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

[Music]

 

Jack Capizzi:  Hello, and welcome to today's FedSoc Forum. Today we are excited to present a Courthouse Steps Oral Argument program in the case of City of Grants Pass Oregon v. Johnson. As always, please note that all expressions of opinion are those of the speakers on today's call. Today we are delighted to be joined by Timothy Sandefur. Tim is vice president for legal affairs at the Goldwater Institute and is also a member of The Federalist Society's Environmental Law and Property Rights Executive Committee. 

 

Once Tim has given his remarks, we will turn to you, the audience, for any questions that you might have. If you do have a question now or at any point during the program, please type it into the Q&A function at the bottom of your screen and we will handle those as can towards the end of today's call. With that, thank you all very much for being with us. Tim, the floor is yours.

 

Timothy Sandefur:  Thank you very much. Today's argument was one of the most looked-forward-to arguments of the term because it involves an issue that is one that people are very passionate about and one that has caused a great deal of difficulty for cities, particularly in the West Coast states, but also across the nation, involving homelessness. And that's a case called Grants Pass v. Johnson. Now, to understand the Grants Pass case, we actually have to start a couple of years ago with a case in the Ninth Circuit Court of Appeals called Martin v. City of Boise. 

 

In that case, the Ninth Circuit Court of Appeals held that it was cruel and unusual punishment to arrest a person for sleeping on the sidewalk, or in public parks or vacant lots, if that person has nowhere else to go, with nowhere else to go being determined by comparing the number of homeless people in a community with the number of shelter beds that are available for the homeless. And, before doing that mathematical analysis, you first don't count the beds made available at church-run homeless shelters, because to count them would violate the establishment clause. 

 

So, in other words, what the Ninth Circuit said was if there aren't enough government-provided shelter beds available for the homeless population, it's cruel and unusual punishment to arrest people for sleeping in public parks or on the streets. And the reason why, the court said, is because that amounts to a status crime. Now, a status crime is an idea that dates back several decades to a Supreme Court case that held that it was unconstitutional to penalize people for being drug addicts. 

 

What the Court said was you can penalize people for taking drugs or buying or selling drugs or stealing things to pay for drugs, but you can't punish somebody for simply being an addict because that's punishing somebody for what they are instead of what they do. And that's a status crime and, therefore, unconstitutional because it's cruel to punish people for things they can't help. So, the Ninth Circuit held that if there aren't enough government-provided shelter beds in a community to house the homeless population — since people, of necessity, have to sleep — it's cruel to punish them for sleeping in the public parks or on the streets, and so forth. 

 

That was Martin v. City of Boise. And, in a footnote, the court went on to say, "We are not saying that cities cannot penalize sleeping on the sidewalks or sleeping in public parks, as long as they're doing so on a case-by-case basis, depending on the circumstances of that particular person's situation." In other words, if that person really could choose an alternative, and that person fails to and is sleeping in the park instead, then it would be okay to punish that person for sleeping on the street or in the public parks and so forth. 

 

This is hard to quite understand or hard to reconcile with the court's actual holding, given this numerical formula thing that simply says you take the number of beds available and subtract the homeless population and there you go. And, in a subsequent case — this case, Grants Pass v. Johnson — the plaintiffs brought a class-action lawsuit, a pre-enforcement lawsuit, against the city of Grants Pass, for imposing its ordinance prohibiting sleeping on the streets or in public parks and so forth. 

 

They argued that it was unconstitutionally cruel and unusual under the Martin rule to impose that kind of requirement. And the Ninth Circuit Court of Appeals agreed with them in a decision that went en banc and produced lengthy overlapping argumentative decisions on all sides. And now the Supreme Court has taken up the case. So, to begin with, the other side — that is to say, the ACLU plaintiff's side of the case. That is opposite to the position that I took in an amicus brief that I filed — their argument is that this law essentially criminalizes the status of being homeless. 

 

And on this point, Justice Thomas, in today's oral argument, was really kind of abrupt on this point. His questions were, "Does this ordinance make it a crime to be homeless?" And the answer, of course, is no. It doesn't actually say that. But that's kind of an easy answer, too easy an answer, in fact. The plaintiffs in the case aren't arguing that the ordinance says that it prohibits homelessness. They're saying that this ordinance, in substance, illegalizes homelessness as a practical matter. 

 

And the reason why is because they contend the city will not arrest somebody for sleeping on the streets or in the public parks if that person is, for example, an astronomer who's brought out a telescope to look at the stars and falls asleep while doing so, or a backpacker who's on a trip hiking and sleeps overnight in a park. They contend that the police in Grants Pass would not enforce the ordinance in those circumstances but will only enforce it when a person is incapable of finding alternative shelter areas. 

 

Now, this argument about cruel and unusual punishment, of course, also kind of sets Justice Thomas's teeth on edge, because, for a very long time now, Justice Thomas has had a problem with how the Cruel and Unusual Punishment Clause is implemented by the courts. He has argued for years that the Cruel and Unusual Punishment Clause should only apply to punishments, that is, to sentences that are handed down after an adjudication of guilt by a court. And what the ordinance does is it doesn't implement that. What the ordinance does is it permits arrests of people who are violating the ordinance. 

