first, the cruel and unusual punishment clause governs which punishments are permitted. not what conduct can be prohibited. second, no precedent supports the ninth ciuirule. instead they misread robinson to

bar any punishment for inluntary conduct linked to a status. but robinson tells only that states cannot outlaw the stu of drug addiction. it made clea can prohibit conduct like drug us could ts court should not rewrite robinson sixeces later third,heinth 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 relations are allowed. but in 35 suits and counting federal courts areeciding everything from the exact size ofampsites to the adequacy of empty beds at specific shelters the gospel rescue mission in grants pass. and cities are struggling to apply arbitrary shifting standards in the field. this court should reverse and and the failed experiment which

has fueled the spread of encampmes while harming those it purports to protect. i lcome the court's questions. >> do you consider these civil or criminal penalties? >> they are both. there is criminal treas&. >> is that involved in this case? >> yes. hereby subject to criminal trespass? >> they are and y, they do apply here. they are for recidivist offenses. >> which party has been held accountable for criminal trespass? none of the individuals who arently in the case. >>'s ofs volved in this case? >> for logan andohnson, it is

a civil penalty. >> is it the anti-camping what is it? >> yes, it is. is that civil or criminal? >> the camping ordinance is civil and then for repeat offenders it is punishable by criminal offense. >> but we a n talking repeat offenders right now? >> correct. >> have we ever applied the eighth amendment to civil penalties- it will be forced to surrender its public sces as it has been. unfortunately beds are going unused. people are not getting the help they need. the city is under injunction and it is unable to allow --

rely on these basic ordinances. and th ge no guidance on how they can navigate this very challenginar. the ninth circuit has code under the ninth circuitpal martin rule to regulate what the city can do in its public spaces. >> cannot just stop you a moment? the gospel unused beds are ed at 100 and are thousands of homeless. >> there are as many a60and grants pass. >> but there are sti ls than 100 beds. >> that is right. >> you are not aus to overturn robinson, correct? >> wk robinson was wrongly extended but we don't need the courtoear. >> it prohibits you criminalizing homelessness.

so what you do is say only homeless people o sleep outdoors will be arrested. that ith testimony of your chief pice. two or three officers. ich is, if you read the crime, is only stopping you from sleeping in public for the purpose of maintaining a temporary place to live. and the police officers testified that that means that if a staaz wants to take a blket or a sleeping bag out at night to watch the stars and ll asleep, you don't arrest them. you don't arrest babies who have blankets over them. you don't arrespele who are sleeping on the beach, as i tend to do if i have been there a while. you only arrest people who don't have a second me is that correct?

who don't have a home. >> announc -- >> give me one example. because your police officers could not. 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. appendix page 98 is one example of a citation issued to a person with a home address. but, more importantly,nk 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 a s dierently, it's a different argument, isn't it?

ms. evangelis: grants pass policy actually ve carly says that being homeless is not a im and that's in -- justice sotomayor: well, i know that'what you say, but if you're enforcing it only against the homeless, i will suggest that you look -- there's one brf -- let me see if i can find it -- that talks about is. at any rate, i'll find it later and just mention it. the second thing i want to a you is you seemed to start by saying that the eighth amendment is limited to forms of punishment and not to thnare of punishment, the proportionality issue. there also is a number of amicus brief that lays out foushat from the magna carta through the founding, throh ate laws, through weems, which was in 1910, through trop later ith 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. ms. 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 uerhe eighth amendment. for example -- justice sotomayor: oh, yes, yes, you are, b you're saying that the only thing that's prohibit bthe eighth amendment is the form of punishbut, in those cases and in our history, we have said that cepunishments, trop, for example, can't be do. ms. evangelis: that's right. and the court has always lat if a particular punishment is considered too ere or categorically so as in the death penalty in some cases, trt looks at whether a lesser punishment wou bacceptable. 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? ms. evangelis: i -- i -- justice sotomayor: just answer yes or no. ms. evangelis: i don't -- i don'know. justice sotomayor: well, let' assume because, even in new york tywhich may be the most expensive city in the nation or close to it, there are hotels that are less than that that price. if a homeless person had that kind of money, don't u think they'd stay in a hotel? ms. evangelis: so, justice sotomayor, the -- the difficulty here is that this rule that the ondents are proposing rests on whether someone's cois involuntary. most importantly here, we're talking abo conduct, so i want to talk about how this is completelinguishable from robinson. the point -- justice kagan: so can i talk about that, ms. capoor? so robinson as a given, could you criminalize the status of homelessness? ms. evangelis: well, i have a coupnts that. justice kagan: it's just a

simple question. ms. evangelis: so robinson doesn't address that and i think it's completely distinguishable. so robinson was a -- justice kagan: could you homelessness?he status of ms. evangelis: well, i don't think th helessness is a status like drug addiction, and robinson only stands for that. juste gan: well, homelessness is a status. it's the status of not having a home. ms. evangelis: i actually -- i disagree with that, justice kagan, because it is so flui it's so different. people experiencing hsness 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? ms. evangelis: no. justice kagan: could you criminalize th ms. evanli no, it's not. so

robionalked about -- justice kagan: so you couldn't st -- ms. evangelis: -- addiction like a disease. justice kagan: -- you -- you -- you could criminalize just homelessness? ms. evangelis: so i want to say, first, a couple of things. so i think that for- the -- justice kagan: i mean, that's quite striking -- ms. evangelis: no, i don't. justice -- that you think that you can criminalize just homelessness ms. evangelis: no, we're not sanghat homelessness is a status, but, most importantly, i think ghth amendment -- justice kagan: well, you're not ng -- ms. evangelis: -- is the wrong way to focus on this que justice kagan: it's really a simple question. can you criminalize homelessness? and you' suggesting, yes, you could. ms. evangelis:o,e do not criminalize homelessness. i'm not saying -- justice kagan: could you criminalizholessness? not tell me what you do do, what you don't do. ulyou? ms. evangelis: so i think there woulue process problems and vagueness problems. i don't think there's an eighth amendmt problem in the sense of robinson because that was a limited decision where the hoing was solely about a disease of addiction. the court was very clear about distinguishing between addiction and possession or use. justice jackson: but, co-- ms. evangelis: and so -- justice kagan: you're right that it's a different statuswas involved in robinson. but robinson made clear that there was a category of cases which were status fees, which were different from conduct offenses. anwh you started off here today, you said we're just

criminalizing conduct. s t tell you the truth, i thought that this was going ba question where you would say no, of course, we can't criminalize a status, but there's conduct here. and th ias going to say: what is the conduct here? but u dn't say that. you said you could criminalize even the status of homelessness, and atuggests to me that -- that you're off on the wrong track in thinking about this issue. ms. evangelis: so, justice gan, i think the -- the point where we are disagreeing here is rely about whether the eighth amendment is the right framework for this discussion. justice kagan: well, the eht amendment was the framework in robinson. and taking rinn as a given, where robinson said the eighth amendment protects you against status-based crimes -- ms. evangelis: i don't -- justice kagan: -- that's what the question is. ms. evangelis: -- i don't think robinson extends that far. i think robinson itself was cabined -- and i think the

marshall plural -- justice marshall's pluritin powell goes into a discussion about this and how that was the right line. ice kagan: okay. what is the conduct here? ms. evangelis: the conduct is camping, establishing a campsite. and it's the same as in the federal regulio that the national park service relies on. justice kagan: so i didn't think th tt was the -- the conduct. i thought that the on conduct here was sleeping outside with a blanket. ms. evangelis: no, it is the conduct of establishing a mpsite, which includes making a bed with bedding or othe materials -- justice kagan: well ms. evangelis: -- and the federal law is -- justice kagan: -- a campsite suggests something different to people. it suggests a tent. it suggests a cgleration of people. you know, tent camps, if you will. but urrdinance does not just prohibit that. your ordinance ohits a single person who is homeless, so does not have another place to sleep, that's a status, i don't venother place sep, a single person sleeping instead in public with a blanket.

statute to do.understand your is that not what yr atute does? ms. evangelis: the statute does not say anything about homelessness. it's a generally applicable law. one more -- it -- it's ve iortant that it applies to everyone justice kan:eah, i -- i got that. ms. evangelis: -- even people who are campg. justice kagan: but it's a single person with a blanket. ms. evangelis: and -- stice kagan: you don't have to have a tent. you don't ha have a camp. it's a single person with a blanket. ms. evangelis: and sleepinin conduct is considered excuse me, sleeping in publ i considered conduct. and this court -- this court in clark discussed that, that that is conduct. also, the federal regulations -- justice kagan: well, sleeping is -- ms. evangelis: -- are very -- justice kagan:- biological necessity. it's sort of like breathin iean, you could say breathing is conduct too, but, presumably, you would not think that it's okay to criminalize breathing in public. ms. evangelis: i would like to point to the federal regulations which i brought justice kagan: and for a homelessern who has no place to go, sleeping in public is kind of li bathing in public. ms. evangelis: well, two points. so, first,the federal regulations prohibit even sleeping. they don't even reque y materials, including but -- but not necessary under the fedel gulation. so this

is conduct that is understood by jurisdictions nationwide and ev the federal government to be conduct that is prohibited, and so i want to make that point. justice kagan: see, i'll -- ms. evangelis: the second point -- justice kagan: -- i'll tell you thtruth, ms. capoor. i think that this is -- this is a super-ha picy problem for almunicipalities. and if you were to come in here and y were to say, you know,e ed certain protections to keep our streets safe and we can't have, you know, op sleeping anyplace that they want and we n't have, you know, tent cities cropping up, i mean, that ulcreate one set of issues. but your ordinance goes way beyond that.ouordinance says as to a person -- and i understand that you init's generally applicable, but we only come up with this problem for a pers w is homeless, who has the status of homelessness, who has noth place sep, and your statute says that person cannot take himself and himself only and,

you know, can't take bnket and sleep someplace without it being a crime. and -- and -- and that's, you know -- well, it just seems likronson. it seems like you're criminalizing a status. ms. evangelis: well, it is not. and aee with you that this is a very difficult policy question, and that's exactly -- justice kagan: but that -- it isn't. ms. evangelis: -- why the eighth amendment -- justice jackson: can ywer why? why is it not? just -- i mean, jukagan has put -- laid out one of the essential pr 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? ms. evangelis: the actus reus ement, that's exactly what was missing in robinson and that's what we have here. and that's why that law was so unique. it's a very peculiar -- justice jacksoit seems to me that robinson actually hurts you and not lpyou in the following sense. you know, it seems thruel and unusual to ni people for acts that constitute basic human nee. so, here, unlike in bion,

where, you kno y had at least the sort of disease state, drugs and a -- and the like, and potentially culpable ac tt 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 cdu for the purpose of -- of -- of punishme ms. evangelis: well, i think thatusillustrates the line-drawing problems because, if you look at biological nessies and what a person needs to do, you know, the ninth circuit's decisioninhis area justice jackson: can i give you a hypothetical? ms. evangelis: -- all sorts of behavior. justice jackson: can i give you a hypoetal? ms. evangelis: yes. thank you. justice jackson: okay. so suppose the relevant ordinance prohibit eing on public property rather than sleeping or camping. we're talking about eating. and the city, for very, you know, rational reasons, has determined at when people eat outdoors, it creates problems with tsh

and rodents and the keand so it bans eating in public places and it punisheviators. now, just as here, that seems generally fine because most people have restaurants that theyano to, most people have houses that they can eat in. but some people don't have that option. they havtoat in public because they' uoused and they can't afford to go to a restaurant. so is -- is your argument the same result, no eighth amendment problem, no prlewith the city banning eating in public, even though that'a blic function -i an, excuse me, even though that's a human necessity that everyone engages in, and, really, what's happening is you' only punishing certain people who can't ford to do it privately? ms. 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 so oirrational basis or any equal protection issue --

justice jackson: no. the city has a rational basis. ms. evangelis: -- and -- justice jaso when people eat in public -- ms. evangelis: yes. justice jackson: -- there is trash, there are rodents, ther are problems. so the city says wh we're going to do is we're going to say no eating in puic. what i'm concerned about from your argument is the suggestion -- you know, you call conduct, i appreciate that, but what we have happengn operation is that people who are able to afford doing this thing that's bac human need privately are okay. they're not punished fort.ut people who don't have any other option or opportunitexpt for to do it in public are the ones who are being targeted by this statute. ms. evangelis: stwresponses. first, i think the eighth amendmt 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 jackso but punishment is happening. in my hypothetical, people are to jail because they're eating in public. ms. evangelis: so, in that case -- justice jackson: why is the eigh amendment not implicated? ms. evangelis: -- in that ca you would have a defense under oregon law, for example, a

necessity defense. justice gorsuch: counsel, on -- on -- on -- ms. evangelis: and i want to get to that on the camping. justice gorsuch: counsel, i'm sorry to interpt. ms. evangelis: yes. justice rsh: but, on that point, i think we're having some debate about where to lodge the defense, whether it's under th 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 oer things like that? ms. evangelis: yes, i agree. and, actually, here, in the case of camping, oregon law coizes a necessity defense, so as a matter of state law and policy -- and, again, that goes to the difficult policy questions -- that's why stat able to address the needs of what this issue raises. so, for something under oregon 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 sang -- ms. evangelis: -- they can argue due process. justice gorsuch: -- oregon law has that defense -- ms. evangelis: yes. justice gorsuch: -- already built into it? msgelis: that's correct. justice gorsuch: all right. thank you. justice jackson: let me ask you t oregon law, because one sort of threshold concern that i haut this case is i understand that oregon has

enacted a statute, a new statute, that seems to address this very issue, so'm trying to understand why this is -- is still li case. as i read the new law, it essentially codifies martin's ru, at it says something about all regulations of this nature have to be objectively reonable as to time, place, and manner with regard to -- with regards to people experiencing homelessns. so it like the state has already precluded grants pass from doing the sort of thing it's doing here, sohyo we need to weigh in on that? ms. evangelis: well, no, it hasn't. so, first, both sides agree that 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 the's never been a challenge to our laws. justice jackson: whaabt constitutional avoidance? so, fine, it's t ot, but wouldn't our principle be that 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? msgelis: well, not at all.

