Litigation Update: City of Boise v. Martin

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Administrative Law & Regulation Practice Group, was recorded on Tuesday, February 4, 2020, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's call is titled a litigation update on the City of Boise v. Martin, a homelessness case coming out of the Ninth Circuit Court of Appeals. My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are very fortunate to have with us a wonderful panel to discuss this topic. And our moderator is the Honorable Eileen J. O’Connor, Lee O’Connor, who is the Chairman of The Federalist Society’s Administrative Law & Regulation Practice Group. After our speakers have their remarks, we will have time for your questions. Thank you very much for sharing with us today. Lee, the floor is yours.

 

Hon. Eileen O’Connor:  Thank you so much, Wes. Good afternoon, and to our friends in the Pacific Time Zone, good morning. As Wes announced, our discussion today is of the Ninth Circuit’s decision in Martin v. City of Boise for which the Supreme Court denied certiorari, much to the surprise of most and the dismay of just about every jurisdiction in the Ninth Circuit.

 

      We are fortunate to have for this discussion Professor Andy Hessick and Professor Carissa Hessick, both distinguished professors at the University of North Carolina at Chapel Hill School of Law. Professor Andy Hessick filed an amicus brief with the Supreme Court in support of certiorari and will tell us about the case and its implications from that standpoint. Professor Carissa Hessick, who has written about the need for clarity in criminal statutes, will address the issues in the case from that perspective and from the standpoint of the challenges that Ninth Circuit’s opinion poses for law enforcement. Andy, the floor is yours.

 

Prof. Andrew Hessick:  Thank you very much, Lee, and thank you, Wes, for having us on. So I wanted to start just by giving you some background on the case. The case involves two ordinances in Boise, both of which prohibit sleeping or camping on public streets. It’s public and private streets, but public streets are what we really care about here.

 

      There were several people -- there were six people who challenged this law, claiming that it violated their Eighth Amendment rights. These people had each been convicted or cited under the law, and they sought retrospective relief and prospective relief. They wanted damages for having been cited under the law, and they wanted declaratory judgement and injunction going forward saying that the law couldn’t be enforced.

 

      The district court ended up denying relief on summary judgement. It ruled for the City of Boise on a combination of procedural rulings, partly that the plaintiffs didn’t have standing to seek the prospective relief and partly on the ground that to allow the claims to go forward — they were brought under 1983 — to allow them to go forward would violate this doctrine under Heck v. Humphrey which says you can’t use 1983 actions to undermine convictions, that you have to first get your convictions set aside or use habeas or something like that, and then maybe you can pursue 1983 relief later on.

 

      So I don’t want to get into the details of those procedural hurdles and those procedural decisions because they’re complicated, but I will say after some back and forth between the district court and Ninth Circuit, it eventually made it up to the Ninth Circuit. The Ninth Circuit held that on the retrospective relief, it agreed that summary judgement was proper, summary judgement for Boise was proper because it was barred by the Heck v. Humphrey doctrine. But on the prospective relief, it said Heck didn’t pose an obstacle in that the plaintiffs had standing.

 

      Now, that takes us to the main guts of the case, the merits of the case, the Eighth Amendment claim. That claim was that enforcing the ordinance against homeless people on the streets violated their Eighth Amendment rights if they didn’t have indoor beds to go to. So if they didn’t have a bed in their own house or someone else’s house or in a shelter, somewhere else indoor, to enforce this law against them prohibiting them from sleeping on the streets violated their Eighth Amendment rights. And the theory is, “Look, we have to sleep. It’s a biological imperative. It’s sort of involuntary at some point, and it’s cruel and unusual to punish us for having to sleep outside when we don’t have an indoor alternative.”

 

Prof. Carissa Hessick:  Yes, and I have to say, as a criminal law professor, I find this Eighth Amendment argument really, really interesting because it’s a relatively rare type of claim. So when we talk about the Eighth Amendment’s prohibition on cruel and unusual punishments, the Supreme Court has told us that there are three different types of prohibition that fall underneath that amendment.

 

      The first type of prohibition is the one that probably tracks the text of the amendment most closely. The text forbids cruel and unusual punishment, and the first type of prohibition is a prohibition on a method of punishment. So states can’t, for example, draw and quarter people, or disembowel people, or all of those sorts of things, those really gruesome punishments that we saw in the middle ages. Those things are prohibited by the Eighth Amendment.

 

      The Supreme Court has also said, though, that there’s not simply an overall bar on methods of punishments, but that punishments can’t be grossly disproportionate. There’s a proportionality requirement also within the Eighth Amendment. And so that’s why you see the court, for example, saying that non-homicide crimes can’t receive the death penalty. The type of Eighth Amendment claim there is a disproportionality claim.

