Courthouse Steps Preview: City of Grants Pass, Oregon v. Johnson

[Music] hello and welcome to this fedock forum webinar call today April 17th 2024 we're delighted to host a courthouse sets preview on city of Grants Pass Oregon versus Johnson a case at an interesting intersection between criminal law and procedure fism and separation of powers and property rights my name is Kayla K and I'm an assistant director of practice groups here at the fedus society as always please note that all expressions of opinion are those of the expert on today's program as the Society takes no position on particular legal or public policy issues now in the of time I will keep my introduction of Our Guest today incredibly brief but if you'd like to know more you can access his impressive full bio at bso.org today we are fortunate to have with us Mark Miller who is a senior attorney the Civic Legal Foundation Park excuse me Mark joined plf there we go in 2014 and the year since he has concentrated on property rights litigation and policy from 2020 to 2023 Mark temporarily left plf to take on role as the first general counsel and then chief of staff is South Dakota governor Christine gnome and I leave it there uh one last note um as we go through the program if you have questions please submit them by the question and answer feature as we will have an extended time for questions in today's program with that I'll hand it over to mark for a set of opening comments thank you Kayla good afternoon to those of you like me on the east coast and good morning to the rest of you all I'm excited to lead this discussion on the Grants Pass versus Johnson case which is set for oral argument next Monday at the Supreme Court I did author an amus brief or friend of the court brief in the case on behalf of Pacific Legal Foundation and the California business properties Association supporting the government side of the V Although our perspective at Pacific Legal is always informed by ordered Liberty and what we think that means in any particular case so how is this case about ordered Liberty well that's what we'll be talking about for the next several minutes 30 to 60 minutes I guess depending on how many questions we have but to start out I'll give you a basic two- sentence summary I think Kayla did a great job of sort of talking about the how it intersects with a lot of different areas of law procedural law criminal law separation of powers um but sort of a two- sentence summary uh Grant P Grants Pass is a case about whether cities can use their powers to manage the health safety and Welfare of the community to protect public property and address the homeless crisis with a relatively free hand or if the federal courts the ninth circuit are right that even finding someone for sleeping on public property is unconstitutional with the homelessness crisis exp exploding the Supreme Court is intervening now to bring this some much needed direction to this public policy problem and note as I go through this discussion of the case this preview of the case I will toggle between camping and sleeping I realize it's not as clear as maybe I should be but it's a problem inherent in the case as lower Court's opinions aren't clear on it either another way to summarize this case or really any case pending at the Supreme Court is to read the question presented and in this case it's the the way the petitioner framed it the Supreme Court has adopted that framing um and the way the petitioner framed the question is does the enforcement of generally applicable laws regulating camping on public property constitute cruel and unusual punishment prohibited by the eth amendment and so I I'd ask you to keep that in mind this camping on public property violate uh a Prohibition on it violate the eth amendment cruel unusual punishment Clause because later I'll talk about the way the U respondents the homeless Advocates have framed reframed the question presented in their brief and also how the solicitor general sort of framed where she's going in in their argument in the solicitor general department of Justice's argument uh as a Meek as as a friend to the court the case is drawn a lot of attention with more than 80 Friends of the Court briefs at the marriage stage uh alone and although the briefs are close to 5050 uh in terms of the split the homeless Advocate side of the V did come in with a little bit more in terms of the number of briefs um than the government side got so that's the basics and in my presentation I'm going to walk you through what I think are the most Salient facts headed into or argument and so what I mean by that to make sort of an imperfect analogy is really we're not going to know uh how the meal turns out until after the Ora argument and um and listening to the oral argument and I think um my good friend Tim Sanford goldw Institute will be doing a sort of looking back on how the argument went next week for federal society and I would definitely encourage you to tune in Tim uh not only is an excellent lawyer but he wrote a fantastic uh amikas brief uh in the case on the merits and so he has a really interesting perspective on the case but that will be after the argument we're now talking about what's coming so we're what I'm trying to get at here in terms of returning to my analogy is the ingredients that are going to go into where the chefs the justices are going to cook the meal and yes perhaps I should avoid analogies in metap force but that's what we're doing we're talking about the ingredients and so the ingredients I think we need to start with how we got here and soort of the history really thumbnail sketch on homelessness is our country has had homelessness off and on arguably since the mid 1800s but generally homelessness you know ebed and flowed with the economy that the economy was good we really didn't have many people who were homeless when the e om was bad uh say um during the Depression when we had Hoovervilles as reflected in the Broadway musical Annie or in the go in um you know Grapes of Wrath Stein backck with the okis going to California and living in makeshift encampments so when the economy was bad we we saw homeless but when the economy was good we typically didn't see many homeless until the 1970s and then in the 1970s we we started to see a permanent homeless class in the country country and such that by 1984 the federal government started tracking generally the number of homeless and in 1984 there is a federal report that uh pegs the number of homeless in our country at between 250 and 300,000 people and then you can fast forward again for this quick thumbnail sketch on homelessness between 1984 and now uh the most recent Federal numbers um are estimated at about 650,000 maybe a little bit more than that and that's a report from HUD last year that the solicitor general relied upon in their amus brief and Pacific Legal Foundation did rely upon as well so in other words we've seen a permanent sort of homeless class in the country uh double or more than double if you say 250 or 300 to 650 a little more than double over the 40 years and so then we get to you know the argument about where the homelessness are supposed to stay and in this case we're ultimately