 

And so, Justice Thomas would say that the Cruel and Unusual Punishment Clause doesn't even apply in such circumstances because there's no punishment going on. He's been kind of hammering on that door for many years. And I doubt that he has a majority prepared to join him on that. I'm going to guess maybe Justice Gorsuch would go that far. But I think the other justices will see no need to go in with such a broad statement that the Eighth Amendment doesn't apply. But I would not be surprised to see a separate opinion from Justice Thomas in this case, making that point.

 

Then comes the point on which everybody really is concerned. And that is this question of involuntarily homeless. The term "involuntary" is really essential here. Is a person who sleeps in the public parks because that person has no other place to sleep doing so involuntarily? And here we went into a really difficult philosophical problem of what is the difference between action and status, between activity and status, between what a person does and what a person is. Those of you who are philosophically minded will remember that Aristotle argued 2000 years ago that we are what we repeatedly do. And so, the distinction between "is" and "does" is not always so clear.

 

In the oral argument today, it really boiled down to a colloquy between Chief Justice Roberts and the plaintiff's attorney, Kelsi Corcoran, about this question of status. And I don't have the exact words before me because the transcript isn't available yet. But when the attorney was asked, "What is status?" she defined it as "Something that a person is when they're not doing anything." But Chief Justice Roberts was not satisfied with that. For one thing, homelessness differs from other kinds of status in that you can remove that status instantaneously via voluntary volitional action. 

 

For instance, a person who has cancer is involuntarily suffering from a disease because that person can't do anything to make the cancer go away, whereas the person who's homeless could cease to be homeless simply by finding shelter, going to a homeless shelter. Is that person homeless if that person is in a homeless shelter? The lawyers kind of went back and forth about whether that person is homeless when that person accepts a bed at a shelter. Roberts says, "Well, you can remove the status of homelessness by a choice," to which Ms. Corcoran responded, "Well, yes. But a cancer patient could go into remission."

 

Well, that strikes me as a rather dubious kind of argument. Because it is certainly far less common for a cancer patient to go into remission than for a person to take the steps necessary, as a responsible citizen of the country, to not trespass on public land, sleep in public parks, defecate in the gutters, break into people's houses to steal food or to steal things to sell, etc., etc. The idea that a cancer patient going into remission is somehow more common than a homeless person finding shelter or taking the steps necessary to get that person out of that situation is really absurd.

 

In fact, statistics show that the vast majority of people who are homeless are homeless only for one day because they failed to get shelter that one night. But they take steps necessary to pull themselves up. Justice Roberts followed up her answer with the question, "Is being a bank robber a status?" To which Ms. Corcoran responded, "No, because it means you rob banks." But, of course, the answer to that, as Justice Roberts said, was "Yes, but sleeping in parks means you're sleeping in parks, right?"

 

So, the idea that it all boils down to, I think, on the left, one of the central political dogmas of leftist political thinking is that being poor is a status. And, in fact, those were the very words that the attorney used, "Being poor is a status," that is, that people are helpless unless the government comes in and helps them and gives them the things that they need. It strikes me, as an amicus to the case, as absurd to suggest that a person can't help himself if the government doesn't give him a shelter bed, that he necessarily has to sleep in the public parks. 

 

That makes no more sense than to say that if I get drunk at a bar and get in my car and drive home from the bar and run into somebody and kill them that I couldn't help it because the government didn't get me a taxi. Of course I could help it. Of course I am a responsible self-controlling human being. And it strikes me as an extremely condescending paternalistic and insulting attitude to assume that people who are homeless are just helpless and that, therefore, they must be accorded a special status that, in effect, would operate as a get-out-of-jail-free card for the poor because they couldn't help it. 

 

And this is a point that several of the justices hammered on when, I think it was Justice Alito, I can't remember now, asked Deputy Solicitor General Needler, "What about defecation? What about stealing food?" I think Chief Justice Roberts said, "What about stealing food if you're too poor to afford it? Would that be allowed under your rule?" And Mr. Needler's response -- well, to be frank, Mr. Needler has made a career out of not directly answering questions. It's really a remarkable skill that he has honed to a level of expertise the rest of us can only dream of. 

 

But Mr. Needler's response to that was, "No, of course that wouldn't be allowed that you could steal food just because you're poor." But why not? He failed to give any explanation of why not. If a person who is poor is in a status that makes that person helpless and, therefore, they should be exempt from the anti-camping laws that apply to everybody else, then why shouldn't that person be free to steal food or to defecate in the gutters or to commit other kinds of crimes?

 

Justice Alito and Justice Barrett really homed in, in their questions, on the unworkability of this involuntariness rule in practice. And I thought one of the more interesting questions Justice Alito asked was, is a person involuntarily homeless if that person says, "Well, yes, I do have family that could take me in, but they hate me"? Or "I hate them"? Or, perhaps, even to take that a step further, what if the police arrive and ask this person who's sleeping in a tent in a public park, "Well, do you have a place to go?" And the person says, "Well, yes, the homeless shelter would take me in, but they're conspiring against me. They're trying to steal my brainwaves," or something to that effect.

