Transcripts For CSPAN3 Supreme 20240703

Penalty fees for violations begin at 295. In 2018 Gloria Johnson filed a suit where he District Court ruled the ordinances constituted cruel and unusual punishment against the homeless because they have no access to shelter. On appeal the court of appeals for the ninth circuit also ruled in favor of the Homeless People. The u. S. Supreme court now has through june 2024 to issue a ruling. Like cities nationwide grants pass relies on camping laws to protect its public spaces. These generally applicable laws prohibit specific conduct and are central to Public Health and safety. The ninth circuit tied cities hands by constitutionalize and the policy over how to address growing encampments. Foreign grants pass from enforcing its camping laws is wrong. For three reasons. First, the cruel and unusual punishments claus governs which punishments are permitted. Not what conduct can be prohibited. No precedent supports the ninth circuits rule. Respondents in the United States instead misread robinson to bar any punishment for involuntary conduct that is linked to a status, but robinson held on invested capital outside the drug addiction. It made clear that can prohibit conduct like drug use. This court should not rewrite robinson six decades later. The ninth circuits approach has proven unworkable. The eighth amendment does not tell courts who is involuntary homeless, what shelter is adequate, or what time place and manner regulations are allowed. Gling to apply arbitrary shifting standards in the field. This court should reverse and and the failed experiment which has fueled the spread of encampments while harming those it purports to protect. I welcome the courts questions. Like the Gospel Rescue Mission in grants pass in cities are struggling to apply arbitrary shifting standards in the field. This court should reverse and end the ninth circuits failed experiment which has fueled the spread of encampments while harming those it purports to protect. Do you consider these a civil or criminal penalties . They are both, Justice Thomas. There is criminal trespass and civil. Is that involved in this case . Yes it is. To what extent . Have any of them been subject to criminal trespass . They are in joint with them, and they do apply here. They are for recidivist offenses. Which party has been held accountable for criminal trespass . Here none of the individuals who are currently in the case. So what is involved in this case . For logan and johnson the Civil Penalties. So is it the anticamping or what is it . Yes it is. So is the civil or criminal . The camping ordinances civil and then for repeat offenders it is punishable. We are not talking about repeat offenders right now . Correct. Been have we ever applied the eighth amendment to Civil Penalties . Not the cruel and unusual penance cause no. Counsel. What will the city do if you do not prevail here . The said his hands will be tied. It will be forced to surrender its public spaces as it has been. Unfortunately beds are going unused at the Gospel Rescue Mission. People are not getting the help they need. The city is under an injunction here, and it is unable to rely on these basic ordinances, and the decisions give cities like grants pass no guidance about how they can navigate this very challenging area. They have effectively imposed municipal code under the ninth circuits martin rule to regulate what the city can do in its public spaces. There are as many as 600 in grants pass. Is still in less than 100 beds . That is right. Can i stop you a moment . You are not asking us to overturn is it correct . The think it was wrongly decided and should not be extended but we do not think they need to overrule. Assuming it prohibits you criminalizing homelessness, right . So what you do is say only Homeless People who sleep outdoors will be arrested. That is the testimony of your chief of police. Two or three officers which is if you read the crime it is only stopping you from sleeping in public for the purpose of maintaining a temporary place to live, and the Police Officers testified that it means if a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep you do not arrest them. You do not arrest babies who have blankets over them. You do not arrest people who are sleeping on the beach, as i tend to do if i have been there a while. You only arrest people who do not have a second home. Is that correct . Who do not have a home. No. They are generally applicable. That is what you want to say. Give me one example because the Police Officers couldnt. They explicitly said if someone has another home or has a home and is out there and happens to fall asleep they would be arrested. Fall asleep at something on them. This is one example of a citation issued to someone with a home address. I think what we are getting it is these laws regulate conduct of everyone. There is nothing in the law that criminalizes homelessness. That is what you say, but if i look at the record and see differently it is a different argument. This actually very clearly says that being homeless is not a crime. I know that is what you say, but you of enforcing it on the against the homeless i will suggest you look. There is one brief. Let me see if i can find it. It talks about this. I will find it later and mention it. The second thing i want to ask you. You seem to start by saying the eighth amendment is limited to forms of punishment and not to the nature of punishment. The proportionality issue. There also is a number that lays out for us that through the founding and through state laws. Through 1910. That throughout all of that both the english american colonies and this court has had some form of proportionality in their eighth amendment. You are asking us to ignore all of that history . No we are not be what we are saying is this case doesnt implicate proportionality. We are not asking them to take a position on whether it is proper. Yes you are because youre saying the only thing that is prohibited by the eighth amendment is the form of punishment, but in those cases and in our history we have said that a certain punishments cannot be done. That is right. The court always looked at if a punishment is considered too extreme or categorically so like the Death Penalty in some cases they look at whether a lesser punishment would be acceptable. It is looking at punishment, and that is where the inquiry focuses. Only what the respondents are asking the court to do is to extend. Do you have hotels that are valued at 250 in your city . Just answer yes or no. I do not know. Lets assume because even in new york city there is maybe the most expensive city in the nation or close to it there are hotels that are less than that or at that price. If a homeless person had that kind of money dont you think they would stay in a hotel . The difficulty here is that this ruled that the respondents are proposing breasts on whether someones conduct is involuntary. Most importantly here we are talking abt conduct, so i want to talk about how this is completelyistinguishable. Could you criminalize the status of homelessness . I have a couple of points to that. It is a simple question. Robinson does not address the and i think its distinguishable. Could you criminalize the status mess of homelessness . I do not think homelessness is a status like drug addiction, and it is the status of not having a home. I actually disagree because its so fluid in different. People expensing homelessness might be one day with our shelter and the next day with. The federal definition contemplates various forms. The period where you do not have a home and you are homeless. Is that a status . No it is not be robinson talked about so you could criminalize just homelessness . I want to see a couple of things. That is quite striking you think you can criminalize just homelessness. We are not saying homelessness is a status. Most importantly i think the eighth amendment its really a simple question. Can you criminalize homelessness , and you are suggesting yes you could. We do not criminalize homelessness. Could you criminalize homelessness . I think there would be due process problems. I do not think there is an eighth amendment problem in the sense of robinson because that was a limited decision where the holding was solely about a disease of addiction. The court was very clear about distinguishing between addiction and possession. You are right that it is a different status involved in robinson, but they made clear there was a category of cases that were status offenses, which were different from conduct offenses be when he started off today you said we are just criminalizing conduct, so to tell you the truth i thought this was going to be a question where you would say of course we cannot criminalize a status, but there is conduct here and then i was going to say what is the conduct . But you did not say that. You said you could criminalize even the status of homelessness. That suggest to me that you are off on the wrong track thinking about this issue. I think the point where we are disagreeing here is really about whether the eighth amendment is the right framework for this discussion. It was the framework in robinson. Where they said the eighth amendment put taxi against statusbased crimes. That is what the question is. I do not think it extends that far. I think the plurality goes into a discussion about this. What is the conduct here . Establishing a campsite, and it is the same as in the federal regulations at the National Park service. I thought that the only conduct here was sleeping outside with a blanket. The conduct of establishing a campsite which includes making a bed with bedding or other materials. The campsite suggests Something Different to people. Is suggests a tent and a conglomeration of people. Tent camps, if you will. Your ordinance does not just prohibit that. Your ordinance prohibits a Single Person who is homeless, so does not have another place to sleep. That is a status. I do not have another place to sleep. A Single Person sleeping instead in public with a blanket. That is what i understand your stature to do. Is that not we are statute does . It does not say anything about homelessness. Its a generally applicable law. Its important that it applies to everyone. I got that big a Single Person with a blanket. You have to have a tent or a camp. A Single Person with a blanket. Sleeping and conduct or in public is considered conduct in this court and clark discussed that. Also the federal regulation. It is sort of like breathing. You could say that has conduct too, but are presumed to be with you would not think it is okay to criminalize breathing in public. For a homeless person who has no place to go sleeping in public is kind of like breathing in public. Even the federal regulations prohibit even sleeping. They do not require any materials including but not necessary under the federal regulation. This is conduct that is understood by jurisdictions nationwide and even the federal government to be conduct that is prohibited, so i want to make that. I think this is a superhard policy problem for all municipalities. If you were to come in here and say we need certain protections to keep our streets safe and cannot have people sleeping in any place that they want and we cannot have tent cities cropping up. That would create one set of issues, but your ordinance goes way beyond that. Your ordinance says as to a person, and i understand you think it is generally applicable, but we only come up with this problem for a person who is homeless with the status of homelessness with no other place to sleep. Your statue says they cannot take himself and himself only and take a blanket and sleep someplace without it being a crime. And that just seems like robinson. Seems like you are criminalizing a status. It is not, and we agree this is a very difficult policy question. Can you answer why is it not . She has laid out one of the essential problems here, which is you are making a distinction between status and conduct. We see that, and you keep saying this is conduct. Can you explain why . That is exactly what was missing in robinson, and that is what we have here. That is why the law was so unique. Is seems like it is not help you. It seems both cruel and unusual to punish people for acts that constitute basic human needs. Here unlike in robinson where you have at least this diseased state. Drugs and the like and potentially culpable acts that would relate to that here here we are talking about sleeping that is universal that is a basic function, so i guess what i do not understand is in this circumstance why that particular state is being considered conduct for the purpose of punishment . I think that just illustrates the line drawn problems. If you look at biological necessities and what a person needs to do the ninth circuits decision in this area would allow that. Can i give you a hypothetical . Suppose the relevant ordinance prohibited eating on public property rather than sleeping or camping. In the city for very rational reasons they are determined when people eat outdoors it creates problems with trash and rodents and the like, so it bans eating in public places. It punishes violators. Just as here that seems generally fine because most people have restaurants they can go to. Most people have houses they can eat in. Some people do not have that option. They have to eat in public because they are on housed and cannot afford to go to a restaurant. Is your argument the same result with no eighth amendment problem or with the city bending eating in public even though that is a Public Function