Courts as Police, Legislators, and “Homeless Policy Czars”? What are the Implications of Grants Pass on Local Policing and Public Safety?

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Chayila Kleist:  Hello, and welcome to this Federalist Society webinar call. Today, October 19, 2023, we’re delighted to host a discussion titled, “Court’s as Police, Legislators, and ‘Homeless Policy Czars’? What are the Implications of Grants Pass for Local Policing and Public Safety?”

      My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program, as The Federalist Society takes no position on particular legal or public policy issues. In the interest of time, we’ll keep our introductions today brief. But if you’d like to know more about any of our guests, you can access their impressive full bios at fedsoc.org.

      Today, we’re fortunate to have with us as our moderator Antoinette Bacon. Ms. Bacon is a former Acting United States Attorney for the Northern District of New York and currently works for the Department of Justice in Miami, Florida. She has held several leadership roles with the department, including National Elder Justice Coordinator, Associate Deputy Attorney General, and National White Collar Crime Coordinator.

Ms. Bacon is a highly decorated attorney, having earned two of the highest awards in the Department of Justice, along with special awards from the IRS, the U.S. Postal Service, and U.S. Attorney’s Office for prosecutions of fraud, waste, abuse, and corruption. And I’ll leave it there, and I’ll leave it to her to introduce the rest of our guests today.

As a last note, throughout the panel, if you have any questions, please submit them via the question-and-answer feature found at the bottom of your Zoom screens so that our speakers will have access to them at the portion of today’s webinar. With that, thank you all for joining us today. Ms. Bacon, the floor is yours.

Antoinette T. Bacon:  Thank you, Chayila. And let me expand on your comments and note that my remarks today are those of my personal views and not necessarily those of the Department of Justice.

It’s difficult to watch the news without seeing images of once tranquil parks now covered in seas of tents riddled with garbage, human waste, and fentanyl-laced needles, stories of violence, struggle, overdoses, and rampant disease. There appears to be widespread agreement that homeless encampments have strained communities, and they fail to serve the homeless.

As communities are addressing the challenging multifaceted issues associated with homelessness, some have argued that their ability to implement solutions has been limited by a recent Ninth Circuit panel decision that has created a constitutional right to sleep in public places. The opinion to some is “illegal straitjacket” that has paralyzed communities. The opinion to others is a necessary result.

The appellants filed for a petition for rehearing en banc, which was denied in June by a one-vote margin. Why is the denial of a petition for rehearing en banc interesting? It’s how it was done. The Court issued a 155-page opinion, including a strongly worded dissent, advocating to remedy “a strange and sweeping mandate” and “an unfortunate constitutional mistake.”

In response, the majority issued a statement in support suggesting that the dissent has misinterpreted the scope of the holding. The cert petition now pending raises an important separation of powers issue that asks, “Who decides homeless policy, the elected legislature or federal courts? Is this a judicial power grab, or is it the proper exercise of judicial power interpreting the Eighth Amendment?” The implications are great, and it begs the question, “If federal courts can set homeless policy, where does their power end?”

I’m honored to be joined today by our panelists, Bill Mauer, Greg Scott, and John Bash—three accomplished lawyers who not only have studied this issue, but they’ve lived it. They’ve witnessed the rise in homelessness, the state response, and the fallout from Grants Passed in their respective cities: Seattle, Sacramento, and Austin.

Bill Mauer is the Managing Attorney for the Washington State Office of the Institute for Justice. And Bill, I’d like to start with you if we could. Can you walk us through the plaintiff’s case and the Ninth Circuit panel’s holding?

William R. Maurer:  Sure, absolutely. Thank you for the introduction. So the case we’re talking about is Johnson v. The City of Grants Pass. Grants Pass is a small city in southwest Oregon, about 38,000 people, not too far away from the border of California. They passed an ordinance that made it a civic -- I’m sorry, civil infraction for someone to be sleeping outside using a sleeping bag or other material used for bedding purposes. The Ninth Circuit, in a divided panel, held that this ordinance violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

But to fully understand the decision, you have to go all the way back to 2006 in a case called Jones v. City of Los Angeles. In this Jones case, the Ninth Circuit struck down a Los Angeles ordinance that prohibited sitting, lying, or sleeping on streets, sidewalks, or other public ways. The panel in Jones held that the Eighth Amendment prohibits the government from criminalizing involuntary conduct inseparable from the status of homelessness. And it relied on 3 U.S. Supreme Court cases from the ’60s and ’70s.

First, there was Robinson v. California, which struck down a law that criminalized the status of being a drug addict. It wasn’t that you were taking drugs. It wasn’t that you purchased or sold them. It’s that you were a drug addict that made -- that was made a criminal.

Second, was Powell v. Texas, a 1968 case. A badly fractured Supreme Court in a 4-1-4 decision upheld the Texas law that made it a crime to be drunk in public. The challenge there was by chronic inebriates who argued that they could not refrain from drinking, and therefore, this was a punishment of their status as chronic inebriates and not as a punishment for their act of drinking in public.

Four Justices held that this was a punishment of the act of drinking in public. Four Justices held that it was a punishment on their status and was therefore unconstitutional under Robinson, and Justice White concurred saying that this was indeed a law that made status illegal but that Mr. Johnson had provided no proof that he had to be in public while he was drinking.

The final case that the Ninth Circuit relied on was Ingraham v. Wright from 1977, which was a case that did not involve either of these issues. But in making the case, the Supreme Court held basically that the Eighth Amendment protects three things: It limits the kinds of punishment that the government may impose on those convicted of a crime, which is a post-conviction restriction on the government’s power.

