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

No. 23-175

In the

Supreme Court of the United States

City of Grants Pass, Oregon,

Petitioner,

v.

Gloria Johnson, et al., on Behalf of

Themselves and All Others

Similarly Situated,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF AMICi CURIAE THE

Southern Poverty Law Center

ET AL. IN SUPPORT OF RESPONDENTS

Ellen Degnan

Micah West

Southern Poverty Law Center

400 Washington Avenue

Montgomery, AL 36104

Kirsten A nderson

Counsel of Record

Southern Poverty Law Center

P. O. Box 10788

Tallahassee, FL 32302

(352) 318-7284

kirsten.anderson@splcenter.org

Crystal McElrath

Southern Poverty Law Center

150 E. Ponce de Leon Avenue,

Suite 340

Decatur, GA 30030

Counsel for Amici Curiae

327978

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

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

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

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

I.

Robinson’s prohibition against status

crimes squarely applies to laws like

petitioner’s that punish people for the

status of homelessness. . . . . . . . . . . . . . . . . . . . . . 5

II. Cou r t s have t he c apa c it y t o apply

Robinson and administer workable legal

standards to ensure that the government

does not unlawfully punish people for the

status of homelessness. . . . . . . . . . . . . . . . . . . . . . 7

A. Pottinger v. City of Miami . . . . . . . . . . . . . . 8

B. Joel v. City of Orlando . . . . . . . . . . . . . . . . . 11

C. McArdle v. City of Ocala . . . . . . . . . . . . . . . 12

D. R o b i n s o n h a s n o t p r e v e n t e d

governments in Florida or any other

state from addressing homelessness. . . . . 15

ii

Table of Contents

Page

E. Robinson has not created mayhem in

lower courts. . . . . . . . . . . . . . . . . . . . . . . . . . 16

III. The history of vagrancy laws does not

justify the modern use of sleeping/camping

ordinances to punish people experiencing

homelessness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Courts have repeatedly found that

vagrancy laws are unconstitutional

status crimes under the Fourteenth

and Eighth Amendments. . . . . . . . . . . . . . . 20

B. This Court has explicitly rejected

t h i s cou nt r y ’s h i st or y of usi ng

vagrancy laws as a tool of racial and

economic subjugation. . . . . . . . . . . . . . . . . . 21

C. Sleeping/camping ordinances, by design

and application, are not generally

applicable and instead target only people

experiencing homelessness. . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

iii

TABLE OF AUTHORITIES

Page

Cases

Adickes v. S. H. Kress & Co.,

398 U.S. 144 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Bailey v. Alabama,

219 U.S. 219 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 23

Bell v. Maryland,

378 U.S. 226 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Chicago v. Morales,

527 U.S. 41 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

City of Memphis v. Greene,

451 U.S. 100 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

City of New Orleans v. Postek,

158 So. 553 (La. 1934) . . . . . . . . . . . . . . . . . . . . . . . . . 22

City of Pompano Beach v. Capalbo,

455 So. 2d 468 (Fla. 4th DCA 1984) . . . . . . . . . . . . . 26

Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Coal. on Homelessness v. City of San Francisco,

90 F.4th 975 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . . . 19

iv

Authorities

Page

Cody v. State,

45 S.E. 622 (Ga. 1903) . . . . . . . . . . . . . . . . . . . . . . . . . 22

Edwards v. California,

314 U.S. 160 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22

Goldman v. Knecht,

295 F. Supp. 897 (D. Colo. 1969) . . . . . . . . . . . . . . . . 20

Hershey v. City of Clearwater,

834 F.2d 937 (11th Cir. 1987) . . . . . . . . . . . . . . . . . . . 26

Hicks v. State,

76 Ga. 326 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Joel v. City of Orlando,

232 F.3d 1353 (11th Cir. 2000), cert. denied,

532 U.S. 978 (2001) . . . . . . . . . . . . . . . 11, 12, 14, 16, 27

Jones v. City of Los Angeles,

444 F.3d 1118 (9th Cir. 2006), vacated per

settlement, 505 F.3d 1006

(9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 25

Lazarus v. Faircloth,

301 F. Supp. 266 (S.D. Fla. 1969) . . . . . . . . . . . . . 20, 26

Martin v. City of Boise,

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

cert. denied, 140 S. Ct. 674

(2019) . . . . . . . . . . . . . . . . . . . . . 5, 7, 9, 12, 14, 15, 27, 29

v

Authorities

Page

McArdle v. City of Ocala,

519 F. Supp. 3d 1045

(M.D. Fla. 2021) . . . . . . . . . . . . . . . . . 1, 9, 12, 13, 14, 27

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) . . . . . . . . . . 4, 16, 19, 20, 23, 25, 26

Peery v. City of Miami,

977 F.3d 1061 (11th Cir. 2020) . . . . . . . . . . . . . . . 10, 11

Pollock v. Williams,

322 U.S. 4 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Pottinger v. City of Miami,

359 F. Supp. 3d 1177 (S.D. Fla. 2019) . . . . . . . . . 10, 11

Pottinger v. City of Miami,

40 F.3d 1155 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . 10

Pottinger v. City of Miami,

76 F.3d 1154 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . . 10

Pottinger v. City of Miami,

720 F. Supp. 955 (S.D. Fla. 1989) . . . . . . . . . . . . . . . . 8

Pottinger v. City of Miami,

810 F. Supp. 1551

(S.D. Fla. 1992) . . . . . . . . . . . . 2, 8, 9, 10, 11, 12, 18, 20

Powell v. Texas,

392 U.S. 514 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

vi

Authorities

Page

Robinson v. California,

370 U.S. 660 (1962) . . . . . 3, 5, 6, 7, 8, 12, 14, 15, 16, 20

Shapiro v. Thompson,

394 U.S. 618 (1969), overruled on other grounds,

Edelman v. Jordan, 415 U.S. 651 (1974) . . . . . . . . . . 22

Shevin v. Lazarus,

401 U.S. 987 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Smith v. Florida,

405 U.S. 172 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Smith v. Hill,

285 F. Supp. 556 (E.D.N.C. 1968) . . . . . . . . . . . . . . . 21

State v. Penley,

276 So. 2d 180 (Fla. 2d DCA 1973) . . . . . . . . . . . . . . 26

Timbs v. Indiana,

139 S. Ct. 682 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Black,

116 F.3d 198 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 18

United States v. Kincade,

379 F.3d 813 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . 18

United States v. Moore,

486 F.2d 1139 (D.C. Cir. 1973) . . . . . . . . . . . . . . . . . . 18

vii

Authorities

Page

United States v. Reynolds,

235 U.S. 133 (1914) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Wheeler v. Goodman,

306 F. Supp. 58 (W.D.N.C. 1969), vacated,

401 U.S. 987 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Williams v. Illinois,

399 U.S. 235 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. VIII . . . . . . . . . . . . . . . . . . . . . . . 5, 12

U.S. Const., amend. XIII . . . . . . . . . . . . . . . . . . . . . . . . . 23

STATUTES AND ORDINANCES

Act of Feb. 21, 1767, ch. 555, 1767 Pa. Laws . . . . . . . . . 21

Fla. Stat. § 125.0231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Grants Pass Municipal Code § 5.61.010 . . . . . . . . . . . . . . 5

