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 19, 2024

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No. 23-175

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CITY OF GRANTS PASS, OREGON,

Petitioner,

GLORIA JOHNSON AND JOHN LOGAN,

ON BEHALF OF THEMSELVES AND

ALL OTHERS SIMILARLY SITUATED,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------AMICUS CURIAE BRIEF OF OREGON QUAKERS:

THE SOUTH MOUNTAIN FRIENDS MEETING AND

THE MULTNOMAH MONTHLY MEETING; DANIEL

T. SATTERBERG, KING COUNTY PROSECUTING

ATTORNEY (RETIRED); RICHARD HARRUFF, M.D.,

Ph.D., FORMER CHIEF MEDICAL EXAMINER

OF THE SEATTLE/KING COUNTY MEDICAL

EXAMINER’S OFFICE; THE SEATTLE/KING

COUNTY COALITION ON HOMELESSNESS;

AND THE WOMEN’S HOUSING, EQUALITY AND

ENHANCEMENT LEAGUE (WHEEL),

IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------JAMES E. LOBSENZ

Counsel of Record

ISAAC PREVOST

CARNEY BADLEY SPELLMAN, P.S.

701 Fifth Avenue, Suite 3600

Seattle, Washington 98104

(206) 622-8020

lobsenz@carneylaw.com

Counsel for Amici Curiae

March 19, 2024

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

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

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

THE CHALLENGED ORDINANCE ...................

ARGUMENT ........................................................

A law which increases the risk of death by

hypothermia by rendering a person unable

to protect himself transgresses the substantive limits of the Eighth Amendment..........

a. Unhoused people face significant risk

of death due to hypothermia ...............

b. Deliberate indifference: The wanton

and unnecessary infliction of both

pain and the risk of death ................... 13

This Court has previously recognized

that denying a person protection

against low temperatures can constitute cruel and unusual punishment ..... 15

Constant exposure to the elements indirectly leads to significantly shorter lives .... 17

Exposure to extreme cold and sleep deprivation are forms of torture ........................ 20

Banishment is cruel and unusual punishment ........................................................... 30

CONCLUSION..................................................... 34

TABLE OF AUTHORITIES

Page

CASES:

Baze v. Rees,

553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420

(2008) ................................................................. 20, 21

Corselli v. Coughlin,

842 F.2d 23 (2d Cir. 1988) .......................................16

Del Raine v. Williford,

32 F.3d 1024 (7th Cir. 1994) ....................................24

Deshaney v. Winnebago Cty. Dept. of

Social Services,

489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249

(1989) ..................................................................... 3, 4

Dixon v. Godinez,

114 F.3d 640 (7th Cir. 1997) .............................. 18, 19

Edwards v. California,

314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119

(1941) .......................................................................33

Estelle v. Gamble,

429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251

(1976) ....................................................... 4, 12, 20, 34

Harper v. Showers,

174 F.3d 716 (5th Cir. 1999) ....................................29

Helling v. McKinney,

509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22

(1993) ............................................... 3, 4, 8, 13, 16, 34

Henderson v. DeRobertis,

940 F.2d 1055 (7th Cir. 1991) ..................................16

iii

TABLE OF AUTHORITIES – Continued

Page

Hope v. Pelzer,

536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666

(2002) .......................................................................25

Hudson v. McMillan,

503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156

(1992) .......................................................................12

Hutto v. Finney,

437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522

(1978) .......................................................................13

Johnson v. City of Grants Pass,

72 F.4th 868 (9th Cir. 2023).... 4, 5, 7, 19, 20, 26, 33, 34

Kungys v. United States,

485 U.S. 759, 791, 108 S.Ct. 1537, 99 L.Ed.2d

839 (1988) ................................................................31

Mammana v. Federal Bureau of Prisons,

934 F.3d 368 (3d Cir. 2019) .....................................29

Maxwell v. Mason,

668 F.2d 361 (8th Cir. 1981) ....................................16

McCray v. Burrell,

516 F.2d 357 (4th Cir. 1975) ....................................16

Rhodes v. Chapman,

452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59

(1981) ................................................................... 8, 14

Rico v. Ducart,

980 F.3d 1292 (9th Cir. 2020) ....................................4

Trop v. Dulles,

356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630

(1958) ....................................................... 5, 25, 31, 32

TABLE OF AUTHORITIES – Continued

Page

Walker v. Schult,

717 F.3d 119 (2d Cir. 2013) .....................................30

Weems v. United States,

217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793

(1910) ........................................................... 20, 22, 23

Whitley v. Albers,

475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251

(1986) ................................................................. 14, 15

Wilkerson v. Utah,

99 U.S. 130, 25 L.Ed.345 (1878) ..............................20

Williams v. Illinois,

399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586

(1970) .......................................................................33

Wilson v. Seiter,

501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271

(1991) ................................................... 4, 8, 14, 15, 34

Wright v. McMann,

387 F.2d 519 (2d Cir. 1967) ......................... 21, 22, 23

STATUTES:

GPMC §5.61.010 ............................................... 6, 17, 22

GPMC §5.61.030 ...........................................................6

OTHER AUTHORITY:

American Heritage Dictionary of the English

Language (4th ed. 2000) ...........................................6

TABLE OF AUTHORITIES – Continued

Page

Ashland News, Medford man’s body found on

Ashland trail, Autopsy says he died of hypothermia” (March 1, 2024), https://ashland.

news/medford-mans-body-found-on-ashlandtrail/ .........................................................................14

Biem, J., et al. (2003), Out of the Cold: Management of hypothermia and frostbite, Canadian

Medical Association Journal ..................................18

Bishir, M., et al., Sleep Deprivation and Neurological Disorders, Biomedical Research International, Vol. 2020, Article 5764017, https://www.

ncbi.nlm.nih.gov/pmc/articles/PMC7755475/.........27

Byard, R.W. & Bright, F.M. “Lethal hypothermia,” 14 Forensic Science, Medicine & Pathology 421 (2018) ...........................................................9

Corning, M., Sleep Disturbance in the Homeless

Population: The Relationship between Homelessness, Sleep and Health, https://opencomommons.

uconn.edu/srhonors_theses .....................................29

Debra Blake Obituary, Stephens Family Chapel,

https://www.legacy.com/us/obituaries/name/

debra-blake-obituary?id=5778477 ........................20

Dixon, T. King County Medical Office, Hypothermia Deaths Due to Environmental Exposure

in King County, Washington (2018), Community Health Services Division, Seattle/King

County Public Health ................................. 10, 11, 18

TABLE OF AUTHORITIES – Continued

Page

Fighting Soldier Fatigue, WRAIR’S INVESTIGATOR’S DISPATCH, https://ww2w.wrair.ar.mil/

sites/default/files/2019-06/Behavioral_Health_

and_Sleep.pdf ..........................................................28

Homelessness & Health: What’s the Connection?,

National Health Care for the Homeless Council

(2019), https://nchc.org/wp-content/uploads/201/08/

homelessness-and-health.pdf ...................................19

Iacopino, V. & Xenakis, Neglect of Medical Evidence of Torture in Guantanamo Bay: A Case

Series, 8 PLOS MED. (April 2011) .........................28

Katano, et al., Relationship Between Sleep Duration and Clustering of Metabolic Syndrome

Diagnostic Components, 4 DIABETES, METABOLIC SYNDROME & OBESITY: TARGETS & THERAPY

119 (2011) ................................................................28

KPIC4, Kim died of exposure, hypothermia (Dec.