 

      But neither of those types of Eighth Amendment claims are what’s at issue here in this case. Here in this case, the type of claim is actually a prohibition on any sort of punishment. The claim is that there are certain things that states, if they punish you even the smallest amount for doing or failing to do, that that is cruel and unusual. So you can think of it really as a substantive limitation on criminal law. There are certain things that the states can’t outlaw, and if they do, it violates the Eighth Amendment.

 

Prof. Andrew Hessick:  It sounds a little bit like it’s -- it sounds to me it’s a little bit like substantive due process. It’s sort of a restriction on when the states can act.

 

Hon. Eileen O’Connor:  What punishment does the City of Boise provide for sleeping outdoors?

 

Prof. Carissa Hessick:  So my understanding was that the punishment could include jail time.

 

Prof. Andrew Hessick:  Jail time and a fine, yeah.

 

Prof. Carissa Hessick:  Several of these plaintiffs had been sentenced to time served, and one of them even got an additional day of jail on top of that as well.

 

      As for whether this is substantive due process or the Eighth Amendment, I think we have to go by what the Supreme Court tells us here. And the Supreme Court has said that this falls under the Eighth Amendment. But the case in which they did that, Robinson v. California, it was one of those more loosely written cases where the Court didn’t go into great detail about why it was that they thought it fell under the Eighth Amendment. And Robinson v. California, that was a case in which the State of California made it a crime to be addicted to drugs. And the Supreme Court said you can’t outlaw that.

 

Prof. Andrew Hessick:  One of the big arguments in this case was how this case was different from Robinson. So the idea behind Robinson -- the way it’s been characterized later on, at least, is that it’s sort of a status crime, that it’s the mere fact of being addicted. There was no actus reus associated with it, it was just that the state of being addicted was what was criminalized. But in this case, there are some actions. It’s sleeping on the streets. It’s camping on the streets. But the claim is that it’s involuntary. They don’t have a choice. And so they said because it’s involuntary, it looks more like Robinson than not like Robinson.

 

Prof. Carissa Hessick:  Fun stuff that we do at the beginning of a criminal law class, we talk about how the actus reus requirement doesn’t just include actions, it has to -- that those actions have to be voluntary in a very narrow sense of that word. So I suppose falling asleep could be a case on the margins. Does that fall within the meaning of actus reus, this obviously arcane criminal law term, or not?

 

      I will say, though, as Andy mentioned, Robinson was a case that recognized this particular type of Eighth Amendment claim, but the Supreme Court and other courts really have not been eager to use this Robinson doctrine. In fact, if you look up the citing history of Robinson, you find it’s almost always courts rejecting a claim under Robinson and under the Eighth Amendment. And the Supreme Court itself has really narrowed Robinson to its facts in subsequent cases, though each of those cases continue to talk about it in Eighth Amendment terms rather than substantive due process terms.

 

Hon. Eileen O’Connor:  Andy, what was the approach you took in your amicus brief?

 

Prof. Andrew Hessick:  So I’ll say first really quickly that the cert petition took the standard approach of the Ninth Circuit decision conflicts with Supreme Court decisions — see Robinson and other decisions like that — and that there was a split between the Ninth Circuit’s decision and some state court decisions. I think they said California Supreme Court and then some other circuits, the Eleventh Circuit. I remember one that was particularly pointed at.

 

      Our brief took a different angle. We represented two separate groups. One was the Ketchum YMCA. It’s a YMCA in Los Angeles. And the other was a woman, Maryrose Courtney. Her brother is homeless in Los Angeles and he has some mental health issues. The brief was all about how the encampments on the street of Los Angeles and other endemic homeless problems in Los Angeles cause real hardship for people, ranging from exposure to crime, disease, intimidation, all sorts of other problems.

 

      The angle we took was the inability to enforce laws, laws that Los Angeles has decided are useful tools in order to combat homelessness, has really exacerbated these problems. Or at least taking away that law, saying that you can’t use that particular law, takes one tool out of the box that Los Angeles was using. And so because of it, it has less ability, say, to break up encampments, and so encampments will thrive more. And if they’re thriving more, then some people, like our client’s brother, they’re going to end up at encampments. They go there because of a sense of community and a feeling of independence, countless other reasons.

 

      One part of what we talked about was that the inability to use that law actually sometimes causes problems for people. Another really important part about it is that when law enforcement no longer has that kind of law available, it has to turn to other laws. And the most convenient laws, the easiest ones to use for people who are on the streets, are laws against indecent exposure or public urination or other laws like that. And they carry heavier penalties. Repeat offenses lead to felonies, unlike the public camping laws. And so these people get pegged as felons, and that makes it a lot harder to escape homelessness. And a lot of them also require the offender to register as a sex offender, which also carries all sorts of collateral consequences.