Grants Pass Municipal Code § 5.61.030 . . . . . . . . . . . . . . 5

Grants Pass Municipal Code § 6.46.090 . . . . . . . . . . . . . . 5

O.C.G.A. § 36-60-31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

viii

Authorities

Page

T.C.A. § 39-14-414(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

OTHER AUTHORITIES

Black’s Law Dictionary (11th ed. 2019) . . . . . . . . . . 6, 21

George R. Carter, From Exclusion to Destitution,

Race Affordable Housing and Homelessness,

13 Cityscape 33 (2011), www.huduser.gov/

por t a l /per iod ic a ls /c it yscpe / vol13nu m1 /

cityscape_march2011_from_exclusion.pdf . . . . . . . 30

Gina Azito Thompson, Sheltering Injustice:

A Call for Georgia to Stop Criminalizing

Pe o p l e E x p e r i e n c i n g Ho m e l e s s n e s s ,

S. Poverty Law Ctr. (2023), https://w w w.

splcenter.org/sheltering-injustice-report . . . . . . . . . . 1

Homeless Trust Miami-Dade Cty., MiamiDade Racial Disparity Among Persons

Experiencing Homelessness (2020), https://

www.homelesstrust.org/resources-homeless/

library/racial-disparity-highlights.pdf . . . . . . . . . . . 30

L e a h Wa ng, Up d a t ed Da t a an d Ch ar t s:

Incarceration Stats by Race, Ethnicity, and

Gender for All 50 States and D.C., Prison Policy

Initiative (2023), https://www.prisonpolicy.

org/blog/2023/09/27/updated_race_data/ . . . . . . . . 30

ix

Authorities

Page

R i s a G olu b of f , Va g r a n t Na t i o n : Po li c e

Power, Constitutional Change, and the

Making of the 1960s (2016) . . . . . . . . . . . . . . . 22, 24, 25

Rober t Bork, The Tempting of Amer ica:

T h e Po l i t i c a l Se d u c t i o n o f t h e L a w

(1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

S. Exec. Doc. No. 2, 39th Cong., 1st Sess.

35 (1865) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

U.S. Dep’t of Hous. & Urb. Dev., 2023 Annual

Housing Assessment Report to Congress,

(2023), https://www.huduser.gov/portal/sites/

default/files/pdf/2023-AHAR-Part-1.pdf . . . . . . . 4, 30

William Cohen, Negro Involuntary Servitude

in the South, 1865–1940: A Preliminary

Analysis, 42 J.S. Hist. 31 (1976) . . . . . . . . . . . . . . . . 24

William P. Quigley, Reluctant Charity: Poor

Laws in the Or iginal Thir teen States,

31 U. Rich. L. Rev. 111 (1997) . . . . . . . . . . . . . . . 21, 22

1

INTEREST OF AMICI CURIAE

Amicus the Southern Poverty Law Center (SPLC)1

is a catalyst for racial justice in the South and beyond,

working in partnership with communities to dismantle

white supremacy, strengthen intersectional movements,

and advance the human rights of all people. One of the

SPLC’s goals is to eradicate poverty by expanding access

to economic opportunity and eliminating racial economic

inequality. The SPLC works to end the criminalization

of homelessness across the U.S. Deep South through

litigation, policy, and research. See, e.g., Gina Azito

Thompson, Sheltering Injustice: A Call for Georgia to

Stop Criminalizing People Experiencing Homelessness,

S. Poverty Law Ctr. (2023), https://www.splcenter.org/

sheltering-injustice-report.

Amicus Southern Legal Counsel (SLC) is a nonprofit

public interest law firm dedicated to the ideal of equal

justice for all that works statewide in Florida as part of

the civil legal aid system. SLC has litigated numerous

constitutional challenges to the criminalization of

homelessness, including McArdle v. City of Ocala, 519 F.

Supp. 3d 1045 (M.D. Fla. 2021) (city’s lodging ordinance

violated the Eighth Amendment).

Amicus Florida Justice Institute (FJI) is a nonprofit

public interest law firm that uses impact litigation and

advocacy to improve the lives of Florida’s poor and

1. Pursuant to Supreme Court Rule 37.6, amici curiae

certify that no party or its counsel authored this brief in whole

or in part or made a monetary contribution intended to fund the

preparation or submission of the brief. Nor did any person other

than amici curiae make such a monetary contribution.

2

disenfranchised residents, while focusing on criminal

justice reform, homelessness and poverty, disability

access, and other civil rights issues. FJI has litigated

numerous cases on behalf of people experiencing

homelessness involving claims that their existence

has been criminalized, including as co-counsel during

the monitoring phase of the consent decree entered in

Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla.

1992), that prohibited the city from arresting people for

life-sustaining activity in public spaces.

Amicus Florida Legal Services (FLS) is a statewide

legal services organization dedicated to advancing

economic, social, and racial justice and removing barriers

that undermine and restrict equal access to justice and

basic human needs. FLS helps poor, vulnerable, and hard

to reach people experiencing housing insecurity and

homelessness.

Amicus Community Justice Project (CJP) is a Miami,

Florida, based group of movement lawyers, artists, and

researchers providing innovative legal and strategic

support to social justice movements fighting for racial

justice and human rights, with a focus on housing justice.

CJP represents base-building organizations defending

the rights of tenants and the rights of people who are

houseless. CJP advocates against excessive policing,

including in the context of houselessness, tenants’ rights,

and access to public spaces.

Amicus Legal Aid Society of Palm Beach County

(LASPBC) is a nonprofit public interest law firm

dedicated to serving the legal needs of the Palm Beach

County, Florida, community for over 75 years. LASPBC

3

advocates for low-income tenants and individuals facing

homelessness through legal assistance, representation,

and educational programs. LASPBC has litigated cases

in state and federal court to enforce the Fair Housing Act

on behalf of Palm Beach County tenants and homeless

individuals.

Amicus Florida Housing Umbrella Group (HUG) is

an unincorporated statewide association of approximately

250 lawyers, legal professionals, advocates, faculty, and

researchers employed by legal services and civil legal

aid organizations, universities, and nonprofits. Founded

in the 1980s, HUG has appeared as amicus in numerous

federal and state court cases on issues of housing and

homelessness. HUG members provide free civil legal

services, representing people at risk of losing housing or

experiencing homelessness.

SUMMARY OF ARGUMENT

Amici, nonprofit poverty law organizations that

provide free legal assistance to individuals experiencing

poverty and homelessness in Florida, file this brief to

aid the Court in its resolution of the applicability of

Robinson v. California, 370 U.S. 660 (1962), to ordinances

that punish individuals for the status of homelessness.

The Ninth Circuit properly applied Robinson to find an

Eighth Amendment violation occurs when the government

punishes people experiencing homelessness for sleeping

outdoors anywhere on public property at any time, when

there are no indoor alternatives. Contrary to petitioner’s

arguments (Br. 5), Robinson’s ban on status crimes

is workable, as decades of its application by Florida

governments and Eleventh Circuit courts demonstrate.

4

Florida’s experience is relevant, as the state has the

third largest total population of individuals experiencing

homelessness and the second largest unsheltered

population in the U.S. See U.S. Dep’t of Hous. & Urb. Dev.,

2023 Annual Housing Assessment Report to Congress,

18 (2023), https://www.huduser.gov/portal/sites/default/

files/pdf/2023-AHAR-Part-1.pdf.