arguing about uh whether sleeping on public property hey being that prepositional phrase on public property is lawful uh because it's cruel unusual punishment to punish someone for sleeping under the eth amendment or that it's entirely uh reasonable for local governments to uh civil fine or even criminally punish someone for sleeping on public property uh because they're effectively trespassing which they would be doing if it was private property no question and so the way we got there is to look at um we we have to look at two different cases uh the Robinson case and the Powell case um in the Robinson case which was 1962 these are two Supreme Court cases from the Warren Court uh that talked about um whether you can be punished for um not for um action but rather just for your status and so in Robinson which was 1962 uh we're dealing with a California law a lot of um the homeless issue and and how we treat people um for these status crimes does come out of California um and so in Robinson 1962 we're dealing with a California health and safety code that says no person shall use or be under the influence of or addicted to the use of Narcotics uh accepting when administered by a doctor and so then it's up to the defendant to prove that the exception applies and that they shouldn't be guilty um put that aside about who has to prove what um certainly gets into interesting issues of uh who has the proof in a criminal case but um the issue there that got to the Supreme Court was this question of not that you're using the drugs the government can't prove that and not even that you're under the influence of the drugs but rather that you're addicted and so Robinson was convicted under the statute and um Robinson argued that he couldn't be convicted for merely being addicted to the use of Narcotics and scotus even though the lower courts disagreed the Supreme Court agreed and said that being addicted to the use of Narcotics um is effectively punishing someone for being a narcotic addict which is a status an illness which may be Contra contracted innocently or involuntarily and that that would violate the cruel and unusual punishments Clause um whereas someone guilty of behavior such as using the drug or possessing the drug that could be punished and so it's important here to get into the language of the eth amendment um in terms of um the punishments so the language we're talking about here here is excessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishments inflicted so we're talking about that last portion of the eth amendment nor cruel and unusual punishments inflicted although excessive fines comes up in Grant's Pass and I'll get to that but cruel and unusual punishment so there's generally that sounds like punishment it sounds like the government gets to pick the crimes um at least under the eth amendment the eth amendment is really supposed to be on punishments but at least in Robin the court is saying actually the eth amendment can also regulate how the government charges a or decides what is a crime and um said here that being addicted to a drug cannot be a crime under the eth amendment again I I'm going to jump around a little bit but I will point out that there is an excellent amus brief that makes the point that this should be more of a due process question not in the eth amendment and I think that sort of explains in part why the solicitor general chose to get involved in the in the case and file the brief they did But ultimately the Supreme Court decided in the waren years that we would say that status crimes cannot be charged as crimes or status uh as an individual can't be charged as a crime under the eth amendment um so then scotus was invited to expand upon that in a case called Powell and in Powell Powell is convicted for being intoxicated in public so I would take that in public that prepositional phrase and compare it to what we're dealing with here Martin versus or excuse me John and Grant's Pass um you know sleeping on public property versus sleeping intoxicated in public versus being intoxicated um so there the Texas law said that Powell um whoever shall get drunk or be found in a state of intoxication in any public place or any private house except his own shall be fined $100 Powell attempted to assert as a defense that he was a chronic alcoholic who had no control no control over his actions when he was intoxicated therefore as in the Rob case he claimed he was con convicted for his status as a chronic alcoholic the trial court refused to allow that defense in the criminal case and again I think that's important criminal versus the Civil Rights type of case we're in now um in Grant's past um he appealed to the Supreme Court Powell did and um the court um with a in a plurality decision um in the plurality opinion was by Justice Marshall said that um that um the primary purpose of the the cruel unusual Clause has always been considered to be directed at the method or kind of punishment imposed for the violation of criminal statutes thus is uh little to do with the substance of area of criminal law which again I would blackag is probably more arguably more of a 14th Amendment due process issue and he said Robinson wasn't controlling because the Texas defendant was convicted for being drunk in public public Behavior which may create some substantial health and safety hazards not me status speaking for himself Justice white concluded that the defendant had showed nothing more than he was to some degree compelled to drink and that he was drunk at the time of his arrest because the defendant could not establish as being drunk in public was involuntary Justice white explained that he did not show his conviction offended the Constitution um he did also say indicta obviously it's it's a um one Justice concurrent um citing Robinson he said The Chronic alcoholic with an irresistible urge to consume alcohol shouldn't be punishable for drinking or for being drunk so again you know think about the idea here are you being punished uh in grants past in the Grant's past cases and and the Martin the line of cases that got us here for being homeless or for being homeless and choosing to sleep or camp in public um white said you can't just be punished for being drunk but you can be punished for actions that flow from being the drunk that you should have been able to control jce foris um joined by three others read Robinson broadly and concluded that criminal penalties may not be inflicted on a person for being in a condition he is powerless to change um he he said that being a chronic alcoholic was a condition that you know you have no capacity to change or avoid um thus the conviction for being drunk in public resulted from an uncontrollable compulsion to drink so regardless of that descent and Justice White's concurrence the bottom line is um this is a very limited exception to the idea that the eth amendment is mostly about punishment not about what can be a crime in the first instance and I need to go back because I forgot to give credit that um um Miss uh Israel who is a California lawyer uh much of that summary that I just gave you came from uh Tiffany Israel who's an attorney in California who represented 13 cities and wrote an