 

Hon. Eileen O’Connor:  That’s very interesting. So one of your clients, the one with a brother who is homeless in Los Angeles, she wanted the Supreme Court to take the case because she hoped the Ninth Circuit decision would be overturned because she wanted her brother off the streets. And the Ninth Circuit decision tied the hands of law enforcement, right?

 

Prof. Andrew Hessick:  That’s right. I mean, she wants her brother to be in shelters or with them. The encampments were -- are -- they are still very attractive to their brother. I say their brother because we also worked some with her sister who’s not a client, but she didn’t want her brother going back to these encampments because that really where he faces a lot of problems.

 

      One of the things that happened to him is he’s always worried about having money on him, money given to him or earning money from a job because when he gets to the encampment, people take it from him. And they can take it from him violently, and he didn’t want that. But he goes to these encampments because, again, they have this sense of community and services, and it’s just what he’s familiar with.

 

      And these laws were really useful tools for breaking up those encampments. And I should say in case people don’t know, encampments are clusters of homeless people that come together on the streets to for a little camp, for lack of a better word.

 

Hon. Eileen O’Connor:  Now, you mentioned that one of the features of the City of Boise ordinance was whether there were beds available. How did the city count how many beds were available? What beds count for that purpose?

 

Prof. Andrew Hessick:  Well, this is a real problem. This is a policy matter and an Eighth Amendment clarity matter, which I’m sure Carissa will talk about. I’ll say it really quickly in terms of what the court said and what the policy problems are. The Ninth Circuit said that there have to be beds available in order to enforce the law. If there are no beds available, then it’s cruel and unusual to punish people for sleeping on the street.

 

      Now, they said there have to be beds available in the jurisdiction for all the homeless, so there’s several problems that came up. One is what’s the relevant jurisdiction? Is it the block, the city, the county, the state? Another problem that came up was how do you count the homeless because homeless is not a constant number. It varies. A lot of homeless people are homeless actually only for a day or two. They’ll be very transient. And they also don’t stay in place. One of the people who challenged the Boise law here, he’s only sometimes in Boise. He has a son in Boise. And other times, he’s not in Boise.

 

      Those counting problems are like how do you count the number of homeless, and then there are also counting problems in terms of how do you count the number of available beds? In Boise, there were two different shelters, but they had restrictions. One of them was that you couldn’t stay more than X number of days. I think it was 17 days for one of them and 30 days for the other. And the court said, “Look, those restrictions…” -- they suggest that those actually aren’t available beds necessarily because we can’t be sure whether those beds are going to be available because you might be timed out.

 

      And another restriction that they suggested was that if the beds are in shelters that have religious affiliations that they wouldn’t be counted because the homeless people shouldn’t be forced to go into shelters that have religious affiliations if they don’t want to go there. So it’s not just enough to count the number of beds in each of the shelters. You also have to make sure it’s the right kind of shelter that doesn’t have conditions that exclude people. And that’s one of the real problems with the opinion is that you can’t quite tell how to count the beds nor really now to count the homeless.

 

Prof. Carissa Hessick:  And I’d say that I think we shouldn’t overlook this incredibly odd feature of the Ninth Circuit’s opinion, which is most of the time when people are challenging a criminal law, they’re either saying that we need to strike down this law, or we’re saying that the law can’t be enforced against a particular individual. That’s not really what we have here, and I think part of it’s because of the procedural posture. These plaintiffs were looking for an injunction. But what we have instead is we have a narrowing, I suppose, of the statute, but it’s a conditional narrowing. So sometimes law enforcement can enforce it. Sometimes they can’t enforce it, and it depends on factual circumstances that can change on any given day.

 

      I think this is where people who worry about clarity should be paying attention to this particular decision. So imagine the City of Boise wants to be able to enforce these anti-camping laws, but it also doesn’t want to violate the injunction or the -- it doesn’t want to somehow act against what the Ninth Circuit has told them to do. That probably means that every day, they have to try to make a determination about how many beds are available and how many people need those beds. And that’s an extremely difficult thing for them to do.

 

      It’s also, if you think about it, going to be -- if we don’t think of the state of a monolith, but instead we think about the enforcement decisions being made by individual state actors, it’s going to become even more complicated. An individual police officer who is walking down the street who sees someone sleeping on the sidewalk, does he or she necessarily know what the state of the beds available and the number of homeless people in the city are at that given moment?

 

      Now, I suppose you could say for Fourth Amendment purposes, all they need is probable cause to believe that this person is violating the statute. But I don’t really know how to square that with this conditional narrowing of the statute that the Ninth Circuit has basically put into place.

 

Prof. Andrew Hessick:  I want to throw in also -- it’s just an open question. I can’t quite tell from the opinion whether the Eighth Amendment restriction is on the enforcement of the law that’s  on the Executive on law enforcement or if it’s on the scope of the ordinances themselves. And I think that that actually has important repercussions because I could imagine, I think, a vagueness challenge if it’s to the ordinances because then the homeless who are subject to the law, they don’t have enough information to be able to assess whether what they’re doing is illegal.

