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City of Grants Pass, Oregon v. Johnson

Oral argument transcript · No. 23-175 · October Term 2023 · argued April 22, 2024 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 23-175, City of Grants Pass versus Johnson. Ms. Evangelis. ORAL ARGUMENT OF THEANE D. EVANGELIS ON BEHALF OF THE PETITIONER

Theane D. Evangelis: Mr. Chief Justice, and may it please the Court: Like cities nationwide, Grants Pass relies on camping laws to protect its public spaces. These generally applicable laws prohibit specific conduct and are essential to public health and safety. The Ninth Circuit tied cities' hands by constitutionalizing the policy debate over how to address growing encampments. Its holding that the Eighth Amendment bars Grants Pass from enforcing its camping laws is wrong for three reasons. First, the Cruel and Unusual Punishments Clause governs which punishments are permitted, not what conduct can be prohibited. Second, no precedent supports the Official 1 Ninth Circuit's rule. Respondents and the United States abandon its reliance on Powell. Instead, they misread Robinson to bar any punishment for involuntary conduct that's linked to a status. But Robinson held only that states cannot outlaw the status of drug addiction. It made clear that they can prohibit conduct like drug use. This Court should not rewrite Robinson six decades later. Third, the Ninth Circuit's approach has proven unworkable. The Eighth Amendment does not tell courts who is involuntarily homeless, what shelter is adequate, or what time, place, and manner regulations are allowed. But, in 35 suits and counting, federal courts are now deciding everything from the exact size of campsites in San Rafael to the adequacy of empty beds at specific shelters, like the Gospel Rescue Mission in Grants Pass, and cities are struggling to apply arbitrary, shifting standards in the field. This Court should reverse and end the Ninth Circuit's failed experiment, which has fueled the spread of encampments while harming those it purports to protect. Official 1 I welcome the Court's questions.

Justice Thomas: Do you consider these civil or criminal penalties?

Theane D. Evangelis: They are both, Justice Thomas. There is criminal trespass and civil --

Justice Thomas: Is that involved in this case?

Theane D. Evangelis: Yes, it is.

Justice Thomas: To what extent? I mean, has any of the Petitioner's -- any of the parties here been subject to criminal trespass?

Theane D. Evangelis: Well, they are at issue in the case. The district court enjoined them. And, yes, they -- they do apply here. They are for recidivist offenses.

Justice Thomas: But which party has been held accountable for criminal trespass?

Theane D. Evangelis: Yes. So, here, none of the individuals who are currently in the case.

Justice Thomas: So what's involved in this case?

Theane D. Evangelis: For Logan and Johnson, civil, the civil penalties.

Justice Thomas: And so what -- is it Official 1 the anti-camping, or what is it?

Theane D. Evangelis: Yes, it is.

Justice Thomas: Okay. So that's civil, or is it criminal?

Theane D. Evangelis: The camping ordinance is civil. And then, for repeat offenders, it's punishable --

Justice Thomas: Okay. So --

Theane D. Evangelis: -- by criminal trespass.

Justice Thomas: But we're not talking about repeat offenders right now, right?

Theane D. Evangelis: That's correct.

Justice Thomas: So -- and then -- so -- so then have we ever applied the Eighth Amendment to civil penalties?

Theane D. Evangelis: Not the Cruel and Unusual Punishments Clause, no.

Chief Justice Roberts: Counsel, what will the City do if you don't prevail here?

Theane D. Evangelis: The City's hands will be tied. It will be forced to surrender its public spaces, as it has been. Unfortunately, beds are going unused at the Gospel Rescue Mission. People are not getting the help that Official 1 they need. The City is under an injunction here, and it's unable to rely on these basic ordinances. And the Ninth Circuit's decisions give cities like Grants Pass no guidance about how they can navigate this very challenging area. The Ninth Circuit has effectively imposed a municipal code under the Ninth Circuit's Martin rule to regulate what the City can do in its public spaces.

Justice Sotomayor: Counsel, can I just stop you a moment? The Gospel unused beds, they're less than a hundred, right?

Theane D. Evangelis: That's correct.

Justice Sotomayor: And there's thousands of homeless?

Theane D. Evangelis: There are, I believe, as many as 600 in Grants Pass according to the district court's --

Justice Sotomayor: But there's still only less than a hundred beds?

Theane D. Evangelis: That is right.

Justice Sotomayor: Now can I stop you a moment? You are not asking us to overturn Robinson, correct? Official

Theane D. Evangelis: We think Robinson was wrongly decided and should not be extended, but we don't think that the Court needs to overrule it here --

Justice Sotomayor: All right. Assuming it's there --

Theane D. Evangelis: -- because it's --

Justice Sotomayor: -- it prohibits you criminalizing homelessness, right? So what you do is say only homeless people who sleep outdoors will be arrested? That's the testimony of your chief of -- of police, two -- and two or three officers, which is, if you read the crime, it's only stopping you from sleeping in public if you -- for the purpose of maintaining a temporary place to live. And the police officers testified that that means that if a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep, you don't arrest them. You don't arrest babies who have blankets over them. You don't arrest people who are sleeping on the beach, as I tend to do if I've been there a while. You only arrest people who don't have Official 1 a second home. Is that correct?

Theane D. Evangelis: Well --

Justice Sotomayor: Who don't have a home?

Theane D. Evangelis: So, no. These laws are generally applicable. They apply to everyone.

Justice Sotomayor: Yeah, that's what you want to say. Give me one example, because your police officers couldn't, and they explicitly said, if someone has another home -- has a home, and is out there and happens to fall asleep, they won't be arrested -- fall asleep with something on them.

Theane D. Evangelis: Well, Joint Appendix, page 98, is one example of a citation issued to a person with a home address. But, more importantly, I think what we're getting at here is that these laws regulate conduct of everyone. There's nothing in the law that criminalizes homelessness. I really want to --

Justice Sotomayor: That's what -- that's what you say, but if I look at the record and see differently, it's a different argument, isn't it? Official

Theane D. Evangelis: Grants Pass policy actually very clearly says that being homeless is not a crime. And that's in --

Justice Sotomayor: Well, I -- I know that's what you say, but if you're enforcing it only against the homeless, I will suggest that you look -- there's one brief -- let me see if I can find it -- that talks about this. At any rate, I'll find it later and -- and just mention it. The second thing I want to ask you is you seemed to start by saying that the Eighth Amendment is limited to forms of punishment and not to the nature of punishment, the proportionality issue. There also is a number of amicus brief that lays out for us that from the Magna Carta through the founding, through state laws, through Weems, which was in 1910, through Trop later in the century, that throughout all of that, both the English, American colonies, this Court has had some form of proportionality in their Eighth Amendment jurisprudence. You're asking us to ignore all of that history. Official

Theane D. Evangelis: No, we're not, Justice Sotomayor. What we are saying is that this case doesn't implicate proportionality. We're not asking the Court to take a position on whether it's a proper inquiry under the Eighth Amendment. For example --

Justice Sotomayor: Oh, yes. Yes, you are, because you're saying that the only thing that's prohibited by the Eighth Amendment is the form of punishment. But, in those cases and in our history, we have said that certain punishments, Trop, for example, can't be done.

Theane D. Evangelis: That's right. And the Court has always looked at, if a particular punishment is considered too extreme or categorically so, as in the death penalty in some cases, the Court looks at whether a lesser punishment would be acceptable. Again, it's looking at punishment, and that's where the inquiry focuses. Here, only -- what -- what the Respondents are asking this Court to do is to extend Robinson beyond --

Justice Sotomayor: Do you have hotels that are valued at 200, $250 in your city? Official

Theane D. Evangelis: I -- I --

Justice Sotomayor: Just answer yes or no.

Theane D. Evangelis: I don't -- I don't know.

Justice Sotomayor: Well, let's assume because, even in New York City, which may be the most expensive city in the nation or close to it, there are hotels that are less than that or at that price. If a homeless person had that kind of money, do you -- don't you think they'd stay in a hotel?

Theane D. Evangelis: So, Justice Sotomayor, the -- the difficulty here is that this rule that the Respondents are proposing rests on whether someone's conduct is involuntary. Most importantly here, we're talking about conduct, so I want to talk about how this is completely distinguishable from Robinson. The point --

Justice Kagan: So can I talk about that, Ms. Kapur? So taking Robinson as a given, could you criminalize the status of homelessness?

Theane D. Evangelis: Well, I have a couple Official 1 points to that.

Justice Kagan: It's just a simple question.

Theane D. Evangelis: So Robinson doesn't address that and I think it's completely distinguishable. So Robinson was a --

Justice Kagan: Could you criminalize the status of homelessness?

Theane D. Evangelis: Well, I don't think that homelessness is a status like drug addiction, and Robinson only stands for that.

Justice Kagan: Well, homelessness is a status. It's the status of not having a home.

Theane D. Evangelis: I actually -- I disagree with that, Justice Kagan, because it is so fluid, it's so different. People experiencing homelessness might be one day without shelter, the next day with. The federal definition contemplates various forms.

Justice Kagan: At the period with which -- in the period where -- where you don't have a home and you are homeless, is that a status?

Theane D. Evangelis: No.

Justice Kagan: Could you criminalize Official 1 that?

Theane D. Evangelis: No, it's not. So Robinson talked about --

Justice Kagan: So you couldn't just --

Theane D. Evangelis: -- addiction like a disease.

Justice Kagan: -- you -- you -- you could criminalize just homelessness?

Theane D. Evangelis: So I -- I want to say first a couple of things. So I think that for the -- the --

Justice Kagan: I mean, that's quite striking to --

Theane D. Evangelis: No, I don't. We -- I --

Justice Kagan: -- that you think that you can criminalize just homelessness.

Theane D. Evangelis: No, we're not saying that homelessness is a status, but, most importantly, I think the Eighth Amendment --

Justice Kagan: Well, you're not saying --

Theane D. Evangelis: -- is the wrong way to focus on this question. Official

Justice Kagan: I -- I -- it's really a simple question. Can you criminalize homelessness? And you're suggesting, yes, you could.

Theane D. Evangelis: No, we do not criminalize homelessness. I'm not saying --

Justice Kagan: Could you criminalize homelessness? Not tell me what you do do, what you don't do. Could you?

Theane D. Evangelis: So I think there would be due process problems and vagueness problems. I don't think there's an Eighth Amendment problem in the sense of Robinson because that was a limited decision where the holding was solely about a disease of addiction. The Court was very clear about distinguishing between addiction and possession or use.

Justice Jackson: But, count -- count --

Theane D. Evangelis: And so --

Justice Kagan: I -- I -- you're right that it's a different status that was involved in Robinson. But Robinson made clear that there was a category of cases which were status offenses, which were different from conduct Official 1 offenses. And when you started off here today, you said we're just criminalizing conduct. So, to tell you the truth, I thought that this was going to be a question where you would say, no, of course, we can't criminalize a status, but there's conduct here. And then I was going to say: What is the conduct here? But you didn't say that. You said you could criminalize even the status of homelessness, and that suggests to me that -- that you're off on the wrong track in thinking about this issue.

Theane D. Evangelis: So, Justice Kagan, I think the -- the point where we are disagreeing here is really about whether the Eighth Amendment is the right framework for this discussion.

Justice Kagan: Well, the Eighth Amendment was the framework in Robinson.

Theane D. Evangelis: And I --

Justice Kagan: So taking Robinson as a given, where Robinson said the Eighth Amendment protects you against status-based crimes -- Official

Theane D. Evangelis: I don't --

Justice Kagan: -- that's what the question is.

Theane D. Evangelis: -- I don't think Robinson extends that far. I think Robinson itself was cabined -- and I think the Marshall plural -- Justice Marshall's plurality in Powell goes into a discussion about this and how that was the right line.

Justice Kagan: Okay. What is the conduct here?

Theane D. Evangelis: That was -- the conduct is camping, establishing a campsite. And it's the same as in the federal regulations that the National Park Service relies on.

Justice Kagan: So I didn't think that that was the -- the conduct. I thought that the only conduct here was sleeping outside with a blanket.

Theane D. Evangelis: No, it is the conduct of establishing a campsite, which includes making a bed with bedding or other materials --

Justice Kagan: Well --

Theane D. Evangelis: -- and the federal law is -- Official

Justice Kagan: -- a campsite suggests something different to people. It suggests a tent. It suggests a conglomeration of people. You know, tent camps, if you will. But your ordinance does not just prohibit that. Your ordinance prohibits a single person who is homeless, so does not have another place to sleep, that's a status, I don't have another place to sleep, a single person sleeping instead in public with a blanket. That's what I understand your statute to do. Is that not what your statute does?

Theane D. Evangelis: The statute does -- does not say anything about homelessness. It's a generally applicable law. One more -- it -- it's very important that it applies to everyone, even --

Justice Kagan: Yeah, I -- I got that.

Theane D. Evangelis: -- people who are camping.

Justice Kagan: But it's a single person with a blanket.

Theane D. Evangelis: And --

Justice Kagan: You don't have to have a tent. You don't have to have a camp. It's a Official 1 single person with a blanket.

Theane D. Evangelis: And sleeping in conduct is considered -- excuse me, sleeping in public is considered conduct. And this Court -- this Court in Clark discussed that, that that is conduct. Also, the federal regulations --

Justice Kagan: Well, sleeping is --

Theane D. Evangelis: -- are very --

Justice Kagan: -- a biological necessity. It's sort of like breathing. I mean, you could say breathing is conduct too, but, presumably, you would not think that it's okay to criminalize breathing in public.

Theane D. Evangelis: I would like to point to the federal regulations which I brought up.

Justice Kagan: And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.

Theane D. Evangelis: Well, two points. So, first, even the federal regulations prohibit even sleeping. They don't even require any materials, it -- including but -- but not necessary under the federal regulation. So this is conduct that is Official 1 understood by jurisdictions nationwide and even the federal government to be conduct that is prohibited, and so I want to make that point.

Justice Kagan: See, I'll --

Theane D. Evangelis: The second point --

Justice Kagan: -- I'll tell you the truth, Ms. Kapur. I think that this is -- this is a super-hard policy problem --

Theane D. Evangelis: It is.

Justice Kagan: -- for all municipalities. And if you were to come in here and you were to say, you know, we need certain protections to keep our streets safe and we can't have, you know, people sleeping anyplace that they want and we can't have, you know, tent cities cropping up, I mean, that would create one set of issues. But your ordinance goes way beyond that. Your ordinance says as to a person -- and I understand that you think it's generally applicable, but we only come up with this problem for a person who is homeless, who has the status of homelessness, who has no other place to sleep, and your statute says that person cannot take himself and himself only and, Official 1 you know, can't take a blanket and sleep someplace without it being a crime. And -- and -- and that's, you know -- well, it just seems like Robinson. It seems like you're criminalizing a status.

Theane D. Evangelis: Well, it -- it is not. And we agree with you that this is a very difficult policy question, and that's exactly --

Justice Kagan: But that --

Chief Justice Roberts: Counsel --

Justice Kagan: -- it isn't.

Theane D. Evangelis: -- why the Eighth Amendment --

Justice Jackson: But can -- can you answer why?

Chief Justice Roberts: Can --

Justice Jackson: Why is it not? Just -- I mean, Justice Kagan has put -- laid out one of the essential problems here, which is that you're making a distinction between status and conduct. Okay. We see that. And you keep saying this is conduct. Can you explain why?

Theane D. Evangelis: The actus reus element, that's exactly what was missing in Official 1 Robinson and that's what we have here. And that's why that law was so unique. It's a very peculiar --

Justice Jackson: So it seems to me that Robinson actually hurts you and not helps you in the following sense. You know, it seems both cruel and unusual to punish people for acts that constitute basic human needs. So, here, unlike in Robinson, where, you know, you had at least the sort of disease state, drugs and -- and -- and the like, and potentially culpable acts that relate to that disease state, here, we're talking about sleeping that is universal, that is a basic function. And so I guess what I don't understand is, in this circumstance, why that particular state is being considered conduct for the purpose of -- of -- of punishment.

Theane D. Evangelis: Well, I think that just illustrates the line-drawing problems because, if you look at biological necessities and what a person needs to do, you know, the -- the Ninth Circuit's decisions in this area would allow --

Justice Jackson: Can I give you a Official 1 hypothetical?

Theane D. Evangelis: -- all sorts of behavior.

Justice Jackson: Can I give you a hypothetical?

Theane D. Evangelis: Yes. Thank you.

Justice Jackson: Okay. So suppose the relevant ordinance prohibited eating on public property rather than sleeping or camping. We're talking about eating. And the city, for very, you know, rational reasons, has determined that when people eat outdoors, it creates problems with trash and rodents and the like, and so it bans eating in public places and it punishes violators. Now, just as here, that seems generally fine because most people have restaurants that they can go to, most people have houses that they can eat in. But some people don't have that option. They have to eat in public because they're unhoused and they can't afford to go to a restaurant. So is -- is your argument, same result, no Eighth Amendment problem, no problem with the city banning eating in public, even Official 1 though that's a public function -- I mean, excuse me, even though that's a human necessity that everyone engages in, and, really, what's happening is you're only punishing certain people who can't afford to do it privately?