 

Would that person be involuntarily homeless because that person has no place to go? Of course, that person does have a place to go. But, for reasons of that person's own, that person chooses not to take advantage of that. I think those kinds of questions, and similar questions that were asked, demonstrate the unworkability of this rule. On top of that, there's an assumption, particularly on the part of the liberal judges — Justice Kagan, Justice Jackson, Justice Sotomayor — that there will be nowhere else to go. 

 

One of the questions that came up was, "Well, what if every community prohibited sleeping in the public parks so that the homeless had nowhere else to go, and they get moved from one community to another?" And I think what's revealing about that question is really the assumption hidden within it, the embedded assumption that the homeless are a class of people who are just going to be shuffled from one town to the next, when these classes are not immutable, they're not permanent classes. People move between socioeconomic statuses all the time, particularly in the United States.

 

And a person who is homeless one day and moves on to another town, or is told to move on to another town, could very well, the next day, find an opportunity in that town that will help that person get out of the homelessness situation. And yet, the assumption embedded, implicit in the argument on the left, is that this is a permanently disenfranchised group who are always going to be excluded and, what's more, that America is so stingy and cold-hearted that it would allow a class of homeless people to permanently remain in that status and take no steps to help those people. And Justice Jackson even went so far as to say, well, what about just killing them? Or are they supposed to just kill themselves?

 

I think those questions reflect a really remarkable, shocking view of how American society works, which history has shown is nothing like that. In reality, what happens is a group of homeless people are helped. Some of them are helped within the community. The rest are told to move on. They move on to another community and, there, some fraction of them find an opportunity to get themselves out of the homeless situation. And the rest are told to move on. And, in the third community, another clump of that collection of people find an opportunity or a way to get out of the homeless situation, and so forth.

 

And so, what happens is that the population, as a whole, filters out of homelessness gradually, on a case-by-case basis. And the real problem with the Ninth Circuit's rule in this case is that it really restricts that kind of case-by-case analysis. Now, having said all of that, and made clear my own view in the case, I want to be fair to the other side, to say that what I think is the best argument on the other side is kind of hinted at by Justice Kagan's rather extreme question about killing the homeless. Justice Gorsuch kind of shut down that line of questioning by saying, well, that would clearly be cruel and unusual.

 

But Justice Jackson was trying to make the point — and she didn't get the opportunity to do so — what about laws that prohibit not having a job? And I think this is something that we need to be concerned about. Because, throughout history, both in the United States and abroad, what has often happened is that a political authority trying to easily find a magic bullet solution to the homeless problem will simply outlaw joblessness and then punish that by sending those convicted to a work camp. 

 

That's what happened in the 19^th century, particularly in the south. In California, during the Great Depression, I believe it was the police chief of Los Angeles declared that arriving in California without a job would be punished by being sent to a work camp. Those are legitimate concerns. It cannot be the case that the government can criminally punish somebody for simply not having a job. And yet, not having a job is certainly a choice.

 

So, these are thorny issues. They are complicated philosophical questions. And I don't mean to short circuit that by what I'm saying. The question, however, of the line between voluntary and involuntary, between status and action, both traditionally and just as a matter of philosophical principle, really, that line has to be drawn at what lawyers call actus reus, that is, some action that is being taken by a person, as opposed to just the person's immutable status. 

 

And that's the point that the attorney, Ms. Evangelis, the attorney for the city, tried to make in her opening argument, was we have to draw that line very narrowly, in fact, that if a person is committing an action, then that person can be punished for that action if that person has the necessary culpable mindset and so forth. Otherwise, you get into such a thorny and complicated metaphysical debate over the difference between what we are and what we do that it becomes unmanageable as a legal issue. 

 

And, in fact, that point was brought up, particularly, as I said, by Justice Alito in his line of questioning with regard to what if there's a shelter in the next community over that can take in people? Is that enough for this community to then punish people for sleeping in the parks? And he pointed out that, in places on the East Coast, particularly, there are lots of small cities kind of nestled one next to each other. And so, it's very possible for one community to say, "Well, there's no shelter in our town, but there is a shelter just a few blocks away in the next town, and you should go there."

 

Is that enough to enable the city to penalize sleeping in the parks, and so forth? And I think that line of questioning shows, really, the unworkability of the argument that the Ninth Circuit embraced below. So, if I'm going to predict, I predict a reversal. I predict at least three opinions. I think justices Kagan, Jackson and Sotomayor are going to write a dissenting opinion saying that they agree with the Ninth Circuit, arguing that the Oregon law is effectively a banishment and that that is unconstitutionally extreme. And I think you're going to get a decision from Justice Thomas — possibly, I'm going to guess, joined by Justice Gorsuch — on this question of whether the Cruel and Unusual Punishment Clause should apply at all, since what we're talking about is just arrests and not punishment.

 

One of the arguments Justice Gorsuch pointed out in the argument, "Well, isn't necessity a defense to a criminal charge?" Which is true. And so, then people started talking in the argument about, "Well, can't you argue necessity to the arresting officer?" No, of course not. You don't argue your legal defense to a crime to the officer who's arresting you. You argue that at the hearing. 

