announcer: c-span is your unfiltered view of government. we are funded by these television companies and more, including buckeye broadband. ♪ buckeye broadband supports c-span as a public service, along with these other television providers, giving you a front roseat to democracy. announcer:he u.s. supreme court aroral arguments in a case concerning whether a oregon city's enforcementf organs -- restricting the homeless from sleeping outdoors violates the eighth amendment's ban on cruel and unusu punishment. at issue are three ordinances restrictndeople from camping or sleeping in publ pces. in 2018, or johnson and

almost individua fed a suit where a district court ruled they were cruel and unusual punishment because theha no access to shelter. on appeal, the u.s. urof appeals for the ninth circuit also ruled in favor of the homeless people. the u.s. supreme court now has through june of 2024 to issue a ruling.

first, the cruel andal punishment claverns which punishments are permitted. t what conduct can be ibited. second, no precedent supports the ninth circuit rule. instead they misobinson to bar any punishment for involuntary conduct linked to a . states cnot outlaw the status of drug addiction. it made clear they can prohibit uct like drug use could this court should not rewrite robinson six decades later third, the ninth circuit's approach has proven unworkable the eighth andnt does not tell courts who is involuntarily homeless, what shelter is equate, or what time, place and manner relations are allowed.

but in 35 suits and counting federal courts are now deciding everything from the exact se of campsites to the adeac of empty beds at specificlters like the gospel rescue mission in grants pass. and cities are strugglin apply arbitrary shifting standards in the fie. this court should reved and the failed experiment which has fueled the spread encampments while harming those it purportso otect. i welcome the court's questions. >> do you consider these civil or criminal penalties? >> they are both. there is criminal trespass &. >> is atnvolved in this case? >> yes. >> have any of the parties hereby subject to criminal trespass? they are and yes, they do

y here. they are for recidivist offenses. >> which party has been held accountable for criminal espass? >> none of the individuo are currently in the case. >>'s of is involved in this case? >> for logan and johnson, it is a civil penalty. >> ihe anti-camping or what is it? >>, 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 are not talking repeat offenders right now? >>orct. >> have we ever applied the eighth amendment to civil penalties --

it will be forced to surrender its public spaces as it has been. unfortunately beds are going . people areetting the help they need. e city is under an injunction and it is unable to allow -- n these basic ordinances. and they give no guidance on how they can navigate this very challenging area. the ninth circuit has effectively imsea municipal code under the ninth circuit martin rule to regulate what the city can do in its public spaces. >> cannot just stop you a moment? the gospel unuds are listed at 100 and are thousands of homeless. >> tre are as many as 600 and

grants pass. >>ut there are still less than 100 beds >> that is right. >> you are not asking us to overturn robinson, c? >> we think robinson was wrongly extended but we don't neeth court to hear. >> it prohibits you crinalizing homelessness. so what you do is say only homeless people who sleep outdoors will be arres that is the testimony of ur chief of police. two or teefficers. which is, if you read the crime, it is only stopping you from sleeping inublic for the purpose of maintaining a temporary place to live. and the police officers testified that that means that if a stargazer wants to

blanket or a sleeping bagutt night to watch theta and falls asleep, you don't arre them. u don't arrest babies who have blankets over them. you don't arrest people who are sleeping on th beach, as i tend to do if i have been there a while. have a second home.ple who don't is that correct? who don't have a home. >> announcer: -- >> give me one example. because yo pice officers could not. they explicitly said if someone has anotherom-- has a home and is out tre and happens to fall asleep, they won't be arrested. fall asleep with something on them. ms. evges: well, joint appendix page 98 is one example of a citation su to a person importantly, i think what we're

getting at here isthese laws regulate conduct of everyone. there's nothing in the law that criminalizes homelessness. i really want to -- justice sotomar:hat's what -- that's what you say, but if i lo at the record and see differently, it's a different argume, isn't it? ms. evangelis: grants pass licy actually very clearly says that being homelesss t a crime. and that's in -- justice sotomayor: well, i kw that's what you say, but if you're enforcingt ly against the homeless, i will suggest that you look -- the's one brief -- let me see if i can find it -- thatas about this. at any rate, i'll find it later and just mti it. the sendhing i want to ask you is you seemed to start by

saying that e ghth amendment is limited to forms of pushnt and not to the nature of punishment, the optionality issue. there also is a number of amicus iethat lays out for us that from the magna carta through founding, through state laws, through weems, which was in 1910thugh trop later in the century, that throughout all of that, both the english, american colonies, this court has h some form of proportionality in their eighth amendment jurisprudence. you're asking us to ignore all of that history. ms. evangelis: no,e're not, justice sotoyo what we are saying is that this case doesn't

implicate proportionality. we're not asking the court to take a position on whether it's a proper inquiry under the eighth amendment. for example -- justice sotomayor: oh, yes, yes, you are, because you're saying that the only thing that' prohibited by the eighth amendment is the form of punishment, but, in those cases said that certain punishments, trop, for example, can't be done. ms. evangelis: that's right. and urt has always looked at if a particular punishment is considered too extreme or categorically so as in the death peltin some cases, the court punishment would be acceptable. again, it's looking at nishment. 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 sotomayo dyou have hotels that are valued at 200, $250 in yourit ms. evangelis: i -- i justice sotomayor: just answer yes or no. ms. evangelis: i don't -- i don't know. justice sotoyo well, let's assume because, even in new york city, which may be the most expensive city in the nation or close to it, there are hotels th a less than that or at that price. if a homeless person had that f money, don't you think they'd stay in a hotel?

ms. evangelis: so,ce sotomayor, the -- the difficulty here is that this rule that the respondents are proposing rests on wheomeone's conduct is involuntary. most importantly here,'re talking about conduct, is completely distinguishablehis from robinson. the point -- justice kagan: so can i talk about that, ms. ? so taking robinson as a given, could you criminalize atus of homelessness? ms. evangelis: well, i h couple points to that. justice kagan: it'st a simple question. ms. evangeo ronson doesn't address that and i think it's completely distinguishable. so robinson was a -- justice kagan: could you criminalize the status of homelessness? ms. evangelis: well, i don't think that homelessness is a status like driction, and robinson only stands for that. justice kagan: well, homelessnea status. it's the status of not having a home. ms. evanli i actually -- i disagree with that, justice kagan,se it is so fluid, experiencing homelessness might be one day without shelter, the next day with. the federal definition contemplates various forms.

justice kagan: at the period with whiin the period where -- where you don't have a home and you are homeless, is that a status? . evangelis: no. criminalize that?uld you ms. evangelis: no, it's not. so robinson talked about -- justice kagan: so you couldn't just -- ms. evangelis: -- addiction like ase. justice kagan: -- you -- you -- you could criminalize just melessness? ms. evangelis: so i want to say, think that for the -- the --o i justice kagan: i mean, that's ite striking -- ms. evangelis: no, i don't. justice kagan: -- that you think homelessness.criminalize just ms. evangelis: no, we're not saying that homelessness is a status, but, most importantl think the eighth amendment -- justice kagan: well, you're saying -- ms. evangelis: -- is the wrong waocus on this question. justice kagan: it's really a simple question. can you criminalize homelessness and you're suggesting, yes, you ms. evangelis: no, we do not criminalize homelessness. i'm t saying -- justice kagan: could you criminalize homelessness? not don't do. could you?do, what you ms. evangelis: so i think there would be due process problems

and vagueness problems. i don't think there's an eighth amendment problem in the sense of robincause that was a limited decision where the holding was solely about a disease of addiction. the court was very clear about distinguishing between addiction and possession or use. jujackn: but, counsel -- ms. evangelis: and so -- justice kagan: you're right that it'different status that was involved in robinson. but robinson made clear that there was a category of cases which were status offenses, which were different from conduct offenses. and when you started off here today, you said we're just crinizing conduct. so, to tell you the truth, i thought th this was going to be a question where you would s n of course, we can't criminalize a status, but there's conduct here. and then i was going to say: what is the conduct here? but you didn't say that. you said you could criminalizeve the status of homelessness, and that suggests to me that -- that you're off on the wrong track in thinking about this issue. ms. evangelis: s justice kagan, i think the -- the point

where we are disagrengere is really about whether the eighth amendment t right framework for this discussion. juste gan: well, the eighth amendment was the framework in bion. and taking robinson as a given, where robinson said the eighth amendment protects you against status-based crimes -- ms. evangelis: i don't -- justice kagan: -- that'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 mahall's plurality in powell goes into a discussion about this and how that was the right line. justice kagan: okay. what is the conduct here? ms. evangelis: the conduct is camping, establiina campsite. and it's the same as inhe federal regulations that the national park service relies . justice kagan: so i didn't think that that was the -- the conduct.ught that the only conduct here was sleeping outse th a blanket. ms. evangelis: no, it is the conduct of establiina campsite, which includes making a be bedding or other materials -- justice kagan: well -- ms. evangelis: -- and the federal law is - justice kagan: -- a campsite suggests something difre to people. it suggests a tent. it suggests a conglomeration of

people. you know, tent camps, if you will. but your ordinance does not just prohibit tt.our ordinance prohibits a single person who is homele, does not have another place to sleep, that'a stus, i don't have another place to sleep, a single person sleeping insadn public with a blanket. that's what i understanyo statute to do. that not what your statute does? ms. evan the statute does not say anything about homelessness. it'a nerally applicable law. one more -- it -- it's very important that it applies to everyone ste kagan: yeah, i -- i got that. ms. evangelis: -- even peopl who are camping. justice kagan: but it's a single person with a blanket. ms. evangeli and -- justice kagan: you don't have to have a tou don't have to have a camp. it's a single person wblanket. ms. anlis: and sleeping in conduct is considered excuse sleeping in public is considered conduct. and this court -- turt in clark discussed that, that that is conduct. also, the federal regulations -- justice kagan: well, sg is -- ms. evangelis: -- are very -- justice kagan: -- a biological necessity. it'so of like

breathing. i mean, you could say breathing is cdu 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 up. justice kagan: and for homeless person who has no place to go, sleeping in public is kind of like breathing in public. ms. evangelis: well, two points. so, first, even the federal regulations prohven sleeping. they don't even require any materials, including but -- but not necessary und the federal regulation. so this is conduct that is understood by jurisdicnationwide and even the federal government to be conduct that is prohibited, and so i want to make that point. justice kagan: see, i'll -- ms. evangeli t second point -- justice kagan: -- i' tl you the truth, ms. capoor. i think that this is -- this is super-hard policy problem for all municipalities. and if you wereo me in here and you reo say, you know, we need certain protections to keep our streets safe and we can't have, you know, people sleeping anyplace that th wt and we can't have, you know, tent cities cropping up, i anthat would create one set of issues.

but your ordinance goes way beyond that. your ordinance says as to a person -- and i unrstand that you think it's generally applicable, but only come up with this problem for a person who is homeless, who has the status of holeness, who has no other place to sleep, and your statute says that person cannot take himself and himself only and, yokn, can't take a blanket and sleep someplace without it being a crime. and -- an--nd that's, you know -- well, it just seems like robinson. it seems like you're criminalizing a status. ms. evangelis: well, it is not. and we agree with you that this is a very diict policy question, and that's exactly -- justice kagan: but that -- it isn't. ms. evangelis: -- why the eighth amendment -- e jason: can you answer why? why is it not? st -- i mean, justice kagan essential problems here, which is that you'reg 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 element, 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 justice jackson: so it seems to you and not helps you in therts following sense. you know, it seems both cruel and unusual to punish people for acts that constu basic human needs. sohere, unlike in robinson, where, you know, you had at least the sort of diasstate, drugs and -- and -- and the like, and potentially culpable acts that relate to that disease state, here, we're talbout sleeping that is universal, that is a basic function. and so i guess what i don't understand is in this circumstance why tha particular state is being considered conduct for the purpose of -- of -- of punishment. ms. evangelis: well, i think that just illustrates the line-drawingems because, if you look at biological necessities and what a person

needs to do, you know, the ninth t's decisions in this area would allow -- justice jackson: can i give you a hypothetical? ms. evangelis: -- all sorts behavior. justice jackson: can i give a hypothetical? ms. evangelis: yes. thank you. juste ckson: okay. so suppose the relevant ordinance prohibited eating on public property rather anleeping or camping. we're talking aboutg. and the cityfovery, you know, rational reasons, has determined that when people eat outdoors, it c problems with trash rodents and the like, and so and it punishes violators.laces now, just as here, tems generally fine because most people have restras that they can go to, most people have houses thath can eat in. but some people don't have that option. they have to eat in puicecause they're unhoused and they can't afford to ta restaurant. so is -- is your argumenth same result, no eighth amendment problem, no problem with the city banning eating in public, hough that's a public function -- i mean,

excuse me, even though that's a human necessity that everyone engages in, and, really, what's happening is you're only punishing certain people can't afford to do it privately? ms. evangelis: well, it so like -- i -- i take for a moment that you're notg the law -- that the law draws lines on any sort of irrational basis or any equal protection issue -- justice jackson: no. the cit has a rational basis. ms. evangelis: -- and -- justice jackson: when people eat in public -- ms. evanges:es. justice jackson: -- there is trash, tre rodents, there are problems. so the city says what we're going to do is we're going to say neang in public. what i'm concerned about from your argument is the suggestion y know, you call it conduct, i appreciate that, at we have happening in operation is that peoplehore that's a basic human need thing privately are okay. they're not punished for it. but people who don't have any other option or opportunity except for to do it in public are thon who are being targeted by this statute.

