No.
 

IN THE
Supreme Court of the United States

CITY OF GRANTS PASS,

Petitioner,
v.
GLORIA JOHNSON AND JOHN LOGAN, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals
For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

JONATHAN C. BOND THEANE D. EVANGELIS

GIBSON, DUNN & CRUTCHER LLP Counsel of Record
1050 Connecticut Ave., N.W. BRADLEY J. HAMBURGER
Washington, D.C. 20036 SAMUEL ECKMAN
DANIEL R. ADLER
AARON P. HISEL PATRICK J. FUSTER
CAPITOL LEGAL SERVICES GIBSON, DUNN & CRUTCHER LLP
901 Capitol Street NE 333 South Grand Avenue
Salem, OR 97301 Los Angeles, CA 90071
(213) 229-7000
tevangelis@gibsondunn.com
Counsel for Petitioner
 

 
 

QUESTION PRESENTED
In Martin v. City of Boise, 920 F.3d 584 (9th Cir.
2019), the Ninth Circuit held that the Cruel and Un-
usual Punishments Clause prevents cities from en-
forcing criminal restrictions on public camping unless
the person has “access to adequate temporary shel-
ter.” Id. at 617 & n.8. In this case, the Ninth Circuit
extended Martin to a classwide injunction prohibiting
the City of Grants Pass from enforcing its public-
camping ordinance even though civil citations. That
decision cemented a conflict with the California Su-
preme Court and the Eleventh Circuit, which have up-
held similar ordinances, and entrenched a broader
split on the application of the Eighth Amendment to
purportedly involuntary conduct. The Ninth Circuit
nevertheless denied rehearing en banc by a 14-to-13
vote.
The question presented is:
Does the enforcement of generally applicable laws
regulating camping on public property constitute
“cruel and unusual punishment” prohibited by the
Eighth Amendment?

 
 ii

RELATED PROCEEDINGS
United States District Court (D. Or.)
Blake v. City of Grants Pass
No. 18-cv-1823 (Aug. 26, 2020)
(judgment entered)

United States Court of Appeals (9th Cir.)

Johnson v. City of Grants Pass
Nos. 20-35752, 20-35881 (July 5, 2023)
(amended opinion upon denial of rehearing)

 
 iii

TABLE OF CONTENTS
Page
OPINIONS BELOW ................................................... 1 
JURISDICTION ......................................................... 2 
CONSTITUTIONAL PROVISIONS INVOLVED ..... 2 
INTRODUCTION ....................................................... 2 
STATEMENT ............................................................. 6 
REASONS FOR GRANTING THE PETITION ...... 15 
I.  THE NINTH CIRCUIT’S DECISION ENTRENCHES
A CONFLICT AMONG THE LOWER COURTS .......... 16 
II.  THE NINTH CIRCUIT’S DECISION CONFLICTS
WITH THIS COURT’S DECISIONS. ......................... 24 
III.  THE QUESTION PRESENTED IS EXCEPTIONALLY
IMPORTANT.......................................................... 30 
CONCLUSION ......................................................... 35 

 
 iv

TABLE OF APPENDICES
Page
APPENDIX A:
Amended Opinion and Order of the
United States Court of Appeals for the
Ninth Circuit Denying Petition for
Panel Rehearing and Rehearing En Banc
(July 5, 2023) ...................................................... 1a
APPENDIX B:
Order of the United States District Court
for the District of Oregon Granting in Part
and Denying in Part Plaintiffs’ Motion for
Summary Judgment; Denying Defendants’
Motion for Summary Judgment
(July 22, 2020) ................................................ 163a
APPENDIX C:
Order of the United States District Court
for the District of Oregon Granting
Plaintiffs’ Motion for Class Certification
(June 5, 2020) ................................................. 206a
APPENDIX D:
Constitutional and Statutory
Provisions Involved ........................................ 221a

 
 v

TABLE OF AUTHORITIES

Page(s)
Cases
Allen v. City of Sacramento,
234 Cal. App. 4th 41 (2015) ................................. 17
Bucklew v. Precythe,
139 S. Ct. 1112 (2019) .......................................... 25
City of Seattle v. Hill,
435 P.2d 692 (Wash. 1967) .................................. 22
Coalition on Homelessness v. City & County of
San Francisco,
2022 WL 17905114 (N.D. Cal. Dec. 23, 2022) ..... 31
Driver v. Hinnant,
356 F.2d 761 (4th Cir. 1966) .......................... 22, 23
Fund for Empowerment v. City of Phoenix,
2022 WL 18213522 (D. Ariz. Dec. 16, 2022)... 31, 32
Georgia v. Public.Resource.Org, Inc.,
140 S. Ct. 1498 (2020) .......................................... 29
Harmelin v. Michigan,
501 U.S. 957 (1991) .............................................. 25
Ingraham v. Wright,
430 U.S. 651 (1977) ........................ 3, 18, 25, 27, 28
Joel v. City of Orlando,
232 F.3d 1353 (11th Cir. 2000) ...................... 17, 20
Johnson v. City of Dallas,
61 F.3d 442 (5th Cir. 1995) ............................ 17, 18
Jones v. City of Los Angeles,
444 F.3d 1118 (9th Cir. 2006) .................... 6, 23, 26

 
 vi

Jones v. City of Los Angeles,

505 F.3d 1006 (9th Cir. 2007) ................................ 7
In re Jones,
246 A.2d 356 (Pa. 1968) ....................................... 23
Kahler v. Kansas,
140 S. Ct. 1021 (2020) .......................................... 28
In re Kemmler,
136 U.S. 436 (1890) .............................................. 25
Loveday v. State,
247 N.W.2d 116 (Wis. 1976) ................................ 22
Mahoney v. City of Sacramento,
2020 WL 616302 (E.D. Cal. Feb. 10, 2020) ......... 32
Manning v. Caldwell,
930 F.3d 264 (4th Cir. 2019) .......................... 23, 28
Marks v. United States,
430 U.S. 188 (1977) ................................................ 4
Martin v. City of Boise,
902 F.3d 1031 (9th Cir. 2018) ................................ 2
Martin v. City of Boise,
920 F.3d 584 (9th Cir. 2019) ......... 2, 3, 7, 8, 18, 22,
25, 26, 29, 30, 32
United States ex rel. Mudry v. Rundle,
429 F.2d 1316 (3d Cir. 1970) ............................... 21
People v. Hoy,
158 N.W.2d 436 (Mich. 1968) .............................. 22
People v. Jones,
251 N.E.2d 195 (Ill. 1969) .................................... 22
Pottinger v. City of Miami,
810 F. Supp. 1551 (S.D. Fla. 1992) ...................... 26

 
 vii

Powell v. Texas,
392 U.S. 514 (1968) ............ 4, 19, 20, 23, 27, 28, 29
Railroad Retirement Bd. v. Fritz,
449 U.S. 166 (1980) .............................................. 29
Rangel v. State,
444 S.W.2d 924 (Tex. Crim. App. 1969) .............. 22
Robinson v. California,
370 U.S. 660 (1962) ............ 4, 18, 19, 23, 24, 26, 27
Rosser v. Housewright,
664 P.2d 961 (Nev. 1983) ..................................... 22
Shelburne v. State,
446 P.2d 58 (Okla. Crim. App. 1968) .................. 22
Smith v. Follette,
445 F.2d 955 (2d Cir. 1971) ................................. 21
Solem v. Helm,
463 U.S. 277 (1983) .............................................. 27
State v. Adams,
91 So. 3d 724 (Ala. Crim. App. 2010) .................. 23
State v. Little,
261 N.W.2d 847 (Neb. 1978) ................................ 22
State v. Margo,
191 A.2d 43 (N.J. 1963)........................................ 22
State v. Mendoza,
454 P.2d 140 (Ariz. 1969) ..................................... 22
State v. Robinson,
254 P.3d 183 (Utah 2011) .................................... 22
State v. Smith,
219 N.W.2d 655 (Iowa 1974)................................ 22

 
 viii

State v. Smith,
355 A.2d 257 (Conn. 1974) ................................... 22
Steeves v. State,
178 N.W.2d 723 (Minn. 1970) .............................. 22
Tobe v. City of Santa Ana,
892 P.2d 1145 (Cal. 1995) .............................. 17, 22
United States v. Black,
116 F.3d 198 (7th Cir. 1997) .......................... 20, 21
United States v. Moore,
486 F.2d 1139 (D.C. Cir. 1973) ...................... 21, 24
United States v. Sirois,
898 F.3d 134 (1st Cir. 2018) ................................ 20
Vick v. State,
453 P.2d 342 (Alaska 1969) ................................. 22
Warren v. City of Chico,
2021 WL 2894648 (E.D. Cal. July 8, 2021) ... 30, 31
Washington v. Glucksberg,
521 U.S. 702 (1997) .............................................. 26
Wheeler v. United States,
276 A.2d 722 (D.C. 1971) ..................................... 22
Yanez v. Romero,
619 F.2d 851 (10th Cir. 1980) .............................. 21
Constitutional Provisions
U.S. Const. amend. VIII ........................................ 2, 25
Statutes
28 U.S.C. § 1254 .......................................................... 2
Grants Pass Municipal Code § 5.61.010 ..................... 9
Grants Pass Municipal Code § 5.61.020 ..................... 9

