punishment clause governs which punishments are permitted. not what conctan be prohibited. second, n precedent supports the ninth circuit rule. instead they misread robinson to bar any punishment for involuntary conduct lketo a status. but robinlls only that states cannot outlaw the status of drug addiction. it made clear they can phibit conduct like drug use could this court should not rewrite

robinson six decades later thir the ninth circuit's approachroven unworkable. the eighth amendment does not tell courts o is involuntarily homesswhat shelter is adequate, or wme, place and manner relations are allowed. t in 35 suits and countin federal courts are now deciding everything from the exact size of campsites to the adequacy of empty beds at specic shelters like the gospel rescue mission rants pass. ancies are struggling to apply arbitrary shifting stdards in the field. thisourt should reverse and and the failed experiment which s eled the spread of encampments while harming those it purports to protect. i welcome the court's questions. >> dyou consider these civil or criminal penalties? >> they are both.

there is criminal trespass &. >> is that involved in this case? >> yes. >> have any of the parties hereby subject to criminal trpass? >> t are and yes, ey do apply here. they are for recidivist offenses. >> which party has been held accountablfocriminal trespass? >> none of the individuals who are currently in the case. >>'s of is involved in this case? >> for logan and johnson, it is a civil penalt >> is it the anti-camping or >> yes, it is. >> is th cil 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 rit w? >> correct. >> have we ever applied the eighth amendnto civil penalts -- it will be forced to surreer its public spaces as it has been. unfortunately beds are going unused. people a not getting the help they need. the city is under an injunction and unable toll -- rely on these basic ordinances. and they give no guidance on how they c nigate this very

challenging area. the ninth circuit has effectively imposed a municipal code under the ninth circuit main rule to regulate what the city can do in its public spaces. >> cannot just stop you moment? the gospel unused beds are listed at 100 and are thousands of homeless. >> there are as many as 600 and grants pass. but there are still less tha 100 beds. >> that is right. >> you are not asking us to overturn robinson, correct? >> we think robinson was wrongly extended but wd't need the court to hear. >> it pribs you criminalizing homelessness. so what you do is say only homeless people who sleep outdoors will be arrested. that is the testimony of your chief of police. two or three officers.

which is, if you rd e crime, it is only stopping you from slpi in public for the purpose of maintaining a tempory ace to live. and the police officers testified that that means that a stargazer wants to take a blanket or a sleeping bag out at night to wchhe stars and falls aslee y don't arrest them. you don't aesbabies who have blankets or em. you don't arrest people who are sleeping on the beach, as i tend to do if i have been there a while. you only arrest peop don't have a second home. is that correct? who't have a home. >> announcer: -- give me one example. because your police officers could not. they explicitlsa if someone has another home -- has a home

and is out there and hapns to fall asleep, they won't be arrested. fall asleep with something them. ms. evangelis: well, joint of a citation issued to a person with a home address. but, more importantly, i think what we're tting at here is that these laws regulate conduct of everyone. there's nothing in the law that criminalizes homelessness. i really want to -- justice sotomayor: that's what -- that's what you s, t if i look at the record and see differently, it's a different argument, isn't it?

ms. evangelis: grants pass policy actually very clearly sa tt being homeless is not a crime. and that's in -- justicsomayor: well, i know that's what you say, but if y're enforcing it only against the homeless, i will suggest atyou look -- there's one brief -- let me see if i can find it -- that talks about this. at any rate, i'll find it later and just mention it. the second thing i want to ask you is you seemed to start by saying that the eighth amendment is limited to forms of punishment and not to the nature of punisen the proportionality issue. there also is a number of amicus brief that lays out for us that from t mna carta through the founding, through state laws, through weems, which wasn 1910, through trop later in the century, tt roughout all of that, both the english, american coloesthis court has had some form of proportionality in eieighth amendment jurisprudence. you're asking us to ignore all of that history.