or a human necessity that everyone engages in and really what is happening is you are only punishing certain people who cannot afford to do it privately . It sounds like i take for a moment you are not saying that it draws lines on any sort of a rational basis. The city has a perfectly rational reason because there is trash and rodents and problems, so the city says what we are going to do is say no eating in public. What i am concerned about from your argument is the suggestion. You call it conduct. I appreciate that, but what we have operating in operation is that people who are able to afford doing this thing that is a basic human need privately are okay. They are not punished for it, but people who do not have any other option or opportunity except for to do it in public are the ones who are being targeted by the statute. First, i think the eighth amendment is the wrong way to look at it. Someone might have a due process challenge to a law like that if there is a deeply entrenched but in my hypothetical punishment is happening. They are going to jail. Why is it not implicated . In that case you would have a defense under oregon law. Im sorry to interrupt, but on that point i think we are having some debate about where to watch the defense whether it is under the eighth or 14th amendment. You can see there are instances in which this defense long recognized a common law would apply to eating and sleeping in public or other things like that . I agree. Actually here in the case of camping oregon law recognizes this. If it was a matter of state law and policy that is why states are able to address the needs of what this issue raises, so for something under oregon state law a person could raise the defense under the necessity defense and if that is not enough and they believe its not broad enough somehow so its already built into it . Correct. There is a threshold concern i have about this case. I understand oregon has enacted a new statute that seems to address this very issue, so im trying to understand why this is still a live case. As i read the new law it essentially codifies the rule that it says something about all regulations of this nature have to be objectively reasonable as to the time place and manner with regards to people experiencing homelessness. So it seems like the state has already precluded grants pass from doing this sort of thing it is doing, so why do we have to weigh in on that . Know it hasnt. Both sides agree the case has not moved. More importantly that standard is very different from martin, and there has never been a challenge. What about constitutional avoidance . Wouldnt it be that we do not need to reach the constitutionality of this issue if there is another possible way of resolving it . Not at all. The state law is very different and we believe it is satisfied. The state is acting as a good thing. We agree state should be able to make policy into weigh all of the competing concerns, and hear the need to reverse martin is so critical because laws like ours really do serve as an essential purpose. They protect the health and safety of everyone. Its not safe to live in encampments. Its unsanitary pure we see what is happening. And there are the arms of the encampments themselves on those in them and outside. The federal government has cleared encampments here in the capital, so this is an urgent problem. There are downstream effects of all of the other things that flow from it, but its very important here to understand that the state laws. You argument it has nothing to say about how the City Response to such problems. Suppose the city decided it was going to execute Homeless People. Very extreme i know, but it was solved the problems you are talking about. Do we have an eighth amendment issue in that circumstance . Yes. Here we are looking at the punishment. That would be both cruel and unusual. I think yes. Why not just yes to that . And i ask about the question of the ordinances . This criminalizes sleeping with a blanket at a minimum. As i understand it after this decision and maybe after martin and before that there was some question about whether it also criminalized having campfires in tents. Can you talk a little bit about the scope of that . Does a constitution make it impossible for a city to limit the use of fires in encampments and tans in those kind of temporary shelters . It really does because both the argument its a biological necessity to sleep outside the respondents argue a blanket is necessary and oregon. Some might argue a tent and a fire is necessary in north dakota. It does not give us any answers to what cities can and cant prohibit. Its really administratively impossible for cities on the ground as well as for courts to administer. We have nothing to do with fires or tents. That was exempted under the District Courts injunction in Circuit Court did not require that. We are talking only about sleeping with a blanket. So lets narrow it to what it is. I agree there might be other cases in the ninth circuit that are not rational. And i do not mean to throw aspersions at those holdings, but some of them are not permitting time place restrictions. Lets go beyond that. Lets go here. You are not precluded from prohibiting fires or tents. What is at issue is are you prohibited from having someone wear a blanket . Anywhere in the city. Your intent was to remove every homeless person and give them no public space. To sit down with a blanket or lay down with a blanket and fall asleep. That is not the intent of the law. I would like to address that. Why dont you answer the basic question . It is not about fires or tents. It is about not being a time and place restriction about eliminating choices. We think its harmful for people to be living in public spaces on streets and parks. Whatever bedding materials when humans are living in those conditions we think that is not compassionate. It is not, but neither is providing them with nothing. To alleviate the situation. This is a difficult policy question. Where do we put them if every city and village in town lacks compassion . And passes a lot identical to this where are they supposed to sleep . Are they supposed to kill themselves not sleeping . This is a necessity defense, as i mentioned. It is available and states are able to address these concerns. This is a complicated policy question. We believe the eighth amendment analysis focuses on the lower level. What is so complicated about letting someone somewhere sleep with a blanket in the outside if they have nowhere to sleep . The laws against defecation and keeping things sanitary around yourself. The have all been upheld. The only ing this injunction does is say you cannot stop someone from sleeping in a public place. Without a blket. Why dont you answer and then we will move on to the next round . You can be thinking about an answer well we move into a different stage of the argument. Is being a bank robber a status . No. I would say that if your question is asking would it be permissible to punish of being a bank robber i think that would have some vagueness problems probably. It would be someone who robbed a bank. That does not sound vague. I do not think it is a status in the sense of robinson , which i want to just focus on what we think robinson stands for. It is on the its Narrow Holding about addiction and there it was the status of being an addict without this. Law like that is problematic without. I think you probably have vagueness problems and due process problems, however this entire exercise under robinson is the only time this court has ever evaluated the criminal law, and it raises all of these laundering problems. I am not here to defend robinson as a matter of First Principles that we dont agree with it. We are just saying it is so far removed and our laws are so far removed from what was at issue in robinson that it isnt implicated here. If someone is homeless for a week and then they find available shelter. Is that person homeless when he is in the shelter . Under federal law he is actually considered homeless. That shows the fluidity and the different ways. What do you mean the regulations . It is someone sleeping in a shelter. Some would say yes. Would you say . I would see at that point he is sheltered and homeless. Let me make it easier. What if he buys a home or is given a home. Is he homeless . He is not the what is at issue in this case. See you think the status can change from one time to another . Yes i do. Is that consistent with the definition in robinson . No. Robinson treated it like addiction as a disease in something and many believe that addiction is something that someone has with them forever and its a struggle, so that is a very different situation. If someone has shelter. Lets say they were offered shelter yesterday and refused it and then today when someone comes around and tells them they are not permitted to camp are they involuntarily there if they refuse shelter yesterday . That is the question the eighth amendment does not answer. This is very complex. What if there is a bed available, but a person does not sh to leave their pet . Or rottweiler is not permitted. That is a difficult policy question. Thank you. Robinson actually included a crime either to use narcotics or to be addicted to the use of narcotics. The court was concerned about the status of being addicted to the use. Is there a crime here for meless . No there is not. Robinson presents a very difficult question. Do you think that someone who is a drug addict is absolutely incapable. That all people who are drug addicts are absolutely incapable of refraining from using drugs . I think that for some that may be true, and for some perhaps they can abstain, but that is the question of free will that is true of every law and what conduct we choose to regulate. Then compare that with a person who absolutely has no place to sleep in a particular jurisdiction. Does that person have any alternative other than sleeping outside . I think we would have to ask all of the questions i mentioned earlier about what alternatives they might have had yesterday. They have absolutely none. Not a single place where they can sleep. If that is true that may be the case, and in that case at least in oregon they would have a defense of necessity. So the point is the connection between drug addiction and drug usage is more tenuous than the connection between absolute homelessness and sleeping outside . I think in robinson. Again, the court did draw that line. The respondents are saying that they are really the same. Camping and sleeping outside and being homeless are two sides of the same coin. We thk that is wrong. Collapse in the status that they claim into the conduct, so we think the conduct here is very clear because it applies generally to everyone. It does not say on its face it is a crime to be homeless. I just want to make that very clear. It was the brief of criminal law and punishment scholars that i was referencing earlier. I want to go back to Justice Thomass beginning question. As i understood it the ninth circuit never reached the excessive fines question presented by this case. So that is still open. That is correct. Assuming there is no standing. I understand one of the appellees died to the one who was camping outside died during this appeal, and there are two other named plaintiffs. I know they have fines on them. I am not sure that either of them has any criminal crimes charged against them. Where does that put this appeal in case . Should they be vacating to see if there is a live plaintiff who is still suffering . No. The sleeping ordinance is the one misplayed challenge. That is no longer in the case. That limited only sleeping in certain rights of way and sidewalks, and it was a different law, and that is not an issue here. Sleeping is not an issue. It is but the camping ordinance be we very much have a live case because we are under the ninth circuits injunction and the name plaintiffs. The question is could you give an injunction . I guess if they are not permitted to park, so it is not the camping. It is the parking . And the camping. We intend to rely on these laws. We want to be able to rely on these laws. Just focus on my question. Both these people sleep in cars. They both sleep in cars outside of the town. So they are not seeking camping permission. Is your city not providing overnight parking in any location at night except in private homes . Camping in a vehicle is included in the camping ordinance. That is going into a camp. How do you define camp . A place where someone so if they go into a line of cars and the cars can stay overnight . And they want to park in one of the spaces. If they fall asleep in the car they are guilty of violating the camping law . She parks her car oftentimes at a friends, so she is not violating the law at those times. Parking everywhere is not prohibited in certain areas. Is sleeping in your car prohibited . In a park where youre not allowed to park overnight then yes. Have they just said they wanted to park somewhere in the city, and can the park somewhere in the city and sleep . Yes. They have said they have the intent to continue their conduct and that they will be therefore subject to the cities laws. A person says that its effectively the lesser of two evils. You have referred a couple of times to the necessity defense, so can you tell me how that would work . Yes. Under oregon law if a person says is fiscally the lesser of two evils. If they say i have no alternative legally other than what i did here that broke the law then i have no choice, and i therefore had to break the law and it was in some sense involuntary