7, 2006), https://kpic.com/news/local/kim-diedof-exposure-hypothermia-11-13-2015 ....................14

KTVL10, Some say gold beach hypothermia death

preventable (March 2, 2023), https://ktvl.com/

newsletter-daily/some-say-gold-beach-hypothermiadeath-preventable-curry-county-tina-kotekhomelessness-emergency-order ............................14

KUOW, “Homeless people in Seattle endure

brutal winter cold, ‘one night at a time’,”

(Jan. 12, 2024), https://www.kuow.org/stories/

homeless-people-in-seattle-endure-brutal-wintercold ...........................................................................11

vii

TABLE OF AUTHORITIES – Continued

Page

Lane, K., et al., Burden and Risk Factors for

Cold Related Illness and Death in New York

City, International Journal Environmental

Research & Public Health (2018) ...........................10

Meyer, B., et al., Life & Death at the Margins of

Society; The Mortality of the U.S. Homeless

Population, Working Paper, National Bureau

of Economic Research (November 2023) ................18

O’Connell, J., “Premature Mortality in Homeless

Populations: A Review of the Literature, National Health Care for the Homeless Council”

National Health Care for the Homeless Council

(2005), https://santabarbarastreetmedicine.

org/wp-content/uploads/2011/04/PrematureMortalityFinal.pdf...................................................18

Oregon Public Broadcasting, Portland ice storm

drew unprecedented need from unhoused

people (Jan. 17, 2024), https://www.opb.org/

article/2024/01/17/portland-ice-storm-drewunprecedented-need-from unhoused-people/ ........11

Scott, R., et al., Without shelter, people die: disproportionate mortality among King County’s

homeless population, 2009-2019, Journal of

Social Distress and Homelessness, 2019.... 2, 10, 17, 18

Sharuk, D., No Sleep for the Wicked: A Study of

Sleep Deprivation as a Form of Torture, 81

MARYLAND LAW REVIEW 694 (2022) ................... 27, 28

viii

TABLE OF AUTHORITIES – Continued

Page

Simon, H., Towns Without Pity: A Constitutional

and Historical Analysis of Official Efforts to

Drive Homeless Persons from American Cities,

66 TULANE L. REVIEW 631 (1992) ............................33

Sturgis, R. & Donovan, N.J. (2010), Winter homeless services: Bringing our neighbors in from

the cold, https://www.nationalhomeless.org/

publications/winter_weather/ .................................18

The Associated Press, “Icey winter blast gripping

US blamed for deaths from coast to coast,”

(Jan. 18, 2024), https://apnews.com/article/uswinter-weather-snow-freezing-low-temperatures42af2b394779d51b61a7330e9046419f ....................11

The Guardian, At least 14 unhoused people

froze to death in LA last year, records reveal

(Oct. 4, 2022), https://www.theguardian.com/

us-news/2022/oct/04/hypothermia-deaths-ofunhoused-in-los-angeles-rise-sharply .....................12

The Guardian, “ ‘Homelessness is lethal’: US

deaths among those without housing are surging (Feb. 7, 2022), https://www.theguardian.com/

us-news/2022/feb/07/homelessness-is-lethaldeaths-have-risen-dramatically.............................10

The Oregonian, “Hypothermic man rescued from

Siskiyou Mountains cliff after woman spots skid

marks,” (May 18, 2019), https://www.oregonlive.

com/pacific-northwest-news/2019/05/happycamp-woman-spots-skid-marks-hypothermicman-rescued-from-siskiyou-mountains-cliff.html .......14

TABLE OF AUTHORITIES – Continued

Page

The Seattle Times, “At least 5 people died from

hypothermia during Seattle cold snap,” (Jan.

18, 2024), https://www.seattletimes.com/

seattle-news/law-justice/at-least-5-people-diedfrom-hypothermia-during-seattle-cold-snap/..........11

The Texas Tribune, At least six people experiencing homelessness died during the winter

storm. That number could rise (Feb. 22, 2021),

https://www.texastribune.org/2021/02/22/Texaswinter-storm-homeless-deaths/ ..............................12

Turk, E., “Hypothermia,” 6 Forensic Science,

Medicine & Pathology 106 (2010) .............................9

Winter Homeless Services: Bringing Our Neighbors in from the Cold, National Coalition for the

Homeless (2010), https://nationalhomeless.org/

wp-content/uploads/2014/02/Winter_weather_

report.pdf .................................................................10

Zhang, P., et al., “Cold Weather Conditions and

Risks of Hypothermia Among People Experiencing Homelessness: Implications for Prevention Strategies,” International Journal

Environmental Research & Public Health

(2019) .........................................................................9

Zlotnick, C., et al. (2013) Health Care for the

Homeless: What We Have Learned in the Past 30

Years and What’s Next, American Journal of

Public Health, https://www.researchgate.net/

publication/258034415 ............................................19

AMICI CURIAE SUBMIT THIS BRIEF IN

SUPPORT OF RESPONDENT JOHNSON

---------------------------------♦---------------------------------

INTEREST OF AMICI CURIAE1

The South Mountain Friends Meeting (“SMFM”),

a branch of the Religious Society of Friends, commonly

known as “Quakers,” is located in Ashland, Oregon.2

The Multnomah Friends Meeting (“MFM”) is located

in Portland, Oregon.3

Established in England in 1653, the Quaker faith

was brought to the United States by William Penn. The

duty to provide food, clothing, and shelter to the unsheltered and the hungry, taught by Jesus, is one

source of the central Quaker belief that there is that of

God in every person. Matthew 25:31-46. This case

raises the legal question of whether making it unlawful to cover oneself with a blanket when sleeping on

public property is cruel and unusual punishment forbidden by the Eighth Amendment. This is also a question of spiritual importance to all Quakers, and of

particular importance to SMFM members since some

This brief was not authored in whole or in part by counsel

for any party. No person or entity, other than the amici themselves, made a monetary contribution to the preparation or submission of this brief.

See https://www.ashlandquakers.org/our-meeting.”Our meeting supports, endorses, and/or participates in . . . Advocating for

local homeless people. https://www.ashlandquakers.org/what-wedo.

See https://multnomahfriends.org.

of them live in Grants Pass, Oregon, which is about 40

miles northwest of Ashland.

Daniel T. Satterberg, now retired, served four

terms as the elected King County Prosecuting Attorney in Seattle, Washington from 2007 to 2023. While in

office, he recognized that “Jail time is not the solution

to homelessness,” and promoted other solutions.4

Dr. Richard Harruff, now retired, served as the

Chief Medical Examiner of King County, Washington

for 23 years. He supervised and conducted autopsies

on hundreds of homeless individuals, promoted studies

examining the causes and risks of their deaths, and coauthored a report on the health risks that they face.5

The Women’s Housing, Equality and Enhancement League (“WHEEL”), founded in 1993, is a grassroots organization of homeless/formerly homeless

women to give voice and leadership to homeless

women and to develop and support shelters. In 2000,

WHEEL founded Women in Black, an organization

which holds silent vigils of remembrance for homeless

KIRO NewsRadio, February 13, 2020, https://mynorthwest.

com/1718616/dan-satterberg-homelessness-drug-addictionsolution/.

Scott, R., Marchand, M., Stover, B., Causey, K., Harruff, R.