so the state's law is ver different. and we believe our w satisfied. but, more importantly, the ft that the state is acting here is good thing. we agree that states should be able to make policy and to weigh all of the competing concerns. and, her t need to reverse martin is so critical because laws like oursth really do rvan essential purpose. they protect the health and setof everyone. it is not safe to live in encampments. it's unsanitary. we see what's happening. and there are the harms at the encampments themselves on know this. the federalide. we government has clear encampments here in the capital in mcpherson square. so this is an urgent proble and also, there are downstream effects of all the other things that flow omt, but it is very important here to undeta that the state laws and the -- justice jackson: so is it your argument that the eighth amdmt has nothing to say about how the city responds

such problems? i mean, suppose the city decided that it was going to execute homeless people. i mean, veryxtme, i know, but it would solve the problems that you're talking about. ms. evangelis: well, that -- that would be -- justice jackso dwe have an eighth amendment issue in that circumstance? ms. evanli yes. i -- i think -- justice jackson: why? ms. evangelis: -- there, you look at the punishment. that -- again, here, we're looking at the punishment, which is low-level fine -- justice gorsuch: that -- that would be both cruel and unusual, wouldn't it? ms. evangelis: i -- i think it would -- it would be. yes, i think it absolutely wo justice gorsuch: why not just yes to that? ms. 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 pointing31 out, this -- this criminalizes sleeping with a blanket at a minimum, right? ms. evangelis: yeah. jubarrett: correct? but, as i understand it, after th decision and -- and maybe te 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 constitution then t impossible for a city to limit the use of fires and tents, those kinds of temporary shelters? ms. evangelis: irely does because the rationale of martin, the -- the argument that it's a biological nesty to sleep outside, tpondents argue a blanket is necessary in oregon; some might argue a tent fire is necessary in north dakota. the eighth amendment really doesn't give us any aners to what cities can and can't prohibit. it'ly administratively impossible for cities on the ground, as wl for courts, to administer. so we're seeing -- justice sotomayor: i'm sorry. this -- we have nointo do with fires or tents. that was exempted under the district court's injunction, and the circuit court d't require

that. we're talking only abou sleeping with a blanket. ms. evangeli wl, i think -- justice sotomayor: well, so let's narrow itohat it is. i agree there might be other cases t ninth circuit that are not rational, and i don't mean tthw aspersions at -- at those holdings, but some of th a not permitting time/place restrictions. let's go beyond at let's go here. here, you're not pcled from prohibiting fires. you're not precluded from prohibiting nt what's issue is are you prohibited from keeping -- ving 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 ant and fall asleep. ms. evangelis: that's t the intent of the law. and i would like to --- justice sotomayor: well -- ms. evangelis: -- address that point because the other side has -- justice sotomayor: -- why don't you answer the basic queio ms. evangelis: yes. so -- justice sotomayor: it's not abous. it's not about tents. it's about not being -- a time and place restriction about iminating all choices.

ms. evangelis: so we thit it is harmful for peo be living in public spaces on streets and in parks, whatever bedding materials. whens are living in those conditions, we think that that's t mpassionate and that there's no dignity in that. justice sotomayor: oh, it's not, but -- ms. evangeli n justice sotomayor: -- neither is --eier is providing them with nothing -- ms. evangelil, we -- justice sotomayor: -- to allevie at situation. ms. evan this is a difficult policy question, justice sotomayor. it is. justicsomayor: where do we t em if every city, every village, every town lacks compassion -- evangelis: we -- justice sotomayor: -- and passes a law idencato this? where are they supposed to sleep? are they supposed to kill themselves, not sleeng ms. evangelis:o is is -- a necessity defense, as i mentioned, under oregon law is availabl states are able to address these co. this is a complicated policy qution. believe that the eighth amendment analysis, to go to it, focuses on the low-level

fines. justice sotomayor: whas so complicated about letting someone somewhere sleep with a blanket t outside if they have nowhere to sleep? the laws against defecation, the unsanitary around yourself, those have all been upld 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 '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 intfferent -- ms. evangelis: thank you. chief justice roberts: -- stage of the argum is being a bank robber a status? ms. evangelis: no. i would say that -- well -- well, if -- if your question is asking would iermissible to punish being a bank robber, i

thk at would have vagueness problems probably. chief justice roberts: well, it would be someone who robbed a bank. that doesn't sound vague. ms. anlis: well, i don't -- i -- i don't that it is a status in the sense of robinson, which, again, i iant to just focus on what we think robinson sfor, 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 l like that -- excuse me -- without any actus reus. a law like that is problematic without an actus reus. think it would probably have vagueness problems, due process proble however, the eighth amendment, this entire exercis under robinson is the only time this court has ever evaluated e bstantive criminal law, and it raises all of these line-drawi pble and the fact that -- i'm not here to defend robinson as a matter of first princies we don't agree with it. we think it was wrongly decided. we're just saying that it is so far removed --haour 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? ms. evangelis: under federal w, 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, n someone who is sleeping in a shelter be considered homeless? ms. evangelis: some would say yes, that someone who -- chief justice bes: what would you say? ms. evangelis: i -- i would say that at that point he is sheland homeless. i think he -- he -- that -- that is also -- chief justice roberts: all right. let me make it easier. what if he buys a r finds a home or is given a home? is he homeless -- ms. evangelis: no, he is -- chief e roberts: -- at that point? ms. 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 ti another? ms. evangelis: yes, i do. i think it's very fluid. chief justice robes that consistent with the definition of "status" in robinson? ms. evangelis: no. so robineated addiction as a disease and as something that -- and -- and many believe that addictioisomething that someone has with them forever and -- and it'struggle. so that is a very different sin. and, here, if someone has shelter -- let's say they offered shelter yesterday and they refused it, and then today, when someone comes around and tells them that they're not permitted to camp, are they involuntarily there ty refused shelter yesterday? that's the question the eighth amendment does not answer. this is very cpl. what if there is a bed available in the grescue mission, but like ms. johnson, a person doesn't wish to leave their pet? herottweiler's not permitted there. that is a difficult question for a person and a diffilt policy question, but -- chief justice roberts: thank you. ms. evangelis: -- peon'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 rcotics 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? msevangelis: no, there is not. chief justice roberts: justice alito? justice alito: robinson presents a very difficultonptual question. do you thinkhasomeone who is a drug addict is absolutely incapable of -- that all peoe o are drug addicts are absolutely incapable of refraining from using drugs? ms. evangelis: well, i think that for some, that may be true, and for sorhaps they can abstain. but that's a question of free will and agency that's true 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 jurisdicon does that peonave any alternative other than sleeping outside? msevangelis: so i think we'd have to ask all the questioni mentioned earlier about what alternatives they might have had yesterday -- juice alito: they have -- ms. evangelis: -- and how they ended up there. justice alito: -- they have none. they have absolutely none. there's not a single place where they can sleep. ms. evangelis: if that's true, then tt y be the case. and tt case, at least in oregon, they would have a defense of necessity. justice alito: so the point that the connection between drug addiction and drug usage is more tenuous than the connection between absolute homelessness and sleeping outside. ms. evangelis: well, i -- i thk,n -- 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 outsideanbeing 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 he i generally to everyone.applies the law does not sayn s face it is a crime to be homeless. i just want to- justice alito: all right. ms. evangelis: -- make that -- justice alito: thank you. ms. evangelis: -- very clear. thank you. chief justice roberts: justice sotomayor? justice sotomayor: it was the brief of criminal law and puni 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 acd the excessive fines question presented by this case, correc ms. evangelis: that's correct. justice toyor: so that's still open. and you didn't seek cert on that issue? ms. evangelis: that's correct. justice sotomayor: all right. suming that there is no standing, i understand one of the appellees died, e e who was camping outside died during the pendency of this appeal. and there are two other named plaintiffs.

i know they have fines on them 'm not sure that either of them has any criminal -- crimes charged agait em. where does that t is appeal? where does thaputhis case? ms. evangelis: sure. well, the case -- justice somar: should we be vacating and remanding to see if ere is -- ms. evangelis: no. justice sotomayor: -- a live plntiff -- a plaintiff, a named plaintiff who is still ms. evangelis: no. so, here, the -- the sleeping ordinance, whi ithe one that ms. ble allenged, that is no longer in the case. that ordinance limity slpi in certain rights-of-way and sidewalks in e city, and it was a different law, and that's not atss here. so sleeping is not aise. it's about the camping ordinance. and we very much have a live case because we der the ninth circuit's injunction, and the named plaintiffs have -- justice sotomayor: no, the quesons, could it give an injunction?

-are these people -- well, i guess, if they are not rmitted to park -- ms. evangelis: that's correct. justice sotomayor: so it's not the camping, it's e parking, isn't it? ms. evangelis: well, and the camping. so we -- we intend to -- and -- to rely on these laws. we want tole to rely on these laws they are very important and -- justice sotomayor: you're not answering -- just focus on my question. ms. evangelis: yes. justice sotomayor: both thes people sleep in cars. both of them sleep in rs outside of the town. so they're not seeking camping permission. is your city not provide for overnight parking in any location at night except in private homes? ms. evangelis: camping in a vehicle is included in the camping ordinance. ste sotomayor: well, that's going into a camp. how do you define "camp"? ms. evangelis: again, it is a place where someone has laid down without any more, has -- ice sotomayor: so, if they go into -- if there's a line of ca and they want to -- and the cars can stay overnight -- msevgelis: so -- justice sotomayor: -- and they want to park in one of those spaces, if they fall asleein the car, they're guilty of violating the camping law?

ms. evangelis: no. justice sotomayor, ms. johnson parks her car oftentimes at a friend' so she is not violating the law at those times. justice sotomayor: just answer my question. ms. evangelis: -- parking everywhere is not prohibited. in certain areas, private areas, you can. justice sotomayor: is sleeping in your car prohib ms. 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 -- ms. evangelis: -- then yes. juste tomayor: -- indicated intent to sleep in a park, or have they just said they want to pa sewhere in the city? and can they park somewhere in the city and sleep? ms. evangelis: yes, they have said that they have the intent to continue their conduct and that they wille,herefore, subject to the city's laws and subjec- justice sotomayor: i don't understand that answer. okay. f justice roberts: justice kagan? justice kagan: you'vered couple of times to the necessity defense, so could you tell me how that would work? ms. evangelis: yes. so there -- under oregon law, if a person says at- it's effectively the lesser of two evils.

if they say, i had no alternative to -- no legal alternative other than what 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 e term that -- that many have been discussing. so, there, you -- it would be very narrow. it is ve narrow defense. so it would be in that moment of -- justickagan: so -- so suppose at there is a person who is homeless and there are no shelter beds availablendhe person has no place to go, and the person, ofoue, 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 a police officer comes, and in the --ut the person says, well, i had no place else to go. would the city connuto push for some kind of penalty?