 
 ix

Grants Pass Municipal Code § 5.61.030 ..................... 9

Grants Pass Municipal Code § 6.46.090 ..................... 9
Grants Pass Municipal Code § 6.46.350 ..................... 9
Other Authorities
Anna Gorman & Kaiser Health News,
Medieval Diseases Are Infecting
California’s Homeless, The Atlantic
(Mar. 8, 2019) ....................................................... 33
Christal Hayes, ‘The World Doesn’t Care’:
Homeless Deaths Spiked During
Pandemic, Not from COVID. From Drugs.,
USA Today (May 28, 2022) .................................. 33
Editorial Board, Why San Francisco Is a
Homeless Mecca, Wall St. J. (Aug. 6, 2023) ........ 31
Eli Saslow, A Sandwich Shop, a Tent City
and an American Crisis, N.Y. Times
(Mar. 31, 2023) ..................................................... 32
Eric Leonard, LAPD Concerned About Increase
in Sexual Violence Against Women
Experiencing Homelessness (Feb. 27, 2020) ........ 33
Jennifer Medina, Los Angeles Fire Started
in Homeless Encampment, Officials
Say, N.Y. Times (Dec. 12, 2017) .......................... 34
Michael Corkery, Fighting for Anthony:
The Struggle to Save Portland,
Oregon, N.Y. Times (July 29, 2023) .................... 33
Natalie O’Neill, Blazes That Begin in
Homeless Camps Now Account for
Nearly Half the Fires in Portland,
Willamette Week (Nov. 2, 2022) .......................... 34

 
 x

Recent Killings in Los Angeles and New York

Spark Anger, Raise Risk for Homeless
People, KTLA (Jan. 28, 2022) .............................. 33
Sam Quinones, Skid Row Nation: How L.A.’s
Homelessness Crisis Response Spread
Across the Country, L.A. Mag. 108
(Oct. 6, 2022) .................................................. 33, 34
Thomas Fuller, Death on the Streets,
N.Y. Times (Apr. 25, 2022) .................................. 33

 
 

IN THE
Supreme Court of the United States

No.
CITY OF GRANTS PASS,
Petitioner,
v.
GLORIA JOHNSON AND JOHN LOGAN, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals
For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

The City of Grants Pass, Oregon, respectfully pe-

titions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Ninth
Circuit in this case.

OPINIONS BELOW
The Ninth Circuit’s amended opinion, together
with its order denying the City’s petition for panel re-
hearing or rehearing en banc (App., infra, 1a-162a), is
reported at 72 F.4th 868. The district court’s order on
the parties’ cross-motions for summary judgment
(App., infra, 163a-205a) is not reported but is availa-
ble at 2020 WL 4209227. An earlier order of the dis-
trict court on class certification (App., infra, 206a-

 
 2

220a) is not reported but is available at 2019 WL

3717800.

JURISDICTION
The Ninth Circuit issued its original opinion on
September 28, 2022, and issued an amended opinion
and order denying rehearing on July 5, 2023. The ju-
risdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment to the Constitution pro-
vides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual pun-
ishments inflicted.” U.S. Const. amend. VIII.
Relevant ordinances are reproduced in the appen-
dix to the petition. App., infra, 221a-224a.

INTRODUCTION
The Ninth Circuit has decided that enforcement
of commonplace restrictions on public camping consti-
tutes “cruel and unusual punishment” within the
meaning of the Eighth Amendment. When the Ninth
Circuit first announced this rule in Martin v. City of
Boise, 902 F.3d 1031 (9th Cir. 2018), amended on de-
nial of reh’g, 920 F.3d 584 (9th Cir. 2019), six judges
criticized the decision as a constitutional aberration
that deviated from this Court’s decisions and split
from the lower courts. They also predicted that Mar-
tin would paralyze cities across the West in address-
ing urgent safety and public-health risks created by
an ever-growing sprawl of tents and makeshift struc-
tures. The panel in Martin responded that its ruling
was “narrow” and would leave ample leeway to cities
on the frontlines of the homelessness crisis. 920 F.3d

 
 3

at 617. Five years under Martin has proved the dis-

senters right—and then some.
This case offered the Ninth Circuit an opportunity
to correct course. Instead, it doubled down on Martin,
extending that ruling to civil citations and affirming a
classwide injunction against the City of Grants Pass’s
enforcement of its ordinance prohibiting camping on
public property. The full Ninth Circuit then denied
rehearing en banc by the slimmest of margins—
14 to 13—over the objections of 17 active and senior
judges, who explained that the Ninth Circuit should
have reconsidered this ill-conceived judicial experi-
ment.
The Ninth Circuit’s decisions have no foundation
in the Constitution’s original meaning or our Nation’s
history and traditions. The Cruel and Unusual Pun-
ishments Clause (as its name suggests) prohibits
“‘methods of punishment’” that inflict unnecessary
pain and have fallen out of use. Martin, 920 F.3d
at 601 (Bennett, J., dissenting from denial of rehear-
ing en banc). As Judge O’Scannlain explained, that
provision does not have “anything to do with the juris-
prudence” the Ninth Circuit has created for public-
camping ordinances. App., infra, 122a (statement re-
specting denial of rehearing en banc). There is noth-
ing cruel or unusual about a civil fine for violating
commonplace restrictions on public camping.
Consistent with that original meaning, this Court
has recognized that the “‘primary purpose’” of the
Cruel and Unusual Punishments Clause “‘has always
been considered, and properly so, to be directed at the
method or kind of punishment imposed for the viola-
tion of criminal statutes.’” Ingraham v. Wright, 430
U.S. 651, 667 (1977). Only once has this Court held
that the Eighth Amendment imposes a substantive

 
 4

limit on what can be made a crime as opposed to how

a crime could be punished. In Robinson v. California,
370 U.S. 660 (1962), this Court decided that the
Eighth Amendment forbids punishing the status of be-
ing a drug addict, even if it permits prosecutions for
the act of using drugs.
The Ninth Circuit concluded that the Cruel and
Unusual Punishments Clause protects the conduct of
camping on public property through a misreading of
Robinson and the splintered decision in Powell v.
Texas, 392 U.S. 514 (1968). In Powell, Justice Mar-
shall, writing for a four-Justice plurality, rejected an
Eighth Amendment defense because the defendant
was punished for the act of being drunk in public, not
the status of being an alcoholic. Justice Fortas’s dis-
sent (also for four Justices) advanced a diametrically
opposed view: that Robinson prohibits punishing be-
havior that a defendant has no power to change. Con-
curring in the judgment, Justice White opined that
the Eighth Amendment might prohibit enforcement of
the challenged law if the defendant had no place else
to go, but explained that it was unnecessary to decide
that issue because the defendant had not proved he
had no choice but to be drunk in public on the night in
question.
In Martin and this case, the Ninth Circuit read
the Powell dissent together with Justice White’s dicta
to create the rule that the Eighth Amendment prohib-
its punishment for conduct that purportedly flows
from a status. That dissent-plus-concurrence-dicta
approach is impossible to square with Marks v. United
States, 430 U.S. 188 (1977), which directs lower courts
interpreting fractured decisions to examine only the
views of Justices concurring in the judgment. And re-
gardless of which opinion is controlling on lower

 
 5

courts under Marks, the Ninth Circuit’s understand-

ing of Powell is at odds with both the Eighth Amend-
ment’s focus on methods of punishment and this
Court’s consistent recognition that Justice Marshall’s
plurality opinion—not Justice White’s concurrence or
the dissent—embodies the true statement of constitu-
tional principles.
In deciding that the enforcement of public-camp-
ing ordinances constitutes cruel and unusual punish-
ment, the Ninth Circuit has parted ways with the Cal-
ifornia Supreme Court and the Eleventh Circuit, both
of which have upheld virtually identical ordinances
against similar challenges. The Ninth Circuit’s hold-
ing that the Eighth Amendment protects conduct re-
lated to status also deepened a longstanding divide
among the lower courts. On one side, seven circuits
and 17 state courts of last resort have held that the
government may punish acts (like drug use and sex
with minors) even if they cannot punish mere status
(like being a drug addict or pedophile). On the other
side, the Ninth and Fourth Circuits, as well as two
state courts, have extended the Eighth Amendment to
conduct that purportedly follows from a status.
Time is of the essence for this exceptionally im-
portant question. The Ninth Circuit, though nearly
evenly split, has made clear that it will not clean up
its outlier decisions on its own. But these decisions
have erected a judicial roadblock preventing a com-
prehensive response to the growth of public encamp-
ments in the West. The consequences of inaction are
dire for those living both in and near encampments:
crime, fires, the reemergence of medieval diseases, en-
vironmental harm, and record levels of drug overdoses
and deaths on public streets. The decision below,

 
 6

which reaffirms and extends Martin, will further

hamstring cities at the worst possible time.
The Ninth Circuit’s arrogation of quintessential
policymaking authority over public health and safety
has struck a blow not only to the principle of demo-
cratic governance, but also to the practical ability of
cities to address the growth of public encampments.
Only this Court can end this misguided project of fed-
eral courts dictating homelessness policy under the
banner of the Eighth Amendment.