& Hagopian, A, “Without shelter, people die: disproportionate

mortality among King County’s homeless population, 2009-2019,”

Journal of Social Distress and Homelessness, 2019.

women who have died outside or by violence in King

County.6

The Seattle/King County Coalition on Homelessness (“SKCCH”), is a coordinating force on budget and

policy decisions which directly affect the lives of people

who are homeless and their communities. SKCCH mobilizes the community to challenge systemic causes of

homelessness and advocate for housing justice, and

advances reasonable solutions and program models for

the protection and strengthening of the civil rights and

dignity of people who are homeless and poor. It also

works to support legislation that promotes housing,

human services, and the public good at the local, state,

and federal levels. For many decades, SKCCH was responsible for organizing the One Night Count in King

County, which was the largest community-led count of

unsheltered people in the United States.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

“[W]hen the State by the affirmative exercise of its

power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same

time fails to provide for his basic human needs – e.g.,

food, clothing, shelter, medical care, and reasonable

safety – it transgresses the substantive limits on state

action set by the Eighth Amendment.” Helling v.

McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22

(1993), quoting Deshaney v. Winnebago County Dept. of

See https://fallenleaves.org/history/; https://fallenleaves.org/

topics/dedications/.

Social Services, 489 U.S. 189, 199-200, 109 S.Ct. 998,

1005-1006, 103 L.Ed.2d 249 (1989). In this case, the

City of Grants Pass has done exactly that. By making

it illegal for unsheltered people to cover themselves

with a blanket while they sleep, the City has rendered

them unable to care for themselves. Cf. Estelle v. Gamble, 429 U.S. 97, 103-104, 97 S.Ct. 285, 50 L.Ed.2d 251

(1976) (recognizing “the common-law view that . . . the

public be required to care for the prisoner, who cannot

by reason of the deprivation of his liberty, care for himself ”).

The unsheltered do not contend that Grants Pass

must provide them with blankets or bedding. They do

contend, however, that Grants Pass cannot make it illegal for them to use their own blankets when they lie

down to sleep. Grants Pass deprives them of the ability

to care for their own “basic human needs” by denying

them the ability to care for themselves by insulating

their bodies from the cold. Helling, at 32.7 As this Court

has recognized, “warmth” is a basic human need. Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115

L.Ed.2d 271 (1991). When the weather is exceptionally

cold, unsheltered people cannot protect themselves

from the danger of being frozen to death. By depriving

them of any ability to provide such essential self-care,

the City “has transgresse[d] the substantive limits . . .

set by the Eighth Amendment.” Helling, at 32.

See Johnson v. City of Grants Pass, 72 F.4th 868, 917, n.2

(9th Cir. 2023) (joint statement of Judges Silver and Gould regarding denial of rehearing), citing Rico v. Ducart, 980 F.3d 1292,

1298 (9th Cir. 2020) (“Sleep is not a voluntary act but an ‘identifiable human need[ ].”).

Grants Pass has not and cannot provide any constitutionally permissible basis for forcing unsheltered

people to sleep without “protection from the elements

while sleeping within the City’s limits.” Johnson v. City

of Grants Pass, 72 F.4th 868, 875 (9th Cir. 2023). The

City’s real objective was to banish the homeless from

Grants Pass. As one city councilor bluntly stated, “the

City’s goal should be ‘to make it uncomfortable enough

for [homeless persons] in our city so they will want to

move on down the road.’ ” Id. at 876. But over sixty

years ago this Court held that banishment was a cruel

and unusual punishment that Congress could not impose even for an extremely serious offense such as wartime desertion. Trop v. Dulles, 356 U.S. 86, 103, 78 S.Ct.

590, 2 L.Ed.2d 630 (1958). Grants Pass “police officers

bought homeless persons bus tickets out of town” but

the persons bussed out returned to Grants Pass. Johnson, 72 F.4th at 876. Once this effort to induce the

homeless to emigrate failed, the City stepped up its

enforcement of the anti-sleeping and anti-camping ordinances trying to literally freeze them out of Grants

Pass. Respondents brought suit challenging these

cruel laws for violating the Eighth Amendment.

---------------------------------♦---------------------------------

THE CHALLENGED ORDINANCE

The language of Grants Pass’ anti-camping ordinance cloaks the reality of its scope. By calling it an

“anti-camping” law, the City conjures up images of people clustered around a fire roasting marshmallows and

singing songs. Although the ordinance does cover

conventional outdoor recreational campers who spend

the night in tents and RVs, it also covers much more.

It defines the prohibited conduct as “occupy[ing] a

campsite” and it defines the term “campsite” as to include “any place” where one sleeps with any “bedding”

material. GPMC §5.61.010(B). Thus, the ordinance

makes it unlawful to sleep on the ground on any public

property while covered with a blanket.

Normally, the term “camper” is used to refer to a

person who temporarily lives in a structure of some

kind, and sometimes it refers to a motor vehicle that

contains a space designed for sleeping. See American

Heritage Dictionary of the English Language 269 (4th

ed. 2000).8 But Grants Pass’ “anti-camping” ordinance

specifically states that the term “campsite” includes

“any place where bedding, sleeping bag, or other material used for bedding purposes . . . is placed,” regardless of “whether or not such place incorporates the use

of any tent, lean-to, shack, or any other structure. . . .”

GPMC §5.61.010(B) (italics added). Thus, a person who

merely lies down on the ground on any public property

and covers himself with a blanket violates the ordinance because that constitutes the act of occupying a

place with “bedding.” GPMC §5.61.030. Even lying on

the ground after covering oneself with dead leaves is

prohibited if the leaves are being used “for bedding

purposes.”

“n. camper 1. One that camps, such as a person lodging

temporarily in a tent or cabin. 2a. A motor vehicle with space and

equipment, either in a rear compartment or in an attached trailer,

for sleeping and simple housekeeping.”

Recognizing that everyone has to sleep somewhere, Grants Pass tailored its general anti-camping

ordinance so that it only prohibited sleeping with

something to cover one’s body:

According to the City, “in direct response to

Martin v. Boise, the City amended [the anticamping ordinance] to make it clear that the

act of ‘sleeping’ was to be distinguished from

the prohibited conduct of ‘camping.’ ” The City

meant to “make it clear that those without

shelter could engage in the involuntary acts

of sleeping or resting in the City’s parks.”

Johnson, 72 F.4th 868, 878 (9th Cir. 2023). They just

were prohibited from keeping themselves warm by using a blanket, or anything else that constituted “bedding.”

---------------------------------♦---------------------------------

ARGUMENT

A law which increases the risk of death by

hypothermia by rendering a person unable

to protect himself transgresses the substantive limits of the Eighth Amendment.

When it is cold, sleeping outdoors without anything to cover one’s body is not only uncomfortable, it’s

often so uncomfortable that sleeping is impossible. And

if the temperature is cold enough, it can kill a person.

It is no secret that unsheltered people die from hypothermia and that exposure to extreme cold and rain

increases the risk of death and causes physical pain

and suffering.

When government officials are deliberately indifferent to the “unnecessary and wanton infliction of

pain contrary to contemporary standards of decency,”

the fact that such treatment is “not formally imposed

as a sentence for a crime,” does not alter the fact that

it constitutes cruel and unusual punishment. Helling

v. McKinney, 509 U.S. 25, 25, 32, 113 S.Ct. 2475, 125

L.Ed.2d 22 (1993). “[T]o make out an Eighth Amendment claim,” a litigant must establish both a subjective

and an objective component. Helling, 509 U.S. at 30.

With respect to the objective factor, a litigant must

show that the governmentally imposed deprivation is

“sufficiently serious.” Wilson, 501 U.S. at 298, citing

Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69

L.Ed.2d 59 (1981). For example, the Constitution “does

not mandate comfortable prisons,” id. at 349. But it

does forbid depriving a person of “the minimal civilized

measure of life’s necessities.” Id. at 347. A minimum

amount of warmth is one of life’s necessities. When a

person’s core body temperature falls below a certain

minimum, that person dies.