ms. evs: well, there, if a person received a citation, so if they did, then they would have dense of necessity. it's asserted as a defense. so what the other side is trying -- stice kagan: well, it's asserted as a defense. ms. evanges:es. justice kagan: i mean -- but -- so you're not willing to say no, we're going to tell allur police officers that they shouldn't give a citation in that circumstance? 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 lle? ms. evangelis: well, officers always have discretid we know that they exercise it. and -- and it's hard to know -- justice kagan: well, the question is not an individl officer's discretion. individual officers are a tough situation here. ms. evangelis: they are. justice kagan: the question is, what is the city going to tell individual officers? so what is t cy going to tell individual officers about a se of the kind that i said? e u going to tell individual officers issue the citation d we'll see if the person knows enough to ke necessity defense and we'll see what the court does abo tt? or are you going to sa y know, there are some things that just ought not to be the subject of civil or crimal

infractions? ms. evangelis: so the city, its 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 theres ailable help for them. these laws are absolutely a tool for geinpeople the services that they need. many people need that intervention. justice kagan: well,o're not giving me a real answer -- ms. evangelis: yes. justice kagan: -- to the question of is the city telling offirshat they should give citations -- ms. evangelis: n justice kagan: -- in that circumstance. ms. evangelis: no. discretion. justice kagan: ithe anything you can point -- it's a matter of discretion? ms. evangelis: yes. justickan: there's nothing you can point to that the city says we have a necessity defense, what we're telling ofce to do is to, you know, act consistently with that dense 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? ms. evangelis: tr's nothing in the record here that shows officers were ldbout a necessity defense and that it -- what it would or wouldot preclude that would be an individualized question after the fact if someone received a citation. and if they thought that wasn't enough, the proper framework would be this court's framework in kahler, where we would look at the asserted defense,he, insanity of some form, and, here, it would be necessity, awould ask whether it is so deeply rooted in our history and -- and something that has to be imposed in this y the states. justice kagan: tha y. ms. evangelis: thank you. justice roberts: justice gorsuch? justice gorsuch: i suppose someone 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

haveforced, couldn't they? ms. evangelis: potentially. 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 mplicated policy question. i think everyone would agree how does this law help deal with ms. evangelis: one of the most difficult challenges is getting people the help hey need. and laws like this allow cities to intervene, and they're an important tool in helpin incentivize people to accept shelter. so johnson, for ame, had said in her deposition -- it' in the joint appendix -- that does not wish to stay at the gospel rescue mission. one of the reasons is because of her dog. e also had other reasons. she doesn't like being around people and -- and so forth. people have all sorts of circumstances. it's very complex. and the indivialecisions -- 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 thsdiction? ms. evangelis: so, for johnson, she sometimes stays with a friend. so tre are other -- justice kavanaugh: how about more -- more genal, though? ms. evangelis: yes. justice kavanaugh: i guess, if ere's a mismatch between the number of beds availablen shelters, even including gospel rescue, and the number of homeless people, there are going be a certain number of people who there's nowhere to go? ms. evangelis: that -- that is a difficult policy question. and we -- e kavanaugh: how does this law deal -- ms. evangelis: yes. justice kavanaugh: -- help with that policy question ms. evangelis: so it encourages people to accept alternatives when they come up so that fewer people end up camping. itlso -- there is harm in simply camping. whatever matereople are using when they are living in public spacewiout plumbing and infrastructure, there's harm to the whole city and to the whole community, as well as to

them. wenow that -- that encampments and these conditions also breed imand 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 slters? ms. evangelis: no. that'at we've seen in the ninth circuit. we've seen that tt unworkable. there is no way to count what beds ailable and who is perhs lling to take one and who would consider it adequate. the question becomes, are those beds adequate? so, here, gospel rescue mission again -- justice kavanaugh: that's a separate issue, i agree. ms. evanli it is. justice kavanaugh: and it can be chlenging issue, i suppose, know, as well. let me ask one last queson which is, how does the necessity defense differ from the constitutional rule? you touched on this, but i just wanto get a succinct answer to that, the state law necessity defeffer from the constitutional rule here. msevangelis: you would weigh

the harm from the individual's uct in violating the law. so, if someone were camping near a school or near -- or -- or some -- something or engaged in some behavior tt s particularly harmful and they had another place whe they could camp, that would be maybe a factor that you would raise in the necessity situation. it's -- it's narrower so, in a case of a -- the oregon cases include op who are growing marijuana for medical reasons but without a license, and so theecsity defense was not accepted in that case because they could have obtained a e. so, if a person had a friend to to, had a bed available at the gospel rescue mission,he under the necessity defense. i think that's would play out. justice kavana actually have one last question. when you get out of jail if you end up -'s going to happen then? are -- you still do't have a bed available. so how does this help? ms. evangelis: so the -- and -- and i want -- i do want to make a inabout that -- about the criminal aspect. the trespass law here is only triggered after several civil citations. justice kavaug right. no. ms. evanges:nd at that point

-- justice kavanaugh: if you run through that cycle -- ms. evangelis: yes. ste kavanaugh: -- and you enup in jail for days, then you get out, i mean, you'reot going to be any better off than u were before in finding a bed if there aren't -- goi tmy earlier question, if there en't beds available in the jurisdiction, unless yo're removed from the jurisdiction or you decide to -- to leave somehow. ms. evangelis: no. there are services available, and the jurisdiction can put you in touch with services and programso lp you in those circumstances. and for many people, that is a point where they'e to get into treatment. so that intervention actually saves lives. justice kavanaugh: okay. ank you. chief justice roberts: jti barrett? justice barrett: so let me follow up on that. so you're sinthere are services available, there's

treatment available, so people would ultimate me off the street? is that -- is that what you're saying? because i think part of the prem all of this, right, is that there are not enough beds for homeless people to cu, and so there will be a mismatch and there are going t be some people who can't be cared for. are you saying that if your law is enforced, theres way for everyone to be cared for? ms. evangelis: no. i'm saying tt's a policy question that is quite difficult, but these laws e important part of the puzzle. they're not the only soluon and we don't -- we don't believe that they are, bute ink they're an important tool. and without them, we'veeen what's happened on our streets. we've seen thate are -- are dying in encampments. we've seen that cieare -- are being forced to cede all of their public spaces. so that ultimate question is for the legislate d policymakers to figure out what the right solution, what theig mix of policies is. but the wrong answer is to do what the ninth circuit did here and cstitutionalize -- justice barrett: okay. let me just interrupt you there. y're right, it's a very, very difficult policy question. and i asked you before about whether this was just about blankets or whether it wt to having fires or urinating and defecating outdoors and that sort of thing, and justice sotomayor pointed out that this particular iunion did carve out those things and was just talking about sleep. but, you know, other cases have be ligated in the ninth

circuit that have gone beyond that, and because the line is things that are involuntary, that are human needsan -- it can extend -- it's difficult to draw the line, and whatever we decide here authis 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? ms. evangelis: public ion and defecation, that is a serious problem. those are parts of biological necessities ofei human. a court in sacramento addressed that, and the ninth circuit's opinio dated whether its rule would actually reach those things. thk any rule that we are wondering about and debati whether it would go that far, i thk that is a sign that it is not a workable rule. e slippery slope here is very real. it's not just for camping and conduct that mighte biological necessity, putting asids and fires and cold climates. what others would be allowed?

all of the things that a human needtourvive, for example, 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 beca'm an addict or because i -- a -- a person who violas her laws could say that h a compulsion to do those things that i couldn't control. anplurality opinion in powell addressed that very thing anwhy 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 e ghth amendment was ever understood to address. justice barrett: okay. speaking of status and cdu, 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 shldverrule robinson. you've also been kind of resisting the status -- 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 unlaulnd punishable by days

in prison to have the status of homelessness? go with me. just assume that the lawefes homelessness as a status and it is a status. would robinson say that that law is unconstitutional dethe eighth amendment? would you concede that? ms. evangelis: a y're saying that that is a status? justice barrett: yes. ms. evangeli a of the -- justice barrett: the law defines it as a status, and it's a status. ms. anlis: well, yes, and i think it looks a lot like rons under that hypothetical, but, of course, we disagree that it is -- you disagree -- i understand ms. evangelis: -- stus in that way. justice barrett: -- buyoare accepting that robinson draws a distinction twn status and conduct and you're just fighting about the definition of a status? ms. 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 r the eighth amendment because i don't think actually thatheourt -- i know the court didn't rely on any eighth amendment principles or history of -- juicbarrett: but the

hypothetical i just gave you had no actus reus either. the status of holeness, i mean, it could be, you know, 4:00 in the afternoon an person is just standing outside the bus stop do you agree that if the law prohibited that, made that a crime,haunder robinson, whether robinson was right or wrong, that under robinson, that woulbe violation of the eighth amendment? ms. evangelis: well, i -- i -- i think the better framewo due process. justice barrett: i understand that. under robinson, do you agree that that would be wrong? . angelis: yes. justice barrett: okay. thank you. ms. evangelis: thank you. chief justice roberts: justice jackson? e jason: so picking up where justice barrett left off, you say that the ordinceere pertains to conduct and not to status, and i'm just tinto figure that out. i'm not so sure for this reason. it'beuse all humans engage in the act in question, sleeping and t e statute operates or the ordinance operates to penalize only certain individuals, those who havno choice but to do that act in public. so it appears, tnk, not to be the act that the state or the

city in this case finds criminally culpable. it's ineathe act as engaged in by certain people, by people who cannot afford housing and ha nhere else to go. why is that the wrong way to think about it? and if that is the right way to think about it, whisn't that a status crime in the way that robinson contemplates? ms. anlis: it's not because we can look at the law and it has a conduct element. the conduct is establishin place -- a campsite. and that is something at person who has a home or a shelter could do as well. justice jackson:utou've just defined away the basic actus reus, right? the actus re isleeping out -- i guess outside to the extent you put outside in it, but that's e problem i'm talking about. the actus reus is the sleeping, righ everybody -- that's not a criminally culpable kind of activity.

a's what i think might distinguish it from robinsonnd -- and make it worse for you in a way because, in robins a least, to the extent someone had a disease, and the question was, well, are th eaging in otherwise criminally culpable conduc bing and selling drugs, taking drugs, you know, we -weook at that kind of category of things. here, the actus reus is eeping, human, universal. the -- the -- the city adds, okay, but you can'slp outside. and i guess what i'm trying to understand is, to the extent that that only happens with reect to a certain category of people who have no other place to go, why isn't at really just punishing the status of being someone who doesn't have any place to go? ms. evges: it doesn't apply only to those people. the respondents here are trying tot a whole category of people. what -- so what you look at there is the -- the coof

camping under federal law and in this court's decision in clark, it was understood that that is conduct. it is just likpass, where, if you are found in a place, if you enter th permission, but then you remain there without rmission under quarles -- justice jackson: but it'no just like trespass because, prumably, you have other places to go. so let me just -- let me just ask you this other qstn. what -- what is your understanding ofheartin rule? because -- thought it was premised on the circumstance in whh meone had nowhere else to go and they needed to sle and they needed to be there. t you seem to suggest that necessity is not sort ofak into what martin was doing. ms. evangelis: martin speaks in terms of someonehos 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 ee sleep. ms. evangelis: yes, that is --

the necessity defense is available. and what respondents are asking to do is to constitutionalize that verdense under the eighth amendment. so, as i said earlier, it could be -- e gument could be made -- it would be a very high bar under due process, but that is the sort of argument that we would expect one to make under a e process framework -- justice jackson: thank you. ms. evangelis: -- under this court's kahler decision. chief justice robehank you, counsel. mr. kneedler. mr kneedler: justice, and may it please the court: in robinson, this cou hd that the government cannot criminalize status. and respondent has conceded he today that the city cannot criminalize the status of being homeless. our narrow submission in this se is that government cannot circumvent the principle o robinson by making it unlawful for a person trede in the jurisdiction if he has that status.

th is what the ordinances here do. as appli tsomeone who has nowhere else to sleep, which is an essential human function, the ordinances are the eivent of making it a crime to be homeless while vi in grants pass. although we think the ninth circuit was rightoecognize that the core principle of robinson is implicated in this case, the court was wrong to award oainjunctive relief in the circumstances and manner in which it did. the robinson principle requires iividualized determination, and the ninth circuit's failure toequire such a determination and its issuance of much broader injunctive relief has led to the problems at issue that the tioner and its amici have raised, not the core principle of robinson.