. evangelis: no, we're not, justice sotomayor. what we are saying is that this case doesn't implicate proportionality. we're not asking the court to take a position on whether it's a proper inquiry under the eighth amendment. r example -- justice sotomayor: oh, yes, s, you are, because you're saying that thething that's prohibited by the eighth amendment is the fm punishment, but, in those cases and in r story, we have said that certain punishments, trop, for exampl't be done. ms. evangelis: that's gh and the court has always looked at if a particulashment is considered too extreme or categorically so as in t dth penalty in some cases, the court looks atheer a lesser punishment would be acceptable. again, it's okg at punishment. and that's where the inquiry focuses. here, only what -- what the respondents are asking this court to do is to extend robinson beyond -- justice sotomayor: do you have hotels that are valuedt 0, $250 in your city?

. angelis: i -- i -- justice sotomayor: just answ yes or no. ms. evangelis: i don't i don't know. justice sotomayor: well, let's assume because, ev inew york city, which may be the most expensive city in the nation or close to it, there are hotels that are less than that or at that pri. if a homeless person had that kind of money, don't you think they'd stay in l? . evangelis: so, justice sotomayor, the -- the difficulty here is that this hat the respondents are proposing rests on whether someone's conduct is involuntary. most importan here, we're talking about conduct, so i want toabout how this is completely distinguishable from rob the point -- justice kagan: so can i talk about that, ms. capoor? so taking robinson as a given, you iminalize the status of homelessness? msgelis: well, i have a couple points to that. ice kagan: it's just a simple question. ms. evangelis: so robinson doesn't addrat 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 drug addiction, and robinson only stands f tt. justice kagan: well, homelessness is a status. it's the status of not having a hom ms. evangelis: i actually -- i disagree with that, justice kagan, because it is so fluid, it's soifrent. people experiencing homelessness might be one day witho slter, the next day with. the federal definition contemplates various forms. justice kagan: at the period with which -- in the period where -- where you don't have a home and you are homeless, is that a status? ms. evangelis: no. justicn: could you criminalize that? ms. evangelis: no, it's not. so robinson talked about -- justice kagan:u couldn't just -- ms. evangelis: -- addiiolike a disease. justice kan:- you -- you -- you could criminalize just homelessness? ms. evangelis: so i want to say, first, a couple of things. so i think that for the -- the -- justice kagan: i mea tt's quite striking -- ms. evangelis: no, i don't. justice kagan: -- that you think that you c cminalize just homelessness. ms. evangelis: no, wre not

saying that homelessness is a status most importantly, i think the eighth amendment -- justice kan:ell, you're not saying -- ms. evangelis: -- is t wng way to focus on this question. justice kan:t's really a simple question. can you crize homelessness? and you're suggesting, yes, you cod. ms. evangelis: no, we do not criminalize homelessssi'm not saying -- justice kagan: could you criminalize homelessness? not tell me what ydo, what you don't do. could you? ms. evangelis: so i thk ere would be due process problems and vagueness problems. i don't think there's an eighth amendment problem in the sense of robinson because that was a limited decisi wre the holding was solely about a diseasddiction. the court was very clear about distinguishing between addiction and possession or use. justice jackson: but, counsel -- ms. evangelis: and so -- justice kagan: you're right t it's a different status that was involved in robinson. bu robinson made clear that there was a category of cases which were status offenses, which were different fromonct offenses. and when you started off here today, you saiw're just criminalizing conduct. so, to tell youheruth, i thought that this was going to be a quesonhere you would say no, of course, we can't criminaliz a status, but there's couc here. and then i was going to say: what is theonct here? but you didn't say that. you

saidouould criminalize even the status of homessss, and that suggests to me that -- that you're off on the wrong track in thinking about this issue. ms. evangelis: so, justice kagan, i think the -- the point whe we are disagreeing here is really about whether the eighth amendment is the right framework for this discuio justice kagan: well, the eighth amendment was the framework robinson. and taking robinson as a given, where robinson said the eighth amendment protects you against status-based crimes -- ms. evangelis: i don't -- juickagan: -- that's what the question is. ms. evangelis: -- i don't think robinson extends that far. i think robinson itself was cabined -- and i think the marshall plural -- justice marshall's plurality in powell goes io discussion about this and how that was the right line. justice kagan: okay. what is the conduct here? ms. evangelis: the conduct is camping, establishing a campsite. and it's e me as in the federal regulations that the national park serve lies on.