 

And that weird line of questioning kind of showed what Justice Thomas would have said. "See?" He would have said, "this is the issue I've been having, that we can't be applying cruel and unusual at the level of arrest. If anything, it's a due process question at the level of arrest. And being a due process question, that means that the government gets a lot of leeway here."

 

And then, the third opinion, which I think will be the majority opinion, I'm going to guess, Justice Roberts, Justice Barrett, maybe, will be writing the majority opinion. It will be more moderate than Thomas's opinion and it will probably say something to the effect of, look, this isn't involuntary conduct. There are circumstances where such things may be involuntary and there might be a different rule in those cases. But this across-the-board rule articulating the numerical formula is totally unworkable, has no basis in the Constitution and, I should point out, has no history behind it. 

 

One of the surprising things to me about today's argument was that there was hardly a word about originalism. There was really no discussion of the history, except, of all people, from the ACLU's lawyer, from Ms. Corcoran. I was quite surprised that there was no discussion over what the founders did here. In any case, that's my brief rundown. And I'm happy to answer any questions that folks might have.

 

Jack Capizzi:  Well, thank you very much for that overview of the case, and especially for your predictions at the end there. We already were having some questions asking about how you think that might play out. But I'll move on to some more specific questions. One of our attendees asks if there was any discussion of mental illness, or mentally ill homeless people, and what factor that might play.

 

Timothy Sandefur:  Only indirectly. There were some references to it. Now, statistically speaking, the largest predictor of homelessness is mental illness and addiction. And those things, addiction particularly, came up because of that old case about involuntariness and being cruel to punish people. That dealt with addiction. Although there was a subsequent case that said you can punish an addict for taking drugs because that's a voluntary action. That case came out just a year or two afterwards.

 

So, the Court has been pretty clear in its precedent that you can even punish a person who's addicted for taking that drug. And the question came up, well is it possible — Justice Alito, I think it was, asked — can an addict cease to become addicted? And in some of the argument, Ms. Corcoran kept saying, "Well, back when that case was decided in the '60s we had a different view about addiction. It was believed then that it was entirely voluntary. And now we know that it's not really, which, if you think about what the implications are, that's remarkable. 

 

That would suggest that the government's hands are tied even more when it comes to penalizing people who either criminally use drugs or commit crimes while on drugs. This line between status and action, again, it's just too blurry. It's too vague. Perhaps I should say it's too blunt to do the kind of fine cutting that it's being used for here. 

 

Jack Capizzi:  Thank you for your answer to that one. Another attendee asks, "Do you think that they will overturn Martin v. Boise, and also Grants Pass v. Johnson?"

 

Timothy Sandefur:  Yes.

 

Jack Capizzi:  "Or do you think that they'll leave one intact, or parts of one intact?"

 

Timothy Sandefur:  No. Predictions are free. Why not? My prediction is that they will overturn Martin, as well as Grants Pass. It's hard for me to guess what their ultimate rule is going to be, or even if they're going to draw one. They probably won't find it necessary to create a new rule. The real question is are they going to overturn that old case about the involuntariness, or the status crime case? I don't think they will. Justice Barrett explicitly said she didn't want to overturn it. And I don't think it's necessary to do so. But I would not be surprised if Justice Thomas says, "Yes, we ought to." I think he's quite skeptical about that rule. 

 

Jack Capizzi:  We have a question here related to the idea of having nowhere to go. This person is wondering if anyone today asked how we really know whether anyone has nowhere to go, or what, maybe, evidence would support it.

 

Timothy Sandefur:  That's a great question. Because, of course, the big problem with both Martin and the Grants Pass ruling is precisely that it cuts with such a broad sweep. It says you just do this numerical formula and that's it, instead of going on a case-by-case basis. And the question should be, obviously -- as I like to say, there are as many solutions to the homelessness problem as there are homeless people, because that's how many homeless problems there are. People end up on the streets for all sorts of reasons. 

 

And if we're concerned about status versus action, that can only be decided at the individual level. And yet, Mr. Corcoran's up there arguing that being poor is a status. No, it's not. Poor people make choices all the time. Poor people not only make choices all the time, but they rise out of poverty because of their choices all the time. It happens every day in this country. And it is a cherished myth on the left that it doesn't happen and that it's impossible, and that capitalism is exploitative because the poor can't possibly prevail, etc. We all know the routine. And that's why this case cuts so much to the heart, politically speaking, as a philosophical matter. Because it really embodies this assumption on the left that people are incapable of guiding their own lives without Big Brother there to "help" them. 

 

Jack Capizzi:  Well, we have a similar question that is related to the idea of status. And this attendee is asking what you thought of the respondent's counsel's distinction between homeless by lacking a permanent residence and temporarily unhoused, and whether that might kill the status claim if a passing backpacker, let's say, would be kicked out of the park for sleeping there.

 

Timothy Sandefur:  Yeah. Or to an even more extreme example of the same phenomenon, which Justice Roberts asked, "Is a person homeless if that person goes to a homeless shelter? Is that person even homeless? What does “homeless” even mean?" And Ms. Corcoran — who, I should say, did a superb job —she was an outstanding advocate, and it was a model of how to present a case to the Supreme Court. I personally disagree with everything she said. But she did a truly astounding job. Her argument on that point was kind of to offer a definition of homelessness.