It prescribes the kind of punishment and prohibits those that are grossly disproportionate to the severity of the crime—again, a restriction on the government’s ability to punish post-conviction. And uniquely, it held that the Eighth Amendment opposes substantive limits on what can be made criminal and punished as such, which, if you notice, is not limited to merely post-conviction status, meaning that the Eighth Amendment creates a ban on the government from criminalizing certain kinds of behavior.

And the Ninth Circuit took these three cases and concluded that the Los Angeles ordinance punished status, not conduct, and that status resulted from being involuntarily homeless. That case—while it was pending during the petition for a hearing en banc was pending—Los Angeles and the plaintiff settled, and so that decision was vacated.

Fast forward to 2019. The Ninth Circuit, in a case called Martin v. City of Boise, basically resurrected the Jones decision and substituted “City of Los Angeles” with “City of Boise.” And in that case, the Ninth Circuit held that punishing people for sleeping outside violated the Eighth Amendment if the plaintiff had no access to shelter. It applied the same reasoning as Jones, Robinson, and the White concurrence, as well as the dissenters in the Powell decision—namely that the Eighth Amendment prohibits the state from punishing an involuntary act if it is an unavoidable consequence of one’s status or being or if there are no homeless shelter beds available.

The City of Boise sought rehearing en banc, and much like the case we’re discussing today, Grants Pass, the denial of the rehearing en banc was -- resulted in a number of dissents—most strongly one from Milan Smith, who argued that this was a novel approach and application of the Eighth Amendment and that the Eighth Amendment did not, in fact, extend to pre conviction activities by the government.

All this came to a head in the case of Johnson v. Grants Pass. In that case, the plaintiffs made precisely the same arguments that the plaintiffs in Jones and City of Boise made. And the Ninth Circuit, again, followed those two decisions. It followed Martin by allowing the homeless to sleep. I’m sorry. The City of Boise attempted to follow the Martin holding by allowing the homeless to sleep, but it prohibited the act of camping, which was using bedding to sleep or other things that would assist one from protecting yourself from the elements. It also made the act a civil, not a criminal, infraction.

They brought a class action, and the class sought to be certified. It consisted of all involuntary homeless. The district court relied on Martin and struck it down. The Ninth Circuit affirmed. I believe they were remarkably unpersuaded by the -- by saying, “Yes, you can sleep outside. But no, you can’t have any bedding or other things to keep you warm.” And as Ms. Bacon mentioned, the City of Boise sought en banc rehearing, was denied 14-13. Thirteen judges and four senior judges joined five separate opinions calling for en banc review.

In response, the majority, written by Judge Silver from the District of Arizona and Judge Ron Gould from the Ninth Circuit filed a joint statement stressing how limited the decision was. And that is where we are now with the petition for certiorari pending before the United States Supreme Court with the question being, “Does the Eighth Amendment prohibit the government from making involuntarily -- making sleeping by the involuntarily homeless outside illegal? And that has occasioned a huge number of amicus briefs in support of the petition, and the Court will consider those.

Antoinette T. Bacon:  And before we talk about the perspective from the appellant, I’d like to invite Greg Scott into the conversation. Greg, you served as the U.S. attorney in the Eastern District of California and now as a criminal defense attorney as a partner in King & Spalding. So one of the amici advocated, “The Ninth Circuit’s approach is flawed in theory and unworkable in practice.” So from the public safety perspective, is the Ninth Circuit’s formula unworkable?

McGregor W. Scott:  Absolutely. There’s no question about that. And the reality on the ground—certainly in California, Tony—is that there may not be a more radioactive political issue in the state right now than homelessness.

We have our progressive governor, Gavin Newsom, openly criticizing the Ninth Circuit. We have London Breed, the mayor of San Francisco, openly criticizing the Ninth Circuit on this issue. And the reality is, California has approximately 10 percent of the nation’s population. It’s estimated we have 30 percent of the nation’s homeless.

And in my belief, this issue has reached a tipping point where the empathy, the goodwill, the generosity that’s been extended by our communities to the homeless has reached a tipping point where people are done with this issue of homelessness in the state of California. And I think it would be worthwhile to just take a couple of minutes here. How did we get here in California? So let’s talk about that for a minute.

It is often advanced by the -- I guess what Dwight Eisenhower would have referred to as the “homeless industrial complex” here in California, that a lack of housing is the fundamental issue. Conversely, a lot of people, a lot of smart people and I join in this crowd believe that, at root, the issue is one of drug addiction and mental illness, that that’s really what this comes down to.

So it’s important to take just a quick trip back in time to when Ronald Reagan was the governor of California. The mental institutions in this state were shut down, and there was really no substitute that was put in place. So in practice, over the last 50 years, the county jails have, in essence, been the holding facilities for the mentally ill and the drug addicted in California. There was no alternative. So when these people would conduct what we call quality of life crimes, camping in public parks, urinating in public, those types of things, they would be arrested and taken to the county jails.

Now, in 2011, there was a law passed that Jerry Brown signed, which is colloquially referred to as “realignment.” And there was an overpopulation in the state prison system. And so what realignment did is it picked up a whole bunch of felons, moved them out of the state prison system, and put them in the county jails. So the net effect of that was many of these people that we’ve been talking about that committed the quality of life crimes who had been in the county jails were turned loose onto the streets.