STATEMENT
A. The Ninth Circuit’s creation of a right to public
camping under the Cruel and Unusual Punishments
Clause began two decades ago in Los Angeles. In
Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir.
2006), people living on Skid Row brought an Eighth
Amendment claim against an ordinance that prohib-
ited sitting, lying, or sleeping on streets, sidewalks,
and other public ways. Id. at 1123-1125. The district
court upheld the ordinance “because it penalizes con-
duct, not status.” Id. at 1125. A divided panel of the
Ninth Circuit reversed, holding that the Eighth
Amendment protects “involuntary conduct” (such as
sleeping on public property) that is “inseparable from
[the] status” of homelessness. Id. at 1136. The ma-
jority arrived at this rule by combining two separate
Powell opinions—Justice White’s concurrence and
Justice Fortas’s dissent. Id. at 1134-1136. Dissent-
ing, Judge Rymer objected that this “extension of the
Eighth Amendment to conduct that is derivative of
status takes the substantive limits on criminality fur-
ther than Robinson or its progeny support.” Id.
at 1143. After Los Angeles sought rehearing en banc,
the parties settled the case, and the Ninth Circuit

 
 7

vacated its opinion. Jones v. City of Los Angeles, 505

F.3d 1006 (9th Cir. 2007).
The Ninth Circuit resurrected the Jones rationale
soon enough. In Martin v. City of Boise, 920 F.3d 584
(9th Cir. 2019), people living on the streets of Boise
claimed that punishing public camping with fines or
short jail stints violates the Eighth Amendment. Id.
at 606. The Ninth Circuit held that any punishment
for public camping, no matter how small, would be
cruel and unusual if the plaintiffs had “no access to
alternative shelter,” repeating “essentially the same
reasons articulated in the now-vacated Jones opin-
ion.” Id. at 615.
The Ninth Circuit again read Justice White’s con-
currence and Justice Fortas’s dissent in Powell to-
gether to establish that “‘the Eighth Amendment pro-
hibits the state from punishing an involuntary act or
condition if it is the unavoidable consequence of one’s
status or being.’” 920 F.3d at 616. That rule meant
that Boise could not enforce its public-camping ordi-
nance “‘so long as there is a greater number of home-
less individuals in a jurisdiction than the number of
available beds in shelters.’” Id. at 617 (brackets omit-
ted). The court also disregarded open beds in reli-
giously affiliated shelters out of perceived Establish-
ment Clause concerns. Id. at 609-610. The Ninth Cir-
cuit stated, however, that its decision left open the
possibility of enforcement against “individuals who do
have access to adequate temporary shelter” but
“choose not to use it.” Id. at 617 n.8.
The Ninth Circuit denied rehearing en banc over
two separate dissents. Judge Milan Smith explained
that Martin misapplied Powell and invalidated the or-
dinances of “countless, if not all, cities within” the
Ninth Circuit. 920 F.3d at 590-594, 599. He also

 
 8

predicted that the “overwhelming financial responsi-

bility to provide housing for or count the number of
homeless individuals within their jurisdiction every
night” would force cities to “abandon enforcement of a
host of laws regulating public health and safety.” Id.
at 594. Judge Bennett separately canvassed the “text,
tradition, and original public meaning” of the Cruel
and Unusual Punishments Clause and found no au-
thority for courts to impose “substantive limits on
what conduct a state may criminalize.” Id. at 599-602.
In his view, Martin “stretche[d] the Eighth Amend-
ment past its breaking point.” Id. at 603.
Boise petitioned this Court for a writ of certiorari.
No. 19-247. Expressing concern about the widespread
impact of Martin, dozens of amici argued in favor of
review, including seven States and 45 counties, cities,
and local homeless service providers. After the plain-
tiffs claimed that Martin would “leave[] cities with a
powerful toolbox to address encampments” and urged
this Court “to await the contours of [Martin’s] rule to
be elucidated in subsequent cases,” Br. in Opp. 29-30,
this Court denied the petition, City of Boise v. Martin,
140 S. Ct. 674 (2019).
B. The effects of Martin immediately reverber-
ated throughout the Ninth Circuit, as the dissenting
judges and amici had predicted. Three days after the
Ninth Circuit’s initial September 2018 ruling, a plain-
tiff filed a follow-on suit against Portland. Compl.,
O’Callaghan v. City of Portland, No. 3:18-cv-1641-YY
(D. Or. Sept. 7, 2018). Over the ensuing months, more
plaintiffs pursued Martin theories. E.g., Compl., Mi-
ralle v. City of Oakland, No. 4:18-cv-6823 (N.D. Cal.
Nov. 9, 2018).
1. This wave affected cities big and small. Just
six weeks after the Ninth Circuit handed down

 
 9

Martin, three people brought Martin claims against

Grants Pass, a city of 38,000 in southern Oregon.
App., infra, 13a.
Like many cities and towns across the country,
Grants Pass protects public health and safety by reg-
ulating the public’s ability to camp or sleep overnight
in its outdoor spaces, including parks, trails, and side-
walks. App., infra, 221a-224a. Grants Pass has
adopted three ordinances related to public sleeping
and camping. The first prohibits sleeping “on public
sidewalks, streets, or alleyways at any time as a mat-
ter of individual and public safety.” Grants Pass Mu-
nicipal Code § 5.61.020(A). The second prohibits
“[c]amping” on “any sidewalk, street, alley, lane, pub-
lic right of way, park, bench, or any other publicly-
owned property or under any bridge or viaduct,” with
a “[c]ampsite” defined as “any place where bedding,
sleeping bag, or other material used for bedding pur-
poses, or any stove or fire is placed.” §§ 5.61.010(B),
5.61.030. And the third prohibits camping specifically
in the City’s parks. § 6.46.090.
Grants Pass enforces these ordinances through
civil citations, not through criminal fines or jail terms.
App., infra, 44a, 175a. If a person has twice been cited
for violating park regulations, city officers also have
authority to issue an exclusion order barring that per-
son from a City park for 30 days. Grants Pass Munic-
ipal Code § 6.46.350.
As relevant here, the plaintiffs claimed that the
City’s public-sleeping, public-camping, and park-ex-
clusion ordinances violate the Cruel and Unusual
Punishments Clause. App., infra, 19a. They also
promptly moved to certify a class of “[a]ll involuntarily
homeless individuals living in Grants Pass.” Id. at
20a.

 
 10

2. The district court certified the proposed class.

App., infra, 206a-220a. According to the court, the
Eighth Amendment claim concerned “city-wide prac-
tice[s]” in enforcing the public-sleeping and public-
camping ordinances. Id. at 214a-215a. The court also
believed that all class members could prove that they
were “involuntarily” homeless under Martin solely be-
cause “[t]here are more homeless individuals than
shelter beds in the City of Grants Pass.” Id. at 216a.
On cross-motions for summary judgment, the dis-
trict court ruled for the plaintiffs on their claim that
enforcement of the City’s ordinances constitutes cruel
and unusual punishment. App., infra, 163a-205a.
The court understood Martin to establish a “mathe-
matical ratio” that prevents the City from enforcing
its ordinances unless a shelter bed within the City’s
borders is available for every homeless person. Id.
at 179a. After finding that 602 class members quali-
fied as homeless, the court concluded that zero shelter
alternatives satisfied Martin, discounting 138 beds at
Gospel Rescue Mission due to “substantial religious
requirements,” nearby campgrounds on federal land,
a warming shelter, and a sobering center. Id. at 179a-
183a.
The district court also extended Martin in two
ways. First, the court held that Martin protects not
only sleeping on public property, but also camping
with “bedding.” App., infra, 177a-179a. Second, the
court (citing decisions applying the Excessive Fines
Clause) concluded that the Cruel and Unusual Pun-
ishments Clause prohibits even civil enforcement of
the City’s ordinances. Id. at 183a-187a.
The district court subsequently entered a judg-
ment enjoining Grants Pass from enforcing its public-
camping ordinances during daytime hours without