ms. evangelis: so two responses. first, i think the eig amendment is the wrong way to look at it. someone might have a due process challenge to a law like that if there is a deeply entrenched liberty interest. justice jackson: but punishment is happening. in my hyical, people are going to jail because they're eating in public. ms. evangelis: so, in that case -- justice jackson: why is the eighth amendment not implicated? ms. evs: -- in that case, you would have a defense under oregon law, for example, a ssity 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 interrupt. ms. evangelis: y. justice gorsuch: but, on that point, i thinke're having some debate about where to lodge the defense, wheert's under the eighth amendment or under the fourteenthmement. but do you concede that there are instances in which a necessity defense, long recognized at common law, would apply to eating in public, slpi in public, or other things like that? ms. evangelis: yes, i agree. and, actually, here, in the case of camping, law recognizes a necessity defense, so as a matter of ste w and policy -- and, again, that goes to thecult policy questions -- that's why states are able to address the needs of wt is issue raises.

and so, for something under oregon state law, a person cou raise that defense under t necessity defense, and then, if that's not enough, if they believe that that's not broad enough somehow -- justice gorsuch: an're saying -- ms. evangelis: -- eyan argue due process. justice gorsuch: -- oregon law has that defense -- ms. evangelis: yes. justice gorsuch: -- already built intot? ms. evangelis: that's correct. justice gorsuc rig. thank you. justice jackson: letk you about oregon law, because one sort of threconcern that i have about this case is i understand that oregon has enacted a statute, a new statute, that seems to address th very issue, so i'm trying to understand why this is -- still a live case. as i read the ne it essentially codifies martin's rule, that it says something about all gutions of this nature have to be objectively reasonable as to time, place, and manner with regard t-- with regards to people peencing homelessness.

so it seems like the state has already precluants pass from doing the sort of thing its doing here, so why do we need to weigh in on that? ms. evanli well, no, it hasn't. so, first, bh des agree that this case is not moot. there is no state law challenge in this case. but, more importantly, that standard is very different martin, and there's never been a challenge to our laws. juice jackson: what about constitutional avoidance? so, fine, it's not moot, but wouldn't our prinbe that we don't need to reach the constitutionality ofhiissue if there's another possible way of resolving it because the state has addressed it? ms. evangelis: well, not at all. so the 's law is very different. and we believe our law is satisfied. but, me portantly, the fact that the state is acting here is a good thing. we agree that states should be able to make policy and to weigh alofhe competing concerns. and, here, the need to reverse laws like ours, they really do serve an essential purpose. they prthe health and safety of everyone. it is not safe to live in encampments. it'sanitary. we see what's happening. and there are the -- the harms at the encampments themlv on

those in them and outside. we know this. the federal rnment has cleared encampments here in the ca in mcpherson square. so this is an urgent problem. and also, there are downstream effects of all the other things that flow from it, but it is very important he understand that the state laws and the -- justice jacksois it your argument that the eighth amendment has nothing to say about w e city responds to such problems? i mean, suppose the city decided that it was going to execute homeless pele. i mean, very extreme, i know, but it would solve the problems that you're talking about. ms. evangelis: well, that -- justice jackson: do we have an eighth amendment iss ithat circumstance? ms. evangelis: yes. i -- i think -- justice jackson: ms. evangelis: -- there, you look at the punishment. that -- again, here, we're looking at the punishment, which is low-levefine -- 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 it absolutely would. 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 ydinance? so, as

justice kagan wating31 out, this -- this criminalizes sleeping with a blanket at a minimum, right? ms. evangelis: yeah. justice barrett: correct? but, as i uerand it, after this decind -- and maybe after martin before that, there was some question about whether it also criminalized fires, campfires, tents. can you talk a little bit about that and what the scope of it is? does the constitution then make it impossible for a city to limiuse of fires and encampments, tents, those kinds of temporary ters? ms. evangelis: it really does because the rationale tin, the -- the argument that it's a biological necessity to sleep outside, the respondents argue a blanket is necessary in oregon; soht argue a tent and a fire is necessary in north dakota. the gh amendment really doesn't give us any answers to what cities can and can't ohibit. it's really administratively impossible for citithe ground, as well as for courts, to administer. so we're seeing -- justice sotomayor: i'm sorry. is -- we have nothing to do with fires or tents.

that was exempted under the district court's injunction, and e circuit court didn't require that. we'realking only about sleeping with a blanket. ms. evangelis: well, i think -- justice sotomayor: well, so t's narrow it to what it is. i agree there might be other cases in the ninth circuit that are not rational, and i don't mean to throw aspersions at -- at those holdings, but some of them are not permitting time/place restrictions. l's go beyond that. let's go here. reyou're not precluded from prohibiting fires. you're not precluded from prohibiting tents. what's at issue is are you prohibited fm eping -- having someone wear a blanket anywhe ithe city. your intent was to remove stated by your mayor, intent is to remove every homelessern

and give them noubc space to sit down with a blanket or lay down with a blanket and fall asleep. angelis: that's not the intent of the law. and i would li--- justice sotomayor: well -- ms. evangelis: -- address that point because the other side has justice sotomayor: -- why don't yoaner the basic question. ms. evangelis: yes. so -- justice sotomayor: it's not about fires. it's out tents. it's about not being -- a time and place restn about eliminating all choices. msgelis: so we think that s harmful for people to be living in public spaces on streets and in parks, whatever bedding materials. when humans are living in those conditions, we think that t's not compassionate and that there's no dignity in that justice sotomayor: oh, it's not, ms. evangelis: no. justice sotomayor: -- neis -- neither is providing them ms. evangelis: well, we -- justice sotomayor: -to alleviate that situation. ms. evangelis: this is a difficult policy question, jusotomayor. it is. justice sotomayor: where do we

put them if every city, every villagry town lacks compassion -- ms. evangelis: we -- justice sotomayor: -- and passes a law identical to this? where are they supposed to sleep? are they supposed to kill ms. evangelis: so this is -- a necessity defense, a mentioned, under oregon law is available. states are able to address these concerns. this is a complicated policy question. we believe that the eighth amenanalysis, to go back to it, focuses on the low-leve fines. e sotomayor: what's so complicated about lettg someone somewhere sleep with a blanket in the outside if they have nowhere to sleep? the laws against defecation, the laws against keeping things unsanitary around yourself, have all been upheld. the only thing this injunction does is say you cat stop someone from sleeping in a pulace without a blanket.

chief e rorts: why don't you answer and then we'll mov on to the next round, and you can be thinking abounswe --e move into a different -- ms. evangelink you. of the argument.berts: -- stage is being a bank robber a status? ms. evangelis: no. i would say that -- well - well, if -- if your question is asking would it be permissible to punish being a bank robber, i think that would have vagueness problemsbly. chief justice roberts: well, it would be someone who robbed a bank. that doesn't sound vagu ms. evangelis: well, i don't -- -- i don't think that it is a status in the sense of robinson, which, again, i -- i want to just focus on what we think robinson stands for, and it's addiction.arrow holding about and the -- there, it washe status of being an addict without any me. so a law like that -- excuse me -- without any actus

a law like that is problematic without aus reus. i think it would probably have vagueness problee process proble however, the eighth amendmen ts entire exercise under robinsthe only time this court has ever evaluated the substantive criminal law, and itais all of these line-drawing proble and the fact that -- i'm re to defend robinson as a matter of first principles. we don't agree with it. we think iwawrongly decided. we're just saying that it is so far removed -- that our laws are so far removed from what was at issue in robinson that it just isn't implicated here. chief justice roberts: s i someone is homeless for a week and then finilable shelter, is that person homeless when he's in the shelter? ms. evangelis: under federal law, the hud regulations, he is actually considered homeless. that shows the fluidity and the different ways of -- chief justice roberts: putting the hud regulationne side, can someone who is sleeping in a shelter be considereless? ms. evangelis: some woul yes, that someone who -- chief

justice roberts: what would you say? ms. evangelis: i -- i would say that at that point he is sheltered and homeless. i think he -- he -- that -- that is also -- chief justice roberts: all ri let me make it easier. at if he buys a home or finds a home or is given a hom is he homeless -- ms. evangelis: no, he is -- chief justice roberts: -- at that point? ms. evangelis: -- he is not. so for -- - what's at issue in this case is -- chief justice roberts: so you think the status of homelessness ange from one time to another? ms. evangelis: yes, i do. i think it's very fluid. ief justice roberts: is that consistent with the deon of "status" in robinson? ms. evangelis: n so robinson treated addiction as a disease and as som that -- and -- and many believe that addiction is something that someone has with them forever and -- and it's a struggle. so that is a very different situation. and, here, if someone has shelter 's say they were 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 inluntarily there if they refused shelter yesterday? that's the questi t eighth amendment does not answer. this is very complex. what if there is a bed available in the gospel rescue mission,

but like ms.ohon, a person doesn't wish to leave their pet? her rottweiler's not permitted there. so that is a difficult question forson and a difficult policy question, but -- chief justice roberts: thank you. ms. evangelis: -- a person's status -- yes. chief justice s: tnk you, counsel. justice thomas? justice thomas: robinson actually included a crime of, as i read i eher to use narcotics or to be addicted to the use of narcotics, and th court was concerned aboubeg -- the status of being addicted to the use. is there a crime here for being homeless? ms. evangelis: no, there is not. chief justice roberts: justice alo? justice alito: robinson presents a very difficult conceptual question. do you think that someone who is a drug addt absolutely incapae -- that all people

who are drug addicts are absolutely incapable of refraining from using drugs? ms. evangelis: well, i think that for some, that marue, and for some, perhaps they can abstain. but that's a question of free will and ancthat's true of 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 particula jurisdiction. does that person have any alternative hethan sleeping outside? ms. evangelis: so i think we'd have tall the questions i mentioned earlier about what alternatives they might have had yesterday -- justice alito: they have -- ms. evangelis: -- and how ey 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's true, then that may be the case. and in that case, at least in oregon, they would have a defense of necessity.

justicalo: so the point is that the connection between drug addiction and drug usage is more tenuous than the connectn between absolute homelessness and sleeping outside. ms. evangelis: well, i -- i think, in -- in robinson, again, the court did draw that line, but, here, the respondents are saying that the two are really the same, that camping outsi sleeping outside, and being homeless are two sidthe same coin. we think that th's wrong. it's collapsing the status that they claim into the conduct. so wk the conduct here is very clear because it applies generally to everyone. thlaw does not say on its face i just want to -- e homele justice alito: all rht ms. evangelis: -- make that -- justicalo: thank you. ms. evangelis: -- very clear. thank you. chief justice roberts: justice sotomayor? justice sotomayor: it was the brief of criminal law and punishment scholars that i was referencing earlier. i want to go back to justice thomas's beginning question.

as i understood it, the nint circuit never reached the excessive fines question presentebyhis case, correct? ms. evangelis: that's correct. justice sotomayor: so that's still open. and you didn't seek cert on that issue? ms. evangelis: that's correct. justice toyor: all right. assuming that there is no standing, i understand one of thappellees died, the one who was camping outside died din the pendency of this appeal. and there are two henamed plaintiffs. i know tve fines on them. i'm not sure that either of them has any criminal -- crimes charged against them. where does that put this appeal? where does that put this case? ms. evangelis: sure. well, the case -- justice sotomayor: should we be vacating and remanngo see if there is -- ms. evanges:o. justice sotomayor: -- a live plaintiff -- a plaintiff, a named plaintiff who is still suffering injury? ms. evangelis: no. ordinance, which is the one that

ms. blake challenged, that is no longer in the case. ordinance limited only sleeping in certain rights-of-way and sidewalks in the city, and it was a different law,hat's not at issue here. leeping is not at issue. it's about the camping ordinance. and we very much have a live case because we are under the ninth circuit's inon, and the named plaintiffs have -- justice sotomayor: no, the question is, could it give an injunction? do -- are these people -- well, i gues ithey are not permitted to park -- ms. evangelis: that's correct. justice sotomayor: so it's not e camping, it's the parking, isn't it? ms. evangelis:el and the camping. so we -- we intend tnd -- to rely on these laws. we want to be able to rely on these laws. they are verimrtant and -- justice sotomayor: you're not answering --usfocus on my question. ms. evangelis: yes. justicsomayor: both these people sleep in cars. thf them sleep in cars outside of the town. so they're not seeking camping peission. is your city not p for overnight parking in any location at night except in

private homes? ms. evangelis: camping in a vehicle is included in the camping ordinance. justice sotomayor: well, that's going to camp. how do you define "camp"? ms. evangelis: again, it ia place where someone has laid down without any me,as -- justice sotomayor: so, if they go into -- if there'a ne of cars and they want to -- and the cars can stay overnight -- ms. evangelis: so -- justice toyor: -- and they want to park in one of those spac, they fall asleep in the car, they're guilty of violating the camping law? ms. evangelis: no. justice sotomayor, m jnson parks her car oftentimes at a friend's, so she is not violating the w 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 your car prohibited? ms. evangelis: if you ar 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 justice sotomayor: -- indicated intent to eein a park, or have they just said they want to park somewhere in the city? and can they park somewhere in the city and sleep? ms. evangelis: yes, they have said that they have the intent