 

Prof. Carissa Hessick:  That’s right. We’re talking about the uncertainty for those who want to enforce the law, but of course we want to have clarity for those people who are subject to the law. Even if this were a limitation on law enforcement, you could almost say that it’s been decriminalized on those days when they’re not permitted to enforce it.

 

      That’s where the vagueness doctrine and related principles come into play. If it’s not clear when sleeping on the street is permitted, then it puts the people who would be subject to these particular ordinances in an incredibly difficult position because they’re probably not going to be in a position to discover the facts that would be necessary to figure out whether the law applies that day or not. The sort of people that this law is aimed at, we really can’t expect them to go around and perform a count of everyone that they see on the street and inquire about how many beds are available.

 

Prof. Andrew Hessick:  I’m coming at this again as an advocate. I wrote the amicus brief supporting cert here, so I guess everything I’m going to be saying is almost attacking the Ninth Circuit. But in Boise -- Boise is not that big. There are a countable number of shelters, a countable number of beds. They had a program that the court pointed to where the shelters can talk with the police and the police can figure out by the end of the day whether or not there are beds available, and then they can see someone on the street and they can make a determination whether or not they’re allowed to enforce the law.

 

      It’s much, much harder in places like Los Angeles. There’s information suggesting it takes days to do a count of the homeless in Los Angeles. It’s around 60,000 in Los Angeles County. Just in the city, it’s almost 40,000. And it takes days to count all those homeless, and by that time, the count’s going to be inaccurate because as I said, it’s a variable number. And I haven’t seen data on the numbers of shelters and beds, but I imagine that’s also not a pretty steady number in Los Angeles. Places open and close and spaces open up and they shut down.

 

Prof. Carissa Hessick:  And I’d also add that how many beds are available, I would imagine even if you did a count every day, the number of beds available are going to fluctuate depending on how many beds have been filled. So in terms of administrability, I think that this is just really complicated. And because it’s a criminal case, it just layers on all of these additional things that I didn’t see the Ninth Circuit grapple with in the opinion.

 

Hon. Eileen O’Connor:  Dozens and dozens of amicus briefs were filed on behalf of jurisdictions  in the Ninth Circuit, including Los Angeles and Los Angeles County. I think they made exactly the arguments that you’re making, that what the Ninth Circuit had done was set rules that are so vague and indeterminate that they didn’t know how they were going to apply them.

 

Prof. Andrew Hessick:  That’s right. And they don’t know how the Ninth Circuit’s going to apply them, and they’re also worried because they don’t know if it’s just limited to these kinds of no sleeping on the street laws. There are other things that we do that are involuntary. I mean, going to the bathroom, for example. I said that the police have at least sometimes have turned over to public urination laws as a substitute because they can’t enforce the no public camping laws, but unclear under the Ninth Circuit’s decision  whether those laws are allowed to be enforced.

 

      But I know at the rehearing en banc -- they denied rehearing en banc, but there were the oblique decisions, concurrences, and dissent from the denial. And they sort of got into a little bit of a fight whether or not the Ninth Circuit decision applies to those kinds of laws. And basically it comes down to -- well, not by its terms but by its logic. These jurisdictions, they face uncertainty not only with respect to the public camping but other laws that are sort of like them.

 

Hon. Eileen O’Connor:  Do you have any thoughts about why the Supreme Court -- as I said, everybody seemed to be really surprised that the Supreme Court denied certiorari. Do you have any thoughts about its reasons for that?

 

Prof. Andrew Hessick:  One can never know. We just don’t know inside the box. If I had to guess, the brief in opposition -- it was a very good brief in opposition. They pointed out the splits weren’t 100 percent clean. There are distinctions to be drawn. And they pointed out some vehicle problems like the case was effective -- it was interlocutory because the district court had granted summary judgement that ended the case, and then the Ninth Circuit decision reversed that, so the case is still ongoing. So it’s not a perfect vehicle.

 

      They also pointed out that Boise had taken the position that it would enforce its law only when there were beds available. If there were no beds available, they weren’t going to enforce it. They’d adopted that as their own policy. And so the opposition pointed out that, really, there was no reason to resolve this Eighth Amendment question because the Boise law did the same thing. It followed the Ninth Circuit’s reasoning.

 

      I think that’s probably a big why cert wasn’t granted. There are very good responses to those vehicle points, especially the point that the Boise law tracked the Ninth Circuit’s reasoning because although the brief in opposition says they track the Ninth Circuit’s reasoning, another part of the brief in opposition makes this point really hard that there will always be beds available under the way Boise has in practice enforced that law because one of the shelters says that it will always take people even when there’s not space available. So they were saying legally it tracks the Ninth Circuit, but in practice it doesn’t. So it was a good brief in opposition, and my best guess is that’s what happened.

