of their own prohibitions on cruel and

unusual punishment. See Coalition on Homelessness,

90 F.4th at 988 (Bumatay, J., dissenting) (“antivagrancy legislation, and the associated punishments,

have coexisted with English, colonial, State, and

federal prohibitions on ‘cruel and unusual

punishments’ for centuries.”); id. at 985 (at the time of

the Founding, “many States had adopted bans on

‘cruel and unusual’ or ‘cruel or unusual’ punishments

in their constitutions.”) (citing Va. Declaration of

Rights § 9 (1776); Del. Declaration of Rights § 16

(1776); Md. Declaration of Rights art. XXII (1776);

N.C. Declaration of Rights art. X (1776); Mass. Const.

pt. I, art. XXVI (1780); N.H. Bill of Rights art. XXXIII

(1783)).

Even many decades later, around the time of the

adoption of the Fourteenth Amendment and

incorporation of the Eight Amendment as against the

States, States continued to punish vagrancy at

varying levels of severity without any suggestion that

such punishments were considered cruel or unusual as

applied to persons who were vagrant by force of

circumstance. Coalition on Homelessness, 90 F.4th at

988 (Bumatay, J., dissenting) (laws “criminalizing

vagrancy * * * lasted well through the ratification of

the Fourteenth Amendment.”) (citing Morales, 527

U.S. at 103-104 & n.3 (THOMAS, J., dissenting)). 3

After the passing of the 14th Amendment, there

was no significant shift in how vagrants were treated.

Vagrants were still fined, imprisoned, and forced to

labor. Some States, however, did eliminate whippings

as punishment, opting instead for fines or

imprisonment. See, e.g., S.C. CODE ANN. ch. XXIII §

384 (1893) (Vagrancy); MICH. COMP. LAWS ch. 155 § 1

(1897) (Disorderly Persons). 4

Under a proper constitutional analysis focusing on

the text of the Constitution and the history and

tradition that gave meaning to the words at the time

they were adopted, New York State Rifle & Pistol

Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2129-2130 (2022),

the Ninth Circuit in this case got it wrong. The history

and tradition of punishing vagrancy, regardless of the

3 Among the many later laws defining and punishing vagrants

are: Vagrants, NEB. REV. STAT. Part 3, ch. 30 § 355 (1866)

(defining vagrants as “idle” people without “visible means of

support” who “wander abroad” or “occupy public places for the

purpose of begging and receiving alms.”); Crimes and

Punishments, N.C. REV. STAT. ch. 34 § 43 (1855) (punishing

vagrancy); An Act for the Restraint of Idle and Disorderly

Persons, TENN. REV. STAT. ch. XXII § 2 (1809) (same); Vagrants,

ARK. REV. STAT. ch. 154 (1837) (same); Tramps, MAINE REV. STAT.

tit. 11, ch. 128 §§ 18-19 (1883) (same); Vagrants, IOWA CODE, tit.

XXV, ch. 208 § 3319 (1851) (same); An Act for the Punishment of

Idle and Disorderly Persons, MICH. COMP. LAWS § 1 (1833); GA.

PENAL CODE ch. 232 § 22 (1850) (same).

4 That whippings came to be seen as cruel, and grew to be

unusual forms of punishment, is a good illustration of a potential

Eighth Amendment analysis of the means of punishment itself,

rather than of the permissibility vel non of more ordinary

punishment.

unfortunate circumstances that caused it, was not

considered improper, disproportional, or otherwise

cruel and unusual. Rather, it was and remains a

common means of addressing a common problem. As

such, it did not and does not violate the Eighth

Amendment.

II. Homelessness Is a Complex Problem that

Cannot Be Addressed by Arbitrary Judicial

Rules Purporting to Define Involuntary and

Unavoidable Choices.

The causes and consequences of homelessness, and

the potential solutions, are complicated, often

unpredictable, and require the balancing of interests

as between the rights of the majority of citizens of

States and localities and the rights of individuals who

find themselves in difficult circumstances. But to try

to reduce such complexities to simplistic dichotomies

between voluntary and involuntary conduct or

avoidable and unavoidable choices neither helps

address the problems of homelessness nor is within

the competence of the federal judiciary. Rather, the

problems are best grappled with by the political

branches or, where required to address individual

issues of volition and necessity, by common-law

doctrines more suited to such matters individually.