to continue their conduct that they will be, therefore, subject to the city's ws and subject to -- justice sotoyo i don't understand that answer. okay chief justice roberts: justice kagan? justgan: you've referred a couple of times to the necessity defense, so could you tell me how that would work? ms. evangelis: yes. a person says that -- it'saw, if effectively the lesstwo evils. if they say, i hado alternativ- no legal alternivother than what i did here that broke the law, then i had no choice and i therefore had to break the law and it was in some sense involuntary, to use a term that -- that many have be discussing. so, there, you -- wld be very narrow. it is a very narrow defense. so it would be in that moment of -- justice kagan: so -- so suppose that there is a person who is homeless and there are no elr beds available and the person has no place to go, and

the person, of course, has to sleep. and the person -i's cold outside. the person has a blanket. so that'thminimum conduct that the law prohibits. so the psosleeps outside with a blanket, and a police officecos, and in the -- but the person says, well, i had no place else to go. uld the city continue to push for some kind of penalty ms. evangelis: well, there, if a person receivetation, so if they did, then they would have a defense of necessity. it's asserted as a defense. so what the other side is trying -- justice kagan: well, it's asserted as a defense. ms. evangelis: yes. justice kagan: i mean -- but- so you're not willing to say no, we'reoing to tell all our police officers that they shouldn't ve 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 y're going to tell me? ms. evangelis: well, officers ys have discretion, and we know that they exercise it. and -- and it's hard to know -- justice kagan: well, the quesons not an individual

officer's discretion. invial officers are in a tough situation here. ms. evanli they are. justice kagan: the question is, what is the city gngo tell individual officers? so what is the city going to tell individual ofce about a case of the kind that i said? are you going to tell individual office iue the citation and we'll see if the person knows enough to make a necessity defense and we'll see what the court does about that? a you going to say, you know, there are some thingth just ought not to be the subject of civil or criminal infractions? ms. evges: so the city, in its policy, at joint appendix, page 158, fople, talks about what officers are supposed they're supposed to puteoe in touch with services first to contact if there is available help for them. these laws are absolutely a tool for getting people the services that they ne many people need that intervention. juice kagan: well, you're not

giving me a real answer -- ms. evangelis: yes. justice kagan: -- to the question of is the city tellin officers that they should give citations -- ms. evangelis: no. justice kagan: -- in that circumstance. ms. evangelis: no. discretion. justice kagan: is there anything you can point -- it's a matter of discretion? ms. evangelis: yes. justice kagan: there's nothing you can point tt the city says we have a necessity defense, what we're tli officers to do is to, you know, act constely with that defense so that if it is truly a matterf ed that you are sleeping on the street alone with a blanket, no, the officer should not cite the person? ms. evangelis: there's nothing in the record here that shows officers were told about a necessity defense and that it -- att would or would not preclude. that would be an individualized question ahe fact if someone received a citation. anhey thought that that wasn't enough, the proper framework would be this court's framework ler, where we would look at the assert defense, there, insanity of some necessity, and we would aske whether it is so drooted in our history and -- and something that hbe imposed

in this way on the states. stice kagan: thank you. ms. evangelis: thank you justice roberts: justice gorsuch? justice gorsuch: i suppose someone could also iniata class action of the sort that happened here if -- if you were not allowing the necessity defense to operate and seek to have it enforced, couldn't they? ms. evan potentially. i -- justice gorsuch: yeah. thank you. chief justice roberts: justice kavanaugh? justice kavanaugh: you've said several times t's a difficult policy question, a complicated policy question. i think everyone would a with that. how does this law help deal with the complicated policy issues? ms. evangelis: one of the most

difficult challenges is getting people the help that they need. and laws like this allies to intervene, and they're an imt tool in helping incentivize people to accept shelter. so johnson, for example, had said in her tion -- it's in the joint appendix -- that she does not wish to stay at the gospele mission. one of the reasons is because of her dog. she 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 individual decisions -- justice kavanaugh: howoeit help if there are not -- how does it he -the rule here, the law here, how t help if there are not enough beds for the number oless people in the jurisdiction? ms. evangeo, for johnson, she sometimes stays with a friend. so there are other -- justice kavanaugh: how about more -- more generally, though? ms. evges: yes. justice kavanaugh: i guess, if there's a mismatch between the nuerf beds available in shelters, even including gosl

rescue, e number of homeless people, there are going to be a certain number of people who there's nowhe go? ms. evangelis: that -- that is a difficult policy question. -- justice kavanaugh: how does this law deal -- . angelis: yes. justice kavanaugh: -- help with policy question? ms. evangelis: so it encourages people to alternatives when they come up so that fewer people endmping. it also -- there is harm in simply camping. whatever materials people are public spaces without plumbing and infrastructurethe's harm to the whole citto the whole community, as well as to them. we know that -- that encampments and these conditions ao eed crime and very dangerous conditions. so the cy s an interest in protecting everyone, including justice kavanaugh: do you thin the constitutional rule should be different when the nuerf beds available in the jurisdiction exceeds the number of homeless people versus the number of homeless ppl exceeds the number of beds available in shelters? ms. evangelis: n that's what we've seen in the ninth circuit. 've seen that that is unworkable. there is no way to count w beds are available and who is perhaps willing to take one and who would consider it adequate. then the question becomes, are thos adequate? so, here, gospel rescue mission again -- justice kavanaugh: that's a

separate issue, i agree. ms. evangelis: it is. justice kavanah:nd it can be a challenging issue, i suppose, i know, as well. lemesk one last question, which is, how does the necesty defense differ from the constitutional rule? you touched on this, but i just want to get a succinct answer to that, the state law nece defense differ from the constitutionalulhere. ms. evangelis: you would weigh the harm from the indiv's conduct in violating the law. so, if someoe camping near a school or near -- or -- or doing some -- something or enga some behavior that was particularly harmful and theyadnother place where they could camp, that would be maybe a factor that you would in the necessity situation. it't's narrower. cases include people who areegon growing marijuana focal reasons but without a license, and so the necessity defense was not accepted in atase because they could have obtained a license. so, if a person had a friend to go to, had a bed available at the rescue mission, they would be expected to take it under the necessity defense. ink that's how it would play out. justice kavanaugh: i actually

have one last questi when you get out of jail if you end up -- what's going to happen then? -- you still don't have a bed available. so how does this help? ms. evangeli sthe -- and -- and i want -- i do want to make a point about that -- about the criminalspt. the trespass law here is only triggered after several justice kavanaugh: right. no. ms. evangelis: and at that point -- justice kavanaugh: if you run through that cycle -- ms. evangelis: yes. justice kavanaugh: -- and you end up in jail for days, then you geou i mean, you're not going to be any better off than you were before in finding a bed if tren't -- going to my earlier question, if there aren't beds available in the jusdtion, unless you're removed from the jurisdiction or you decide to -- to leave mehow. ms. evangelis: no. there are services available, and the jurisdiction can put you in touch with services and programs to help you in those circumstances.

and for many people, that is a where they're able to get into treatment. so that ention actually saves lives. justice kavaug okay. thank you. chstice roberts: justice barrett? justice t: so let me follow up on that. so you're saying there are services available, there's would ultimately move off thee street? is that -- is that what you're saying? because i think part of the premise of all of this, right, is that the not enough beds for homeless people to occupy, and so there will be a mismatchhere are going to be some people who can't be cared for. are you saying that if your law enforced, there is a way for everyone to be cared for? ms. evangelis: no. i'm saying that's a policy question that is quite diff but these laws are an important part of the puzzle. they'reot the only solution. and we don't -- we don't believe at they are, but we think they're an important tool. anout them, we've seen what's happened on our streets. w've seen that people are -- are dying in encampments. 've seen that cities are -- are being forced to cede all of public spaces. so that ultimate question is for the legislature and policymakers to figure out what the right lution, what the right mix of policies is.

but the wrong answer is to do what the ninth circuit did here and to constitutionalize -- justice barrett: okay. let me just interrupt you there. you're right, it's a very, very diffpolicy question. and i asked you before about whether this was just about blke or whether it went into having fires or urinating and defecating outdoors and that sort of thing, and jus particular injunction did carve out those things a just talking about sleep. but, you know, other cases have been litigated in the ninth circuit that have gone beyond that, and because the line is things that are involuntary, th are human needs, it can -- it can extend -- it's ult to draw the line, and whatever we decide here about this case is about the line. so can you describe for me some of the things atre difficult to figure out about the line? there's sleeping. the's sleeping with blankets. what else? angelis: public urination and defecation, that is a serious problem. those are parts of biological necessities of being human. a court in sacramentessed

that, and the ninth circuit's opinions debated whether its rule would ay reach those things. i think any rule that we are wondinabout and debating whether it would go that far, i think that is a sign that it is not able rule. the slippery slope here is very it's not just for campi nduct that might be a biological necessity, puin aside tents and fires and cold climates. what other things would be allowed? all of the things that a human needs to survive, for example, potentiall into focus under the ninth circuit's rule but also in otr eas. someone could say that my drug use or possession is the other def the coin because i'm an addict or because i -- a -- a could say that i had aher laws compulsion to do tho tngs that i couldn't control. and the plurality opinion in powell addss that very thing and why it's so important to draw the line there. and when conduct is involved and once the cou gs into deciding which conduct may be

excused under the ei amendment, it is so far afield of what the eighth amendment was ever understood to address. justice barrett: okay. spki of status and conduct, you've -- you've argued that robinson was wrong and we don't need to overrule it. i agree. i don't -- i don't we should overrule robinson. you've also been kin resisting the status -- you've been resisting charaing anything other than the drug addictio was at issue in robinson as status so what if the law said it is unlawful and punishable by days in prison to have the statusf homelessness? just go with me. juume that the law defines homelessness as a status and i is a status. would robinson say that that law isnconstitutional under the eighth amendment? wou concede that? ms. evangelis: and you're saying that that is a status? ms. evangelis: all of the -- justice barrett: the law defines it as a status, and it's a status. ms. evangelis: well, yes, and i think it lks lot like

robinson under that hypothetical, but, of course, we disagree that it is -- justice barrett: i understand you disagree -- . evangelis: -- a status in that way. e barrett: -- but you are accepting that robinson draws a distinction between status and conduct and you'reust fighting about the definition of a status? ms. evangelis: it draws the line where a law has no acture. so i think that's the easiest line. i -- i don't defend the line under the eighth amendment because i don't think acal that the court -- i know the court didn't rely on any gh amendment principles or history - justice barrett: but the hypothetical i just gave y h no actus reus either. the status of homelessness, i mean, it could be, you know, 4: ithe afternoon and the the bus stop.t standing outside do you agree that law prohibited that, made that a crime, that under robinson, whether robins right or wrong, that under robinson, that would be a violation of the eighth amendment? ms. evangelis: well, i -- i -- i the better framework is due process. justice barrett: i understand that. under robinson, do you agree that that would ng? ms. evangelis: yes. justice barrett: oka thank you. ms. evangelis: thank you. chief justice robes: justice jackson? justice jackson: so picking up where justice barrett left off, you y that the ordinance here pertains to conduct and not to

statd i'm just trying to figure that out. i'm not so sure is reason. it's because all humans engage in the act in question, sleeping. and yet the statute operates or the ordinancates to penalize only certain indidus, those who have no choice but to do that act in so it appears, i think, not to be the act that the state or the city in this case finds it's instead the act as engaged in by certain people, by people who cannot afford housing and have nowhere else to go. so why is that the wrong way to think about it? and if that is the right way to think about it, why isn't that a status crime in the way that robinson contemplates?

ms. evangelis: it's not because we can looathe law and it has a conduct element. the t is establishing a place -- a campsite. at is something that a person who has a home or a shelter could do as well. justice jackson: but you've just defined away the basic reus, right? the actus reus is sleeping out -- i guess outside tthextent you put outside inut that's the problem i'm talking about. the actus reus is the sleeping, right? everybody -- that's not a criminallyulble kind of activity. that's what i think might distinit from robinson and -- and make it worse for you in a y cause, in robinson at least, to the extent someone had a disease, and the question was, well, are they engaging in otherwise criminally culpable conduct, buying and selling drugs, taking drugs, you know, we -- we look at that kind of category of things. here, the actus reus is sleeping, human, universal. the -- the -- the city adds, but you can't sleep outside. and i guess what im trying to

understands,o the extent that that only happens with respect to a certain category of people who have no other place go, why isn't that really just punishing the status of being someone who doesn't have any place to go? ms. evangelis: it doesn't apply only to thosle. the respondents here are trying to exempt a whole category of people what -- so what you look at eris the -- the conduct of camping under federal law and this court's decision in clark, it was understood that that is it is just like trespass, where, if you are found in e, if you enter with permission, but then you remain there without permission under quarles -- justicson: but it's not just like trespass because, presumably, you have other pleso go. so let me just -- let me just asyou this other question. what -- what is your understanding of the martin rule? because i -- i thought it was premised on thciumstance in which someone had nowhere else to go d ey needed to sleep and they needed to be there.

but you seem to suggest that ney is not sort of baked into what martin was doing. ms. evangelis: martin speaks in terms of someone who is involuntarily homeless, d at 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 peon has nowhere else to sleep. ms. evan yes, that is -- available.ity defense is and what respondentsresking to do is to constitutionalize that very defense under the eighth amendme so, as i said earlier, it could be -- the argument could be made -- it woul very high bar under due process, but that is the so oargument that we would expect one to make under a due process framework -- justice jackson: thank you. ms. evangelis: -- under this court's kahler decision. ief justice roberts: thank you, counsel. mr. kneedler.