The types of prohibitions at issue (hereinafter

“sleeping/camping ordinances”) are not “generally

applicable prohibitions against the act of camping on

public property” (contra Pet. Br. 4); they are punishment

for the universal human need to sleep, something only

people who are homeless and involuntarily unsheltered are

forced to do in public places. Petitioner cannot reasonably

rely on the history of vagrancy laws (Br. 42–43) to justify

its sleeping/camping ordinances. Vagrancy laws differ

substantially in form from modern sleeping/camping

ordinances. See, e.g., Resp. Br. 34–38. Any similarities

only further delegitimize these ordinances. Contra Pet.

Br. 42–43. Vagrancy laws are incompatible with the rule

of law, see Papachristou v. City of Jacksonville, 405 U.S.

156, 171 (1972), and this Court has repeatedly disavowed

their historical use—in the U.S. South especially—to

punish people on the basis of poverty and race. So too, the

sleeping/camping ordinances here unlawfully target and

punish socially stigmatized people based on their status.

Under Robinson, they are cruel and unusual punishment.

5

ARGUMENT

I.

Robinson’s prohibition against status crimes

squarely applies to laws like petitioner’s that punish

people for the status of homelessness.

The Ninth Circuit properly applied the constitutional

prohibition against status crimes in Robinson to strike

down sleeping/camping ordinances that punished people

for being homeless in violation of the Eighth Amendment.

See Robinson, 370 U.S. at 666 (holding that criminalizing

status of addiction violates the Eighth Amendment

because “in the light of contemporary knowledge, a law

which made a criminal offense of such a disease would

doubtless be universally thought to be an infliction of

cruel and unusual punishment”); see also Powell v. Texas,

392 U.S. 514, 533 (1968) (plurality opinion) (reaffirming

Robinson’s holding that under the Eighth Amendment,

“criminal penalties may be inflicted only if the accused

has committed some act, has engaged in some behavior,

which society has an interest in preventing, or perhaps in

historical common law terms, has committed some actus

reus”). The Ninth Circuit properly restrained the City

of Boise from enforcing its sleeping/camping ordinances

against homeless individuals who did not have access to

shelter because doing so would punish them for the status

of homelessness in violation of the Eighth Amendment.

Martin v. City of Boise, 920 F.3d 584, 615 (9th Cir. 2019)

(en banc), cert. denied, 140 S. Ct. 674 (2019). The Ninth

Circuit reiterated this principle in Johnson v. City of

Grants Pass when it affirmed the district court’s ruling

that petitioner’s sleeping/camping ordinances2 violate the

2. The sleeping/camping ordinances before the Court are

Grants Pass Municipal Code §§ 5.61.010, 5.61.030, and 6.46.090.

Pet. App. 15a–17a, 24a, 221a–224a.

6

Eighth Amendment by prohibiting homeless individuals

from sleeping outside with blankets or other bedding, even

when there is nowhere else in the city for them to sleep.

Pet. App. 57a. These decisions were correct applications

of Robinson.

Petitioner’s assertion (Br. 37) that its ordinances

prohibit the “specific act[]” of “‘occupy[ing] a campsite’ on

public property” obfuscates their function and disregards

the basic science of sleep. First, the ordinances do not

implicate a constitutional “right to camp.” Contra Pet.

Br. 42. Whatever petitioner may label them, in reality the

ordinances ban merely sleeping beneath a blanket on the

ground. Pet. App. 46a–47a. In other words, the ordinances

implicate the right for a human being to simply exist. Cf.

Bailey v. Alabama, 219 U.S. 219, 238, 244 (1911) (holding

that an Alabama law framed “in terms . . . to punish fraud”

in fact established unconstitutional involuntary servitude,

and admonishing that “[w]hat the state may not do directly

it may not do indirectly”).

Second, sleeping—with or without rudimentary

bedding—is no actus reus. Humans only exist either in

a state of sleep or wakefulness; sleeping, like waking,

is being, not doing. Furthermore, sleep is as inherently

innocent, life-sustaining, and innate as breathing. No

government has an interest in prohibiting sleep, any more

than it could forbid people to breathe.

As discussed in more detail below, petitioner’s

sleeping/camping ordinances do not target criminal

conduct but—like illegitimate vagrancy laws before

them—target poverty. See Crime, Black’s Law Dictionary

(11th ed. 2019) (defining “status crime” as “a crime of

7

which a person is guilty by being in a certain condition

or of a specific character”). Like the statute struck down

in Robinson that made narcotics addiction a continuous

crime, petitioner’s ordinances make people experiencing

homelessness “continuously guilty” every day that they

are forced to sleep outside. See Robinson, 370 U.S. at 666.

It is impossible for homeless and involuntarily unsheltered

individuals to conform their sleeping “conduct” to the law

by choosing not to sleep. Cf. Jones v. City of Los Angeles,

444 F.3d 1118, 1136 (9th Cir. 2006) (“Whether sitting,

lying, and sleeping are defined as acts or conditions, they

are universal and unavoidable consequences of being

human.”), vacated per settlement, 505 F.3d 1006 (9th Cir.

2007). For them, the ordinances effectively criminalize

living within city bounds. See Resp. Br. 29–30 (a person

who remains in Grants Pass after being issued an exclusion

order for “unlawful camping” faces unlimited trespass

arrests). Compliance is only possible for people who have

access to indoor shelter. The Ninth Circuit correctly held

that petitioner’s sleeping/camping ordinances create an

impermissible status crime.

II. Courts have the capacity to apply Robinson and

administer workable legal standards to ensure that

the government does not unlawfully punish people

for the status of homelessness.

Petitioner is incorrect (Br. 5) that “the Ninth Circuit’s . . .

test has already proved unworkable in both theory and

practice.” Courts and governments in the Eleventh

Circuit have proved just the opposite: courts, in three

cases discussed below that were examined by the Ninth

Circuit in Martin and Johnson, have successfully applied

Robinson in similar contexts. These cases demonstrate

8

that, contrary to petitioner’s claims (Br. 43–45), the

“involuntariness” and shelter availability standards are

workable in practice. Furthermore, petitioner’s claim (id.

at 14) that Johnson “calls into doubt many other criminal

prohibitions” contradicts decades of decisions illustrating

that this narrow application of Robinson does not disturb

substantive criminal law and will not create mayhem in

the lower courts.

A.

Pottinger v. City of Miami

In 1988, Michael Pottinger, Peter Carter, Berry

Young, and other similarly situated persons experiencing

homelessness sued the City of Miami, Florida, alleging

constitutional violations relating to arrests for harmless,

involuntary, and life-sustaining acts such as sleeping.

Pottinger v. City of Miami (Pottinger I), 810 F. Supp.

1551, 1553–54 (S.D. Fla. 1992). The court certified a class.

Pottinger v. City of Miami, 720 F. Supp. 955, 960 (S.D. Fla.

1989); see also Pet. App. 36a n.20. After a bench trial, U.S.

District Court Judge Atkins entered an order holding that

“the City’s practice of arresting homeless individuals for

performing inoffensive conduct in public when they have

no place to go is cruel and unusual in violation of the eighth

amendment.” Pottinger I, 810 F. Supp. at 1583.