 
 11

first giving a 24-hour warning, and at nighttime hours

entirely. App., infra, 24a-25a.
3. A divided panel of the Ninth Circuit affirmed
the district court’s rulings in large part and remanded
for further proceedings. App., infra, 13a-58a
(amended opinion issued upon denial of rehearing).
a. In an opinion authored by Judge Silver
(D. Ariz.) and joined by Judge Gould, the majority af-
firmed the district court’s determination that the
Cruel and Unusual Punishments Clause invalidates
Grants Pass’s public-camping ordinances. App., infra,
42a-55a. The majority reasoned that “the number of
homeless persons outnumber the available shelter
beds” in “secular shelter space.” Id. at 13a, 53a. The
majority also held that this Eighth Amendment claim
could be decided on a classwide basis even though
Grants Pass had argued that the class lacked com-
monality “because some class members might have al-
ternative options for housing, or might have the
means to acquire their own shelter.” Id. at 39a. Ac-
cording to the majority, the class definition eliminated
such individualized issues because “the class includes
only involuntarily homeless persons,” meaning that
people with access to alternative shelter “simply are
never class members.” Id. at 39a-41a. The majority
also approved the district court’s extension of Martin
to civil citations and to camping with bedding. Id.
at 44a-47a.
The majority remanded with instructions for the
district court to consider whether to narrow the in-
junction to allow Grants Pass to enforce its public-
camping ordinances against the use of stoves and
fires. App., infra, 55a. The majority also vacated
summary judgment as to only the public-sleeping or-
dinance and remanded for the district court to

 
 12

consider whether to substitute a new class repre-

sentative for a plaintiff who passed away while the
case was on appeal—the only one of the three who had
standing to challenge the public-sleeping regulation.
Id. at 25a n.12, 30a-32a.
b. Dissenting, Judge Collins criticized Martin for
“combining dicta in a concurring opinion with a dis-
sent” to mint a new constitutional rule—that the
Eighth Amendment forbids punishment for any act
that “is, in some sense, involuntary or occasioned by a
compulsion”—in conflict with this Court’s precedents.
App., infra, 93a-95a (quotation marks omitted). That
decision has had “‘dire practical consequences’” for
hundreds of cities and millions of people over the past
five years. Id. at 95a.
Judge Collins further explained that the majority
had manipulated the class definition to reduce Martin
“to a simplistic formula”: “whether the number of
homeless persons . . . exceeds the number of availa-
ble shelter beds.” App., infra, 84a-86a. The majority’s
“egregiously flawed reconceptualization and exten-
sion of Martin’s holding,” he feared, would mean that
other cities could come under classwide injunctions
“effectively requiring” them to “allow the use of [their]
public parks as homeless encampments.” Id. at 95a.
Judge Collins called for the Ninth Circuit or this
Court to overrule Martin and the present decision “at
the earliest opportunity.” Ibid.
4. The Ninth Circuit denied Grants Pass’s peti-
tion for rehearing en banc over the dissent of 13 active
judges (one short of a majority). App., infra, 12a.
a. All 13 dissenting active judges and four senior
judges joined five separate opinions calling for en banc
review. App., infra, 117a-162a.

 
 13

Judge O’Scannlain, joined by 14 judges, explained

that the Ninth Circuit has departed from the Consti-
tution’s original meaning, this Court’s precedents,
and decisions of other appellate courts, none of which
has been “bold enough to embrace an Eighth Amend-
ment doctrine that effectively requires local commu-
nities to surrender their sidewalks and other public
places to homeless encampments.” App., infra, 122a-
131a (O’Scannlain, J., respecting denial of rehearing
en banc). He also blamed Martin for both “paralyzing
local communities from addressing the pressing issue
of homelessness, and seizing policymaking authority
that our federal system of government leaves to the
democratic process”—twin problems that “will be
greatly worsened by the doctrinal innovations intro-
duced” in this case. Id. at 117a, 131a-133a.
Judge Milan Smith, joined by eight judges, de-
nounced the “status quo” under Martin that “fails both
those in the homeless encampments and those near
them,” as crime, drug use, and disease proliferate.
App., infra, 138a-139a (M. Smith, J., dissenting from
denial of rehearing en banc). He pointed out that this
decision “doubles down on Martin—crystallizing Mar-
tin into a crude population-level inquiry, greenlight-
ing what should be (at most) an individualized inquiry
for class-wide litigation, and leaving local govern-
ments without a clue of how to regulate homeless en-
campments without risking legal liability.” Id.
at 142a; see id. at 146a-151a. And after reviewing lit-
igation against cities such as San Francisco and Phoe-
nix, he observed that Martin has “require[d] unelected
federal judges” to act “like homelessness policy czars”
instead of “Article III judges applying a discernible
rule of law.” Id. at 151a-156a.

 
 14

Judge Collins reiterated his critiques of Martin

and stated that Judges O’Scannlain and Smith had
“further cogently explain[ed] the multiple serious er-
rors in the panel majority’s opinion.” App., infra,
157a.
Judge Bress, joined by 11 judges, wrote that the
Constitution grants “local leaders—and the people
who elect them—the latitude to address on the ground
the distinctly local features of the present crisis of
homelessness and lack of affordable housing,” and
that the Ninth Circuit’s “expanding constitutional
common law” of the Eighth Amendment “adds enor-
mous and unjustified complication to an already ex-
tremely complicated set of circumstances.” App., in-
fra, 161a-162a (Bress, J., dissenting from denial of re-
hearing en banc).
Judge Graber criticized the panel for extending
“Martin to classwide relief ” and “enjoining civil stat-
utes.” App., infra, 135a (Graber, J., respecting denial
of rehearing en banc). Although she largely agreed
with Martin, she also said that, “given the widespread
nature of the homelessness crisis in our jurisdiction,”
it was “crucial” for the Ninth Circuit to rehear this
case to “get it right.” Id. at 136a-137a.
b. The panel majority filed a joint statement re-
sponding to Judges O’Scannlain and Smith and de-
fending their decision as “modest” and “exceptionally
limited.” App., infra, 96a-116a. In his dissent from
denial of rehearing, Judge Collins disputed those
characterizations and explained that “the panel ma-
jority’s statement confirms and illustrates the layers
of self-contradiction that underlie its opinion in this
case.” Id. at 158a.

 
 15

REASONS FOR GRANTING THE PETITION

The Ninth Circuit has now repeatedly held that
enforcement of restrictions on public camping consti-
tutes “cruel and unusual punishment” under the
Eighth Amendment. By contrast, the California Su-
preme Court and the Eleventh Circuit have upheld
public-camping ordinances against similar constitu-
tional challenges. The Fifth Circuit, too, has rejected
such a challenge on the ground that the Eighth
Amendment does not apply at all to citations for pub-
lic camping but only to punishment following a con-
viction.
This dispute over restrictions on public camping
is part of a larger conflict over the Eighth Amend-
ment’s scope. A few courts, including the Ninth and
Fourth Circuits, have interpreted this Court’s deci-
sions in Robinson and Powell as holding that the gov-
ernment cannot punish conduct that necessarily fol-
lows from a status. In contrast, seven federal courts
of appeals and 17 state courts of last resort have re-
jected that approach, drawing a bright line between
conduct (which can be punished) and status (which
cannot).
The minority view has no foundation in the
Eighth Amendment’s text, history, and tradition. As
this Court has long held, the Cruel and Unusual Pun-
ishments Clause prohibits certain types of punish-
ments. With the lone exception of Robinson, the Court
has never held that the Eighth Amendment sets sub-
stantive limits on what can be a crime in the first
place. That one-off holding should be limited to pun-
ishment for mere status, not expanded to conduct that
arguably follows from a status.