mr kneedler: justiceanmay it please the court: in robinson, this court held that the government cannot criminalize stus. and respde has conceded here today that the city cannot criminalize the at of being homeless. our narrow submission in this case is that government cannot circve the principle of robinson by making it unlawful for a person to reside in the jurisdiction if he has that at. that is what the ordinances here do as applied to someone who has nowhere else to sleep, which i an essential human function, the ornances are the equivalent of making it a crime to be homess while living in grants pass. although we think the ninth circuit was right to recognize that the core principle robinson is implicated in this case, the court was wrong to award broad injunctive relief in the circumans and manner in which it did. the robinson principle require

an individualized determination, and the ninth circuit's ilure to require such a determination and its issuance of mu bader injunctive relief has led to the problems at issuth the petitioner and its amici have raised, not the core princle of robinson. and, therefore, we urge the court to adhere t core principle of robinson but to emphasize that cities have exility to implement these and, in particular, time, place, and nn restrictions on where someone can sleep are entirely valid if they are reasonable, and, indeed, the state law that juice jackson referred to

establishes a state policy that ti, nner, and place restrictions are the way to go if they are reonle. i welcome the court's questions. justice thomas: mr. kneedler, wouldn't you have a bte argument if robinson involved someone being arrested for usi drugs, but then the court said that y we in effect arresting him for the status of a drug user because he was -- he had nohoe but to use drugs because he's an addict? mr kneedler: no. our -- our position is not tha the conduct as in robinson, the drug addict can't oprom using drugs. that is not our position. that's a question of personal culpability onheasis of what the substances make up -- justice thomas: so what's the difference between that d and -- and camping out? what you're saying here, it seems as though you're saying, well, they -- there's no other choice, so you have to camp out. therefore, you're really arresting this pern r the status of homelessness. mr kneedler: yes, but -- butot because of an -- of an involuntary compulsionen.

i think, as justice alito pointed he nexus here is actually closer than in the -- an in the addiction situation becausslping outside is essentially the mirror image or the other side of the coin or thniti -- justice gorsuch: well, -- mr kneedler: -- of thes of -- of homelessness. justice gorsuch: -- kneedler, i -- i agree that the distinction tween status and conduct is a slippery one and that they're often closely related. and in robinson, though, the court said you cannot make the status of being a drug addict a crime, but you can criminalize the conduct, even if it is involuntarancompulsive. and powell reaffirmed that line very strongly, at least the plurality opinion did, and said w're not going to go further. and i wonder whether the government is asking us to take th step that powell counseled against by saying that it - it is status -- effectively status, and this is throughout your brief. you use the word "effecte"r "essentially" or "tantamount to,” tho kds of words, and -- and so i just wanted to get your response tt -- 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 of issues that were involved -- justice gorsuch: okay. if you're -- not aski uto do that, then -- then -- then i guess i just want to circle back to what justicthas was getting at, which is, surely, the government wants to continue to enforce the drugawand all kinds of other laws that people could make an argument that i had involuntary needo , a necessity defense to. you don't want us to wipe out all those laws? . eedler: absolutely not, but what is different here is that the conduct that was suggested in powell would have been based on the person's own separate -- antisoalonduct. justice gorsuch: well, justice itmade clear that some

people are going to be forced to drink in public because they he made this very point. mr. kneedler: no, we don't -- but --- but -- but the point here, it is the vement that is prohibiting the alternative. it'nothe individual's inability to control his own couct. the gornnt, because the person -- because of other ciumances, the lack of money, the lack of a friend to stay with, the lack of slt space, there is no place -- we take as a given in our position that there is no oerlace for the person to sleep -- justice gorsh:nd i think, couldn't a drug addict, though, i had no other choice.gument? mr. kneedler: but that is -- e other choice would be a matter of -- of personal -- justice gorsuch: no. say the record says -- mr. kneedler: -- understanding, personal culpability. justice gorsuch:he record says that there is no other choi i had to do it. mr. kneedler: well, i do think that engin conduct that is unrelated to -- let me take that back. the sleeping outside when you o other place to go is the definition of homelessness. justice jackson: mr. kneedler,

isn't the spse -- justice barrett: but -- bu justice jackson: -- also that those two things are dnt? i mean, you're sort of saying it's about indivi culpability. but it's not as though everyone engages in drug use. mr. kneedler: right. justice ckn: right? certain people do, and maybe they he diction, and maybe you can't punish them because of the addiction, but you can still puni tm as criminally culpable for engaging in the act. seems to me we are in a totally different catego mr. kneedler: we are, yes. justice jackson: -- when you' talking about acts that everybody participesn, that no one thinks in and of themselvesriminally culpable. and yet somehow this statute is aching out to punish certain people who engage in that universal human basic need. that seems to me to be the distinction -- mr. kneedler: yes. justice jackson: -- in these situations. mr. kneedler: ats a critical distinction, and not only is it something that everybody engages in, but 's something that everybody has to engage in to be alive. so, if y c't sleep, you can't live, and, therefore, by prohibiting sleeping, the city is basicaying you cannot live in grants pass.

it's the equivalent of banishment, which -which is something that is unknown to the way -- justice sotomayor: mr. kneedler wasn't grant pass'first attempt, policy choice, to put people -- homeless peoplon buses so they would leave the city? i understood tt be the history of grant pass. they put -- police officers would put -- buy them a bus ticket, send them ouofhe city, but that didn't work because people came back because it had been thei, correct? mr. kneedler: they came back. justice sotomayor: tme back. mr. kneei think they might have been sent back by the -- stice sotomayor: so then they passed this law. and d't the city council make it so uncomfortable hereto

that they'll move down the road, meaning out of town, correct? mr. kneedler: that state -- that statement was made at a -- at a ic meeting of the city council. justice sor: all right. so let's assume what you're saying or accepting, that -- do hope one of you knows, how many beds there are in grant pass, shelter beds? mr. kneedler: i believe the only shelter beds, st at the -- at the time the record in this case was compiled,ast the gospel mission. there has been at times a detox e. there has been a warming c that has been maintained. but, in terms of -se me -- shelter beds -- justice sotomayor: well,e're talking about portionate -- mr. kneedler: -- i think it's apoxately a hundred. there -- there are men's, women' justice sotomayor: yeah. i thought it was much less than that. mr. kneedler: yes. justtomayor: all right. so we go back to you want the district court to make vidualized findings. you've asked us to vacate and remand understand it? to that so i i quite didn't understand it in your briause i thought individualized findings had to do with the class action, but that question hasn'been certified here. mr. kneedler: right, but -- but i think the -- i think the merits -- our basic point is -- a person does not have an eightdment defense or

an eighth amendment claim unless he truly does not have some otace to reside. and so, by speaking of dividualized, what we were -- justice sotomayor: so -- mr. kneedler: -- saying is that it depends on whether that person has some other place, has a relative. justice sotomayor: i accept all of that. this is what i didn't understand from your brief -- a y saying that there can't be a class certification of homeless peopleve mr. kneedler: no. justice sotomayor: that you have he individuals? or are you saying that the jution is too broad if it doesn't provide for redi that are -- somehow that the person has to prove a certain -- number of things before -- before they are entitled to t i wasn't sure. mr. kneedler: no, the -- the eith amendment claim is a personal one and, in this context, depends on whether the rson does have another place to sleep.

so the person cannot benefit from the eighth amendment claim without an individualized -- without that psoshowing, if it comes up in a -- in an affirmative injunctive action, without erson showing that he or she has no other place to stay. chief justice roberts: thank you, counsel. if there is a -- the town next to grants pass, minutes away, has just com building a homeless shelter that has many vacant beds, does that change the alis here? i mean, we talked about the town wanting to get -- ship people out of the town. would it be -- would -- would -- it -- would there still be a right to sleepcorary to the ordinances in grants pass, because you don't nto be

taken minutes away wrehere's a homeless slt? mr. kneedler: that goes to the question, i think, under the analysis of whether the beds are available. and i think, if they're right across the towli, it would be appropriate to take into account that there's a homeless shelter there, even though it' not one in the city of grants pass. but ofn,n a situation, the two towns might cooperate to have one homeless shelter. chief justice roberts: well, yeah, -- the nextos 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 e it just depends on all the circums -- so municipalities won't have that much guidance? on the accessibility. it depends i mean, one of the fundamental points here -- chief justice roberts: the cessibility is that when an officer comes up in grants p and finds a homeless person and but i will give you a ride down the road, miles, whatever it is, because there's a w homeless shelter there, and the person says, no, i don't want to do that, can that person be given a citation? mr. kneedler: i -- i think probablyotbut let me -- if i could explain why. but i inone of the principal

features here that shouldn't overok is the city is seeking to banish or expel its own residents, its own citizens, people whose children can go to hool in that location, who may pay taxes in that location. so, t 30-mile-away shelter requires the person to leave his community and to live in another place, that -- that implicates -- chief juste berts: what is the -- i mean, how far does that go? let's say there are five citie all around grants pass and they all have homeless elrs. and yet the person wants to stay. you know, i've been a grants pass resident fong time. i don't want to go to the one of those shelters. can that person be given a citation? mr. kneedler: i -- i think under -- because of the concern i've mentne i think that would be a serious problem because -- chief justice roberts: you would say it would be a problem give them a citation? mr. kneedler: yes, i tnko, because you would be requiring -- or the city's ordinae requires them to leave the city

of grants pass. if the homeless shelter is right over the line,hecan still be part of the community of grants pass but sleep in the -- chief justice roberts: no, but it's in another city. you keep fighting the hypothetical. mr. kneedler: no, no, and -- and 's why i think it's different. i'm not prepared to say it, you know, that absolutely not, but do think it's different because city is implementing its policy of banishing people chief justice roberts: banishment is a strange word when you're talking about something minutes away. mr. kneedler: but, again, the question is whether you could still altically be part of the community where you grew up. ja 114, 115 here shows that most othe homeless people in grants pass are from grants pass. chief justice roberts: cou everyone's mentioned, not everybody, many people have mentioned this is ous policy problem. and it's a policy problem because the solution, of course, is to build shelter to provide shelter for those who are herwise harmless. it but munities have competing priorities. i mean, what if there are le

pipes in the wer do you build the homeless shelter or do you take care of the lead pipes? what if there aren't -- isn't enough fire protection? which one do y poritize? why would you think these nine people are the best people to judge anweh those policy judgments? mr. kneedler: we're not suggesting that. we're not suggesting that the only solution is for -- especially in the currt circumstances, the only solution would be to build homeless shelte. as i menon, time, place, and manner restrictions, i -- i think, are a very sensible way too. and, in fact, as i mentioned, oregon state law requires that. in other words, a city adopts a provisn at you can't sleep on the sidewalks anywhere cae that obstructs people seeking to move. you can't campeaa school. you can't mpowntown. you can't sleep downtown. you might be able to sleep in a park, and that could patrolled for drug use and

whatnot. this is -- e roberts: counsel, mr. kneedler: none oe other laws are inapplicable if there's a time, place, and manner restricti. chief justice roberts: this is an old question, but, you know, eating is a bac man function as well, that people have to do, just like sleeping. so if someonungry 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, absolutely. breaking into a store is a crime that not everybody engages in, unlike sleeping, which is what -- which is what have here, which is really -- chief justice roberts: but it's a necessity for the personho needs food. mr. kneedler: it's not a necessity to break into a store. and with respect t-- chief justice roberts: well, you're fighting the hythical. i'm saying this person needs food. mr. kneedler: and the eighth amendment does not require that that person be excusedro doing it. i think there's -- the's a certain amount of common sense and practicality tth, and it's, i think, well understoo that just like drug use is not something e ghth amendment excuses you from, either is eating.