The court’s well-reasoned opinion applied Robinson

to the facts adduced at trial. Miami’s “laudable attempts”

to address homelessness, the court observed, had been

hindered by “an escalating number of homeless people.” Id.

at 1558. To explain the causes of homelessness, the court

relied on the testimony of expert witnesses, concluding

that “homelessness is due to various economic, physical

or psychological factors that are beyond the homeless

9

individual’s control.” Id. at 1563 (“[P]eople rarely choose

to be homeless.”).

Applying Robinson to these facts, the court held:

Because of the unavailability of low-income

housing or alternative shelter, plaintiffs have

no choice but to conduct involuntary, lifesustaining activities in public places. The

harmless conduct for which they are arrested

is inseparable from their involuntary condition

of being homeless . . . . As long as the homeless

plaintiffs do not have a single place where they

can lawfully be, the challenged ordinances, as

applied to them, effectively punish them for

something for which they may not be convicted

under the eighth amendment—sleeping, eating

and other innocent conduct.

Id. at 1564–65. The court directed the creation of two or

more arrest-free zones where the city would be enjoined

from arresting individuals experiencing homelessness for

such involuntary, innocent conduct. Id. at 1584. Pottinger,

rendered 25 years before Martin, has been followed by

localities in Florida that conformed their ordinances

and police practices with this basic rule of law. 3 Indeed,

Martin cited Pottinger I approvingly, observing “[w]e

are not alone in reaching this conclusion” that “as long

3. For instance, a former law enforcement official reported

conforming police policies in Broward County, Florida, with

Pottinger I to ensure that homelessness is not a crime. Decl. of

Robert R. Pusins ¶¶ 1–6, McArdle v. City of Ocala, 519 F. Supp. 3d

1045 (M.D. Fla. 2021) (No. 5:19-cv-00461), ECF No. 108-18.

10

as there is no option of sleeping indoors, the government

cannot criminalize indigent, homeless people for sleeping

outdoors, on public property, on the false premise they

had a choice in the matter.” 920 F.3d at 617.

In 1998, following two appeals and court-ordered

mediation, Pottinger v. City of Miami, 40 F.3d 1155 (11th

Cir. 1994) & 76 F.3d 1154 (11th Cir. 1996), the parties

entered into a landmark settlement agreement that

protected the rights of people experiencing homelessness,

Settlement Agreement, Pottinger I, supra (No. 1:88-cv02406), ECF No. 382. The agreement created, among other

reforms, a law enforcement protocol that prohibited police

from arresting individuals experiencing homelessness for

specified “life sustaining” misdemeanors if shelter was

unavailable; if shelter was available and accepted upon

offer, the police agreed to transport and not arrest the

person. Id. at 8–11.

By 2019, the district court, as affirmed by the Eleventh

Circuit, found that the consent decree’s core purpose of

stopping the criminalization of homelessness had been

achieved. See Pottinger v. City of Miami (Pottinger II),

359 F. Supp. 3d 1177, 1195 (S.D. Fla. 2019), aff’d sub nom.

Peery v. City of Miami, 977 F.3d 1061 (11th Cir. 2020).

Over the objection of class counsel, the court dissolved the

decree, finding evidence that Miami had reformed police

procedures and “no longer arrest[ed] . . . the homeless

for being homeless.” Peery, 977 F.3d at 1076 (citation

omitted). The court also found that Miami had directed

resources, including dedicated tax revenue, to programs

that “provide shelter, medical care, and other services” for

people experiencing homelessness. Id. “Because the City

has a strong system in place to address homelessness,”

11

the court reasoned, “it is unlikely to revert to arresting

or mistreating the homeless.” Id.

Petitioner complains that Martin and Johnson have

tied their hands; however, the City of Miami demonstrated

that substantial progress can be made on homelessness

without criminalizing people who have no choice but to

sleep outside. Far from creating a ballooning crisis of

homelessness, the court found that the Pottinger I consent

decree, and the related increase in access to services,

reduced homelessness by 90% while also decreasing

arrests. Pottinger II, 359 F. Supp. 3d at 1180, 1182–83.

Further, as the court observed, “both sides agree that

arresting the homeless is never a solution because, apart

from the constitutional impediments, it is expensive, not

rehabilitating, inhumane, and not the way to deal with the

‘chronic’ homeless, who suffer from mental illnesses and

substance abuse addiction.” Id. at 1180–81.

B. Joel v. City of Orlando

James Joel, a person experiencing homelessness, was

arrested by the City of Orlando, Florida, for violating an

ordinance prohibiting “‘camping’ on public property,”

defined to include “sleeping out-of-doors.” Joel v. City

of Orlando, 232 F.3d 1353, 1355 (11th Cir. 2000), cert.

denied, 532 U.S. 978 (2001). Police enforcement protocol

required “some indication of actual camping,” beyond

sleeping, to make an arrest, though that could be as little

as someone sleeping “atop and/or covered by materials” or

“when awakened volunteer[ing] that he has no other place

to live.” Id. at 1356. Significantly, the protocol directed

officers to advise homeless individuals of alternative

shelter, and the undisputed evidence showed that shelter

12

was in fact available: the local shelter had “never reached

its maximum capacity” or turned anyone away for lack of

space or inability to pay. Id. at 1356–57.

Applying Robinson to the undisputed facts on

summary judgment, the court rejected Joel’s argument

that Orlando’s camping ordinance punished him for

the status of being homeless. The court distinguished

Pottinger I on the facts: there, the court had “explicitly

relied on the lack of sufficient homeless shelter space”

to find that “sleeping in public [was] involuntary conduct

for those who could not get in a shelter.” Id. at 1362. Joel

held that the Orlando ordinance, by contrast, permissibly

reached only voluntary conduct because of “the availability

of shelter space,” which gave Joel “an opportunity to

comply with the ordinance.” Id.

Robinson, as applied in Joel, was workable: the court

considered whether shelter was available and found that

it always was. Joel was therefore not punished for his

status, but for the conduct of camping outside when he had

available alternatives. The availability of alternatives to

Joel was pivotal to the Eighth Amendment analysis by the

Eleventh Circuit and determinative of the outcome. See

Pet. App. 110a–111a; see also Martin, 920 F.3d at 617 n.9.

C.

McArdle v. City of Ocala

In 2019, Patrick McArdle, Courtney Ramsey, and

Anthony Cummings, sued the City of Ocala, Florida,

challenging the constitutionality of its “open lodging”

ordinance. See McArdle, 519 F. Supp. 3d at 1048. The

ordinance made “rest while awake or sleep” a crime when,

like in Joel, at least one indicator of lodging was present,

13

including simply being homeless or sleeping with bedding.

Id. at 1048–49. The court found that all of the following

unambiguously fit under the definition of lodging: “using

bags of belongings as a pillow, sleeping on a park bench

with belongings, sleeping in a covered alcove, sleeping

using clothing as a pillow, sleeping with blankets and

sleeping bags, sleeping wrapped in blankets, sleeping

with a backpack as a pillow, and sleeping on top of a pair

of jeans.” Id. at 1053.

In total, the plaintiffs had been arrested and convicted

for violating the ordinance 18 times. Id. at 1049 (“On some

of those occasions, Plaintiffs were arrested for sleeping

outdoors and, upon being awoken, advised that they were

homeless.”). An Assistant Professor of Medicine at the

University of Miami School of Medicine who had treated

hundreds of homeless patients explained the medical

requirement of sleep for all human beings. Decl. of Dr.