And so when I was U.S. attorney, I would often say there’s a whole bunch of people who should be in state prison who are now sitting in the county jail, and there’s a whole bunch of people who should be sitting in the county jail who are now out on the streets. So that’s the reality of realignment in California.

The second piece of that is that -- so that was 2011. 2014, Proposition 47, which was in California—the state attorney general has the legal obligation to provide what we call the “title and summary” of the statewide propositions. Our sitting vice president was the attorney general at that time, and she gave a proposition which eliminated the ability to prosecute anyone under any circumstances as a felony possession of controlled substances, and also increase the amount that could be stolen at any given moment in time to $950, which is -- that’s a whole nother issue in California is the retail theft that’s going on. And she chose to title that the Safe Schools and Neighborhoods Act. And so that’s what the voters saw. That’s what they voted for, and it passed.

So what Prop 47 did was it essentially decriminalized possession of drugs in California. What we had in place was a very effective system of drug courts. Twenty plus years ago when I was an elected district attorney, we actively engaged in that, and it was really a -- it was a -- it was real, and we really got -- because there was compulsion. If you don’t do this, you’re going to go to state prison.

Now, that’s all gone. Drug courts are gone in the state of California. So there really is no effective tool to compel people to participate voluntarily or involuntarily in drug courts to be able to fix their problem.

Generally the same moment in time that we’re turning loose from the county jails across the state thousands and thousands of drug addicted and mentally ill people, we decriminalize drugs, and we stop any sort of punishment for drugs. So there’s a confluence of events there that has led this to this.

The conditions here in Sacramento, it is simply astounding for anyone who has lived in Northern California for any period of time, this statistic. There are now more homeless people in Sacramento than there are in San Francisco. And I know San Francisco gets all the public attention on Fox News and elsewhere around this issue, but we have more in Sacramento now than in San Francisco, which gives you some grasp of how widespread this problem has become across the state.

Part of the compounding issue in Sacramento is that much of downtown, the buildings contain the various state agencies for the state of California, which for the large part have not come back to the office yet. So downtown Sacramento is a train wreck because your normal ebb and flow of work and people going to work and going home and going out to lunch and all kinds of stuff frankly does not generally exist. And the homeless, in large measure, have taken over the downtown area of Sacramento.

Now, I’m going to culminate by making this observation. In recent weeks, the district attorney of Sacramento County—a terrific young DA by the name of Thien Ho, a Vietnamese refugee, came over as a child on one of the boats and they escaped from Vietnam—has brought a civil public nuisance action against the city of Sacramento, alleging, in essence that the city, through its inaction, has created a public nuisance in Sacramento. People can’t use the sidewalks; they are fearful at night; all the things that come with an out-of-control homeless population that people are not able to avoid because the city has done nothing.

And the interesting piece about that—a couple of things. As I mentioned earlier, I was an elected DA once upon a time. I have never in my experience heard of a DA bringing a public nuisance action against a municipality. I think if it’s not unique, it’s extremely rare. But that shows you how dire the circumstances are.

The other issue, though, that I think—and I know the DA. He’s a good friend. We’ve talked about this—the decision point for him was that he found out that in response to what I called the tipping point on this issue politically in the community where people are just done with it, the city council publicly passed a bunch of laws to “get tough on homelessness” in response to public outcry, while, at the same time, backdoor directing the police department to take no action. So publicly, they’re doing one thing. Behind closed doors, they’re doing something completely opposite, which is what compelled the DA to take this, as I described, a unique or extremely rare situation.

Now, on the Grants Pass decision specifically, what that has done is it’s created a situation where the cities can just say, “Oh, we can’t do anything because of Grants Pass. And so all that has done in real terms is tremendously exacerbate the problem for -- in the cities in California because there’s a lack of political will to push back and say, “Well, what can we do?” as opposed to, “Well, we can’t do that because of Grants Pass.”

And I will conclude by saying—and this really goes to your point, Tony—is the separation of powers idea. As I mentioned, we have the governor; we have the mayor in public outcries against the Ninth Circuit because they’re trying to do something about this problem, and they’re completely handcuffed by an ivory tower, a completely out of touch Ninth Circuit opinion, which it is so flawed in so many ways from a legal perspective. And I know my good friend John Bash is going to talk about this in just a moment.

But in the interim, we’re stuck with it. Until the Supreme Court takes it up, we’re stuck with it. So you have municipalities across the state wrestling with a very real issue and feeling like they’re completely handcuffed because of three judges on the Ninth Circuit.

Antoinette T. Bacon:  Thank you for that perfect transition to John Bash. John is the co-chair of Quinn Emmanuel’s national appellate practice and I believe co-managing partner of the firm’s Austin office. And John, you also were a former U.S. attorney down in Texas. Would you outline for us, if you could, from the appellant’s perspective, the flaws in the Ninth Circuit’s opinion?

John F. Bash, III:  Sure. So what the appellant is saying—they’ve already filed their cert petition. The appellant is the city of Grants Pass—they filed their cert petition in the Supreme Court, and they’re waiting for a response. But their threshold argument is just that the Eighth Amendment does not speak to this issue at all.

Bill mentioned Robinson. So Robinson, as he said, was a 1962 case in which the Supreme Court held that a law that has punished being addicted to drugs without any conduct requirement at all violated the Eighth Amendment. And people can kind of debate the merits of that. And I think that modern day originalist judges, even if they agreed with the outcome, would probably locate that in the Equal Protection Clause or the Due Process Clause, not the Eighth Amendment. They would say for just punishing someone for what they are is a violation of equal protection, or something like that.