 

Prof. Carissa Hessick:  I’m curious about whether the procedural issues, the non-Eighth Amendment issues, might have muddied the waters here because my understanding is that the split involved the Eighth Amendment issue more than anything else.

 

Prof. Andrew Hessick:  That’s right. There were some technical procedural things. I think that they could have gotten around that, but no doubt there’s a lot of complicating stuff along the way. And the Court’s always looking for a reason to say no.

 

Hon. Eileen O’Connor:  Any additional points before we open up for questions?

 

Prof. Andrew Hessick:  I want to add one last thing. From what I’ve heard in talking to people is that the uncertainty that comes from the decision for some of these jurisdictions, especially Los Angeles, that’s the one I’m most familiar with, it’s resulted in them being a little paralyzed, not wanting to adopt new programs because some of the programs that they’ve been thinking about — these are bridge to housing programs — they’ll provide temporary housing or shelters for homeless to get them into more permanent residence.

 

      In order to placate the neighborhoods around them, the city has agreed to enforce anti-encampment laws around those shelters. When they do that now, they face the threat of litigation because they don’t have enough beds for all of the homeless in Los Angeles. And it’s prohibitively expensive for them to be able to do that. They’re shy by tens of thousands of beds.

 

      I think that the reach of the opinion is beyond the terms of the opinions. There’s enough uncertainty with enough dollars at stake that Los Angeles and probably other municipalities have indicated hesitation to combat homelessness or to adopt certain programs that could be really useful in combatting homelessness because of the threat of litigation.

 

Prof. Carissa Hessick:  I’ll add one more thing, maybe in a slightly less pessimistic note, which is as Andy referenced before, law enforcement have an awful lot of tools at their disposal for dealing with people, especially people who find themselves on the street. Now, as Andy mentioned, those other tools might make the homeless people worse off. They might carry more serious consequences that have collateral consequences that will make their lives more difficult.

 

      But I do think that given the other tools that law enforcement have, their ability to use disorderly conduct statutes, their ability to use ordinances that have to do with the blocking  of traffic, for example, I do think that states and cities will be able to, nonetheless, deal with some of the worst problems that surround a large homeless population, or at least they could. And then I guess the question is whether they will.

 

Hon. Eileen O’Connor:  Interesting. One final question that I have -- was there any pushback on the Ninth Circuit’s ruling that attaching strings to the shelter or having the shelter be provided by a religiously affiliated group, that those beds shouldn’t count, did anybody push back on that?

 

Prof. Andrew Hessick:  In the amicus briefs, they might have. I’m honestly -- I don't know.

 

Hon. Eileen O’Connor:  I didn’t read them all, either. There were so many. [Laughter]

 

Prof. Andrew Hessick:  I will say, though, that the religious affiliation argument was one of the arguments that was brought up to deny cert in opposition. It was saying that that’s a vehicle problem because there’s a possibility of the Court having to deal with a thorny First Amendment issue.

 

Hon. Eileen O’Connor:  Carissa, you had talked about the difficulty for law enforcement and the fact that if a police officer comes upon a person who is sleeping on the sidewalk, the police officer under the Ninth Circuit’s opinion is charged with somehow knowing whether there was a bed for that person available. And I guess the other side of that would be that in smaller towns like the City of Boise where there are only two shelters, a person -- the person who doesn’t have a bed of his own could go two each of the two shelters and maybe get some sort of evidence that he’s been there and there’s no bed for him.

 

Prof. Carissa Hessick:  That’s right. One of the reasons that this case is so interesting, as Andy mentioned, is that Boise is probably one of the smaller jurisdictions dealing with these significant issues associated with homelessness. And so I suppose that the person who is being arrested for sleeping on the sidewalk could try to present that sort of evidence. But the rough and tumble way that the criminal justice system works, the truth of the matter is they almost certainly wouldn’t be able to get relief, which is to say they wouldn’t be able to stop the police officer from arresting them.

 

      There’d be the factual question that in an idealized world would be resolved at trial. But that’s not, as you know, what happens in the vast majority of cases. Instead, a defense attorney and a prosecutor negotiate about what to do. These cases would probably be dismissed or there would be a plea deal where the person would plead guilty in order to get relief so that they’re not sitting in jail.

 

      I appreciate that when the Ninth Circuit is talking about these sorts of things and when it goes up on cert, everyone’s question is how the law is supposed to operate in that idealized system. But the truth is these sorts of cases rarely get litigated. And in fact, some of the plaintiffs in this Boise case had had charges dismissed against them. They’d been arrested, they were kept in for a little while, and then they were let go because the charges were dismissed. So it would be difficult to make sure that individual defendants were having their particular rights vindicated. So it’s complicated.