To meet the subjective requirement, “[i]f the pain

inflicted is not formally meted out as punishment by

[a] statute or [a] sentencing judge,” a litigant must also

show that the governmental actor imposing it acted

with “a sufficiently culpable state of mind” which this

Court has termed “deliberate indifference.” Wilson, at

297 & 300. The unsheltered residents of Grants Pass

can and have shown both.

a. Unhoused people face significant risks

of death due to hypothermia.

Hypothermia is a potentially fatal condition which

occurs when there is a drop in body core temperature

below 35°C. Turk, E., “Hypothermia,” 6 Forensic Science, Medicine & Pathology, 106-115 (2010). It carries

a significant risk of death with >70% mortality with

core temperature of 30 °C, increasing to 90% at 26 °C.

Byard, R.W. & Bright, F.M. “Lethal hypothermia,” 14

Forensic Science, Medicine & Pathology 421–423

(2018). Death likely results from a combination of

events such as ventricular fibrillation or asystole, initiated or exacerbated by hypoxia, myocardial ischemia,

increased circulating catecholamines and electrolyte

derangements. Id. Medical professionals agree, and

public health data long ago confirmed, that because

they are unsheltered and spend much of their time outdoors, that homeless people are exceptionally vulnerable to death by hypothermia.

For example, researchers conducted a nine-year

study of emergency room patient records and coroner’s

records from Toronto in order to examine the association between meteorological conditions and hypothermic injury or death among homeless individuals. The

results show that 25% of all hypothermic injuries and

20% of hypothermic deaths were attributed to individuals experiencing homelessness. Zhang, P., et al., “Cold

Weather Conditions and Risks of Hypothermia Among

People Experiencing Homelessness: Implications for

Prevention Strategies,” International Journal of Environmental Research & Public Health (2019) 6, 3259.

Another study in New York reported a similar proportion of deaths (18%) and hospital admissions (24%) to

occur among individuals who were homeless. Lane, K.,

et al., Burden and Risk Factors for Cold-Related Illness and Death in New York City, International Journal of Environmental Research & Public Health, (2018)

15, 632. Researchers in Seattle/King County, Washington, found that the homeless comprise a disproportionately large share of hypothermia deaths. Scott, R., et

al., “Without shelter, people die: disproportionate mortality among King County’s homeless population,

2009-2019,” Journal of Social Distress and Homelessness, 2019.

A 2010 survey found that “[s]even hundred people

experiencing or at risk of homelessness are killed from

hypothermia” each year in the United States.9 These

hypothermia-related deaths are part of the broader

“18,000 people who died homeless over five years in

encampments, on sidewalks or in shelters” across the

United States.10 In King County, Washington, an estimated 32 unhoused people died due to hypothermia between 2005 through 2016.11

“Winter Homeless Services: Bringing Our Neighbors in

from the Cold,” National Coalition for the Homeless (2010),

https://nationalhomeless.org/wp-content/uploads/2014/02/Winter_

weather_report.pdf.

The Guardian, “‘Homelessness is lethal’: US deaths

among those without housing are surging,” (Feb. 7, 2022),

https://www.theguardian.com/us-news/2022/feb/07/homelessnessis-lethal-deaths-have-risen-dramatically.

Dixon, T, King County Medical Office, Hypothermia

Deaths Due to Environmental Exposure in King County,

The grim reality that unhoused people face was illustrated in the recent cold weather of January 2024.

In fact, “40 deaths nationwide have been attributed to

the frigid weather” in one particularly cold January

2024 week.12 Five people died in Seattle, Washington

that same month during a stretch of days during where

the temperatures fell well below freezing.13 Oregon’s

most populous county, Multnomah County, housed

more than 1,200 people in warming shelters during a

January 2024 winter storm, but four unhoused people

still died during that cold snap.14

Washington H119 (2018), Community Health Services Division,

Seattle/King County Public Health.

The Associated Press, “Icey winter blast gripping US blamed

for deaths from coast to coast,” (Jan. 18, 2024), https://apnews.com/

article/us-winter-weather-snow-freezing-low-temperatures-42af2b

394779d51b61a7330e9046419f.

The Seattle Times, “At least 5 people died from hypothermia

during Seattle cold snap,” (Jan. 18, 2024), https://www.seattletimes.

com/seattle-news/law-justice/at-least-5-people-died-from-hypothermiaduring-seattle-cold-snap/; see also KUOW, “Homeless people in

Seattle endure brutal winter cold, ‘one night at a time’,” (Jan. 12,

2024), https://www.kuow.org/stories/homeless-people-in-seattleendure-brutal-winter-cold (noting that two King County, Washington residents living in their vehicles died of hypothermia in

December 2023 and that “[p]eople experiencing homelessness and

living outside are the most at risk of dying from extreme weather

like below freezing temperatures.”).

OPB, “Portland ice storm drew unprecedented need from

unhoused people,” (Jan. 17, 2024), https://www.opb.org/article/

2024/01/17/portland-ice-storm-drew-unprecedented-need-fromunhoused-people/.

Unhoused people face these dangers even in typically warm climates. In Los Angeles, California, “[a]t

least 14 unhoused people froze to death on the streets

of Los Angeles in 2021, . . . marking a sharp increase

in reports of hypothermia fatalities and a grim sign

of how dire the region’s homelessness catastrophe

has become.”15 This “death toll is significantly higher

than previous years, with six reported hypothermia

deaths in 2020, nine in 2019, seven in 2018 and three

in 2017.”16 And at least six unhoused people in Houston, Texas died during a February 2021 winter

storm.17

In Hudson v. McMillan, 503 U.S. 1, 18-20, 112 S.Ct.

995, 117 L.Ed.2d 156 (1992), this Court recognized that

the prohibition against cruel punishment encompasses

more than just deprivations which are inflicted as part

of a criminal sentence. It also protects against governmental “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical

needs.” Estelle, 429 U.S. at 106. The need to keep one’s

core body temperature from falling below 35°C is a “serious medical need.” The mere fact that one cannot

The Guardian, “At least 14 unhoused people froze to death

in LA last year, records reveal,” (Oct, 4, 2022), https://www.the

guardian.com/us-news/2022/oct/04/hypothermia-deaths-of-unhousedin-los-angeles-rise-sharply.

Id.

The Texas Tribune, “At least six people experiencing homelessness died during the winter storm. That number could rise.”

(Feb. 22, 2021), https://www.texastribune.org/2021/02/22/texaswinter-storm-homeless-deaths/.

know if a particular sleeping person will die tonight or

sometime later does not alter the fact that the risk of

death satisfies the objective component of the Eighth

Amendment. Exposure to environmental tobacco

smoke increases the risk of developing serious health

problems in the future. The fact that one cannot know

which individual will develop those health problems,

or when they will develop, does not insulate them from

Eighth Amendment scrutiny. See, e.g., Helling, 509 U.S.

at 33-34 (court may not deny relief to inmates “on the

ground that nothing yet ha[s] happened to them,”);

Hutto v. Finney, 437 U.S. 678, 682, 98 S.Ct. 2565, 2569,

57 L.Ed.2d 522 (1978) (inmates exposed to other inmates who had infectious diseases entitled to an

Eighth Amendment remedy even though it was not alleged that the likely harm would occur immediately

and even though the possible infection might not affect

all of those exposed), cited in Helling, 509 U.S. at 33.

b. Deliberate indifference: The wanton and

unnecessary infliction of both pain and

the risk of death.