and, thererewe urge the court to adhere to the core prciple of robinson but to emphasize that cities have flexibility to impleme tse and, in particular, time, place, and manner restrictions onhe someone can sleep are entirely valid if they arreonable, and, indeed, the state law that justice jackson refeedo establishes a state policy that time, manner, and place restrictions are the way to go if they are reasonable. i welcome the court's questions. ste thomas: mr. kneedler, wouldn't you have a better arguntf robinson involved someone being arrested for using ug but then the court said that you were in effect arresting him for the status of a ug user because he was -- he had no choice but to use dru because he's an addict?

mr kneedler: no. our -- our position is not that the condt in robinson, the drug addict can't stop from using drugs. that is not our position. that'a estion of personal culpability on the basis of what the substances make up -- juicthomas: so what's the difference between that and -- and a 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 stus of homelessness. mr kneedler: yes, but -- but not because of an -- of an involuntary compulsion sense. i thk,s justice alito pointed out, the nexus here is actually closer than in the -- than in the addictn tuation because sleeping outside is essentially the mirror image or the other side of the coin or the definition -- justice gorsuch: well, -- mr kneedler: -- of the status of -- of homelessness. justice gorsuch:eedler, i -- i agree that the distinction between status andct ia slippery one and that they're

often closely related. and in rinn, though, the court said you cannot make the status of being dr addict a crime, but you can criminalize thcouct, even if it is involuntary and compulsive. and powell reaffirmed that line very strongly,t ast the plurality opinion did, and said we're not goingo further. and i wonder whether the government is asking us to take that step that powelcoseled against by saying that it is -- it istus -- 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 concern. mr. 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 oises that were involved -- justice gorsuch: okay. ifo're -- not asking us to do that, then -- then -- then i guess i just

wa to circle back to what justice thomas was getting a which is, surely, the government wants to contie enforce the drug laws and all kinds ofth laws that people could make an gument that i had involuntary need to do, a necessity dens to. you don't want us to wipe out all those laws? mr. kneedler: absolutely n, but what is different here is that the conduct that was suggested in powell would have been based on the person's own pate -- antisocial conduct. stice 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. he made this vint. mr. kneedler: no, we don't -- but --- bu--ut the point here, it is the government that isrobiting the alternative. it's not the individual' inability to control his own conduct. the government, because the person -- because of other circumstances, the lack money, the lack of a friend to stay with, the lack of shelter space, there is no place -- we take as a giveinur position that there is no other place for the person to sleep --

justice gorsuch: and i think, couldn't a drug addict, though, make the exact same argument? i had no otherhoe. mr. kneedler: but that is -- the other choice wlde a matter of -- of personal -- justice gorsuch: no. say the record says -- mr. kneedler: -- understanding, personal clity. justice gorsuch: but the record says that there is no other choice. i d do it. . eedler: well, i do think that engaging in conduct that unrelated to -- let me take that . the sleeping outside when you have no other place too the definition of homelessness. justice jackson: mr. kneedler, isn't the response -- justice barrett: but -- but judge -- justice jacksoalso that those two things are different? , you're sort of saying it's about individual culpab but it's not as though everyone engages in drug use. mr. kneedler: right. justice jackson: right? certain people do, and maybe they have addiction, and may you can't punish them because of thaddiction, but you can still punish them as criminally culpable for engaging in the act. it seems to me we e a totally different category -- mrkndler: we are, yes. justice jackson: -- when you're

talkinabt 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 pushertain people who engage in that universal mabasic need. that seems to me to be the distinction -- mr. kneedler: yes. justice jackson: -- in these situations. mr. kneedler: that is a critical distinction, and not only is it someinthat everybody engages in, but it's something th everybody has to engage in to be iv so, if you can't sleep, y can't live, and, therefore, by ohiting sleeping, the city is basically saying you cannot live in grants pass. it's the equivalent of banishment, which is -- which is mething that is unknown to the way -- justice sotomayor: mr. kneedler wasn't grant pass's first

atmpt, policy choice, to put people -- homeless people on buses ty would leave the city? i understood that to be the history of grant pass. theyut- police officers would put -- buy them a bus ticket, send them out of the city, but that didn't work because people came back because it had been their home, correct? mr. kneedler: they came back. justice sotomayor: they came ba. mr. kneedler: i think they mig have been sent back by the -- justice sotomayor:o en they passed this law. and didn't the city couil president say, our intent is to make it so uncfoable here that they'll move down the road, meaning out ofow correct? mr. kneedler: that state -- that statement was made at a -- at a public meeting of th council. justice sotomayor: all right. so let's assume what you're saying or acceptg,hat -- do you happen to know, or maybe i hope one of u ows, how many beds there are in grant pass, shelter beds? mr. kneedler: i believe the only shelter beds, at least at the -- at the time the record in this case was compiled, was at the goel mission. there has been at times a detox place. there has been a warming center that has been maintained.

but, in terms of -- excuse me -- elter beds -- justice sotomayor: well, we're talking about disproportionate -- mr. kneedler: -- i think it's approximately a hundred. there -- there are men's, women's. juste tomayor: yeah. i thought it was much less than at. mr. kneedler: yes. justice sotomayor: all rig. so we go back to you want the district court to make individualized findis. 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 asaction, but that question hasn't been certified here. mr. kneedler: right, but -- but i thk e -- i think the merits -- our basic point is that a -- a person doenohave an eighth amendment defense or an eighth amendment claim unless truly does not have some other place to reside. and so, by speaking of individualized, what wwere -- justice sotomayor: so -- mr. kneedler: -- saying is that it depends on whhethat person has some other place, has a relative. justice toyor: i accept all of that. iss what i didn't understand from your brief -- are you sayi tt there can't be a cls certification of homeless people ever? mr. eeer: no.

justice sotomayor: that you have to have individuals? or are you saying that the injunction is too broaift doesn't provide for remedies that are -- somehow that the person has to pre certain -- number of things before -- fo they are entitled to the i was't sure. mr. kneedler: no, the -- the eighth amendment cla ia personal one and, in this context, depends on whether the person does have ath place to sleep. so the person cannot benefit from the eighth amendment claim without iividualized -- without that person showing, if it comes up in a -- in an afrmive injunctive action, without that person showing th he or she has no other place to st.

chief justice roberts: thank u, counsel. if there is a -- the town next to grants pass, minutes away, has just completed building a homeless shelter that has many vacant beds, does that change the analysis here? i mean, we talked about the town wanting to get -- ship people out of the town. would it be wld -- 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 minutes away where there's a homeless shelter? mr. kneedler: that goes to the question, i think, under the anysis 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 th tre's a homeless shelter there, even though it's not e the city of grants pass. but often, in a situation, t two towns might cooperate to have one homeless shelter. chief justice rorts: well, yeah, -- the next towns don't always cooperate.

so what if it's miles away? is it -- is the shelter available in that case for your purposes, or are you going to tell me it just dependll the circumstances -- so municipalities won't have th much guidance? mr. kneedler: i think it depends on the accesty. i mean, one of the fundamental points here -- chief justice roberts: the accessibility is tt en an and finds a homeless person and says it violates our ordinance, but i will givyoa ride down the road, miles, whatever it is, because there's a new homeless shelter there, and the person says, no, d't want to do that, can that person be given a citation? mrkndler: i -- i think probably not, but let me -- if could explain why. but i think one of the princal 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 locio 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 ?

let's say there are five cities all around grants pass and they all have homeless shelters. d t the person wants to stay. you know, i've been a grants pass resident for a long time. i don't want to go to the one of those shelte. can that person be given a citati? mr. kneedler: i -- i think under -- because of the concern i've mentioned, i think that wod a serious problem because -- chief justice roberts: you would say it would be a problem to give them a citaon mr. kneedler: yes, i think so, beusyou would be requiring -- or the city's ordinance requires them to leave the city of grants pass. if theomess shelter is right over the line, they can still be part of the community of grants passutleep in the -- chief justice roberts: no, but it's in another city. you keep fighting the hypothetical. mr. kneedler: no, no, and -- and that's why i th's different. i'm not prepared to say it, you do think it's different becausei the city is implemenngts policy of banishing people, its own residents from -- chief justicrts: banishmea strange word when you're talking about something minuteaw.

mr. kneedler: but, again, the question is whether you could still realistically be part the community where you grew up. ja 114, 115 here shows that most of the homeless people grants pass are from grants pass. chief justice roberts: counsel, everyone's mentioned, not everybody, manpele have mentioned this is a serious policy problem. and it'a policy problem cae the solution, of course, is to build shelter to provide elter for those who are otherwise harmless it but municipalities have competing priorities. i mean, what if there are lead pipes in the water? do you build the homeless shelter or dyotake care of the lead pipes? what if there aren't -- isn't enou fe protection? which one do you prioritize? why would you think these nine op are the best people to judge and weigh those policy judgments? mr. kneedler: we're not suggesting that. we're not suggesting that the only solution isor- especially in the current

circumstances, the only solution would be to build homeless shelters. as i mentioned, time, place, a manner restrictions, i -- i thk, are a very sensible way to go. and, in fact, as i mentioned, egon state law requires that. in other wds, a city adopts a provision that you can't sleep on the sidewalks anywhere because that obstructseoe seeking to move. you can't camp near a school. you can't camp downtown. you can't sleep downtown. u ght be able to sleep in a park, and that could be patrolled for drug use and whatnot. chief justice roberts: counsel, this is -- mr. kneedler: none of these other laws are inapplicable if there'a me, place, and manner restriction. chief justice roberts: this is an oldueion, but, you know, eating is a basic human function as well, that people have to do, just le eeping. 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? mr. kneedler: absolutely, solutely. breaking into a store is a common crime that not erody engages in, unlike sleeping, which is what -- which is what we have here, whiciseally --

chief justice roberts: but it's a necessity for the person who needs od mr. kneedler: it's not a nessity to break into a store. and with respect to -- chief justice roberts: well, you're fighting the hypothetical. i'm saying this person needs food. mr. kneedler: and the eighth amendment doesotequire that that person be excused from doing it. i think there's -- there's a ceain amount of common sense and practicality to this, and it's, i think, well understood thatuslike drug use is not something the eighth amendment excuses you from, either is eang. and the problem of eating is addressed at the local lels the, you know, history and the poor law shows is th t community takes care of its own residents. and it's common now as it was at the founding for churches and individuals and whatnot to offer their lpto charity in the community. and that's what happens in grtsass. various organizations feed the

homeless people. and there are social services to help the homeless people. so this is- is is consistent except for the absolute ban in sleeping in the city. otherwe e community's response is what has been done down through history. chief justice roberts: thank you, counsel. mr. kneedler: it is the city's absolute ban- chief justice roberts: thank you. mr. 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 y it's 3:00 in the afternoon, 4:00 in the afternoon on a winter day. wh is an individual police officer supposed to do if invidual police officer would go around and count the number of people who are getting ready to sleep outside? i guess if tt's 4:00, you wouldn't get that. let's say it's 6:00. count the mb of people who

are getting ready to sleep outse r the night and then ask each one of them whether you've tried 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 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? can you just explain h i would rkn a daily basis. mr. kneedler: well, first of all, with respect to the invial encounter, i think the way this would work in the we'll world, and i think -- the real world, and i think it's imrtant to understand what happens on the ground in these situations. i think in the circumstances u're talking about, i think what would happen is that the

person encountering the homeless rs would know whether there is a spot aible. i don't think the homeless peon would be required to check each day with each shelter there are multiple shelters. and in larger citiesthe initial encounters are n handled by law enforcement. they're ticly handled by social services agencies who are in contact witpele who are camping and know what their circumstances are and they are able to say, we know that at su a such shelter, there are beds available -- justice alito: what if there's -- mr. kneedler: -- would y b willing to go? justice alito: what if there's a question whether there are, indeed, enough shelt bs available? your rule wouldn't applif there are enough beds available, right? if there are 500 shelter beds and there are only 200 people who are tryi tsleep outside, then your rule wouldn't apply? mr. kneedler: right, right. justice it so you have to have a comparison of the number of beds available with the number of people who want to sleep outside. . eedler: right, yes. justice alito: so that wlde the threshold question? mrkneedler: right. and i just want to clarify one point about that.