 

      Chief Justice Roberts actually raised precisely this sort of issue in one of the vagueness cases that we’ve seen over the past few years where he said one of the problems with vague laws that have unfair enforcement standards is that most people who get caught up in these laws aren’t going to have a chance to challenge them in court, and that’s one of the reasons why it’s so necessary to have clarity in the law. These decisions are made very quickly on the streets with police officers, and then quickly in courtrooms as prosecutors and defense attorneys negotiate.

 

Hon. Eileen O’Connor:  The cruel and unusual punishment, if I remember the case correctly, amounted to a $25 fine and a night in jail instead of on the street. Isn’t that right?

 

Prof. Carissa Hessick:  So I think that some of them, it was time served, so it was depending on when they were arraigned. It was probably only a night or two. That’s right.

 

Prof. Andrew Hessick:  The civil side, the lack of clarity raises interesting repercussions, I guess, consequences too. I imagine, basically -- I could imagine an officer arresting someone and then that person later saying, “Hey, that violated the Eighth Amendment.” And then the officer saying, “Look, these circumstances are just difficult. I didn’t know exactly what was going on. I contacted the shelter and they said that there were beds available.”

 

      And I could see that there are going to be lots of qualified immunity issues coming out of this because they’re going to be acting under this veil of uncertainty, and it’s going to be really hard for them to figure out whether they were violating any clearly established law because they’re always going to have some level of uncertainty. That could lead to some interesting qualified immunity doctrines.

 

Wesley Hodges:  We do have two questions from the audience. First caller of the day, you are up.

 

Walter:  Hello, this is Walter. I’m a civil litigator in Montana. I guess my question or the perplexity that I’m pondering is this question about whether there’s a bed that a police officer might be asked to judge. At the end of the day, they’re saying there is a bed in a jail cell somewhere, and there’s obviously costs associated with that. And I guess I wonder if there were any arguments made about defining what a bed is within a shelter versus a jail or any consideration about the economic consequences of the choice between the two. I realize that question’s not super clear, but I’m hoping there might be something to work with.

 

Prof. Carissa Hessick:  That’s an interesting question. Obviously, the Ninth Circuit was thinking about these petitioners spending time in jail as being a punishment, a criminal punishment, and thus falling within the Eighth Amendment. But we know that not all time that people spend in jails or spend incarcerated is necessarily considered criminal punishment and necessarily receives the same sort of constitutional scrutiny.

 

      I’m thinking, for example, of pretrial detention. We say that that falls under the Fourth Amendment rather than the Eighth Amendment. But also the civil commitment laws that we have for dangerous offenders -- I’m thinking of the Kansas case where the state was permitted to keep someone incarcerated past the end of his sentence because it was styled as civil commitment rather than as criminal punishment.

 

      So I’d have to think about it some more, Walter. I think it’s a really fascinating question. But I suppose potentially one way for the City of Boise to deal with this sort of thing is to say that they could use their jail as an emergency shelter for people who otherwise are sleeping on the street, and they would not be subject to the same constitutional limitations, I would assume, including the Eighth Amendment, if they styled what they were doing as a civil intervention rather than as a criminal one.

 

Prof. Andrew Hessick:  Or if they framed it just in terms of, “Our jail is empty,” or it’s not full, at least, and therefore there are beds available in some sort of shelter. I think that’s a more nefarious way. It’s a really great question. I don’t remember seeing any briefing on this, but again, I didn’t read all of the volumes of amicus briefs. It was an amazing number of amicus briefs supporting the petition for cert, the most I can remember seeing. So there were a lot of arguments made, but I don’t remember seeing it.

 

Walter:  Thank you. I guess my thought is with the Boise situation, at least if they got rid of the fine and it was just a temporary hold for the night, then they would be giving a bed. Thank you so much.

 

Wesley Hodges:  We do have one question left in the queue. Here is our second caller.

 

Caller 2:  Hello, and thank you for a really interesting presentation. We lawyers sometimes get caught up in the current lingo of things, and two of the words we can’t seem to get beyond are -- one is homeless and the other is beds. I guess from the earlier generation, I had two uncles that went homeless during the Depression, and they went bumming, or one of them was considered a hobo. Nowadays, we use the terms mentally ill, addict, street people. Maybe in old times they called it a wayfaring stranger.

 

      On the bed side of it, they talk about hospital beds or jail beds or shelter beds, but that’s another kind of a way of measuring that’s abstract and doesn’t really seem to me address what’s real in this world because people can make a bed in everything from an unheated building to a tent, and they can step outside the jurisdiction and camp on the roadside someplace. And poor people have done that forever.

 

      To the question: Federalist Society people that I’ve known, lots of them, really good men and women, they’re favorably disposed to work and to charity and to self-discipline. Is there a way that using the original public understanding of cruel and unusual or the Constitution, some other part that we could get beyond the current framing of this whole thing? The so-called homeless issue is a problem, but is this even a fertile area for looking for ways to ameliorate the problems people are having?