excellent amikas brief in the in the case and that I adopted for that portion of my discussion so I tip to her um so then how do we get from this status of alcoholism or status of being a drug drug addict to the status of being homeless and being in public and whether that can be a crime the ninth circuit's creation of a right to public camping under the cruel unusual punishments Clause began two decades ago in Los Angeles in Jones a case from 2006 at the ninth circuit people living on Skid Row in La brought an eighth amendment claim against an ordinance that prohibited sitting lying or sleeping on streets sidewalks and other public ways the district court upheld the ordinance saying that it penalized conduct not status a divided pain all the night circuit reversed uh holding that the eighth amendment protects involuntary conduct such as sleeping on public property or being involuntarily homeless that is inseparable from the status of homelessness the majority got there by relying upon those two cases I just described um uh they combined pows excuse me Justice White's concurrence in the Powell case and Force's descent um the at the ninth circuit back then R just judge Rhymer objected and said uh dissented and said that extending the eth amendment this way to say that the homeless are like a drug addict um that they're being penalized just for being homeless and not because they are as the statute provided um sitting lying or sleeping on Street sidewalks and public ways uh takes the limits of criminality under the how the eth amendment evaluates criminality further than Robinson or Powell supports uh the case did settle though and ultimately the ninth circuit vacated the opinion so the case kind of went away but it didn't because the nin circuit resurrects it about a decade later a little over a decade later in a case called Martin versus city of Boise which very much informs and is basically what one of is if I correctly called the Bedrock of this Grant's Pass case um in Martin versus city of Boise people living on the city the streets of Boise Idaho claimed that punishing public camping under local ordinances in Boise um with short jail stins violated the Eighth Amendment so basically the same argument that we saw in the um Jones case um and the ninth circuit um basically agreed and said that if you if the homeless don't have um access to Alternative shelter then you can't the city of Boise can penalize them again they they combine White's uh concurrence and Justice Force's descent and power to establish that the eighth amen prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one's status or being end quote that meant that Boise could not enforce its public camping ordinance so long as there was a greater number of homeless individuals in in Boise or any other city than the number of available beds in shelters the court also said said that if the shelter was religiously Affiliated then those beds don't get counted in determining how many beds are available for the homeless but I should emphasize here well two things I should emphasize here we have a uh Amigas brief uh from a religious institution the uh gr pass gospel Rescue Mission arguing that since Martin came down and and so they support the government in this case which is interesting because many of the religious groups uh support the homeless arguments and I'll mention that in a minute uh but the Gospel Mission in Grants P said look we used to be helping a lot of homeless people because they would come to us to help them kick the drug habit or the alcohol habit or deal with the mental illness or find a job and we were able to help them but after the Martin case came down uh and then after the uh Grants Pass came down we saw the number of homeless people asking us for help uh severely Dro and so they say you know cities should have the authority to um police homelessness on their city streets and and if nothing else certainly gospel rescue missions bids beds should be counted um but the court said in the Martin case that religious uh institutions that often provide the homeless shelters um don't get counted um when you're looking at how many beds there are for the homeless and deciding that someone is quote involuntarily homeless um wasn't a class action though and there was a number of descents um rehearing in Bank unfortunately was denied and the Supreme Court denied CT so this is back in 2019 and cases broke out all over the West which is what um judge Smith Milam Smith had predicted would happen that there would be there would be just basically um cities unable to figure out how to deal with the homeless and the homeless would take advantage because of this case effectively preventing cities from in any sense penalizing homeless people who decide to live somewhere if they're going to be on the public streets or public parks and that's what we saw all over the West um Phoenix um San Francisco Grant Pass Portland Oregon all over which brings us to the instant case um like many cities and towns across the country Grants Pass um protects public health and safety by regulating The public's ability to Camp or sleep overnight and its outdoor spaces including Parks trails and sidewalks they adopted three ordinances which are really what were at issue initially uh in the court in the district court the first prohibited sleeping on public sidewalks streets or Alleyways at any time as a matter of individual and Public Safety the second prohibited camping on any sidewalk Street alley Lane public right of way park bench or other publicly owned property or under a bridge with a campsite defined as any place where bedding sleeping bag or other material used for bedding purposes or a stove or fire is placed and the third prohibiting specific Ally camping in public parks um these uh ordinances were enforced through civil fines not through criminal fines or jail terms although the homeless Advocates would argue that down the road if you were to be civil fined you would then ultimately get a trespass order and could be criminally charged But ultimately this case is about civil fines not criminal um from at least the city's perspective um the plain claimed in the case they sued grants pass and argued that this that these three laws violate the cruel and unusual punishments clause and they asked to certify the class the district court did certify the class uh because it said this was a Citywide practice and said that the homeless were involuntarily homeless um if there were more homeless individuals than shelter beds in the city of Grant's Pass so importantly there would be no need for an individualized determination as to how did someone get homeless are they choosing to live on the streets of Grants Pass um there's a good amik brief from Manhattan Institute Ilia Shapiro who points out that some uh that polls and and surveys of the homeless outwest uh lead to a significant percentage of homeless people saying they're choosing to live on the streets that they're not involuntarily homeless and they're choosing to live say in in Oregon because of the uh lack drug laws again that's from the Manhattan Institute brief so he so his brief argues this is not involuntary at all at least for a number