Armen Henderson ¶ 2, McArdle, supra (No. 5:19-cv-00461),

ECF No. 108-10 (“Sleep is a non-voluntary, physiologic

requirement necessary for normal neurocognitive and

metabolic functioning.”). Dr. Henderson further explained

that blankets are necessary for thermoregulation of the

human body: “In cooler conditions (50F and below while

awake and higher when asleep), blankets are necessary to

keep core temperature above 96F. Hypothermia is possible

even in moderate temperatures without adequate body

coverings. Blankets trap heat and are the most efficient

means for maintaining body temperature.” Id. ¶ 4.

Like in Grants Pass, the undisputed facts established

that the lodging ordinance applied at all times on all public

property in the city. Pls.’ Mot. Summ. J. & Permanent Inj.

at 8 ¶¶ 20–21, McArdle, supra (No. 5:19-cv-00461), ECF

14

No. 108. Over five years, the city convicted 264 unique

homeless individuals of the crime of open lodging 406

times. These individuals spent 5,393 days in jail and were

assessed $301,067.00 in fees and fines. Id. at Ex. 6, at 1,

ECF No. 108-6. The evidence demonstrated that shelter

was not available or was otherwise inaccessible. McArdle,

519 F. Supp. 3d at 1049. Unlike in Joel, the police did not

inquire into shelter availability before making an arrest.

Id. at 1052.

Applying Robinson, U.S. District Court Judge Moody

held that the city’s open lodging ordinance unlawfully

punished the plaintiffs for their status of homelessness. In

doing so, the court reconciled Martin and Joel, finding that

their holdings turned on the availability of shelter space:

The Court notes that if the ordinance is

only enforced after making an inquiry of

the availability of shelter space, then it only

punishes the individual’s conduct for failing to

comply with the ordinance. If no such inquiry is

made and the individual is arrested for merely

sleeping outside and identifying themselves

as homeless, then the ordinance unlawfully

punishes the individual based on their homeless

status.

Id. at 1052; see also Pet. App. 110a–111a; Martin, 920 F.3d

at 617 n.9. The court entered an injunction, prohibiting

the city from enforcing its open lodging ordinance

against someone who is homeless “prior to inquiring

about the availability of shelter space.” McArdle, 519

F. Supp. 3d at 1056. Johnson referenced McArdle as

providing an example of the practicality of determining

15

“involuntariness” at the time of enforcement. Pet. App.

40a n.23, 52a n.31.

D.

Robinson has not prevented governments in

Florida or any other state from addressing

homelessness.

The reasons offered by petitioner (Br. 5–6, 45–47) and

some of its amici for overturning Johnson and Martin are

primarily grounded in concerns about large encampments.

See, e.g., Brentwood Cmty. Council Amicus Br. 6 (warning

that “[w]ithout regulation of encampments” a public

health crisis results); Venice Community Stakeholders

Ass’n Amicus Br. 7–9 (decrying “large encampments

on world famous Venice Beach”); City of Chico Amicus

Cert. Br. 3 (asserting the “proliferation of homeless

encampments” threatens public health). But sleeping/

camping ordinances like petitioner’s that apply to as few

as one person and to protection as minimal as a blanket

are not about large encampments. As the district court

in Johnson reiterated, this is simply not a case about the

time, place, or manner in which camps are allowed. Pet.

App. 57a (court’s decision, like Martin, was narrowly

limited to principle that it is unconstitutional to punish

someone for sleeping somewhere in public when they have

nowhere to go). Although issues related to encampments

are unquestionably important, none of those issues is

properly addressed here.

Petitioner (Br. 47) and some of its amici blame

Robinson’s prohibition against status crimes, and the

limited application of that doctrine to sleeping/camping

laws, for supposedly increased crime and disease on the

streets of this country. See, e.g., Brentwood Cmty. Council

16

Amicus Br. 13–14 (implying that without the ability to

arrest people who have nowhere to sleep but outside,

local governments are “confus[ed]” about their ability to

enact public health and safety regulations); Venice Cmty.

Stakeholders Ass’n Amicus Br. 17; L.A. Chamber of

Com. Amicus Br. 16. But the courts are not to blame for

policy failures that created the housing and homelessness

conditions in our country today. As the Florida examples

of Pottinger, Joel, and McArdle show, Eighth Amendment

doctrine does not constrain petitioner’s and its amici’s

policy choices to address homelessness. Nor does it

restrain them from enforcing common-sense health and

safety regulations or arresting people for the litany of

crimes that are already prohibited by law.

The impact of such rhetoric is to scare the public by

classifying an entire group of people based on unfounded

accusations of their inherent criminality—rhetoric that

was also once used to justify vagrancy laws and has since

been soundly rejected. See Papachristou, 405 U.S. at 171

(“The implicit presumption in these generalized vagrancy

standards—that crime is being nipped in the bud—is too

extravagant to deserve extended treatment.”).

E. Robinson has not created mayhem in lower

courts.

Petitioner complains (Br. 43–44) that Robinson, as

applied to the status of homelessness, is unworkable and

will create confusion in the lower courts. Petitioner is

wrong. There is no crisis caused by the application of

Robinson to people who are involuntarily sleeping outside,

nor will it disrupt criminal law at large.

17

First, this Court should reject arguments raised

by petitioner and some of its amici that the shelter

availability test is unworkable because governments can

neither shelter everybody nor determine who is “choosing”

to sleep outside. See Pet. Br. 43 (“Courts also have no

discernible standards by which to judge involuntariness.”);

see, e.g., City of Chico Amicus Br. 18–20 (discussing

difficulties of counting homeless individuals and available

beds and deciding whether individuals are “voluntarily”

homeless).4 But these protests ring hollow. Objections

to “workability” ultimately reveal a deeper motivation:

governments defend sleeping laws because, like vagrancy

laws before them, they are expedient. Affirming the Ninth

Circuit’s finding that these sleeping/camping ordinances

are unlawful status offenses will only reinforce the rule

of law, not undermine it as petitioner and its amici claim.

Second, this Court should reject petitioner’s argument

(Br. 47–49) that affirming the Ninth Circuit’s decision

would allow people to evade criminal responsibility for

all manner of crimes. The Ninth Circuit’s logic, it argues,

will lead to the decriminalization of armed robbery,

drug trafficking, sexual assault, and possession of child

pornography if a person is diagnosed with a drug or sexual

addiction. Id. Their slippery slope arguments should not

replace legal and factual analysis. “Judges and lawyers live

on the slippery slope of analogies; they are not supposed

to ski it to the bottom.” Robert Bork, The Tempting of

4. If amicus City of Chico cannot even navigate its own shelter

system, it is hard to imagine a person experiencing homelessness

doing so. Regardless, the solution is not for the City of Chico to

enlist the courts to punish people for being unable to navigate an

inadequate shelter system.

18

America: The Political Seduction of the Law 169 (1990).

As Judge O’Scannlain explained twenty years ago, “[i]n

our system of government, courts base decisions not

on dramatic Hollywood fantasies . . . but on concretely

particularized facts developed in the cauldron of the

adversary process and reduced to an assessable record.”

United States v. Kincade, 379 F.3d 813, 838 (9th Cir. 2004)

(en banc). The case before the Court should be decided

based on facts in the record, not fear of hypothetical

future cases.