But what the Ninth Circuit did, keying off this combination of dissent and concurrence in Powell—a later Supreme Court case—is say that conduct that is -- inevitably follows from status also cannot be punished. And they categorize involuntary homelessness as conduct that follows from the status -- or, sorry, sleeping on a public area conduct that follows from the status of being involuntarily homeless.

And you can see some logic to that. But I think the justices on the Supreme Court, like the judges in dissent below, are going to have two immediate problems. First, they’re going to say the Eighth Amendment just does not speak to that issue at all. It’s about the type of punishment, maybe the disproportionate nature of punishment, although many of them would disagree with that as well. It has nothing to do with what type of conduct can be criminalized.

And yeah, maybe we won’t overrule Robinson in part because we could justify it on other constitutional grounds, but we’re not going to extend it to what sort of conduct can be criminalized. It’s a slippery slope. I mean, what about someone who’s starving and shoplifts, like the Les Mis scenario, is that conduct that follows inevitably from their status of someone with no money and can’t afford to eat? It gets pretty tricky to go down that road. The second problem we’re going to have is --

Antoinette T. Bacon:  I’m going to interrupt you right there. One of the comments is they’re having a little bit of trouble hearing you. If you wouldn’t mind coming a little closer to the mic. Thank you.

John F. Bash, III:  Let me see what’s going on. How about now? Is that better? That’s good.

Antoinette T. Bacon:  I believe so.

John F. Bash, III:  Okay. Well, folks, let me know if it’s not. So just a one-sentence recap of what I just said. I think that the Supreme Court and the majority of the justices are going to think that the Eighth Amendment just doesn’t speak to this issue at all. It’s about the relationship between punishment and crime or what kind of punishments can be inflicted. It’s not about what sort of conduct can be criminalized. And I think the city will probably prevail in the Supreme Court on that basis. Is my sound still good?

Antoinette T. Bacon:  Yes.

John F. Bash, III:  Okay. So I think that’s one problem. The second problem—and it’s one that Judge Collins, who was the dissenter on the panel in the Ninth Circuit -- he’s a Trump appointee, a very smart guy, a former Scalia clerk—the way that the panel used the class certification standards was pretty unusual.

So what the district court did is certify a class and then enjoin the laws under -- for the class under Rule 23(b)(2). And the immediate objection, if you just think about the issue for a second, is that how can you have a class of people, all of whom have individual circumstances about whether they’re really involuntarily homeless or not? Could you have stayed with a friend? Do you have somebody you could stay with an hour away, and you just prefer to live here because there’s a drug market here that you like to attend? I mean, how do you know that without individualized determinations?

And the district court and the panel got around that by saying, “No, no. The class definition is people who are involuntarily homeless.” And so that solves all questions. And then they basically made clear that you would fall within the class if within your municipality the number of available secular shelter beds—it can’t be a religious shelter because that would violate the First Amendment—the number of secular shelter beds is lower than the number of homeless people. Everybody’s involuntarily homeless.

You can see the problem with that logic in part because there’s a lot of other reasons people might not actually be involuntarily homeless besides the lack of beds. You can also go to neighboring municipalities that might have beds available. There’s any number of problems with that. So I think the Supreme Court’s going to look at that and say, “Man, Martin was one thing. That was an individualized determination. But to now enjoin on a class-wide basis city ordinances based on this very rudimentary back-of-the-napkin calculation about the number of available beds is really a step too far, and it’s going to have all sorts of consequences for cities across the Ninth Circuit.

The third thing—and this goes to one of the Q&A, so it’s a good link to the Q&A—Kevin Green [sp] asks, “How is a civil ban considered cruel and unusual punishment?” That’s a good point because you normally think of the Eighth Amendment as only applying to criminal offenses, and in this case, they’re civil infractions. What the panel said was that if you get two civil infractions here, you can be excluded from parks or maybe other things as well. And then if you violate the exclusion order, it’s a criminal offense. And so that’s how the criminal aspect or requirement of the Eighth Amendment figures in here.

I think they’re going to immediately see problems with that. One is I think the questioner points out pretty much any civil infraction can eventually blossom into criminal punishment, like contempt of court if you don’t pay it. So that seems to prove too much and basically makes the Eighth Amendment encompass all civil penalties.

But two, if that was the real problem, it seems like they could have just enjoined the criminal penalty on violating the exclusion order, not the civil fines for the initial violations. So I think they’re going to have that problem, too, although, as I said, I don’t think they’re going to get to these problems. I think they’re just going to say the Eighth Amendment doesn’t apply. So that’s the appellant’s position. Now, the appellant is called the petitioner because they petitioned the Supreme Court.

The respondent, represented by very good counsel—Kelsi Corkran—puzzlingly to me, waived a response, which gets the Court to demand a response to ask for a response. That’s often a smart, strategic call. In this case, I was a little bit puzzled by it because, obviously, they were going to call for a response given there were 13 dissents below, and it’s a major, major case, so it didn’t seem worth it to waive a response. But anyway, now her response is due at some point in the next couple of months. I can’t remember. And it’s pretty easy to get extensions on that kind of say.

She’ll try to argue there’s no split here. I didn’t study the other cases that might have created a split. Supreme Court grants review often when two courts of appeals disagree or the ideal case, which is what the petitioner alleges here, the state Supreme Court disagrees with the circuit in that state, which is what they’ve alleged. And that really creates a problem because you have two different legal standards. So they’ve alleged that split.