Theane D. Evangelis: Well, it sounds like -- I -- I take for a moment that you're not saying the law -- that the law draws lines on any sort of irrational basis or any equal protection issue --

Justice Jackson: No. The city has a perfectly rational basis.

Theane D. Evangelis: -- and --

Justice Jackson: When people eat in public --

Theane D. Evangelis: Yes.

Justice Jackson: -- there is trash, there are rodents, there are problems. So the city says what we're going to do is we're going to say no eating in public. What I'm concerned about from your argument is the suggestion -- you know, you call it conduct, I appreciate that, but what we have happening in operation is that people who are able to afford doing this thing that's a basic Official 1 human need privately are okay. They're not punished for it. But people who don't have any other option or opportunity except for to do it in public are the ones who are being targeted by this statute.

Theane D. Evangelis: So two responses. First, I think the Eighth Amendment is the wrong way to look at it. Someone might have a due process challenge to a law like that if there is a deeply entrenched liberty interest.

Justice Jackson: But punishment is happening. In my hypothetical, people are going to jail because they're eating in public.

Theane D. Evangelis: So, in that case --

Justice Jackson: Why is the Eighth Amendment not implicated?

Theane D. Evangelis: -- in that case, you would have a defense under Oregon law, for example, a necessity defense.

Justice Gorsuch: Counsel, on -- on -- on -- on --

Theane D. Evangelis: And I want to get to that on the camping --

Justice Gorsuch: I'm sorry to interrupt. Official

Theane D. Evangelis: Yes.

Justice Gorsuch: But -- but, on that point, I think we're having some debate about where to lodge the defense, whether it's under the Eighth Amendment or under the Fourteenth Amendment. But do you concede that there are instances in which a necessity defense, long recognized at common law, would apply to eating in public, sleeping in public, or other things like that?

Theane D. Evangelis: Yes, I agree. And, actually, here, in the case of camping, Oregon law recognizes a necessity defense, so as a matter of state law and policy -- and, again, that goes to the difficult policy questions -- that's why states are able to address the needs of what this issue raises. And so, for something under Oregon's state law, a person could raise that defense under the necessity defense, and then, if that's not enough, if they believe that that's not broad enough somehow --

Justice Gorsuch: And you're saying --

Theane D. Evangelis: -- they can argue due Official 1 process.

Justice Gorsuch: -- Oregon law has that defense --

Theane D. Evangelis: Yes.

Justice Gorsuch: -- already built into it?

Theane D. Evangelis: That's correct.

Justice Gorsuch: All right. Thank you.

Justice Jackson: Let me ask you about Oregon law, because one sort of threshold concern that I have about this case is I understand that Oregon has enacted a statute, a new statute, that seems to address this very issue, so I'm trying to understand why this is -- is still a live case. As I read the new law, it essentially codifies Martin's rule, that it says something about all regulations of this nature have to be objectively reasonable as to time, place, and manner with regard to -- with regards to people experiencing homelessness. So it seems like the state has already precluded Grants Pass from doing the sort of thing it's doing here, so why do we need to Official 1 weigh in on that?

Theane D. Evangelis: Well, no, it hasn't. So, first, both sides agree that it -- this case is not moot. There is no state law challenge in this case. But, more importantly, that standard is very different from Martin, and there's never been a challenge to our laws.

Justice Jackson: What about constitutional avoidance? So, fine, it's not moot, but wouldn't our principle be that we don't need to reach the constitutionality of this issue if there's another possible way of resolving it because the state has addressed it?

Theane D. Evangelis: Well, not at all. So the state's law is very different. And we believe our law is satisfied. But, more importantly, the fact that the state is acting here is a good thing. We agree that states should be able to make policy and to weigh all of the competing concerns. And, here, the -- the need to reverse Martin is so critical because laws like ours, they really do serve an essential purpose. They protect the health and safety of everyone. It is not safe to live in encampments. It's Official 1 unsanitary. We see what's happening. And there are the -- the harms at the encampments themselves on those in them and outside. We know this. The federal government has cleared encampments here in the capital in McPherson Square. So this is an urgent problem. And also, there are downstream effects of all the other things that flow from it, but it is very important here to understand that the state laws and the --

Justice Jackson: So is it your argument that the Eighth Amendment has nothing to say about how the City responds to such problems? I mean, suppose the City decided that it was going to execute homeless people. I mean, very extreme, I know, but it would solve the problems that you're talking about.

Theane D. Evangelis: Well, that -- that would be --

Justice Jackson: Do we have an Eighth Amendment issue in that circumstance?

Theane D. Evangelis: Yes. I -- I think --

Justice Jackson: Why?

Theane D. Evangelis: -- there, you look at the punishment. That -- again, here, we're Official 1 looking at the punishment, which is low-level fine --

Justice Gorsuch: That -- that would be both cruel and unusual, wouldn't it?

Theane D. Evangelis: I -- I think it would -- it would be. Yes, I think it -- it absolutely would.

Justice Gorsuch: Why -- why not just yes to that? (Laughter.)

Theane D. Evangelis: Yes. Thank you. Thank you, Justice Gorsuch.

Justice Barrett: Counsel, can I ask you a question about the scope of your ordinance? So, as Justice Kagan was pointing out, this -- this criminalizes sleeping with a blanket at a minimum, right?

Theane D. Evangelis: Yeah.

Justice Barrett: Correct? But, I -- as I understand it, after this decision and -- and maybe after Martin before that, there was some question about whether it also criminalized having fires, campfires, tents. Can you talk a little bit about that and what the scope of it is? Does the Official 1 Constitution then make it impossible for a city to limit the use of fires and encampments, tents, those kinds of temporary shelters?

Theane D. Evangelis: It really does because the rationale of Martin, the -- the argument that it's a biological necessity to sleep outside, the Respondents argue a blanket is necessary in Oregon. Some might argue a tent and a fire is necessary in North Dakota. The Eighth Amendment really doesn't give us any answers to what cities can and can't prohibit. It's really administratively impossible for cities on the ground, as well as for courts, to administer. So we're seeing --

Justice Sotomayor: I'm sorry. This -- we have nothing to do with fires or tents. That was exempted under the district court's injunction, and the circuit court didn't require that. We're talking only about sleeping with a blanket.

Theane D. Evangelis: Well, I -- I --

Justice Sotomayor: So let's narrow it to what it is. I agree there might be other cases in the Ninth Circuit that are not rational, and I don't mean to throw aspersions Official 1 at -- at those holdings, but some of them are not permitting time/place restrictions. Let's go beyond that. Let's go here. Here, you're not precluded from prohibiting fires. You're not precluded from prohibiting tents. What's at issue is are you prohibited from keeping -- having someone wear a blanket anywhere in the city. Your intent was to remove -- stated by your mayor, intent is to remove every homeless person and give them no public space to sit down with a blanket or lay down with a blanket and fall asleep.

Theane D. Evangelis: That's not the intent of the law. And I would like to --

Justice Sotomayor: Well --

Theane D. Evangelis: -- address that point because the other side has --

Justice Sotomayor: -- why don't you answer the basic question.

Theane D. Evangelis: Yes. So --

Justice Sotomayor: It's not about fires. It's not about tents. It's about not being -- a time and place restriction about eliminating all choices. Official

Theane D. Evangelis: So we think that it is harmful for people to be living in public spaces on streets and in parks, whatever bedding materials. When humans are living in those conditions, we think that that's not compassionate and that --

Justice Sotomayor: Oh, it's not, but --

Theane D. Evangelis: -- there's no dignity in that. We -- we don't.

Justice Sotomayor: -- neither is -- neither is providing them with nothing --

Theane D. Evangelis: Well, we --

Justice Sotomayor: -- to alleviate that situation.

Theane D. Evangelis: This is a difficult policy question, Justice Sotomayor. It -- it is. And --

Justice Sotomayor: Where do we put them if every city, every village, every town lacks compassion --

Theane D. Evangelis: We --

Justice Sotomayor: -- and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves, Official 1 not sleeping?

Theane D. Evangelis: So this is -- a necessity defense, as I mentioned, under Oregon law is available. States are able to address these concerns. This is a complicated policy question. We believe that the Eighth Amendment analysis, to go back to it, focuses on the low-level fines.

Justice Sotomayor: What's so complicated about letting someone somewhere sleep with a blanket in the outside if they have nowhere to sleep? The laws against defecation, the laws against keeping things unsanitary around yourself, those have all been upheld. The only thing this injunction does is say you can't stop someone from sleeping in a public place without a blanket.

Chief Justice Roberts: Why don't you answer and then we'll move on to the next round, and you can be thinking about an answer to Justice Sotomayor while they -- we move into a different --

Theane D. Evangelis: Thank you.

Chief Justice Roberts: -- stage of the argument. Official 1 Is being a bank robber a status?

Theane D. Evangelis: No. I would say that -- well -- well, if -- if your question is asking would it be permissible to punish being a bank robber, I think that would have vagueness problems probably.

Chief Justice Roberts: Well, it would be someone who robbed a bank. That doesn't sound vague.

Theane D. Evangelis: Well, I don't -- I -- I don't think that it is a status in the sense of Robinson, which, again, I -- I want to just focus on what we think Robinson stands for, and it's only its narrow holding about addiction. And the -- there, it was the status of being an addict without any mens rea. So a law like that -- excuse me, without any actus reus. A law like that is problematic. Without an actus reus, I think it would probably have vagueness problems, due process problems. However, the Eighth Amendment, this entire exercise under Robinson is the only time this Court has ever evaluated the substantive criminal law, and it raises all of these line-drawing problems. And the fact that -- I'm Official 1 not here to defend Robinson. As a matter of first principles, we don't agree with it. We think it was wrongly decided. We're just saying that it is so far removed -- that our laws are so far removed from what was at issue in Robinson that it just isn't implicated here.

Chief Justice Roberts: So, if someone is homeless for a week and then finds available shelter, is that person homeless when he's in the shelter?

Theane D. Evangelis: Under federal law, the HUD regulations, he is actually considered homeless. That shows the fluidity and the different ways of --

Chief Justice Roberts: Putting the HUD regulations to one side, can someone who is sleeping in a shelter be considered homeless?

Theane D. Evangelis: Some would say yes, that someone who --

Chief Justice Roberts: What would you say?

Theane D. Evangelis: I -- I would say that at that point he is sheltered and homeless. I think he -- he -- that -- that is also --

Chief Justice Roberts: All right. Official 1 Let me make it easier. What if he buys a home or finds a home or is given a home? I mean, is he homeless --

Theane D. Evangelis: No, he is --

Chief Justice Roberts: -- at that point?

Theane D. Evangelis: -- he is not. So for -- what -- what's at issue in this case is --

Chief Justice Roberts: So you think the status of homelessness can change from one time to another?

Theane D. Evangelis: Yes, I do. I think it's very fluid.

Chief Justice Roberts: Is that consistent with the definition of "status" in Robinson?

Theane D. Evangelis: No. So Robinson treated addiction as a disease and as something that -- and -- and many believe that addiction is something that someone has with them forever and -- and it's a struggle. So that is a very different situation. And, here, if someone has shelter -- let's say they were offered shelter yesterday and they refused it, and then today, when Official 1 someone comes around and tells them that they're not permitted to camp, are they involuntarily there if they refused shelter yesterday? That's the question the Eighth Amendment does not answer. This is very complex. What if there is a bed available in the Gospel Rescue Mission, but like Ms. Johnson, a person doesn't wish to leave their pet? Her Rottweiler's not permitted there. So that is a difficult question for a person and a difficult policy question, but --

Chief Justice Roberts: Thank you.

Theane D. Evangelis: -- a person's status -- yes.

Chief Justice Roberts: Thank you, counsel. Justice Thomas?

Justice Thomas: Robinson actually included a crime of, as I read it, "either to use narcotics or to be addicted to the use of narcotics," and the Court was concerned about being -- the status of being addicted to the use. Is there a crime here for being homeless? Official

Theane D. Evangelis: No, there is not.

Chief Justice Roberts: Justice Alito?

Justice Alito: Robinson presents a very difficult conceptual question. Do you think that someone who is a drug addict is absolutely incapable of -- that all people who are drug addicts are absolutely incapable of refraining from using drugs?

Theane D. Evangelis: Well, I think that for some, that may be true, and for some, perhaps they can abstain. But that's a question of free will and agency that's true of all -- every law and what conduct we choose to regulate. That's a --

Justice Alito: All right. Then compare that with a person who absolutely has no place to sleep in a particular jurisdiction. Does that person have any alternative other than sleeping outside?

Theane D. Evangelis: So I think we'd have to ask all the questions I mentioned earlier about what alternatives they might have had yesterday --

Justice Alito: They have --

Theane D. Evangelis: -- and how they ended Official 1 up there.

Justice Alito: -- they have none. They have absolutely none. There's not a single place where they can sleep.

Theane D. Evangelis: If that's true, then that may be the case, and in that case, at least in Oregon, they would have a defense of necessity.

Justice Alito: So the point is that the connection between drug addiction and drug usage is more tenuous than the connection between absolute homelessness and sleeping outside.

Theane D. Evangelis: Well, I -- I think, in -- in Robinson, again, the Court did draw that line, but, here, the Respondents are saying that the two are really the same, that camping outside, sleeping outside, and being homeless are two sides of the same coin. We think that that's wrong. It's collapsing the status that they claim into the conduct. So we think the conduct here is very clear because it applies generally to everyone. The law does not say on its face it is a crime to be homeless. I just want to -- Official

Justice Alito: All right.

Theane D. Evangelis: -- make that --

Justice Alito: Thank you.

Theane D. Evangelis: -- very clear. Thank you.

Chief Justice Roberts: Justice Sotomayor?

Justice Sotomayor: It was the brief of Criminal Law and Punishment Scholars that I was referencing earlier. I want to go back to Justice Thomas's beginning question. As I understood it, the Ninth Circuit never reached the excessive fines question presented by this case, correct?

Theane D. Evangelis: That's correct.

Justice Sotomayor: So that's still open. And you didn't seek cert on that issue?

Theane D. Evangelis: That's correct.

Justice Sotomayor: All right. Assuming that there is no standing, I understand one of the appellees died, the one who was camping outside died, during the pendency of this appeal. And there are two other named plaintiffs. I -- I know they have fines on them. I'm not sure that either of them has any Official 1 criminal -- crimes charged against them. Where does that -- put this appeal? Where does that put this case?

Theane D. Evangelis: Sure. Well, the case --

Justice Sotomayor: Should we be vacating and remanding to see if there is --

Theane D. Evangelis: No.

Justice Sotomayor: -- a live plaintiff -- a -- a plaintiff, a named plaintiff who is still suffering injury?

Theane D. Evangelis: No. So, here, the -- the sleeping ordinance, which is the one that Ms. Blake challenged, that is no longer in the case. That ordinance limited only sleeping in certain rights-of-way and sidewalks in the city, and it was a different law, and that's not at issue here. So sleeping is not at issue. It's about the camping ordinance. And we very much have a live case because we are under the Ninth Circuit's injunction, and the named plaintiffs have --

Justice Sotomayor: No, the question is, could it give an injunction? Do -- are Official 1 these people -- well, I guess, if they're not permitted to park --

Theane D. Evangelis: That's correct.

Justice Sotomayor: So it's not the camping, it's the parking, isn't it?

Theane D. Evangelis: Well, and the camping. So we -- we intend to -- and -- to rely on these laws. We want to be able to rely on these laws. They are very important and --

Justice Sotomayor: You're not answering -- just focus on my question.

Theane D. Evangelis: Yes.

Justice Sotomayor: Both these people sleep in cars. Both of them sleep in cars outside of the town. So they're not seeking camping permission. Is -- is your city not provide for overnight parking in any location at night except in private homes?

Theane D. Evangelis: Camping in a vehicle is included in the camping ordinance.

Justice Sotomayor: Well, that's going into a camp. How do you define "camp"?

Theane D. Evangelis: Again, it is a place where someone has laid down bedding or has --

Justice Sotomayor: So, if they go Official 1 into -- if there's a line of cars and they want to -- and the cars can stay overnight --

Theane D. Evangelis: So --

Justice Sotomayor: -- and they want to park in one of those spaces, if they fall asleep in the car, they're guilty of violating the camping law?

Theane D. Evangelis: No. Justice -- Justice Sotomayor, Ms. Johnson parks her car oftentimes at a friend's, so she is not violating the law at those times. So --

Justice Sotomayor: Just answer my question.

Theane D. Evangelis: -- parking everywhere is not prohibited. In certain areas, private areas, you can.

Justice Sotomayor: Is sleeping in your car prohibited?

Theane D. Evangelis: If you are sleeping in your car in a park, where you're not allowed to park overnight --

Justice Sotomayor: Have any of them --

Theane D. Evangelis: -- then yes.