 
 16

To extend Robinson to purportedly involuntary

conduct related to a status, the Ninth Circuit relied on
dicta in Justice White’s Powell concurrence as a basis
to adopt the rule advocated by Justice Fortas in dis-
sent. But that approach takes the wrong path
through Powell and so arrives at the wrong destina-
tion. In Marks, this Court held that lower courts
should rely on the opinions of the Justices concurring
in the judgment. And since Powell, this Court has re-
peatedly applied Justice Marshall’s plurality opinion
and never even hinted that the correct interpretation
of the Eighth Amendment lay hidden in Justice
White’s dicta and Justice Fortas’s dissent.
The question presented in this case is indisputa-
bly important. Across the West, cities face a growing
humanitarian tragedy. Hundreds of thousands of peo-
ple camp in public, their tents and belongings over-
taking sidewalks, parks, and trails. Cities want to
help those in encampments get the services they need
while ensuring that our communities remain safe, but
they find themselves hamstrung in responding to pub-
lic encampments and the drug overdoses, murders,
sexual assaults, diseases, and fires that inevitably ac-
company them. Even when coupled with offers of
shelter and other services, efforts to enforce common-
sense camping regulations have been met with injunc-
tions. Restoring to local governments their rightful
authority to address this pressing and complex crisis
and get people the help they desperately need is a crit-
ical step to solving this crisis.
I. THE NINTH CIRCUIT’S DECISION ENTRENCHES
A CONFLICT AMONG THE LOWER COURTS
A. The Ninth Circuit alone recognizes a “consti-
tutional ‘right’ to encamp on public property.” App.,
infra, 128a (opinion of O’Scannlain, J.). The

 
 17

California Supreme Court, Eleventh Circuit, and

Fifth Circuit have rejected similar challenges under
the Eighth Amendment.
1. The federal and state courts in California—
home to half of the Nation’s unsheltered homeless
population—are divided on the question presented. In
Tobe v. City of Santa Ana, 892 P.2d 1145 (Cal. 1995),
plaintiffs challenged an ordinance prohibiting “‘any
person to camp, occupy camp facilities or use camp
paraphernalia in . . . any street [or] any public park-
ing lot or public area.’” Id. at 1150. The California
Court of Appeal invalidated the ordinance under Rob-
inson as “punishment for the ‘involuntary status of be-
ing homeless.’” Id. at 1166. But the California Su-
preme Court reversed, explaining that “[t]he ordi-
nance permits punishment for proscribed conduct, not
punishment for status.” Ibid. California courts have
continued to uphold public-camping ordinances under
the act/status distinction. E.g., Allen v. City of Sacra-
mento, 234 Cal. App. 4th 41, 59-60 (2015).
The Eleventh Circuit reached a similar result in
Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000).
There, homeless plaintiffs challenged an ordinance
prohibiting unauthorized camping “on all public prop-
erty.” Id. at 1356. The Eleventh Circuit upheld the
ordinance because it “target[ed] conduct, and d[id] not
provide criminal punishment based on a person’s sta-
tus.” Id. at 1362. The Eleventh Circuit also suggested
that “homelessness is not a ‘status’ within the mean-
ing of the Eighth Amendment” in any event. Ibid.
The Fifth Circuit rejected another challenge at an
earlier step of the analysis. In Johnson v. City of Dal-
las, 61 F.3d 442 (5th Cir. 1995), a district court en-
joined the enforcement of a public-sleeping ordinance
against homeless people who had been ticketed for

 
 18

violations. Id. at 443. The Fifth Circuit reversed on

the ground that the Eighth Amendment applies only
to punishment following a conviction. Id. at 445. Al-
though the Fifth Circuit labeled the defect as a lack of
Article III standing, its analysis focused on the Eighth
Amendment’s scope. Id. at 444-445 (relying on Ingra-
ham v. Wright, 430 U.S. 651 (1977)).
2. The Ninth Circuit’s precedents conflict with
these decisions. In contrast to the California Supreme
Court’s and Eleventh Circuit’s adoption of the act/sta-
tus distinction, the Ninth Circuit has now twice inval-
idated public-camping ordinances under “the princi-
ple that ‘the Eighth Amendment prohibits the state
from punishing an involuntary act or condition if it is
the unavoidable consequence of one’s status or be-
ing.’” App., infra, 50a (quoting Martin, 920 F.3d at
616). The Ninth Circuit also held that such Eighth
Amendment challenges may be raised before convic-
tion, breaking with the Fifth Circuit’s decision in
Johnson. Martin, 920 F.3d at 613-614.
B. More broadly, the Ninth Circuit is “locked in a
deep and varied intercircuit split over how to read the
Eighth Amendment in light of Robinson and Powell.”
App., infra, 130a (opinion of O’Scannlain, J.). That
split is even deeper when one considers state courts of
last resort. In total, 24 courts have held the line at
the act/status distinction, and only four subscribe to
the view that the Eighth Amendment protects invol-
untary conduct linked to a supposed status.
1. In Robinson, this Court confronted an unusual
California statute providing that “‘[n]o person shall
. . . be addicted to the use of narcotics.’” 370 U.S.
at 660 n.1. This statute “ma[de] the ‘status’ of nar-
cotic addiction a criminal offense” even absent “proof
of the actual use of narcotics within the State’s

 
 19

jurisdiction.” Id. at 665-666. Although this Court

held that the defendant’s 90-day sentence for addic-
tion was cruel and unusual punishment, this Court
explained that California could prohibit “manufac-
ture, prescription, sale, purchase, or possession of nar-
cotics within its borders”—even by drug addicts—so
long as the law didn’t penalize “the ‘status’ of narcotic
addiction.” Id. at 664-667.
This Court revisited the act/status distinction in
Powell, where an alcoholic sought to extend Robinson
to purportedly involuntary conduct: his public drunk-
enness. Justice Marshall, writing for a four-Justice
plurality, explained that Robinson stands for the
proposition that “criminal penalties may be inflicted
only if the accused has committed some act” that “so-
ciety has an interest in preventing”—or put in “histor-
ical common law terms, has committed some actus
reus.” 392 U.S. at 533. To forestall “this Court from
becoming, under the aegis of the Cruel and Unusual
Punishment Clause, the ultimate arbiter of the stand-
ards of criminal responsibility,” the plurality rejected
the defendant’s proposed extension of Robinson from
status to conduct that “is, in some sense, ‘involuntary’
or ‘occasioned by a compulsion.’” Ibid.
Justice Black concurred to underscore the “sound”
distinction between “pure status crimes” and “crimes
that require the State to prove that the defendant ac-
tually committed some proscribed act.” Powell, 392
U.S. at 542-544.
Justice White, who concurred only in the result,
ventured that the Eighth Amendment might protect
public drunkenness when alcoholics “have no place
else to go and no place else to be when they are drink-
ing,” but found this admittedly “novel construction” of
the Amendment “unnecessary to pursue at this point”

 
 20

because the defendant hadn’t proved his alcoholism

made him “unable to stay off the streets on the night
in question.” Powell, 392 U.S. at 551-554 & n.4.
Finally, Justice Fortas penned a four-Justice dis-
sent advancing the theory that Robinson immunizes a
person from punishment for “being in a condition he
is powerless to change.” Powell, 392 U.S. at 567.
2. Seven circuits have followed the Powell plural-
ity in holding that Robinson applies only to status
crimes and does not immunize conduct supposedly as-
sociated with a status:
 In this precise context of a public-camping or-
dinance, the Eleventh Circuit agreed with the
Powell plurality that “[a] distinction exists be-
tween applying criminal laws to punish con-
duct, which is constitutionally permissible,
and applying them to punish status, which is
not.” Joel, 232 F.3d at 1361-1362.
 In United States v. Sirois, 898 F.3d 134 (1st
Cir. 2018), the First Circuit rejected a defend-
ant’s argument that a district court commit-
ted plain error under the Eighth Amendment
when revoking supervised release for drug
use that was “compelled by his addiction.” Id.
at 137-138.
 In United States v. Black, 116 F.3d 198 (7th
Cir. 1997), the Seventh Circuit rejected an
Eighth Amendment defense by a defendant
with a compulsive desire to collect child por-
nography. Id. at 201. The court reasoned
that “Robinson is simply inapposite on its face
because the statutes involved here do not
criminalize the statuses of pedophile or
ephebophile,” but rather the “conduct of

 
 21

receiving, possessing and distributing child

pornography,” and that Justice White’s con-
currence “need not be discussed further” be-
cause “no other Justice joined in that opin-
ion.” Id. at 201 & n.2.
 In Yanez v. Romero, 619 F.2d 851 (10th Cir.
1980), the Tenth Circuit held that “[a] reading
of the decision in Robinson and that in Powell
makes clear” that States can prohibit drug
possession even by addicts. Id. at 852.
 In United States v. Moore, 486 F.2d 1139 (D.C.
Cir. 1973) (en banc), a majority of a fractured
D.C. Circuit endorsed the Powell plurality in
rejecting an “Eighth Amendment defense for
the addict-possessor” of drugs. Id. at 1153-
1154 (plurality opinion); id. at 1197-1198 (Le-
venthal, J., concurring).
 In Smith v. Follette, 445 F.2d 955 (2d Cir.
1971), the Second Circuit agreed with the
Powell plurality that Robinson “was in no way
intended to stand for the proposition that
those who affirmatively commit crimes be-
cause of their condition may not be pun-
ished”—there, for drug possession that “was
the result in some degree of a socially devel-
oped compulsion.” Id. at 961.
 In United States ex rel. Mudry v. Rundle, 429
F.2d 1316 (3d Cir. 1970) (per curiam), the
Third Circuit held that Robinson and Powell
allow States to forbid drug possession by ad-
dicts. Id. at 1316.
In addition to those seven circuits, 17 state courts
of last resort have limited Robinson to status crimes.
They, like the Powell plurality, have rejected claims