The respondent will probably say that it’s actually an interlocutory appeal because the panel remanded on a couple what I would say are pretty minor issues. One plaintiff had died, so one of the challenges didn’t apply anymore. And it’s a little complicated, but I don’t want to get into it. But they remanded on a couple of issues. They remanded on whether the injunction should cover stoves, like actually setting up stoves to cook your food or to keep warm. So they’ll say it’s interlocutory.

I think the Court is probably going to grant, but it’s kind of like getting into a hard school to get a law school or something. Probably the hardest part here is getting the grant. If they grant it, they are almost certainly taking it to reverse it, both because of the ideological views of the current membership of the Court, and just this seems like the case you wouldn’t take unless you were thinking of flipping it or likely to flip it. So I think they’ll probably flip it.

If I had to predict, it’s probably not going to be more than 6-3, maybe 7-2. I think even some of the more left-leaning justices will see the practical problems here. And it’s telling. I didn’t even get to this, but it’s telling that people like Gavin Newsom are supporting the petitioners in this case. I think that will help the Court see this less through an ideological lens and more through a lens of just practical city administration. Do we really want judges deciding what the consequences of public camping and public sleeping, or is that something we’ll entrust the city leaders to figure out the right balance? So let me turn it back over to you.

Antoinette T. Bacon:  Well, on that last point, Bill, one of the judges writing in dissent observed, “Not every problem in this country has a legal answer that judges can provide. This is one of those situations.” Do you agree with that? Do you agree that on this issue that the issue should be one that is left to city councils and state governments and not one that should be addressed by circuit courts of appeals?

William R. Maurer:  No, I don’t agree with that statement, or as I would phrase it in oral argument, “I respectfully disagree.” We’re talking here about creating a criminal act -- well, and a civil infraction. But let’s just assume for the moment that we’re talking about a criminal act out of the status of being homeless.

There is nothing inherently wrong with being homeless. There is no crime involved in being homeless. And the fact that you were homeless, there were a number of the amici in support of the petition pointed out that this is a -- you’re essentially -- this is not making the status of being homeless illegal. It’s making the sleeping outside or using bedding when you sleep outside, making that illegal. Well, sleeping outside is the definition of being homeless.

And so this regime, this particular approach is doing is it’s attempting to solve the homeless problem by making it a criminal act. And it’s not a criminal act. It is simply a status, oftentimes involuntary. And there is absolutely -- John was talking about, “Does the Eighth Amendment cover this?” I do think the Eighth Amendment does speak directly to this, even if you don’t buy the whole Robinson argument, in the sense that penalizing somebody for this simple fact that they have nowhere to sleep is grossly disproportionate.

Every single fine, every single arrest that would occur simply because a person has nowhere to sleep and is forced to sleep on the streets is grossly disproportionate to the severity of their crime because what they’re doing is simply not a crime. So I do think that the Eighth Amendment does play an important role here.

And I also think that Eighth Amendment plays an important role regardless of whether it’s a civil infraction or criminal infraction because this Eighth Amendment also applies to excessive fines. And fining somebody for the status of being homeless, of having no place to sleep, any fine imposed on that person would be grossly disproportionate given their financial circumstances.

They’re not sleeping outside because they want to. They’re sleeping outside because they have to. Any fine that’s imposed on them would almost certainly be grossly disproportionate and unconstitutional under the Excessive Fines Clause, which was an issue that the folks -- the plaintiffs both in Grants Pass and in the City of Boise case addressed but was not addressed by the Ninth Circuit.

John F. Bash, III:  I’ll just add to that. That’s a very powerful ethical and moral argument, and you can see why judges over the years have bought that argument, including the dissenters in Powell.

I think one of the counterpoints to that is going to be, where does that line end? I mentioned someone stealing food because they’re hungry. There’s also people using illegal drugs because they’re addicted. Is that, in some sense, less involuntary than the person sleeping in a public park, or is it similar because there’s essentially a biological addiction there that takes away your free will? And those are hard issues.

And I think that many judges will feel like this is not easily amenable to judicial standards, even if they don’t phrase it that way or do it under the doctrine of standing or political question. I think they will feel like that’s a very hard line to draw between the person who has to sleep in the public park and the person who has to shoot up and the person who has to steal food. And that’s just we’re just not very institutionally, well-situated to drawing those lines.

William R. Maurer:  I think that’s a legitimate argument, and I think you’re probably right. There are a lot of judges that are going to look at that and say, “This is going to be an extraordinarily difficult standard to apply.” But I think the distinction between being homeless and the act of stealing or the act of taking drugs because you’re addicted, there is a difference, and that is that there are actually criminal harmful actions that go on when you steal and when you purchase drugs and use them.

And there’s an actus reus element that is there that is not there when you’re talking about homeless people. And I think that that’s one of the things that has had me confused or at least questioning a lot of the arguments against the Grants Pass decision was the idea that this removes a powerful tool from the government to be able to address the consequences of the homeless problem.

We all know—and especially the people who come from where we come from—we all know that there are collateral effects to having a large number of homeless people living on the street. It’s not good for society. It’s not good for the homeless themselves. But one of the amicus briefs in support of the petition for cert makes this argument, for instance, that the decision in Grants Pass hamstrung municipalities in responding to public encampments and drug overdoses, murders, sexual assaults, diseases, and fires that inevitably accompany them.