justice kagan: so i di't think that that was the -- the conduct. i thought that the only conduct here wasleing outside with a blanket. ms. evangelis: no, it is the nduct of establishing a campsite, which includes making a bed with bedding or other materials -- justice kagan: well -- ms. evangelis: -- and the federal law is -- justice kagan: -- a campsite ggts something different to people. it suggests a tent. suggests a conglomeration of pele. you know, tent camps, if you will. but your ordinance does not just prohibit that. your ordinance prohibits a single person who is homeless, so does not have another plactoleep, that's a status, i don't have another place to sleep, a single person sleeping instead in public with a blanket. that'what i understand your statute to do. is that not what your statute does ms. evangelis: the statute does not say anything about homelessness. it's a generally applicable law. one more -- it -- it's very important that it apies to everyone justice kagan: yeah, i -- i got that. ms. evges: -- even people who are camping.

justice kagan: but it's a single person with a blanket. ms. evangelis: and -- justice kagan: you don't have to have a tent. you don't have to have a camp. it's a sing person with a blanket. ms. evangelis: and sleeping in conduct csidered excuse me, sleeping in public is considered conduct. and this court -- this court in clark discussed that, that that is conduct. also, the federal regulations -- ste kagan: well, sleeping is -- ms. evangelis: -arvery -- justice kagan: -- a biological cessity. it's sort of like breathing. i mean, you could say breathing is conduct too, but, presumably, you would not think that it's okay to criminalize breathing in public. ms. evangelis: i would like to point to the federal regulations which i brought up. e kagan: and for a homeless person who has no place to go, sleinin public is kind of like breathing in blic. ms. evangelis: well, two pnt so, first, even the federal regulations prohibit even sleeping. they don'even require any materials, including but --ot necessary under the federal regulation. so this is conducthais understood by jurisdictions nationwide and even the federal government to be conduct that is prohibited, and so i want to make that point. justice kagan: see, i'll -- ms. evangelis: the second point -- juickagan: -- i'll tell you the truth, ms. capoor. i think th ts is -- this is a super-hard policy problem for

all municipalities. and if you were to come in here and you were to say, you know, we need certain protections to keeou streets safe and we can'ha, you know, people sleeping anyplace that they want and we can't have, you know, tent ti cropping up, i mean, that would create one set of issues. but yourrdance goes way beyond that. your ordinance says as to a person- d i understand that you think it's genellapplicable, but we only come up with this problem for a person who is homeless, who has the stusf homelessness, who has no other place to sleep, and your statute says that person cnotake himself and hielonly and, you know, can't take a blanket and sleep someplace witht beg crime. and -- and -- and that's, you know -- well,t just seems like robinson. it seems like you're criminalizing a status. ms. evangelis: well,t not. and we agree with you that this

is a very difficult policy question, and tha's exactly -- justice kagan: but that -- it isn't. ms. evangelis: -- why the eighth amendment -- justice jackson: can you answer why? why is it not? just -- i mean, justice kagan ha-- laid out one of the essential problems here, which that you're making a distinction between status and conduct. okay. we see that. and you keep saying this is conduct. can you explain why? ms. evangeli t actus reus element, that's exactly what was missing inson and that's what we have here. and that's why that law was so unique. it's a very peculiar -- justice jackson: so it seems to me that robinson actually hus you and not helps you in the following sense. you know, seems both cruel and unusual to punish people for acts that constitute basic human needs. so, here, unlike in robinson, where, you know, you had at let the sort of disease state, drugs and -- and -- and the like, and potentially cuab acts that relate to that disease stat he, we're talking about sleeping that uversal, that

is a basic fctn. and so i guess what i don't understand is in thiciumstance why that particular state is being considered conduct for the purpose of -- of -- of punishment. ms. evangelis: well, i line-drawing problems because, if you look at blocal necessities and what a person needs to do,ounow, the ninth circuit's decisions in this area would alw justice jackson: can i give you a hypothetical? ms. evangelis: -- all sorts of behavior. justicjason: can i give you a hypothetical? ms. evangelis: yes. thanyo justice jackson: okay. so suppose the relevant ordince prohibited eating on public property rather than sleeping or camping. w're talking about eating. and the city, for very, you know, rational reaso, s determined that when people eat outdoors, it creates problems with trash and rodents and the like, and so it bans eating in public places and it punishes violators. no just as here, that seems generally fine because most people have restaurants that they can go to, most people have