of people but yet the District Court's decision and then the nin Court n circuit's decision basically say if you don't have enough beds for the homeless from account of the homeless uh then those homeless people are involuntarily homeless because the the city is not providing them beds to sleep in regardless of whether they would sleep on those beds if they could and again regardless of whether there are religious beds if you will available because religious shelters like a St Francis House in gaino Florida for those of you in uh Florida who know the University of Florida um that wouldn't count the Court understood Martin the Boise case to establish a mathematical ratio that prevented the city from enforcing its ordinances unless a shelter bed within the city's borders was available for every homeless person um and then extended Martin in two ways um first it said that Martin protects not only sleeping but also camping with bedding and then second said that um you couldn't even civil enforce these ordinances so again the difference between criminal and civil that even though the eth amendment talks about cruel and unusual punishment um um the eth the Supreme Court had said previously that I think it was Justice Gorsuch who remarked in Tims that the eth amendment does not know the difference between criminal punishment and civil punishment and so effectively there's no difference so a civil fine criminal punishment either way they can be cruel unusual or in Tims of course an excessive fine um and again that's important I should note as I'm jumping around a little bit um the district court and this is very important for where the Supreme Court may go in the oral argument and in It ultimately its decision The District Court had two rational rationals for its decision one it said this was cruel unusual punishment um to punish or even Civ find the homeless for sleeping in public parks what have you camping in public parks uh because they have no choice they're involuntarily homeless there's not enough beds but the court also said that off that excessive fines line of authority that Institute for justice won in the Tims versus Indiana case and it's now being when they when the Supreme Court Incorporated the access of fines Clause against the states and now it's being fleshed out the district court said that it's a necess of fine to find anyone for being homeless any fine at all for being homeless which involuntarily homeless is a violation of the eth amendment and that's important because as in case goes up an appeal the uh city did not uh challenge that part of the District Court's ruling only took up the cruel and unusual punishments clause and that was one reason why some thought the Supreme Court wouldn't Grant the petition but it's still hanging out there uh as an issue that the Supreme Court will probably deal with when it gets to oral argument as to even if they were to agree with the city that this is not cruel unusual punishment to civil fine the homeless what do they do with the fact that the district court said it also uh violates the eth amendment sucessive fines Clause I don't know what they'll do with that but they're definitely going to look at it and it's definitely an ingredient in the case um so the district court enters the judgment and joining Grants Pass from enforcing its public camping ordinances um without at least first giving a 24-hour warning uh and then it can't enforce them at nighttime hours entirely ninth circuit then affirms in large part and remands for further proceedings um again they get into this mathematical formula on in terms of if there's more homeless in a city then there are uh beds publicly available that are not religious beds then you're involuntarily homeless they deal with the fact that um what if you're what if you choose to be homeless um and you're not involuntarily homeless and so it shouldn't be a class action they just say well those people don't count within the class which is very interesting in theory but in the Practical reality how does the city really deal with that um it basically means you know their their hands are effectively tied because how are they going to know if somebody is involuntarily homeless choosing to be homeless they're basically at the mercy of the individual um so um according to the majority of the class definition eliminates such individualized issues because the class includes only involuntarily homeless meaning people with access to other housing don't qualify in the class as I just said um they had no problem the the Circuit Court the ninth circuit had no problem the panel 2 to1 had no problem with extending the uh criminal punishment is prohibited um to civil fines um and you got a descent from J judge Collins and then you got a a um motion for rehearing in bank that was 14-13 denying rehearing led to ultimately five separate opinions beyond the 13 active judges who dissented which was obviously one judge short of getting us a rehearing you also saw um four senior judges writing statements as well or or joining statements opposing the case so that's a uh fairly in-depth description of how we got to the Supreme Court and how we got to where we're going to be on Monday um I'm just going to quickly summarize arguments because I think I've sort of fleshed them out here pretty well um just by leading up to it you know the petitioner the city is effectively saying that um Robinson and Powell the two presidents that the that the ninth circuit's effectively relying upon to say that this is involuntary this is punishment for involuntary status not for conduct says it doesn't add up to a constitutional right to sleep on public property I think the analogy you know if it was just sleeping that would be one thing but it's sleeping on public property or camping on public property um so for the Supreme Court to rely upon Howell and Robinson what the petitioner says is it would effectively be extending those cases which um if I was a petitioner I'd probably making that argument too because it seems at least superficially unlikely that this court would be um looking to extend a Warren Warren precedence like Robinson and um Howell um although I don't remember when um when the court switched um but at least Robinson for sure is a Warren decision um they emphasize the status is the AC of uh needing to sleep not the act of sleeping on public property if you wanted to criticize a positioner you could say that if you're homeless you have to sleep somewhere and if you sleep on private property that is not yours you can be charged with trespass and the petitioner would say in response exactly there's no requirement for the public to provide you with a place to sleep on public property in fact in fact Pacific Legal Foundation in its brief notes that requiring the city to provide an individual homeless person with a bed for sleeping would turn what we generally think of as our constitutional rights and the Bill of Rights including the eth amendment into uh a positive right that you have a right to a public place to sleep as opposed to a negative right which is you have a right to the government not interfering with you exercising say your right to free speech or your right to own