 

But where does that definition come from? How do we agree with it? Why should we agree with it? What if you're homeless on one day? This thing about conduct and status, the reason why that's so difficult is because status is what you are in between your choices. If I'm hungry right now, then my status is that I'm hungry, and I can't help that I'm hungry because hunger is a biological function. If you don't have enough nutrition in your stomach, your body is going to make you feel a sensation, and you can't stop yourself. And so, I'm hungry. And, in fact, I'm going to stay hungry indefinitely. There is no obvious stopping point to my being hungry, short of death, right? So, my status is hunger. 

 

And, yet, at the instant I go out of this room to the lunch area and I get a sandwich and I put it in my mouth, I'm no longer hungry because I've taken an action to put an end to that status. So, status is kind of the string on which choices are like the pearls or the beads. So, the idea of drawing the Constitution line of the distinction between status and action is very problematic for that reason. And it appeals to sort of an implicit assumption or a very intuitive sense that it's wrong to punish people for who they are. And that's true. But then the next step is, well, you can't punish people for what they can't help.

 

And that's wrong. In fact, the role of government is to protect individual rights, not only against voluntary crimes by others, but also against involuntary actions by other people. You can accidentally, or through no fault of your own, violate somebody's rights. To take an example from the philosopher Robert Nozick, suppose that you were thrown down a well by a criminal gang in your neighborhood, and now you're at the bottom of the well. And the criminal gang goes out and gets another person and drags that person to the well and throws them down the well and that person is falling down the well toward you. 

 

And in Nozick's hypothetical, you have a laser gun. You can zap that person and make them go away, like a phaser, like in Star Trek. Do you have the right to do that? Nozick asks. Now that person is plummeting toward you and is going to kill you through no fault of that person's own. The answer is yes, of course you have the right to defend yourself, even by doing that, even by, in this hypothetical, you would be vaporizing this innocent person. And the reason why is because your right to defend yourself does not hinge on the voluntariness or involuntariness of another person's actions.

 

Or you could take a simpler example, traffic accidents. Can I put up a wall to protect my property against a car bumping over the curb and crashing into my land? Of course I can. I can take steps to protect myself against involuntary violations of my rights. And, for the same reason, the government can arrest a person and detain a person for being a threat to the public, even if that's no fault of that person's own.  The obvious example is quarantine law.

 

If a person has tuberculosis -- I'm here in Arizona. A hundred years ago Arizona was a resort for people with tuberculosis because the hot climate is good for people with tuberculosis. So, in Arizona, we actually have a statute expressly for the purpose of dealing with the quarantine of people who have tuberculosis. And, of course, we have the right to quarantine people with tuberculosis, even though those people have no control over that fact that they bear this communicable disease. 

 

The reason why is because government can protect our rights even against involuntary actions. And so, the hidden assumption that, because a person couldn't help sleeping in the park, which, again, I dispute, but the assumption is that because they can't help it, you cannot arrest that person and give that person a shelter, give that person medical treatment or psychological treatment and so forth. And that is a non sequitur. I certainly hope the Supreme Court says so in their opinion.

 

Jack Capizzi:  Well, shifting focus a little bit here, we have a few people who are wondering about if the Court was to accept the plaintiff's argument, how that would interact with suits challenging homeless encampments as a nuisance across the country.

 

Timothy Sandefur:  Yes. Well, of course, here in Phoenix, we had, really, the flagship one of these cases, where several property owners in the Zone, as we called it, which was the giant homeless encampment, the largest in the country with over 1,000 people living in tents on the streets of Phoenix, thanks to the decisions of city officials in Phoenix to refuse to enforce the anti-camping laws, because Martin provided them with handy excuse not to do their jobs, and so, the plaintiffs in the case were property owners and business owners in the area whose property was being destroyed by the Zone. And they ended up winning.

 

The state court held that it was a public nuisance that the city was essentially maintaining an open-air homeless shelter on the streets of Phoenix. If the Supreme Court were to affirm the Ninth Circuit's ruling in the case, I think it would enormously affect cases like that. It would say that, essentially, people have a constitutional right to sleep in public parks or on streets or in vacant lots. And, as I said, it's much broader than that, because the principle that would be embraced would also apply to things like stealing food, defecating in the streets. You have to use the restroom much more than you have to sleep in a lot. You get a lot less warning when it comes to going to the bathroom. 

 

So, if you have a constitutional right to do something because it's biologically necessary and you have no choice about the matter, and there are no other alternatives, it's very easy to imagine a city where none of the hotels are going to let you use their bathrooms. None of the McDonald's will let you use their bathroom. So where are you going to go to the bathroom? Well, you have to go. Or, if you want to take a less emotional example, what about a factory that has to comply with environmental restrictions by putting cleansing devices on their smokestacks or something. Suppose they can't afford it? 

 

Again, not being able to afford something is a status, according to the argument that we heard today. So, if not being able to afford something is a status, then is it legitimate to punish a person for polluting if they can't afford the equipment or technology necessary to avoid polluting? I think these kinds of questions show that the idea that being unable to afford something is a status is just an unworkable proposition. So, if the Supreme Court were to affirm, which I think is very unlikely, then I think it would have enormous ramifications for public policy at the local and the federal level. 