 

Prof. Andrew Hessick:  So I think this is a great question. Before I even get to the Eighth Amendment part, the framing of it, I wanted to just touch really quickly on some of the issues that you raise about defining homelessness and defining beds. And in particular, defining beds, the Ninth Circuit opinion, it suggests that mats on the floor inside one of the shelters might constitute beds which then raises the question, well, mats on the floor, does that count -- does it count also if it’s a mat in an abandoned barn or something like that, hay? I was thinking of  those things because you were talking about your uncles. I imagine they did things like that. There are a lot of open questions about how exactly we’re going to define shelter and how we’re going to define bed. Do abandoned buildings count, or do they not count?

 

Prof. Carissa Hessick:  And I’ll add that I’m not sure that resorting to the original public meaning here of the Eighth Amendment is going to really help us resolve these problems. I appreciate Justice Scalia’s concurring opinion where he runs though the available evidence and concludes that the Eighth Amendment is really only aimed at methods of punishment. I’m not in a position to independently evaluate that conclusion or not.

 

      That said, I’ll say that for me at least, things here that push in opposite directions, for one is that these sorts of laws, these vagrancy laws, have been around for an incredibly long time. They predate this country. They were used in this country for the first couple hundred years and really only started being attacked in the middle of the 20th century. And a lot of them fell under, for example, vagueness challenges. I think trying to find how folks would have dealt with this sort of issue at the Founding probably because the world has changed so much and our understanding about these legal issues has changed so much may not ultimately pan out, I suppose, for lack of a better word.

 

Prof. Andrew Hessick:  I want to add on top of that that I guess I like more the idea of going back to an original public meaning for Eighth Amendment only because Eighth Amendment is -- no one quite knows what it means and it’s spawning out these independent doctrines Carissa mentioned earlier, the three separate strands. I think the Robinson case, cases like this one like the Martin case out of the Ninth Circuit, I think these are the worst of the Eighth Amendment cases because it doesn’t feel like the Eighth Amendment really is targeting substantive criminal prohibitions as opposed to punishments.

 

      It does speak in terms of punishments, but what I think ends up happening though is that we can clean up the Eighth Amendment and then this issue would probably get slotted over into some other amendment. I could imagine equal protection or due process or whatever it is. I think that’s a cleaner way of addressing it, and I think that the battle lines are more cleanly drawn so we would have some sensible doctrine to deal with this stuff. I’m not quite sure what would happen, but at the very least, I would like that. It would at least clean up that part of the law.

 

Prof. Carissa Hessick:  I’m not so sure that I agree with Andy, and that’s a polite way of saying I think he’s wrong. But I think that that’s mostly because a lot of the work that I do right now looks at how judges dealt with criminal statutes before the 20th century, and I think the reason that we don’t have a clear sense of what part of the Constitution that judges should be using to deal with laws that they think have big policy problems or fairness problems with them is because judges just used to strictly construe penal statutes, which is to say that they spent an awful lot of time pushing back on the policy choices that were made by the legislature.

 

      And so maybe we could develop some modern constitutional doctrines that could help us draw neat, clear lines. But if we’re talking about what the folks who wrote the Constitution would have envisioned, they probably would have envisioned the Ninth Circuit just going a different way here and construing the statute to mean something rather than it violated the Constitution.

 

Caller 2:  Is there any talk about when homelessness, if we want to call it that, is voluntary?

 

Prof. Carissa Hessick:  That gets really complicated because I think the way voluntary gets used can be -- there’s the colloquial understanding of what’s voluntary. Did you make choices without someone coercing you? And then there’s the legal actus reus like was this a muscle spasm or something like that? Again, not to make this sound too legal, but I think using the word voluntary can really complicate things because people might understand it to mean different things. And I imagine that the story of how someone became homeless probably differs from person to person.

 

Prof. Andrew Hessick:  For purposes of the Ninth Circuit decision, it suggests that if you don’t have the ability to get to an indoor bed, then the law can’t be enforced against you. And so if it’s voluntary homelessness in the sense that you have money and you have opted to go onto the street, I think that there’s a good argument that you have indoor beds available to you, be it a hotel or whatever, and so the law could be enforced against you. But as for people who voluntarily go into homelessness in that the sell everything and give away all their money and they have nothing left and they’re on the streets, the opinion reads very much like we would treat those people like the other homeless. It’s all about whether or not you have the ability to get to an indoor bed.

 

Wesley Hodges:  Next caller, you are up.

 

Kirk Mylander:  Hi there. My name is Kirk Mylander. I’m an attorney in Oregon, and I advise police a lot in how to abide by Martin v. Boise. And in defending cities in Oregon, we have a case that is piggybacking on Martin v. Boise. It’s called Blake v. Grants Pass. Grants Pass is a town of about 3,500 people right on I-5. They have no homeless shelters. They had some anti-camping ordinances.