property without it being taken um for you know unless it's for public use and just compensation um and because if you if you take the homeless argument further and again I'm not making the argument but this is just the logic of what the petitioner would say is and in fact I heard this in the federal Society discussion of the case last fall is we also have a biological need to eat and so if you're if you don't have a job you're unemployed and you don't have any money to buy food does the government have to provide you food and that so that's sort of the parade of horribles if you will if you're the petitioner arguing against the homeless Advocates um moreover petitioner focuses on the bed formula I should mention the uh panel when the rehearing and Bank was denied attempted to sort of separate itself from the formula and said that that really was no longer applicable um it's you know you can read it for yourself and see whether you buy that I I expect the justices aren't going to buy it um certainly many of the mikas briefs uh and the authors of those briefs don't buy it because that tended to be quite a bit of what the focus was in the Friend of the Court briefs on this mathematical formula that if a city doesn't have enough uh publicly available beds for homeless people then it cannot civil fine or or dis or punish uh with a misdemeanor um the homeless um at bottom the petitioner says this case is about General law that prohibits camping on public property uh and since it's a law of General applicability in no way violates the eth amendment um the respondent they reframe the question and so I'm just going to read to you their uh their reframing because I think the way they reframe it sort of tail you know sets out the way they see this case in an effort and so this is the question presented on behalf of the homeless in an effort to force its homeless residents into other jurisdictions the city of Grant Pass Oregon decided to aggressively enforce a set of ordinances that nominally prohibit camping but in reality punish homeless people for sleeping or resting anywhere on public property at any time with so much as a blanket to survive the cold regardless of whether they have anywhere else to go the ordinances make it physically impossible for a homeless person who does not have access to shelter to remain in Grand pass without facing endless fines and jail time the question presented then is whether the city's punishment scheme transgresses the eth amendment's cruel unusual punishments Clause by inflicting punishment on the city's homeless residents for simply existing in the community without access to shelter so that's the question presented they're effectively attempting to address sort of obliquely the onpu property Problem by sort of saying well but the the community is affective trying to move them out of the community by just saying the the the crime or the Civil uh uh wrongdoing is sleeping on public property and their response is well no you're trying to get them out of the community so it's not that they're sleeping on public property it's just they're sleeping in your town you're sleeping in your city um respond takes pains to Eli the sleeping on public property Problem by making this about sleeping while sleeping if you're homeless you have no no choice but to sleep on public property and it's cruel unusual punishment to punish someone uh for engaging in a biological necessity and then they say at bottom the court should follow Robinson it's it's not conduct being punished it's status of being homeless in a community so the solicitor general who will also get to argue in the case um reframes the question presented as well uh very uh uh succinctly and reframing which tailors where the um this prar is headed or general prar is headed uh her office um is whether the ninth circuit ered in affirming a classwide injunction against the enforcement of anti-camping ordinances adopted by the city of Grants Pass and so I'm going to read it again whether the N circuit aired in affirming a classwide injunction uh against the enforcement of anti-camping ordinances adopted by the city of Grant's Pass so what I what what you could argue the solic general is doing is recognizing that the ninth circuit decision is toasted and the solic General on behalf of the doj is trying to move the court to say that there is a defense to being civil fined or criminally charged for sleeping on public property if it's impossible for you to sleep somewhere else so effectively this L General is trying to give the court an offramp between sort of the the two sort of black and white sides of this coin or the the pitched City side and the homeless Advocate side and trying to sort of in a sense split the difference whether the office is successful or not you know reading the brief and we'll see how the oral argument goes but trying to say that really the issue is that classwide injunction um if you look at Robinson in Powell you're talking about an individual person being criminally charged not a classwide um everyone in this city is involuntarily homeless or everyone who lives on the street uh in the Robinson case is was an addict say if you were to you know combine the two facts the homeless issue and the drug issue or an alcoholic in Powell and so you would need an individualized determination in fact there are two ex amus briefs that tease out what this lizard General is getting at um one was by the Sacramento District Attorney's office and one was by an attorney excuse me a law professor named I'm gonna botch the name but manheimer both pointing out that really if a person is involuntarily homeless this should not be a class action type of case but rather it should be that the individual homeless person gets to show as a defense to the crime or the civil charge that they have no choice but to be homeless and and what we call that defense is interesting the briefs uh his prar for the S General's office does not really say what you would call it uh perhaps you would call impossibility that's what the law professor argues in his amus brief that the Supreme Court should effectively create a common law sup a constitutional common law defense of impossibility or maybe you would call it necessity that I had no choice but to sleep on public property because I I'm homeless and I have no you know and I have nowhere else to turn and that that would be an affirmative defense to a criminal charge but that would mean the criminal charge does not violate or the Civil charge does not violate the eth amendment um so the difference between those amikas briefs and and the cic General's office solic General is trying to say penalizing the homeless in this context can violate the eth amendment the um well I don't know that necessarily would say there's a difference there they're both saying you it is a defense that you're involuntary homeless but it needs to be decided individually in a criminal case um this L General is a little bit vague about that um but that would be sort of how I think that argument would go [Music] um uh either way the ler General and these ziki are effectively saying the ninth circuit decision should be vacated so potential outcomes here there's a lot