and the problem of eating is adesd at the local level as the, you know, history and the law shows is that the community takes care of itow residents. and it's common nit was at the founding for churches and individuals and whto offer their help, to charity in the community. and that's what happens in grants pass. various organizations feed the meless people. and there are social serceto help the homeless people. so this is -- this is consistent except for the aole ban in sleeping in the city. otherwise the community's response is what has been done downhrgh history. chief justice roberts: thank you, counsel. mr. kneedler: it is the city' absolute ban -- chief justice roberts: tha you. mr. kneedler: -- that interrupts that continuity. omas? justice roberts: justice justice alito? justice alito: couldxplain 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 d

let's say it's 3:00 in the afternoon, 4:00 t afternoon on a winter day. what is an individual police officesuosed to do if individual police officer would go around and count the number of people who are getting read to sleep outside? i guess if that's 4:00, you wouldn't get th. let's say it's 6:00. count the number of people who are getting ready sep outside for the night and then ask ea o of them whether you've tried to find a bedt at a shelter? whether that psowould be willing to go to a shelter if a bed is availleithout 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 wherth won't take my dog or something like that? n u just explain how it would work on a daily basis. mr. kneedler: llfirst of all, with respect to the individual encounter, i think the way this would work in the we'll world, and i think -- the real world, and i th's important to understand what happens on the ground in tse situations. i think in the cirmsnces you're talking about, i think what would happen is tt e person encountering the homeless person would know whether there is a spot available. i don't think e meless person would be required to check each day with each slt if there are multiple shelters. anin larger cities, these initial encounters are not handled by law enforcement. they're typically handled by social services agencies who are in contact with people who are camping and knowhatheir circumstances are and they are able to say, we know that at such and such shelter, there are beds avaab -- justice alito: what if there's -- mrkndler: -- would you be willing to go? justice alito: what if tr's a question whether there are,

ined, enough shelter beds available? your re uldn't apply if there are enough beds available, ght? if there are 500 shelt bs and there are only 200 people who are trying to sleep outside, then your rule woul't apply? mr. kneedler: right, right. justice alito: so you have to have a comparison of the number of beds available with the number of peop who want to sleep outside. mr. kneedler: right, yes. jualito: so that would be the threshold question? mr. kneedler: right. and i just want to clarifyne point about that. it's not simplysure of the number of beds against the number of homeless people, such that if there is a dic, the all. can't enforce the law at if you have individualized questioning and yokn that there are vacancies available, even if not for everybody -- but there is a vacancy for the person being interviewed, then, yes, that person -- if that person is offered and refuses, that person could be prosecuted or cited. justice alito: what if the rson says, yeah, i know there's a bed available at the gospel rescue mission but they

won't take my dog. mr. eeer: i don't think the ability to take your dog to a shelter is a sufficient reason. there are shelters in some larger cities th may well take pets, but -- justice atoi know i could sleep in theomof a family member but they really hate me and they'reeally nasty to me. mr. kneedler: you know, i -- justice alito: i'not -- these r -- i'm just wonderi h this is going to be administered on a daily basis. mr. kneedler: with all respect, ihink that example -- if the family is going to accep but, i mean, 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 oerand, if it's a woman who left domestic abuse, she coun't be expected to go back to her home or maybe her relatives' home or his relatives' home or something. so there's a lot of common sense.

and again, the firsenunter that 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. you mentioned just a couple of things that i wanted to follow up on. does it matter wheerhe person grew up in the town or not? suppose -- mr. kneedler: . no. justice alito: ok. that's irrelevant? so they go up to some police ofcer or social services in san diego, goes up to somebo and says, you know, where are yofrom? oh, i'm from fargo, buif ve to sleep outside, i sure would rather do it here than in fargo. that doesn't matter? mr. kneedler: know, and i think -- not because of any eighth amdmt rule we are talking about under this court's decisions in edwards and and saenz,herivileges and immunities clause or the commerce clause or the various right to travel provisions would

prohibit attaching that sort of limitis to a newcomer. but i would -- as i mentioned, regarding people -- justice alit wre i used to live in new jersey, there are a loof really small municipalities, i think over 500 municipaliti ithe state. i could go for a 20-minute walk in the evening and be in three or four different municipalities so to get cko the chief justice's question, if there aren't enough beds available west caldwell, 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 than a mile away? mr. kneedler: yeah, i inthe way you're describing it, it might be fair to say that that set of small and closely-knit mmunities would be one community and the person wouldn't basically be banished fr wre he lived or where he grew up by saying, you know,f there's a shelter in this other location, then you could be expected to go tre

municipalities.there's some tiny what if a municili doesn't have a park, so if somebody is going to sleep outdethe only place where that person can sleep is going to have to be on the street? does a time, place, or manner reriion work there? mr. kneedler: i mean, certainly not on the street. cause of safety, traffic, et cetera. i mean, there are commonsense accommodations, and thk even in the smallest town, there are probably locations where a person could sleep. you know -- justice alito: all right. thu. chief justice roberts: justice sotomayor? ice sotomayor: i don't want to be repetitive, but wh we vacating and remanding for? individualized finding of what? mr. kneedler: well, the way that -- first of all, the class was defined simply on the basis of e aggregate numbers without an individualized determiti as

to whether, frankly,n r view, not a sufficient individualized determination as to the two named plaintiffs. and you identified several factors here. they both slept in their cars. several of them were able -- or both of them chose at some times sep at a safeway parking lot or with a friend. out of town.ept in a truck stop it's not clear that -- neither of them ever actually camped in a park. and so -- d,n fact, the dissent bew estioned whether one of those two people even had stanng so that there -- even with reect to the named plaintiffs, there was not the sort of examination of their individual circumstance justice sotomayor: so you are talking about standing? mr. kneedler: well, 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 sotomar:ell, we were told that sleeping or camping is out of the case because -- and the court said that. . kneedler: sleeping, yes, but sleeping in a vehicle counts as camping. juste tomayor: right. mr. kneedler: but it's not th sort of camping that we'veee talking about, to some extent, about sleeping on the ground with a blanket or a tent or someinlike that. and it's true, the question of tents are not in the case. if the city waedo allow tents, i suppose it could even require that they be taken down and put back up. there is a lot of flexibility that the city could have. chief justice roberts: justice kagan? justice kagan: well, i did want to ask you just about that. i mean, let's say i'm with you mr. kneedler, on the fact that you can't prohiteing homeless, and because you can't prohibit being homeless, you can't prohibit sleeping outside if you are a genuinely homeless person. and let's say i'm with you that the fact that this ordinance says, well, but we're ohibiting using a blanket, that can't be right.

you know, you're not, like, just, like, get hypothera d the problem -- the constitutional problem will go away. but it does seem as though there are line-drawing issues, as you go u rht? 's a very cold night and somebody wants to make air it's raining and somebody wants to put up a tarp. the city has said you can sleep in particular areas, but it turns out that those areas have a ton cme. you know, you could go on and . and i'm not -- how do you deal with questions like th? these are not, like, gotcha questions. this is, like, how do you deal with questnsike that? where is the line where the city can say our legitimate municipal interests can come in and say, you know, as to that, as to that, you can't do that. mr. kneedler: so what -- and there are several examples that you have there.

with rpe to tents and tarps, i guess you were sayin think there's a difference between wh you might need to realistically sleep outside if it's raining, snowing, or something like that, and what you mighprer to have as a structure for long-term camping. as i mentioned, the city might sayocan put up a tent if it's very cold, but you've got toake it down in the morning. shelters say you can stay here overnight, but you have to leave during the day and you can come back. i mean, that might seem gratuitousf e city to do it. it might not want to do it. buwe're not saying that the eighth amendment would prevent from doing it, and especially as you say, if there's no alternative and it's, you know, 20 degrees. with respect to re there are really important issues on the otr de of that question. in an urban area, if you're

creating fires, there may hazards in a park. there might be -- justice kagan: so how does - mr. kneedler: -- there might be fireplaces in a park. justice kagan:owoes a court make these judgments? becausthe are tough judgments and usually they're the kind ojuments that we think of as municipal officials ke them. but you're saying, n tre's a certain level where it's out of their hands and it's in the court hands. and i guess i want to know what the principle is where those why that principle is the right inciple. mr. kneedler: i think -- i mean, i think there are two principles. one is that it's the municipalitys determination, certainly in the first instance, th a great deal of flexibility how to address the question of ssness and a time, place, and manner. and then municipalities should beblto choose the place, should be able to choose the attributes of that place, should be able to say we're notoi to allow moreha20 people or something, to regulated in that

manner. and i think the eigh endment principle would be whether the city has effectively prevented sleeping outside because the protections needed from the elements are not availab and certainly in grants pass, i would think even a blanket would not be enough under some -- but i think that's the touchstone. are you basically -- does it boil down to or is the core principle of robinson that you can't criminalize homelessss which includes not being able to criminalize sleeping osi? if you can't sleep outside because of lack of protection from the elements, i thi that's the principle a court would apply. but the ninth ccuit in a number of cases has gone way beyond that and we think that's really the srcof the problems that have been identified in the briefs, and not the core principle of robinson. justice kagan: thank you. chief justice roberts: justice rsh? justice gorsuch: mr. kneedler, i

want to probe this a littlbi further because it does seem to me this status/conduct distinction is very ic. and i had thought that robinson, after powell, reallyasust limited to status. and now yore saying, well, there's some conduct that's effectively equad status. and -- but y're saying invonty drug use, you can regulate that conduct. that doesn'qualify as status. you're saying compulsive alcohol use, you can regulate that condt public, public drunkenness, even if it's involuntary. that doesn't qualify as stu right? mr. kneedler: right. juice gorsuch: you're saying you can regulate somebody who is hungry and has no othechce but to steal. you can regulate that conduct, even though it'a basic human necessity. and that doesn't come under the status side of the line, right? mr. kneedler: yes. justice gorsuch: okay. but whent mes to homelessness, which is a terribly difficult problem, you're saying that's dit

and because there are no beds available for them to go to in grants pas what about someone who has mental health problem at prohibits them -- they cannot sleep ia elter. are they allowedo eep outside or not? is that status or conduct that's regulable? mr. kneedler: i think the question would be whether that shelter is available. justice gorsuch: it's available. mr. kneedler: well, no, available to the individual? justice gorsuch: it's available tondividual. mr. kneedler: well -- juice gorsuch: it's just because of their mental health problem, they cannot do it. mr. kneedler: ihi there might be -- i mean, that's, the mental health problem -- justicgouch: status or conduct? mr. kneedler: the mental health situation itself is a status. justice gorsuch: right, i know that. it has this further knock-on effect on cond state or not?able by the mr. kneedler: i think that -- i think if the -- justice gorsuch:he -- you that they have problems too, but

you're saying that conduct is regulable. how about withesct to this pervproblem of persons with mental health problems? mr. kneedler: i think in a particular situation, if the would engage in violent conduct as -- justice gorsuch: no, no, no, don't mess with my hypothe counsel. [laughter] i likey pothetical. i know you don' it's a hard one, and that's why i'm asking it. i'm just trying to understand -- the limits of your line. mr. kneedler: i think it would depend on w rious the ofwas on the individual. justice gorsuch: it's a very serious effect. the mental heaoblem is serious, but there are beds available. mr. kneedler: what i was trying to say it depend on how serious being required to go intohe facility was on the persons mental -- if it ul make his mental health situation a lot worse, then that may n be something that's -- justice h: so that's status -- that falls on the atus side? mr. kneedler: i guess you could put it that wa -- juste gorsuch: that'at i'm wondering. i'm asking you. i realjust trying to figure out -- you are asking us to extend

i'm asking how far? mr. kneedler: well, what i was gointoay, you could -- you could think of it as status, but i think another way to think about it, is is our point about an individualized determination, is that place realistically available to person because -- justice gorsuch: it is in the sense that the bed is available not because of their personal circumstances. mr. kneedler: right. right. it's available in a physical sense. it may be availa somebody individualized determination might include whether that peould cope in that setting. that's the only -- justice gorsuch: so that might be an eighthmement violation? mr. kneedler: because m not -- yes, because it's not available. justice gorsuch: it's an eighth amendment violation to require people to access available beds he jurisdiction in which they live because of their mental health problems? mrkndler: if going there would -- justice gorsuch: how about if they have a substance abuse problem and they cant use those substances in the shelter? is that an eighth amen-- mr. kndl: that is not a sufficient -- justice gorsuch: why? they're addicted to drugs, they cannot use them in the shelter. mr. kneedler: well, if they --

if it is the shelter's rule, then they can'gohere if they are addicted. justice gorsuch: so that's an eighth amendment viola mr. kneedler: no, eighth amendment violation is prohibiting ng outside because the only shelter that is available -- justice gorsuch: is not really avlae to that person? mr. kneedler: -- won't take them -- won't take them, yes. and a's an individualized determination. justice gorsuch: same thing with the alcoholic? mr. kneedler: yes. justice gorsuch: okay. so the alcoholic has an eighth amendment to sleep outside even though there's a bed available? mr. kneedler: if the only shelter in tow won'take him, then i think he is in exactly the same condition. and there can be ats of reasons, and the city doesn't want normally -- justice gorsuch: and judges across the country are now going to superintend this under th eighth amendment. 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 gorsuch: you don't like the class certification, but that question is not before us, counsel. mr. kneedler: no, but all we're talking about is the core principle of robinson, is you cannot punish someone for a status.