Justice Sotomayor: -- indicated Official 1 intent to sleep in a park, or have they just said they want to park somewhere in the city? And can they park somewhere in the city and sleep?

Theane D. Evangelis: Yes, they have said that they have the intent to continue their conduct and that they will be, therefore, subject to the city's laws and subject to --

Justice Sotomayor: I don't understand that answer. Okay.

Chief Justice Roberts: Justice Kagan?

Justice Kagan: You've referred a couple of times to the necessity defense, so could you tell me how that would work?

Theane D. Evangelis: Yes. So there -- under Oregon law, if a person says that -- it's effectively the lesser of two evils if they say, I had no alternative to -- no legal alternative other than what I did here that broke the law, then I had no choice and I therefore had to break the law and it was in some sense involuntary, to use a term that -- that many have been discussing. So, there, you -- it would be very narrow. It is a very narrow defense. So it Official 1 would be in that moment of --

Justice Kagan: So -- so suppose that there is a person who is homeless and there are no shelter beds available and the person has no place to go, and the person, of course, has to sleep. And the person -- it's cold outside. The person has a blanket. So that's the minimum conduct that the law prohibits. So the person sleeps outside with a blanket, and the police officer comes, and in the -- in -- in -- but the person says, well, I had no place else to go. Would the City continue to push for some kind of penalty?

Theane D. Evangelis: Well, there, if a person received a citation, so if -- if they did, then they would have a defense of necessity. It's asserted as a defense. So what the other side is trying --

Justice Kagan: Well, it's asserted as a defense.

Theane D. Evangelis: Yes.

Justice Kagan: I mean -- but -- so you're not willing to say no, we're going to tell all our police officers that they shouldn't give a citation in that circumstance? You know, Official 1 you -- you know, we're going to give a citation, and then we'll see how the courts deal with it, is all you're going to tell me?

Theane D. Evangelis: Well, officers always have discretion, and we know that they exercise it. And -- and it's hard to know --

Justice Kagan: Well, the question is not an individual officer's --

Theane D. Evangelis: Yeah.

Justice Kagan: -- discretion. Individual officers are in a tough situation here.

Theane D. Evangelis: They are.

Justice Kagan: The question is, what is the City going to tell individual officers? So what is the City going to tell individual officers about a case of the kind that I said? Are you going to tell individual officers issue the citation and we'll see if the person knows enough to make a necessity defense and we'll see what the court does about that? Or are you going to say, you know, there are some things that just ought not to be the subject of civil or criminal infractions?

Theane D. Evangelis: So the City, in its Official 1 policy, at Joint Appendix, page 158, for example, talks about what officers are supposed to do. They're supposed to put people in touch with services first to contact if there is available help for them. These laws are absolutely a tool for getting people the services that they need. Many people need that intervention.

Justice Kagan: Well, you're not giving me a -- a real answer --

Theane D. Evangelis: Yes.

Justice Kagan: -- to the question of is the City telling officers that they should give citations --

Theane D. Evangelis: No.

Justice Kagan: -- in that circumstance.

Theane D. Evangelis: No. It is -- it is -- if somebody -- again, it is a matter of discretion.

Justice Kagan: Is there anything you can point -- it's a matter of discretion?

Theane D. Evangelis: Yes.

Justice Kagan: There's nothing you can point to that the City says we have a Official 1 necessity defense, what we're telling officers to do is to, you know, act consistently with that defense so that if it is truly a matter of need that you are sleeping on the street alone with a blanket, no, the officer should not cite the person?

Theane D. Evangelis: There's nothing in the record here that shows officers were told about a necessity defense and that it -- what it would or would not preclude. That would be an individualized question after the fact if someone received a citation. And if they thought that that wasn't enough, the proper framework would be this Court's framework in Kahler, where we would look at the asserted defense, there, insanity of some form, and, here, it would be necessity, and we would ask whether it is so deeply rooted in our history and -- and something that has to be imposed in this way on the states.

Justice Kagan: Thank you.

Theane D. Evangelis: Thank you.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: I suppose someone Official 1 could also initiate a class action of the sort that happened here if -- if you were not allowing the necessity defense to operate and seek to have it enforced, couldn't they?

Theane D. Evangelis: Potentially. I -- I --

Justice Gorsuch: Yeah. Thank you.

Chief Justice Roberts: Justice Kavanaugh?

Justice Kavanaugh: You've said several times that it's a difficult policy question, a complicated policy question. I think everyone would agree with that. How does this law help deal with the complicated policy issues?

Theane D. Evangelis: One of the most difficult challenges is getting people the help that they need. And laws like this allow cities to intervene, and they're an important tool in helping incentivize people to accept shelter. So Ms. Johnson, for example, has said in her deposition -- it's in the Joint Appendix -- that she does not wish to stay at the Gospel Rescue Mission. One of the reasons is because of her dog. She also had other Official 1 reasons. She doesn't like being around people and -- and so forth. People have all sorts of circumstances. It's very complex. And the individual decisions --

Justice Kavanaugh: How does it help if there are not -- how does it help -- the rule here, the law here, how does it help if there are not enough beds for the number of homeless people in the jurisdiction?

Theane D. Evangelis: So, for Ms. Johnson, she sometimes stays with a friend. So there are other --

Justice Kavanaugh: How about more -- more generally, though?

Theane D. Evangelis: Yes.

Justice Kavanaugh: I -- I guess, if there's a mismatch between the number of beds available in shelters, even including Gospel Rescue, and the number of homeless people, there are going to be a certain number of people who there's nowhere to go?

Theane D. Evangelis: That -- that is a difficult policy question. And we --

Justice Kavanaugh: How does this law deal -- Official

Theane D. Evangelis: Yes.

Justice Kavanaugh: -- help with that policy?

Theane D. Evangelis: So it encourages people to accept alternatives when they come up so that fewer people end up camping. It also -- there is harm in simply camping. Whatever materials people are using when they are living in public spaces without plumbing and infrastructure, there's harm to the whole city and to the whole community, as well as to them. We know that -- that encampments and these conditions also breed crime and very dangerous conditions. So the City has an interest in protecting everyone, including --

Justice Kavanaugh: Do you think the constitutional rule should be different when the number of beds available in the jurisdiction exceeds the number of homeless people versus the number of homeless people exceeds the number of beds available in shelters?

Theane D. Evangelis: No. That's what we've seen in the Ninth Circuit. We've seen that that is unworkable. There is no way to count what beds are available and who is perhaps willing to Official 1 take one and who would consider it adequate. Then the question becomes, are those beds adequate? So, here, Gospel Rescue Mission again --

Justice Kavanaugh: That's a separate issue, I agree.

Theane D. Evangelis: It is.

Justice Kavanaugh: And -- and it can be a challenging issue, I suppose, I know, as well. Let me ask one last question, which is, how does the necessity defense differ from the constitutional rule? You touched on this, but I just want to get a succinct answer to that, the state law necessity defense differ from the constitutional rule here.

Theane D. Evangelis: You would weigh the harm from the individual's conduct in violating the law. So, if someone were camping near a school or near -- or -- or -- or doing some -- something or engaged in some behavior that was particularly harmful and they had another place where they could camp, that would be maybe a factor that you would raise in the necessity situation. Official 1 It's -- it's narrower. So, in a case of a -- the Oregon cases include people who are growing marijuana for medical reasons but without a license, and so the necessity defense was not accepted in that case because they could have obtained a license. So, if a person had a friend to go to, had a bed available at the Gospel Rescue Mission, they would be expected to take it under the necessity defense. I think that's how it would play out.

Justice Kavanaugh: I actually have one last question. When you get out of jail if you end up -- what's going to happen then? Aren't -- you still don't have a bed available. So how does this help?

Theane D. Evangelis: So the -- and -- and I want -- I do want to make a point about that -- about the criminal aspect. The trespass law here is only triggered after several civil citations.

Justice Kavanaugh: Right. No.

Theane D. Evangelis: And at that point --

Justice Kavanaugh: If you run through that cycle --

Theane D. Evangelis: Yes. Official

Justice Kavanaugh: -- and you end up in jail for 30 days, then you get out, I mean, you're not going to be any better off than you were before in finding a bed if there aren't -- going to my earlier question, if there aren't beds available in the jurisdiction, unless you're removed from the jurisdiction or you decide to -- to leave somehow.

Theane D. Evangelis: No. There are services available, and the jurisdiction can put you in touch with services and programs to help you in those circumstances. And for many people, that is a point where they're able to get into treatment. So that intervention actually saves lives.

Justice Kavanaugh: Okay. Thank you.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: So let me follow up on that. So you're saying there are services available, there's treatment available, so people would ultimately move off the street? Is that -- is that what you're saying? Because I think part of the premise of all of this, right, is that there are not enough beds for homeless Official 1 people to occupy, and so there will be a mismatch and there are going to be some people who can't be cared for. Are you saying that if your law is enforced, there is a way for everyone to be cared for?

Theane D. Evangelis: No. I'm saying that's a policy question that is quite difficult, but these laws are an important part of the puzzle. They're not the only solution. And we don't -- we don't believe that they are, but we think they're an important tool. And without them, we've seen what's happened on our streets. We've seen that people are -- are dying in encampments. We've seen that cities are -- are being forced to cede all of their public spaces. So that ultimate question is for the legislature and policymakers to figure out what the right solution, what the right mix of policies is. But the wrong answer is to do what the Ninth Circuit did here and to constitutionalize --

Justice Barrett: Okay. Let me -- let me just interrupt you there. You're right, it's a very, very difficult policy question. And I Official 1 asked you before about whether this was just about blankets or whether it went into having fires or urinating and defecating outdoors and that sort of thing, and Justice Sotomayor pointed out that this particular injunction did carve out those things and was just talking about sleep. But, you know, other cases have been litigated in the Ninth Circuit that have gone beyond that, and because the line is things that are involuntary, that are human needs, it can -- it can extend -- it's difficult to draw the line, and whatever we decide here about this case is about the line. So can you describe for me some of the things that are difficult to figure out about the line? There's sleeping. There's sleeping with blankets. What else?

Theane D. Evangelis: Public urination and defecation, that is a serious problem. Those are parts of biological necessities of being human. A court in Sacramento addressed that, and the Ninth Circuit's opinions debated whether its rule would actually reach those things. I think any rule that we are wondering Official 1 about and debating whether it would go that far, I think that is a sign that it is not a workable rule. The slippery slope here is very real. It's not just for camping and conduct that might be a biological necessity. Putting aside tents and fires and cold climates, what other things would be allowed? All of the things that a human needs to survive, for example, potentially come into focus under the Ninth Circuit's rule but also in other areas. Someone could say that my drug use or possession is the other side of the coin because I'm an addict or because I -- a -- a person who violates other laws could say that I had a compulsion to do those things that I couldn't control. And the plurality opinion in Powell addressed that very thing and why it's so important to draw the line there. And when conduct is involved and once the Court gets into deciding which conduct may be excused under the Eighth Amendment, it is so far afield of what the Eighth Amendment was ever understood to address.

Justice Barrett: Okay. Speaking of Official 1 status and conduct, you've -- you've argued that Robinson was wrong and we don't need to overrule it. And I agree. I don't -- I don't think we should overrule Robinson. You've also been kind of resisting the status -- you -- you've been resisting characterizing anything other than the drug addiction that was at issue in Robinson as status. So what if the law said it is unlawful and punishable by 30 days in prison to have the status of homelessness? Just go with me. Just assume that the law defines homelessness as a status and it is a status. Would Robinson say that that law is unconstitutional under the Eighth Amendment? Would you concede that?

Theane D. Evangelis: And -- and you're saying that that is a status?

Justice Barrett: Yes.

Theane D. Evangelis: All of the --

Justice Barrett: The law defines it as a status, and it's a status.

Theane D. Evangelis: Well, yes, and I think it looks a lot like Robinson under that Official 1 hypothetical, but, of course, we disagree that it is --

Justice Barrett: I understand you disagree --

Theane D. Evangelis: -- a status in that way.

Justice Barrett: -- but you are accepting that -- that Robinson draws a distinction between status and conduct and you're just fighting about the definition of a status?

Theane D. Evangelis: It -- it draws the line where a law has no actus reus. So I think that's the easiest line. I -- I don't defend the line under the Eighth Amendment because I don't think actually that the Court -- I know the Court didn't rely on any Eighth Amendment principles or history of --

Justice Barrett: But the hypothetical I just gave you had no actus reus either. The status of homelessness, I mean, it could be, you know, 4:00 in the afternoon and the person is just standing outside the bus stop. Do you agree that if the law prohibited that, made that a crime, that under Official 1 Robinson, whether Robinson was right or wrong, that under Robinson, that would be a violation of the Eighth Amendment?

Theane D. Evangelis: Well, I -- I -- I think the better framework is due process.

Justice Barrett: I understand that. Under Robinson, do you agree that that would be wrong?

Theane D. Evangelis: Yes.

Justice Barrett: Okay. Thank you.

Theane D. Evangelis: Thank you.

Chief Justice Roberts: Justice Jackson?

Justice Jackson: So picking up where Justice Barrett left off, you -- you -- you say that the ordinance here pertains to conduct and not to status, and I'm just trying to figure that out. I'm not so sure for this reason. It's because all humans engage in the act in question, sleeping. And yet the statute operates or the ordinance operates to penalize only certain individuals, those who have no choice but to do that act in public. So it appears, I think, not to be the act that the state or the city in this case Official 1 finds criminally culpable. It's instead the act as engaged in by certain people, by people who cannot afford housing and have nowhere else to go. So why is that the wrong way to think about it? And if that is the right way to think about it, why isn't that a status crime in the way that Robinson contemplates?

Theane D. Evangelis: It's not because we can look at the law and it has a conduct element. The conduct is establishing a place -- a campsite, and that is something that a person who has a home or a shelter could do as well.

Justice Jackson: But -- but you've just defined away the -- the basic actus reus, right? The actus reus is sleeping out -- I guess outside to the extent you put outside in it, but that's the problem I'm talking about. The actus reus is the sleeping, right? Everybody -- that's not a criminally culpable kind of activity. That's what I think might distinguish it from Robinson and -- and make it worse for you in a way because, in Robinson at least, to the extent someone had a disease and the Official 1 question was, well, are they engaging in otherwise criminally culpable conduct, buying and selling drugs, taking drugs, you know, we -- we look at that kind of category of things. Here, the actus reus is sleeping, human, universal. The -- the -- the -- the City adds, okay, but you can't sleep outside. And I guess what I'm trying to understand is, to the extent that that only happens with respect to a certain category of people who have no other place to go, why isn't that really just punishing the status of being someone who doesn't have any place to go?

Theane D. Evangelis: It doesn't apply only to that -- those people. The Respondents here are trying to exempt a whole category of people. What -- so what you look at there is the -- the conduct of camping under federal law and in this Court's decision in Clark, it was understood that that is conduct. It is just like trespass, where, if you are found in a place, if you enter with permission, but then you remain there without permission under Quarles --

Justice Jackson: But it's not just like trespass because, presumably, you have Official 1 other places to go. So let me just -- let me just ask you this other question. What -- what is your understanding of the Martin rule? Because I -- I thought it was premised on the circumstance in which someone had nowhere else to go and they needed to sleep and they needed to be there. But you seem to suggest that necessity is not sort of baked into what Martin was doing.

Theane D. Evangelis: Martin speaks in terms of someone who is involuntarily homeless, and that raises all of those policy questions that we've been discussing about how do you determine that.

Justice Jackson: But assume they exist. Involuntarily homeless means the person has nowhere else to sleep.

Theane D. Evangelis: Yes, that is -- the necessity defense is available. And what Respondents are asking to do is to constitutionalize that very defense under the Eighth Amendment. So, as I said earlier, it could be -- the argument could be made -- it would be a very high bar under due process, but that is the sort Official 1 of argument that we would expect one to make under a due process framework --

Justice Jackson: Thank you.

Theane D. Evangelis: -- under this Court's Kahler decision.

Chief Justice Roberts: Thank you, counsel. Mr. Kneedler. ORAL ARGUMENT OF EDWIN S. KNEEDLER FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING NEITHER PARTY

Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court: In Robinson, this Court held that the government cannot criminalize status. And Respondent has conceded here today that the City cannot criminalize the status of being homeless. Our narrow submission in this case is that government cannot circumvent the principle of Robinson by making it unlawful for a person to reside in the jurisdiction if he has that status. That is what the ordinances here do. As applied to someone who has nowhere else to sleep, which is an essential human function, the Official 1 ordinances are the equivalent of making it a crime to be homeless while living in Grants Pass. Although we think the Ninth Circuit was right to recognize that the core principle of Robinson is implicated in this case, the Court was wrong to award broad injunctive relief in the circumstances and manner in which it did. The Robinson principle requires an individualized determination, and the Ninth Circuit's failure to require such a determination and its issuance of much broader injunctive relief has led to the problems at issue that the Petitioner and its amici have raised, not the core principle of Robinson. And, therefore, we urge the Court to adhere to the core principle of Robinson but to emphasize that cities have flexibility to implement these, and, in particular, time, place, and manner restrictions on where someone can sleep are entirely valid if they are reasonable, and, indeed, the state law that Justice Jackson referred to establishes a state policy that time, manner, and place restrictions are the way to go if they are reasonable. Official 1 I welcome the Court's questions.