 

Jack Capizzi:  Well, thank you for your answer to that one. It seems like we've got some of our audience members who are curious about the exclusion of religious shelters. And they're wondering was that discussed? And was it raised in terms of the state's preclusion of religious beds?

 

Timothy Sandefur:  Yeah. I'm sorry to say that it was not discussed during the oral argument, at least not to any extent that I can recall. There was some reference to it in the briefs. But it was mostly left to the amici to argue. Now, the way this works is the Ninth Circuit Court of Appeals said that for us to count the homeless shelter beds available at church-run homeless shelters would be unconstitutional because that would violate the establishment clause. And the reasoning works this way.

 

If I can't help sleeping in the public park, then surely if I'm told to go to a church-run homeless shelter, and at that shelter they tell me, "Well, you can only sleep here tonight if you attend services in the morning," then isn't that the government compelling me to attend services? Now, the problem with that argument is that churches have, historically, been the number one provider of aid to the homeless. That's one of the most valuable things that they do for our society. So, to rule them out is really to load the dice. And, once again, it runs into this problem about what counts as compulsion.

 

Or, to take another example, what if I go to a homeless shelter and they say, "Well, you can't come in with your dog," and I refuse to go in without my dog. Is that compulsion? Is that denying me an opportunity to sleep? Now, Ms. Corcoran was directly asked this question. She said "No." She said there's nothing cruel and unusual about being told you can't take your dog into a homeless shelter. Well, why not? And if you think that's an easier question, well then what about a spouse or a cousin, or a best friend that you've been sleeping on the streets with for years? 

 

I don't see why it's not, under the logic of this case, why it's not the kind of compulsion that we're talking about. I think what we have to say is that if a church provides a homeless shelter bed, that really shouldn't count one way or the other in the calculus of whether or not a person is involuntarily sleeping on the streets. If the person is trespassing into a public area, into a public park, and staying there overnight without permission from the park owner — which is to say, the general public — that person is committing a crime. And it should be as simple as that.

 

Jack Capizzi:  Well, maybe for something different, we have a hypothetical question from one of our audience members, related to the First Amendment. This person asks, "Can a homeless individual or a vagrant soliciting for money at a public roadway intersection using, for instance, a hand-held sign, be charged with improperly and illegally being in the roadway? Or is First Amendment free speech, based on use of the sign, a defense?" And I'll add that we also have another question, just to combine these, about whether the Lemon test was discussed at all, just in relation to the First Amendment.

 

Timothy Sandefur:  No, the Lemon test never came up because, again, the Court never addressed this establishment clause theory that the Ninth Circuit adopted below. And, again, I think that's regrettable, because I think it is an important issue. And I think the Court will find it unnecessary to address, as I said, since I expect that there will probably be a separate opinion from Justice Thomas. He might discuss it. But it really didn't come up. And I think the Court will find it unnecessary to talk about that, which is a shame, because it is an important issue. It's not a laughable position to say that that violates the Establishment Clause, although I think it is wrong.

 

      But, with regard to a panhandler who's on the street with a sign, it is true the Ninth Circuit Court of Appeals has said that a person has a First Amendment right to stand there with a sign soliciting money. I think even the Ninth Circuit would say that that does not entitle the person to obstruct traffic by stepping in front of the cars or something like that. Because that would be conduct and not speech. But one could foresee a situation where a person, for some psychological reason, can't help going in front of the street. 

 

Or, maybe to make the hypothetical a little more complicated, suppose a person is in a wheelchair. And because of that person's wheelchair, the wheelchair obstructs a stairway. Maybe it's a subway stair, and the person's sitting there with a sign, and the wheelchair is obstructing the stairway because the person can't find a spot to locate elsewhere. I can see a court, based on the rule that the Ninth Circuit adopted here, saying a person has a constitutional right even to obstruct traffic in such a situation because the person can't help it. This is why the person can't help it because they're poor argument just does not work as a practical matter. It's wrong philosophically. It doesn't work practically. And the only reason why it's adopted is because it flatters the philosophical priors of certain people on the left.

 

Jack Capizzi:  Well, a small question related to that point. Was there any further discussion about homeless people who refuse to go to shelters?

 

Timothy Sandefur:  Of course, the city's lawyers pointed out that this does happen. And we know that it happens here in Arizona, for example. One reason why people refuse to go to homeless shelters, of course, is because they are told, "If you go to the shelter, you can't use drugs or you can't drink." And a lot of these people are addicts. And so, they say, "Well, then we won't go to the shelter." And, again, remember that that original case about involuntariness is about addiction.

 

So, if a person is addicted and then a person shows up and says, "Well, you can come to the shelter, but you can't use the drug." And the addict says "Well, I'm addicted, so I have to use the drug." Is that person voluntarily refusing to stay at the shelter? Isn't the answer "no"? Doesn't that mean that that person is involuntarily homeless, even though that person's been offered a shelter bed, simply because that person can't use drugs there? And, in fact, Justice Alito went even further.