The thing that struck me about that sentence was that everything listed in that sentence is already illegal. There are already laws against that. And what we’re talking about here are laws that specifically make being homeless illegal. And if we’re talking about this as a tool, what does this tool accomplish? It doesn’t actually give these folks shelter—unless you count jail as a shelter—and it doesn’t actually address the issue that made them homeless in the first place. All it does is permit the government to arrest, try fine, incarcerate homeless individuals because they have nowhere else to go.

And it also exacerbates, I believe, and this is based on research done by Professor Laurie Hauber at the University of Oregon Law School. It actually exacerbates a lot of the problems that are caused by homelessness. It makes it less likely for the homeless to be able to move out of homelessness, in that it imposes fines that they cannot pay—which destroys their credit—and it oftentimes results in them not being able to obtain a driver’s license.

It exacerbates the burden on municipalities because jail is far more expensive than treatment and can ruin local municipal budgets. Being in jail is an impediment to obtaining meaningful employment, and it ruins the ability to build up the resources to be able to obtain housing. And it increases the burdens on the police, courts, and jails by simply making people who are not criminals into criminals.

And finally, it diverts resources away -- police resources away from actually dealing with real crime and forces them to deal with the fact that they’re arresting people for the simple fact that they have nowhere to sleep.

John F. Bash, III:  I think that the Court will say -- many would say that those are all very interesting and potentially compelling policy arguments. But those are exactly the things that should be weighed by policymakers because on the other side of that is downtowns that are the economic engine of a municipality and that support its tax revenue turning into places where no one wants to go and shop and live and over time depleting the resources that can be used to provide shelters and address the homeless problem. And it can kill a city’s vitality.

We had it in Austin until an ordinance was passed in 2021 by a referendum—even though this is a pretty liberal place—that ended camping bans -- I mean, that imposed a camping ban. And that’s not to say that side of the argument is necessarily right. I’m certainly not an expert, and it sounds like Bill is much more of an expert than me.

But I think most courts are going to look at that and say, “Hey, how to balance these things, whether these fines do more harm than good or whether they actually are necessary to support our tax base and to keep our cities vital and make people want to work and live here.” Those are hard issues involving a lot of predictive judgments, some value judgments, non-commeasurable factors, and courts ought not put our thumb on the scale of that, especially on a novel and arguably dubious interpretation of the Eighth Amendment.

Antoinette T. Bacon:  Greg, you want to jump in there and talk a little bit about that issue?

McGregor W. Scott:  Yeah. I agree completely with John, and that is that we have the political branches and we have the non-political branch. And this is a very political issue, and it’s far best left to the legislature and the executive to try to resolve it.

And what John was saying about the downtown areas being the economic engine for these cities and municipalities is spot on. And San Francisco is -- I’ll call it People’s Exhibit #1 to go back to my deputy DA days. San Francisco has been very widely published and reported is in what they’re calling a death spiral right now because the tax revenue—driven by sales at retail and through conventions coming to the city—have fallen off a cliff.

And again, as a kid who grew up in northern California, Union Square in San Francisco, once upon a time, was the most premier shopping area on the west coast. And now, something like 20 stores have closed on Union Square—the flagship Nordstrom in the country closed in San Francisco directly because of retail theft and the homeless problem. People are not coming into the city centers any longer.

So when we talk about costs and things—and Bill’s points are all very well taken—there is also the reverse side of that ledger, which is that unless the municipalities find a way to deal with these problems, they are not going to have the tax revenue to provide basic services.

And for the first time that I can remember in recent time, San Francisco, the mayor, just announced, I think, in the last week or two, profound budget cuts. So the magic city that has lived on tourism, conferences, retail, is in a real-world of hurt directly because of the homeless and the drug addiction problem and the retail theft problem that is not being addressed.

And the city has put together its own process to try to deal with the homeless, but now they have a TRO that’s been granted by a magistrate judge which prevents them from enforcing it. And again, I think it’s very important to call out this concept of involuntarily homeless. It’s not everybody who’s homeless. It’s the involuntarily homeless. And I’ve heard lots of apocryphal stories of people who don’t want it. They’re offered a shelter. They don’t want to go because they don’t want to have to live by the rules that the shelter puts in place. You can’t bring your drugs in here; you can’t bring your dogs in here; you can't -- all the things.

Certainly, I’m not saying this is an all-encompassing statement, but there is a significant portion of the homeless population that does not want to live in a shelter. They choose to be on the street irrespective because they want to be able to use their drugs when they want. They want to be able to live the lifestyle they want and not have rules imposed on them by a shelter.

So again, it’s the political branches that are best positioned to try to strike the right policy balance in taking care of the homeless situation, trying to help these people as best we can, get them shelter if they seek it, but also trying to make sure that the law is enforced, that our downtowns are a safe place to go, that businesses can function in these circumstances. So it is the political branches, not the non-political branch, that should be deciding these things.

Antoinette T. Bacon:  Bill, there was a question in the chat that was directed to you and it’s why doesn’t your analysis apply to every other criminal statute if there can be a category of person identified to that crime?

William R. Maurer:  Well, again, it goes to the actus reus issue. And I think, ultimately, that’s where the Robinson case is correct. Although many people might see that the Eighth Amendment discussion in there such as it is, it’s not the best analysis I’ve ever read in a U.S. Supreme Court decision applies. There is a distinction between committing an illegal act and making the -- someone’s status illegal, especially when they have no choice in that status.