and i think communities guided by that principle, and it's the only principle a court should be enforcing, would retain a lot of flexibility. justice gorsh:ow 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 gorsuch: is that conduct or is that status? mr. kneedler:t's obviously -- the is conduct there and we are not suggesting that cities can't enforce -- justice gorsuch: why not, if there are no public facilities available to homeless persons? kneedler: that siatn, you know, candidly, has never arisen. and whether or not there -- i mean, in the litigation as i've seen. but no one is suggesting and we're not suggesting that public urination and defecation laws cannot be foed because there are very substantial public health reasons for that. justice gorsuch: well, there are bsntial public health reasons with drug use, with alcohol, and with all these othethgs too. mr. kneedler: and they c a be --

juicgorsuch: but you're saying the eighth amendment overrides those. why not in this circumstance right now? mr. kneedler: no, i'm t i'm not saying the eighth amendment errides the laws against drug use. justice gorsuch: oh, i know that. mr. kneedler: oh, i'm sorry. justice gorsuch: i know that. mr. kneedler: no, i misunderstood atou -- justice gorsuch: that one the goveme wants to keep. i got that. mr. kneedler: no, i misunderstood your question. rry. justice gorsuch: yeah. last one. how about fires outdoors? i owou say time, place, and manner, but is there an eighth amendment right to cook outdoors? mrkneedler: no. i think what -- justice gorsuch: that's a human necessity every person has to do. mr. kneedler: but this is one of those things that, you know, taken care of on the ground as a practical matter. there are restaurants where someongo. there are -- justice h: well, no, no, we're talking about hs people. they're not going spend money at a restaurant necessarily. mr. kneedler: welle may be inexpensive places. some people get -- justice gorsuch: let's say there isn't, okay? let's at there is no

reasonable -- mr. kneedler: and the local community -- ice gorsuch: do they have a right to cook? they have a right , don't they? mr. kneedler: they have a right entails having a fire, which i think it probably would, but as i said, eating and feeding isak care of in most communities by nonprofits and churches stepping forward -- as they have for 2rs. justice gorsuch: but if there isn't,here's an eighth amendment right to have a fire? kneedler: no, no, we are not saying there's an eighth -- ice gorsuch: well, i thought you just said there was. mr. kneedler: well, there -- there's food that you can eat without cooking it. i mean they could get handout from an individual that, you know, people can beg for money. i mean, there are -- there a ways that this works out in practice. justice gorsuch: last question. i'm totally sympathetitohe idea that there might be a necessity defense in these cases, and there's a footnote in yourri that indicates that in a lot of cases you could maybe bring advance preliminary injuncction at least as individuals. and i don't even s w you couldn't do it on a class-wide

basis. mr. kneedler: yeah, we haven't ruled out class, we haven't ruled out class. justice gorsuch: well, i thought you did in that footnote. you said the whole miste re is that this was done on a class-wide basis. mr. er: without sufficient inquiry into the individual circumstances is what, particularly with the two class representatives here. justice gorsuch: thank you. chief justice roberts: justice kavanaugh? justice kavanaugh: you just said a minute ago that a lot ts is taken care of on the ground as a practalatter. and i think one of the questions is, who takes care on the ground? is it going to be federal judges, or is itheocal jurisdictions with -- working with the nonprofits and religious ornitions? so i guess following up on the necessity eson, given the line-drawing problems that we've been goiough, if a state has a traditional necessity defense, won't that take care of most of the concerns, if not l, and, therefore, avoid the need for having to constitutionalize an area and have a federal judge superintend this rather than the local community, which you've emphasized many times working

with the nonprofits and charitable and religious organizations, which is how it works in most places? mr. kneedler: well, i -- i thi that the necessity defense at ast traditionally has required much stronger sense of urgency and imminence than ts. if states had a necessity defense and we knew that it was available in all of these places, en in oregon, i think it's a case cald barrett, the court said it's theoretically possible, but there was a remand for factual ises soe don't know at this point in time whether there is such a defense. and that's really not inhe case here. this comes up onn ghth amdment challenge without refencto the necessity defense and, frankly, without reference to the new oregon stute, which seems highly instructive in terms of time, manner, and place that jurisdictions, grants pass should examine.

but i don'think the court should puthicore point about robinsono e side because, in -- the possibility that in oregon and maybe, you know, maybe no other place, i don't know california law of necessity, maybe it would be taken care of. i think, at this point in time, that is too speculative to -- justice kavanaugh: wl,sually we think about before constitutionalizinanrea or extending a constitutional precedent, you might disagree with that characterization, but before doing that, we usually think about whether state law, local law already achieves those purpeso that the federal courts aren't micromanaging homeless policy. and it's on a daily basis when you work with the homele. it's a daily issue, how many people are going to owp that day at the food bank? w many people are going to show up that day at the shelter? so it's not like t a once-a-year thing. mr. kndl: yeah, no. for the people ay dealing with it day to day, that is ceainly true.

the city, the law enforcement, the city liaisons,he nonprofits, but it's not true for the federal court. the federal courdon't have to get into any of that. the only time the federal court would get into it is when -- is if the core principle of robinson was being disregarded by not -- by criminalizing somebody for sleeping outside why have no place to sleep inside. that's the core principle. a's the only thing a court should be enforcing, not the -- not whether peoplsh up. and the thing i would -- another thing i would say about the necessity defense, it may be that if the cot sues an appropriate injunction in this case or another case limited to the core principle of robinson, but it develops or the state law develops that there is a necessity defense, then i think that should be taken into accoun i mean, that's in effect the time, manner, and place or similar to that. if state law comes along and establishesealistic defense

or a realist aroach to how people can remain in the community, then the courts obviously should defer to that. but we don' that established state law at this time. and i don't think thcot should decline to address this question, which is important in the ninth circuit, botbeuse the principle that those courts recognize should be stned but the approach they've taken justice kavanaugh: last question i have on e od hypotheticals about stealing to feed yourself or cooking to feed yourself. you kind of waved all those away by, oh, that's all taken care of by local communities, npfits, and religious organizations, and by and large, heroic efforts each day to make sure that happen b it doesn't always happen by any stretch. mr. kneedler: no, it doesn't always hapn. justice kavanaugh: and then what? mr. kneedler: but homeless people are roueful. they have friends who are also homeless.

they may -- they may know people in town. they may beg for money. and the towns e ping in the same way, frankly, that indivialomeless people do. they do the best they can under the circumans, but that -- if those circumstances fail and the nonprofits, et cetera, can't -- youno the truck doesn't show up one night, that doesn't co an eighth amendment problem. and we're by no means suggesting that there should be a federal judiciary overlay t of all that. the cities and the nonprofits should be left alone to do the wo tt they're doing, unless the core principle of robinson is not respected. ste kavanaugh: thank you. chief justice roberts: justice barrett? justice barrett: so one odd thing about the posture of this case, putting aside ths part, is its pre-enforcement nature, because inson and in powell too, the punishment -- you know, the adjudication of guilt had alrey curred and it was time for the punishment to be to imposed, and then the eighth andnt challenge was raised. d justice alito was asking you about a lot of the very determinations that law factual enforcement would needke before deciding whether someone could be given a citation camping outdoors.

why wouldn't it make more sense, assuming that we agree in substanc the line that robinson would control here, why woul't it make more sense for the eighth amendment claim to be raised as a defense, much like the necessity defense, once a court is in the position, unlike thlaw enforcement officer just trying to gather informati o the ground, to determine whether there were ale beds, whether the person had a place to go. why is a pre-enforcement challenge the right way to think about is mr. kneedler: well, several things. it obviously could be raised as a defense in a -- in arinal prosecution or civil -- citation -- justice barrett: sure. mr. kneedler: but i think -- for thisarcular eighth amendment claim, the claim is that the eighth amendment prohibits criminalizing th to begin with. it's not just the punishment ould be -- justice barrett: well, i mean -- i understand that. i mean -- let's see -- i do understand that, but it's not

that it categorically prohibits punishing this act. as one might say if it, you know, prohibited sepg altogether for everyone, right, this iuse the eighth amendment claim is that it nishes, criminalizes this act in a way that false diroportionately and particular class of people. and that requires adjudication at the front end to figure out whether someone iscted or unprotected. if i go and sleep in an encampment, i can be cited. it's diff there's a factual determination on the ground. and robinson was a status-based challenge,t came up in the context of the individualized criminal proceeding. so why is a pre-enforcement challenge -- why does it make sense, given the very, very ctntensive nature of this? mr. kneedler: well, and in -- you kn an individual case, i think you're right, but imagine a situation wher someone who genuinely had no other place to live and it's the third citati, e fourth citation, and you have a pattern

as to that person or other peoplehe the city is -- is consistently not respecting the robinson ple. then i think you might have a pre-enforcement review, just as u ght for an asserted violation of some other constitutional right, because here, again, it's t e eighth amendment regulating only the punishment for an otheis valid conviction. re the question is whether the city can criminalize t conduct at all. and so if you have a series of citations that don't rise to the level of probable cause or whatever would be necessar-- excuse me -- necessary for the issuance of tion where the law enforcement officer on the ground is not respecting the robinson ple, then you might have an injunctive action. justice barrett: but this would be the first case, right,

beit didn't happen in robinson itself, where we had where we required -- where we d a pre-enforcement challenge on the basis of the eith amendment to the criminalization of ceronduct, 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 reed a third time, i would think he could bring a prenforcement challenge because the way the police were interacting with him was not respecting the robinson principle with respect to robinson himself. justice barrett: how does the federal government do this? so in the brief, youald about clearing the encampment at mcpherson square. can you just describe, i mean, briefly, if you can, i mean, do police then make individualized inquiries? how does this work? mr. eedler: well, what happened there was the -- you ow, was i think the gold standard of the way this sul be done, and larger cities have this ability. the park servi cperated very closely with the district

governnt the park service does not have the sort of social services, e cerathat a municipality has, in d.c. and so that function is sort of lit. these are special national park properties. but the national park service relies, as the federal government doe t federal protective service for buildings elsewher cperates with the local government. and the local government's social service peoplhe non-profits went out and interviewed everybody who was in the -- who was ithencampment in mcpherson square and told them abouthaservices are available. therwaadvance notice given that the encampment is going to be cleared within -- i think i s days. and people were -- so people were warned days in advance. they were warned the night before, the day before, so they could collecthr things. some just moved somewhere else. someake the city up on the offer. some went into shelters.

and that's the way that shelters are -- excuse me -- encampments are typically clead,s the -- and particularly in cities where you've gotn number of amicus briefs exping the problem. that's what happens. it isn't the -- it isn't the example w've been talking about where the law enforcement officer for e rst time is encountering the person. aller cities don't have that capability, but grants pass does have these outreh rkers. and that's who -- that's who carries onheialogue. and so that's the way it was cleared. chief justice roberts: justice jackson? justice jackson: a given that experience and the fact that mtihas actually been the law since 2018, we don't really have to speculate as to is 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 robin principle as adopted in martin. my understanding is, for example, california says that's

the law, we complyitit, and there we are. mr. kneedler: yeah. they are not asking for robinson to be erled. what they're objecting to is t injunctions that go well beyond th b-- justice jackson: yes, i understand. i'm just sort of responding to some of the questions that you've gotten as to sort of how does this rule work, c work, that sort of suggest that it't already happening on the ground in these places, that the sh and the workers are aware of what is available, that people a bng advised, that, you know, the principle of martin, at least in the ninth circuit, is we hold that so long ashe's a greater number of homeless individuals in a jurisdiction than the number of available beds, the jurisdti cannot prosecute homeless individuals for sittg,ying, sleeping. this is not a new rule. that's whataw is right now in that situation, right? mr. kneedler: yeahth -- that's what -- that's what martin -- i don't want to say th clearance procedures work perfectly in every case or that they're available in every case, but -- justice jackson: no, i just want

to say we don't have to speculatabt how the rule works. justice jackson: it's not a new inthat is being asked for 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 -- justice jackson: all right. let me ask you aboutheer or not you are asking for an extension of robin that's come up a couple of times, and i dont -- i don't -- i don't see it as an extension orhether that's being asked for. so can you explain whether there's some sort of extension of robinson -- mr. kneedler: no. justice jackson: -- happening today? mr. kneedler: no, i don't think sol because, as i said, the sleeping outside is an essential human function, and if you say someone can't sleep tside, that's -- that's sort of -- or has no place tole inside, that's the definition, really, of homelessness. justice jackson: so you're not suggesting that people should be excused ngaging in otherwise criminal conduct? we've heard this example about people stealing inrd to eat. i mean, that would be a

situation ch someone is actively participating in what would be otherwise criminal behavior -- if anybody did it. kneedler: yes. justice jackson: and the i guess, is that, well, maybe these people need to do it, and so that might be some rtf excuse. that's not what's happening in the facts here, correct? mr. kneedler: no. that's correct. one thing think is important to keep in mind in this, igrants pass can do this, so could every other city. soou a state do it state-wide. and, eventually, a homeless person would have no place to be. justice jackson:is is more like the sort of initial hypo of criminalizing eating outside, not that you'd be doing something that was otherwise criminally culpable? mr. kneedler: yeah. yes. i suosthere could be ordinances that the city would have about where you can -- you can't eat at -- can't consume -- place, and manner.hat is time, mr. kneedler: yes. justice jackson: finstion. you mentioned with respect to states doing this. why isn't the del government arguing this ce moot in light of 195.530? this is the oregon recently paedtatute that i mentioned

earlier. why doesn't the government read that law as i do to prevent grants pass omnforcing its ordinances to block sleeping outdoors at all places and all ti mrkneedler: yeah, no, i certainly agree there appears to be a pretty stark inconsistency between that state l a the ordinance. it hasn't been applied. it has to be objtily, reasonable, i think -- justice jackson: so would the federal government -- mr. kneedler: -- but this isn't time, place and manner at all. stice jackson: right. whatou your position be if the court decided that as a matter of constitutional oidance or whatever else that we don't need to hearhior reach this decision in this case, given this new ste ordinance? mr. kneedler: that would be one possibility. it wouldn't answer the core robirinciple point and the limitations on that point that has -- that has triggered the amus briefs. justice jackson: right. but our typical rule is that if there'some other way, we don't necessarily comment on constitutional issues, correct?

mr. kneedler: right. that would be one course to see how whatim place and manner meant under state law and how -- how theith amendment could accommodate that or take it into account. justice jackson: thank you. chief justice roberts: thank you, counsel. ms. corkran. ms. corkran: chief justice and may it please the court: robins vcalifornia holds that status-based punishment schemes are categorillcruel and unusual under the eighth amendment. the challenged ordans inflict statusas punishment in both effect and purpose. although the city describes its ordinaess punishing camping on public property, it defines campsite as anyplace a homeless peons while covered with a blanket. the city interprets and applie the ordinances to permit n-homeless people to rest on blankets in public parkshi a homeless person who does the same thing breaks the law.