The homeless also easily satisfy the subjective

component of the Eighth Amendment test. It cannot

plausibly be maintained that the members of the

Grants Pass City Council are unaware that there is a

risk of death from hypothermia when people are exposed to extremely cold weather. Those who are normally sheltered – those who live in houses and

apartments – are well aware that it is not just the

homeless who are at risk of death from hypothermia.

People hiking in the Siskiyou or Cascade Mountains,

or simply lost in the nearby Rogue River Wilderness,

die from hypothermia all the time and their tragic

deaths are reported by media.18 One need not be an

emergency medicine physician, or acquainted with a

homeless person, to know this.

Deliberate indifference to an uncomfortable condition does not always constitute cruel and unusual punishment. For example, this Court held that the practice

of “double celling” inmates was not unconstitutional

because it is only “the ‘unnecessary and wanton infliction of pain’ that violates the Eighth Amendment.” Wilson, 501 U.S. at 298, citing Rhodes, at 346. Sometimes

the infliction of injury or pain is necessary, such as

when a prison guard has to shoot an inmate in order

to quell a prison riot. See Whitley v. Albers, 475 U.S.

See Ashland News, “Medford man’s body found on Ashland

trail, Autopsy says he died of hypothermia,” (March 1, 2024),

https://ashland.news/medford-mans-body-found-on-ashland-trail/;

KPIC4, “Kim died of exposure, hypothermia” (Dec. 7, 2006),

https://kpic.com/news/local/kim-died-of-exposure-hypothermia11-13-2015; KTVL10, “Human life should be valued: Some say

small Oregon town hypothermia death preventable” (March 2, 2023),

https://ktvl.com/newsletter-daily/some-say-gold-beach-hypothermiadeath-preventable-curry-county-tina-kotek-homelessness-emergencyorder; The Oregonian, “Hypothermic man rescued from Siskiyou

Mountains cliff after woman spots skid marks,” (May 18, 2019),

https://www.oregonlive.com/pacific-northwest-news/2019/05/happycamp-woman-spots-skid-marks-hypothermic-man-rescued-fromsiskiyou-mountains-cliff.html.

312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). “In contrast, the State’s responsibility to attend to the medical

needs of prisoners does not ordinarily clash with other

equally important governmental responsibilities.” Wilson, at 302, quoting Whitley, at 320.

In the present case, the Johnson plaintiffs are not

prisoners and there is no need to quell a disturbance

and no reason to deprive unsheltered people who must

sleep outdoors on public property of blankets. The enactment of a law that increases their risk of death from

hypothermia is completely “unnecessary and wanton.”

c. This Court has previously recognized

that denying a person protection against

low temperatures can constitute cruel

and unusual punishment.

In discussing the inquiry into “wantonness,” this

Court recognized that “the medical care a prisoner receives is just as much a ‘condition’ of his confinement

as the food he is fed, the clothes he is issued, the temperature he is subjected to in his cell, and the protection

he is afforded against other inmates.” Wilson, 501 U.S.

at 303 (italics added). In prison, the State controls the

clothes an inmate wears and the bedding he uses to

cover himself when he sleeps. Consequently, the combination of “a low cell temperature at night combined

with a failure to issue blankets” constitutes an Eighth

Amendment violation. Id. at 304. An inmate cannot

provide his own blanket. He depends on prison authorities to provide one. In this situation, because

imprisonment renders the inmate “unable to care for

himself,” a prison that fails to provide a blanket when

it is unusually cold “fails to provide for his basic human needs,” and consequently “transgresses the substantive limits on state action set by the Eighth

Amendment.” Helling, at 32. See, e.g., Henderson v. DeRobertis, 940 F.2d 1055 (7th Cir. 1991) (failure to provide prisoner with blankets manifesting deliberate

indifference to freezing temperatures constituted cruel

and unusual punishment, jury verdict for prisoners upheld); McCray v. Burrell, 516 F.2d 357, 365-66 (4th Cir.

1975) (Eighth Amendment violation found where prisoner, forced to sleep nude with “no blankets or other

bedding” on a bare mattress); Maxwell v. Mason, 668

F.2d 361, 363 (8th Cir. 1981) (affirming finding that

confinement for fourteen days in a cell with no clothing

except undershorts and no bedding except a mattress

violated Eighth Amendment); Corselli v. Coughlin, 842

F.2d 23, 27 (2nd Cir. 1988) (reversing summary judgment for prison officials where inmate alleged that he

was “exposed to bitterly cold temperatures for approximately three months . . . when . . . it was so cold [that]

there was ice in the toilet bowl”).

In this case, Grants Pass rendered Johnson (and

all the other unsheltered homeless people of Grants

Pass) “unable to care for [her]self,” not by failing to provide her with a blanket, but by making it unlawful for

her to use a blanket when she sleeps on the ground.

Prohibiting the use of a blanket that a person has is

just as effective as making it impossible for a person to

obtain a blanket. And it is just as cruel when it

happens in a public park or on a public sidewalk as

when it happens in a government-owned building such

as a jail.

Constant exposure to the elements indirectly leads to significantly shorter lives.

GPMC §5.61.010(B), the Grants Pass ordinance

penalizing the use of any “bedding, sleeping bag, or

other material used for bedding purposes” amplifies

unhoused peoples’ exposure to the elements. This increased exposure leads in turn to death from causes

other than hypothermia because chronic exposure to

harsh weather places a strain on the human body in

several ways.

Unsheltered people simply don’t live as long as

people who are housed. Although most unsheltered

people do not die from hypothermia, chronic exposure

to bitter cold weakens their entire bodily defenses

against many diseases and ends up cutting years off

their lives. “In contrast to the average American who

dies at 78.6 years, homeless individuals die much

younger.”19 A study conducted by the University of

Washington’s School of Public Health analyzed 1,271

deaths of homeless individuals encompassing all recorded King County homeless deaths over a ten-year

period and found that the average age at death was

44.8 years for females and 49.9 years for males.20

“[N]on-elderly people who have experienced

R. Scott, et al., supra, at 1 (see footnote 5).

Id.

homelessness face 3.5 times the mortality risk of people who are housed, accounting for differences in demographic characteristics and geography.”21

For the unsheltered, as for everyone else, there are

many causes of death, including homicide, suicide, natural death, injury (or accidental) death, and drug-oralcohol induced death.22 A King County, Washington

study found that about 20% of all “injury” deaths were

caused by hypothermia.23 But death need not come

from hypothermia on the same night or day that exposure to extreme cold conditions occurred. Cf. Dixon v.

Godinez, 114 F.3d 640, 643 (7th Cir. 1997) (“A condition

which might not ordinarily violate the Eighth Amendment may nonetheless do so if it persists over an extended period of time. . . . [T]he cold of which Dixon

complains persisted for months, winter after winter.”)

“Cold temperatures need not imminently threaten

Meyer, B., et al., Life & Death at the Margins of Society;

The Mortality of the U.S. Homeless Population, National Bureau

of Economic Research (November 2023). See also O’Connell, J.,

“Premature Mortality in Homeless Populations: A Review of the

Literature” National Health Care for the Homeless Council,

(2005), https://santabarbarastreetmedicine.org/wp-content/uploads/

2011/04/PrematureMortalityFinal.pdf.