So as the majority pointed out in Powell—not the majority, but the four Justices that concurred, that were not dissenting—pointed out, there is a distinction between committing an illegal act and a law that simply makes a person’s status illegal. And I believe it was -- I forget which justice pointed it out. But no one would have -- no one would question the unconstitutionality of a law that made it illegal to have a cold or to be a leper. But there is the constitutionality of a law that says, “If you have this particular disease, you can’t go to these places.” And that’s the distinction.

And I think that’s the distinction here, is that you -- the government here is -- and I think it’s critically important to remember this point and that Judge Gould and Judge Silver addressed it specifically is that Grants Pass is an extraordinarily narrow decision, and it only reaches those instances of people who are sleeping on the street because they have nowhere else to go. If they commit some other crime associated with being on the street, they can be held liable, and they can be prosecuted.

Some of the district courts that have interpreted Grants Pass in Martin, I think, have gotten a little bit over their skis and have interpreted the decision far greater than it should be. But ultimately, we’re talking about a law that simply says, “Do you have a place to sleep, or do you not have a place to sleep? If you do not have a place to sleep, you’re criminally liable.” And I think John is correct.

If we were starting from a clean slate, that probably is more of an equal protection analysis than it is an Eighth Amendment analysis. And so I think if the Court does take this, it will look at this not just from these policy standpoints and the issues that Greg has raised but also whether the idea of is the Eighth Amendment the proper place to ground a prohibition on the government making a person’s status illegal as opposed to the punishment that comes with a crime.

John F. Bash, III:  Can I just make a few points on that?

Antoinette T. Bacon:  Yeah. Please go ahead.

John F. Bash, III:  Yeah. So I think it’s quite possible. Certainly, some of the more left-leaning justices but maybe some of the median justices could think something like -- or at least reserve the question of whether the Due Process Clause or the Equal Protection Clause requires a state to have an affirmative defense of impossibility or something like that to these crimes, where if you can say, “Hey, there’s literally nothing I could do”—and maybe you have the burden of proving that. But if you can do that, then you have a right to not be convicted of a crime if you can prove impossibility as a matter of equal protection or due process.

But I think the reason they won’t see the case as narrow or the holding below as narrow and the reason I don’t is the way the class certification piece interacted with the substantive holding, which is they said the class is everybody who’s involuntarily homeless. But as far as I can tell, they basically just said you’re a member of the class if within your municipality the number of available beds outweighs -- or is lower than the number of homeless people.

And that’s obviously not an individualized inquiry, and it doesn’t seem to isolate the sort of person Bill was talking about that truly has no choice because a lot of those people may have a choice. A lot of those people probably could have fit into the available beds—not all. But other people may have been able to stay with somebody and didn’t want to or be able to travel to another municipality and didn’t want to. So I think they will see that at least as a very sweeping part of the holding, even if you thought, “Well, a more individualized inquiry would be both narrower and potentially justifiable under one of these other heads of constitutional law.”

The second point I make is determining whether something is an involuntary act that follows from status is a little tricky. I mean, one of the most prosecuted federal offenses is Eight U.S.C. 1326, which is colloquially called “illegal reentry,” meaning somebody who’s been deported and then comes back in. But it actually doesn’t require the government to prove the act of reentry. It only requires the government to prove that you’ve previously been deported and that you are found in the United States.

And if this case were to be affirmed, I could see the next step, someone saying, “I’m just found here. Yes, my status is undocumented, but I was just found here. I didn’t do any actus reus.” And the government would say, “Yeah, but you came in at some point.” And they would say, “One, you don’t have to prove that element to convict me, so that can’t be relevant to the analysis. And two, okay, but the homeless person probably made some choices years ago that led to this situation as well, or at least a lot of people did. They chose to take drugs that kind of derailed their life, or they chose not to take their job seriously”—not everybody.

Some people truly had no choice, but some people didn’t. And back in Grants Pass Supreme Court, that didn’t seem to matter to your analysis. You just said the fact that you’re currently homeless is enough not to prosecute you for sleeping on the bed. So now, the fact that I’m currently undocumented should be enough to say that you can’t prosecute me for just being found in the United States.

And you could see how that slippery slope would go to more and more cases because there’s this question of how far back do you go in the voluntariness analysis? You’re just looking at the last 24 hours, last month, the last year, or are you looking at their whole life and if they could have made a different choice and not had that status? It’s not like race or gender where you’re born with the status, and you can’t change it. So I think that’s an issue.

And the last very minor point is I think I was supposed to say my firm did an amicus brief in support of the petitioner in the case. I was not involved with it, but Chris Michel did a really good brief. So I just want full disclosure on that.

William R. Maurer:  And I should point out we did an amicus brief, along with a number of other public interest law firms, at the Ninth Circuit supporting the plaintiffs in particular on the Excessive Fines Clause argument, which I think, regardless of -- if the court does take this and strike it down, I think it’s extraordinarily important for the Court to recognize that the -- and remember, the excessive fines clause does not make a distinction between civil and criminal infractions or fines as long as it’s punitive. It’s covered by the Excessive Fines Clause.

I think it’s extraordinarily important that the Court recognize that any fine imposed on somebody who is -- who literally is sleeping outside is almost always going to be excessive because of their financial circumstances. The fine might as well be $100,000 because they’re not going to be able to pay it, even if the fine is only $100.

John F. Bash, III:  That would be true even if there’s beds available, though, right? That argument could even establish that people who could go to shelters can’t be fined because it would be excessive because they very likely have no money if they’re willing to sleep outside.