 

      And this has now been certified as a class action by the judge in this case, which I think is the first one in the country like that. And the plaintiffs are seeking relief along the lines that not only are criminalization according to the Eighth Amendment illegal, but also any kind of civil fine is illegal due to Martin v. Boise. Grants Pass had a fine of $75 for camping in a public park illegally, and they’re arguing that even $75 is a grossly disproportionate civil fine and thus violates the Eighth Amendment, which is, I think, extending Martin v. Boise from where it was.

 

      So my questions are have you seen any other cases where advocates are trying to extend Martin v. Boise, kind of like we are here, or where you’ve advised police in how to abide by Martin v. Boise?

 

Prof. Carissa Hessick:  I certainly haven’t advised police. I’m interested to hear more about what’s going on in Oregon. [Laughter]

 

Prof. Andrew Hessick:  I also am not aware of other class actions. I understand the argument that Robinson says any punishment whatsoever for being a drug addict is a violation of the Eighth Amendment, and insofar as Martin was resting on Robinson, I understand the logic, but it should preclude fines as well. I haven’t looked into this precise issue, but it’s not immediately obvious to me that civil fines should be treated exactly like criminal fines. It sounds like something they should look at. Very interesting.

 

Prof. Carissa Hessick:  Yeah, just off the top of my head, I would think that to the extent that the Eighth Amendment has been used for things related to fines, they’re not relying on cruel and unusual, the text cruel and unusual. They’re relying on the text about excessive fines. So that’s interesting.

 

Kirk Mylander:  We, being one of the states along the west coast that has large homeless camping populations, have many cities who are facing these problems where you go into the city and there’s just tents spread out all around. Many of these cities have anti-camping ordinances and try to enforce them, and we’ve got some public interest law groups who are very much trying to extend Martin v. Boise. In this one, it’s just getting underway, but the plaintiffs have moved for summary judgement already, arguing that Martin is dispositive and that a mere fine violates the Eighth Amendment.

 

      And when we’ve been teaching police and cities in the past how to abide by this, one of our pieces of advice was don’t criminalize it. You can offer a civil fine. Don’t try to get cute and say that the failure to pay the fine then becomes criminal or the failure to show for the civil citation becomes criminal. Keep it civil. It’s almost as if there’s no way to enforce an ordinance like this legally at all.

 

Prof. Andrew Hessick:  There are major problems, I agree. One thing that I keep thinking about is there’s that footnote that says -- the Ninth Circuit said, “Hey, we’re not saying that you can never enforce these things. There can be time and place manner restrictions.” And that opens the door to do you shove everyone -- that was not a nice way of saying it. You force everyone to go over to a particular segment on the edge of the city or something like that. That’s not a good solution. I’m just trying to think of ways that I would approach the problem.

 

Kirk Mylander:  Final comment is we have police who say, “Okay, I’ve got to call shelters and see how many beds are available. I have to talk to the person who I may cite and see if they have any religious objections to any of the shelters who have a space.” And it’s like they’re turned into something akin to a dating app trying to be matchmakers between the homeless person and the various shelters with various length of time restrictions, religious restrictions. And they just throw up their hands and say it’s unenforceable.

 

Prof. Andrew Hessick:  I completely believe that. And I’ll say those aren’t the only restrictions I imagine would be a problem. If there’s sobriety restrictions, if there are addiction restrictions, if there are prior felony restrictions, I mean, the list goes on and on of different restrictions that I can imagine a shelter wanting to have in place in order to keep people safe or to have particular people coming in. And that whole list, all of them have to be accounted for.

 

Kirk Mylander:  Yes. Families and pets are another one.

 

Prof. Carissa Hessick:  Oh, yeah.

 

Wesley Hodges: That is the end of our queue. And I want to turn the mike back to Lee to see if you have any questions for our panelists or any closing thoughts for the day.

 

Hon. Eileen O’Connor:  I want to give the panelists the opportunity for some closing thoughts, but first, thank Kirk Mylander for letting us know that Martin v. City of Boise is indeed wreaking the havoc that people were predicting. Andy, do you want to make some final comments?

 

Prof. Andrew Hessick:  First, thank you for having us on to talk about this. And I also want to say there are many, many other cases like this we heard  just even now from one of the callers. But if you do a search for Martin in the Ninth Circuit, the district courts, there are many decisions already that have been dealing with Martin and talking about how Martin affects various laws. So even though cert was denied, I am positive that this is not the end of things.

 

Hon. Eileen O’Connor:  Thanks so much for your participation, both of you. You were really, really informative.

 

Wesley Hodges:  And on behalf of The Federalist Society, I would also like to thank each of you for the benefit of your valuable time and expertise. We welcome all listener feedback by email at [email protected]. We are now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.