to use a term that many have been discussing. So they argue it would be very narrow. It is a very narrow defense, said it would be in that moment. Suppose there is a person who is homeless and there are no shelter beds available and the person has no place to go in the person of course has to sleep. And the person has a blanket and its cold outside, so that is the minimum conduct the law prohibits, so they sleep outside with a blanket and the Police Officer comes and but the person says i had no place else to go. Would the city continue to push for some kind of penalty . If a person received a citation. If they did they would have a defense of necessity. So what of the other side so asserted as a defense, so you are not willing to say we are going to tell all of our Police Officers they shouldnt give a citation in this circumstance. We are going to give a citation and then see how the courts deal with it is all youre going to tell me . The does have discretion and we know they exercise it. And into sieve for there in a tough situation here. The question is what is the city going to tell individual officers . So what is the city going to tell individual officers about a case of the kind that i said . Are you going to tell them to issue the citation and we will see if they know enough to make an necessity defense and we will see what the court does about that . Or are you going to say there are some things that just ought not to be the subject of civil or criminal infractions. Of the city in its policy in a joint appendix page 158 for example talks about what officers are supposed to do. Theyre supposed to put people in touch with Services First to contact if there is available help for them. These laws are absolutely a tool for getting people the services that they need. Many people you are not giving me a real answer to the question. Is the city telling officers they should give citations in this circumstance . No. It is a matter is there any there is nothing you can point to that the cities says we have a necessity defense. What we are telling officers to do is to act consistently with that defense so that if it is truly a matter of need you are sleeping on the street along with a blanket the officer should not cite the person. There is nothing here that shows officers were told about an necessity defense in that what it would or would not preclude. That would be an individualized question after the fact of someone received a citation and if they thought that wasnt enough the proper framework would be this courts framework where we would look at the asserted defense and here it would be necessity and we would ask whether it was so deeply rooted in our history and something that has to be imposed in this way on the state. Thank you. I suppose someone could also initiate a class action like what happened here if you were not allowing the necessity defense to operate, and seek to have it enforced, couldnt they . Potentially. You have said several times it is a difficult policy question and a complicated policy question and everyone would agree with that. How does this law help deal with the complicated policy issues . One of the most difficult challenges is getting people the help that they need, and laws like this allows cities to intervene and they are an important tool in helping incentivize people to accept shelter. For example mr. Johnson has said and heard deposition in the joint appendix she does not wish to stay at the Gospel Rescue Mission be one of the reasons because of her dog. She also had other reasons she does not like being around people and so forth. People have all sorts of circumstances. It is very complex. How does it help the rule here if there are not enough beds for the number of Homeless People in the jurisdiction . For ms. Johnson she sometimes stays with a friend. More generally though. I guess if there is a mismatch between the number of beds available and shelters even including gospel rescue and the number of Homeless People there is going to be a certain number of people who there is nowhere to go. That is a difficult policy question. How does this help with that policy . It encourages people to accept alternatives when they come up so fewer people end up camping. There is also harm and simply camping pick whatever materials they are using. There is harm to the whole city and community as well as them. We know encampments in these conditions also breed crime and very dangerous conditions. They have an interest in protecting everyone. That is what we have seen in the ninth circuit. That is unworkable. There is no way to account for what beds are available and who is perhaps willing to take one and who would consider it adequate and then it becomes are they adequate . That is a separate issue i agree. How does that differ from the constitutional role . I want to get an answer to that. You would waive the arm from the conduct in violating the law, so if someone were camping near a school or doing something or engaged in some th the oregon case, including people who are growing marijuana for medical reasons but without a license, so the necessity defense was not accepted in that case because they could have obtained a license, so if a person had a friend to go to, had a bed available at the Gospel Rescue Mission, they would expected to take it under the necessity defense, that is how it would play out. One more question, if you get out of jail, what is going to happen then, you still dont have a bed available so how does this help . And i want to make a point about the criminal aspect, the trespass law is only triggered after several civil citations. You run through that cycle and you end up in jail for 30 days, then you get out, you are not going to be any better off than you were before in finding a bed, going to my earlier question, unless you are removed from the jurisdiction or you decide to leave. There are Services Available and the jurisdiction can put you in touch with services and programs to help you in those circumstances and for many people, that is a point where they are able to get into treatment, so that intervention actually saves lives. Thank you. Let me follow up on that, you are saying theres Services Available, theres treatment available so people would ultimately move off the street . Because i think part of the premise is that there are not enough beds for harmless people to occupy so they will be a mismatch and theres going to be some people who cant be cared for. Are you saying that if your law is enforced, there is a way for everyone to be cared for . No, im saying that if the policy question and its quite difficult, they are not the only solution, and we dont believe they are, but we think they are an important tool and without them we have seen what has happened on our streets, we see that people are dying in and cantons, we see that cities are being forced to seize all of the public spaces. That question is for policymakers to figure out what the right solution is, but the wrong answer to do with the ninth circuit did here. Let me interrupt you, it is a very difficult policy question and i asked you before about whether this was just about blankets or whether it went into having fires or urinating and defecating outdoors, and this particular injunction did carve out those things, just talking about sleep. But other cases have been litigated in the ninth circuit that have gone beyond that, and because the line is things that are involuntary that are human needs, it can extend, it is difficult to draw the line. Whatever we decide about the case is about the line. Can you describe some of the things that are difficult to figure out about the line . They are sleeping with blankets, what else . Public urination and defecation, that is a serious problem, those are parts of biological necessities of being human, the court of sacramento addressed that in the ninth circuit debated whether its rule would reach those things, i think any rule we are wondering about, i think that is a sign that it is not a workable rule. The slippery slope is very real, its not just for camping and conduct that might be a biological necessity, putting aside tents and fires and cold climates, what other things would be allowed, all of the things that humans need to survive, for example potentially come into focus under the ninth circuit rule but also in other areas, someone could say that my drug use or possession is the other side of the coin because im an addict, or because a person who violates other laws could say that i had a compulsion to do those things that i couldnt control and the plurality opinion in powell addressed that very thing and why it is so important to draw the line there and when conduct is involved and once the court gets into deciding which conduct may be excused under the eighth amendment, it is so far from what the conduct was. I agree, i dont think we should overrule robinson, you have also been resisting the status, you have been resisting characterizing anything other than the drug addiction that was at issue, so what if the law said it is unlawful and punishable by 30 days in prison to have the status of homelessness, just go with me, just assume that the law defines homelessness as a status, would robinson say that that law is unconstitutional under the eighth amendment . You are saying that is a status . Yes, it is a status. Well, yes, i think it looks a lot like robinson under that hypothetical but of course we disagree i understand you disagree, you are accepting that robinson draws a distinction between status and conduct and you are fighting about the definition of a status. It draws the line where a law has no act, that is the easiest law, i dont defend the line on the eighth amendment, another court doesnt rely on the eighth amendment. The status of homelessness, it could be 4 00 in the afternoon and the person is just standing outside the bus stop, do you agree that if the law prohibited that, made that a crying that under robinson, whether robinson was right or wrong, that would be a violation of the amended. I think the better framework is due process. I understand that, under robinson, do you agree that would be wrong . Yes. Okay, thank you. So, picking up where Justice Barrett left off, you say that the ordinance pertains to conduct and not to status and im just trying to figure that out. Im not so sure for this reason, it is because all humans engage in the act in question, sleeping, and yet the statute operates, or the ordinance operates to penalize only certain individuals, those who have no choice but to do that act in public. So, it appears i think not to be the act that the state or the city in this case finds criminally palpable. It is instead the act as engaged in by certain people, by people who cannot afford housing and have nowhere else to go. So why is that the wrong way to think about it, and if that is the right way to think about it, why isnt that a status crime in the way that robinson contemplates . It is not because we can look at the law and it has a conduct element, the conduct is establishing a campsite and that is something that a person that has a home or shelter can do as well. But you find a way, the act is sleeping i guess outside to the extent you put outside in it, but that is the problem im talking about, it is the sleeping. That is not a criminal kind of activity. Thats what might distinguish it from robinson and make it worse for you in a way because in robinson at least to the extent someone had a disease and the question is, are they engaging in otherwise criminally culpable conduct buying and selling drugs, we look at that category of things. Here, the actus reus is sleeping, human, universal. The city adds, okay, but you cant sleep outside. And i guess what im trying to understand is to the extent that it only happens with respect to a certain category of people who have no other place to go, why isnt that really just punishing the status of being someone who doesnt have any place to go . It doesnt apply only to those people, the response here tried to exempt a whole category of people, so what you are looking at is, the conduct of camping under federal law and in this Court Decision in clark, it was understood that his conduct, it is just like trespass where if you are found in a place, if you enter with permission but you remain without permission under but presumably you have other places to go, so let me ask you this other question, what is your understanding of the martin rule . Because i thought it was premised on the circumstance in which someone had nowhere else to go and they needed to sleep and they needed to be there but you seem to suggest that necessity is not baked into what martin was doing. Martin speaks in terms of somebody that was involuntarily homeless and that raises all of those policy questions we have been discussing point but assume they exist, involuntary homeless means the person has nowhere else to sleep. Yes, that is the necessity, and what respondents are asking to do is to constitutionalize that very defense under the eighth amendment. As i said earlier, it could be, the argument could be made, it would be a very high bar under due process but that is the sort of argument we expect want to make under due process or into this Court Decision point thank you, counsel. Government cannot criminalize status. And respondent has conceded here today that the city cannot crim mr. E chief justice, in robinson, this court held that the government cannot criminalize status, a respondent has conceded here today that the city cannot criminalize the status of being homeless. Our