Justice Thomas: Mr. Kneedler, wouldn't you have a better argument if Robinson involved the -- someone being arrested for using drugs, but then the Court said that you were in effect arresting him for the -- the status of a drug user because he was -- he had no choice but to use drugs because he's an addict?

Edwin S. Kneedler: No. Our -- our position is not that the conduct as in Robinson, the drug addict can't stop from using drugs. That is not our position. That's a question of personal culpability on the basis of what the person's makeup --

Justice Thomas: So what's the difference between that and -- and -- and camping out? What you're saying here, it seems as though you're saying, well, they -- there's no other choice, so you have to camp out. Therefore, you're really arresting this person for the status of homelessness.

Edwin S. Kneedler: Yes, but -- but not because of an -- of an involuntary compulsion sense. I think, as Justice Alito pointed out, the nexus here is actually closer than in the -- Official 1 than in the addiction situation because sleeping outside is essentially the mirror image or the other side of the coin or the definition --

Justice Gorsuch: Well, Mr. --

Edwin S. Kneedler: -- of the status of -- of homelessness.

Justice Gorsuch: -- Mr. Kneedler, I -- I agree that -- that the distinction between status and conduct is a slippery one and that they're often closely related. And in Robinson, though, the Court said you cannot make the status of being a drug addict a crime, but you can criminalize the conduct, even if it is involuntary and compulsive. And Powell reaffirmed that line very strongly, at least the plurality opinion did, and said we're not going to go further. And I wonder whether the government is asking us to take that step that Powell counseled against by saying that it is -- it is -- it is status because -- effectively status, and this is throughout your brief. You use the word "effective" or "essentially" or "tantamount to," those kinds of words. And -- and so I just wanted to get your response to that -- that Official 1 concern.

Edwin S. Kneedler: No, we are not asking the Court to take the step that it declined to take in Powell, which had to do with personal responsibility, the -- the sort of issues that were involved --

Justice Gorsuch: And -- and okay. If you're --

Edwin S. Kneedler: -- in this Court's decision in Kahler.

Justice Gorsuch: -- not asking us to do that, then -- then -- then I guess I just want to circle back to what Justice Thomas was getting at, which is, surely, the government wants to continue to enforce the drug laws and all kinds of other laws that -- that people could make an argument that I had involuntary need to do, a necessity defense to. You -- you don't want us to wipe out all those laws?

Edwin S. Kneedler: Certain -- absolutely not, but -- but what is different here is that -- that the -- the conduct in -- in -- that was suggested in Powell would have been based on the person's own separate --

Justice Gorsuch: Well -- Official

Edwin S. Kneedler: -- antisocial conduct. Here --

Justice Gorsuch: Well, Justice White made clear that some people are going to be forced to drink in public because they don't have a home.

Edwin S. Kneedler: Yeah. And what -- and --

Justice Gorsuch: He made this very point. And --

Edwin S. Kneedler: No, we don't -- but -- -- but -- but the -- the point here, it is the government that is -- that is prohibiting the alternative. It's not the individual's inability to control his own conduct. The government, because the person -- because of other circumstances, the lack of money, the lack of a friend to stay with, the lack of shelter space, there is no place -- we -- we take as a given in our position that there is no other place for the person to sleep --

Justice Gorsuch: And I think, wouldn't --

Edwin S. Kneedler: -- and it's the government -- Official

Justice Gorsuch: -- couldn't a drug addict, though, make the exact same argument? I had no other choice.

Edwin S. Kneedler: But that is -- that is -- that -- the other choice would be a matter of -- of personal --

Justice Gorsuch: No. Say the record says --

Edwin S. Kneedler: -- undertaking, personal culpability.

Justice Gorsuch: But the record says that there is no other choice. I had to do it.

Edwin S. Kneedler: Well, I -- I -- I do think that engaging in conduct that is unrelated to -- let me take that back. The -- the -- the sleeping outside when you have no other place to go is the definition of homelessness.

Justice Jackson: Mr. Kneedler, isn't the response --

Justice Barrett: But -- but Judge --

Justice Jackson: -- also that those two things are different? I mean, you're sort of saying it's about individual culpability. But it's not as though everyone engages in drug Official 1 use.

Edwin S. Kneedler: Right.

Justice Jackson: Right? Certain people do, and maybe they have addiction, and maybe you can't punish them because of the addiction, but you can still punish them as criminally culpable for engaging in the act. It seems to me we are in a totally different category --

Edwin S. Kneedler: We are, yes.

Justice Jackson: -- when you're talking about acts that everybody participates in that no one thinks in and of themselves are criminally culpable. And yet somehow this statute is reaching out to punish certain people who engage in that universal human basic need. That seems to me to be the distinction --

Edwin S. Kneedler: Yes.

Justice Jackson: -- in these situations.

Edwin S. Kneedler: That is a critical distinction, and -- and not only is it something that everybody engages in, but it's something that everybody has to engage in to be alive. So, if you -- so, if you can't sleep, Official 1 you can't live, and, therefore, by prohibiting sleeping, the City is basically saying you cannot live in Grants Pass. It's the equivalent of banishment, which is -- which is something that is unknown to the way --

Justice Sotomayor: Mr. Kneedler --

Chief Justice Roberts: Mr. Kneedler --

Justice Sotomayor: -- wasn't Grant Pass's first attempt, policy choice, to put people -- homeless people on buses so they would leave the city? I understood that to be the history of Grant Pass. They put -- police officers would put -- buy them a bus ticket, send them out of the city, but that didn't work because people kept -- came back because it had been their home, correct?

Edwin S. Kneedler: They came back.

Justice Sotomayor: They came back.

Edwin S. Kneedler: I -- I -- I think they might have been sent back by the other --

Justice Sotomayor: So then they passed this law. And didn't the city council president say, our intent is to make it so uncomfortable here that they'll move down the Official 1 road, meaning out of town, correct?

Edwin S. Kneedler: That state -- that statement was made at a -- at a public meeting of the city council.

Justice Sotomayor: All right. So let's assume what you're saying or accepting, that -- do you -- do you happen to know, or maybe I hope one of you knows, how many beds there are in Grant Pass, shelter beds?

Edwin S. Kneedler: I believe the only -- the only shelter beds, at least at the -- at the time the record in this case was compiled, was at the Gospel Mission. There's a -- there's a -- has been at times a detox place. There has been a warming center that has been maintained. But, in terms of -- excuse me -- shelter beds --

Justice Sotomayor: Well, we're talking about --

Edwin S. Kneedler: Yes, and I -- I think --

Justice Sotomayor: -- a disproportionate --

Edwin S. Kneedler: -- I think it's approximately a hundred. There -- there are men's, women's. Official

Justice Sotomayor: Yeah. I thought it was much less than that.

Edwin S. Kneedler: Yes.

Justice Sotomayor: Yeah. All right. So we go back to you want the district court to make individualized findings. You've asked us to vacate and remand. Can we go back to that so I understand it? I quite didn't understand it in your brief because I thought individualized findings had to do with the class action, but that question hasn't been certified here.

Edwin S. Kneedler: Right, but -- but I -- I think the -- I think the merits -- our basic point is that a -- a person does not have an Eighth Amendment defense or an Eighth Amendment claim unless he truly does not have some other place to reside. And so, by speaking of individualized, what we were --

Justice Sotomayor: So are --

Edwin S. Kneedler: -- saying is that it depends on whether that person has some other place, has a relative.

Justice Sotomayor: I -- I accept all of that.

Edwin S. Kneedler: Yeah. Official

Justice Sotomayor: I guess what I'm asking you is -- and this is what I didn't understand from your brief -- are you saying that there can't be a class certification of homeless people ever?

Edwin S. Kneedler: No.

Justice Sotomayor: That you have to have individuals? Or are you -- or are you saying that the injunction is too broad if it doesn't provide for remedies that are -- somehow that the person has to prove a certain --

Edwin S. Kneedler: The -- the --

Justice Sotomayor: -- number of things before --

Edwin S. Kneedler: Yes. That it -- it --

Justice Sotomayor: -- they're entitled to the injunction?

Edwin S. Kneedler: Yeah. Yes.

Justice Sotomayor: I wasn't sure.

Edwin S. Kneedler: No, but the -- the Eighth Amendment claim is a personal one and -- and, in this context, depends on whether the person does have another place to sleep. So the -- the person cannot benefit from the Eighth Amendment claim without an individualized -- Official 1 without that person showing, if it comes up in a -- in an affirmative injunctive action, without that person showing that he or she has no other place to stay.

Chief Justice Roberts: Thank you, counsel. If there is a -- the town next to Grants Pass, 10 minutes away, has just completed building a homeless shelter that has many vacant beds, does that change the analysis here? I mean, we've talked about the town wanting to get -- ship people out of the town. Would it be -- would -- would it -- would there still be a right to sleep, contrary to the ordinances in Grants Pass, because you don't want to be taken 10 minutes away where there's a homeless shelter?

Edwin S. Kneedler: I -- that goes to the question, I think, under the analysis of whether the beds are available. And I think, if they're right across the town line, it would be appropriate to take into account that there's a homeless shelter there, even though it's not one in the City of Grants Pass.

Chief Justice Roberts: Well -- Official

Edwin S. Kneedler: But often, in a situation, the two towns might cooperate to have one homeless shelter.

Chief Justice Roberts: Well, yeah, they might, but often --

Edwin S. Kneedler: Right.

Chief Justice Roberts: -- next towns don't always cooperate. So what if it's 30 miles away? Is a -- is the shelter available in that case --

Edwin S. Kneedler: I --

Chief Justice Roberts: -- for your purposes, or are you going to tell me it just depends on all the circumstances --

Edwin S. Kneedler: Well, I think it depends on how --

Chief Justice Roberts: -- so municipalities won't have that much guidance?

Edwin S. Kneedler: I think it depends on the accessibility. I mean, one -- one of the fundamental points here --

Chief Justice Roberts: The accessibility is that when an officer comes up in Grants Pass and finds a homeless person and says it violates our ordinance, but I will give Official 1 you a ride down the road, 30 miles, whatever it is, because there's a new homeless shelter there, and the person says, no, I don't want to do that, can that person be given a citation?

Edwin S. Kneedler: I -- I think probably not, but let me -- if -- if I could explain why. There are --

Chief Justice Roberts: Sure.

Edwin S. Kneedler: I mean, obviously, there are questions at the -- at the margin here. But I think one of the principal features here that shouldn't be overlooked is the City is seeking to banish or expel its own residents, its own citizens, people whose children can go to school in that location, who may pay taxes in that location. So, if the 30-mile-away shelter requires the person to leave his community and to live in another place, that -- that implicates --

Chief Justice Roberts: What is the -- I mean, how far does that go?

Edwin S. Kneedler: -- that aspect of the problem here.

Chief Justice Roberts: Let's say Official 1 there are five cities all around Grants Pass and they all have homeless shelters. And yet the person wants to stay. You know, I've been a Grants Pass -- Pass resident for a long time. I don't want to go to the one of those shelters. Can that person be given a citation?

Edwin S. Kneedler: I -- I -- I think under -- because of the concern I've mentioned, I think that would -- would be a serious problem because --

Chief Justice Roberts: You would -- you would say it would be a problem to give them a citation?

Edwin S. Kneedler: Yes, I -- I -- I think so, because you would be requiring -- or the -- the City's ordinance requires them to leave the City of Grants Pass. If it's just -- if the homeless shelter is right over the line, they can still be part of the community of Grants Pass but sleep in the --

Chief Justice Roberts: No, but it's in another city. You keep fighting the hypothetical.

Edwin S. Kneedler: No, no, no, and -- and that's why I think it's different. I -- I'm -- Official 1 I'm not prepared to say it, you know, that absolutely not, but I do -- I do think it's different because the City is implementing its policy of banishing people, its own residents, from the --

Chief Justice Roberts: Banishment is a -- is a strange word when you're talking about something 10 minutes away.

Edwin S. Kneedler: Well -- well -- but, again, the question is whether you could still realistically be part of the community where you grew up. The figures show and, in fact, JA 114, 115 here shows that most of the homeless people in Grants Pass are from Grants Pass.

Chief Justice Roberts: Counsel, everyone's mentioned -- not everybody. Many people have mentioned this is a serious policy problem, and it's a policy problem because the solution, of course, is to build shelter to provide shelter for those who are otherwise harmless. But municipalities have competing priorities. I mean, what if there are lead pipes in -- in -- in the -- in the water? Do you build the homeless shelter or do you take Official 1 care of the lead pipes? What is there aren't -- isn't enough fire protection? Which one do you prioritize? Why would you think that these nine people are the best people to judge and weigh those policy judgments?

Edwin S. Kneedler: We're -- we're not suggesting that. We're not suggesting that the only solution is for in -- especially in the current circumstances, the only solution would be to build homeless shelters. As I mentioned, time, place, and manner restrictions, I -- I think, are a very sensible way to go. And, in fact, as I mentioned, Oregon state law requires that. In other words, a -- a city adopts a provision that you -- you know, you can't -- you -- you can't sleep on the sidewalks anywhere because that obstructs people seeking to move. You can't camp near a school. You can't camp downtown. You can't sleep downtown. You might be able to sleep in a -- in a park, and -- and so it -- and a park -- and that could be patrolled for -- for drug use and whatnot. We're -- Official

Chief Justice Roberts: Counsel, this is --

Edwin S. Kneedler: None of these other laws are inapplicable if there's a time, place, and manner restriction.

Chief Justice Roberts: This is an old question, but, you know, eating is a basic human function as well that people have to do, just like sleeping. So, if someone is hungry and no one is giving him food, can you prosecute him if he breaks into a store to get something to eat?

Edwin S. Kneedler: Absolutely, absolutely. Breaking into -- into a store is a common crime that not everybody engages in, unlike sleeping, which is what -- which is what we have here, which is really --

Chief Justice Roberts: But it's a -- it's a -- it's a -- a necessity for the person who needs food.

Edwin S. Kneedler: It's not a necessity to break into -- into a -- into a store. And with respect to the --

Chief Justice Roberts: Well, you're fighting the hypothetical. I'm saying this person needs food. Official

Edwin S. Kneedler: And -- and it -- the -- the Eighth Amendment does not require that that person be excused from doing it. I think there's a -- there's a certain amount of common sense and practicality to this, and it's, I think, well understood that just like drug use is not something the Eighth Amendment excuses you from, either is eating. And then the -- the problem of eating is addressed at the local level as the, you know, history and the poor law shows, is that the community takes care of its own residents. And it's common now as it was at the -- at the founding for churches and individuals and whatnot to offer their help, the charity in the community. And that's what happens in Grants Pass. Various organizations feed -- feed the -- the homeless people, and there are social services to help the homeless people. So this is -- this is consistent except for the absolute ban in sleeping in the City. This -- otherwise, the community's response is what has been done down through history.

Chief Justice Roberts: Thank you, Official 1 counsel.

Edwin S. Kneedler: But it's the City's absolute ban --

Chief Justice Roberts: Thank you.

Edwin S. Kneedler: -- that interrupts that continuity.

Chief Justice Roberts: Justice Thomas? Justice Alito?

Justice Alito: Could you explain how your rule would be carried out by police officers on a day-to-day basis? Let's say that there are 500 beds in a particular town and let's say it's 3 -- 3:00 in the afternoon, 4:00 in the afternoon on a winter day. What is an individual police officer supposed to do if individual police officer would go around and count the number of people who are getting ready to sleep outside? I guess, if it's 4:00, you wouldn't get that. Let's say it's 6:00. Count the number of people who are getting ready to sleep outside for the night and then ask each one of them whether you've tried Official 1 to find a bed at -- at a shelter? Whether that person would be willing to go to a shelter if a bed is available without any conditions or whether the bed -- the bed would have to be available on the conditions that the individual wants, like I won't go to a shelter where they won't take my dog or something like that? Just explain how it would work on a -- a daily basis.

Edwin S. Kneedler: Well, first of all, with respect to the individual encounter, I think the -- the way this would work in the real world -- and -- and -- it -- I think it's important to understand what happens on the ground in these situations. The -- I -- I think, in the circumstances you're talking about, I think what would happen is that the person -- the -- the person encountering the homeless person would know whether there is a -- a spot available. The study -- I don't think the homeless person would be required to check each day with each shelter if there are multiple shelters. And in larger cities, these initial encounters are -- are not handled by law Official 1 enforcement. They're typically handled by social services agencies who are in contact with people who are camping and -- and -- and know what their circumstances are and they are able to say: We know that at such and such shelter there are beds available --

Justice Alito: What -- what if there's a --

Edwin S. Kneedler: -- would you be willing to go?