 

He said, "Suppose it's a pedophile?  Suppose this person is a pedophile and has an irresistible compulsion to molest children and is told that person cannot do that in the shelter. And then the person refuses to go to the shelter. Is that voluntary or involuntary? I think, once we start down this road of how much compulsion is so overwhelming that you can't take an action it's very dangerous. It can only be answered, if at all, on a case-by-case basis. And one thing, at least, that is clear, is that the numerical formula the Ninth Circuit endorsed does not allow for that case-by-case determination, which really is what needs to be done here. 

 

Historically speaking, before the rise of the all-embracing regulatory welfare state, the way these issues were dealt with was at the local community level, where, if something happened so that you were unable to care for yourself, the community would step in and would help you, precisely because they are in the best situation to determine whether or not you really can help yourself, whether you really are truly incapacitated. What has happened with the rise of the welfare state is a perpetuation of the status of dependence, partly because that is good for politicians — they like it that way — and partly because of this weird idea that, well, the private market can't possibly help the homeless because it can't cure homelessness, as if the welfare state has cured homelessness.

 

It's a very strange sort of assumption that if there are people who are I need that it must be the state that steps in, when, in fact, the state — by which I mean the government, generally — the government is really in a very bad position to make these kinds of determinations because its hands are tied by constitutional principle because it doesn't know the people involved and all sort of other reasons. That's why, historically speaking, these problems were dealt with at the community level by private entities that were in the best position and knew what was best for people because they knew those people. And now, instead, you have a bureaucracy that doesn't have that information and, as a result, you have a perpetual class, which is a real problem. Anyway, that's sort of getting off on a tangent.

 

Jack Capizzi:  Well, we do have another question related to these issues of class distinction. This attendee asks, "Could they apply other protected class jurisprudence, for example, Title VII, to help draw a line between protected class and transient status?"

 

Timothy Sandefur:  Well, if I understand that question, I think the answer is yeah. I think that's kind of what's happening is that the Ninth Circuit is kind of endorsing a theory that was really first advanced in the '80s by cutting-edge far left lawyers who wanted to characterize homelessness as that kind of a class, as an immutable class, because they thought that was best for such people, because they truly have this idea that people can't help themselves. And so, necessarily, therefore, it must be a form of discrimination to expect people to take responsibility for their lives. 

 

And I'll give you an example of this. So, here in Phoenix — I mentioned the Zone — there was a federal lawsuit that was filed over the Zone by the ACLU representing some homeless plaintiffs, arguing that the city, in trying to deal with the problem of crime in the Zone, was violating the Fourth Amendment, was seizing people's property without giving them a chance to get it back and all sorts of things. Some of those arguments I thought were meritorious.

 

But the plaintiffs in that case, there were two named plaintiffs, one of whom was a man who said in the complaint that he had been sleeping on the street for over 25 years, and the other of whom was a woman who said in the complaint that she had income from social security and even had an open credit card account. So, these are not people who are incapable of making choices for themselves. The Ninth Circuit, in Martin, defined involuntary as the inescapable necessities of being human.

 

And so, they have in mind, I guess, in the Martin case, they had in mind a person who falls asleep one night on the streets. That person is so tired, they're sitting there and just falling asleep. I've had this happen. I was, one time, in the middle of the night, my wife and I had been traveling a lot. She went to the restroom in this restaurant that we were at. And I actually fell asleep at the table. The waiter comes over and nudges me and says, "You can't sleep here." I was like, "Oh, I'm sorry. I just fell asleep just that one second." 

 

So, of course, that can happen. I think that's what the Martin case is talking about when it talks about involuntary. It's not talking about 25 years of living in tents in public parks. The idea that the person is involuntarily in that situation, or that a person who has income from social security and maintains a credit card account is involuntarily homeless, that shows you how far the left is stretching the principle of involuntariness with a presumption that being unable to afford something is a legally protected status.

 

Jack Capizzi:  "When discussing the impact of the anti-camping rules, the entire discussion," this person asks, "seemed focused on the impact of the perceived rights of the campers, while the impact of the ordinances of the health of the community seemed outside the discussion."

 

Timothy Sandefur:  Yes.

 

Jack Capizzi:  "Was this the case? And why?"

 

Timothy Sandefur:  Oh, thank you for this question, because I think one of the most important points about this entire dispute that keeps being forgotten or purposely ignored and, unfortunately, was not discussed in today's oral argument, is that the innocent victims of these homeless encampments are not just the homeless themselves who, after all, suffer from crime and disease and other problems in these camps. Here in the Zone in Phoenix, the Zone was there for, what, two, three years, in Phoenix summers of 120 degrees. 

 

Last year, Phoenix went through the first time that we know of where it went through an entire six months at a stretch over 100 degrees. So that's how people are sleeping, on the asphalt in tents, because the city chose to do that because of these cases. So, those are innocent victims. But, even more than that, the ones who are truly — to borrow William Graham Sumner's phrase — the forgotten man in all of this, the forgotten person in this is the property owner, the business owner, the taxpayer who is deprived of police protection that their tax dollars pay for, out of a misguided conception of what it means to be compassionate and a misguided notion that people can't help sleeping in the public parks, even though, of course, they can. 