Regarding the complexity of the problem of

homelessness in Amicus’s home state of California,

many PRI scholars have highlighted the difficulties

the State faces and the difficulties with the everevolving attempts at legislative solutions. For

example, part of the problem is geographic and

political, with high housing costs contributing to

people being unable to afford housing. Steven

Greenhut & Wayne Winegarden, Giving Housing

Supply a Boost: How to Improve Affordability and

Reduce Homelessness 10 (2024). (homelessness is “a

multi-pronged problem driven to a large degree by

addiction and mental-health issues. But regions with

higher-cost housing have much higher levels of

homelessness because a lack of cheaper housing leaves

people on the economic margins with nowhere to go.

Homelessness is a social problem that’s compounded—

often dramatically so—by exorbitant housing prices.”).

Likewise adding to the problem are decisions like

Martin v. Boise, 920 F.3d 584 (9th Cir. 2019), which

PRI scholars noted “[i]n practice * * * is creating a

right to sleep on the street * * *. The result creates an

effective subsidy for being homeless. Homeless

individuals suffering with mental health issues or

substance abuse problems are now able to subsist over

the long-term. While subsisting is possible, living on

the streets imposes unacceptably high costs on both

the homeless and the broader community.” Steven

Greenhut & Wayne Winegarden, Giving Housing

Supply a Boost 40 (2024).

A resistance to available housing also compounds

efforts to determine whether remaining on the street

is voluntary or involuntary, or otherwise avoidable.

Many homeless say they would reject offers of certain

types of housing they find distasteful, or lacking in

privacy or safety, or that involve sobriety or other

restrictions. 5 Distinguishing on a daily basis between

the housing resistant and the “involuntarily”

homeless, under the sword of a federal injunction, is

complicated and difficult, to say the least.

Taking these complexities and trying to tease out

some subset of persons deemed “involuntarily”

homeless or “unavoidably” required to sleep or camp

in a particular public space borders on the impossible.

Genuinely involuntary action–such as when one is

bound and gagged, drugged unconscious, or having a

seizure–is one thing, but the eventual constrained

outcome resulting from multiple choices, often

between undesirable options in all events, is not

involuntary in the same way.

Given the many variables leading up to a decision

to sleep on the streets in a particular jurisdiction,

determining what is and is not “voluntary” behavior

and whether the lack of alternative shelter could or

could not be avoided is far from a one-size-fits-all

problem. The many and varied choices that precede

and are involved in any given moment of lacking

shelter belies an ordinary or sensible reading of

5 See, e.g., Jason M. Ward et al., Rand Corp., Recent Trends

Among the Unsheltered in Three Los Angeles Neighborhoods: An

Interim Report on the Los Angeles Longitudinal Enumeration and

Demographic Survey (LA LEADS) Project 2, 8-9 (2022),

https://www.rand.org/pubs/research_reports/RRA1890-1.html;

Kenneth Schrupp, Focus Homeless Aid on Transformation, then

Affordability, Pac. Rsch. Inst. (June 16, 2023) (“Apart from its

cost to taxpayers, free housing has little impact on homeless

individuals’ lifestyles. Many homeless people outright refuse

offers of free housing under the Los Angeles mayor’s new

programs, despite growing availability. So-called ‘housing

resistant’ individuals do not want to comply with any rules or

limitations on their behavior.”), https://tinyurl.com/4bzyrndu.

involuntary behavior. Choices between indoor shelter

or privacy, freedom to use drugs, freedom to have a

pet, and other countervailing factors may make sense

from the perspective of the homeless person preferring

to camp rather than seek restrictive shelter, but they

nonetheless remain choices, not involuntary behavior.

Drawing lines between voluntary but difficult

choices that may result in punishment, and

involuntary or unavoidable choices that may be

excused, is a job for the political branches or for

common law judges hearing individual cases, not for

federal judges imposing their own untethered views of

fairness and equity via injunction.