Regardless, drug trafficking, armed robbery, sexual

assault, and child pornography are far afield from

sleeping. In rejecting arguments to extend Robinson to

drug possession or sexual abuse, courts have concluded

that “while addiction may be a ‘compelling propensity to

use narcotics,’ it is not necessarily an irresistible urge to

have them.” United States v. Moore, 486 F.2d 1139, 1150

(D.C. Cir. 1973); see also United States v. Black, 116 F.3d

198, 201 (7th Cir. 1997) (defendant’s possession of child

pornography was not “involuntary or uncontrollable”).

By contrast, sleeping in public if shelter is unavailable is

unavoidable. Even if the law prohibits sleeping, a person

cannot comply. See Pottinger I, 810 F. Supp. at 1565 (it is

“impossible” to resist the need to sleep). Because sleeping

is a harmless biological imperative, it is distinguishable

from the slippery slope of unchecked criminality that

petitioner conjures in its brief.

19

III. The history of vagrancy laws does not justify the

modern use of sleeping/camping ordinances to

punish people experiencing homelessness.

Petitioner contends that there is a history in this

country, dating to the founding era, of prohibiting sleeping/

camping in public. Br. 42–43 (citing Chicago v. Morales,

527 U.S. 41, 104 & nn.2–4 (1999) (Thomas, J., dissenting);

Coal. on Homelessness v. City of San Francisco, 90 F.4th

975, 987–989 (9th Cir. 2024) (Bumatay, J., dissenting)).

Petitioner’s reliance on the history of “archaic” vagrancy

laws, see Papachristou, 405 U.S. at 162, does not support

a finding that there is a tradition of banning sleeping/

camping in public for several reasons. First, this Court

has struck down vagrancy laws as unconstitutional, a rule

finding universal application among the lower courts after

Papachristou. Second, this Court has explicitly rejected

the pernicious history underpinning vagrancy laws that

imposed status-based punishment on the basis of poverty

and race. Finally, sleeping/camping ordinances, of the

kind at issue in this case, are not generally applicable

ordinances that existed at the time of the founding of this

country. Indeed, they are a relatively modern invention for

policing homelessness. Vagrancy laws differ substantially

in form from the sleeping/camping ordinances at issue

here (Resp. Br. 34–38). In function, however, both are a

convenient tool for those in political power to punish people

not for what they do, but for who they are. And neither has

a place in a constitutional system governed by the rule of

law. See Edwards v. California, 314 U.S. 160, 176–77 (1941)

(rejecting nineteenth-century formulations of the police

power that permitted states to exclude “paupers” and

“vagabonds” as a “moral pestilence.” (citation omitted)).

20

A.

Courts have repeatedly found that vagrancy

laws are unconstitutional status crimes under

the Fourteenth and Eighth Amendments.

In 1972, this Court struck down a vagrancy law from

the City of Jacksonville, Florida, that criminalized a

grab-bag of statuses, including “rogues and vagabonds,”

“habitual loafers,” “persons wandering or strolling

around from place to place without any lawful purpose

or object,” and “persons able to work but habitually

living upon the earnings of their w ives or minor

children”—or, as the Court summarized, “poor people,

nonconformists, dissenters, idlers.” Papachristou, 405

U.S. at 156 n.1, 170. This Court specifically discussed and

rejected the historical justifications for vagrancy laws.

It unequivocally concluded that vagrancy laws “teach

that the scales of justice are so tipped that even-handed

administration of the law is not possible. The rule of law,

evenly applied to minorities as well as majorities, to the

poor as well as the rich, is the great mucilage that holds

society together.” Papachristou, 405 U.S. at 171; see

also Lazarus v. Faircloth, 301 F. Supp. 266, 271 (S.D.

Fla. 1969) (facially invalidating Florida vagrancy law),

vacated sub nom. Shevin v. Lazarus, 401 U.S. 987 (1971)

(vacated on Younger grounds); Smith v. Florida, 405 U.S.

172, 173 (1972) (vacating and remanding Florida Supreme

Court decision upholding Florida’s vagrancy statute for

reconsideration in light of Papachristou).

Although Papachristou was decided on due process

grounds, other courts have overturned vagrancy laws

because they punish status, relying on Robinson. See,

e.g., Pottinger I, 810 F. Supp. at 1562; Goldman v. Knecht,

295 F. Supp. 897, 908 (D. Colo. 1969) (three-judge court)

21

(invalidating statute punishing “idleness or indigency

coupled with being able-bodied”); Wheeler v. Goodman,

306 F. Supp. 58, 63 (W.D.N.C. 1969) (three-judge court)

(“Idleness and poverty should not be treated as a criminal

offense.”), vacated, 401 U.S. 987 (1971) (vacated on

Younger grounds); Smith v. Hill, 285 F. Supp. 556, 558

(E.D.N.C. 1968) (invalidating vagrancy statute on multiple

constitutional grounds, including that it “creates a crime

of the status of indigency”).

B. This Court has explicitly rejected this country’s

history of using vagrancy laws as a tool of

racial and economic subjugation.

During the founding era, U.S. vagrancy laws served

as the criminal enforcement mechanism behind early

U.S. poor laws, which rendered poor people “petty

criminals” and “poverty [] a crime.” 5 See William P.

Quigley, Reluctant Charity: Poor Laws in the Original

Thirteen States, 31 U. Rich. L. Rev. 111, 160, 164 (1997);

see also Crime, Black’s Law Dictionary (11th ed. 2019)

(“vagrancy” exemplifies a “status crime”). It was only

5. The colonial-era Pennsylvania statute petitioner cites (Br.

42–43), is one such vagrancy law. The law made it a status crime to

belong to a class of “idle and disorderly persons,” a class limited to

poor people—those who lacked “wherewith to maintain themselves

and their families” or “no visible means of subsistence” or who would

“beg” or “gather alms”—and people who had returned after being

“legally removed” from a jurisdiction. Act of Feb. 21, 1767, ch. 555,

§ 1, 1767 Pa. Laws 268–69. Contrary to petitioner’s suggestion (Br.

42), the statute did not restrict “sleeping and camping on public

property” generally. Moreover, the statute exempted “involuntary”

vagrancy. Resp. Br. 35.

22

poor people—not the affluent—who could be convicted

as vagrants for failing to work, or even failing to work

“hard enough.” Quigley, supra, at 165, 169; see also Cody

v. State, 45 S.E. 622, 622 (Ga. 1903) (affirming a vagrancy

conviction of person who, owning no property and earning

only “small sums” that “were insufficient to support her,”

lived in a “general state of idleness”). Unlike the sleeping/

camping ordinances here, however, founding-era poor laws

created an affirmative obligation on local governments

to provide relief for poor people. See Quigley, supra, at

114; see also Resp. Br. 34–36. The vagrancy regime’s

criminalization of people who lived in “idle” poverty—

people “who failed to remain in their prescribed place in

the economic order”—persisted into the mid-twentieth

century. Risa Goluboff, Vagrant Nation: Police Power,

Constitutional Change, and the Making of the 1960s,

15–17, 81–86 (2016); see also, e.g., City of New Orleans v.

Postek, 158 So. 553, 555 (La. 1934) (defining the “usual . . .

classes of vagrants,” including “the stereotype class of

idle persons, without visible means of support, and who

live without employment”).