houses that they can eat in. but some people don'have that option. they have to eat in public because they're unhoused and theya't afford to go to a restaurant. sos is your argument the same result, no eighth amendment problem, no problem with the city banning eating plic, even though that's a public function -- i mean, excuse me, even though that's a human necessity that everyone engages in, and, really, what's happening is you're only pug certain people who can't afford to do it privately? ms. anlis: well, it sounds like -- i -- i take for a moment you're not saying the law -- that the law draws lis any sort of irrational basis or any equaprection issue -- justicjason: no. the city has a rational basis. ms. evangelis: -- and -- justice jackson: when people eat in public -- ms. evangelis: yes. justice jackson: -- the trash, there are rodents, there are problems. soheity says what we're going to do is we're going to say no eating in public.

what i'coerned about from your argument is the suggestion -- you know, you call it conduc ippreciate that, but what we have happening in opatn is that people who are able to afford doing this thin that's a basic human need privately are ok. ey're not punished for it. but people who don't havenyther option or opportunity except for to do it in public are the ones who are being targeted by this statute. ms. evangelis: so two responses. rs i think the eighth amendment is the wrong way to look at itsoone might have a due process challenge to a law like that if there is a deeply entrenched liberty interest. justice jackson: but punishment is happeninginy hypothetical, people are going to jail because they'ating in public. ms. evangelis: so, in that case -- justice jackson: why is the eighth amendment not implicated? ms. evangelis: -- in that case, you would haefense under oregon law, for example, a necessity defense. justice gorsuch: counsel, on -- on -- on -- ms. evangelis: and i want to get to that on the camping. justice gorsuch: counsel, i'm sorry to interrupt. ms. evangelis: yes. justice gorsuch: but, on that point, i think we're having some debate about where to lodge the defense, whether it's under the eighth amendment or under the fourteenth amendment. but do you concede that there are instances in which a

necessity defense, long recognized at common law, would apply to eatg public, sleeping in public, or other things le at? ms. evges: yes, i agree. and, actually, here, in the case of camping, oregon law recognizes a necessity defense, sos a matter of state law and policy -- and, again, that goes to the difficult policy questions -- a's why states are able to address the needs of what this issue raises. and so, for something under oregon steaw, a person could raisth defense under the necessity defense, and then, i that's not enough, if they believe that that's not broad enough somehow -- juice gorsuch: and you're saying -- . evangelis: -- they can argue due process. justice gorsuch: -- oregon law has that defense -- ms. evangelis: yes. justice gorsuch: -- alre built into it? justice gorsuch: all right.ct. thank you. ice jackson: let me ask you sort of threshold concern that i have about this case is i understand that oregon has enacted a statute, a new statute, tems to address this very issue, so i'm trying to undstd why this is -- is still a live case. as i read the new law, it

essentially codifies mt's rule, that it says something about all regulations of this nature have to bobctively reasonable as to time, place, anmaer with regard to -- with regardso ople experiencing homelessness. so it seems like the state has already precluded grants pass from doing the sort ng it's doing here, so why do we need to weigh in on that ms. evangelis: well, no, it so, first, both sides agree that this case is not moot. there is no state law challenge in this case. but, more importantly, that standard is very different from martin, and there's never been a challenge toulaws. justice jackson: what about constitutional avoidance? , fine, it's not moot, but ul't our principle be that we don't need to reach the cotitutionality of this issue if there's another possible way of resolving it because the state has addressed it? ms. evangelis: well, not at all. so the state's law is very different. and weve our law is satisfied. but, more importantly, the fact that the sta iacting here is a good thing. we agree that states shod able to make li and to weigh all of the competing concerns. and, here, the need to reverse

martin is socal because laws like ours, they really do serve an essential purpose. they protect the health and safety of everyone. not safe to live eampments. it's unsanitary. we see what's happening. a there are the -- the harms at encampments themselves on those in them and outside. w know this. the federal government has cleared encames here in the capital in mcpherson square. so this is an urgent problem. and al, there are downstream effects of all the other things that flow from it, but it is very important here to understand that the state laws and the justice jackson: so is it your argument that the ei amendment has nothing to say about how the city responds to such problems? i mean, suppose the city did that it was going to execute homeless people. i mean, very extreme, i know, t would solve the problems that you're talking about. msgelis: well, that -- that would be -- justice jackson: do we have an eith amendment issue in that circumstance? ms. evangelis: yes. i -- i think -- justice jackson: why?