it's not simply a measure of the number of beds against the number of hole people, such that if there is a deficit, the city can't enforce the law at all. you have individualized questioning and you know that there are vacancies available, even if t r everybody -- but there is a vacancy for the personei interviewed, then, yes, that person -- if that peon is offered and refuses, that person could be prosecuted or cited. justice alito: what if the person says, yeah, i know there's a bed available at the gospel rescue mission but they won't key dog. mr. kneedler: i d't think the inability to take urog to a shelter is a sufficient reason. there are shelters in some larger cities that may well take pets, but -- justice alito: i know i could sleep in the home of a family member but they really hate me and they're really nasty to m mrkndler: you know, i- justice alito: i'm not -- these r --

i'm just wondering how this is ing to be administered on a daily basis. mr. kneedler: with all respect, i think that example -- if the family is going to accept him, but, mn, that's the question. whether there is a place to sleep. but i don't know that it would very often come down to that -- that family hates me. on the other hand, if it'a woman who left domestic abuse, she couldn't be expected g back to her home or maybe her relatives' home or his relatives' home or something. so there's lot of common sense. and again, the first encounter th a police officer or somebody else has with a homeless person is very unlikely to be a situation in which the person would be issued a citation. justice alito: okay. youentioned just a couple of things that waed to follow up on. does it matter whether the person grew up in the town or not? suppose -- mr. kneedler: no. no. justice alito: ok. that's irrelevant? so they go up to so pice officer or social seic 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 outse, sure would rather do it here than in fargo. that doesn't matter? mr. kneedler: know, and i think -- not because of any eighth amendment rule we are talking about under this court's decisions in edwards a a saenz, the privileges and immunities clause or the coer clause or the various right to travel provisions would prohibit attaching that sort of limitations to a newcomer. but i would -- as i mentioned, garding people -- justice alito: 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 a bin three or four different municipalities. so to get back to the chief justice'qution, if there

aren't enough beds available in west calel does it matter? west caldwell is out of luck even though there are a lot of beds available in caldwell, which is, you know, a couple -- less tn mile away? mr. kneedler: yeah, i think the way you're describing it, it mighbeair to say that that set of small and closely-knit communities would o couny and the person wouldn't basical bbanished from where he lived or wree grew up by saying, you know, if there's a shelter in this other location, then you cou be expected to go there. justice alito: there's some tiny municipalities what if a municipality doesn't have a park,o somebody is going to sleep outside, the only place where that person can sleep is going to have to be on the street? do a time, place, or manner restriction work there? mr. kneedler: i mean, certainly not on the street. because of safety,raic, et cetera. i mean, there are commonsense accommodations, and i think even

in the smallest town, there are probly locations where a rs could sleep. you know -- justice alito: all right. thank you. somayor?stice roberts: justice justice sotomayor: 'want to be repetitive, but what are we vacating and remanding for? indivialed finding of what? mr. kneedler: well, the way that -- first of all, the class was defined simply on the basis of the aggregate numbs thout an individualized determination as to whether, frankly, in our view, not a sufficient invialized determination as to the two named plaintiffs. anyoidentified several factors here. they both slept ithr cars. several of them were able -- or bothf em chose at some times to sleep at a safeway rkg lot or with a friend. the other slept aruck stop out of town. it's not clear that -- neither

of tm er actually camped in a park. and so -- and, in fact, the dissent below questioned whether one of those two people even had standing. so that there -- even with respect to the namedlatiffs, there was not the sort of examination of their individual circumstances. justice sotomayor: y are talking about standing? mr. kneeerwell, no -- standing, yes, and there could be typicality or commonality problems there too if the two named plaintiffs slept in vehicles, which may present different problems than in the camp. justice sotomayor: well, we were told that sleeping or camping is ouofhe case because -- and the court said that. mr. kneedler: sleengyes, but eeng in a vehicle counts as camping. justice sotomayor: right. mr. kneedler: but it's not the sort of camping that we've been talking about, to some extent, about sleeping othground with a blanket or a tent or something like that. and it's true, the question of

tents are not in the case. if the city wanted to allow tents, i suppose it could even require that they be takenow and put back up. there is a l flexibility that the city could have. chief justice roberts: justice kagan? justice kagan: well, i did want to ask youusabout that. i mean, let's say i'm with you, mr. kneeeron the fact that you can't prohibit being homeless, and because you can't prohibit bei heless, you can't prohibit sleeping outside if y a a genuinely homeless person. d let's say i'm with you that the fact that this ordinance says, well, but we're prohibiting using blket, that can't be right. you know, y're not, like, just, like, get hypothermia and the problem -- the nstutional problem will go away. but it does seem as though there e line-drawing issues, as you go up, right? it's a very cd ght and somebody wants to make a fire. it's raing d somebody wants to put up a tarp. thci has said you can sleep in particular areas, but it

rnout that those areas have a ton of crime. you know, you could go on and on. and i'm not -- how do you deal with questions like that? these are t,ike, gotcha questions. th i like, how do you deal with questions like that? eris the line where the city can say our legitimate municipal interests can come in and say, you know, as to atas to that, you can't do that. mr. kneedler: yeah, so what -- and there are several examples atou have there. with respect to tents and tas, i guess you were saying, i think there's a difference between what you might need realistically sleep outside if it's ining, snowing, or something like that, and what you might prefer to have as a structure for long-term camping. as i mentioned, the city might say you can put up a tenif it's very cold, but you've got

to take it down in t mning. that's like being in -- some shelters say y c stay here overnight, but you have to leave during theaynd you can come back. i mean, that might seem gratuitous of the city to do it. it might not want to do it. but we're not sinthat the eighth amendment would prevent it from doing it, d pecially as you say, if there's no alternative and it's, you know, 20 degrees. with respect to fires, there are really important issues on the other side of that questn. in an urban area, if you're creating fires, there may be hazards in a park. there might be -- justice kagan: so how does -- mr. kneedler: -- there might be fireplesn a park. justice kagan: how does a court make these judgments? because these are tough dgments 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 certain level where it's out of their handanit's in the court hands. and i guess i want to know what

the principle is where the questions go to the court and why that principle is the right principle. . kneedler: i think -- i mean, i thk ere are two principles. one ishait's the municipality's determination, certainly in the first instance, with a great deal fxibility how to address the question of homelessness and a tim pce, and manner. and then municipalities should be able to choose the ple, should be able to choose the attributes of that place, should be able to say we're not going to allow more than 20 people or something, to regulated in th manner. and i think the eighth amendment prciple would be whether the city has eecvely prevented sleeping outside because the protections need fm the elements are not available. and certainly in grants pass, i would thinev a blanket would not be enough under some -- but i think that's the touchstone. e u basically -- does it

boil dowtor is the core principle of robinson that you can't criminalize homelessness, which includes n bng able to criminalize sleeping outside? if you can't sleep outside because of lacofrotection from the elements, i think that's the principle a court would apply. but the ninth circuit in a number of cases has gone way beyond that and think that's really the source of the oblems that have been identified in the briefs, and not the core principle of robinson. justice kagan: thank you. chiejuice roberts: justice gorsuch? juicgorsuch: mr. kneedler, i want to probe this a little bit further because it does seem to me this statusonct distinction is very tricky. and i had thghthat robinson, after powell, really was just limited totas. and now you're saying, well, there's me conduct that's effectively equated to status. and -- but you're saying involuntary drug use, you n regulate that conduct. that doesn't qualify as statu you' 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? mr. kneedler: right. justice gorsuch: yo're saying you can regulate somebody who is hungry and has no other choice t steal. you can regulate that conduct, even though it's a basic human necessity. anthat doesn't come under the status side of the line, right? mr. kneedler: ye justice gorsuch: okay. but when it comes to homelessness, which is a rribly difficult problem, you're saying that's different and because there are no beds available for them to go to in grants pass. what about someone who has a mental health problem that prohibits them- ey cannot sleep in a shelter. are they allowed to sleep outside or not? is that status or conduct that's regulable? mr. kneedler: i think the question would be whether that shter is available. justice gorsuch: it's available. mr. kneedler: well, no, available to the individual? juice gorsuch: it's available to the individual. mr. kneedler: well --

justice gorsuch: it'just because of their mental health problem, they cannot do it. mr. kneedler: i think there mit be -- i mean, that's, the mental health problem -- justice gorsuch: status or conduct? mr. kneedler: the mental health situation itself is a status. justice go right, i know that. it has ts rther knock-on effect on conduct. isharegulable by the state or not? mr. kneedler: i think that -- i ink if the -- justice gorsuch: all the -- you know, alcohol, drug use -- that they have problems too, but you're saying that conduct is regulabl how about with respect to this pervasive problem of perso with mental health problems? . kneedler: i think particular situation, if the person would engage iniont conduct as -- jugorsuch: no, no, no, don't mess with my hypothetical, counl. [laughter] i like my hypothetical. i know you don't. it's a hard one, and that's why i'm ki it. i'm just trying to understand -- the limits of your line. mrkndler: i think it would

depend on how serious the offense was on the indiv justice gorsuch: it's a very serious effect. the mental health problem is rious, but there are beds available. mr. kneedler: what i was trying to say it would depend on how serious being required to go into the facility was t persons mental -- if it would makeisental health situation a lot worse, then that may not beomhing that's -- justice gorsuch: so that' status -- that falls on the status side? mr. kneedler: i guess you could put it that way -- justice go that's what i'm wondering. i'm asking you. i really am just trying to figure out -- you are asking us to extend robinson. i'm askingowar? mr. kneedler: well, what i was going to say, you could --ou could think of it as status, but i inanother way to think about it, and this is our point about an individualized dermination, is that place realistically available to that pers bause -- justice gorsuch: it is in the sense that the bed is available but n bause of their personal circumstances. mrkneedler: right. right. anthat's my point. it's avaiin a physical sense. it may be available to somebody else, but requiring an individualiz dermination might include whether that person could cope in tha setting.

that'thonly -- justicgouch: so that might be an eighth amendment violation? mr. kneedler: because it may not y, because it's not available. justice gorsuch: it's an eighth amendment violatn require people to access available beds in the jurisdiction wch they live because of their ntal health problems? mr. kneedler: ig there would -- justiceorsuch: how about if they have sutance abuse substances in the shelter? those is that an eighth amendment -- mr. kneedler: that is not a sufficient -- justice gorsuch: why? why? they're addicted to drugs, they cannot usehein the shelter. that's one of the rules. mr. kneedler: llif they -- if it is the shelter's rul then they can't go there if they are addicted. justice gorsuch: so that's an eighth amendment violation? mr. kneedler: no, the eighth endment violation is prohibiting sleeping outside because the only shelter that is avlae -- justice gorsuch: is not really available to that person mr. kneedler: -- won't take them --on't take them, yes. and that's an individlid determination. stice gorsuch: same thing with the alcoholic? mr. kneedler: ye justice gorsuch: okay. so the alcoholic has an eighth amendment right to sleep outside even though there's a bed

available? mr. kneedler: if the only shelter in town won't take him, then i think he is in exactly the same condition. and there can be all sorts of reons, and the city doesn't want normally -- justice gorsuch: and judges acro t country are now going to superintend this under the eighth andnt. mr. kneedler: i actually don't think that it requires -- again, i don't think we should let the ninth circuit decisions characterize this. justice gsu: you don't like the class certifatn, but that question is not before us, counsel. mr. kneedler: no, but all we're talking about t core principle of robinson, which is you cannot punish someone for a status. and i incommunities guided by that principle, and it's the only pncle a court should be enforcing, would retain a lot of flexibility. justice gorsuch: how about if there are no public bathroom facilities? do people have an eighth amendment right to defecate and urinate outside? mr. kneedler: no, we -- justice gouc is that conduct or is that status? mr. kneedler: it's obviously --

there is conduct there and we are not suggesting that cities n't enforce -- justice gorsuch: why not, if there are no public facilities available to homeless persons? mr. kneedler: that situation, yokn, candidly, has never arisen. and whether or not there -- i mean, in theitation as i've seen. but no one is suggesting and we' n suggesting that public urination and defecation laws cannot be enforced because there are very substantial public health reasons for that. juice gorsuch: well, there are substantial public heah reasons with drug use, with alcohol, and with all these other things too. mr. kneedler: and they can all be -- justice gorsuch: but yo're saying the eighth amendment overrides those. why not in this circumstance right now? mr. kneedler: no, i'm not -- i'm not saying the eighth amendment overrides the lawsgast drug use. justice gorsuch: oh, i know that. mr. kneedler: oh, i'm sorry. justice gorsuch: i know that. mr. kneedler: no, i misunderstood what you -- justice gorsuch: that one the government wants to keep. i got that. mr. kneedler: no, i minderstood your question. sorry. ste gorsuch: yeah. last one. how about fires outdoors? i know you say time, place, and manner, but is there an eighth amendment right to cook

outdoors? mr. kneedler: no. i think what -- justice gorsuch: that's a human necessy ery person has to do. mr. kneedler: but ts one of those things that, you know, is taken care of on the ground as a practical tt. there are restaurants where someone can go. there are -- justice gorsuch: well, no, no, we're talking about homeless people. they're not going to go spend money at a restaurant necessaril mr. kneedler: well, there may be inexpensive places. some pplget -- justice gorsuch: let's say there isn't, oka let's say that there is no reasonable -- mr. kneedler: and the local community -- justice gorsuch: do eyave a right to cook? they?have a right to eat, don't mr. kneedler: theyave a right to eat, a right to cook if it entails havi aire, which i think itbly would, but as i said, the eating and feeding is taken care of in most communities by nonprofits and churches steppinfoard -- as they have for 200 years.