the ordinancesy sign make it physically impossible for homelesseoe to live in grants pass without facing enesfines and jail time. the only question under robins is whether there's any meaningful difference beeea law that says being homeless is punishable and a law that says being homeless whi bathing or sleeping or blinking is punishable. in other words, doesddg a universal human attribute to the definition othoffense make the punishment conduct-based instead of status-based? the answ ino. the puosand effect of the second statute is exactly the same as the first, to make op with a status endlessly and unavoidably punishable if they don't leave grants pass. indeed all the ordinances do is turn the city's homessss problem into someone else's problem by forcing i heless residents into other jurisdictions. the injunction below leaves the city with an abundance of tools toddss homelessness. it can impose time, place,

manner restrictions on when and where homeless people ee it can ban tents and clear encampments. it can enforce a sleeping ban against homeless people who declines shelt a it can fully enforce laws prohibiting littering,ubc urination, defecation, drug use and violent or harassing behavior. the lyool the city wants that it doesn't have is auority to impose a 24/7 city-wide sleeping ban tha forces its homeless residents to either move to another jurisdiction or face endless punishment. the state police power is broad but it ds t include the power to push the burdens of social problems like poverty on to oerommunities or the power to satisfy public demand by compromising individual constitutional rights. i welcome the court's questions. justice thomas: in robinson, there was a stutthat outlawed -- that said that "to be addicted" is a crime. is there aornance here that says "to be homeless" is a crime? ms. corkn:o the language for the purposes of a temporary

place to live bakes homelessness into the definition of the offense, justice sotomayor was talking about that earli. so when you combine that language wh e best of the camping definition, what you have is an ordinance that says inhomeless, while sleeping with a blanket, is punishable. and as i just said earerthe question becomes when you attach the status to the universal attribute of slein does it then transform the offense into conduct-based punishment instead of status-based punishment and i think the answer is no. chieice roberts: a number of us, i think, are having difficulty with the distinction between status and conduct. you'll acknowledge, won't you, that in those termre's a difference between being addicted ts and being homele? in other words, someone who's homeless can immediately become

noless, right, if they find shelter. someone who is addicted to drugs, it's not so -- so ey. seems to me that in robinson, the drug addiction as an ongoing status, while here i it is different because you can move into and out of anin and out of the status, as you would put it, as being homeless. ms. corkran: so it's interesting, we today understand addiction as an immutable stus in robinson, the court suggested that someone might be recoved and no longer have the status of addiction. so the robinson court wasn't thinking about addiction as something that cl't change over time. chief justice roberts: well, that may limit the applicability of robinson to a different situatn,ut what is the -- i mean, what is the analytic approach to deciding whether something's a status or a situation of conduct? ms. corkran: so the question is a status is something at person is when they're not doing anything. so being addicted, having cancer, being poor, are all statuses tt u have apart from any conduct. chf stice roberts: having

cancer is not the same as bein homeless, right? i mean, maybe i'm just repting myself because homelessness can -- you cane the homeless status in an instant if u ve to a shelter or situations otherwise change. and of course it can be moved the other way as well if you're kicked out oshelter, whatever. so that is a distinction from althe other things that have been labeled status, isn't ms. corkran: i don't think so because, you know, aanr patient can go into remission, they no loerave that status. i don't think -- i mean, i don' think there's any question that being ors 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 poinyo wouldn't be a part of the class but i don't think it changes the fact that it ia atus. and what robinson found so offensive about statuses is -- chief justice roberts: well, i guess is being a bank robber a status? ms. corkran: no, because being a bank robber means you rob banks. so -- so the definition and the conduct -- chief justice roberts: violating

this ordinance mea un being asked to leave you don't leave. ms. corkran: vioti this ordinance means you're homeless. so again, homelessnesss t something that you do. it's just something that you are. and so the question becomes when you attach the universal human attribe 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: cou edwards v. 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 peonho wasn't morally reprehensible. ms. corkran: yes. i think that's noblbecause our history and tradition as a country is to emphatically reject anyorof local legislative scheme that has the effect of pushing the burdens of poverty or indigency into other communities. it's woven throho through our constitution. so edwards located iinhe dormant commerce clause. we have saenz v. roe which

locates it in thprileges of immunities clause; papachristou addresses attatus-based punishment in the context of a procedalue process. what robinson held is that wn that expulsion is effectuated through status-based punishment, it violates the punishments clause. justice barrett: how do you define a community? so when justice alito was describingew jersey has so many tightly woven munitieslose together and here, you know, the chief justice was asking about w was a new homeless shelter with- lots of beds right across the border minuteswa you know, could that be taken into account? and i there was some back and forth and not necessarily agreement on that. what is your position? how do you define a community? take that example of a homeless shelter right outside the limits grants pass. ms. corkran: yes. so to -- so to answer that hypothetical first, i'm not concerned -- i do't have any problems with saying that a homeless person in grants pass has legal anphical access to

a shelter that's just over the lines, if that's, in fact, tr. lots of jurisdictions limit thr meless shelters to people who are residents. so -- and just to be clear, there was no suggestion t record here that there were any shelters available outdef grants pass. justice barrett: undstd. but so community doesn't need to be determined by jurisdictional lines is what you' telling me -- ms. corkran: no. justice barrett: -- as a matter of -- be let's see, i'm asking all of this because, in response to justice sotomayo u were pointing out that our -- you know, our natioa history and tradition of not saying you can shueless people or the poor out of your jurisdiction and on to others. so -- or o oyour community and on to others is i think how you h you phrased it. how do we know what those lines are? and y're saying it doesn't have to be jurisdiction-specific. ms. corkran: no. i think jurisdiction matters because that tells us kind of the lines inhi the -- whatever ordinance or statute applies.

so, wh slter is available, the ordinances are enforceable because they punish the conduc of not going to the shelter, as opsed to the status of homelessness. so i think that a municipality can punish the cdu of not going to a shelter that's just over the line if you have physical and legal access to i now, for the reasons you s - and this dates back to our -- our settlement system at the founding er a lot of municipalities do not allow people from outside of the jution to use their shelters, and so, under those circumst 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? . rkran: no, that wouldn't be punishment. punishment is the infliction of suffering for a crime. justice jackson: counsel, i -- chief justice roberts: well, then -- then why is the eighth amendment implicated in this case? ms. corkran: because, here, we have fines andaitime. we have a status-based punishment scheme that is, in fact, inflicting punishing -- punishment within the meaning of

the eighth amendment. justice barrett: counsel, do you want oh, i'm sorry, chief. were you finished? f justice roberts: no, i'm done. that's fine. justice barrett: do you want to address some of the line-drawing problems that we've been going back and forth? i mean, justice gorsuch po out, you know, eating is a basic case that soup kitchens or social services willlws be able to meet it, and so he asked about whether the eighth amendment would ohit punishment for stealing food. you might ask the same questions about trespass and squatting in structures if there are -- you know, if ts the best alternative. so how -- how do we draw these difficult lines about, you know, public urination and those so things? ms. corkran: so i'll start w stealing food. stealing food is not part of definition of homelessness, and it's also not a universal atibute. so -- so i put that outside the scope of any of the arguments we're making here. with respect to public urination and defecationifou had a -- i don't think this would ever exist, but if you had a law that sa heless people cannot urinate or defecate anywhere

within city limits, i thinth it starts to look like this case. but, if you're saying that people can't urinate or defecate on public prer, it is almost -- it's hard to imagine a situation where -- justice barrett: they have no acelse to go. so a homeless person, there there's no facilities available, and a homeless person has no place else to go. how could a -- ms. corkran: you might have a -- i mean, there are commercial establishments. i don't knt anyone's pointe jurisdiction where you truly don't have access. but if we had to say -- juicbarrett: well, what's the constitutional principle ms. corkran: right. justice barrett: take my hypothetical. say there -- there's not -- commercial establishments don't want non-patrons coming in to use the facilities, there are no public facilities, and it's a generally apicle rule that says no public urination. ms. corkran: so i think, there, one distctn between urination and defecation and sleeping is that sleeping tse is part of the definition of homelessness, right? homelessness is lacking a xe regular nighttime address. so the sleeping prohibiogoes more directly to the status of

homelessness than urination or defecation. justice barrett: so it would not -- so it would not violate the eighth amendment to punish public urination and defecation? ms. corkran: you might come up with se fferent theory, but it'not e theory that we're putting forward in this case. justice barrett: not the theory at y're -- okay. ms. corkran: yes. ms. corkran: yes justice kagan: what do you think,s.orkran, of this idea that oregon's necessity defense esseiay functions as an eighth amendment in this context, so we don't have to constuonalize the kinds of limits that you're talking about? ms. corkran: yeah, i would say 's not at all clear that that's true. as mr. kneedler pointed out, you know, there is nessity

defense in ogolaw, but, so far, the oregon courts have not plied it to this circumstance. it also wouldn't necessarily be available for the fines, the citations, we have here. but i think that this question outhe availability of the necessity defense really goes the injunctive posture of the se it's not going to come up if you'ren e -- you know, you're -- if you're presenting the eithmendment as an affirmative defense at the same time as a necessity defense in a criminal prosecuonright, it kind of moots out the eighth amendment claim. but going jtice barrett's questions about injunctive relief, there,heuestion you're asking is, does the plaiifhave a credible threat of future punishment? i'd say first that the junctive relief is not before the court. the city has not challenged the propriety of the injunction here. so i think it's a question for another day. the courts here did find that the plaintiffs had shown credible threat of future punishment, and so i think that resolves the issue for -- for justice gorsuch: counsel, along those lines, 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 ca without any adversarial testing, wasn't what was argued t parties, it didn't have a whole lot of citation or support, it came kind of in a breezy paragraph. ms. corkran: right. justice gorsuch: and some have suggested that that's really a mistake because the eighth amendment's about punishments. it doesn't prevent states -- limit ste' capacity to engage

in passing laws that make conduct or actions or anything a im it just goes to the nature o what punishments follow, putting aside the excessive fines clause. . rkran: yeah. justice gorsuch: so there's a lot of discussioinhe brief about that and some -- some suggesonhat, really, it's the fourteenth amendment that should be doing work here, if there is work to be ne because some form of the necessity defense s en always understood as inhering in duprocess from the founding and whether that can be enforced rough state laws, which might differ, kansas versus kahler, but have to -- have to nonetheless cover e rritory, and whether the ght be injunctive relief on that basis, posslen advance, not limited to defenses, possible. ju reactions to that.

i -- we haven't yet toucd on it. ms. corkran: so robinson predates graham v. connor, but i think it espouses the same principle, which is, when you c intify an explicit textual source for a right, you locate the ghin that amendment and not more generalized notions of due process. and so what the robinson court did was they -- stice gorsuch: well, but, the more -- the more limited -- i mean, let me just -- play with that for a minute. the mo nural home for a necessity-type argument is due process. that's where it's always historically been understood to lie, not the- t an amendment having to do with punishments, right? one has to do with whayocan criminalize. the other has to do with the punishments that flo and you're not really attacking e punishments here. you'reayg any punishment is impermissible. mscoran: right. justice gorsuch: and any punishment is impermissible. and that is a necessity defense.

that's a classic necessity defense. . rkran: so i think that it's right that robinson describes what it was doing as saying that e ghth amendment prohibited the criminalization. you see th lguage in i think weems and wilkerson v. utah. i agree it seems like a bit of a strange fit. justice gorsuch: so, if that's the case, if that's the case, wouldn't that get rid oth awful status/conduct distinction at we have -- that we're struggling with here today? becae,f it's a necessity, it doesn't matter why it's a necessity. every person can make their own argument about why it was necessary, and then e urts will decide. we don't get into the status/conduct stuff that -- that robinson ses invite. thoughts? ms. corkran: well, but that's -- here, we don't have necessarily a necessity defense, so that wouldn't be very satisfyi - justice gorsuch: you don't think your clients have a good necessity defense? ms. corkran: the oregon courts so far have not pld the oregon -- justice gorsuch: i didn't ask whether the courts -- have applied it. you h't asked them to apply it, and you're ms. corkran: they've had a coupcases like this. justice gorsuch: have they?