See generally, Sturgis, R. & Donovan, N.J., (2010), Winter

Homeless Services: Bringing Our Neighbors in from the Cold,

https://www.homelesshub.ca/resource/winter-homeless-servicesbringing-our-neighbors-cold; Biem, et al., Out of the Cold: Management of hypothermia and frostbite, Canadian Medical Association Journal, 2003, 168(3), 305-311, https://www.ncbi.nlm.nih.gov/

pmc/articles/PMC140473/

Scott, et al., supra at 7.

inmates’ health to violate the Eighth Amendment.” Id.

at 644.

The long-term impact of chronic exposure to extremely cold temperatures exacerbates many health

risks other than hypothermia. There are “disparities in

physical health between housed and homeless persons

in samples drawn from homeless adults living in shelters, jailed inmates, individuals reporting HIV-positive

status, and patients using [Health Care for the Homeless] clinics.”24 “Chronic health conditions such as high

blood pressure, diabetes, and asthma become worse because there is no safe place to store medications

properly.”25 By penalizing the use of blankets or other

“bedding material,” Grants Pass will only exacerbate

these risks for unhoused people.

In sum, depriving an unsheltered person of a blanket or a sleeping bag is not just a health risk on the

night the deprivation is suffered. It has a continuing

effect. The practice of compelling people to suffer exposure to cold weather for prolonged periods of time has

a cumulative, life-shortening effect. In fact, the firstnamed class representative to bring the lawsuit now

before the court, Debra Blake, died while this case was

pending in the court below. Johnson, 72 F.4th at 883.

C. Zlotnick, et al. (2013) Health Care for the Homeless:

What We Have Learned in the Past 30 Years and What’s Next,

American Journal of Public Health, 103(S2) at S199, https://

www.researchgate.net/publication/258034415.

Homelessness & Health: What’s the Connection?, National

Health Care for the Homeless Council (2019) at 1, https://nhchc.org/

wp-content/uploads/2019/08/homelessness-and-health.pdf.

On a September morning in 2019, Grants Pass police

officers “issued citations to Debra Blake and Carla

Thomas for being in Riverside Park . . . with sleeping

bags and belongings spread around themselves.” Id. at

882 n.13. Blake did not die of exposure that morning.

But she did die 3 years later at age 62.26 It’s a good bet

that years of sleeping out in cold weather brought her

an earlier death than she would otherwise have had if

she had not been without shelter.

Exposure to extreme cold and sleep deprivation are forms of torture.

“[P]unishments of torture, . . . and all others in the

same line of unnecessary cruelty, are forbidden by the

Eighth Amendment.” Baze v. Rees, 553 U.S. 35, 48, 128

S.Ct. 1520, 170 L.Ed.2d 420 (2008), quoting Wilkerson

v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1878). This

Court has repeatedly held that the Amendment is not

limited to physically torturous punishments. Estelle,

429 U.S. at 102 (“[T]he Amendment proscribes more

than physically barbarous punishments.” Estelle v.

Gamble, 429 U.S. at 102. Nor is it confined to punishments which have “historically” been viewed as barbarous. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544,

54 L.Ed. 793 (1910).

But even if this Court were to adopt the more restrictive historical approach favored by some members

Debra Blake Obituary, Stephens Family Chapel, https://

www.legacy.com/us/obituaries/name/debra-blake-obituary?id=

5778477.

of this Court,27 the punishment suffered as a result of

being deprived of blankets or bedding material is torturous. The ordinance not only inflicts physical pain

and suffering by forbidding the unsheltered to cover

themselves with anything when they sleep on public

ground. In addition, the ordinance inexorably leads to

cumulative sleep deprivation (“SD”) which is also a

form of torture.

As cases such Wright v. McMann, 387 F.2d 519

(2d Cir. 1967) show, sleeping while exposed to extreme

cold is not only difficult, it is often simply impossible.

In McMann, a deputy warden placed inmate Wright in

a “strip cell” as punishment for an alleged violation of

a prison regulation. Id. at 521. Wright was stripped entirely naked and confined for eleven days in this cell.

Id. “[T]he windows in front of his confinement cell were

opened wide throughout the evening and night hours

of each day during subfreezing temperatures causing

[Wright] to be exposed to the cold air and winter

weather without clothing or other means of protecting

himself. . . .” Id.

[H]e was forced to sleep completely nude on

the cold rough concrete floor and . . . the cell

was so cold and uncomfortable that it was impossible for him to sleep for more than an

hour or two without having to stand and move

about in order to keep warm.

See, e.g., Baze v. Rees, 553 U.S. at 94-101 (Thomas, J., concurring).

Id. at 521-22. Like inmate Wright, homeless Grants

Pass residents also violate a regulation – in this case

GPMC §5.61.010 – whenever they sleep with “bedding

material” on ground owned by the City.

In McMann, the district court dismissed the inmate’s cruel and unusual punishment claim. But the

Second Circuit reversed and remanded the case, holding “that if the allegations in the complaint are proved,

[the inmate] has been subjected to cruel and unusual

punishment proscribed by the Eighth Amendment.” Id.

at 528 (Lumbard, Chief Judge, concurring). Pointing to

Weems, where this Court held that 12 years of hard labor was an unconstitutional punishment for the offense in question, the McMann Court expressly noted

that Wright’s Eighth Amendment claim was not foreclosed simply because requiring a person to sleep naked in a cold winter environment was not historically

viewed as a barbarous punishment:

Historically, the Eighth Amendment’s ban on

cruel and unusual punishment was aimed at

preventing a recurrence of torture and barbarous punishments, such as pillorying, disemboweling, decapitation, and drawing and

quartering – all too prevalent during the reign

of the Stuarts. [Citation]. By the nineteenth

century the provision was believed obsolete

because the punishments sought to be exterminated had long passed. In 1910, however,

the Supreme Court revitalized the prohibition

against cruel and unusual punishment. Noting that “a principle, to be vital, must be capable of wider application than the mischief

which gave it birth,” the Court held that the

Eighth Amendment “is not fastened to the obsolete but may acquire new meaning as public

opinion becomes enlightened by a humane

justice.”

McMann, at 525, quoting Weems, 217 U.S. at 373.

Noting the “difficulty” of “defin[ing] with exactness

the extent of the constitutional provision which provides that cruel and unusual punishments shall not be

inflicted,” this Court has repeatedly acknowledged

that “it is safe to affirm that punishments of torture

. . . are forbidden by [the Eighth] Amendment.” Weems,

217 U.S. at 370. Because “[t]ime works changes, brings

into existence new conditions and purposes,” id. at 373,

this court refused to limit the Amendment’s prohibition to torturous practices that had been employed by

English sovereigns. Acknowledging “that there could

be exercises of cruelty by laws other than those which

inflicted bodily pain or mutilation,” id. at 372, this

Court held that Weems’ sentence violated the Eighth

Amendment because in addition to imprisonment

Weems was required to “always carry a chain at the

ankle, hanging from the wrist, [and] shall be employed

at hard and painful labor.” Id. at 381.

In the present case, the challenged law inflicts torture on the unsheltered in two ways. First, as noted

above, by depriving them of even the rudiments of protection against cold weather, it inflicts physical pain.

Freezing to death is a painful process and injuries

short of death by hypothermia, such as frostbite and

sometimes the accompanying injury of loss of fingers

or toes, also cause severe pain. Del Raine v. Williford,

32 F.3d 1024, 1035 (7th Cir. 1994) (rejecting contention

“that frostbite, hypothermia, or a similar infliction” is

a requirement for a claim of cruel and unusual punishment).