justice gorsuch: but if there isn't, there's an eht amendment right to have a fire? mr. kneedler: no, nowere not saying there's an eighth -- justice gorsuch: wel ihought you just said there was. mr. kneedler: well, there -- there's food that you can eat without cooking it. i mean they could get a handout from an individual that, you knowpele can beg for money. i mean, there are -- there are ways thath works out in practice. juicgorsuch: last question. i'm totally sympathetic to the id tt there might be a necessity defense in these ses, and there's a footnote in your brief that indicates at in a lot of cases youou maybe bring advance preliminary injunctive action at least a individuals. and i don't even see why you couldn't do it on a class-wide basis. mr. kneedler: yeah, we haven't ruled t ass, we haven't ruled out class. justice gorsuch: well, i thought you diinhat footnote. you said the whole mistake here is that this was done on a class-deasis. mr. kneedler: without sufficient inquiry into the individual circumstances is what, partully with the two class representatives here. justice gorsuch:ha you. chief justice roberts: justice kavanaugh? justice kanah: you just said a minute ago that a lot of this is taken care of on the ground as a practical matter. ani think one of the questions

is, who takes care of it on the ground? is it going bfederal judges, or is it the local jurisdictions with -- working with t nprofits and religious organizations? so i guess following up on the necessity question, given the nerawing problems that we've been going through, if a state haa traditional necessity defense, won't that take care of most of the concerns, if not all, and, therefor aid the need for having to constitutiale an area and have a federal judge superintend isather than the local couny, which you've emphasized many times working wi the nonprofits and charitable and religious organizations, which is how it works in most places? mr. kneedler: well, i -- i think that the necessity defense at least traditionallharequired a much stronger see urgency and imminence than this. if states d necessity defense and we knew that it was avaiblin all of these places, but even in oregon, i think it's a case called baett, the court said it's

theoretically possible, but there was a remand for factual issues. so we don't knowt thisoi in time whether there is such a defense. and that's really not in the case he. this comes up on an eighth amendment challenge without reference to the necessity defense and,raly, without reference to the new oregon statute, which seemsigy instructive in terms of time, manner, and place that jurisdictions, grants pass should examine but i don't think the court should put this core point about robinson to one side because, --he possibility that in oregon and maybe, you know, mae no other place, i don't know about california law necessity, maybe it would be taken care of. i think, at this point in time, that is tospeculative to -- justice kavanaugh: well, usually we think about before constitutionalizing an area or exnding a constitutional precedent, you might disagree with thachacterization, but

before doing that, we usually thinabt whether state law, local law alreadychves those purposes so that the feder courts aren't micromanaging homeless policy. and it's on a daily basis when you work with the homeless. it's a daily ise, how many people are going to show up that day at the food bank? how many people argog to show up that day at the shelter? so it's not like this is a once-a-year thing. mr. kneedler: yeah, no. for the people actually dealing with it day to day, that is certainly true. the city, the law enforcement, the city liaisons, the nonprofits, but it's not true for the federal ur the federal court doesn't have to get into any of that. the onlyimthe federal court would get into it is when -- is ifheore principle of robionas being disregarded by not -- by criminalizing somebody for sleeping outside when they have no place sep inside. that's the core principle. that's the only tng court should be enforcing, not the --

not whether people show up. and the thing i would -- another thing i woulsaabout the neceitdefense, it may be that if the court issues an appropriate injunction in this case oanher 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 athould be taken into account. i mean, that's in effect the time, manner, anple or similar to that. if state lawom along and establishes a realistic defense or a realistic approach to how people can remain 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 declineo dress this question, which is important in the ninth circuit, both because the principlth those courts recognize should be sustained but the approach they've taken juickavanaugh: last question

i have on the food hypotheticals about stealing to feed yourself orooking to feed yourself. you kind of waved all those away by, oh, that's l taken care of by local communities, nonprofits, and religis organizations, and by and large, heroic eor each day to make sure that happens, but it doesn't always happen by any streh. mr. kneedler: no, it doesn't always happen. justickanaugh: and then what? mr. kneedler: but homeless people are resourceful. th have friends who are also homeless. they may -- they may know people in town. they may beg for money. and the towns are coping in the same way, frankly, that individual homeless people d they do the best they can under the circumstances, but that -- if those circumstances fail and e nprofits, et cetera, can't -- you know, the truck does't show up one night, that doesn't become an eighth amendnt problem. and we're by no means suggesting that there sulbe a federal judiciary overlay on top of all that. the cities and the nonprofits shlde left alone to do the

work that they're dngunless the core principle of robinson is not respected. justice kavanaugh: tha y. chief justice roberts: justice barrett? justice barrett: so one odd thing about the poste of this case, putting aside the class part, is i p-enforcement nature, because in robinson and in powell too, the punishment -- you kn, e adjudication of guilt had already occurred and it was time for the punishment bto imposed, and then the eighth amendment challenge was raised. and justice alito s king you about a lot of the very difficult on-the-ground factual determinationshalaw enforcement would need to make bereeciding whether someone could be given a citation for campinouoors. why wouldn't it make more sense, asmi that we agree in substance with the line that binson would control here, why wouldn't it make moreen for the eighth amendment claim to be raised as a defense, much like the necessity defense, once a court is in the position, unlike the law enforcement fir just trying to gather information on the ground, to determine whether there were available beds, ether the person had a place to go.

why is a pre-enforcement alnge the right way to think about this? mr. kneedler: well, several things. it obviously cou braised as a defense in a -- in a criminal osution or civil -- citation -- justice baet sure. mr. kneedler: but i think -- for this particular eighth amendment claim, the claim is that the eighth amendment prohibits criminalizing the act to binith. it's not just the punishment that would be -- justice barrett: well, i mean -- i understand that. i mean -- let's e -- i do understand that, but it's not that it categorillprohibits punishing this act. as one mig s if it, you know, prohibited sleeping altogether for everyone, right, this is because the eighth amendment claim is that it punishes, criminaleshis act in a way that false disproportionately a unconstitutionally on a particular cssf people.

and that requires adjudication at the fro e to figure out whether someone is protected or protected. if i go and sleep in an encampmenti n be cited. it's different. the's a factual determination on the ground. anronson was a status-based challenge, and it came up in the context of the individualized criminal proceeding. so why is a pre-foement challenge -- why does it make sense, given the very, very fact-intensive nature ts? mr. kneedler: well, and in -- you know, in an individual ce, i think you're right, but imagine a situation where someone whgeinely had no other place to live and it's the third citation, the fourth citation, and you have a pattern tthat person or other people where the city is -- consistently not respecting the robinson principle. then i think you might have a pre-enforcement review, just as you might for an asserd violation of some other constitutional right, because here, again, it's not the eighth endment regulating only the punishment for an otherwise

valid conviction. here the question wther the city can criminalize that conduct at all. and so if you ve series of citations that don't rise to the level of probable cause or whatever would be necessary -- excusee -- necessary for the issuance of a citation where the law enforcement officer on the grou inot respecting the robinson principle, then you might have an injunctive action. justice barrett:his would be the first case, right, because it didn't haenn robinson itself, where we had -- where we required -- where we had a pre-enforcemt allenge on the basis of the eighth amendment to the criminalization of certain conduct, putting policemen in this situation, right? mr. kneedler: but i suppose in robinson itself, if the person had been arrested once, been arrested a second time, and then he's arrested a third time, would think he could bring a pre-enforcement chalng because the way the police were interacting with him was not reecting 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 ua. can you just describe, i mean, briey,f you can, i mean, do police then make individualized quiries? how does this work? mr. kneedler: well, what happened there was the -- you know, was i think e ld standard of the way this should be done, and larger cities have this ability the park service cooperated very closely with the district government. the rkervice does not have the sort of social services, et cetera, that a municipaly s, in d.c. and so that function is sort of split. these are special national park properties. but the national park service relies, asheederal government does, the federal protective service for buildings elsewhere, cooperates with the local government.

and the loc gernment's social service people or the non-profits went out and intervied erybody who was in the -- who was in the encampment in mheon square and told them about what services are avlable. there was advance notice gen that the encampment is going to be cleared within -- i think it was days. and people were -- so people were warneda in advance. they were warned the night beforethday before, so they could collect their things. so just moved somewhere else. some did take the city up t offer. some went into shelters. and that's the way that shelters are -- exce -- encampments are typically cleared, is the -- and paicarly 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 ou where the law enforcement officer for the first time is encountering the person. smaller cities do't have that capability, but grants pass does

have these outreach workers. anthat's who -- that's who carries on the dialogue. and so that's the way it was eared. chief justice roberts: justice jackson? justice jackson: and so, given thatxpience and the fact that martin has actually bee 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. mr. kneedler: the robinson principle is. justice jackson: the robinson princie adopted in martin. my understanding is, for example, cifnia says that's the law, we comply with it, and there we are. mr. kneedler: yeah. eyre 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 gotteaso sort of how does this rule work, can it work, that sort of suggest that it's not already happeng the ground in these places, that the shelters and the workersre 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 greatenuer of homeless individuals in a jurisdiction than the number of available beds, the jurisdiction cannot prosecuteomess individuals for sitting, lying, sleeping. this is t new rule. that's what the law is right now in that situation, right? mr. kneedler: yeah, that -- a's what -- that's what main -- i don't want to say that the clearance proce 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 rks. justice jackson: it's not a new thing that is being asd r today. mr. kneedler: how it's -- how it's supposed to work. justice jackson: yes mr. kneedler: all i'm saying is that there may be imperfections -- juice jackson: all right. let me ask you about whether or not you arasng for an extension of robinson. that's come up a couple of times, and i don't -- i don'-- i don't see it as an extension or whether that'beg asked for. so can you explain whether

there's some sort of extension of robinson -- mr. kneedler: no. justice jackson: -- happening da mr. kneedler: no, i don't think so at all because, as i id e sleeping outside is an essential human function, and if you say someone can't sleep outside, that'--hat's sort of -- or has no place to sleep inside, that's the definition, really, of helsness. justice jackson: so you're not suggesting that people should be excused from engaging in otherwise criminal conduct? so we've heardhiexample about people stealing in order to eat. i meanth would be a situation in which someone is actively participating in what wod be otherwise criminal behavior -- if anybody did it. mr. kneedler: yes. justice jackson: and the idea, i gues ithat, 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? mr. kneedler: no. that's correct. one thing that i think is poant to keep in mind in this, is if grants pass can this, so could every other city. so could a state do it state-wide.

and, eventually, heless person would have no place to be. justice jackson: so this is more like the sort of initial hypo of criminizg eating outside, not that you'd be doing someinthat was otherwise criminally culpable? mr. kneedler: yeah. yes. i suppose there could be ordinances that the city would have about where you can -- you can't eat at -- n't consume -- justice jackson: that is time, place, and m mr. kneedler: yes. justice jackson: final question. yomentioned with respect to states doing this. why isn't the federal government arguing this case is moot in ghof 195.530? is is the oregon recently passed statute that i meiod earlier. why doesn't the government read that l ai do to prevent grants pass from enforcing its dinces to block sleeping outdoors at all places and all times? mr. kneedler: yeah, , certainly agree there appears to be a pretty stark inconsistency between that state law and the ordinance. it hasn'been applied. it has to be objectively,

reasonable, i think -- justice jackson: so would the federal government -- mr. kneedler: -- but thiisn't time, place and manner at all. justice jackson: rht what would your position bif the court decided that as a matter of constitutional avoidance or whater se that we don't need to hear this or reach this decision in this case, given this new state ordinance? mr. kneedler: that would be one possily. it wouldn't answer the core robinson principle point and t limitations on that point that has -- that has triggered the amicus briefs. justice jackson: right. but our typical rule is that if there's some other way, d't necessarily comment on constitutional issues, correct? mr. kneedler: right. th wld be one course to see how what time, place and manne meant under state law and how -- how the eighth amendment cou accommodate that or take it into count. justice jackson: thank you. chief justice robertnk you, counsel.