William R. Maurer:  That’s correct. And that has been the trend in the state supreme courts that have addressed this, that, essentially, particularly the Washington State Supreme Court in a case called City of Seattle v. Long, which held that you cannot fine somebody for sleeping in their car or at least that, in this circumstance, somebody who was sleeping in their car. They were fined, I believe, $250 and that was found to be excessive because they had no money whatsoever.

Antoinette T. Bacon:  Quickly. There was a question raised, and John and Bill, I think this might be for you. “Portland, Los Angeles, and other cities have created zones around schools and parks in which camping is not permitted. Does the panel believe that these limited time, place, and manner restrictions would survive Grants Pass and Martin if they are not reversed?”

John F. Bash, III:  I don’t know what the panel thinks. This case Bill can --

Antoinette T. Bacon:  The panel being you two.

[Laughter]

John F. Bash, III: Oh, we’re the panel. I thought the panel of the Court. This case did involve a park, so I think they could be potentially implicated there. Bill might understand that better. Schools, I suspect that they would not -- the Court would not think this holding extends there.

So, for example, they remanded on stoves and camping stuff because they said the state may have a legitimate interest in the safety aspects of that that outweighs the right that we’re recognizing here. And I suspect even pretty liberal-leaning judges in the Ninth Circuit would say, “Creating a safe zone around schools where there’s not a bunch of random adults, many of whom are drug addicted or mentally ill, is probably an okay thing to do.”

And plus, that’s not really -- I guess it depends on how many schools there are and where they’re placed and stuff. But that probably leaves other places for people to sleep. So I suspect they would say, “You could have an ordinance like that.”

William R. Maurer:  I agree. I think I can’t remember if it was the Boise case or the Long case out of Los Angeles where they specifically addressed and spoke approvingly of restrictions on bans on sleeping outside during certain hours or in certain places and noting that the ban that they were looking at was far broader than that.

Antoinette T. Bacon:  In the final minutes we have, I’d like to give each of you an opportunity for any final thoughts on separation of powers issue. Should the Supreme Court take the case? What will happen out west if they don’t? Greg, let’s start with you.

McGregor W. Scott:  So, as a longtime observer of the Ninth Circuit, those of us in this part of the world have grown accustomed to the idea of very strong, very vigorous dissents being written, really for the purpose of catching the Supreme Court’s eye and then taking a case up. And I can cite case after case after case where that’s happened.

What’s interesting to me here is we have both Judge Collins and Judge O’Scannlain have written the “bring-the-thunder” dissents. But I thought Judge Graber wrote a very succinct dissent, which addresses exactly the issues that John has raised on both the Eighth Amendment and the certification of the class that I think will be the nut around which it turns.

So I think they will take it. I think it will be reversed, but it’s not going to be the classic Ninth Circuit reversal that we’ve seen where they essentially take the dissent and then write the opinion at the Supreme Court level reversing.

Antoinette T. Bacon:  John?

John F. Bash, III:  Two things. On what’s going to happen, I think it’ll be taken. I think it’ll be reversed. I think it’s more likely it would be 9-0 than that it would be affirmed. So I think it’s more likely Justice Sotomayor, Justice Jackson, and Justice Kagan would agree to reverse than it is that the court majority would agree to affirm in this case. So it’s very long odds, I think, for the challengers here, especially if it’s granted.

The other thing I’d say, just echoing what Judge Bress said in one -- in his opinion in this case, the Constitution, one, has a lot of prohibitions that don’t any longer really seem to have a lot of purchase in modern life, like quartering troops at homes. Hopefully, that’s not going to happen. And I think the Cruel and Unusual Punishments Clause is sort of like that. I think it was mostly about the rack and the screw. Maybe it can be applied to lethal injection and other forms of execution currently, but I don’t think it really addressed this.

And at the same time, the Constitution doesn’t address a lot of really important things. I mean, I think it’s really important what our top marginal tax rates are, and I think that can really affect our economy and our growth. But I think that’s an issue for the policymakers. I don’t think the Constitution talks about the top marginal tax rate.

And homeless policy is really important. It’s very hard because you’re trying to do right by people who are in tough situations. In many cases, not totally of their own fault, and in some cases, not of their own fault at all. But you’re also trying to balance public safety and tax revenue and keeping your cities vigorous and vital. So it’s hard, and I just don’t think the Constitution speaks to that issue. That’s the stuff we’re supposed to elect people to figure out, and I think that’s how the Court is going to see it.

Antoinette T. Bacon:  I’m sorry, John. We’re just at the top of the hour. Bill, 30 seconds, to you.

John F. Bash, III:  Sorry, Bill.

William R. Maurer:  Sure. As you can tell, these are extraordinarily difficult issues, and there should be -- governments should have a very broad range of tools available to them to be able to address them. But we have to make sure that when they do address them, they stay within constitutional boundaries.

And when they go outside of those boundaries, it’s incumbent on the courts to make sure that the government adheres to the demands of the constitution. That’s what happened here, and I think it should happen in the future, regardless of whether the U.S. Supreme Court takes the case or not.

Antoinette T. Bacon:  Thank you, all. Chayila, seating the floor back to you.

Chayila Kleist:  Thank you, all. Yes. On behalf of The Federalist Society, I really appreciate you joining us and sharing your valuable time and expertise today. Thank you also to our audience for joining and participating.

      We welcome listener feedback by email and [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.

 

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