 
 22

that the Eighth Amendment protects conduct associ-

ated with homelessness,1 alcoholism,2 drug addiction,3
and sexual compulsions.4
3. The Ninth Circuit sees Robinson and Powell in
a very different light. According to the Ninth Circuit,
those decisions overrode the act/status distinction and
compelled the conclusion that “a person may not be
prosecuted for conduct that is involuntary or the prod-
uct of a ‘status.’” App., infra, 47a (citing Martin, 920
F.3d at 617); id. at 109a (statement of Gould and Sil-
ver, JJ.).
Among the federal courts of appeals, only the
Fourth Circuit has joined the Ninth Circuit in extend-
ing Robinson to conduct that flows from a status. Its
initial foray was Driver v. Hinnant, 356 F.2d 761 (4th
Cir. 1966), where the Fourth Circuit reasoned that if
Robinson forbids punishment for the status of being
an alcoholic, then the Eighth Amendment should also
forbid punishment for “an involuntary symptom of a
                                                            
1
Tobe, 892 P.2d at 1166.
2
Rosser v. Housewright, 664 P.2d 961, 962-963 (Nev. 1983)
(per curiam); Loveday v. State, 247 N.W.2d 116, 121 (Wis. 1976);
Vick v. State, 453 P.2d 342, 343-344 (Alaska 1969); Shelburne v.
State, 446 P.2d 58, 59 (Okla. Crim. App. 1968); People v. Hoy, 158
N.W.2d 436, 445 (Mich. 1968); City of Seattle v. Hill, 435 P.2d
692, 698-699 (Wash. 1967).
3
State v. Robinson, 254 P.3d 183, 191 & n.41 (Utah 2011);
State v. Smith, 355 A.2d 257, 259-260 (Conn. 1974); State v.
Smith, 219 N.W.2d 655, 657 (Iowa 1974); Wheeler v. United
States, 276 A.2d 722, 726 (D.C. 1971); Steeves v. State, 178
N.W.2d 723, 726 (Minn. 1970); Rangel v. State, 444 S.W.2d 924,
925-926 (Tex. Crim. App. 1969); State v. Mendoza, 454 P.2d 140,
141 (Ariz. 1969); State v. Margo, 191 A.2d 43, 44 (N.J. 1963)
(per curiam).
4
State v. Little, 261 N.W.2d 847, 851-852 (Neb. 1978); People
v. Jones, 251 N.E.2d 195, 198 (Ill. 1969).

 
 23

status—public intoxication.” Id. at 764-765. Justice

Fortas cited Driver with approval in his dissent in
Powell, 392 U.S. at 569 n.33, but the plurality rejected
Driver’s holding, drawing a clear line between status
and conduct, id. at 533-534. Nevertheless, the Fourth
Circuit recently reaffirmed Driver on the theory that
the controlling Powell opinion under Marks is Justice
White’s concurrence, including his dictum that the
Eighth Amendment might protect truly involuntary
conduct. Manning v. Caldwell, 930 F.3d 264, 280-283
& n.13 (4th Cir. 2019) (en banc); see id. at 282 n.17
(agreeing with Martin).
Like the Ninth and Fourth Circuits, the Pennsyl-
vania Supreme Court has “combine[d]” Justice
White’s concurrence and Justice Fortas’s dissent “to
produce an amplification of Robinson”—namely, that
the Eighth Amendment immunizes “anti-social acts
flowing from an uncontrollable ‘status.’” In re Jones,
246 A.2d 356, 362 (Pa. 1968).
A state intermediate appellate court has also ex-
pressly aligned itself with the Ninth Circuit’s ap-
proach for conduct that follows from status. In
State v. Adams, 91 So. 3d 724 (Ala. Crim. App. 2010),
a sex offender argued that he could not be punished
for failing to provide an address upon his release be-
cause he could not afford rent and had nowhere else
to stay. Id. at 729-730. The Alabama Court of Crimi-
nal Appeals, in analyzing this claim, incorporated
wholesale pages of Jones, the Ninth Circuit’s vacated
predecessor to Martin. Id. at 745-753 (quoting Jones,
444 F.3d at 1131-1138). Robinson and Powell, on this
reading, “forbid[] punishing criminally not only a per-
son’s pure status, but also a person’s involuntary con-
duct that is inseparable from that person’s status.” Id.
at 753. And that understanding of the Eighth

 
 24

Amendment invalidated the reporting requirement

because the defendant’s failure to provide an address
was “involuntary conduct that was inseparable from
his status of homelessness” given the lack of space in
shelters that housed sex offenders. Id. at 754.

* * *
The Ninth Circuit alone has upheld Eighth
Amendment challenges to generally applicable public-
camping ordinances. Even though a chorus of judges
across eight separate opinions in Martin and this case
has criticized this interpretation from every possible
angle, the Ninth Circuit has refused to change course
and instead has further entrenched a long-recognized
and “sharp split of opinion throughout the legal pro-
fession concerning the meaning of Powell” for the
act/status distinction this Court adopted in Robinson.
Moore, 486 F.2d at 1239 n.178 (Wright, J., dissenting).
That split stands little chance of resolving itself after
the Ninth Circuit denied rehearing en banc over
17 judges’ objections and the en banc Fourth Circuit
adhered to its outlier position in Manning. This Court
should grant certiorari to restore uniformity to the in-
terpretation of the Cruel and Unusual Punishments
Clause.
II. THE NINTH CIRCUIT’S DECISION CONFLICTS
WITH THIS COURT’S DECISIONS.
As Judges O’Scannlain, Smith, and Collins ex-
plained below, the Ninth Circuit has departed from
this Court’s precedents and the Eighth Amendment’s
original meaning.
A. Martin and the decision below find no sup-
port—and indeed never claim the pretense of sup-
port—in the “text, history, or tradition of the Eighth
Amendment.” App., infra, 119a (opinion of

 
 25

O’Scannlain, J.). Under this Court’s decisions, how-

ever, original meaning and history are critical to the
Cruel and Unusual Punishments Clause. E.g., Buck-
lew v. Precythe, 139 S. Ct. 1112, 1123-1124 (2019); In-
graham, 430 U.S. at 664-666.
The Eighth Amendment provides that “cruel and
unusual punishments” shall not be “inflicted.”
U.S. Const. amend. VIII. The Framers borrowed this
language verbatim from the English Declaration of
Rights of 1689. Martin, 920 F.3d at 599-600 (Bennett,
J., dissenting from denial of rehearing en banc). And
the text and its common-law backdrop show that the
Cruel and Unusual Punishments Clause is “directed
to modes of punishment.” App., infra, 122a (opinion of
O’Scannlain, J.). As this Court has explained, the
“original and historical understanding” is that the
Eighth Amendment outlaws only “methods” of pun-
ishment that unnecessarily “‘superadd[]’” pain
(cruel) and have “long fallen out of use” (unusual).
Bucklew, 139 S. Ct. at 1122-1123; accord Harmelin v.
Michigan, 501 U.S. 957, 976 (1991) (opinion of Scalia,
J.). Such cruel and unusual punishments include, for
example, “burning at the stake, crucifixion, [and]
breaking on the wheel.” In re Kemmler, 136 U.S. 436,
446 (1890).
Under Bucklew, there is nothing cruel or unusual
about the modes of punishment in Martin (one-day
jail sentences and criminal fines) and this case (civil
citations). 920 F.3d at 606; App., infra, 44a. These
low-level penalties are not “marked by savagery and
barbarity” and have not fallen out of “common use.”
App., infra, 123a (opinion of O’Scannlain, J.). To the
contrary, countless jurisdictions across the Nation
have adopted such routine measures to protect public