of potential outcomes one obviously the court could affirm I don't think you will see that um if the court was going to affirm I don't think it would have taken the case in the first place remember the Martin case from five years ago was denied C and so now it's 5 years later conditions have arguably gotten worse out west especially in the ninth circuit um with cities not knowing how to deal with the homeless problem and so they granted sir chances are they want to uh give the N circuit Direction um and and give the rest of the country Direction two they could dig it um they could dismiss this is improvidently granted so what do I mean when I say dig it well they could say we never should have granted this case because even if we agree with the about it this not being a violation of the cral unusual punishments Clause the city cons did not appeal the excess of fines argument and so that argument is still the law of the case and if we were to remand it what would the district court do with that ruling since it's not really before them um it seems unlikely that seems like that would have been a better reason for them not to Grant the case in the first place but digging a case is an alternative they have and you could see if Chief J Justice Roberts who you know likes to bring in unanimous decisions you could see if he's if he has a split Court um that is an offramp he could decide he wants to take because he doesn't want to see a five to four split or you know who knows so it's possible um you could reverse and as I mentioned at some point in the last half hour the court could say this is a due process issue not an eighth amendment issue uh the idea being that what can be a criminal charge does seem more to be a due process 14th Amendment problem not a cruel and unusual punishments problem um that would allow the court to to leave Robinson in place but separate this from Robinson and it wouldn't have to say well Robinson was wrong which you could see chief justice Roberts probably wouldn't you know again I'm predicting here but he generally wouldn't want to have to um walk away from you know precedent that everyone relies upon um but if he says this is different this is due process then Robinson stays it's sort of this outlier and the casee then has to be evaluated under that context I think that's possible as I said earlier there's an amus brief that teases that out um or the court could reverse is another alternative and say this is not a proper class action case at all if they did they could say either that an individual homeless person can sue uh but just not in a class action in a civil rights type case or say that it's really just best resolved in the criminal context like the Robinson and Powell cases were and like I alluded to that this General kind of is getting at and certainly the manheimer amikas brief and the um Sacramento DA's amikas brief get at so that's a lot to digest I know I've talked for quite a while um but Kayla I'll turn it back to you if we want to take questions sounds great thank you that was a really helpful summary of how we got here sort of the history of the cases that affect uh this current decision or litigation um and some of the arguments that are being brought up on on the various sides appreciate it we do have several questions from our audience uh so I'm happy to turn to those now and for those who haven't submitted questions but want to I'll direct you to the Q&A feature um our first question uh comes from a audience member who asks whether you've seen language from other cities laws that address the same general issue and if there's a better phrasing that could have happened uh potentially relating to that affirmative defense of being involuntarily homeless um and whether or not that might change the analysis you know um I I'm hardpressed to think that there's these ordinances are all written effectively they either predate Martin or the ones that postate Martin you know Martin and um gr pass being the two cases even though it's Grant Pass it's in front of the court I have a feeling in the OR Martin will come up a lot of the Martin versus city of Boise case um I I'm hardpressed to think any City's ordinance is going to be um it's tough to evaluate any of them until we know what the justices think so we're going to have to see what this opinion says and then you're going to see a lot of City attorneys having to rewrite their ordinances or perhaps somebody crowing that they got it right all along but I cannot think of any I apologize but I can't think of any example that I think is um would have been a better vehicle for say the the City for for a a local government if you will got it another questioner asks whether either the parties or an AMX brief has uh challenged the notion that beds provided by religious groups don't count so accepts the logic but wants to challenge that particular part of the math yes um thank you for that question and um I if I recall correctly Beckett filed a friend of the court brief arguing that this idea that religious bed shouldn't count um violates The Establishment Clause uh or no doesn't VI that the idea that I circuit said that that a a religious bed if you will for the homeless shouldn't be counted is in inappropriate under current Supreme Court uh interpretation of The Establishment Clause so yes that is brought up and absolutely um Miss OK Conor I would think you would expect that some of the justices will want to get into that issue that just like I think that the ninth circuit you I'll put it this way just like the petitioners think the ninth circuit is playing fast and loose with the eighth amendment in the way it applied the eth amendment to say that the homeless cannot be civil fined in this context I think that um there's an argument to be made and I think those who are um who prefer the current Court's interpretation of The Establishment Clause they have the opportunity to say and they have the perspective that that the ninth circuit played fast and loose with what the establishment Clause means by saying that somehow a religious bed shouldn't count the idea being and and to make the case for the ninth circuit the idea being that in perhaps some of these homeless shelters that are provided by religious institutions they would U make you um say a prayer or or in some way live up to rules that the homeless person would see as infringing on their religious beliefs um I think that there's an interesting counterargument to that though being that when you're homeless and you you need a place to stay are you you know you have choices and to say that simply the religious beds as I said the Gospel Mission in Grants Pass specifically says look we've got beds but homeless people are not coming here because these two precedents Martin and Johnson Martin and Grant's Pass effectively encourage the homeless just to stay on the streets because the government can't do anything about it and so this idea that somehow The Establishment Clause prevents the BS from being counted I think will come up in the oral argument um I don't know if it will make it into the opinion got it thanks so much um next questioner asks can a local government counter the eth amendment objection arising