 

And, to take an example, the New York Times profiled the owners of a sandwich shop here in Phoenix whose business was being almost entirely destroyed by the homeless camps. Not just because it drove customers away, but also because the homeless themselves, during the day, would wander into the shop. Many of them have mental disorders, schizophrenia and so forth, and they're attacking customers and attacking employees. And the employees, they work in a sandwich shop. They're not psychologists. Police also are not psychologists. And they've having to respond to these problems. 

 

And so, the real innocent victims here are the property owners and the taxpayers in the community who are being forced to pay their tax dollars and get no protection as a result. And that's why we at the Goldwater Institute are putting forward to the voters at this coming election an initiative that would say that if your community refuses to enforce the law, and as result you have to protect yourself by installing bars on your windows or hiring a security guard or installing security cameras or whatever it might be, that you should be able to write that cost off on your taxes. So that ballot initiative will go in front of the voters of this coming election and say the city is refusing to enforce these laws.

 

We're not talking about just one or two failures, but a policy, like Phoenix had, of refusing to enforce the law. And the result is to endanger you. And if you have to protect yourself, even though you paid for police protection to protect you, then you should at least get your money back. You should be able to at least write the cost of that off on your taxes. And then, the community that has chosen to endanger you, or the city that has chosen to endanger you, will have that amount deducted from its state funding. So, for those of you in Arizona, please look for that ballot initiative coming at this election in November.

 

Jack Capizzi:  We have a small question here. This person is asking if you think that the petitioners were expecting or were prepared for the questions that the left wing of the Court were hammering them with.

 

Timothy Sandefur:  Well, I do think that the opening of the argument was pretty rough for the city's attorneys. I think Justice Kagan and Justice Jackson, particularly, had some very sharp questions. And Justice Kagan, I may disagree with her, and the same with Justice Jackson, but they are very sharp. They know these issues. They have their views, and they are well-thought-out views. And they definitely hammered the city's attorney very hard. 

 

I think only once Ms. Corcoran got up — and Nr. Needler — did the conservative wing really hammer from the other side. And my sense is that, obviously, with a conservative majority it's an easy bet that the Ninth Circuit is likely to be overturned here. But I think that the arguments, the problems with the Ninth Circuit rule, were made much clearer during the second half of the argument than the reverse. I think it was made much clearer during the second half than the argument by the city was made, with respect to those justices.

 

Jack Capizzi:  Well, it looks like we've only got one or two questions left here, one of which is, "Assuming that the Supreme Court overturns the Ninth Circuit, what do you think the next moves would be of, let's say, the ACLU or the Homeless Coalition?"

 

Timothy Sandefur:  Well, I think, actually, of course, there will be next moves. And I think those next moves are probably going to be focused in a much more productive direction, honestly. So, I mentioned that federal case here in Phoenix about the Zone, where the ACLU sued the city for violating things like the Fourth Amendment by taking people's property and not giving them the opportunity to reclaim it. Those seem like entirely meritorious arguments to me, and so, I think getting away from this one-size-fits-all, across the board numerical formula of "If you don't have enough shelter beds, then it's involuntary."

 

That's a very simplistic way, even if you're on the left, to address this issue. And only ideological blinders, I think, can really cause a person to embrace that position. Instead, I think if the Supreme Court overturns the Ninth Circuit, you're going to see cases that are much more focused on things like the how, rather than the what, on the methods that cities use to clean up homeless encampments. Are they providing people with due process of law when they take their property? Are they giving them the kind of individualized hearing that they might be entitled to? Those sorts of things.

 

And I think that that would be very productive. Because, of course, the people who live in these camps, of course they have constitutional rights. Of course they need to be protected. And the way to do that is with addressing those constitutional rights, not creating, essentially out of whole cloth, the constitutional right to sleep in the park. Instead, the way to do it is to say if the city's going to confiscate somebody's tent, then it has to give them an opportunity to get that tent back through some kind of a hearing process or something like that. 

 

That's perfectly legitimate. I don't think anybody can have an objection to that. And so, I think that a ruling overturning the Ninth Circuit is going to focus the homeless advocacy organizations on issues that are much more worthy of their time and much more protective of the homeless people and of the taxpayers than the current approach that this case is taking.

 

Jack Capizzi:  Thank you very much for your answer there. I feel like that is a good point to end on. Before we leave, are there any final thoughts that you have about the case that you'd like to share?

 

Timothy Sandefur:  I would just ask people to check us out at GoldwaterInstitute.org to learn more about the work that we're doing in this area, both at the state and the federal level, both in the courtroom and, as I mentioned, at the ballot box. That's GoldwaterInstitute.org.

 

Jack Capizzi:  Well, with that, on behalf of The Federalist Society, I want to thank everyone for attending today's presentation and for submitting so many pointed and thoughtful questions along the way. We, of course, want to thank Tim for sharing his time and expertise with us. As always, we do welcome listener feedback at [email protected]. And, finally, just for your awareness, a recording of this program will be available soon on the FedSoc YouTube page, along with our website and the FedSoc Forum Podcast feed. With that, thank you all very much for being with us today. We are adjourned.