ms. evangelis: -- ther y look at the punishment. that -- again, here, we're looking at the punishment, which is low-level fine -- justice gorsuch: that -- that would be both cruel and unusual, wouldn't it? ms. evangelis: i -- i think it would -- it would be. yes, i think it absolutely would. justice rsh: why not just yes to that? ms. evangelis: yes. thank you. thk u, justice gorsuch. justice barrett: counsel, can i ask you a question about the scope of your ordinance? so, as justice kagan was pointing31 out, this -- this criminalizes sleeping with a blanket at a minimum, right? ms. evangelis: yeah. justice barrett: correct? but, as i understand it, after this decision and -- and maybe after martin befat, there was some question about whether it so criminalized having fires, campre tents. can you talk a little bit abou that and what the scope of it is? does the constn then make it impossible for a city to limit the use of fires and encampment tents, those kinds of temporary shelters? ms. evangelis: it really does cae the rationale of martin, the -- the argument that it' biological necessity to sleep

outside, the respondents argue a blanket is necessary in ; some might argue a tent and a dakota. the eighth amendment really doesn've us any answers to what cities can and can't prohibit. it's really administratively impossiblfo cities on the ground, as well as for courts, to administer. so we're seeing -- justice sotomayor: i'm sorry. this -- we have nothing to do wi fes or tents. that wasxeted under the district court's injunction, an the circuit court didn't require th. we're talking only about sleeping with a blanket. ms. evangelis: well, i think -- justice sotomar:ell, so let's narrow it to what it is. i agree there mighbether cases in the ninth circuit that are not tial, and i don't mean to throw aspersions at -- at those hdis, but some of them are not permitting time/place rtrtions. let's go beyond that. let's goer here, you're not precluded from

pribing fires. you're not precluded from prohibiting tents. what's at issue is are you prohibited from keeping -- having someone wear a blanket anywhere in the city. yourntt was to remove -- stated by your mayor, intent is toeme every homeless person and give them no public space to sit down wblanket or lay down with a blanket and fall asleep. ms. evangelis: that's not the intent of the law. and i would like to --- justice sotomayor: well -- ms. evangelis: -- address that point because the other side has -- justice sotomayor: -- why d't you answer the basic question. ms. evangelis: yes. so -- justice sotomayor: 's not about fires. it's not about tents. it's about not being -- a time and place restriction about eliminating all choices. ms. evangelis: so we think that it is harmful for people to be livi ipublic spaces on streets and in parks, whatever bedding materials. when humans are living in those conditnswe think that that's

not compassionate and that there' dignity in that. justice sotomayor: oh, it's no but -- ms. evangelis: no. jusotomayor: -- neither is -- neither is providing them with notng- ms. evangelis: well, we -- juice sotomayor: -- to alleviate that situation. ms. evangelis: this is a difficult policy qstn, justice sotomayor. it is. justice sotomayor: where do we put them if every city, every village, every town lacks compassion -- ms. evangelis: we -- justice somar: -- and passes a law identical to this? where arth supposed to sleep? are they supposed l themselves, not sleeping? ms. evangelis: so this is -- a nessity defense, as i mentioned, under oregon lais available. states are able to are these concerns. this is a complitepolicy question. we believe that the eighth amendment analysis, to go back to it, fus on the low-level fines. justice sotomayor: what's so cated about letting someone somewhere sleep with blanket in the outside if they have nowhereo eep? the laws again decation, the laws against keeping things