ms. corkran: mr. kneedler feed to the bartlett case. justice gorsuch: and how are they going? . corkran: the -- so far, they have not applied the necsi defense. that it might apply, but theyy haven't appl -- yet. they didn't find that it was necessary under those circumstances. justice gorsuch: did they rule out that it might be nec under some circumstances? ms. corkran: they left open that possibility, but i'd also say e vil citation or the -- i don't want to say "civil."t's a little murky. the fines here are not subject, i don't think,r 's t clear, to the necessity defense. so it wouldn't take care of the entirety of the claim. justice gorsuch: 've got excessive fines clause there, thought? ms. corkran: yes justice gorsuch: and that's not before us either? ms. corkran: we have raised the fines before this court because our challenge is to the package of punishmen, d, histor, that's how the court has looked applying the excessive fines clause and the puni clause together. we're in a really unfortuna ste here that we have claims that involve both fines and punishment, and yet we're only here on the punishments au piece of it. it was one of the ass we suggested this isn't a great vehicle. i think the urcan say that,

you know, it's not going to reach the fines because we won on that bew,nd so you can just focus on the -- on the jail time for -- for criminal ss. justice alito: what is your definition of the status of homelessness? is it the lack of a place to stay indoors on a particular night, or is it something broader than that? ms. corkran: so --o homelessness -- justice alito:oes it require more than that? ms. rkn: right. homelessness is defined as lacking a fixed, regular, aduate nighttime address. so, if you have a home, you have a home -- i'm not mess when i go to grants pass because i have a home in d.c. the second pt our class definition focuses on whether the homeless person has access to shelter. a's not because that's part of the status. it's because, when soonhas access to shelter, then the ordinances aren't nishing them for the status. it's punishing them for the conduct of not going -- justice alito: well, i asked the question because if homelessness is defined as simply lacking a

place to stay indoors on a particular night, then the i an ironclad connectioneten the conduct, whichs eeping outside, and the status of homelessness. but if homelesesis defined to require more than that, then my question would be whether someone who is lacking a place to stay aarticular night or for a particular period of time is homeless, if the reason why thperson finds himself or herself in that status is, for exple, the person refuses to take antipsychotic medicin that's been prescribed or refuses to go to drug rehab or rehabilitation f aoholism or the person has chosen to move from onela where the person might have a shelter or a home where the person could live to another place. whatbo all of that? ms. corkran: so the status of homelessness is something that on changes once the person has a home. you lose your home, you' homeless. if you have a home again, then you're not in the status anymore. i think what your question gets

at is that second piece, which is whether a person has access slter. that can change from day to da d so -- justice alito: no, that's not really what my question gets at. the question is you can distinction -- status is different from conduct, but there are some instances of conduct that are closely tied to status or if homelessness is defined as simply lacking a place to stay in a particular night, they amount to the same thing. the definition of homelessness encompasses the conducof sleeping outside. so my question is whether this is -- what if the person finds that person in a homesstate because of prior life choices or their refusal to make future life choices? that's the question. ms. corkran: yeah, yeah. so -- so our definition of

lacking access to shelter is lacking physical or legal access to shelter. and you're looking at the person situation onhaparticular night. i think generally we're not doing an inquiry into all of a person's life choices that might have led them to the point where they're homeless and can't find place to sleep. robinson certainly didn't do that sort of analysis with respect to addictionuthere could be situations where there is such a tight causal nexus between a choice pson has made and their lack of shelter access that you would say this person h csen not to take this shelter and to be very clear, if you decline shelter that is physically and legally available to you, you're not in a class -- you're in -- stice alito: well, see but the problem is that once you me away from the definition that makes the inquiry basically tautological, then you get into the questionf sessing the closeness of the connection between the status and the conduct. and you do run into problems thhe person who's a

kleptomaniac, or a pern o suffers from pedophilia. so how do you distinguish that? how does the crtssess how close the connection has to be? ms. corkran: so for both of those teries, the status is defid i don't know if status is the right word there --eing a pedophilia or having pedophilia is defined by t urge that you have, not by your conduct and acting on that urge. so if someone were to act on that urge, that tight causal nexus on why they didn't have access to shelter, then they would be outside of our claim. justice ckn: i thought you made a very interesting remark in response to justice alito, and i'm just trying to clarify you seem to say that homelessness, as you've def ot lacking access to shelter 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:at kind of thing might --oi back to the chief justice's original question, that's not changing night to n- in the se way. ms. corkran: -- it can change over time the same way tt cancer diagnosis could change over time, but -- justice jackson: and then the other part that wainresting to me is that assuming that's your definio homelessness lacking a fixed regular address, wh seone does have access to a shelter even though they lack a fixed, regular address, e ordinance in that situation, i thought you said, isting to punish the act of not going to the shelter - ms. corkran: justice jackson: -- as opposed to punishing the status of being homeless. ms. corkran: yes, that's -- that's the exact reason tha reonle time, place, manner restrictions aren't a proble because if you have time, manner -- time, place, and manner restrictions what you' doing is punishing the conduct of not going to sleep where you're

allowed to go. that rationale doesn't work when someone has nowhere too. justice jackson: and can you spk to whether or not we should really be even getting ins in light of the new oregon law? ms. corkran: so we didn't argue mootness. we made this point in our brief opposition. we didn't say mootness just because we don't have an injunction underheregon law yet and 's not self-executing. i don't think there is any quesonhat the ordinances fall under the oregon law. i anit was intended to codify martin. requires that any sort of restrictions on sleepingr resting outside are asable with respect to homeless individuals. clearly the ordinances here don't me tt standard. so i certainly wouldn't have any concnsith the court saying as a matter of constitutional avoinc it appears this eg law resolves this whole issue so, you know, we' dismissing as improvidently granted or however the court wanted to resolve the se. justice jackson: thank you. justice sotomayor: so th plaintiff -- i'm sorry.

the plaintiff who died here had used up her provisional credits at the time of class certification, so she no longer had a shelter that was willing to take he i think the hard hypothetical that justice alito was positing and in part justice gorsuch is the person who owns a dog. ms. cora yeah. justice sotomayor: or let's say a ntly ill person. do you have the same response government? ms. corkran: so i would like to live in a world where separating someone fromhe pet is cruel. but it's outside the scope of our aibecause we are just lkg about physical and legal access to shelter. so if someone turns down shelter offer tha's physically and legally available because of their dog, they would not be within the scope of our claim. to get to the mental health hythetical, if a -- if the person's mental health issues made the shelter either

physically unavailableo em because if they went there, they would be at substantial risk of bodily harm or death, then i uld say the shelter isn't physically available. you could alsoava shelter that won't take people with mental health problems, in which case it wod't be legally available to them. i would say that if the shelter is physically and legally avaibl then they're outside the scope of their -- our claim t ey might have ada claims or some other law that appli at would restrict the city's ability to punish them forot going to that place but that's outside our case. justice sotomayor: thank you. chief justice rorts: thank you, counsel. can you go from havinged regular address to not having one? ms. corkran: yes. chief justice ro can you go from not having one to having one? ms. corkran: yes. people - chief justice roberts: thank you. justice thomas? justice thomas: in robinson, a narcotics officer testified that based on his experience, the rks on the defendant's arm suggested that he was anddt. ms. corkran: yes. justice thomas: do we ve anything like that where an expert testifies that these people -- that the iivuals here are homeless? ms. corkran: so hereheegal burden was on the plaintiffs to show that they were homeless. the lowecots found that their declarations and

depositions satisfied that. justice thomas: well, what i'm inrested in is the status. you say that this is the equivalent of robinson. and i'm trying to determine where the stusf homelessness was determined and how it plays a rolen is case. ms. corkran: so it was teined based on the declarations and depositions o the punitive class members and named plaintiffs. it also, you know, we talked a little about the rioetween beds to population. the ninth ciuiended up rejecting that as a hard and fast rule, but the lack of shelter beds in grants pass provides credibility to the putative class membe' declarations wn ey say they have nowhere to go. i'al say i don't understand the city to have ever contested that the named plaintiffs are homeless.

what they contested is wheer they had access -- justice thomas: i thinwh's confusing me is thathei read the ordinance, 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 public property? ms. corkran: i think theoretically no but i would say that the city has never -- it was not able to identi circumstance in which it had applied -- justice thomas: i understand that. it would apply ta ckpacker? ms. corkran: so it would depend on the circumstances. the line that the police office dw in their depositions was that if they saw a n-meless person lying on a blanket, they wouldn't enforce the ordinance. justice thomas: no, i'sang some -- he's back -- ms. corkran: yep. justice thomas: -- someone with a backpack who's been wandering around for a couple of years, in the continental vi or something. ms. corkran: so i can imagine -- i'm putting myself in the place of the offerwho were deposed. if you gave them tha

hypothetal- they might say no, that person isn't setting up a temporary place to live; they're just traveling through town. that particular hypothetical d't come up, but we do -- justice thomas: so that would not violate the anti-camping ordinance? . corkran: i don't know. i mean, maybe this gets tohe vagueness of the -- of the provisions, but -- chief justice robert jtice alito? justice sotomayor? justice kagan? justice kavanaugh? justice kavanaugh: i think one of the premises of your argument is that this igood policy for the homeless, and good policy would help homeless individuals transition, get mental health treatment, get substance abuse treatment, job assistance, and that this doesn't fulfill thos objectives. and maybe you're not saying that, t'm curious whether you think this is good policy in rmof incentivizing, or bad? u must think it's bad, and i'm curious why. ms. corkran: yeah, io't think we've made that argument. it certainly camacss the

amici briefs. just on the incentizg, i think, is a n quitur because the only question here is whether it violates the eighth amendment to enforce the ordinances when someone has no access to shelter, when they're turning down the services. so that's a circumstance we're looking at. maybe -- i think what your honor's question gets at is our diuson of no penological purpose. th court has recognized that when a punishment scheme has no penological purpose, it inflict gratuitous suffering, and that is cru a unusual punishment. ani will say, at this point, the city has not ever idenfi any penological purpose for punishing homeless people who do not have access toheer. if you ask that question, every time they pivot to encampments and fires and nition problems, which are all non-sequiturs. as i've said a number of times, this case is only about sleeping outside when there's no shelter available. and so i think that lack of logical purpose is significant. juste vanaugh: well, we've

heard about how it's more difficult to have an effective homeless policy, given t re that's been in effect in the ninth rct over the last several years. ms. corkran: i think that's -- justice kavanaugh: how are we supposed to -- ms. corkran: -- that's flatly wron i'll go back to my opening. i gave theho list of the things that the city is allowed to do under the ordinance and under our claim. thon thing that they cannot is impose a 24/7 sleeping ban that makes it impossible for homeless people to stay in the jurisdiction. i'd also note, you know, they have a lot of ic briefs on their side from local governments. almost the eiry of what those amicus briefs are complaining about isn't at issue in thica. soheyou have injunctions against encampments, that' under the fourth amendment. don't have a fourth amendment claim. a lot of the injunctions are under the fourteenth amendment, including the san raelne that the city identifies in its reply brief. i think it's remarkable that when the city was trying to identify the best example it could come up with for its reply brief,t ose one involving a different constitutional claim. justice kavanaugh: tnkou. chief justice roberts: justice barrett? justice barrett: no. chief justice roberts: justice jackson? justice jackson: can a pgo not being addicted to drugs? to

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 thout at was the case, right? sixty years ago, we didn't ve thsa understanding of justice jackson: so your view of robinson is that in't really matter, the permanency of the conditi's still a status? ms. corkran: right. the robinson court did not think that the permanency mattered, because it thought that addiction was a status tt could change. justice jackson: tha. chief justice roberts: thank you, counsel. rebuttal? ms. evangehank you. this case is worlds away from robinson. the eighndment 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 likeo art with the united states' position. that would also bring chaos. it would be a saer if martin were to remain on the books in any form.

it does not make a difference if the y is pre-enforcement or post-enforcement. alsame questions come up out whether the person's their choices are, how they are there, whether the shelter that's available is adequate, where it is, what rules it has, all of that. and i'd like to clarify how all of this in practice because it would be impossible for people on the ground to unrstand and predict what a court would say about the elters that are available and available and the choices that were made, and t dficulty of all that. so here how it works is, under the grants ' policy -- i'll direct the court to page 155 of the joint appendix. there it says, officers ar notice before issuing aour citation. so i want to just focus on that for a moment. how will the offnow, when -- when she or he comes back, whether the individual has

another pl go? there's no way to know the sw to that. hey would have to take their word for it, perhaps. so it woul to all of those same proble and it is ole -- the other side talks about banishment and athat. the respondents have remained in grants pass fos. there's nothing like that going on here. they talk about an isolated stement from a community meeting that was a tour meeting. ere are pages of minutes. what that full context shows is a wide-ranging discussion about all of these difficult policy problems and how ty was trying to incentivize people to accept shelt a dealing with a small group that was causing serious ms and crime in the city. anthey're trying to balance those who wouldn't take the help with the city's needs to keep eir public spaces open. constitutionalized this area, it

left cities with really no choice, eitherbuilding enough shelter that may or may not be adequate or suitable to someone's preferences, or be forced to give up all of your public spaces. that is what's happened. we've seen a suspension of enrcement of these basic laws that are so important. the line-drawing proble never-ending. that is exactly why powell, justice gorsuch, to your point about and the plurality there said that if we embark on this journey and we start constitutionalizing laws that address conduct, the line-drawing problems will be endless. and so that eason not to extend robinson here. so i jus to make, again, our basic eighth amendment point here, which is that these are lol fines and very short jail terms for repeat offenders that are in effect in many oth risdictions.

this is not unusual in any way. it is certainly not cruel. and we canpoint to our appendix in our reply that goes through jurisdictions from west hollywood, california to watertown, massachusetts, that have the same type of policies. so the policy questions in this case are very difficult. and i think that's what has com across today. the eighth amendment question, , is not. here the punishments are the sorts of punishments that have eld to be permissible for -- since the founding and really are in use today. they'ot in any way unusual. so wd a lot of things

about guessing how this would work in practice, but it sounds to me like courts woed to have some sort of rules so that they could tell a jurisdiction like chico that the place it set aside mping was adequate, when the federal court said no, it wasn't, because it's outdoors, or a san clemente that was threatened with ts because it didn't provide cell phone chargers in the area that it designated for camping, or san rafael, whe the court said that 200 feet between campments -- between tents was too much and that 100 feet w the maximum under the eighth amendment. so for all of those reasons, the court should reverse. chief justice roberts: thank you, counsel. the case is submitted.

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