In a series of decisions spanning the past eighty

years, this Court no longer allows states to reserve

special penalties for people because they are experiencing

poverty. See, e.g., Edwards, 314 U.S. at 174–175, 177

(rejecting theory of Elizabethan poor laws in striking down

prohibitions against transporting indigent persons into

state); Williams v. Illinois, 399 U.S. 235, 240–241 (1970)

(holding that although there is ancient historical precedent

to support jailing someone for nonpayment of a fine, the

equal protection clause does not authorize it); Shapiro v.

Thompson, 394 U.S. 618, 629 (1969) (striking down oneyear residency requirement for welfare assistance because

23

its purpose—to deter migration of persons experiencing

poverty—like its historical antecedents, was no longer

constitutionally permissible), overruled on other grounds,

Edelman v. Jordan, 415 U.S. 651 (1974).

Other illegal aspects of colonial-era vagrancy laws,

such as involuntary servitude, were similarly rejected. See,

e.g., Pollock v. Williams, 322 U.S. 4, 17 (1944) (invalidating

Florida contract labor law as unconstitutional involuntary

servitude, reasoning that the Thirteenth Amendment

as implemented by the Anti-Peonage Act of 1867 was

intended “not merely to end slavery but to maintain a

system of completely free and voluntary labor throughout

the United States”); United States v. Reynolds, 235 U.S.

133, 149 (1914) (Alabama criminal surety law violated

Thirteenth Amendment and Anti-Peonage Act); Bailey,

219 U.S. at 244–245 (same as to Alabama contract labor

law, even though the law was framed as punishment for

“fraud”).

Vagrancy laws were crucial to maintaining white

supremacy in the U.S. South from emancipation through

the civil rights era, until Papachristou. “[B]road

proscriptions on ‘vagrancy’ and other dubious offenses”

were passed immediately after the Civil War ended as

part of “Black Codes” designed “to subjugate newly freed

slaves and maintain the prewar racial hierarchy.” Timbs

v. Indiana, 139 S. Ct. 682, 688–89 (2019); see also City of

Memphis v. Greene, 451 U.S. 100, 131 n.5 (1981) (White,

J., concurring) (vagrancy and related labor laws could be

framed in “a hundred ways” to force Black people into

“some species of serfdom, peonage, or some other form

of compulsory labor” (quoting S. Exec. Doc. No. 2, 39th

Cong., 1st Sess. 35 (1865)).

24

After the repeal of Black Codes, with the passage

of the Civil Rights Act of 1866, see Greene, 451 U.S. at

132–33, Southern states resorted to disproportionately

enforcing antebellum vagrancy statutes—ostensibly raceneutral—against Black people. See Goluboff, supra, at 116;

see also, e.g., Hicks v. State, 76 Ga. 326, 328 (1886) (“[T]he

law of vagrancy should be rigidly enforced, against the

colored population especially, because many of them do

lead idle and vagrant lives[.]”). Then, in tandem with

Jim Crow segregation laws, all but one of the former

Confederate states adopted new vagrancy laws from 1893

to 1909. William Cohen, Negro Involuntary Servitude in

the South, 1865–1940: A Preliminary Analysis, 42 J.S.

Hist. 31, 48, 50 (1976).

Just as this Court has rejected the history of vagrancy

laws, it has also rejected the racial discrimination that

such laws facilitated for over a century after emancipation.

See, e.g., Timbs, 139 S. Ct. at 688–89 (denouncing the

Black Codes’ use of vagrancy laws and excessive fines to

coerce involuntary labor). For example, vagrancy laws

were used to punish civil rights protestors in the sit-in

cases. Adickes v. S. H. Kress & Co., 398 U.S. 144, 197–200

(1970) (Brennan, J., concurring in part and dissenting in

part); see also Goluboff, supra, at 123 (relating how police

officers “threatened and arrested movement activists

with vagrancy or loitering arrests” for participating

in movement organizing, including sit-ins, boycotts,

integration of swimming pools, voter registration, “or

even when they just walked down the street”). As this

Court observed, “[t]he Black Codes were a substitute for

slavery; segregation was a substitute for the Black Codes;

the discrimination in [] sit-in cases is a relic of slavery.”

Bell v. Maryland, 378 U.S. 226, 247–48 (1964) (Douglas, J.,

25

concurring in part). This Court should decline petitioner’s

invitation to revive the system of racial and economic

subordination that vagrancy laws facilitated.

C.

Sleeping/camping ordinances, by design and

application, are not generally applicable

and instead target only people experiencing

homelessness.

Vagrancy laws have largely disappeared after

Papachristou, and their history of enforcement in this

country should not be seriously considered as justification

for punishing people who are experiencing homelessness

today. Far from being generally applicable, modern

sleeping/camping ordinances target homeless people

directly either facially, by specifically referencing

homelessness in the text, or by criminalizing innate

biological processes like sleeping or resting that are

inherent to the human condition. Sleeping/camping

ordinances are not designed to alleviate unsheltered

homelessness; rather, they punish people solely because

they are involuntarily unsheltered.

Petitioner invokes (Br. 43) vagrancy law to justify

its sleeping/camping ordinances. See Goluboff, supra, at

341 (describing how “neo-vagrancy type justifications”

for “quality-of-life” policing emerged after “vagrancy

law’s downfall” in Papachristou). The Johnson judges

dissenting from the denial of rehearing en banc likewise

analogized the Grants Pass ordinance to “traditional

anti-vagrancy regulations.” Pet. App. 122a (O’Scannlain,

J., dissenting from denial of rehearing en banc); cf.

Jones, 444 F.3d at 1137 (analogizing vagrancy laws to

criminalization of siting, lying down, or sleeping). The City

26

of Chico compares its own anti-camping ban to an 1887

state anti-vagrancy law, California Penal Code section

647, both of which it is currently enjoined from enforcing.

City of Chico Amicus Br. 7, 12–13. These comparisons only

serve to further delegitimize petitioner’s justifications for

sleeping/camping ordinances. They reveal that sleeping/

camping ordinances function, like vagrancy laws before

them, as a shortcut in criminal law to punish people

deemed undesirable.

In Florida, the first published state court decision

addressing the constitutionality of a sleeping ordinance

came the year after Papachristou was decided. Drawing a

direct comparison to vagrancy legislation, a state appeals

court struck down an ordinance banning sleeping in public

places from the City of St. Petersburg, Florida, enacted

in 1955, on vagueness grounds. State v. Penley, 276 So.

2d 180, 181 (Fla. 2d DCA 1973) (“We find that there is

marked similarity between this ordinance and most

vagrancy legislation in that both provide for punishment

of unoffending behavior.”). Another decision followed in

1984, striking down, on vagueness grounds, an ordinance

from the City of Daytona Beach, Florida, prohibiting

lodging or sleeping in a vehicle. City of Pompano Beach

v. Capalbo, 455 So. 2d 468, 470 (Fla. 4th DCA 1984)

(comparing vagrancy law struck down in Lazarus because

both “criminalize[] conduct which is beyond the reach of

the city’s police power inasmuch as conduct ‘in no way

impinges on the rights or interests of others.’” (quoting

Lazarus, 301 F. Supp. at 272)). The Eleventh Circuit, in

1987, addressed a city ordinance that prohibited lodging

and sleeping in motor vehicles. See Hershey v. City of

Clearwater, 834 F.2d 937 (11th Cir. 1987). On procedural

due process vagueness grounds, the court upheld the

27

ordinance, but only after striking the prohibition against

“sleeping,” finding that “the ordinance—after severance—

gives proper and precise notice of the conduct prohibited:

a person may not, in fact, remain on public property and

use his motor vehicle as a living accommodation there.”