submission in this case is the government cannot circumvent the principle of robinson by making it unlawful for a person to reside in the jurisdiction if he has that status. That is what the ordinance is here to do. As applied to someone who has nowhere else to sleep, which is an essential human function, the ordinances are the equivalent of making a crime to be homeless while living in grants pass. Although we think the ninth circuit was right to recognize that the core principle of robinson is implicated in this case. The court was wrong to award broad injunctive relief in the circumstances and manner in which it did. The robinson principle requires an individualized determination and the ninth circuit failure to issue a much broader injunctive release has led to the problems of issue, that the petitioner has raised, not the core principle of robinson. And therefore we urge the court to adhere to the core principle of robinson but to emphasize that cities have flexibility to implement these and in particular, time, place and manner restrictions under where someone can sleep are entirely valid if they are reasonable and indeed the state law that Justice Jackson referred to establishes a state policy, a time manner and place, restrictions are the way to go if they are reasonable. I welcome any questions. Mr. Kneedler what did you have a better argument if robinson involved someone being arrested for using drugs, but then the court said that you were in effect arresting him for the status of a drug user, because he had no choice but to use drugs because he is an addict. Know, our position is not that the conduct, as in robinson, the drug addict cant stop from using drugs, that is a question of personal culpability on the basis of what you make of it. What is the difference between that and camping out, what you are saying here seems as though you are saying theres no other choice, so you have to camp out, therefore you really are arresting this person for the status of homelessness. Yes, but not because of the involuntary compulsion, as Justice Alito pointed out, this is closer than the addiction sedition because sleeping outside is essentially the mirror image of the other side of the coin or the definition of the status of homelessness. I agree, the distinction between status and conduct is a slippery one and they are often closely related. And in robinson, the court said you cannot make the status of being a drug addict a crime but you can criminalize the conduct, even if it is involuntary and compulsive. And how reaffirmed that line, very strongly, at least in the plurality opinion did, so we are not going to go further. And i wonder whether the government is asking us to take that step that powell counseled against by saying it is status, effectively status, and he used the word effective or essentially or tantamount to. Those kinds of words. So i just wanted to get your response to that concern. We are not asking the court to take the step that it declined to take in powell which had to do with personal responsibility, the sort of issues that were involved in this decision. Okay, then i guess i just want to circle back to it, what Justice Thomas was getting at, surely the government wants to continue to enforce the drug laws and all kinds of other laws that people could make an argument that i involuntary need to do, you dont want us to wipe out all of those laws. Absolutely not, but what is different here is the conduct that was suggested in powell would have been based on the persons own separate antisocial conduct. But it was clear that people are going to be forced to drink in public because they dont have a home, you made this very point. But the point here is the government that is prohibiting the alternative, its not the individuals inability to control his own conduct, the government, because the person, because of other circumstances, the lack of money, the lack of a friend to stay with, the lack of shelter space, we take as a given that there is no other place for a person to sleep. A drug addict could make the exact same argument, i had no other choice. To the other choice would be a matter of personal culpability. The record says there is no other choice, i had to do it. I do think in engaging in conduct that is unrelated let me take that back, the sleeping outside, when u have no other place to go is the definition of homelessness. Mr. Kneedler , isnt the response also that those two things are different, you are saying it is about individual culpability but it is not as though everyone engages in drug use, certain people do and maybe they have addiction and maybe you cant punish them because of the addiction but you can still punish them as criminally culpable for engaging in the act. It seems to me we are in a totally different category when you are talking about acts that everybody participates in. That no one thinks in and of themselves are criminally culpable and yet somehow the statute is reaching out to punish certain people who engage in that universal human basic need. That seems to be the distinction. That is a criminal critical distinction, it is something that everyone has to engage in to be alive, so if you cant sleep, you cant live and therefore by prohibiting sleeping, the city is basically saying you cannot live in grants pass, it is the equivalent of banishment which is something that is unknown to the way wasnt the first attempt policy choice to put people, Homeless People on buses so they would leave the city . I understood that to be the history of grants pass, Police Officers would put a bus ticket, send them out of the city but that didnt work as people came back because it had been their home, correct . They came back. So then they passed this law and didnt the City Council President say our intent is to make it so uncomfortable here that they will move down the road, meaning out of town. Correct . That statement was made at a Public Meeting at city council. So, lets assume what you are saying, do you happen to know or maybe, i hope one of you knows, how many beds there are in grants pass, shelter beds . I believe the only shelter beds at least at the time the record was compiled was at the gospel mission, there has been at times a detox place, there has been a Warming Center that has been maintained but in terms of shelter beds, yes, it is approximately 100 point i thought it was much less than that. So, we go back, you want the District Court to make individualized findings, you have asked us to vacate, can we go back to that so i understand that i didnt quite understand it in your brief because i thought individualized findings had to do with the class action but that question hasnt been certified here. But i think, our basic point is that a person does not have an eighth amendment defense or claim unless he truly does not have some other place to reside. So, by speaking of individualized, it depends on whether that person has some other place, has a relative. I accept all of that, what im asking you is, this is what i did not understand from your brief, are you saying there cant be a class certification of Homeless People ever . That you have to have individuals, or are you saying that the injunction is too broad, if it doesnt provide for remedies, somehow that the person has to prove a certain number of things before they are entitled to the injunction. I wasnt sure. The eighth amendment claim is a personal one in this context, it depends on whether the person does have another place to sleep, so the person cannot benefit from the eighth amendment claim without an individualized, without that person showing if it comes up in an affirmative injunction action, withouthat person showing that he or she has no other place to stay. Thank you. If there is, the town next to grants pass, 10 minutes away, as just completed building a homeless shelter, that has many they can beds, does that change the analysis here . We talked about the town wanting to ship people out of the town, would there still be a right to sleep contrary to the ordinances in grants pass because you dont want to be taken 10 minutes away where there is a homeless shelter . That goes to the question under the analysis of whether the beds are available and i think if they are right across the townline, it would be appropriate to take into account there is a homeless shelter there even though it is not in the city of grants pass but often in a situation the two pounds might cooperate. They might, but often they dont always cooperate, so what if it is 30 miles away, is the shelter available in that case for your purposes or are you going to tell me it just depends on all the circumstances, so municipalities dont have that much one of the fundamental points here the accessibility is, that when an officer comes to grants pass and find a homeless person and says it violates our ordinance but i will give you a ride down the road, 30 miles, whatever it is, because there is a new homeless shelter there and the person says i dont want to do that, can that person be given a citation . I think probably not but if i can explain why, obviously there are questions around the margin here, but one of the principal features here that shouldnt be overlooked is the city is seeking to banish or expel its own residence, its own citizens, people whose children can go to school in that location, who might pay taxes in that location, so if the 30 mile away shelter requires the person to leave his community and to live in another place, that implicates lets say they are five cities all around grants pass and they all have homeless shelters and yet the person wants to stay, i have been in grants pass for a long time, i dont want to go to one of those shelters, can a person be given a citation . I think because of the concern i mentioned, that would be a serious problem. It would be a problem to give them a citation . Yes, i think so because you would be requiring, the citys ordinance requires them to leave the city of grants pass, if the homeless shelter is over the line, they can still be a part of the community of grants pass. But it is in another city. That is why i think it is different, im not prepared to say absolutely not but i do think it is different because the city is implementing the policy of banishing people, its own residence. Banishment is a strange word when you are talking about something 10 minutes away. Again, the question is whether you can still realistically be a part of the community. The figures show, the most of the Homeless People in grants pass are from grants pass. Many people have mentioned this is a serious policy problem and it is a policy problem because the solution is to build shelter to provide shelter for those who are otherwise harmless. But, municipalities have competing priorities, what if there are lead pipes in the water . Do you build a homeless shelter or do you take care of the pipes, which one do you prioritize . Why do you think these nine people are the best people to weigh those policy judgments . We are not suggesting that, we are not suggesting the only solution would be to build homeless shelters. As i mentioned, time, place and manner restrictions are a very sensible place to go. As i mentioned, oregon state law requires that, in other words, a city adopts a provision where you cant sleep on the sidewalks anywhere because that obstructs people. You cant camp near a school, you cant camp downtown or sleep downtown. You might be able to sleep in a park, and that could be patrolled for drug use and whatnot. None of these other laws are inapplicable if there is a time, place and manner restriction. This is an old question, but eating is a basic human function as well, just like sleeping, so if somebody is hungry and nobody is giving them food, can you prosecute him if he breaks into a store to get something to eat . Absolutely, that is a common crime that not everybody engages in, unlike sleeping which is what we have here. It is a necessity for the person who needs food. It is not a necessity to break into a store and with respect you are fighting the hypothetical, im saying this person needs food point the eighth amendment does not require that person be excused from doing that, there is a certain amount of common sense and practicality to this and it is well understood that just like drug use, it is not something the eighth amendment excuses you from. And the problem of eating is addressed at the local level as history shows, the Community Takes care of its own residence and it is common at the founding, for churches and individuals and whatnot to offer their help, to charity in the community. That is what happened in grants pass, various organizations feed the Homeless People and there are social services to help the Homeless People, so this is consistent except for the absolute ban of sleeping in the city, otherwise the communitys response is what has been done down through history, to absolute ban that continuity. Can you explain how your rule would be carried out by Police Officers on the dayto day basis . Lets say there are 500 beds in a particular town and lets say it is 3 00 in the afternoon and 4 00 in the afternoon on a winter day, what is an individual Police Officer supposed to do, the individual Police Officer would go around and count the number of people who are getting ready to sleep outside, i guess at 4 00 you wouldnt get that, lets say it is 6 00, count the number of people who are getting ready to sleep outside for the night, and then ask each one of them whether youve tried to find a bed at a shelter, whether that person would be willing to go to a shelter, if