out of the Martin line of cases by arguing that the local government can nevertheless satisi satisfy strict scrutiny they give an example of a Public Health crisis as a potential reason a local government might give so I don't know that the way you framed it questioner exactly came up came up but I mentioned earlier Tim Sandifer wrote an excellent amikas brief um for Goldwater and there's a quote in um I think it's in Robinson but it could be pal please excuse me that you know you couldn't punish someone for catching a common cold and uh Tim uh Mr Sandifer makes the argument that in fact that's debatable because of what you're referring to in terms of um typhoid or typhus or exactly you know coming out of the pandemic obviously the cities did not have to engage in quarantine you know exercise their quarantine Powers but in fact if it wasn't quote a common cold as in that dicta from that Supreme Court president but rather was a very communicable disease then the city does have the police Powers the health safety and Welfare police powers to quarantine again it would have to be extreme I don't want to be misinterpreted here uh but I did write an oped at the time the pandemic just broke out describing how this local governments do have quite a bit of quarantine power in the face of what could be an extreme illness so I don't think anyone tried to make the strict scrutiny argument per se but it's definitely out there that if the government has that power uh then then why wouldn't it have this power in these on these facts so it's not exactly framed the way you framed it questioner but you're you're getting something that is real and that as I said Mr Sandifer mentioned in his brief got it thank you um next question and I'm going to do my best to paraphrase and hopefully I don't butcher it um attendee asks about how whether or not any argumentation has been raised concerning zoning um and whether or not if a city has property interests such as an easement in public property um for travel utilities or the way parks are zoned whether or not that has affected the argumentation here and I I potentially butchered the questions hopefully you can read it and give a better answer if that's helpful so I'm gonna combine these two questions this question along with Miss Cohen's question you know Miss Cohen asks about mental institutions closing in the 70s um and that that may be connected to the fact that we had a permanent uh underclass permanent homeless class I should say um starting in the 70s um and then this zoning issue Pacific Legal Foundation connects in in its amikas brief the the the zoning uh heavily restrictive zoning and environmental restrictions that come out of uh the environmental laws passed in the 70s that heavily weigh on ability of a developer to build and make and and impose high costs that makes housing so expensive that I would think there's an argument be made that the housing crisis sort of um is sort of parallels which just to say correlation equals causation but at least arguably these two things are occurring at the same time that governments got heavier and heavier into restricting property local state and federal property use and housing got more and more expensive and more and more people became homeless which isn't to downplay the problems of drugs and the problem of alcohol uh but is to say that um nonpartisan research has reflected that the cost of housing is contributing to the homeless crisis um the the argument that the government has an easement interest I think does speak to in general the government's position here that these this is public property uh there were many briefs filed um and I'm going to take up Miss o Conor's question as well about the broken windows Theory there were many amikas briefs that got into the idea that look it was more like examples look we own businesses and we've and or we have residences in cities and homeless people are living on our Stoops they're living in front of our businesses and so we can't find employees if we're a business because they don't want to come near these homeless en encampments what in Phoenix they call the Zone if you will um and so we can't find people to work or we just can't get to our homes our homes have become dangerous because of these homeless people living on the sidewalks or the public Stoops or the public parks by our houses so whether you call that an easement or just simply um the public have a right as I mentioned at the beginning ordered Liberty uh yes we have individual liberty but it's ordered individual liberty and the government is in some sense charged with protecting order and if you the this rule arguably has swallowed the order part of it at least in many of our cities got it thank you and then that nicely tied together a couple of the questions appreciate it a question for you is the way in which this class was certified unusual you mentioned a little bit of the difference of how they came to have standing and I'd be interested to know was that normal unusual is it of note in this case so yeah the class aspect of this I think was very unusual and is one of the more surprising aspects of the case um if anyone who's done class action litigation knows that's usually a big fight and you know someone's individual facts they all have to be basically the same to fit into a class but here with the homeless and how somebody ends up on the streets perhaps it's somebody who lost their job and didn't have savings and they have no choice but to to live on on the streets for some period of time whereas somebody else may just as I as I mentioned to earlier that Manhattan Institute brief by Ilia Shapiro maybe someone's just choosing to live on the streets yet by putting them both into the same class although the night circuit would say that that latter person technically isn't in the class because he's choosing but if he says or she says well I I have no choice I want to I want to be in this city and there's no job available then there's really not a lot you can do to pull them out of the class and so absolutely the certifying this as a class is where I wouldn't be surprised to see the Supreme Court Focus um this many of the Cities briefs there's any number of local government briefs in this case many of the bigger cities in California filed briefs um also just in the west sometimes they combined uh forces but others are just on behalf of individual cities but they say look you know we're not just going to arrest the homeless in Mass we are going to in ire and find out why is someone homeless and get them the help they need now to be sure as a Pacific legal lawyer who tends to look uh at the government skeptically that's sort of my job to sue the government you could say that yeah um I'm I'm dubious of that but again shouldn't you allow the government to either prove you right that you were right to be dubious um or prove you wrong and say no we are going to help you know not only did I work a Pacific Legal but I also work um for the state of South Dakota for chrisy Nome and many of the government workers I worked with there were would did have good faith in Good Intentions basically all of them did so the idea that we're just going to assume the