Id. at 940. The Eleventh Circuit did not address any

claim that this interpretation of the ordinance, which

only applied to people who were living in their vehicles,

violated any other constitutional doctrine such as the

Eighth Amendment’s prohibition against status crimes.

Thus, to avoid vagueness challenges (because sleep itself

is inherently innocent and outside government’s police

powers to prohibit), legislators enacted ordinances

specifically targeted at people who were living outside.

See, e.g., Joel, 232 F.3d at 1356 (enforcement criteria

adopted in response to local court rulings holding that a

person must do more than sleep to be arrested).

The Ninth Circuit’s decision in Martin and Johnson

saw these types of sleeping/camping ordinances for what

they were: newfound ways to punish people for poverty.

In Martin, the camping ordinance criminalized using

“any of the streets, sidewalks, parks or public places as

a camping place at any time.” Martin, 920 F.3d at 603

(citation omitted). The ordinance defined “camping”

broadly to include “the laying down of bedding for the

purpose of sleeping.” Id. at 618 (citation omitted). The

court relied on a well-developed record to find that the

ordinance was being enforced against individuals who

used minimal blankets or bedding and had nowhere else

to go; therefore, they were penalized for their housing

status. Martin, 920 F.3d at 609–610.

28

The ordinances at issue in Johnson are nearly identical

to those in Martin. Individuals are prohibited from sleeping

or “[c]amping” on public property. See Pet. App. 221a–223a.

Petitioner claims (Br. 37) that the ordinance’s definition

of a campsite is “solely in terms of conduct” because it is

“any place where bedding, sleeping bag, or other material

used for bedding purposes, or any stove or fire is placed”

(Pet. App. 221a). Petitioner and its amici claim that using

minimal bedding or blankets—essential to survival in

cold or even moderate temperatures—is conduct that is

somehow discernible and severable from sleeping. The

Ninth Circuit in Johnson correctly rejected that argument

and this transparent attempt to evade the core holding in

Martin. See id. at 47a–48a.

Ordinances outside of the Ninth Circuit reveal

the same underlying intent to target homeless people.

For example, in McArdle, the City’s ordinance facially

referenced homelessness, McArdle, 519 F. Supp. 3d at

1048, as did the enforcement criteria in Joel, 232 F.3d at

1356. The legislative history reflected that Ocala did so

because it wanted to distinguish between a person who

is “enjoying a nice day and is sitting on a park bench and

dozes off” and someone who has “indicia of living” in

public. Pls.’ Resp. to Def.’s Mot. Summ. J. at 6–7, McArdle,

supra (No. 5:19-cv-00461), ECF No. 120. Ocala’s definition

of lodging explicitly names the same insidious intent

behind similar laws in Boise, Grants Pass, and beyond: to

criminalize sleep not because it is harmful, but because it

substitutes as a proxy for a person’s housing status when

no other shelter is available.

Tennessee, Georgia, and Florida recently enacted

legislation restricting sleeping/camping in public.

29

Although these statutes differ from the Grants Pass

ordinances (Resp. Br. 41– 42), none are generally

applicable camping regulations. Tennessee makes it a

felony to camp statewide on public property overnight,

unless in a designated camping area. Camping is defined

to include, inter alia, “[s]leeping or making preparations

to sleep, including laying down a sleeping bag, blanket, or

other material used for bedding.” T.C.A. § 39-14-414(b)(2)

(effective July 1, 2022); see also O.C.G.A. § 36-60-31

(effective July 1, 2023) (Georgia statute preempting

local discretion on enforcement of “the enforcement of

any order or ordinance prohibiting unauthorized public

camping, sleeping, or obstruction of sidewalks.”). A new

Florida statute, H.B. 1365 (Fla. 2024) (to be codified at

Fla. Stat. § 125.0231) (effective Oct. 1, 2024), preempts

municipalities from allowing “public camping or sleeping”

on any public property, id. §1(b)(2), unless it is designated

to be a government-operated camp, id. § 1(b)(3). Florida

defines “public camping or sleeping” to include, inter alia,

“lodging or residing overnight without a tent or other

temporary shelter.” Id. § 1(b)1.b. The bill provides an

exception for individuals in their vehicles at places where

a vehicle “may lawfully be,” and camping for recreational

purposes. Id. § 1(b)2.b. All of these statewide bills are

directed at homelessness.

Petitioner claims (Br. 43) that it seeks generally

applicable ways of regulating “public space and public use”

similar to the federal government’s camping prohibitions

in Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288,

296 (1984). But Clark, which upheld on First Amendment

grounds National Park Service regulations limiting

recreational camping to designated areas, is inapposite.

See 468 U.S. at 298. The ordinances in Martin and

Johnson are not regulating recreational camping in a park

30

where it is otherwise permissible; they are prohibiting

the existence of homeless people themselves in all public

places throughout entire cities 24 hours a day, 7 days a

week.

Further, like vagrancy laws before them, sleeping/

camping ordinances also have discriminatory impacts

on the basis of race. Nationally, Black Americans make

up 13 percent of the overall population, but more than 37

percent of the total homeless population and 50 percent

of all families experiencing homelessness. U.S. Dep’t of

Hous. & Urb. Dev., supra, at 2. This general trend holds

true in Florida. For example, Black residents of Miami

make up 18 percent of the overall population but more than

57 percent of the total homeless population and 66 percent

of all families experiencing homelessness. Homeless Trust

Miami-Dade Cty., Miami-Dade Racial Disparity Among

Persons Experiencing Homelessness 2 (2020), https://

www.homelesstrust.org/resources-homeless/library/

racial-disparity-highlights.pdf. These racial disparities

are caused by a long history of racial discrimination,

segregation, and economic inequality. See generally

George R. Carter, From Exclusion to Destitution, Race

Affordable Housing and Homelessness, 13 Cityscape

33 (2011), www.huduser.gov/portal/periodicals/cityscpe/

vol13num1/cityscape_march 2011_from_exclusion.

pdf. Enforcement of these sleeping/camping bans will

undoubtedly perpetuate over-criminalization of Black

Americans, who are already overrepresented in America’s

jails and prisons. Leah Wang, Updated Data and Charts:

Incarceration Stats by Race, Ethnicity, and Gender for

All 50 States and D.C., Prison Policy Initiative (2023),

https://www.prisonpolicy.org/blog/2023/09/27/updated_

race_data/. By design and by effect, sleeping/camping

31

ordinances single out people who do not have housing

or shelter for punishment, resulting in disproportionate

impacts on the basis of race.

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

Kirsten A nderson

Counsel of Record

Southern Poverty Law Center

P. O. Box 10788

Tallahassee, FL 32302

(352) 318-7284

kirsten.anderson@splcenter.org

Ellen Degnan

Micah West

Southern Poverty Law Center

400 Washington Avenue

Montgomery, AL 36104

Crystal McElrath

Southern Poverty Law Center

150 E. Ponce de Leon Avenue,

Suite 340

Decatur, GA 30030

Counsel for Amici Curiae

April 3, 2024