The law of any civilized society prohibits depriving

the poor of whatever clothing or covering they use to

protect themselves against the cold when they sleep.

The Book of Deuteronomy, which was recorded more

than 2,500 years ago, protected the poor from exactly

this type of deprivation. Moses instructed the people

that if a poor man provided his outer cloak as collateral

for a loan – because he had no other property he could

use as collateral – the lender was required by the law

to give it back to him every night so that the poor borrower could wear it as protection against the cold.

When thou dost lend thy brother any thing,

thou shalt not go into his house to fetch his

pledge.

Thou shalt stand abroad, and the man to

whom thou dost lend shall bring out the

pledge abroad unto thee.

And if the man be poor, thou shalt not sleep with

his pledge:

In any case thou shalt deliver him the pledge

again when the sun goeth down, that he may

sleep in his own raiment, and bless thee: and

it shall be righteousness unto thee before the

LORD thy God.

Deuteronomy 24:10-13 (italics added).

Although this Court has not decided a case involving forced exposure to extreme cold, in Hope v. Pelzer,

536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002),

this Court affirmed the Court of Appeals’ determination that the punishment imposed upon an inmate constituted an “obvious” Eighth Amendment violation. Id.

at 738. After wrestling with and exchanging vulgar remarks with a correctional officer, the inmate was

shackled to a hitching post and left there for approximately seven hours while the hot sun burned his skin.

Id. at 734-35. During this ordeal he was given water

only once or twice and given no bathroom breaks. Id.

“Despite the clear lack of an emergency situation, [the

prison guards] knowingly subjected him to a substantial risk of physical harm, to unnecessary pain caused

by the handcuffs and the restricted position of confinement for a 7-hour period, to unnecessary exposure to

the heat of the sun, to prolonged thirst and taunting,

and to a deprivation of bathroom breaks that created

a risk of particular discomfort and humiliation.” Id. at

738. This Court found that such conduct amounted to

the gratuitous infliction of “wanton and unnecessary

pain that our precedent clearly prohibits.” Id. citing

Trop v. Dulles, 356 U.S. at 100. If the prolonged exposure to a burning sun is cruel and unusual, even when

there is no suggestion that such exposure might cause

death, then clearly it violates the Eighth Amendment

to prohibit an unsheltered person from protecting himself from prolonged exposure to the freezing cold under

conditions where death from hypothermia might, and

often does, result.

Sleep deprivation (“SD”) is also a form of torture.

Regardless of whether it is the bitter cold weather, or

the constant interruption of sleep that results from being incessantly awakened by law enforcement officers

and told that they cannot sleep in their cars, or on the

ground with a blanket, the unsheltered suffer constant

SD as a result of the Grants Pass ordinance.28The

United States has long recognized the use of SD as a

form of illegal torture. Article 7 of The International

Covenant on Civil and Political Rights (“ICCPR”) ratified by Congress on June 8, 1992, defines torture as any

act by which “severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for

such purposes as . . . intimidating or coercing him . . .

when [it] is inflicted by or at the instigation of or with

the consent or acquiescence of a public official or other

person acting in an official capacity.”

The U.S. Army acknowledges that it intentionally

uses SD as an interrogation technique. Conscious of

the fact that ICCPR prohibits torture, after facing public criticism of its targeted SD program, the Army

See Decl. Debra Blake in Support of Plaintiffs’ Motion for

Class Certification, ¶5 (District Court Case No. 1:18-cv-01823-CL,

Dkt. #26) (“I have been repeatedly awakened by Grants Pass police while sleeping and told that I need to get up and move. I have

been told by Grants Pass police that I should leave town.”). Similarly, Respondent John Logan, lived in Grants Pass for four years

until he finally left to avoid just such sleep interruption: “During

that time, he was ‘awakened by City of Grants Pass police officer

and told that I cannot sleep in my truck anywhere in the city and

ordered to move on.’ To avoid those encounters, Logan ‘usually

sleep[s] in [his] truck just outside the Grants Pass city limits.’ ”

Johnson, 72 F.4th at 884 n.16.

adopted a policy which limits the duration of a course

of SD. In somewhat unclear language, the Army’s written policy allows it to deprive a detainee of sleep for a

period of thirty days, provided the detainee gets at

least four hours of sleep a night during that period, and

allows for repeated use of such thirty-day periods provided there is authorization for such an extension. D.

Sharuk, No Sleep for the Wicked: A Study of Sleep Deprivation as a Form of Torture, 81 MARYLAND LAW REVIEW 694, 697 (2022). According to the Army, this

restriction ensures that the Army’s use of SD will not

cross the line and become illegal torture.

The cognitive, psychological, and physiological effects of SD are well recognized. Modern studies have

confirmed that sufficient sleep is a necessary for

healthy brain function, and that SD impairs the immune system, decreases cognitive function, memory

and learning, and is essential for metabolic homeostasis.29 SD impairs the body’s ability to achieve cellular

clearance of neurotoxic metabolites produced in the

brain,30 including those associated with neurodegenerative diseases like Alzheimer’s and Parkinson’s.31 It is

Bishir, M., et al., Sleep Deprivation and Neurological Disorders, Biomedical Research International, Vol. 2020, Article

5764017, at 2, https://www.ncbi.nlm.nih.gov/pmc/articles/

PMC7755475/.

Id. at 5.

“SD . . . plays a crucial role in the pathogenesis of AD [Alzheimer’s]”. Id. at 6. “[M]olecular, neurochemical, and imaging

data demonstrate a close link between SD and PD [Parkinson’s].”

also associated with high blood pressure, diabetes,

heart disease, stroke, and certain cancers.32

Soldiers and military prisoners, however, often

suffer extreme SD under combat conditions or in the

course of interrogation after capture. Consequently,

retrospective studies of soldiers and military prisoners

who have experienced SD have been conducted.33 In

these studies, SD has been associated with an increased risk of suicide, depression,34 and attention deficit disorder.35 Soldiers who averaged less than six

hours of sleep every twenty-four hours were 4.7 times

more likely to develop PTSD than soldiers who averaged more than that.36 More recently, retrospective

studies of homeless people have discovered the same

See generally Katano, et al., Relationship Between Sleep

Duration and Clustering of Metabolic Syndrome Diagnostic Components, 4 DIABETES, METABOLIC SYNDROME & OBESITY: TARGETS &

THERAPY 119 (2011), https://www.tandfonline.com/doi/full/10.2147/

DMSO.S16147

“The research on sleep deprivation, sleep debt, and disrupted sleep is, understandably, of particular interest to the U.S.

military. . . .” Sharuk, supra, at 726.

See, e.g., Iacopino, V. & Xenakis, Neglect of Medical Evidence of Torture in Guantanamo Bay: A Case Series, 8 PLOS

MED., April 2011, at 3, https://journals.plos.org/plosmedicine/

article?id=10.1371/journal.pmed.1001027#:~:text=This%20case

%20series%20of%20medical,and%20mock%20execution%20and%20

disappearance.

Sharuk, supra, at 727.

Fighting Soldier Fatigue, WRAIR’S INVESTIGATOR’S DISPATCH,

https://ww2w.wrair.army.mil/sites/default/files/2019-06/Behavioral_

Health_and _Sleep.pdf.

relationships.37 Thus, there is clear medical support for

the conclusion which courts began drawing decades

ago: “[S]leep undoubtedly counts as one of life’s basic

needs.” Harper v. Showers, 174 F.3d 716, 720 (5th Cir.

1999). The proposition that SD imposes both physical

and mental pain is indisputable.