Justice Alito: What if there's a question whether there are, indeed, enough shelter beds available? Your rule wouldn't apply if there are enough beds available, right? If there are 500 shelter beds and the -- and there are only 200 people who are trying to sleep outside, then your rule wouldn't apply?

Edwin S. Kneedler: Right, right.

Justice Alito: So you have to have a comparison of the number of beds available with the number of people who want to sleep outside?

Edwin S. Kneedler: Right, yes. And I just --

Justice Alito: So that would be the Official 1 threshold question?

Edwin S. Kneedler: Right. And I just want to clarify one -- one point about that. It's not simply a measure of the number of beds against the number of homeless people such that if there is a deficit, the City can't enforce the law at all. If you have individualized questioning and you know that there are vacant -- there are vacancies available, even if not for everybody, but there is a vacancy for the person being interviewed, then, yes, that person -- if -- if that person is offered and refuses, that -- that person could be prosecuted and -- or -- or -- or cited. So --

Justice Alito: Well, what if the person says I -- I -- yeah, I know there's a bed available at the Gospel Rescue Mission, but they won't take my dog?

Edwin S. Kneedler: Yeah, I don't think -- I don't think the inability to take your dog to the shelter is a -- is a sufficient reason. There are shelters in some larger cities that may well take pets, but --

Justice Alito: I could -- I could -- Official 1 I know I could sleep in the home of a family member, but they really hate me and they're really nasty to me.

Edwin S. Kneedler: I -- you know, I --

Justice Alito: I -- I -- I'm not -- these are --

Edwin S. Kneedler: No, no --

Justice Alito: I'm just wondering how they're -- this is going to be administered on the daily basis.

Edwin S. Kneedler: I -- and -- and -- and I think, you know, with all respect, I think that example is -- if the -- if the family is going --

Justice Alito: Okay, maybe --

Edwin S. Kneedler: -- to accept him, but, I mean, that's the question, whether there is a -- a place to sleep. But I -- I don't know that it would very often come down to that -- that family hates me. On the other hand, if it's a woman who left domestic abuse, she couldn't be expected --

Justice Alito: Right.

Edwin S. Kneedler: -- to go back to the -- to the -- to her home or maybe her relative's Official 1 home or his relative's home or something. So there's a lot of common sense. And, again -- again, the law enforce -- the -- the first encounter that a police officer or somebody else has with a homeless person is very unlikely to be a situation in which the person that would be issued a citation.

Justice Alito: Okay. You -- you mentioned just a couple of things that I wanted to follow up on. Does it matter whether the person grew up in the town or not? Suppose --

Edwin S. Kneedler: No. No.

Justice Alito: -- that they -- okay, that's irrelevant?

Edwin S. Kneedler: And -- and -- and I think --

Justice Alito: So they go up to -- they go up to some police officer or social services in San Diego goes up to somebody and says, you know, where are you from? Oh, I'm from Fargo, but if I have to sleep outside, I sure would rather do it here than in Fargo. That doesn't matter?

Edwin S. Kneedler: No, and -- and I Official 1 think -- not because of -- of any Eighth Amendment rule we're talking about, but under this Court's decisions in -- in Edwards and -- and Saenz, the Privileges and Immunities Clause or the Commerce Clause or the various right to travel provisions would -- would prohibit attaching that sort of -- of limitation to a -- to a newcomer. But I -- but I would say -- as I mentioned, the majority of people are from their home --

Justice Alito: Okay. Where I used to -- where I used to live in New Jersey, there are a lot of really small municipalities, I think over 500 municipalities in the state. I could go for a 20-minute walk in the evening and be in three or four different municipalities. So, to get back to my -- to Justice -- to the Chief Justice's question, if -- you know, if there aren't enough beds available in West Caldwell, does it matter -- is it -- West Caldwell is out of luck even though there are a lot of beds available in Caldwell, which is, you know, a couple -- less than a mile away?

Edwin S. Kneedler: Yeah, I think the way Official 1 you're describing it, it would -- it would be -- it -- it might be fair to say that that -- that set of small and closely knit communities would be one community and -- and -- and the person wouldn't -- wouldn't basically be banished from where he lived or where he grew up by saying, you -- you know, if there's a shelter in this other location, then -- then you could be expected to go there.

Justice Alito: There's some tiny municipalities. What if a municipality doesn't have a park, so if somebody is going to sleep outside, the only place where that person can sleep is going to have to be on the street?

Edwin S. Kneedler: I --

Justice Alito: What -- does a time, place, or manner restriction work there?

Edwin S. Kneedler: I mean, certainly not on the street and -- I mean, because of safety, traffic, et cetera. I mean, there are common-sense accommodations, and I think even in the smallest town, there are probably locations where a -- a -- a -- a person could sleep. I -- you know.

Justice Alito: All right. Thank you. Official

Chief Justice Roberts: Justice Sotomayor?

Justice Sotomayor: I don't want to be repetitive, but what are we vacating and remanding for? You -- you -- individualized finding of what?

Edwin S. Kneedler: Well, the -- the way that -- the way the -- first of all, the class was defined simply on the basis of the aggregate numbers without an individualized determination as -- as to whether, frankly, in our view, not a sufficient individualized determination as to the two named plaintiffs. And you identified several factors here. They both slept in their -- in their cars. Several of them were able -- or both of them chose at some times to sleep at a Safeway parking lot or with a friend. The other slept at a truck stop out of -- out of town. It's not clear that -- neither of them ever actually camped in a park. And so -- and -- and, in -- in fact, the dissent below questioned whether one of those two people even had standing. So that there -- even with respect to the named plaintiffs, there was not the sort of Official 1 examination of their individual --

Justice Sotomayor: So you're talking --

Edwin S. Kneedler: -- circumstances that they're --

Justice Sotomayor: -- about standing? That we don't know if --

Edwin S. Kneedler: Well, standing, yes, and then there -- there could be typicality or commonality problems there too if the -- if the -- the two named plaintiffs slept in vehicles, which may present different problems than -- than in the -- in the camp.

Justice Sotomayor: Well, we were told that sleeping or camping is out of the case because -- and the court said that.

Edwin S. Kneedler: Sleeping, yes, but -- but sleeping in a vehicle counts as camping.

Justice Sotomayor: Right.

Edwin S. Kneedler: But it's not the sort of camping that -- that we've been talking about, to some extent, about sleeping on the ground with a blanket or a tent or something like that. And it's true, the question of tents Official 1 are not in -- in the case. And if -- even if -- you know, if the City wanted to allow tents, I suppose it could even require that they be --

Justice Sotomayor: All right.

Edwin S. Kneedler: -- taken down --

Justice Sotomayor: Thank you, counsel.

Edwin S. Kneedler: -- and put back up. There's a lot of flexibility that the City could have.

Chief Justice Roberts: Justice Kagan?

Justice Kagan: Well, I did want to you just about that. I mean, let's say I'm with you, Mr. Kneedler, on the fact that you can't prohibit being homeless, and because you can't prohibit being homeless, you can't prohibit sleeping outside if you are a genuinely homeless person. And let's say I'm with you that the fact that this ordinance says, well, but we're prohibiting using a blanket, that can't be right. You know, you're not, like, just, like, get hypothermia and the problem will -- the constitutional problem will go away. But it does seem as though there are Official 1 line-drawing issues as you go up, right? It's a very cold night and somebody wants to make a fire. It's raining and somebody wants to put up a -- a tarp. The City has said you can sleep in particular areas, but it turns out that those areas have a ton of crime. You know, you could go on and on. And I'm -- I'm not -- how do you deal with questions like that? These are not, like, gotcha questions. This is, like, how do you deal with questions like that? Where is the line where the City can say our legitimate municipal interests can come in and say, you know, as to that, as to that, you can't do that?

Edwin S. Kneedler: Yeah, so what -- and -- and there are several examples that -- that you have there. With respect to tents and tarps, I guess, you -- you were saying, I -- I -- I think there's a difference between what you might need to realistically sleep outside if it's raining, snowing, or something like that, and what you might prefer to have as a structure for long-term camping. As I mentioned, the -- the City might say you can put up a tent if it's very cold, but Official 1 you've got to take it down in the morning. That's like being in -- some shelters say you can stay here overnight, but you have to leave during the day and you can come back. I mean, that might seem gratuitous of the City to do it. It might not want to do it. But -- but we're not saying that the Eighth Amendment would prevent it from doing it, and especially, as you say, if there's no alternative and it's, you know, 20 -- 20 degrees. And with respect to fires, there are really important issues on the other side of -- of that question. And in an urban area, if you're creating fires, there may be hazards in a -- in a park. There might be --

Justice Kagan: So how does --

Edwin S. Kneedler: -- there might be fireplaces in a park.

Justice Kagan: -- how does a court make these judgments? Because these are tough judgments, and -- and usually they're the kind of judgments that we think of as municipal officials make them. But you're saying, no, there's a Official 1 certain level where it's out of their hands and it's in the court hands. And I guess I want to know what the principle is where those questions go to the courts and -- and why that principle is the right principle.

Edwin S. Kneedler: I think -- I mean, I think there are two principles. One is that it -- it's the municipality's determination certainly in the first instance with a great deal of flexibility how to address the question of homelessness and a time, place, and manner. And then municipalities should -- should be able to choose the place, should be able to choose the attributes of that place, should be able to say we're not going to allow more than, you know, 20 people or something, you know, to -- to regulate it in that manner. And I think the -- I think the principle, the Eighth Amendment principle, would be whether the -- the City has effectively prevented sleeping outside because the protections needed from the elements are not available. And, certainly, in Grants Pass, I would think even a blanket would not be enough on -- under some -- but I think that's the -- I Official 100 think that's the touchstone. Are you basically -- does it boil down to or is the core principle of Robinson that you can't criminalize homelessness, which includes not being able to criminalize sleeping outside? If you can't sleep outside because of lack of protection from the elements, I think that's the principle a court would -- would apply. But the Ninth Circuit, in a number of cases, has gone way beyond that, and we think that's really the source of the problems that have been identified in the briefs and not the core principle of -- of Robinson.

Justice Kagan: Thank you.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: Mr. Kneedler, I -- I want to probe this a little bit further because it -- it does seem to me the status/conduct distinction is very tricky. And I had thought that Robinson, after Powell, really was just limited to status. And now you're saying, well, there's some conduct that's effectively equated to status and -- but you're saying involuntary drug Official 101 use, you can regulate that conduct. That doesn't qualify as status. You're saying compulsive alcohol use, you can regulate that conduct in public. Public drunkenness, even if it's involuntary, that doesn't qualify as status, right?

Edwin S. Kneedler: Right.

Justice Gorsuch: You're saying you can regulate somebody who is hungry and has no other choice but to steal. You can regulate that conduct even though it's a basic human necessity, and that doesn't come on -- on -- under the -- under the status side of the line, right?

Edwin S. Kneedler: Yes.

Justice Gorsuch: Okay. But, when it comes to homelessness, which is a terribly difficult problem, you're saying that's different and -- because there are no beds available for them to go to in Grants Pass. What -- what about someone who has a mental health problem that prohibits them -- they're -- they -- they cannot sleep in -- in a shelter. Are they allowed to sleep outside or not? Is that status or conduct that's Official 102 regulable?

Edwin S. Kneedler: I -- I -- I think the -- the question would be whether that shelter is available.

Justice Gorsuch: It's available.

Edwin S. Kneedler: Well, no, available to the individual.

Justice Gorsuch: It's available to the individual.

Edwin S. Kneedler: But --

Justice Gorsuch: It's just because of their mental health problem, they cannot do it.

Edwin S. Kneedler: I -- I think there might be -- I mean, that's -- the mental health problem --

Justice Gorsuch: Status or conduct?

Edwin S. Kneedler: The mental health situation is itself a status.

Justice Gorsuch: Right, I know that.

Edwin S. Kneedler: Yes. But -- but if the -- if --

Justice Gorsuch: It has this further knock-on effect on conduct. Is that regulable --

Edwin S. Kneedler: I -- I -- Official

Justice Gorsuch: -- by the state or not?

Edwin S. Kneedler: -- I -- I think that -- I think that if the --

Justice Gorsuch: All the -- the -- you know, alcohol, drug use --

Edwin S. Kneedler: Right, right, right.

Justice Gorsuch: -- they have problems too and that that -- and -- and -- but you're saying that conduct is regulable. How about with respect to this pervasive problem of -- of persons with mental health problems?

Edwin S. Kneedler: I -- I think, in a particular situation, if the -- if the -- if the person would engage in violent conduct as --

Justice Gorsuch: No, no, no, don't mess with my hypothetical, counsel. (Laughter.)

Justice Gorsuch: I like my hypothetical. I know you don't. It's a hard one, and that's why I'm asking it. I'm just trying to understand --

Edwin S. Kneedler: I -- I --

Justice Gorsuch: -- the limits of your line. Official

Edwin S. Kneedler: I think it would depend on how serious the offense was on the -- on the individual.

Justice Gorsuch: It's -- it's -- it's a very serious effect. The mental health problem is serious, but there are beds available.

Edwin S. Kneedler: Well, what -- what I was trying to say, it would depend on how serious being required in -- to -- to go into that facility was on the person's mental -- if it would make his mental health situation a lot worse, then that may not be something that's --

Justice Gorsuch: So that's status -- that falls on the status side?

Edwin S. Kneedler: Well, I -- I -- I -- I guess you could put it that way, but I -- I guess what I'm saying is that --

Justice Gorsuch: I -- I -- that's what I'm wondering. I don't -- I'm asking you.

Edwin S. Kneedler: Well --

Justice Gorsuch: I really am just trying to figure out --

Edwin S. Kneedler: No -- no. You could view that as status or -- Official

Justice Gorsuch: You're asking us to extend Robinson, and I'm asking how far?

Edwin S. Kneedler: Well, what I was going to say, you could -- you could think of it as status, but I think another way to think about it, and this is our point about an individualized determination, is that place realistically available to that person because --

Justice Gorsuch: It is in the sense that the bed is available --

Edwin S. Kneedler: I know that it's --

Justice Gorsuch: -- but not because of their personal circumstances.

Edwin S. Kneedler: Right. Right. And that's -- and that's my point. It -- it's available in a physical sense. It may be available to somebody else, but requiring an individualized determination might include whether that person could cope in that setting. That's the only --

Justice Gorsuch: So that -- so that might be an Eighth Amendment violation?

Edwin S. Kneedler: Because it may not -- yes, it may -- because it's not available. Official

Justice Gorsuch: So that's an -- it's an Eighth Amendment violation to require people to access available beds in the jurisdiction in which they live because of their mental health problems?

Edwin S. Kneedler: If -- if going there would -- would --

Justice Gorsuch: How about if they have a substance abuse problem and they can't use those substances in the shelter? Is that an Eighth Amendment --

Edwin S. Kneedler: That is -- that is not a -- that is not a sufficient --

Justice Gorsuch: Why? Why? They're addicted to drugs, they cannot use them in the shelter. That's one of the rules.

Edwin S. Kneedler: Well, if they -- if they -- if it's the shelter's rule, then they have no -- they -- they -- they can't go there if they're -- if they're addicted. That's not -- that's not --

Justice Gorsuch: So that's an Eighth Amendment -- that's an Eighth Amendment violation?

Edwin S. Kneedler: Well, no, the -- the -- Official 107 the Eighth Amendment violation is prohibiting sleeping outside because the only shelter that is available won't --

Justice Gorsuch: Is not really available to -- to that person?

Edwin S. Kneedler: -- won't -- won't take them -- won't take them, yes. And that's an individualized determination.

Justice Gorsuch: Same thing with the alcoholic?

Edwin S. Kneedler: Yes.

Justice Gorsuch: Okay. So the alcoholic has an Eighth Amendment right to sleep outside even though there's a bed available?

Edwin S. Kneedler: If -- if the only shelter in town won't take him, then I think he's in exactly -- he's in the same -- he's in the same condition. And there can be all sorts of reasons, and the City doesn't normally --

Justice Gorsuch: And -- and judges across the country are now going to superintend this under the Eighth Amendment?

Edwin S. Kneedler: I -- I actually don't think that it -- it requires the -- again, I don't think we should let the Ninth Circuit Official 108 decisions --

Justice Gorsuch: No, you -- you -- you want to --

Edwin S. Kneedler: -- characterize this.

Justice Gorsuch: Okay. You -- you don't like the class certification, but that question's not before us, counsel.

Edwin S. Kneedler: No, but all we're talking about is the core principle of Robinson, which is you cannot punish someone for a status. And -- and if I think communities guided by that principle, and it's the only principle a court should be enforcing --

Justice Gorsuch: How -- how about --

Edwin S. Kneedler: -- would retain a lot of flexibility.

Justice Gorsuch: How about if there are no public bathroom facilities? Can -- do people have an Eighth Amendment right to defecate and urinate outdoors?

Edwin S. Kneedler: No, we -- we --

Justice Gorsuch: Is that conduct or is that status?