city would treat all these people poorly and arrest all of them and so we have to uh enjoin the city from arresting any of them or civil finding any of them does seem arguably like an overreach at least that's what I think you'll hear the petitioner argue on next Monday got it thank you a next question from the audience um is addressing how who's affected by these laws and they ask uh would this apply to Van camping or car camping is it just to those who are sleeping directly on public property so um I bridged it just a little yeah no I'm I'm reading the question and Jonathan you've you've challenged me um I think if I dove better into the facts of these various cases out west I would be able to get into that car camper question um but in a fit of humility um I'm going to say I'm not quite sure how that would be analyzed and again I would use my sort of wave avoiding that earlier question by saying I think the Supreme Court's decision will help us figure out how a car camper situation should be dealt with um at a minimum the person in the car camper is not infringing another member of the Public's rights as severely as a camper would be if the camper is on a public stoop or on a public sidewalk or in a public park infringing on someone who's just trying to walk by if you're in the you're in the car you're effectively not as much interfering with someone else's rights such that the city wants to prevent that from happening so I do think it's factually a little bit different and I think the Supreme Court's decision may may tell us more got it thank you uh well obviously this is a preview um so we don't have oral argument or a decision yet so I'd love to turn now to with oral argument coming up next week just a couple of questions on what we should be watching for um from your perspective and you've touched on this a little bit in your really helpful summary what questions are most pressing uh in this case what should we hope it gets an answer so I think that you know when you look at this supreme court and other people have noticed this um and made this observation I should say and I think it's a legitimate one that rather than seeing this court as a six to3 Court I think it's more of a three three three court with Kavanaugh Justice Kavanaugh Justice Amy con Barrett and Justice Roberts sort of in the middle three and then Alo Thomas and Gorsuch on in one three and then Jackson Sor and Kagan the other three and so we'll be intered to see uh who leads the questioning um from each of those groups Justice gor for example Justice Gorsuch uh sort of fits into the Civil libertarian mode of the uh of that group group of three the most between among Alo Thomas and Gorsuch so does Gorsuch signal does Justice Gorsuch signal to us that he has a degree of um sympathy for this idea of a status crime um you know some of the amas briefs that came in from religious groups very strongly and and a number of Catholic groups I should emphasize which you can't ignore when you look at how many justices on the court I think seven if I'm remembering right are Catholic and almost all the Catholic arguments are in in favor of treating the homeless this this issue as a status issue so does Justice Gorsuch find that in any way appealing does he appear to be interested in following what I'll call civil um libertarian instincts um or does he fall more into the the conservative uh perspective that Justice Alo and Justice Thomas tend to follow more which would be by conservative I mean Law and Order approach broken windows to allude to uh Leo Connor's question um so where does Justice Gorsuch go where does Justice Kagan go I think Justice Kagan this term has signaled her opinion in a number of cases and also sign don't by not talking um I would mention uh sheets which was just decided uh last week Pacific Legal one an interesting property rights case that was an extension of a case called co uh both of those cases argued by former Pacific legal lawyer Paul beard and in Co Justice Kagan dissented and felt that c had gone too far in terms of how we treat exactions um and in the L use context and now here we had an extension of Co and Kagan who had descended in Co didn't ask many questions in the sheets oral argument and then didn't descend from the decision which was a lot sheets was a logical consequence of uh Co but um and Nolan Dolan as well but um her her decision to hold her fire if you will whereas in Co she was very um assertive that she thought I was a bad it was going to be a bad outcome in the oral argument and then she dissented um so where do Justice Kagan go I think that would be interesting and then that group in three in the middle um those three in the middle often tell us how um a case will turn out because again I I don't fall in I don't like the red and blue analysis 90% of our cases are unanimous they close to unanimous but to the extent that that 333 rubric is helpful the three in the middle who leads the questioning there just as Kavanaugh I think particularly is somebody who likes to favor the institution if you will so in this case the city the governments who are trying to deal with the public policy problem uh and not and and so his perspective informed by having worked for the government um may lead him to you know look for his questioning to signal that perhaps he sides with the government and if it doesn't then that may tell us a lot too got it well thank you that was incredibly helpful sort of summary of what what we can be looking forward next week uh we're approaching the top of the hour so I'll give you a time for final thoughts is there anything you like to leave us with thank you Kayla I just want to appreciate anyone who help hung in there for the entire hour um the oral argument should be very interesting it's going to be Monday I'll mention uh I'll throw a shout out to audio arguendo was a great podcast that allows you to listen to the or argument a few hours after it occurs live and you can fast forward it uh listen at 2.0 speed or a little not quite that fast if you want to understand it but it allows you to listen to or arguments and get them done more quickly um otherwise I would just say it's going to be a very interesting case um because of all the different issues that are in play Kayla mentioned at the very beginning it's hard to know where the justice will come out but I think because they granted it I think that ninth circuit decision will be vacated but how it gets vacated is where the interesting uh aspect of the case will lie thank you Kayla and thank you Federal Society well thank you appreciate you carving out this section of your afternoon thank you also to our audience for joining and participating welcome listen to feedback by email at fedock forums fed.org and as always keep an eye on your web our website and your emails for announcements about other upcoming virtual events like the courthouse steps um oral argument that will happen next week after we see how this case turns out with that however this webinar can ATT turn thank you so much for joining us today [Music]

Channel: The Federalist Society

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Length: 58min 24sec (3504 seconds)

Published: Mon Apr 22 2024