Various aspects of the Ninth Circuit’s evolving

jurisprudence in this area illustrate that point. For

example, limiting an inquiry to the housing or

camping options available within a particular

jurisdiction makes no sense and can in fact incentivize

the problem it purports to address. A homeless person

within the confines of Town X might not have a shelter

option within that town, but might have a variety of

options elsewhere. A camping ground outside of town,

perhaps, or a different jurisdiction with a larger

supply of shelter and housing. Or even a different

State entirely if there is a lower cost of living, family,

or medical treatment available elsewhere. 6

6 The single-jurisdiction emphasis of the Ninth Circuit also

creates the bizarre incentive for homeless persons who may

understandably dislike the housing options available to them to

instead gravitate toward jurisdictions that have more desirable

outdoor space but otherwise limited housing options. Santa

Barbara is one example, and others surely abound. The Ninth

To confine the voluntariness inquiry to a single

moment in a single narrow jurisdiction simply ignores

the many choices that led any individual to that place

and time, and the alternative choices available beyond

the artificial constraints imposed by the Ninth

Circuit’s approach. Neither generalized concepts of

voluntariness nor Eighth Amendment concepts of

cruelty offer any guidance as to where to draw the line

on what choices are truly available, how far back or

forward to go, and hence what degree of individual

responsibility can be required for the various past,

present, and future choices faced by a homeless

person.

Similarly, evaluating the “suitability” of available

shelter spaces based on whether they allow various

types of discretionary behavior or provide

accommodations suited to the liking of federal judges

does not align with either voluntariness or with

notions of cruel and unusual punishment. One would

think that any shelter option equal to or better than

sleeping on the street should count, though making

such normative judgments is inevitably subjective.

The same problem arises with the exclusion of

religiously affiliated shelter space merely because

such spaces “might” raise an Establishment Clause

free exercise problem. Pet. Br. 8-9, 46. Generally one

does not strike down an otherwise valid law based on

mere speculation that a person might have religious

Circuit’s emphasis on housing choices within a jurisdiction thus

not only ignores the predicate choice to enter or remain in a

jurisdiction but incentivizes the choice of such jurisdiction for

those who might not otherwise be deemed “involuntarily”

homelessness were they to have stayed or gone elsewhere.

objections to an available alternative to violating the

law or that the state is actively establishing the

religious views of a charitable organization. To

automatically assume that because there might be

valid religious objections to or perceived endorsement

of particular housing such objections must be assumed

to be universal is error on multiple fronts. And it

requires federal courts to micro-manage the degree of

religious activity that would trigger exclusion. Is it a

voluntary prayer before meals? A religiously driven

separation of the sexes? Something more? Or less?

These questions are not asked for this Court to

answer here, but to highlight the intrinsic problems

with the Ninth Circuit’s approach, the lack of Eighth

Amendment text, history, or tradition that would

facilitate making such choices as the touchstone of

“cruelty” or “disproportionality, and hence the need to

return such standardless balancing back to the

decisionmakers best suited for such political or

common-law activities.

Responding to incentives—even harsh ones—is

still a voluntary act and cannot be treated as the same

as a physical or mental illness that removes choice

entirely. Indeed, the law already deals with the latter

in a variety of ways, including insanity defenses, mens

rea generally, and other defenses dealing with

capacity. If the “involuntary” homeless indeed lacked

the capacity to take care of themselves, then

presumably they could be civilly committed as posing

a danger to themselves or others.

Furthermore, if the notion of economic duress was

the hook for denying the voluntariness or avoidability

of a given action, that would open up a host of related

problems and it would become cruel and unusual to

punish thieves, trespassers, or other criminals who

were driven to their crimes by such duress. In some

circumstances, the common law might indeed make

that call—a necessity defense might be available, for

example. But it does not do so in every instance, and

the difficult lines to be drawn or balances to be struck

are not the work of broad constitutional provisions.

Rather, they are best addressed by legislatures

balancing the rights and interests of all citizens, and

by courts and juries applying longstanding commonlaw or statutory rules to individual cases where such

defenses are raised.

CONCLUSION

The Eighth Amendment does not prohibit States

and localities from restricting camping on public

streets and lands and imposing minor punishments for

violations of those restriction. To the extent

enforcement might seem unfair in individual

circumstances that involve a genuine lack of volition

or control over one’s behavior there are common law

doctrines to address those circumstances and to find

other means of protecting the public from those who

cannot stop themselves from violating the law. But the

Eighth Amendment is not an open invitation for

federal judges to impose their own policy preferences

about the balance between circumstance and choice,

individual rights versus the rights or all others to use

public space, or the nature and scope of government’s

obligation to house the poor. Complex problems like

homelessness require political balancing and

solutions, not constitutionalized edicts divorced from

constitutional text, history, and tradition.

Respectfully submitted,