Edwin S. Kneedler: I -- I -- it's, obviously, there -- there is conduct there and Official 109 we are not suggesting that cities can't enforce their --

Justice Gorsuch: Why -- why not, if there are no public facilities available to homeless persons?

Edwin S. Kneedler: The -- the -- that situation, you know, candidly, has never arisen. And whether or not there -- I mean, in the litigation as I've seen. But no one is suggesting and we're not suggesting that public urination and defecation laws cannot be enforced because there are very substantial public health reasons for that.

Justice Gorsuch: Well, there -- there are substantial public health reasons with drug use, with alcohol, and with all these other things too.

Edwin S. Kneedler: And they can all be --

Justice Gorsuch: And you're saying the Eighth Amendment overrides those. What -- why not in this circumstance right now?

Edwin S. Kneedler: No, I'm not -- I'm not saying the Eighth Amendment overrides the laws against drug use.

Justice Gorsuch: Oh, I know that. Official

Edwin S. Kneedler: Oh -- oh, I'm -- I'm sorry. It's something --

Justice Gorsuch: I know that.

Edwin S. Kneedler: No, I misunderstood what you --

Justice Gorsuch: That one -- that one the government wants to keep. I got that.

Edwin S. Kneedler: No, I -- I misunderstood your question. Sorry.

Justice Gorsuch: Yeah. Last one. How about -- how about fires outdoor -- outdoors? I know you say time, place, and manner, but is there an Eighth Amendment right to cook outdoors?

Edwin S. Kneedler: No. I -- I -- I -- I think what -- what --

Justice Gorsuch: That's -- that's an incident -- a human necessity every person has to do.

Edwin S. Kneedler: But this -- this -- but this is one -- this is one of those things that, you know, is taken care of on the ground as a practical matter. There are restaurants where someone can go. There are --

Justice Gorsuch: Well, no, no, we're Official 111 talking about homeless people.

Edwin S. Kneedler: No.

Justice Gorsuch: They're not going to go spend money at a restaurant necessarily. Let's --

Edwin S. Kneedler: Well, the -- there -- there may be inexpensive places. Some people get --

Justice Gorsuch: Let's say there isn't, okay?

Edwin S. Kneedler: And --

Justice Gorsuch: Let's say that there is no reasonable --

Edwin S. Kneedler: And -- and the local community --

Justice Gorsuch: Do they have a right to cook? They have a right to eat, don't they?

Edwin S. Kneedler: They have -- they have a right to eat, a right to cook if it entails having a fire, which I think it -- it -- it probably -- it probably would, but -- but, as I said, the -- the -- the eating, the feeding is taken care of in most communities by nonprofits and churches stepping forward --

Justice Gorsuch: But if -- but if Official 112 there isn't --

Edwin S. Kneedler: -- as they have for 200 years.

Justice Gorsuch: -- but, if there isn't, there's an Eighth Amendment right to have a fire?

Edwin S. Kneedler: No, no, we are not saying there's an Eighth Amendment --

Justice Gorsuch: Well, I thought you just said there was.

Edwin S. Kneedler: Well, there -- there -- there's food that you can eat without cooking it. I mean, they -- and they could get a handout from the -- from a -- from -- from an individual that, you know, people can beg for money. I mean, there are -- there are ways that this works out in practice.

Justice Gorsuch: Last -- last question. I -- I -- I'm totally sympathetic to the idea that there might be a necessity defense in these cases, and there's a footnote in your brief that indicates that in a lot of cases you could -- you could maybe bring advance preliminary injunctive action at least as individuals. And I don't even see why you Official 113 couldn't do it on a class-wide -- a class-wide basis.

Edwin S. Kneedler: Yeah, we -- we haven't ruled out class, we haven't ruled out class -- class action.

Justice Gorsuch: Well, I thought you did in that footnote. You said, you know, the -- the whole mistake here is that this was done on a class-wide basis. Why couldn't it --

Edwin S. Kneedler: I think without -- without -- without sufficient inquiry into the individual circumstances is what, particularly with the two class representatives here.

Justice Gorsuch: Thank you.

Chief Justice Roberts: Justice Kavanaugh?

Justice Kavanaugh: You just said a minute ago that a lot of this is taken care of on the ground as a practical matter. And I think one of the questions is, who takes care of it on the ground? Is it going to be federal judges, or is it the local jurisdictions with -- working with the nonprofits and religious organizations? So I guess following up on the Official 114 necessity question, given the line-drawing problems that we've been going through, if a state has a traditional necessity defense, won't that take care of most of the concerns, if not all, and, therefore, avoid the need for having to constitutionalize an area and have a federal judge superintend this rather than the local community, which you've emphasized many times working with the nonprofits and charitable and religious organizations, which is how it works in most places?

Edwin S. Kneedler: Well, I -- I think that the necessity defense at least traditionally has required a much stronger sense of urgency and imminence than -- than this. What -- if states had a necessity defense and we knew that it was available in all of these places, but even in -- in Oregon, I think it's a case called Barrett, the Court said it's theoretically possible, but there was a remand for factual issues. So we don't -- we don't know at this point in time whether -- whether there is such a defense. And that's really not in the -- in the -- in the case here. This comes up on an Eighth Amendment challenge without -- without Official 115 reference to the necessity defense and, frankly, without reference to the new Oregon statute, which seems highly instructive in terms of time, manner, and place that jurisdictions -- Grants Pass should examine. But I -- I don't think we can -- I -- I don't think the Court should put this core point about Robinson to one side because, in -- of the possibility that in Oregon and maybe, you know, maybe no other place, I don't know about California law of necessity, maybe it would be taken care of. I think, at this point in time, that is too speculative.

Justice Kavanaugh: Well, usually we think about before constitutionalizing an area or extending a constitutional precedent, you might disagree with that characterization, but before doing that, we usually think about whether state law, local law already -- already achieves those purposes so that the federal courts aren't micromanaging homeless policy. And it's -- and it's on a daily basis when you work with the homeless. It's a daily issue, how many people are going to show up that day at the food bank, how many people are going Official 116 to show up that day at the shelter. So it's not like this is a once-a-year thing.

Edwin S. Kneedler: Yeah, no. For -- for the people actually dealing with it day to day, that is certainly true, the -- the City, the law enforcement, the City liaisons, the nonprofits. But it's not true for the federal court. The federal court doesn't have to get into any of that. The only time the federal court would get into it is when -- is if the core principle of -- of Robinson was being disregarded by not -- by criminalizing somebody for sleeping outside when they have no place to sleep inside. That's the core principle. That's the only thing a court should be enforcing, not the -- not whether people -- whether people show up. And the -- the thing I would -- another thing I would say about the necessity defense, it -- it may be that if -- if -- if the Court issues an appropriate injunction in this case or another case limited to the core principle of Robinson, but it develops or the state law develops that there is a necessity defense, then I think that should be taken into Official 117 account. I mean, that's in effect the time, manner, and place or -- or similar to that. If state law comes -- comes along and establishes a -- a realistic defense or a realistic approach to how people can remain in the -- in the community, then the courts obviously should defer to that. But we don't have that established state law at this time. And I don't think the Court should decline to address this question, which is important in the Ninth Circuit, both because the principle that those courts recognize should be sustained but the approach they've taken should not.

Justice Kavanaugh: Last question I have on the food hypotheticals about stealing to feed yourself or cooking to feed yourself. You kind of waved all those away by, oh, that's all taken care of by local communities, nonprofits, and religious organizations, and by and large, heroic efforts each day to make sure that happens, but it doesn't always happen by any stretch.

Edwin S. Kneedler: No, it -- it -- it doesn't always happen. Official

Justice Kavanaugh: And then what?

Edwin S. Kneedler: But homeless people are resourceful. They have friends who are also homeless. They may -- they may know people in town. They may beg for money. And the -- the -- the towns are -- are coping in the same way, frankly, that individual homeless people do. They do the best they can under the circumstances. But that -- if -- if those circumstances fail and the nonprofits, et cetera, can't -- you know, the truck doesn't show up one night, that doesn't become an Eighth Amendment problem. And -- and -- and we're by no means suggesting that there should be a federal judiciary overlay on top of all that. The cities and the nonprofits should be left alone to do the work that they're doing, unless the core principle of Robinson is not respected.

Justice Kavanaugh: Thank you.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: So one odd thing about the posture of this case, putting aside the class part, is its pre-enforcement nature, Official 119 because, in Robinson and in Powell too, the punishment -- you know, the -- the adjudication of guilt had already occurred and it was time for the punishment to be to imposed, and then the Eighth Amendment challenge was raised. And Justice Alito was asking you about a lot of the very difficult on-the-ground factual determinations that law enforcement would need to make before deciding whether someone could be given a citation for camping outdoors. Why wouldn't it make more sense, assuming that we agree in substance with the line that Robinson would control here, why wouldn't it make more sense for the Eighth Amendment claim to be a raised as a defense, much like the necessity defense, once a court is in a position, unlike the law enforcement officer just trying to gather information on the ground, to determine whether there were available beds, whether the person had a place to go? Why is a pre-enforcement challenge the right way to think about this?

Edwin S. Kneedler: Well, several things. It -- it obviously could be raised as a defense in a -- in a criminal prosecution or civil Official 120 citation.

Justice Barrett: Sure. But does it --

Edwin S. Kneedler: But -- but -- but I think --

Justice Barrett: -- make sense to think about it in this way --

Edwin S. Kneedler: -- for this particular Eighth Amendment claim, the -- the claim is that the Eighth Amendment prohibits the criminalizing the act to begin with. So the -- the -- the -- it's not just the punishment that would be --

Justice Barrett: Well, I mean, I --

Edwin S. Kneedler: -- meted out at the end of the day.

Justice Barrett: -- I understand that. I mean -- let's see -- I do understand that, but it's not that it categorically prohibits punishing this act. I mean, as -- as one might say if it, you know, prohibited sleeping altogether for everyone, right, this is because it -- the Eighth Amendment claim is that it punishes, criminalizes this act in a way that falls disproportionately and unconstitutionally on a particular class of people. Official 121 And that requires adjudication at the front end to figure out whether someone is protected or unprotected. If -- if I go and sleep in an encampment, I can be cited. It -- it -- it's different. There's a factual determination on the ground. And Robinson was a status-based challenge, and it came up in the context of the individualized criminal proceeding. So why is a pre-enforcement challenge -- why does it make sense given the very, very fact-intensive nature of this?

Edwin S. Kneedler: Well, and -- and -- and in -- you know, in a -- in a -- in an individual case, I think you're right, but imagine a situation where someone who genuinely had no other place to live and it's the third citation, the fourth citation, and -- and the -- you -- you have a pattern as to that person or -- or other people where the city is -- is consistently not respecting the Robinson principle. Then I think you might have a pre-enforcement review, just as you might for an asserted violation of some other constitutional right because, here, again, it's -- it's not the Official 122 Eighth Amendment regulating only the punishment for an otherwise valid conviction. Here, the question is whether the -- the City can criminalize that conduct at all. And so, if -- if you have a series of citations that don't rise to the level of probable cause or whatever would be -- necessary -- excuse me -- necessary for the issuance of a citation where the -- the law enforcement officer on the ground is not respecting the -- the Robinson principle, then you might have an injunctive action.

Justice Barrett: But this would be the first case, right, because it didn't happen in Robinson itself, where we had -- where we required -- where we had a pre-enforcement challenge on the basis of the Eighth Amendment to the criminalization of certain conduct, putting policemen in -- in this situation, right?

Edwin S. Kneedler: But -- but I suppose, in -- in -- in Robinson itself, if the person had been arrested once, been arrested a second time, and then he's arrested a third time, I would think he could bring a pre-enforcement Official 123 challenge because the way the police were interacting with him was not respecting the Robinson principle with respect to Robinson himself.

Justice Barrett: How does the federal government do this? So, in the brief, you talked about clearing the encampment at McPherson Square. Can you just describe, I mean, in -- briefly if you can, I mean, do police then make individualized inquiries? How does this work?

Edwin S. Kneedler: Well, what happened there was the -- you know, was I -- I -- I think the gold standard of -- of the way this should be done, and -- and larger cities have this ability. This -- the Park Service cooperated very closely with the District government. The Park Service does not have the sort of social services, et cetera, that a municipality has in D.C. And so that function is sort of split. These are special National Park properties. But the -- the National Park Service relies, as the federal government does, the Federal Protective Service for buildings elsewhere, cooperates with the local government. Official 124 But -- and -- and the local government's social service people or the nonprofits went out and interviewed everybody who was in the -- who was in the encampment at McPherson Square and -- and told them about what services are available. There was advance notice given that the encampment is going to be cleared within I -- I think it was 30 days. And people were -- so people were warned 30 days in advance. They were warned the night before, the day before, so they could collect their things. Some just moved somewhere else. Some did take the -- the city up on the offer. Some went into shelters. So that -- and that's the way that shelters are -- are -- excuse me -- encampments are typically cleared, is the -- and particularly in -- in cities where you've gotten a number of amicus briefs explaining the problem. That's what happens. It isn't the -- it isn't the example we've been talking about where the law enforcement officer for the first time is encountering the person. Smaller cities don't have that capability, but Grants Pass does have Official 125 these outreach workers and that's who -- that's who carries on the -- the dialogue. And so that's the way it was cleared.

Chief Justice Roberts: Justice Jackson?

Justice Jackson: And so, given that experience and the fact that Martin has actually been the law since 2018, we don't really have to speculate as to how this works, right? I mean, this is happening -- this is the law right now in the Ninth Circuit.

Edwin S. Kneedler: The -- the -- the Robinson principle is the law.

Justice Jackson: The -- the Robinson principle as adopted in Martin. My understanding is, for example, California says that's the law, we comply with it, and there we are.

Edwin S. Kneedler: Yeah. They -- they -- they are not asking for Robinson to be overruled. What they're objecting to is the injunctions that go well beyond that by --

Justice Jackson: Yes, I understand. I'm just sort of responding to some of the questions that you've gotten as to sort of how Official 126 does this rule work, can it work, that sort of suggest that it's not already happening on the ground in these places, that the shelters and the workers are aware of what is available, that people are being advised, that, you know, the principle of Martin at least in the Ninth Circuit is we hold that so long as there's a greater number of homeless individuals in a jurisdiction than the number of available beds, the jurisdiction cannot prosecute homeless individuals for sitting, lying, sleeping. This is not a new rule. That's what the law is right now in that situation, right?

Edwin S. Kneedler: Yeah, that -- that's what -- that's what Martin -- I don't want to say that the -- the clearance procedures work perfectly in every case or that they're available in every case, but --

Justice Jackson: No, I just want to say we don't have to speculate about how the rule works.

Edwin S. Kneedler: Or -- yeah, or how it's --

Justice Jackson: It's not a new thing that is being asked for today. Official

Edwin S. Kneedler: How it's -- how it's supposed to work.

Justice Jackson: Yes.

Edwin S. Kneedler: All I'm saying is that there -- there may be imperfections --

Justice Jackson: All right. Let me ask you about whether or not you are asking for an extension of Robinson. That's come up a couple times, and I don't -- I don't -- I don't see it as an extension or whether that's being asked for. So can you explain whether there's some sort of extension of Robinson --

Edwin S. Kneedler: No.

Justice Jackson: -- happening today?

Edwin S. Kneedler: No, I don't think so at all because, as I said, the -- the sleeping outside is -- is an essential human function, and if you say someone can't sleep outside, that's -- that's sort of -- or -- or has no place to sleep inside, that's the definition, really, of -- of homelessness.

Justice Jackson: So you're not suggesting that people should be excused from engaging in otherwise criminal conduct? So we've heard this example about people stealing Official 128 in order to eat. I mean, that would be a situation in which someone is actively participating in what would be otherwise criminal behavior --

Edwin S. Kneedler: Yes.

Justice Jackson: -- if anybody did it.

Edwin S. Kneedler: Yes.

Justice Jackson: And -- and the idea, I guess, is that, well, maybe these people need to do it, and so that might be some sort of excuse. That's not what's happening in the facts here, correct?

Edwin S. Kneedler: No. That -- that's correct. And one -- one thing that I think is important to keep in mind in this is, if Grants Pass can do this, so could every other city. So could a state do it state-wide. And, eventually, a homeless person would have no place to be, lawfully be.

Justice Jackson: So this is more like the sort of initial hypo of criminalizing eating outside, not that you'd be doing something that was otherwise criminally culpable?

Edwin S. Kneedler: Yeah. Yes. I mean, I Official 129 suppose there could be ordinances that the City would have about where you can -- you know, you can't eat at -- can't consume for the --

Justice Jackson: That's time, place, and manner.

Edwin S. Kneedler: Yes.

Justice Jackson: Final question with respect to you mentioned states doing this. Why isn't the federal government arguing that this case is moot in light of 195.530? This is the Oregon recently passed statute that I mentioned earlier. Why -- why -- why doesn't the government read that law as I do to prevent Grants Pass from -- enforcing its ordinances to block sleeping outdoors at all places and all times?