ms. corkran. ms. corkran: chief justice and y 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. thgh the city describes its ordinances as punishing campg on public property, it defines campsite as anyplace a homeless person is while covered th blanket. the city interprets and applies the ordinances to permit non-homeless peopltoest on blankets in public parks while a homeless person who does the same thing bres e law. the ordinances by design make it physically impossible for homeless people to live in grants pass without facing endless fines and jail te. the only question under robinson is whether there's any meaningful difference between a law that says inhomeless is punishable and a law that says being homeless while breathing or sleeping or blinking is

punishable. in other words, does adding a ivsal human attribute to the definition of the offense make the punishment conduct-based ineaof status-based? the answer is no. the purpose and effect of th second statute is exactly the me as the first, to make people with a status elely and unavoidably punishable if they don't leave grants pass. indeed all the oinces do is turn the city's homelessness problem into seo else's problem by forcing its homeless residents tother jurisdictions. the injunction below leaves the ty with an abundance of tools to address homelessness. it can impose time, place, manner restrictis when and where homeless people sleep. it can ban tents and clear encampments. it can enforce a sleeping ban against mess people who declines shelter and it can fuy force laws prohibiting littering, public urination, defecation, drug use and violent orarassing behavior. the only tool the city wan that it doesn't have is authority to impose 24 city-wide sleeping ban that forces its homeless residents to either move to another jurisdiction or face endless punishme. the state police power is broad

but it does not include the power to push the burdens of soal problems like poverty on to other communities or th power to satisfy public demand by compromising individual constitutional rights. i welcome the court's questions. justice om: in robinson, there was a statute that outlawed -- that said that "to be aicd" is a crime. is there an ordinance here that says "to be homeless" is a cre? ms. corkran: so the language f the purposes of a temporary place to live bakes homelessness into the definition of the offense, justice sotomayor was talking about that earlier. so when you combine that language with the best of the mpg definition, what you have is an ordinance that says being homeless, while eeng with a blanket, is punishable.

and as i just said earlier, the question becomes when you attach the stat tthe universal attribute of sleeping, does it then transform the offense into conduct-based punishment instead of status-based punishment and i ink the answer is no. chief justice roberts: a n diiculty with the distinction between status and conduct. you'llckwledge, won't you, that in those terms, there's a difference between being addicted to drugs and being homeless? in other words, someone who's meless can immediately become not homeless, right, if ey find shelter. someone who is addicted to drugs, it's not so -- so easy. it seems to me thainobinson, it's much easier to understand the drug addti as an ongoing status, while here i think it is different because you can move into and out of and into and out of the status, as you would put it, as bngomeless. ms. corkran: so it's interesting, we today understand addiction as an immutable status. in robinson, the court suggested

that someone might be recovered and no longer have the status of addiction. so the robinson court wasn't thinking abo aiction as something that couldn't change over time. chief justice roberts: well, that may limit the applicability ofobson to a different situation, but what is the -i an, what is the analytic approach to deciding whether something's a status or a situation of conduct? ms. corkran: so e estion is a status is something that a person is when they're not doing anything. so being addicted, having canc, ing poor, are all statuses that you have apart from any conduct. chief justice roberts: hin cancer is not the same as being homeless, right? i mean, maybe i'm just repeating myself because homelessness can -- you can remove the homeless status in an instant if you move to a shelter or situations otherwise an. and of course it can be moved the heway as well if you're kicked out of the shelter, ater. so that is a distinction from all these other things tt ve been labeled status, isn't it? ms. corkran: i don't think so

because, you know, a cancer patient n into remission, they no longer have that status. i don't think -- i mean, i don't inthere's any question that being poor is a status. it's something that you are apart from anything you do. it's a status that can change over time and at that point you wouldn'be 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 statuses is -- chief justice roberts: well, i guess is being a bank robber a status? . corkran: no, because being a bank robber means you rob banks. so -- so the definition and the conduct -- chief justice roberts: violating this ordinance means upon being ked to leave you don't leave. ms. corkran: violating this ordinance means you're homeless. so again, homelessness is not something that you do. it'ju something that you are. and t 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 status-based and i think the answer is -- justice sotomayor: counsel, edwa california in 1941 struck down a law that made it a crime to transport an indigent person, correct?

ms. corkran: yes. justice sotomayor: indigency is a not -- is a condition that can change over time, but the law was aimed at the transport of a person who wasn't moll reprehensible. ms. 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 fect of pushing the burdens of poverty or indigency into other communities. it's woven throughout through our constitution. so edwards located it in the dormant commerce clause. we have env. roe which locates it in the privileges of immunieslause; papachristou addresses that status-based niment in the context of a procedural due process. what robinson held is that when that expulsion iefctuated through status-based punishment, it violates thpushments clause. justice barrett: how do you define a community? so wstice alito was describing how new jersey has so tightly woven

municipalities close toget and here, you know, the chief justice was asking about whether if grants pass, if there were -- was a new homesshelter with lots of beds right across the border minutes away, you know, could that be taken into account? and i think there was some bac and forth and not necessarily agement on that. what is your position? how do you define a community? take that example of a homeless shelter right outside the limits of grants pass. ms. corkran: yes. so to -- so to answer that hypothetical fsti'm not concerned -- i don't have any problems with saying that a homele pson in grants pass has legal and physical access to a elr that's just over the lines, if that's, in fact, true. ts of jurisdictions limit their homeless shelters people who are residents. so -- and just tbelear, 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 -- ms. cora no. justice barrett: -- as a matter of -- because, let's see,'m

king all of this because, in response to justice sotomayor, you were pointing t at 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. so -- or out of your community anon to others is i think how you -- how you phrased it. how do we know what those lines are? and you're saying it doe't have to be jurisdictionpefic. ms. corkran: no. i think juriicon matters becausth tells us kind of the lines in which the -- whatever ordinance or statute pls. so, when shelter is availabl the ordinances are enforceable because they punish the conduct of not going to the shelter, as opposed to the statuof homelessness. so i think thaa nicipality can punish the conduct of not gog 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 settlementysm at the founding er a lot of municipalities do not allow people from outside of the jurisdiction to use thei 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 someone who wants to use their shelter? ms. corkran: no, that ul'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 ithis case? ms. corkn:ecause, here, we have fines and jail time. we have a status-based punime scheme that is, in fact, inflicting punishing -- punishmentitn the meaning of the eighth amendment. sticbarrett: counsel, do you want to -- oh, i'm sohief. were you finished? chief justice robert 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,now, eating is a basic human need, and it's not the case that so kchens or social services will always be able to meet it, and so he asked about whetr e eighth amendment would prohibit punishntor stealing food. you might ask the same questions about tresssnd squatting in

stctes if there are -- you know, if that was the best alrnative. so how do we -- how do we dr these difficult lines about, you know, public urination and those sorts of things? ms. corkran: so i'll start with stealing food. stealing food is not part of definition of homelessness, and it's also not a universal attribute. so -- so i put that outside the scope of any of e guments we're making here. with rescto public urination and defecation, if you had a -- i d't think this would ever exist, but if you had a law that said homeless people cant urinate or defecate anywhere within city limits, i think then it starts to look like this case. but, if you'reaying that people can't urinate or defecate on public property, it is almost -- 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 person has no place else to go. how could -- ms. corkran: you might have a --

i mean, there are commercial establishments. i don't know that anyone's pointed to a jurisdiction whe you truly don't have access. but if we had to say -- justice barrett: well, wt's the constitutional principle? ms. corkran: right. justice barrett:akmy hypothetical. say there -- there's not -- commercial establishments don't want non-patrons coming in to use the facilities, there are no public filies, and it's a generally applicable rule that says no public urination. mscoran: 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 nighttimadess. so the sleeping prohibition goes more directly to the status of homelessness than urination or defecation. justice barrt:o it would not -- so it would not violate the eighth amendment to punish public urination and defecation? mscorkran: you might come up with some different theory, but it's not the theory t're justice barrett: not the theory that you're -. ms. corkran: yes.

ms. corkran: yes. justice kagan: what do you think, ms. corkran, of this ea that oregon's necessity defense essentially functions as a eighth amendment in this coext, so we don't have to constitutionalize the kindof limits that you're talking about? ms. corkran: yeah, i would say it's not at a car that that's true. as mr. kedr pointed out, you know, there is a necessity defense in oregon law, but, so far, the oregon courts have not applied it to thisirmstance. it also wouldn't necessarily be available for thfis, the citations, we have here. but i think that this question about the availabilityf e necessity defense really goes to the injunctive posture of the case. 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 ceity defense in a criminal prosecution, right, it kind of moots out the eighth amenenclaim. but going to justice barrett's questions about injunctive relief, there, the question u're asking is, does the plaintiff have a credible re of future punishment?

i'd say first that the injunctive relief n before the court. the city has not challenged the propriety of t iunction here. so i think it's a question for another day. the courts herdid find that the plaintiffs had shown a credhreat of future punishment, and so i think that resolv issue for -- for this case. justice gorsouns, along thnes, 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 advsaal testing, wasn't what was argued by the parties, it di't have a whole lot of citation or support, it meind of in a breezy paragraph. ms. corkran: right. justice rsh: and some have suggested that that's really a miakbecause the eighth amendment's about punishments. itoe't prevent states -- limit states' capacity tonge in passing laws that make nduct or actions or anything a crime. it just goes to the nature of what punishments follow, putting aside the excesse nes clause. ms. corkran: yeah. justice gouc so there's a lot of discussion in the brief about atnd some -- some suggestion that, really, it' the fourteenth amendment that should be doing rkere, if

there is work to be done, because some form of the necessity defense has been wa understood as inhering in due process from theouing and whether that can be enforced through state lawswhh might differ, kansas versus kahler, but have to --avto nonetheless cover the territory, and whether there might be injunctive relief on that basis, possible in advance, not lit to defenses, possible. just reactions to th. i -- we haven't yet touched on it. ms. corkran: so robinson predesraham v. connor, but i think it espouses thsa principle, which is, when you can identify an plicit 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: wl,ut,

the more -- the more limited -- i mean, lemeust -- play with that for a minute. the more natural home for a necessity-type argument is due process. that's where it's always historal been understood to lie, not the -- not an amendment having to do with punishments, rit? one has to do with what you can criminalize. the other s do with the punishments that follow. and you're not really attacking the punishments he. you're saying any punishments permissible. ms. corkran: right. justice gorsuch: and any punishment is impermissible. and that is a necessity defense. that's a asc necessity defense. ms. corkran: so i thinth it's right that robinson describewh it was doing as saying that the eighth amendment prohibited the criminalization. you see that language in i think weems and wilkerson v. utah. agree it seems like a bit of a strange fit. -- justice gorsuch: so, if that's the ca, that's the case, wouldn't that get rid of this awful status/conduct distinction that we have -- th 're struggling with here today? because, if it's a nessy, it doesn't matter why it's a necessity.

every person can make their own argument abo w it was necessary, and then the courts will decide. we don't get into the status/concttuff that -- that robinson seems to invite. thoughts? ms. 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? ms. corkran:he oregon courts so far have not applied the oregon -- justicgouch: i didn't ask whether the courts -- vepplied it. you haven't asked them tapy it, and you're . corkran: they've had a couple of cases like this. justice gorsuch: have they? ms. corkran: mr. kneedler referred to the bartle ce. justice gorsuch: and how are they going? ms. corkran: the -soar, they have not applied the necessity defee. they left open the possibility that it mighapy, but they haven't applied it -- yet. theyi't find that it was necessary under those circumstances. juice gorsuch: did they rule out that it might be necessary undeso circumstances? ms. corkran: they left open that possibility, but i'd also say the civil citation or e i a little murky.ay "civil.” it's but the fines here a n subject, i don't think, or it's not clear, to the ceity defense.