The question of whether SD constitutes cruel and

unusual punishment hinges upon whether its infliction amounts to an “unnecessary and wanton” infliction of suffering for no plausible penological purpose.

Several courts have recognized that under some circumstances it can. In Harper, for example, an inmate

alleged that prison guards were deliberately moving

him to a different cell at least once a week, so that he

was continually placed in a cell next to psychiatric patients whose constant screaming made it impossible

for him to sleep, and that the guards were doing this

deliberately in order to prevent him from sleeping.

Harper claimed this constituted cruel and unusual

punishment. The district court dismissed his suit for

injunctive relief on the ground that it was frivolous.

But the Court of Appeals reversed that dismissal,

found an abuse of discretion, and held that if Harper

proved his allegations then he had a meritorious

Eighth Amendment claim. Id. at 720. Accord Mammana v. Federal Bureau of Prisons, 934 F.3d 368, 374

(3d Cir. 2019) (holding that “sufficient sleep” is one of

“life’s necessities” and reversing dismissal of inmate’s

Corning, M., Sleep Disturbance in the Homeless Population: The Relationship between Homelessness, Sleep and Health,

https://digitalcommons.lib.uconn.edu/srhonors_theses/128/.

Eighth Amendment claim where he alleged that he

was stripped of his clothes and placed in an uncomfortably cold cell lit by a bright light that was left on 24

hours a day, thereby making it so he could “hardly

sleep” and “when he did fall asleep he would wake up

frequently shivering”); Walker v. Schult, 717 F.3d 119,

122 & 126 (2d Cir. 2013) (recognizing that “sleep is critical to human existence,” inmate plausibly alleged

Eighth Amendment violation for sleep deprivation

where he got “almost no sleep” because of constant

screaming “all night” by other inmates).

Banishment is cruel and unusual punishment.

Finally, an ordinance that makes it unlawful for

the unsheltered to use even rudimentary protection

against the cold when sleeping on the ground has the

effect of banishing the homeless from the city. Grants

Pass will respond that it has not made it per se illegal

for them to sleep within the city; it has only made it

per se illegal for them to sleep on public property while

using a blanket or other bedding material. Thus, they

have a choice, they can obey the law and sleep on the

ground on public property so long as they do not cover

themselves with anything to protect them from the

snow, rain, and the cold air. Alternatively, they can

choose to leave the city and reside elsewhere. Since

they can choose to stay and freeze, they are not being

expelled from Grants Pass.

But this argument ignores the nearly inescapable

result that being put to such a choice necessarily leads

to. In order to avoid banishment from the city, the unsheltered have to choose to expose themselves to a risk

of death by hypothermia and a host of other assorted

health hazards. Those who choose to leave the city, rather than run these risks and suffer the pain of bitter

cold and sleep deprivation, have quite effectively been

banished. While they have not been banished by the

sentencing order of a court, they have been banished

indirectly by an ordinance that forces them to choose

banishment if they want to escape serious health risks

and pain.

This Court has held that banishment, when imposed as punishment, even for the most severe crimes,

is excessive punishment which violates the Eighth

Amendment. In Trop, this Court held that stripping a

man of his citizenship was cruel and unusual punishment even when it was imposed as punishment for the

crime of wartime desertion. Although there was “no

physical mistreatment, no primitive torture” involved,

the Court held that this punishment was constitutionally excessive because it completely deprived the convicted person of any rights at all and left him

vulnerable to being deported and permanently banished. 356 U.S. at 101. Similarly, in Kungys v. United

States, 485 U.S. 759, 791, 108 S.Ct. 1537, 99 L.Ed.2d

839 (1988), Justice Stevens observed that “the revocation of [the] petitioner’s citizenship – a punishment

that is tantamount to exile or banishment – is patently

excessive.”

“This punishment is offensive to cardinal principles for which the Constitution stands.” Trop, 358 U.S.

at 102. Denationalization was held unconstitutional

precisely because it could result in “banishment, a fate

universally decried by civilized people.” Id. Even

though being stripped of one’s citizenship did not automatically lead to deportation and exile, this Court

held that the mere threat of banishment was unconstitutional. Id.

If banishment from one’s country is cruel and unusual punishment, then banishment from one’s native

city is also. Banishment cuts one off from one’s established community of friends and family. Just because a

person is unsheltered that does not mean they do not

have a “home.” If one has lived in a town or city for

years, that town is home, even if one has no house or

apartment to take shelter in. Plaintiffs Blake, Johnson

and Logan were residents of Grants Pass. Grants Pass

was their home, even though they had no structure of

their own to sleep in. If banishment is a punishment

that Congress has no power to impose, Trop, 356 U.S.

at 103, then surely it is also a punishment that the

City of Grants Pass is powerless to enact. And if banishment is a constitutionally excessive punishment for

wartime desertion, surely it is also constitutionally excessive when imposed for the offense of sleeping on

public ground with bedding material.

The Grants Pass City Council passed this challenged ordinance for the purpose of making things so

uncomfortable for the unsheltered that they would

“move on down the road” and quit their city altogether.

Johnson, 72 F.4th at 876. To this end, they enacted an

ordinance that has no legitimate purpose. No public

good is served by forcing the unsheltered to sleep without even rudimentary protection against the elements.

The only legislative purpose behind this ordinance was

to inflict enough pain and misery on people like Gloria

Johnson that they would decide to leave Grants Pass.

Nearly a century ago, this Court recognized that it was

unconstitutional to make it illegal for poor people to

move into a jurisdiction. Edwards v. California, 314

U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941). Trying to

drive poor people out is no more constitutionally acceptable than trying to fence them out. Indeed, it is

worse, because it is cruel to exile people from the community where they have lived for years. See generally

Simon, H., Towns Without Pity: A Constitutional and

Historical Analysis of Official Efforts to Drive Homeless Persons from American Cities, 66 TULANE L. REV.

631, 655 (“[T]he announced enforcement of a ban on sleeping on public land throughout San Francisco constitutes

effective banishment of the homeless from that city.”).

It is true, of course, that Grants Pass’ ordinance

does not authorize a municipal judge to impose a sentence or penalty of banishment from the city as a punishment for sleeping on the ground with a blanket. But

the law is designed to accomplish the goal of banishment indirectly. It is a well-established principle that

government cannot do indirectly what it cannot do directly. See, e.g., Williams v. Illinois, 399 U.S. 235, 243244, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (“A statute

permitting a sentence of both imprisonment and fine

cannot be parlayed into a longer term of imprisonment

than is fixed by the statute since to do so would be to

accomplish indirectly as to an indigent that which cannot be done directly.”). But that is exactly what Grants

Pass’ anti-sleeping ordinance has done.

---------------------------------♦---------------------------------

CONCLUSION

The Johnson Respondents have met both prongs

of the test for a violation of the Eighth Amendment

established by this Court in its prior cases. This Court

should reject the City’s contention that its decisions in

Estelle, Wilson and Helling should be overruled and

should affirm the decision issued below because the

city, with deliberate indifference, subjects the homeless

to serious risk of death. The challenged ordinance also

constitutes torture, and effectively forces the unsheltered to accept banishment as the price they must pay

to avoid torture and serious health risks.

DATED: March 19, 2024.

Respectfully submitted,

JAMES E. LOBSENZ

Counsel of Record

ISAAC PREVOST

CARNEY BADLEY SPELLMAN, P.S.

701 Fifth Avenue, Suite 3600

Seattle, WA 98104

lobsenz@carneylaw.com

prevost@carneylaw.com

(206) 622-8020

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.