Edwin S. Kneedler: Yeah, no, I -- I -- I certainly agree that there appears to be a -- a pretty stark inconsistency between that state law and the ordinance. It hasn't been applied. It has to be objectively reasonable, I think --

Justice Jackson: So would the federal government --

Edwin S. Kneedler: -- but this isn't time, place, and manner at all. Official

Justice Jackson: Right.

Edwin S. Kneedler: But -- but --

Justice Jackson: So what would the -- what would your position be if the Court decided that as a matter of constitutional avoidance or whatever else that we don't need to hear this or reach this decision in this case given this new state ordinance?

Edwin S. Kneedler: That -- that would be one possibility. It wouldn't answer the core Robinson principle point and -- and the limitations on -- on that point that has -- that has triggered the amicus briefs.

Justice Jackson: Right. But our typical rule is --

Edwin S. Kneedler: Yes.

Justice Jackson: -- that if there's some other way, we don't necessarily comment on constitutional issues, correct?

Edwin S. Kneedler: Right. And -- and -- yes. And -- and that would be -- that would be one course to see how -- what time, place, and manner meant under state law and how -- how the Eighth Amendment could accommodate that or take it into account. Official

Justice Jackson: Thank you.

Chief Justice Roberts: Thank you, counsel. Ms. Corkran. ORAL ARGUMENT OF KELSI B. CORKRAN ON BEHALF OF THE RESPONDENTS

Kelsi B. Corkran: Mr. Chief Justice, and may it please the Court: Robinson v. California holds that status-based punishment schemes are categorically cruel and unusual under the Eighth Amendment. The challenged ordinances inflict status-based punishment in both effect and purpose. Although the City describes its ordinances as punishing camping on public property, it defines campsite as anyplace a homeless person is while covered with a blanket. The City interprets and applies the ordinances to permit non-homeless people to rest on blankets in public parks while a homeless person who does the same thing breaks the law. The ordinances by design make it physically impossible for homeless people to live in Grants Pass without facing endless fines Official 132 and jail time. The only question under Robinson is whether there's any meaningful difference between a law that says being homeless is punishable and a law that says being homeless while breathing or sleeping or blinking is punishable. In other words, does adding a universal human attribute to the definition of the offense make the punishment conduct-based instead of status-based? The answer is no. The purpose and effect of the second statute is exactly the same as the first, to make people with a status endlessly and unavoidably punishable if they don't leave Grants Pass. Indeed, all the ordinances do is turn the City's homelessness problem into someone else's problem by forcing its homeless residents into other jurisdictions. The injunction below leaves the City with an abundance of tools to address homelessness. It can impose time, place, manner restrictions on when and where homeless people sleep. It can ban tents and clear encampments. It can enforce a sleeping ban Official 133 against homeless people who decline shelter. And it can fully enforce its laws prohibiting littering, public urination and defecation, drug use, and violent or harassing behavior. The only tool the City wants that it doesn't have is authority to impose a 24/7 City-wide sleeping ban that forces its homeless residents to either move to another jurisdiction or face endless punishment. The state police power is broad, but it does not include the power to push the burdens of social problems like poverty on to other communities or the power to satisfy public demand by compromising individual constitutional rights. I welcome the Court's questions.

Justice Thomas: In Robinson, there was a statute that outlawed -- that said that "to be addicted" is a crime. Is there an ordinance here that says "to be homeless" is a crime?

Kelsi B. Corkran: So the language for the purposes of a temporary place to live bakes homelessness into the -- the definition of the offense. Justice Sotomayor was talking about Official 134 that earlier. So, when you combine that language with the -- the rest of the camping definition, what you have is an ordinance that says being homeless while sleeping with a blanket is punishable. And as I just said earlier, the question becomes when you attach the status to the universal attribute of -- of sleeping, does it then transform the offense into conduct-based punishment instead of status-based punishment, and I think the answer is no.

Chief Justice Roberts: A number of us, I think, are having difficulty with the distinction between status and conduct. You'll acknowledge, won't you, that in -- that those terms, there's a difference between being addicted to drugs and being homeless? In other words, someone who's homeless can immediately become not homeless, right, if they find shelter. Someone who is addicted to drugs, it's not so -- so easy. It seems to me that in Robinson, it's much easier to understand the drug addiction as an ongoing status, while, here, I think it is different because you can Official 135 move into and out of and into and out of the status, as you would put it, as being homeless.

Kelsi B. Corkran: Yeah. So it's interesting, we today understand addiction as an immutable status. In Robinson, the Court suggested that someone might be -- be recovered and no longer have the status of addiction. So the Robinson Court wasn't thinking about addiction as something that couldn't change over time.

Chief Justice Roberts: Well, that may limit the applicability of Robinson to a different situation, but what is the -- I mean, what is the analytic approach to deciding whether something's a status or a situation of conduct?

Kelsi B. Corkran: So the question is a status is something that a person is when they're not doing anything. So being addicted, having cancer, being poor, are all statuses that you have apart from any conduct.

Chief Justice Roberts: Having cancer is not the same as being homeless, right? I mean, maybe I'm just repeating myself because homelessness can -- you -- you can remove the Official 136 homeless status in an instant if you move to a shelter or situations otherwise change. And, of course, it can be moved the other way as well if you're kicked out of the shelter or whatever. So that is a distinction from all these other things that have been labeled status, isn't it?

Kelsi B. Corkran: I -- I don't think so because, you know, a cancer patient can go into remission, they no longer have that status. I don't think -- I mean, I don't think there's any question that being poor is a status. It's something you are apart from anything you do. It's a status that can change over time, and at that point, you wouldn't be a part of the class, but I don't think it changes the fact that it is a status. And what Robinson found so offensive about status-based conduct --

Chief Justice Roberts: Well, I guess is -- is being a bank robber a status?

Kelsi B. Corkran: No, because being a bank robber means you rob banks. So -- so the definition and the conduct --

Chief Justice Roberts: Violating this Official 137 ordinance means upon being asked to leave you don't leave.

Kelsi B. Corkran: Violating this ordinance means you're homeless. So, again, homelessness is not something you can -- that you do. It's just something that you are. And so the question becomes, when you attach the universal human attribute of sleeping or breathing to that status, does it make the punishment conduct-based instead of -- of status-based and I -- I think the answer is yes.

Justice Sotomayor: Counsel, Edwards v. California in 1941 struck down a law that made it a crime to transport an indigent person, correct?

Kelsi B. Corkran: Yes.

Justice Sotomayor: Indigency is not -- is a condition that can change over time, but the law was aimed at the transport of a person who wasn't morally reprehensible.

Kelsi B. Corkran: Yes. I think that's notable because our history and tradition as a country is to emphatically reject any sort of local legislative scheme that has the effect of pushing the burdens of poverty or indigency into Official 138 other communities. It's woven throughout through our Constitution. So Edwards located it in the Dormant Commerce Clause. We have Saenz v. Roe, which locates it in the Privileges or Immunities Clause; Papachristou addresses that status-based punishment in the context of procedural due process. What Robinson held is that when that expulsion is effectuated through status-based punishment, it violates the Punishments Clause.

Justice Barrett: How do you define a community? So Justice Alito was describing how New Jersey has so many tightly woven municipalities close together and, here, you know, the Chief Justice was asking about whether if Grants Pass, if there were -- was a new homeless shelter with lots of beds right across the border 10 minutes away, you know, could that be taken into account. And I think there was some back and forth and not necessarily agreement on that. What is your position? How do you define a -- define a community? Take that example of a Official 139 homeless shelter right outside the limits of Grants Pass.

Kelsi B. Corkran: Yes. So to -- so to answer that hypothetical first, I'm not concerned -- I don't have any problems with saying that a homeless person in Grants Pass has legal and physical access to a shelter that's just over the lines if that's, in fact, true. Lots of jurisdictions limit their homeless shelters to people who are residents. So -- and just to be clear, there was no suggestion in the record here that there were any shelters available outside of Grants Pass.

Justice Barrett: Understood. But -- so community doesn't need to be determined by jurisdictional lines is what you're telling me --

Kelsi B. Corkran: No.

Justice Barrett: -- as a matter of -- because I -- I -- let's see, I'm asking all of this because, in response to Justice Sotomayor, you were pointing out that our -- you know, our nation has a history and tradition of not saying you can shunt homeless people or the poor out of your jurisdiction and on to others. Official 140 So -- or out of your community and on to others is I think how you -- how you phrased it. So I'm asking, how do we know what those lines are? And you're saying it doesn't have to be jurisdiction-specific.

Kelsi B. Corkran: No. I think jurisdiction matters because that tells us kind of the lines in which the -- whatever ordinance or statute applies. So, when shelter is available, the ordinances are enforceable because they punish the conduct of not going to the shelter, as opposed to the status of homelessness. So I think that a -- a municipality can punish the conduct of not going to a shelter that's just over the line if you have physical and legal access to it. Now, for the reasons you say -- and this dates back to our -- our settlement system at the Founding Era -- a lot of municipalities do not allow people from outside of the jurisdiction to use their shelters, and so, under those circumstances, the shelter wouldn't be legally available.

Chief Justice Roberts: Is that cruel and unusual punishment for them to turn away Official 141 someone who wants to use their shelter?

Kelsi B. Corkran: No, that wouldn't be punishment. Punishment is the infliction of suffering for a crime.

Justice Jackson: Counsel, I --

Chief Justice Roberts: Well, then -- then why is the Eighth Amendment implicated in this case?

Kelsi B. Corkran: Because, here, we have fines and jail time. We have a status-based punishment scheme that is, in fact, inflicting punishing -- punishment within the meaning of the Eighth Amendment.

Justice Barrett: Counsel, do you want to -- oh, I'm sorry, Chief. Were you finished?

Chief Justice Roberts: No, I'm done. That's fine.

Justice Barrett: Do you want to address some of the line-drawing problems that we've been going back and forth? I mean, Justice Gorsuch pointed out, you know, eating is a basic human need, and it's not the case that soup kitchens or social services will always be able to meet it, and so he asked about whether the Eighth Amendment would prohibit punishment Official 142 for stealing food. You might ask the same questions about trespass and squatting in structures if there are -- you know, if -- if that was the best alternative. So how do we -- how do we draw these difficult lines about, you know, public urination and those sorts of things?

Kelsi B. Corkran: So I'll start with stealing food. Stealing food is not part of the definition of homelessness, and it's also not a universal attribute. So -- so I -- I put that outside the scope of any of the arguments we're making here. With respect to public urination and defecation, if you had a -- I don't think this would ever exist, but if you had a law that said homeless people cannot urinate or defecate anywhere within city limits, I -- I think then it starts to look like this case. But, if you're saying that people can't urinate or defecate on public property, it is almost -- it -- it's hard to imagine a situation where --

Justice Barrett: They have no place else to go. So a homeless person, there -- there's no facilities available, and a homeless Official 143 person has no place else to go. How could a --

Kelsi B. Corkran: You might have a -- I mean, there are commercial establishments. I -- I don't know that anyone's pointed to a jurisdiction where you truly don't have access. But if we hypothetically --

Justice Barrett: Well, what's the constitutional principle?

Kelsi B. Corkran: Right.

Justice Barrett: Take my hypothetical. Say there -- there's not -- commercial establishments don't want non-patrons coming in to use the facilities, there are no public facilities, and it's a generally applicable rule that says no public urination.

Kelsi B. Corkran: So I think, there, one distinction between urination and defecation and sleeping is that sleeping outside is part of the definition of homelessness, right? Homelessness is lacking a fixed, regular nighttime address. So the -- the sleeping prohibition goes more directly to the status of homelessness than urination or defecation.

Justice Barrett: So it would not -- so it would not violate the Eighth Amendment to Official 144 punish public urination and defecation?

Kelsi B. Corkran: You might come up with some different theory, but it's not the theory that we're -- we're putting forward in this case.

Justice Barrett: Not the theory that you're -- okay.

Kelsi B. Corkran: Yes.

Justice Kagan: What do you think, Ms. Corkran, of this idea that Oregon's necessity defense essentially functions as an Eighth Amendment in this context, so we don't have to constitutionalize the kinds of limits that you're talking about?

Kelsi B. Corkran: Yeah, I would say it's not at all clear that that's true. As Mr. Kneedler pointed out, you know, there is a necessity defense in Oregon law, but, so far, the Oregon courts have not applied it to this circumstance. It also wouldn't necessarily be available for the fines, the citations, we have here. But I think that this question about the availability of the necessity defense really goes to the injunctive posture of the case. Official 145 It's not going to come up if you're in the -- you know, you're -- if you're presenting the Eighth Amendment as an affirmative defense at the same time as a necessity defense in a criminal prosecution, right, the -- the -- it kind of moots out the -- the Eighth Amendment claim. But going to Justice Barrett's questions about injunctive relief, there, the question you're asking is, does the plaintiff have a credible threat of -- of future punishment? I'd say first that the injunctive relief is not before the Court. The City has not challenged the propriety of the in -- injunction here. So I think it's a question for another day. The courts here did find that the plaintiffs had shown a credible threat of future punishment, and so I think that resolves the issue for the -- for this case.

Justice Gorsuch: Counsel, along those lines, we -- we haven't mentioned it yet, but in the briefing, there's a lot of discussion about the fact that Robinson's Eighth Amendment holding with respect to status came without any Official 146 adversarial testing, wasn't what was argued by the parties, it didn't have a whole lot of citation or support, it came kind of in a breezy paragraph.

Kelsi B. Corkran: Right.

Justice Gorsuch: And some have suggested that that's really a mistake because the Eighth Amendment's about punishments. It doesn't prevent states -- limit states' capacity to engage in passing laws that make conduct or actions or anything a crime. It just goes to the nature of what punishments follow, putting aside the Excessive Fines Clause.

Kelsi B. Corkran: Yeah.

Justice Gorsuch: So there's a lot of discussion then in the brief about that and some -- some suggestion that, really, it's the Fourteenth Amendment that should be doing work here, if there is work to be done, because some form of the necessity defense has been always understood as inhering in due process from the founding and whether that can be enforced through state laws, which might differ, Kansas versus Kahler, but have to -- have to nonetheless cover the territory, and whether Official 147 there might be injunctive relief on that basis, possible in advance, not limited to defenses, possible. What -- just reactions to that. I -- I -- we haven't yet touched on.

Kelsi B. Corkran: So Robinson predates Graham v. Connor, but I think it -- it espouses the same principle, which is, when you can identify an explicit textual source for a right, you locate the right in that amendment and not more generalized notions of due process. And so what the Robinson Court did was they --

Justice Gorsuch: Well, but, here, the more -- the more -- the more limited -- I mean, let me just --

Kelsi B. Corkran: Yeah.

Justice Gorsuch: -- play with that for a minute. The more natural home for a necessity-type argument is due process. That's where it's always historically been understood to lie, not the -- not an amendment having to do with punishments, right? One has to do with what you can criminalize. The other has to do with the punishments that follow. And you're not really attacking the Official 148 punishments here. You're saying any punishment is impermissible.

Kelsi B. Corkran: Oh, right.

Justice Gorsuch: And -- and any punishment's impermissible. And that -- that is a necessity defense. That's a classic necessity defense.

Kelsi B. Corkran: So I think that it's -- it's right that Robinson describes what it was doing as saying that the Eighth Amendment prohibited the criminalization. You see that language in I think Weems and Wilkerson v. Utah. I -- I agree it seems like a bit of a strange fit.

Justice Gorsuch: So, if that's the case, if -- if that's the case, let me just -- you know, wouldn't that get rid of this awful status/conduct distinction that we have -- that we're struggling with here today? Because, if it's a necessity, it doesn't matter why it's a necessity. It's in -- it -- it -- every person can make their own argument about why it was necessary, and then the courts will decide. We don't get into the status/conduct stuff that -- that Robinson seems to invite. Thoughts? Official

Kelsi B. Corkran: Well, but that's -- here, we don't have necessarily a necessity defense, so that wouldn't be very satisfying --

Justice Gorsuch: You don't think your clients have a good necessity defense?

Kelsi B. Corkran: The Oregon courts so far have not applied the Oregon --

Justice Gorsuch: I -- I didn't ask whether the courts --

Kelsi B. Corkran: Yeah.

Justice Gorsuch: -- have applied it. You haven't asked them to apply it, and you're --

Kelsi B. Corkran: They -- they've had a couple of cases like this.

Justice Gorsuch: Have they?

Kelsi B. Corkran: Mr. Kneedler referred to the Bartlett case.

Justice Gorsuch: And how are they going?

Kelsi B. Corkran: The -- so far, they have not applied the necessity defense. They left open the possibility that it might apply, but they haven't applied it --

Justice Gorsuch: Why not? Official

Kelsi B. Corkran: -- yet. They didn't find that it was necessary under those circumstances. And, again, we --

Justice Gorsuch: Did they rule out that it might be necessary under some circumstances?

Kelsi B. Corkran: They left open that possibility, but I'd also say the -- the civil citation or the -- I don't want to say "civil." It's a little murky. But the -- the fines here are -- are not subject, I don't think, or it's not clear, to the necessity defense. So it wouldn't take care of -- of the entirety of the claim.