so it wouldn't take care of the entirety othclaim. justice gorsuch: you've got excessive fines clause there, though, right? ms. corkran: yes. justice gorsuch: and that's not before us either? ms. rkn: we have raised the fines before this court because our alnge is to the package of punishments, and, historically, that's hoth court has looked applying the cessive fines clause and the punishment clause together we're in a really unfortunate posture here that we he aims 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 ggted this isn't a great vehicle. 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 jail time for -- for criminal trespass. e alo: 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 tt? ms. corkran: so -- so homelessness -- justice alito: does it require mo than that? ms. corkran: right. homelessness is defined as lacking a fixed, regular, adequate nighttime are.

so, if you have ho, you have a home -- i'm not homeless when i go to gran ps because i have a home in d.c. the second part of our class definition focuses on whether thholess person has access to shelter. that's not becausth'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 ndt of not going -- justice alito: well, i asked the qution 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 homelessss but if homelessness is defined to rui more than that, then my question would be whether mee who is lacking a place to stay on a particular night for a particular period of time is homeless, if the reason why the person finds himlfr

herself in that status is, for example, the person fus to take antipsychotic medicine that's be pscribed or refuses to go to drug rehab or rehabilitation for alcoholism or thpeon has chosen to move from one place where the perso ghhave a shelter or a home where the person could live to another place. what about all of that? ms. corkran: so the status of homelessness is something that only changes once thpeon has a home. you lose your home, you're homeless. if you have a home again, then you'reot in the status anymore. i inwhat 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 -- justice alito: no, that's not really what my question gets at. the question is you can draw a distinction -- status is different omonduct, but there are some instances of conducth are closely tied to status or if homelessness is fid as simply lacking a

place to stay in a particular ght, they amount to the same thing. the definition of homelessness encompasses the conduct of sleeping outside. so my questions ether this is -- what if the person finds that person in a homeless state because of prior life choices or their reful make future life choices? that's the question. ms. corkran: yeah, yeah. so -- so our definition of lacking access to shelter is lackinphical or legal access to shelter. and you're looking at the person situation on that particular night. thk generally we're not doing an inquiry into all of a rson'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 alys with respect to addiction but there could be situations where there

is such a ghcausal nexus between a choice a person has made and their lack of shelter acsshat you would say this person has chosen not to take th shelter and to be very clear, if you decline shelter at is physically and legally available to you, you're not in a class -- you're in -- justice alito: wel s but the problem is that once you move away from thdenition that makes the inquiry basically tautolic, then you get into the question of assessing the cleness of the connection between the status and the conduct. and you do run into problems with the person who's kleptomaniac, or a person who suffers from pedophilia. so howo u distinguish that? how does the court assess how close the connection has to be? . rkran: so for both of those categories, the statuss defined -- i don't kn i status is the right word there -- being a pedophilioraving pedophilia is defined by the urge that you ha, t by your conduct and acting on that urge.

so if someonwe to act on that urge, that tight causal nexus w they didn't have access to shelter, then they woulbeutside of our claim. justice jackson: i thought you made a very interesting remark in response to justice ali and i'm just trying to clarify. u seem to say that homelessness, as you've defined, is not lacking acceshelt on a particular night. is that -- am i right about that? ms. corkran: that's right. i use the hud definition which is homelessness means you lack a fixed regular adequate night-time address. justice jackson: so that kind of thing might -- going back to the chief justice's original questhat's not changing night to night -- in the same way. ms. corkran: -- it can change over time the same way that a cancer diagnosis could change over time, 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,

when someone does have ato 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 -- ms. corkran: yes. juste ckson: -- as opposed to punishing the status of being homeless. ms. corkran: yes, that's -- that's the exact reason that reasonable time, place, nn restrictions aren't a problem because if you have time, manner -- time, place, d nner restrictions what you're doing is punishing the conduct of not going to sleep where you're allowed to go. thatatnale doesn't work when someone has nowhere to go. justice jackson: and can you speak to whether or t should really be even getting into this in light of thne oregon law? ms. corkran: so we didn't argue mootness. we made this point in our brief in opposition. we didn't say mootness just because weo't have an injunction under the oregon law yet and it's not self-exeti. i don't think there is any question that the ordinanc fall under the oregon law.

i mean, it was intended codify martin. it requires that a st of restrictions on sleeping or resting outside are reasonable with respect to homeless individuals. cleay e ordinances here don't meet that standard. iertainly wouldn't have any concerns with the court sang a matter of constitutional avoidance, it appears this oregon law resolves th wle issue so, you know, we're dismissing as improvidently granted or however the court wanted to resolve the case. e jason: thank you. justice sotomayor: so the plaintiff -- i'm sorry. the plaintiff wh here had used up her provisional stay credithe time of class certification, so she no longer had a shelter that was willing to take her. i thk e hard hypothetical that justice alito was positing and inarjustice gorsuch is the person who owns a dog. ms. corkran: yeah. stice sotomayor: or let's say a mentally ill person. do you have the same response as the government? ms. corkran: so i would like to live in a world where separating

someone from their pet is cruel. t 's outside the scope of our claim because we are jt talking about physicalndegal access to shelter. so if someone turns down a shelter offer that's physically and lellavailable because of eidog, they would not be thin the scope of our claim. to get to the mental health hypothetical, if a -ifhe person's mental health issues made the shelteritr physically unavailable to them because if they went there, they would be at bsntial risk of bodily harm or death, then i would say the shelr n't physicallyvaable. you could also have a shelter that won't take people with mealealth problems, in which case it wouldn't be legally aible to them. i would say that if the shelter is physically and legally available, then they' oside the scope of their -- our claim but they might have adclms or some other law that applies that would restricthcity's ability to punish them for not going to that place but that'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? ms. corkran: yes. chief justice roberts: can you go from not having one to having one? ms. corkran: yes. people -- chief juroberts: thank you. justice thomas? justice thomas: in robinson, a narcotics officer testified that based on his experience, the marks on the defe's arm suggested that he was an addict. ms. corkran: yes. justice thomas: do we have anything like that where an expert testifi tt these people -- that the individuals here are homes ms. corkran: so here the legal burdenasn 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 thetas. you say that this is the equivalent of robinson. and i'trying to determine where the status of homelessness was determined and how it plays a role in this case. ms. corkran: so it was determined based on th declarations and depositions of

the punitive class members and named plaintiffs. it also, youno we talked a little about the ratio between beds to population. the ninth circuit ended up jeing 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'unrstand the city to have ever contested that the named plaintiffs are homeless. what they contested is whether they had acces-- justice thomas: i think what's confusing me is that when i read the ordinc the ordinance is an anti-camping ordinance. would a backpacker who happens to be in the area for a few days be allowed to camp on -- on bl property? ms. corkran: 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 -- justice thomas: i understand that. it would apply to a backpacker? ms. corkran: so it would depend on the circumsnc. the line that the police officers drew in their positions was that if they saw a non-homeless person lying a blanket, they wouldn't enforce the ordinance. justice thomas: no, i'm saying some -- he's back -- ms. corkran: y. justice thomas: -- someone with a backpack who's been wandering around for aoue of years, in the continental divide or somethg. ms. corkran: so i can imagine -- i'm tting myself in the place of the officers who were deposed. if you gave them that hypothetical -- they might say no, that person isn't setting up a temporary place to live; they're just traveling through town. that particular hypothetical didn't come up, b wdo -- justice thomas: so that would not violate the anti-camping ordinance? ms. corkran: i do't know. i mean, maybe this gets to the vagueness of the -- of the provisis,ut -- chief justice roberts: justice alito? justice sotomayor? justice kagan? justice kavanaugh? justice kah: ihink one of theses of your argument is that this is not good policy for the homeless, and good policy would help homeless dividuals transition, get

mental health treatment, get bstance abuse treatment, job assistance, and that this doesn't fulfill those objectiv. and maybe you're not saying that, but i'm curious whhe you think this is good policy in terms of incentivizingorad? you must think it'bad, and i'm curious why. ms. corkran: yeah, i don't think we've made that argument. it certainly came across the amici briefs. just on the incentivizing, i think, is a non sequitur because the only question here is whher 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 mayb-- think what your honor's question gets at is our discussion of no penologal purpose.

this court has recogzethat when a punisenscheme has no penolocapurpose, it inflict gratuitous suffering, and that is cruel and unusual punishmt. and i will say, at ts int, the city has not ever identified any penological purpose for punishing homesseople who do not have access to shelter. if you ask that question, every time thepit to encampments and fires and sanitation problems, which are all non-quurs. 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 significant. justice kavanaugh: well, 've heard about how it's more difficult to havanffective homeless policy, given the rule that's been in effect in the ninth circuit over the last several years. ms. corkran: i think that's -- justice kavanaugh: how are we supposedo ms. corkran: -- that's flatly wrong. i'llo back to my opening. i gave the whole list of the things that the city is allowed too under the ordinance and under our claim. the only thing that theyant do is impose a 24/slping ban that makes it impossible for homeless peopltotay in the jurisdiction. i'd soote, you know, they have a lot of amicus briefs on their side from local

govemes. almost the entirety of what those amicus briefs are colaing about isn't at issue in this case. so when you have injunctns against encampments, that's under the fourth amendment. we don't have frth amendment claim. a lot of the injunctions are under the fouren amendment, including the san rafael one that the city identifies in its reply brf. i think it's remarkable that wh t city was trying to identify the best example it cod come up with for its reply brief, it chose one involvina fferent constitutional claim. justice kavanaugh: thank you. iejustice 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 ad to drugs? ms. 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 o addiction. justice jacko your view of robinson is that it doesn't really matter, the permanency of the condition; it's still a status? ms. corkran: right. the robinson court did nothi

that the permanency mattered, because it thought that addiction was a status that coange justice jackson: thank you. chstice roberts: thank you, counsel. rebuttal? ms. evangelis: thank you. this case is worlds away from on. 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 e united states' position. that wldlso 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-enforcent or post-enforcement. all the same questions ce about whether the 's conduct is involuntary, what their choicear how they are there, whether the shelter that'avlable is adequate, where it is, what rules it has, all of that. d'd like to clarify how all of this works in practice

because it would be impossible for people on the ground to understand and predit a court would say about the shelters that are ble and the alternatives that are available anthchoices that were made, and the difficulty of all that. so herhoit works is, under the grants pass' policy -- i' direct the court to page 155 of the joint appendix. there it says, officers are required to give a 24-hour notice beforising a citation. so i want to just focus on that for a mo how will the officer know, when -- when she or he comes back, whetheindividual has another place to go? there's no way to know the answer to that. so they would have tta their word for it, perhaps. so it would lead to all of those same proble and it is hyperbole -- the other side talks about banishment and all of that. the respdes have remained in grants pass for years. there's nothing like that going on here.

they talk about an isolated statement from a com meeting that was a three-hour meeting. there are pages ofines. it's one sentence. what that fullonxt shows is a wide-ranging discussion about all of the dficult policy problems and how the city was trying tinntivize people to accept shelter and dealing with a small group that was causing serious problems and crime in the city. and they're try balance those who wouldn't take the help with the city's needs to keep their public spaceop. when the ninth circuit constitutionaledhis area, it left cits th really no choice, either keep building enou slter that may or may not be adequate or suitable to s's preferences, or be forced to give up all of your blic spaces. that is what's happened. we've seen a suspension of enforcement of theseas laws that are so important. the line-drawing problems are never-ending. that is exactly why powell, jugorsuch, to your point

about powell and the plurali there said that if we embark on this journey and we start constitutionalizing laws that address conduct, the line-drawing problems will be endls. and so that is a reason not to exndobinson here. so i just want to make, again, r sic eighth amendment point re, which is that these are low-level fines and veryho jail terms for repeat offenders that are in effect in many other jurisdictions. this is not unusual in any way. it is cey not cruel. and we can just point to our appendix in our reply that goes roh jurisdictions from west hollywood, california to watertown, massachusetts, that have the same type of policies.

so the policy questions in this caseery difficult. and i think that's what has come acss today. the eighth amendment question, though, is not. here the punishments are the sorts of punishments that have been held to be permisfor -- since the founding and really are in use today. they're not in any way unua so we heard a lot of thing about guessing how this would work in practice, but it sounds to me like courts would need to have se rt of rules so that they could tell a jurisdiction hico that the place it set aside for camping was adequa, when the federal court said no, it wasn't, because it's outdoors, or a san clemente that was threatened with lawsuits

because i't provide cell phone chargers in the area that it desnated for camping, or san rafael, where the court said that 200 feet between encampments -- betenents was too much and that 100 feet was the maximum under the eighth amendment. so for all of those reasons, the court should reverse