a bed is available, without any conditions or whether the that would have to be available on the conditions that the individual wants, like i wont go to a shelter where they wont take my dog or Something Like that pages explain how it would work on a daily basis. First of all, with respect to the individual encounter, i think the way this would work in the real world, and i think it is important to understand what happens on the ground in these situations, i think in the circumstances you are talking about, what would happen is the person encountering the homeless person would know whether there is a spot available, i dont think the homeless person would be required to check each day with each shelter if there are multiple shelters and in larger cities, these initial encounters are not handled by Law Enforcement. They are typically handled by social Service Agencies who are in contact with people who are camping and know what their circumstances are and they are able to say we know that at such and such shelter there are beds available. What if there is a question about whether there are indeed enough shelter beds available . Your rule would apply if there are enough beds available, if 500 shelter beds d only 200 people who are trying to sleep outside, then it wouldnt apply. So you have to ha a comparison of the number of beds available with the number of people o want to sleep outside. So that would be the threshold question. And i want to clarify one pot about that, it is not simply a measure of the number of beds against th number of Homeless People such at if there is a deficit the city cant enforce the law at all. If you have individualized questioning and you know there are vacancies available, if not for everybody but there is a vacay r the person interviewed then yes, if that person is offered and reses, that person could be prosecuted, or cited. What if thperson says i know there is one available at thGospel Rescue Mission but, they wont take my dog. I dont think, the inability to keyour dog to the shelter is a sufficient reason. There are shelters in larger citi at may well take pets. I know i could sleep in the home of the Family Member but, they really hate me and they are reallynay to me. Im just wondering how this is gog be administered on a daily basis. And with all spt, i think that example, if the family is gog to exempt them, that is th question, whether there is a acto sleep and i dont kn if it would very often come down to that family hates me, on the other hand, if it is a woman who left domestic abuse, e uld be expected to go backtoher home or mae her relatives home or something, so theres a lot of common sense and again, the First Encounter that a Police Officer or somebodyel has with a homeless person is very unlikely to be a situation in which the person would be su a citation. You mentioned a couple of things that i wanted to follow up ondont matter whether the person grew up in the town or not . No. Okay, that is irrelevant. And they go to some social services in san diego, going up to somebody and says where are you from . Im from fargo but if i have to sleep outside, wod rather do it here. That doesnt matter. No, and not because of any eighth endment rule we are talking about, but under the courts decisions, in edwards d the Commerce Clause or the right to trelprovisions would prohibit attaching that sort of limitation a newcomer. But, as i meioned, i used to live in new jersey, there are munipaties, i think over 500 in the state, i coulgo for a 20 minute walk in the evening and be in three or four different municipalities, so to get back to chief justices question, if there arent enough beds available in west caldwell, does it matter, they are out of lu even though there are a lot ofbeds available in caldwell, which is less than a mileaway . I think the way you are describing it, it might be fair to say that that set of small communities would be one community and the person would basically be banished from where he lived by saying if there is a shtein this other location, then you could be expected to go there. There are tiny municipaliti, what if a municipality doesnt have a park, so the only place th person can sleep is going to have to be on the street. Do a time, place or manner reriion work there . Certainly not on the stet because of safety, the traffic and et cetera, theres common sense accommodations, even in the smallest town there are person could sleep. Thank you. I dont want to be repetitive but what are we vacating for, you individualized finding of what . Well, first of all, the aswas defined simply on the basis of the agegate numbers without an individualized determination as to whher, frankly in our view, not a sufficient individualized determination as to the two named plaintiffs, they both slt in their cars, several of them, or bothof them chose at metimes to sleep in a safeway parking lot or with a frnd the other slept at a truck stop out of town. It is not clear, neither of emactually camped in park, and in fact, the dissent below questioned whether one of those two people even had standing, even with respect to the named plaiif, there was not the examination of their individual circumstances. So you are talking about the standing. Yes, and ther could be commonality problems, too. If the two named plaintiffs slept invehicles which may present different probms point we were told that sleeping or camping is out of the case because in the court yes, but eeping in a vehicle counts as mping but it is not the sort camping that weve been talking about, to some extent about sleeping on the groundth a tent or Something Like th, d the question of tents are not in case. Them, it could even require that they be taken down and put back up, theres a t of flexibility that the city could have. I did want ask you about that, lets say m with you on the fact at you cant prohibit being homeless and cae you cant ohit being homeless, you cant prohibit sleeping outside if you are a genuinely homeless person. And lets say im wi you that the fact that this ordinae says well, we are prohibiting using a blanket, that cant be righ u will get hypothermia and the constitutional problem wi go ay. But, it does seem as though there are line drawing ises as you go up, it is a very cold night and some but he wants to make a fire, it is raining d somebody wants to put up a tarp. E city has said you can sleep in particular areas but it turns out that those areas have a ton of crime. You could go on and on and, how do you deal thquestions like that . This is like, how do you deal with questions ke that . Where is the line that e city can say our legitimate municipal interests can co and say as to that, as to that, you cant do at. There are several examples with respect to tents and tarps, i think there is a difference between what you might need realistically sleep outside if it is ing, snowing or Something Like that d at you might prefer to have as a ructure for a long term camping, as i mentioned, the city might say you can put a tent, it is very cold but you have to take it down inthe morning. Some shelters say you can ay here overnight but you have to leave during the day and you caco back. That might seem gratuitous to the city to do it, they might not want to do it but we are not yi the eighth amendment would prevenitfrom doing it, and especially as you y, if there is no alternative and it is 20 degrees. With respect to fires, there are really important issues on the other side of that question, in an urban area if you are creating fires hazards in a park how do the courts make these juments mark and usually they are the kind of dgnts that we think of as municipal officials make em but you are saying there is a certain level where is out of their hands and in the courts hands and i guess i nt to know what the principle is, where those questions go to the courts and why that principle is the right principle. I think there are two principles, one is it is the municilies determination, friendly in the first instance, tha great deal of flexibility how address the question of homelessness and the time, place and nner, the municipality should be able to choose the place and attributes of that place, should be able to say we are not going to allow more th people or something, to regulate it that manner and i think the principal, the eighth amendment principle would be whether the city has effectively prevented sleeping outside because the protti is needed from e elements are not available. Even ingrts pass, a blanket would not be enoughi think that is the touchstone. Basically doesnt boil down , is the core principle of robinson that you cant criminalize homelessness which includes not being able to criminalize sleepi tside. If you cant sleep outside because of lack of protection from e ements, that is the principal the court wod apply but the ninth circt has gone way beyond that and wethink that is really the source of the problems that have been enfied and not the core principle of robinson. Thank you. Kneedler, i want to obe this a little bit further becae does seem to me the status conduct distinction is very tricky and i had thought that robinson tepowell really was just limited to status and w you are saying theres some conduct that is effectively credited to status but you are sayi involuntary drug use, you can regulate that conduct, that doesnt qualify as stat. You are saying compulsive alcohol use, you can regulate that in publ, public drunkenness even if it is voluntary, that doesnt qualify as status. You are saying you can regulate somebody who is hungry and has no other choice but to steal, you can regulate at conduct even though it is a sic human nessity and that doesnt come under the status side, right . Yes. But when it comes to homelessness, you are saying that is different. Because there are no be available for them to go to in grants pass. What about someone who has a mental hethproblem, that prohitthem, they cannot sleep in the shelter, are they allod sleep outside or not . I think the question would be whether th shelter is available. It is available. It is available to the invidual. It is just because of the mealhealth problem, they cannot do. Status or conduct . The mealhealth situation is a status. I know that, but is that regulated by the state or not . I think with the alcohol andrug use, they have problems, too. But you are saying that is regular will, how about with spt to this pervasive prle in a particular situation, if the person would engage in violent conduct. Hypothetical, i like my hypothetical, i know you don it is a hard one, thats why im asking, im trying to understand the limits. I think it would depend on how serious the offense was point it is a very serious effect, the Mental Health problem is serious, but there are beds available. Would depend on how serious it would be, requiring to go into that facility, if ituld make his Mental Health citroen situation a lot worse. So that falls the status . I guess thats how you can put it. You are asng us to extend robinson and im asking how far. You could think of it as status but another way to think ouit, and this is important about it, individualized determination, is that place available to that person. It is in the sense that the bed is available but not beca their personal circumstances. That is my point, it might be available to sobo else but requiring an invidualized determination might include whether that persond cope in that setting. So that might be an eighth amendment violio so it is a violatn to require people to access available beds in the jurisdiction in which they vebecause of their Mental Health problems. If going the would how about if th have a Substance Use problem and th cannot use those substances in the elr, they are addicted to drugs, they cannot usthem in the shelter, that is one of the le if it is the shelters rule, thenthey have they cant go there if they e addicted. The eighth amendment violation is prohibitg sleeping outside, because the only shelter that is availae,they wont take them, that is an individualized determination. Same thing with the alcoli the alcoholic has the eighth amendment right to sleep outside even though there is a bed available. If the only shelter in town wont take him, then he is in the same condition and there can be all sorts of reasons and thcity doesnt want to the cities under the country are going to superintend is under the eighthendment. I dont think it requires, again, i dont think should let the ninth circuit decisions characterize it. But that question is not before us, counsel point alwe are talking about is the core principle of robinson which is you cannot punish someone for a status and i think communities guided by thatprciple and its the only principal with a lot of flexibility. How about public bathroom facilities, do people have the eighth amenenright to defecate, is that conduct . Wearnot suggesting that cities cant enforce. Why not . If there are no public facilities available to Homeless People. Whether or not, in the ligation, nobody has suggested, we are not suggti that public urinatioandefecation laws cannot be enforced because there are very substantial puic Health Reasons for th. There are substantial Public Health reasons for drug use and alcohol and all these othethgs and you are saying that eighth amendment overrides those, how about this circumstance . I am not saying the eighth amendment overrides the laws of drug use. I know that, that when the government wants to keep, i about fires outdoors . E, how isthere an eighth amendment right to cook ouoors . No. That is a human necessy that every person has to do. But this is one