 
 26

health and safety. Martin, 920 F.3d at 599 (M. Smith,

J., dissenting from denial of rehearing en banc).
Nor does text or history suggest that the Cruel
and Unusual Punishments Clause “arrogate[s] the
substantive authority of legislatures to prohibit ‘acts’
like those at issue here.” App., infra, 122a (opinion of
O’Scannlain, J.) (quoting Martin, 920 F.3d at 602
(Bennett, J., dissenting from denial of rehearing en
banc)). Even Justice White, whose dictum in Powell
about involuntary conduct now governs jurisdictions
throughout the Ninth and Fourth Circuits, stated that
Robinson itself involved an “application of ‘cruel and
unusual punishment’ so novel that I suspect the Court
was hard put to find a way to ascribe to the Framers
of the Constitution the result reached today rather
than to its own notions of ordered liberty.” Robinson,
370 U.S. at 689 (dissenting opinion). Whatever the
merits of Robinson, there is no basis to extend the
Cruel and Unusual Punishments Clause yet further
to prevent even issuing a citation for conduct that sup-
posedly flows from a status. In fact, no court sug-
gested that the Eighth Amendment or a state equiva-
lent could invalidate public-camping restrictions until
the early 1990s—two centuries after the Founding.
Pottinger v. City of Miami, 810 F. Supp. 1551, 1565
(S.D. Fla. 1992).
Plaintiffs in the Ninth Circuit appear to have pur-
sued their inventive theory under the Eighth Amend-
ment because “a Fourteenth Amendment claim”
would have “prove[d] unavailing.” Jones, 444 F.3d
at 1147 (Rymer, J., dissenting) (emphasis omitted).
There is no serious argument that a right to camp on
public property is “‘deeply rooted in this Nation’s his-
tory and tradition.’” Washington v. Glucksberg, 521
U.S. 702, 720-721 (1997). But this Court’s decisions

 
 27

have consistently made clear that the original mean-

ing of the Eighth Amendment matters, too. Under
that approach, Martin and the decision below have no
footing in the Cruel and Unusual Punishments
Clause.
B. In keeping with text and history, this Court
has long recognized that the Cruel and Unusual Pun-
ishments Clause is primarily “‘directed at the method
or kind of punishment imposed for the violation of
criminal statutes’” and does not apply to “impositions
outside the criminal process.” Ingraham, 430 U.S.
at 667-668 (emphasis added) (quoting Powell, 392
U.S. at 531-532 (plurality opinion)). This Court has
also held that certain punishments can become cruel
and unusual if they are excessively disproportionate
to the crime committed. Solem v. Helm, 463 U.S. 277,
288-289 (1983). Even so, this Court’s focus has always
remained on the mode of punishment with the lone
exception of Robinson, where this Court held that the
Eighth Amendment prohibited States from criminal-
izing status irrespective of the method of criminal
punishment. 370 U.S. at 667. This Court has cau-
tioned this limitation is “to be applied sparingly” and
has never again invalidated a crime on this basis. In-
graham, 430 U.S. at 667.
As Judge O’Scannlain explained, the Ninth Cir-
cuit misread Robinson and Powell in holding that the
Eighth Amendment prohibits the enforcement of pub-
lic-camping ordinances. App., infra, 126a-127a. Rob-
inson distinguished between status and conduct for
Eighth Amendment purposes. 370 U.S. at 664-665.
The Powell plurality reaffirmed this act/status dis-
tinction in rejecting the extension of Robinson to con-
duct that “is, in some sense, ‘involuntary.’” 392 U.S.
at 533. And in the half century since Powell, this

 
 28

Court has relied on only Justice Marshall’s plurality

opinion and Justice Black’s concurrence, and has
never endorsed the views expressed in Justice White’s
concurrence in the result, let alone Justice Fortas’s
dissent. E.g., Ingraham, 430 U.S. at 659; see Man-
ning, 930 F.3d at 289 (Wilkinson, J., dissenting) (col-
lecting cases).
An illustrative example is Kahler v. Kansas, 140
S. Ct. 1021 (2020), which presented the question
whether the Due Process Clause guaranteed a defend-
ant’s right to claim insanity based on his inability to
tell right from wrong. In rejecting that contention,
this Court understood Justice Marshall’s analysis of
the Eighth Amendment to set forth the proper frame-
work for constitutional challenges to the “paramount
role of the States in setting ‘standards of criminal re-
sponsibility.’” Id. at 1028 (quoting Powell, 392 U.S.
at 533). Respect for that role means that the people’s
representatives, rather than the courts, get to decide
“when a person should be held criminally accountable
for ‘his antisocial deeds.’” Ibid. (quoting Powell, 392
U.S. at 535-536). Judges simply aren’t equipped to
dictate “rigid” constitutional rules in this context,
ibid. (citing Powell, 392 U.S. at 536-537), or to “bal-
anc[e] and rebalanc[e] over time complex and oft-com-
peting ideas about ‘social policy’ and ‘moral culpabil-
ity,’” ibid. (quoting Powell, 392 U.S. at 538 (Black, J.,
concurring)). Powell thus stands for the principle that
“‘doctrine[s] of criminal responsibility’ must remain
‘the province of the States.’” Ibid. (quoting Powell,
392 U.S. at 534, 536 (plurality opinion)).
The Ninth Circuit has read Powell the polar oppo-
site way from Kahler. Rather than follow the Powell
plurality’s properly cabined approach, the Ninth Cir-
cuit has developed its own constitutional doctrine of

 
 29

criminal responsibility for involuntary conduct re-

lated to status—all “by stitching together dicta in a
lone concurrence with a dissent.” App., infra, 119a
(opinion of O’Scannlain, J.). Judges Smith and Collins
explained that this dissent-plus-concurrence-dicta ap-
proach conflicts with this Court’s decision in Marks,
which instructs courts to consider “[o]nly the views of
the Justices concurring in the judgment.” Martin, 920
F.3d at 592-593 (M. Smith, J., dissenting from denial
of rehearing en banc) (emphasis added); accord App.,
infra, 93a-94a (Collins, J., dissenting). Typically,
“‘comments in a dissenting opinion’ about legal prin-
ciples and precedents ‘are just that: comments in a
dissenting opinion.’” Georgia v. Public.Resource.Org,
Inc., 140 S. Ct. 1498, 1511 (2020) (brackets omitted)
(quoting Railroad Retirement Bd. v. Fritz, 449 U.S.
166, 177 n.10 (1980)). But the Ninth Circuit’s upside-
down Marks analysis of Powell means that one Jus-
tice’s dictum has transformed Justice Fortas’s dis-
senting comments into the law of the land for the
western United States.
In short, the Ninth Circuit’s rule that the Eighth
Amendment prohibits punishing “‘a person for being
in a condition he is powerless to change’” turns a con-
stitutional provision that is ostensibly directed to the
kinds of criminal punishments into a sweeping doc-
trine of criminal responsibility. Martin, 920 F.3d
at 616 (quoting Powell, 392 U.S. at 567 (Fortas, J., dis-
senting)). This interpretation, as Justice Marshall ex-
plained, discards “[t]raditional common-law concepts
of personal accountability and essential considera-
tions of federalism.” Powell, 392 U.S. at 534-536. But
in the absence of a majority decision settling the issue,
parties have sought to extend the radical logic of the
Powell dissent to all sorts of harmful conduct (such as
public camping, drug use, and sexual assaults) that

 
 30

could be characterized as involuntary or compulsive.

Supra, at 20-22. This Court should reject the Powell
dissent once and for all.
III. THE QUESTION PRESENTED IS EXCEPTIONALLY
IMPORTANT.
When the Ninth Circuit declined to rehear Martin
en banc, six judges warned of “dire practical conse-
quences for the hundreds of local governments within
our jurisdiction, and for the millions of people” living
there. 920 F.3d at 594 (M. Smith, J., dissenting from
denial of rehearing en banc). The past five years un-
der Martin have been, if anything, more disastrous
than even its fiercest critics predicted.
Martin has “paralyz[ed] local communities from
addressing the pressing issue of homelessness.” App.,
infra, 117a (opinion of O’Scannlain, J.). As a formal
matter, cities purportedly retain the authority to en-
force public-camping laws against people who “‘have
access to adequate temporary shelter’” or the “finan-
cial means to obtain shelter.” Id. at 14a n.2 (majority
opinion). But those standards are unworkable in
practice. There is no reliable way for an officer in the
field to determine whether a person is “involuntarily”
homeless, let alone assess how many people need shel-
ter in total and how much shelter is currently availa-
ble at that exact moment. Nor has the Ninth Circuit
offered any guideposts for what qualifies as “‘ade-
quate temporary shelter’” (other than that religiously
affiliated shelters don’t qualify). Id. at 19a (emphasis
added). That ambiguity has empowered courts to ig-
nore available shelter for a growing list of reasons—
for example, because a shelter lacks beds (which side-
walks and parks also lack), id. at 22a, or is outdoors
(like sidewalks and parks), Warren v. City of Chico,
2021 WL 2894648, at *3-4 (E.D. Cal. July 8, 2021).