Justice Gorsuch: You've got Excessive Fines Clause there, though, right?

Kelsi B. Corkran: Yes.

Justice Gorsuch: And that's not before us either?

Kelsi B. Corkran: We have raised the fines before this Court because our challenge is to the -- the package of punishments, and, historically, that's how the Court has looked at applying the Excessive Fines Clause and the Punishment Clause together. We're in a really Official 151 unfortunate posture here that we have claims that involve both fines and punishment, and yet we're only here on the Punishments Clause piece of it. It was one of the reasons we suggested this isn't a great vehicle. I -- I think the Court can say that, you know, it's not going to reach the fines because we won on that below, and so you can just focus on the -- on the -- the jail time for -- for criminal trespass.

Justice Alito: What is your definition of the status of homelessness? Is it the lack of a place to stay indoors on a particular night, or is it something broader than that?

Kelsi B. Corkran: So -- so homelessness --

Justice Alito: Does it require more than that?

Kelsi B. Corkran: Right. Homelessness is defined as lacking a fixed, regular, adequate nighttime address. So, if you have a home, you have a home -- I -- I -- I'm not homeless when I go to Grants Pass because I have a home in D.C. The second part of our class definition focuses on whether the homeless Official 152 person has access to shelter. That's not because that's part of the status. It's because, when someone has access to shelter, then the ordinances aren't punishing them for the status. It's punishing them for the conduct of not going --

Justice Alito: Well, I -- I asked the question --

Kelsi B. Corkran: Yeah.

Justice Alito: -- because, if homelessness is defined as simply lacking a place to stay indoors on a particular night, then there is an ironclad connection between the conduct, which is sleeping outside, and the status of homelessness. But if homelessness is defined to require more than that, then my question would be whether someone who is lacking a place to stay on a particular night or for a particular period of time is homeless if the reason why the person finds himself or herself in that status is, for example, the person refuses to take antipsych -- antipsychotic medicine that's been prescribed or refuses to go to drug rehab or rehabilitation for alcoholism or the person has Official 153 chosen to move from one place where the person might have a shelter or a home where the person could live to another place.

Kelsi B. Corkran: Yeah.

Justice Alito: What about all of that?

Kelsi B. Corkran: So the status of homelessness is something that only changes once the person has a home. You lose your home, you're homeless. If you have a home again, then you're not in the status anymore. I think what your question gets at is that second piece, which is whether a person has access to shelter. That can change from day to day. And so -- sorry, that's not --

Justice Alito: No, that's not really what my question gets at. The question is you can draw a distinction -- status is different from conduct, but there are some instances of conduct that are closely tied to status or, if homelessness is defined as simply lacking a place to stay on a particular night, they amount to the same thing. The definition of homelessness encompasses the conduct of sleeping outside. Official 154 So my question is whether this is -- what if the person finds that person in a homeless state because of prior life choices or the refusal to make future life choices? That's the question.

Kelsi B. Corkran: Yeah, yeah. So -- so our definition of lacking access to shelter is lacking physical or legal access to shelter. And you're looking at the person's situation on that particular night. I think, generally, we're not doing an inquiry into all of a person's life choices that might have led them to the point where they're homeless and can't find a place to sleep. Robinson certainly didn't do that sort of analysis with respect to addiction, but there could be situations where there is such a -- a tight causal nexus between a choice a person has made and their lack of shelter access that you would say this person has chosen not to take the shelter and to be very clear, if you decline shelter that is physically and legally available to you, you're not in our class -- you're in --

Justice Alito: Well, see, the -- the problem is that once you move away from the Official 155 definition that makes the inquiry basically tautological, then you get into the question of assessing the closeness of the connection between the status and the conduct. And you do run into problems with the person who's a kleptomaniac -- a kleptomaniac or a person who suffers from -- pedophilia. So how do you distinguish that? How does the Court assess how close the connection has to be?

Kelsi B. Corkran: So -- so, for both of those categories, the -- the -- the status is defined -- I don't know if status is the right word there -- being a pedophilia or having pedophilia is defined by the urge that you have, not by your conduct, and acting on that urge. So, if someone were to act on that urge, in a -- that tight causal nexus on why they didn't have access to shelter, then they would be outside of our claim.

Justice Jackson: I thought you made a very interesting remark in response to Justice Alito, and I'm just trying to clarify. You seem to say that homelessness, as you've defined it, is not lacking access to shelter on a particular night. Official 156 Is that -- am I right about that?

Kelsi B. Corkran: That's right. We're use -- I use the HUD definition, which is that homelessness means you lack a fixed, regular, adequate nighttime address.

Justice Jackson: So that kind of thing might -- going back to the Chief Justice's original question, that's not changing night to night --

Kelsi B. Corkran: No, I mean --

Justice Jackson: -- in the same way.

Kelsi B. Corkran: -- it can change over time in the same way that a cancer diagnosis could change over time, or -- but --

Justice Jackson: And then the other part that was interesting to me is that assuming that's your definition, homelessness lacking a fixed regular address, it -- when someone does have access to a shelter even though they lack a fixed regular address, the ordinance in that situation, I thought you said, is operating to punish the act of not going to the shelter --

Kelsi B. Corkran: Yes.

Justice Jackson: -- as opposed to punishing the status of being homeless. Official

Kelsi B. Corkran: Yes, that's -- that's the exact reason that reasonable time, place, manner restrictions aren't a problem because, if you have time, manner -- time, place, and manner restrictions, what you're doing is punishing the conduct of not going to sleep where you're allowed to go. That rationale doesn't work when someone has nowhere to go.

Justice Jackson: And can you speak to whether or not we should really be even getting into this in light of the new Oregon law?

Kelsi B. Corkran: So we didn't argue mootness. We made this point in our brief in opposition. We didn't say mootness just because we don't have an injunction under the Oregon law yet and it's not self-executing. I don't think there is any question that the ordinances fall under the Oregon law. I mean, it was intended to codify Martin. It requires that any sort of restrictions on sleeping or resting outside are reasonable with respect to homeless individuals. Clearly, the ordinances here don't meet that standard. So I -- I -- I certainly wouldn't have any concerns with the Court Official 158 saying, as a matter of constitutional avoidance, it appears this Oregon law resolves this whole issue, so we're, you know, dismissing as improvidently granted or however the Court wanted to -- to resolve the case.

Justice Jackson: Thank you.

Justice Sotomayor: So the plaintiff -- I'm sorry. The plaintiff who died here had used up her provisional stay credits at the time of class certification, so she no -- no longer had a shelter who was willing to take her. I think the hard hypothetical that Justice Alito was positing and in part Justice Gorsuch is the person who owns a dog.

Kelsi B. Corkran: Yeah.

Justice Sotomayor: Or let's say a mentally ill person -- person. Do you have the same response as the government?

Kelsi B. Corkran: So I -- I would like to live in a world where separating someone from their pet is cruel. But it's outside the scope of our claim because we are just talking about physical and legal access to shelter. So, if someone turns down a shelter offer that's physically and legally available Official 159 because of their dog, they would not be within the -- the scope of our claim. To -- to get to the mental health hypothetical, if a person -- if the person's mental health issues made the shelter either physically unavailable to them because, if they went there, they would be at substantial risk of bodily harm or death, then I would say the shelter isn't physically available. You could also have a shelter that won't take people with mental health problems, in which case it wouldn't be legally available to them. I would say that if the shelter is physically and legally available, then they're outside the scope of their -- our claim, but they might have ADA claims or some other law that applies that would restrict the City's ability to punish them for not going to that place, but it's outside our case.

Justice Sotomayor: Thank you.

Chief Justice Roberts: Thank you, counsel. Can you go from having a fixed regular address to not having one?

Kelsi B. Corkran: Yes. Official

Chief Justice Roberts: Can you go from not having one to having one?

Kelsi B. Corkran: Yes. People --

Chief Justice Roberts: Thank you. Thank you. Justice Thomas?

Justice Thomas: In Robinson, a narcotics officer testified that based on his experience, the marks on the defendant's arm suggested that he was an addict.

Kelsi B. Corkran: Yes.

Justice Thomas: Do we have anything like that where an expert testifies that these people -- that the individuals here are homeless?

Kelsi B. Corkran: So, here, the legal burden was on the plaintiffs to show that they were homeless. The lower courts found that their declarations and depositions satisfied that.

Justice Thomas: Well, what I'm interested in is the status. You say that this is the equivalent of Robinson, and I'm trying to determine where the status of homelessness was determined and how it plays a role in this case. Official

Kelsi B. Corkran: So it was determined based on the declarations and depositions of the -- the putative class members and named plaintiffs. It also, you know, we've talked a little about the ratio between beds to population. The Ninth Circuit ended up rejecting that as a hard-and-fast rule, but the lack of shelter beds in Grants Pass provides credibility to the putative class members' declarations when they say they have nowhere to go. I'd also say I don't understand the City to have ever contested that the named plaintiffs are homeless. What they contested is whether they had access to shelter --

Justice Thomas: I -- I think what's confusing me is that when I read the ordinance, the ordinance is an anti-camping ordinance. Would this -- would a -- would a backpacker who happens to be in the area for a few days be allowed to camp on -- on public property?

Kelsi B. Corkran: I don't -- I think theoretically no, but I would say that the City has never -- it was not able to identify any circumstance in which it had applied -- Official

Justice Thomas: Well, I understand that. But it -- but it -- it would apply to a backpacker?

Kelsi B. Corkran: So I -- I -- it would depend on the circumstances. The line that the police officers drew in their depositions was, if they saw a non-homeless person lying on a blanket, they wouldn't enforce the ordinance.

Justice Thomas: No, I'm saying some -- he's back -- I'm --

Kelsi B. Corkran: Yeah. So --

Justice Thomas: -- someone with a backpack who's been wandering around for a couple of years doing the continental divide or something.

Kelsi B. Corkran: So I can imagine -- I'm putting myself in the place of the officers who were deposed. If you gave them that hypothetical --

Justice Thomas: Yeah.

Kelsi B. Corkran: -- they might say no, that person isn't setting up a temporary place to live; they're just traveling through town. That -- that particular hypothetical didn't come up, but we do -- Official

Justice Thomas: So that would not violate the anti-camping ordinance?

Kelsi B. Corkran: I don't know. I mean, maybe this gets to the vagueness of the --

Justice Thomas: Yeah.

Kelsi B. Corkran: -- of the provisions, but --

Chief Justice Roberts: Justice Alito? Justice Sotomayor? Justice Kagan? Justice Kavanaugh?

Justice Kavanaugh: I think one of the premises of your argument is that this is not good policy for the homeless, and good policy would -- would help homeless individuals transition, get mental health treatment, get substance abuse treatment, job -- job assistance, and that this doesn't -- doesn't fulfill those objectives. And maybe you -- maybe you're not saying that, but I'm curious whether you think this is good policy in terms of incentivizing or bad? You -- you must think it's bad, and I'm curious why.

Kelsi B. Corkran: Yeah, I don't think Official 164 we've made that argument. It certainly a theme across the amici briefs. I would -- just on the incentivizing, I think, is a non sequitur because the only question here is whether it violates the Eighth Amendment to enforce the ordinances when someone has no access to shelter, when they're turning down the services. So that's a circumstance we're looking at. Maybe -- I think what Your Honor's question gets at is our discussion of no penological purpose. This Court has recognized that when a punishment scheme has no penological purpose, it inflicts gratuitous suffering, and that is cruel and unusual punishment. And I will say, at this point, the City has not ever identified any penological purpose for punishing homeless people who do not have access to shelter. If you ask that question, every time they pivot to encampments and fires and sanitation problems, which are all non-sequiturs. As I've said a number of times, this case is only about sleeping outside when there's no shelter available. And so I think that lack of penological purpose is significant.

Justice Kavanaugh: Well, we've heard Official 165 a lot about how it's more difficult to have an effective homeless policy given the rule that's been in effect in the Ninth Circuit over the last several years.

Kelsi B. Corkran: I think that's --

Justice Kavanaugh: How are we supposed to --

Kelsi B. Corkran: -- that's flatly wrong. I mean, I -- I'll go back to my opening. I gave the whole list of the things that the City is allowed to do under the ordinance and under our claim. The only thing that they cannot do is impose a 24/7 sleeping ban that makes it impossible for homeless people to stay in the jurisdiction. I'd also note, you know, they have a lot of amicus briefs on their side from local governments. Almost the entirety of what those amicus briefs are complaining about isn't at issue in this case. So, when you have injunctions against encampments, that's under the Fourth Amendment. We don't have a Fourth Amendment claim. A lot of the injunctions are under the Fourteenth Amendment, including the San Rafael one that the City identifies in its Official 166 reply brief. I think it's remarkable that when the City was trying to identify the best example it could come up with for its reply brief, it chose one involving a different constitutional claim.

Justice Kavanaugh: Thank you.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: No.

Chief Justice Roberts: Justice Jackson?

Justice Jackson: Can a person go from being addicted to drugs to not being addicted to drugs?

Kelsi B. Corkran: So I think under common -- as we think about it in terms of modern medicine, the answer is no. But the Robinson Court certainly thought that was the case, right? Sixty years ago, we didn't have the same understanding of addiction as we do now.

Justice Jackson: So your view of Robinson is that it doesn't really matter, the permanency of the condition; it's still a status? Official

Kelsi B. Corkran: Right. The Robinson Court did not think that the permanency mattered because it thought that addiction was a status that could change.

Justice Jackson: Thank you.

Chief Justice Roberts: Thank you, counsel. Rebuttal? REBUTTAL ARGUMENT OF THEANE D. EVANGELIS ON BEHALF OF THE PETITIONER

Theane D. Evangelis: Thank you. This case is worlds away from Robinson. The Eighth Amendment does not answer any of the questions that we've been discussing today, and that is reason not to extend Robinson. All of these questions are unanswerable. First, I'd like to start with the United States' position. That would also bring chaos. It would be a disaster if Martin were to remain on the books in any form. It does not make a difference if the inquiry is pre-enforcement or post-enforcement. All the same questions come up about whether the person's conduct is involuntary, what their Official 168 choices are, how they are there, whether the shelter that's available is adequate, where it is, what rules it has, all of that. And I'd like to clarify how all of this works in practice because it would be impossible for people on the ground to understand and predict what a court would say about the shelters that are available and the alternatives that are available and the choices that were made and the difficulty of all that. So, here, how it works is, under the Grants Pass policy -- I'll direct the Court to page 155 of the Joint Appendix. There, it says, officers are required to give a 24-hour notice before issuing a citation. So I -- I want to just focus on that for a moment. How will the officer know when -- when she or he comes back whether the individual has another place to go? There's no way to know the answer to that. So they would have to take their word for it perhaps. So it would lead to all of those same problems. And it is hyperbole -- the other side talks about banishment and all of that. The Respondents have remained in Grants Pass for Official 169 years. There's nothing like that going on here. They talk about an isolated statement from a community meeting that was a three-hour meeting. There are 20 pages of minutes. It's one sentence. What that full context shows is a wide-ranging discussion about all of these difficult policy problems and how the City was trying to incentivize people to accept shelter and dealing with a small group that was causing serious problems and crime in the City, and they're trying to balance those who wouldn't take the help with the City's needs to keep their public spaces open. When the Ninth Circuit constitutionalized this area, it left cities with really no choice: Either keep building enough shelter that may or may not be adequate or suitable to someone's preferences, or be forced to give up all of your public spaces. That is what's happened. We've seen a -- a suspension of enforcement of these basic laws that are so important. The line-drawing problems are never-ending. That is exactly why Powell, Justice Gorsuch, to your point about Powell and Official 170 the plurality there said that if we embark on this journey and we start constitutionalizing laws that address conduct, the line-drawing problems will be endless. And so that is a reason not to extend Robinson here. So I -- I just want to make, again, our basic Eighth Amendment point here, which is that these are low-level fines and very short jail terms for repeat offenders that are in effect in many other jurisdictions. This is not unusual in any way. It is certainly not cruel. And we can just point to our appendix in our reply that goes through jurisdictions from West Hollywood, California, to Watertown, Massachusetts, that have the same type of policies. So the policy questions in this case are very difficult, and I think that's what has come across today. The Eighth Amendment question, though, is not. Here, the punishments are the sorts of punishments that have been held to be permissible for -- since the founding and really are in use today. They're not in any way unusual. So we -- we heard a lot of things Official 171 about guessing how this would work in practice, but it sounds to me like courts would need to have some sort of rules so that they could tell a jurisdiction like Chico that the place it set aside for camping was adequate when the federal court said no, it wasn't, because it's outdoors, or a San Clemente that was threatened with lawsuits because it didn't provide cell phone chargers in the area that it designated for camping, or San Rafael, where the court said that 200 feet between encampments -- between tents was too much and that 100 feet was the maximum under the Eighth Amendment. So, for all of those reasons, the Court should reverse.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 12:30 p.m., the case was submitted.)