of those in that is taken care off on the grounds on a actical matter. We are talking about Homeless People, they are not going to go spend money. Eris a lessexpensive place. Les y there isnt, do they have a right to ok, they have a right to eat, dont they . If it entails hang a fire which it probably would, but as i sathe eating, the feeding is taken care of in most communities by nonprofits d churches stepping forward. But if there isnt, there an eighth amendment right to have a fire . I ought you just said there was. There is food you can eat without oking it and they could get a handout from an individual, that people can beg for money, there are wa that this works out in practice. Last question, im totally synthetic to the idea that there ghbe a necessity defense in these cases, and there is a footnote in your brief that indicates that in a lot of se you could maybe bring advanced preliminy injunctive action, at least as individuals and i dont even e y you couldnt do it on a classwide basis. We havent ruled ouass. I thought you did in that footnote, the whole mistake here is that this was done ona classwide basis. Without sufficient inquiry into the individual circumstances, particularly with the two class representatives here. Justice Brett Kavanaugh . You sa a lot of this is taken ca of on the ground as a practil matter, and one of the qutis is, who takes care of it on the grndthe federal judges or the local jurisdictions, working with nonprofits and religious ganizations, i guess lling up on the necessity question, given the line drawing questions we have been going roh, if the state has a traditional necessity defense, will that take care of most of the concerns, if not all and theroravoid the need for having to constitutionalize an area and have a federal judge superintend this rather than a local community which you have emphiz many times working with the nonprofits and charitable and religious organizations which is how it works in most places. I think the necessity defense, at least traditnay has required a much stronger sense of urgency and imminence than this. If states had necessity defense and we knew it was available, in all of these places, but even inoregon, i think it is a case lled barrett, it was theoretically possible , so we dont know at this point in ti whether there is such a defense an that is really not in the case here, iscomes up on the eighth amendment challenge without reference to the necessity defense and any without reference to the oregon statute which seems highly instructive in terms of time, manner and place that jurisdictions in grants pass should examine. But i dont think the court should put this core point about robinson to one side because of the possibility at in oregon and maybe no other place, i dont know about California Law of necessity, maybe it would be taken care. At this point in time usually waiting about before constitutionalize in anar or extending a constitutional precedents, yomit disagree with that characterization but before inthat, we mother think about whether state law or local law rey achieves those purposes so the federa cot isnt micromanaging homeless policy. And it is on a daily basis when you work with the homeless, it is a daily issue how many people are going to show up that day at the food bank, how many people are going show up at the shelter, so is not like this is a oncea year thing. For the people actually dealing with it dayto day, that is certainly true, the city, the law foement, the city liaisons, but it is not true for the federal court, the fedel urt doesnt have to get into any of that, the only time federal court would get into it is if the core principle of robinson was disregarded, by criminalizing somebody for slpi outside when they had no place to sleep si. Thats the only thing the court shou enforcing, not whether people show up and another thing i would say about thnessity defense, it may be that if the court issues an appropriate injunction in this case, but it develops, or th state law develops that there a necessity defense, then i think that shldbe taken into account and that is ineffect a me, manner and place similar to that. The atcomes along and establishes a real estate defense or approach to how peoplecan remain in th community, then the courts obviously ou defer that but wedont have that established state law at this time and i nt think the court should decline address this question which is important in the ninth circuit both because the principal that the courts recognize should be disdained but the approach they have taken should not. Last question i have onthe food hypotheticals, about stealing feed yoself, or cooking to feed yourself, you kind of waived those away, that is all taken care of by loca communities, nonprofits, d and large heroics each day make su at happens but it doesnt always happen by y stretch. But Homeless People are resourfu they have friends who are also homeless, they might know people in town and they might beg for money and the towns are coping in the same way frankly th individual Homeless People do, they dothbest they can under the circumstances. But if oscircumstances fail and the nonprofits, the truck dont show up one ght, that doesnt become an eighth amendment problem, and it by no means suggests there should be a federal judiciary overlay on top of that. The cities and the nonprofits should be left alone to do the work that are doing, unless the co inciple of robinsonisnot respected. Thank you. Justice barrett . Onodd thing about the posture of th case is the pre enforcemt major because robinson anwell, the adjudication of ilhad already occurred and it was mefor the punishment to be imposed and the chlenge was raised. Justice alito is asking a lot of difficult e ground determinations that law enforcemenwod need to make for deciding whether somebody could be given a citaonfor campg tdoors. Why wouldnt it make more sense,asming that we agree in subsncwith the line that robinson whencontrol here, y wouldnt it make more sense for the eighth a minute to be is as the defense, once a court is in a position, unlike the law enrcement officer just trying to gather formation on the ground to determine whethethe were available bands or whether the rson had a place to go, why is the challenge the right way to think about is . It could be raised in a criminal prosecutn. But writing for this particular eighth amendment clai e claim is that the eighth amdmt prohibits criminalizing the act to begin wi. So it is not just the punishment that would be i derstand that. But it is not that it terically prohibits punishing this act, as one might say, prohibitedslping altogether for everyone, this is because the eighth amendment claim is that it punishes, criminalizes this act in a way th lls disproportionately and unconstitutionally on a particular class of people, that requires adjudication to figure out whether someone is protected or unprotected. If i go and sleep in the encampment, i can be cited. It is different, there is a factual determination on the ground and robinson was a status based challenge and it me up in the context of the didualized criminal proceedings so why is the pre enforcenchallenge, why doesnt make sense given the very fact intensive nature of this . In an individual case, i think you are right but imagine a situation where someone wh genuinely had no other place to live and its the third citation, the fourthcitation, and you have a ttn as to that person or other people, where the city isconsistently not respecting the robinson principal, then i think you might have a prefoement review just as you might for a viation of some other constitutional right because he again, it is not the eighth amendment regulating only the punishment for an otherwise valid condition, the question is whether the city can criminalize that conduct at al so, if you have a series of citations that donrise to the level of probable cause or whatever would be necessary for the issue of a citation, where the Law Enforcement offir the ground is not respti the robinson principal, then u might have an injunctive act. But this would be the first case because it didnt happen in robinson itself where we required, we had a pre enforcemenchlenge on the basis of the eighth amendment to the criminalizatn ceaiconduct. Putting placement in this situation. But i suosin robinson itself, if the person had been arrested once, a second time, then arrested a third time, i would think could bring a preenforcement challenge because the way the police were tecting with him, not respecting the robinson prinpawith respect to robinson himself. How does the federal government do this . In the brief u talked about clearing the square, can you just describe briefly, do police make individualized inquiries . What happed there, i think the Gold Standard of the way thisshould be done, and in larger cities the ability, the park service cooperated very closely with the district government, the park service does not have the rt of social services, et cetera that a municili has in d. C. , so that function is split. These are special National Park properties. But, the nationalpa service realize, cooperates with the local government and the local gornnt social Service People or thnonprofits went out and interviewed everybody who was in the ensement at mcpherson sqre and told them about what services are avlae. There was advanced noticegiven that the encasement is going to be cleared within i think it wa30 days and people were warned 30 days in advance, they were warned the day before so they could collect thei things. Some just moved somewhere else, somedid takethe city up on the fer, some went into shelters, and that is the way that shelters, excuse me, encampments artypically cleared. And particularly in cities whe you have an expanded probm. It isnt the example weve been talking about with the Law Enforcement officer for the first time that encountering a person, smaller cities dont have that capability but grants pass does have these outreach workers d at is who carries on the dialogue. Thats the way it was cleared. , . I mean, this is happening . This is the law, right now, in the ninth circuit. Mr. Kneedler the robinson principle is. Justice jackson the robinson prinplas adopted in martin. My understanding is, for example,alornia says thats the law, we comply with it, and there we are. Mr. Kneedler yeah. Th are not asking for robinson to be overruled. What theyre objecting to is the injunctions that go well beyond that by Justice Jackson yes, i understand. Im just sort of rponding to some of the questions that youve gotn to sort of how does this rule work, can it work, that sort of suggest that its not already happinon the ground in these places, that the shelters and the worke a aware of what is available, that people are being advised, th, you know, the principle of martin, at least in the ninth circuit, is we hold that so long as theres a grear mber of Homeless Individuals in a jurisdiction than the number of available beds, the jurisdiction cannot prosecu heless individuals for sitting, lying, sleeping. This inoa new rule. Thats what the law is right no in that situation, right . Mr. Kneedler yeah, that ths what thats what rtin i dont want to say that the clearance produs work perfectly in every case or that theyre available in every case, but Justice Jackson no, i just want to say we dont have to speculate about how the rule works. Justice jackson its not a new thing that is being kefor today. Mr. Kneedler how its how its supposed to work. Justice jackson yes. Mr. Kneedler all im saying is that there may be imperfections stice jackson all right. Let me ask you about whether or not you e king for an extension of robinson. Thats come up a couple of times, and i dont i dont i dont see it as an extension or whether thats ing asked for. So can you explain whether theres some sort of extension of robinson i do not see it as an extension, so can you explain whether there is some sort of extension of robinson happening today . I do not think so because the sleeping side is an essential human function. If u y someone cannot sleep outside at is or has no place to sleep inside that the definition really of homelene. You are now suggesting they should excused from otherwise criminal conduct . We heard this example about people stealing and ordered to eat. That would be a situation in which someone is actively participating in what woulbe otherwise criminal behavior if anybody diitand the idea i guess is that maybe they need to do it so that might be some sort of excuse. That is not what is happening. Onthg that i think is important to keep in mind is a state could do is st ite and eventually a homeless person would have no place to be. This is more like the initial criminalizing eating outside. Not that you would be doing something otherwise criminal. I suppose there could be ordinances the city would have about where you can consume. The final question with spect to state dog this. Why isnt the federal government arguing this case is moveinlight of 195 . This is the oregon recently passed a statute that i mentioned earlier. What is in the goveme read the law as i do to event grants pass from enforcing its ordinances to block sleeping outdoors at all ples at all times . I certnlagree there appears to be a pretty stark inconsistency between that ordinance. It has not be plied. It has to be objectively reonable. This is not the time, place, or manner at all. What would your position be if they decide we do not need to hear this or reach this decision in this case given th new state ordinance . That would be one possibility. It would not