 
 31

Some district judges have observed that “the prac-

tical ramifications for the community are much more
complex” than the Ninth Circuit’s singular focus on
“practically-available shelter.” Warren, 2021 WL
2894648, at *4 & n.4. Still, given the difficulties of
administering a shelter-based approach, district
courts applying Martin have hamstrung cities in en-
forcing public-camping laws against anyone unless
and until they have enough “secular shelter space” for
everyone—a near-impossible task, especially because
the number of homeless people surpasses the shelter
available in every major western city and continues to
climb. App., infra, 53a.
For example, San Francisco has attempted to
clean up public encampments under threat of law en-
forcement only after offering “‘appropriate shelter’” to
the encampment’s residents. Coalition on Homeless-
ness v. City & County of San Francisco, 2022 WL
17905114, at *4-7 (N.D. Cal. Dec. 23, 2022). Given the
high resistance to social services, “55% of homeless in-
dividuals rejected shelter when offered it.”5 Yet a dis-
trict court still enjoined San Francisco from enforcing
its public-camping ordinance “as long as there are
more homeless individuals in San Francisco than
there are shelter beds available.” Id. at *28.
The story is much the same for Phoenix, which
has instructed its police officers to “make individual-
ized assessments before citing individuals” for sleep-
ing on sidewalks and other public ways. Fund for Em-
powerment v. City of Phoenix, 2022 WL 18213522, at
*2-3 (D. Ariz. Dec. 16, 2022). After one encampment
in 2022 alone witnessed “1,097 calls for emergency

                                                            
5
Editorial Board, Why San Francisco Is a Homeless Mecca,
Wall St. J. (Aug. 6, 2023), https://tinyurl.com/5cx5cr7v.

 
 32

medical help, 573 fights or assaults, 236 incidents of

trespassing, 185 fires, 140 thefts, 125 armed rob-
beries, 13 sexual assaults and four homicides,” as well
as 16 other deaths “from overdoses, suicides, hypo-
thermia or excessive heat,” Phoenix tried to clean up
the encampment.6 Again, however, a district court en-
joined Phoenix from enforcing its public-camping or-
dinance “as long as there are more unsheltered indi-
viduals in Phoenix than there are shelter beds availa-
ble.” Id. at *9.
The logic of Martin—that governments cannot
regulate “‘universal and unavoidable consequences of
being human,’” 920 F.3d at 617—also hasn’t stopped
at public camping, but has “inevitably” extended to
“public defecation and urination.” Id. at 596
(M. Smith, J., dissenting from denial of rehearing en
banc). A district court has held that the Eighth
Amendment right under Martin “to be free from pun-
ishment for involuntary conduct” includes “eliminat-
ing” (a euphemism for defecating) “in public if there is
no alternative to doing so.” Mahoney v. City of Sacra-
mento, 2020 WL 616302, at *3 (E.D. Cal. Feb. 10,
2020); see App., infra, 155a (opinion of M. Smith, J.).
The status quo under Martin has harmed local
governments, surrounding residents, and—most of
all—the homeless themselves by contributing to the
growth of encampments across the West. See App.,
infra, 139a (opinion of M. Smith, J.). These lawsuits,
though brought “in the name of compassion and de-
criminalizing homelessness[,] had the effect of sur-
rounding the homeless in criminality and predation,
not to mention fires, filth, disease, and fentanyl and

                                                            
6
Eli Saslow, A Sandwich Shop, a Tent City and an American
Crisis, N.Y. Times (Mar. 31, 2023), https://tinyurl.com/yh42zzrh.

 
 33

meth.”7 The results have been tragic, if predictable:

skyrocketing rates of fatal drug overdoses;8 “increas-
ingly volatile behavior on the streets” for those who
live near encampments;9 a shocking rise in homicides
and sexual assaults committed against the home-
less;10 a resurgence of “medieval” diseases (such as ty-
phus and tuberculosis) in encampments;11 a series of
fires in major cities, some of which burned out of

                                                            
7
Sam Quinones, Skid Row Nation: How L.A.’s Homelessness
Crisis Response Spread Across the Country, L.A. Mag. 131 (Oct.
6, 2022).
8
Thomas Fuller, Death on the Streets, N.Y. Times (Apr. 25,
2022), https://nyti.ms/3DpJsKs (deaths among the homeless are
up 200% in Los Angeles County); Christal Hayes, ‘The World
Doesn’t Care’: Homeless Deaths Spiked During Pandemic, Not
from COVID. From Drugs., USA Today (May 28, 2022), https://ti-
nyurl.com/523wex3p (Seattle and Portland experienced a record
number of deaths in 2021 among the homeless).
9
Michael Corkery, Fighting for Anthony: The Struggle to Save
Portland, Oregon, N.Y. Times (July 29, 2023), https://ti-
nyurl.com/3zvxpss3.
10
Recent Killings in Los Angeles and New York Spark Anger,
Raise Risk for Homeless People, KTLA (Jan. 28, 2022), https://ti-
nyurl.com/y97jbayw; Eric Leonard, LAPD Concerned About In-
crease in Sexual Violence Against Women Experiencing Home-
lessness, NBC4 (Feb. 27, 2020), https://tinyurl.com/4ccfrb6v.
11
Anna Gorman & Kaiser Health News, Medieval Diseases Are
Infecting California’s Homeless, The Atlantic (Mar. 8, 2019),
https://tinyurl.com/53k3h44z.

 
 34

control for days;12 and massive amounts of debris,

such as needles and excrement, polluting the environ-
ment.13
The Ninth Circuit’s decision in this case exacer-
bates all of these problems. If “Martin handcuffed lo-
cal jurisdictions as they tried to respond to the home-
lessness crisis,” this decision “now places them in a
straitjacket.” App., infra, 143a (opinion of M. Smith,
J.). Cities can’t issue even civil citations for public
camping if there are any potential downstream crimi-
nal consequences. Id. at 44a-46a (majority opinion).
And having collapsed the individualized voluntari-
ness inquiry under Martin from the merits into the
class definition, the Ninth Circuit has charted a path
for the routine issuance of classwide injunctions under
which cities must assess on a case-by-case basis (fac-
ing the threat of contempt) whether public camping is
sufficiently “involuntary” for Eighth Amendment pro-
tection. Id. at 39a-41a & n.23. As the Ninth Circuit’s
judge-made rules become more and more elaborate,
and as the costs of both complying and litigating con-
tinue to rise, more cities will be forced “to surrender
the use of many of their public spaces (including

                                                            
12
Natalie O’Neill, Blazes That Begin in Homeless Camps Now
Account for Nearly Half the Fires in Portland, Willamette Week
(Nov. 2, 2022), https://tinyurl.com/ykw69dtf (Portland firefight-
ers extinguish six fires a day that start in encampments); Jen-
nifer Medina, Los Angeles Fire Started in Homeless Encamp-
ment, Officials Say, N.Y. Times (Dec. 12, 2017),
https://nyti.ms/3sPyXLv.
13
Quinones, supra, Skid Row Nation at 112 (noting that the
cleanup of the Echo Park Lake encampment in Los Angeles gen-
erated “35 tons of debris, 723 pounds of biological waste, and 300
pounds of needles and other drug paraphernalia”).

 
 35

sidewalks) to homeless encampments.” Id. at 133a

(opinion of O’Scannlain, J.).
The homelessness crisis is an exceptionally diffi-
cult public-policy challenge. No one argues that Mar-
tin is “an on/off-switch entirely responsible for” this
crisis, which stems from “a complex mix of economic,
mental-health, and substance-abuse factors, and ap-
pears to resist any easy solution.” App., infra, 140a-
141a, 143a (opinion of M. Smith, J.). But if the past
five years have proved nothing else, it is that courts
not only lack the legal authority, but also the practical
competence, to serve as “homelessness policy czars”
superintending every major city in the Ninth Circuit
on today’s paramount policy issue. Id. at 157a.
Public-camping laws are a critical (and constitu-
tional) backstop as cities attempt to stop the growth
of encampments and start to make progress on the un-
derlying causes of homelessness. Cities on the front-
lines of this crisis should be allowed “to make tough
policy choices unobstructed by court-created man-
dates that lack any sound basis in law” and have
“add[ed] enormous and unjustified complication to an
already extremely complicated set of circumstances.”
App., infra, 163a (opinion of Bress, J.). Only this
Court’s intervention can return this issue to the peo-
ple’s representatives—where it has belonged all
along.

CONCLUSION
The petition for a writ of certiorari should be
granted.

 
 36

Respectfully submitted.

JONATHAN C. BOND THEANE D. EVANGELIS

GIBSON, DUNN & CRUTCHER LLP Counsel of Record
1050 Connecticut Ave., N.W. BRADLEY J. HAMBURGER
Washington, D.C. 20036 SAMUEL ECKMAN
DANIEL R. ADLER
AARON P. HISEL PATRICK J. FUSTER
CAPITOL LEGAL SERVICES GIBSON, DUNN & CRUTCHER LLP
901 Capitol Street NE 333 South Grand Avenue
Salem, OR 97301 Los Angeles, CA 90071
(213) 229-7000
tevangelis@gibsondunn.com
August 22, 2023