answer the core inciple point, and the limitations on that point that has triggered that. The typical role if there another way we do not necessarily comment on constitutional issues. That would be one course to see what time placmanner meant under state law. How it could accommodate that or take it into account. Anyou, counsel. Mr. Chief justice and the court, robertson first californiahos the status based on maschemes are categorically cruel and unusual under the eighth amendment. The challenge ordinances inflict status based punishment th affect and purpose. Although the city describes s ordinances as punishing camping on public propertyitdefines campsite as any place a homeless person is while covered with a blanket the ci interprets and applies the ordinancestopermit non Homeless People to rest on blantsin public tarps. The ordinances by design make it physically impossib r Homeless People to live in gran ss without facing endless fines and il time. The only question under robinson ether there is any meaningful difference between a law that says being homeless is punishable and a law isis being homeless well breathing orsleeping or blinking is punishable. Anotr was does adding a universal human attribute to the definition of the offense make the pushnt conduct based instead of status based . The answer is no. To make people with e status endlessly and unavoidably punishableifthey do not leave grants pass. De all the ordinances do is turn the citys homelessness problem into someone elses prleby forcing his residence into other jurisdicon the injunction below leaves the city with an abundae of tools to address homelessness that can impose when and where Homeless People slp. It can clear encampments and enforce a sleenggun against Homeless People who do find shelter and can fully enforce its laws prohibiting littering, defecation, drug use, and olent or harassing behavior. The only tool they want at it doesnt have is authority to impose a 24 7 citywide sleeping been the rc its almost residence to either move to another jurisdiction or fa endless punishment to the state li power is broad but does not include the weto push the burdens of social probms like poverty into other communities orthpower to satisfy public demand by compromising individual constitutional gh. I welcome the course questions. And robinson there was a statute that outlawed that is said to be addicted is a crime. Isthe an ordinance here that says to be homessis a crime . The laua for the purposes of a temporary place to live makes homelessness into the denion of the offense. They were talking about at earlier, so when you combine that language with the rest of the camping definition what you have is an ordinance that says being homeless while sleeping with a blanket is punishable. As i said earlier, it becomes when you attach the status to universal attribute of sleeping does it then transform the offense and to conduct based punishment . I thinthanswer is no. A number of usare having difful with the distinction betweestus and conduct. You will acknlee wont do that those terms there is a difference between being addicted to drugs and being homeless . In other words someone who is homeless can immediately become not homeless if they find shelter. Someone who is addicted to drugs that is not so easy. Is seems to me robinson is ch easier to understand the drug addiction as an ongoing status here i think its different beusyou can move into and out of the status as you would put it as being homeless. Its interesting. We understand addiction as a status. And robinson the court suggested that soonmight be recovered and no longer have the status of addiction, so the cot was not thinking about addiction is something that could and change over time. That may limithe applicability to a different tuion, but what is the analytic approach to decidi something is a status or a situation of conduct . The question is a status is something that a peonis when they are not doing anythi, so being addicted and having cancerorbeing poor are all statuses you have apart from any conduct. Hangcancer is not the same as being homeless. Maybe im just repeating myself because you can mo the homeless status in an instant if yomo to a shelter or a situation that otherwise changes. It can be moved the other way as way. There is a distinctn from these other things. I do not inso because a cancer patient can gointo remission. I donothink there is any question that being poor is a status. It is a status that can change over time and at that point he would be a part of the class. Would robinson founth so offensive is being a bank bber a status . Now because it mes robbed banks, so the definition and conduct violating this means of beon asked to leave you it means you are homeless, so that is something that you are, so the question becomes an attached the universal human attribute of sleeping or breathing to that status doesnt make the punishment conduct based . I think the answer is yes. In 1941 they struck down and law th made it a crime to transport an indigent person. Correct . That is a condition that can chan er time, but the law was aimed at the transport of a person whwanot morally reprehensible. That is notable because our historasa country is to emphatically reject any sort of localeslative scheme that has the effect of puinthe burdens of poverty into other communities. Edwards located it anwe have the status based punishment in the context of procedural due process. Would robinson held is when that ion is effectuated through punishment it violates the punishment claus. How do you define a community . They were describing how new jersey has so many tightly woven municipati close together, and yet the chief justice s king about whether if grants pass if there were a nehomeless shelter with a lot of beds are cross the border 10 minutes away could that be taken into account,ani think there was back d forthand not necessarily agreement onth. How do you define a community . Take that example of a shelter right ouidthe limits of grants pass. To sw that hypothetical i do not have any problems with saying that a holess person in grants pass has gaand physical access to a shelter that is just over the lines if that is in fact true. A lot of thlimit their homeless shelters to op who are residence, so there was no suggesti the record here that there were any shelte available outside of grants pass. Understood. Community does not need determined by jurisdictional lines . Because i am asking this because in response you were pointing out that our nation has a history and tradition of not saying yocan shock them out of your jurisdiction and onto others or out of your community and onto others is i think how you phseit, so i am asking how we ow what those lines are, and youre saying it does not have to be jurisdictions . I think that matters because attells us the lines in which whatever ordincor statute applies. When shelter is available th ordinances are enforceable because they puni the conduct of not going to thshelter as opposed to the status of homelessness, so i think a mucipality can punish the conduct of not going to shelter that is just over the line if you have legal access to it. For the reasons you say dating back to the Settlement System a lot of munities do not allow people from outside the jurisdiction to use their shelters, so under the circumstances it wouldnt be legally available. Is the cruel and unusual punishment for them to turn away someone who wantto use their shelter . That would not be punishment. That is the infliction of suffering for a crime. Then why is the eighth amendment implicated in this case . The because we have fines and jail time. Asking that is inflicting punishment. Do you want to address so of the line drawing problems we have been going back and fort with . They pointed out eating is a basic human need. Not thca the soup kitchens or social services llbe able to meet it, so he asked about whether it would prohibit punishment for stealing food. You mit ask the same questions about trespassing and squatting in structures if that was the best alternative, so how do we draw these difficult lines . I will start thstealing food. That is not a partof the definition of homelessness or universal attribute. I put that outside the scope of any of the arguments we are making here. With respect to public urination andecation if you had a john think this would exist, but if a law said Homeless People cannot urine or defecate anywhere within city limits i think it starts to look like this case, but if you are saying they cannot defecate on publ operty it is hard to imagine a situation. There is no facilities available and th ve no place else to . Erare commercial establishments. I do not know that anyone has pointed to one where yotruly do not haveacss. Take my hythical. Say there are no public facilities and it is generally applab rule this is no public urination. I think one distinction is that sleeping outside is a part of the definition of homelessne. Is lacking a fixed regular nighttime address. The sleeping prohibition goes more directly to the status of homelessness. It would not violate the ghth amendment to punish public urination and defecation . You ghcome up with different theories, but not that. What do you think of this idea . I would say first the relief is not before thcourt. The city has not challenged the injunction here, so i think its a question for another day. The courts did find the plaiif had shown a credible threat of future punishment, i think that resolved the issue for this. Along those lines. In the ieng there is a lot of discussi out the fact robinsons eighth amendment ldg with respect to status came without any adversarial testing. Argued by the parties. It did not have a lot of taon or support. Came kind of in a breezy paragraph. And some have suggesteat is really a mistake because the eighth amendment is about punishments. Itdoes not prevent states and limits the capaci engage in passing laws that may conduct or actions or anything a crime it. It just goes to the ture of what punishments foll. Puing aside the excessive fines au so there is a lot of discussion about that. Some suggestion that really is the 14th amendment that should be doing the work re if there is work to be done because some form of necessity defense s en always understood as a hearing in due process from the founding. Atr that could be enforced through state laws which might differ. Have netheless cover the territory. Whether the ght be relief on that basis possible. Not liteto defenses. Just reactions to that . Robinson prates but i think it espouses the sa principle, which is when you caidentify an explicit source you locate the right that amendment and that more geralized notions of due process, so the Robinson Court but here the more limited let me just play thit for a minute. Thmo natural home for a necessytype argument is due process. That is where it has always been detood to live. Not having to do with punishments. It has to do with atyou can criminalize in the punishments that follow. You are not really attacking the punishments here. Saying any punishment is impermissible. D at is a necessity defense. A clasc necessity defense. I think its right that ronson describes what it was doing as saint the eith amendment parameter decriminalization. You see that language. I agree it seems like a strange fit. If atis the case wouldnt that get rid this awful status conduct distention that we are struggling with today . If its a necessity it doesnt maer why. Every person can make their own argument about why it was necessary and the cour will decide. We do not get into e status conduct stf that ronson seems to invite. Here do we do not necessarily have a necessity fee, so that would not be very tiying. The oregon court so far has not applied. You have not asked them to apply it. They have had a couple cases like this. And how are theygoing . So far they have not applied the necessity defense. They did not find that it was necessary under those circumstances. D they rule out that it might be . The le en the possibility, but also the civil citation or the fines here are not sueci do not think to the necessity defense, so it woulttake care of it. That is not before us either . The have raised them before this court because our challenge isto the package of punishments d storically that is how the court has looked at applying that claus in the punishment claus together. We e in a really unfortunate posture that weha claims involving both fines in punishment and yet we are only on the punishclaupiece of it why we suggested is not a great vehicle. Ink the court can say is not going to reach e fines because we want the below, so you can focus on the jail time for criminal trespass. What is your fition of the status of homessss . Is it the lack of a place to stay indoors on a particular night or is it something more oathan that . Homelessness is defined as ckg a fixed regular adequateigtime address, so if you have home you have a home. I am not homeless and i go to grants pass because i have a home in d. C. The second part focuses on whether the homeless person has access to shelter. That is not cae it is a part of the stat but because when someone has access to shelter the ordinances are not punishing them r the status. Is for the conduct not knowing. I asked because if homelessness is defined as simply lacking a ple to stay indoors on a particular night there is an onclad connection between the conduct which is sleeping outside and thstatus of homelessness, but if it is defined to require more an that my questionuld be whether someone who is lacking a place to stay on a particular night or for a particular period of time ishomelessness if the reason why the person finds himself or herself in that at is for example a person refusing to take antipsyctimedicine that has been prescribe or refuses to go to drug rehab or rehabilitation for alcoholism or the person has chen to move from one place where the rson might have a shelter or a home wherthperson could live to another place. What about all ofthat . The status of homelessness something that on the changes when the person has a home. If you have a home again you e t the status anymore. I think your quesongets at the second piece, which is whether a person has access to shelter. That can change from day today. That is not really whatmy question gets it. The question u can draw a distinction. Status is different, but there are some instances of conduct that are closely tied to status or if homelessness is defined as lacking a place to stay on a particular night the amount to thsame thing. The definition of homelessness enmpses the conduct of sleeping outde, so my question is whether this is or what if the rs finds that person in a homeless ste because of prior life choices or the refusal to ke future life choices. That is the question. Oudenition of lacking access to shelter is lackin physical or legal access to shelr,and you are looking at the situation on that particular night. Generally we are not doing an inquiry into all of a persons life choices that might have led to and to e point where they are homeless and cann find a place to sleep. Rons certainly did not do that sort of analysis wi respect to addiction. There could be situatnswith a tight causal nexus between a choice a person has made in the lack of shelter access he would sath person has chosen not to take the elr and to be clear if you declinshelter available to you youre not in the class. When you move away from the definition that makes the inquiry basicay eological then you get into the question of assessing the closeness of the connection between the status and the ndt, and you do run into problems with a person who is a kleptomaniac or a person who suffers fr pedophilia, so how do u distinguish that . How does a court assess how close the connection has to be . The or both of those categories the status is defined. Being or having pedophilia is defined by the ge that you have. Not by your conduct and acting on that if someone were to act on that urge and you had that they would be outside of our claim. I thought you made a very interesting remark in reonse to the justice, and im just trying to clarify. You seem to say that homelessness as you have defined it is not lacking access to shelter on a particular night. Am i right about that . The it is right. I use the definition that homelessmeans you back and fixed regular adequate ghime address. So that kind of thing going back the chief justices original questionth is not changing nightoght . It can change over timein the same way cancer diagnosis can. The other brother was interesting isassuming that is your definition. Lacking a fixed regular address. When someone does have access to shelter even though they lack a fixed regular address the ordinance in that siatn i thought you said was ering to punish the act of not going to e shelter as opposed to punishing the status of being homeless. That is the exact reason thats not a problem because if you have restrictions you e punishing the conduct of not gog to sleep or you are allowed to go that rational does not work when mee has nowhere to go. Can you speak to whether or not we should really even be getting into this in light of the new oregon laws . We did not argue at we made this point inour opposition. We did not see it because we do t have an injunction under the oregon law yet. And its not selfexecuting. I do not inthere is any question the ordinancfas under the oregon law. It was intend codify and any sort of restrictions on slping or resting outside our reasonable with respect Homeless Individuals. Clearly its here not meeting the standard, so i rtainly wouldnt have any concerns with the court saying as a matter of titutional avoidance it whole issue, so you are es this dismissing it or however they wanted to resolve the case. Thank you. I amrry. The plaintiff who died here had used provisional stay credits at the time of ceifation so no longer had a shelter willin to take her. I think a hard hypothetical is e rson who owns a dog. Or lets say a mentallyill person. Do yohave the same reons . I would like to live a world where separating someone from their pet is cruel, but its outside the scope of our claim because we are st talking about physical and legal ce to shelter. If someone turns out of shelte offer that is physically and lellavailable because of their dog they would not be within the scope of our claim. To get to the Mental Health hypothetical, if the persons mental hethissues maybe shelter is are physically unaible to them because they went there they would be a substantial risk of bodily harm or death i would say the shelter isnt physically available. You could also ha e that wouldnt take people with nt Health Problems so it would not be legally aible to them. If it is they aroutside the scope of our claim but ght have some other law that applies that would restrict the citys ability to punish them for not going to that place, but it is outside our case. Can you go from hang a fixed regular address to not having one . Yes. In robinson a Narcotics Office i testified based on his experience the marks the defendants are suggested that he was an addict. Do we have anything like th where an expert testifies that the individualhe are homeless . The legal burden was on the plaintiffs to show they were homeless. The lower courts found the declarations andesitions satisfied that. I am interested in the status. You said this is the equivalent of robinson, and i am trying to determine where the statusof homelessness was determined and how it plays a role in this case. The was determined based on e depositions and declarations of the class mbs and named plaintiffs. We also talked a litt bit about the ratio between beds to population. It ended up projecting that as a hard and fast rule, but the lack of shelter beds in grants passprides credibility to the class members clarations when they say they have nowhere go. I would also say i do not think they ever contested they are homeless. What is confusing me is when i read the ordinance it is an anticamping ordinance. Would a backpacker who happens to be in the area for a few days be allowed to campon public property . I think theoretillknow, but i was say the city has never or was not able to idtify any circumstance. I understand, but it uld apply to a backpack. It would depend on the circumstances. The line the Police Officers the depositions was if they saw a nonhomeless person laying on a blanket they would not enforce the ordinance. Im seeing someone with a backpack who has been wandering around for a couple of years at the Continental Divide or something. I am putting my ace in the officersifyou were to give them that hypothetical. Them i say theyre not setting up a temporary place to live. Just traveling through town that hypothetical did not come up. So it would not violate it . I do noknow. This gets to the provisions. I think the emes of the argument is this is not good policy for the homeless. Good policy would help mess individuals transition and get meal Health Treatment and Substance Abuse treatment and job assistance. And that this doesnt fulfill those objectives and ybyou are not saying that, but i am curious whether you think this is good policy or bad . You must think it is bad. I am curious why. It is rtainly a themebut on the incentivizing i think it was a non sequitur because the only questionhe is whether it violates the eighth amendment to enforce the ordinances when someone has no access to shelterwhen they are turnindo the services, so that is the circumstances we are looking at. Maybe the discussion of penological purpose. They recognize whena punishment scheme has no penological purpose itinicts gratuitous suffering, anthat is cool and unusual punishment. I will say at this point the city has not ever identified any purpose for nishing Homeless People who do not have access to shelter. If he asked that questi every time the pivot encampments and fires and sanitation problems, which are all non sequurto visit a number of times this is only about sleeping outside when eris no shelter available. I think th is significant. Ard a lot about how its mo fficult to have an effective policy vethe rule in effect in the ninth circuit over the last vel years. I think that iswrong. I will go back to myopening. I gave a list of thingsthey are allowed to do under the ordinance and our claim. The only thing th cannot do is imsea 24 7 sleeping band that makes it imposslefor Homeless People to stay in the jurisdiction. I would also note i have a lot of briefs from local gornnts. Him was the entirety of what they are complaining about is not at issue in this case, so when you have injunctions ait encampments that is the Fourth Amendment but we not have that acclaim. Including the saraphael one. I think itrerkable when the city was trying to tify the best example they could come up with it chose one involving a different constitutional claim. Than you. Can a person go from being addicted to drugs to not being addicted to drugs . I think under as we think but in terms of modern medicine the answer is no, but the Robinson Court certainly thought that was the case. We did not have the same understanding of addiction. Sir your view of robinson that it does not ally matter the permanency of the condit it is still a status. They did not thinit addition was established that could change. Thank you. Rebuttal . Thank you. This case is worlds away from robinson to the eighth amendment does noaner any of the questions that we have been discussing today, and that is as not to extend robinson. All of questions are unanswerable. I would first like toart the United States position. Th uld also bring chaos. It would be a disaerif martin were to remain on the books in any form. It does not ma a difference if the iry is preorpost enforcement. All the same questions come up about whether the persons conduct is on volunty. What their choices are and whether e elter that is available is adequate where it is and what rules it has and all of that, and i would like to clarify how all of this workinpractice because it would be impossible for pe on the ground to understand or predict what a court would say about the shelters that are available in the alrnives that are available in the chces that were made, and the difficulty of l that. To hear how it works is under the grants pass policy. Direct to page 155 of the joint append. It says officers are required to give a 24 ho notice before issuing a citation, so i want to just focus on that for moment. How will the officer know en he or she comes backwhether the individual has another placto go . There is no y to know the answer to that, so they would have to take their word for it perhapsit would be to all of the same problems, and it is hyperbole the other side talks about banishment and that. They have remained in grants pass for years. There is nothing like at going on here. They talk about isolated meeting that was a threehour meeting. There e 20 pages of minutes. It is one senten the full context shows a wide rangscussion about all of this difficult policy problems incentivize people to accept o shelter and dealing with a small group that was causing Serious Problems in imin the city and trying to balance those who wouldnt take the help with the citys needs to keep their spaces open. With the ninth circuit constitutionalize this area it lecities with really no chce either keep the building enough shelter that may may not be adequate or suitable someones preferences or be forced to give up all of your public spaces. That is what has happened. We have seen a suspension of enforcement. These basic laws that are so important. The line drawing problems are never ending. Thatexactly why toyour point about powell the plurality said that if we rk on this journey and start constitutionalize and laws that address conduct the line drawing obms will be endless, so th is a reason not extend rons here. So i just want to make our sic eighth amendment point, which is that these low level fines. This is not unusual in any way. It is certainly not cruel, and we can just point to our appendix in our reply that goes through jurisdictions from west hollywood, california to watertown, massachusetts with the same type of policies, so the policy questions in this case are very difficult, and i think th what has come across today. Eighth amendment question though is not. Here the punishments are the sorts of punishments that have been held to be permissible sincfounding and really are in use today. They are not in any way unua so we heard a lot of things about guessing how this would work in practice, but it sounds tolike courts would need to have some rt of rule so that they could te a jurisdiction like chico the place set asidfor camping was adequate when the federal court said no it wasn because it is outdoors. Or a san clemente that was threatened with lawsuits because it did not provide cell phone chargers in the area designated for camping. Or where the court said that 200 feet between the tents was too much and that 100 feet was the maximum under the eighth amendment. For all of those reasons the court should reverse. Thank you. The case is submitted. Musician and actor f ka