unsanitary around yourself, those have all been upheld. the only thing this injunction es is say you can't stop someone from sleep a public place without a blanket. chief justice roberts: why don't you answer an we'll move on to the next round, and you be thinking about an answer to j sotayor while they ms. evangelis: thank you.nt -- chief justice roberts: -- st of the argument. is being a bank robber a status? ms. evangelis: no. i wod y that -- well -- well, if -- if your question is asking would it be permissible to punish being a nkobber, i think that would have vagueness problems probably. chief justice roberts: well, it would be someone who robbed a bank. that doesn't sound vague. ms. evangelis: well, i don't -- i -- i don't think that it is a status in the see robinson, which, again, i -- i want to just focus on what we in

robinson stands for, and it's only its nroholding about addiction. anth-- there, it was the status of being an addict without any mens rea. so a law like that -- excuse me ithout any actus reus. a law like that is problemat without an actus reus. i think it would probably have vagueness problems, due process proble however, the eigh amendment, this entire exercise under robinson is the only time this court has eveuated the substantive criminal law, and it raises all of these line-drawing proble and the fact that -- i'm not here to defend robinson as a matter ofit principles. we don't agree with it. we think it was wrongly decided. we're just sanghat 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. chf stice roberts: so, if someone is homeless for a week and then finds available shelter, is that person homeless when he's in the shelter?

ms. evangelis: uederal law, the hud regulations, he is actually considered homeless. that shows the fluidity and the different ways of -- chief justice roberts: putting e hud regulations to one side, can someone who is sleeping in a shter be considered homeless? msevgelis: some would say 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 right. let me make it easier. what if he buys a home or finds a r is given a home? is he homeless -- ms. evangelis: no, he is that point?ce roberts: -- at ms. evangelis: -- het. so for -- what -- what's at issue in this ca-- chief justberts: so you think the status of homelessness can change from one time to another? ms. evs: yes, i do. i think it's very fluid. chief justice roberts: is that tent with the definition of "status" in robinson? ms. evangelis: no. so robinson treated addiction as a sease and as something that -- and -- and many believe addiction is something that someone has wim forever and -- and it's a struggle. so that is a very ent

situation. and, here, if someone has shelter -- let's say they were offered shelteerday and they refused it, and then today, when someone comes around and tells them that they're not permitteamp, are they involuntarily there if they refuseshter yesterday? 's the question the eighth amendment does not answer. this is very complex. what if there is a bed ale in the gospel rescue mission, but like ms. johnson, a person doesn't wish te their pet? her rottweiler's not permitted there. so that is a difficult question for a person and a difficult policy question, but -- chief justice roberts: thank you. ms. evangelis: -- a person's chief justice roberts: thank you, counsel. justomas? justice thomas: robinson actually included a crime of, as i read it, either to use narcotics or to be addicted to the usofarcotics, and the cot s concerned about being -- 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

alito? justice alito: robinson presents a very difficult conceptual eson. do you think that someone who is a drug addict is absolutely incapable of -- that all people who are drug addicts are absolute iapable of refraining from using drugs? ms. evangelis: well, i think ator some, that may be true, and for some, perhaps they can abstain. but that's a questi ofree will and agency that's true of every law and what c we choose to gute. that's a -- justice alito: all right. then compare that with a person who absolutely has no place to slp in a particular jurisdiction. does that person have any alternative other than sleeping outside? ms. evangelis: so i think we'd have to ask all the questions i mentioned earlier about what

alternatives they might have had yesterday -- justice alito: they have -- ms. anlis: -- and how they ended up there. justice it -- they have none. they have absolutely none. there's not a single place where they can sleep. . evangelis: if that's true, then that may be the case. and in that case, at least in oregon, they would have a defense of necessity. justice alito: so the point is that the conctn between drug addiction and drug usage is more teouthan the connection between absolute homelessnes and sleeping outside. ms. evangelis: well, -i think, in -- in robinson, again, the court did drawhaline, but, here, tpondents are saying that the two are really the sa, at camping outside, sleeping outside, and being holess are two sides of the same coin. we think that that's wrong. it's collapsing t stus that they claim intthconduct. so we think the conduct here is very clearecse it applies generally to everyone. the law does not say on its face it ia ime to be homeless.

i just want to -- juice alito: all right. ms. evangelis: -- make that justice alito: thank you. ms. evangelis: -- very clear. thank you. chief justice roberts: justice sotomayor? justice sotomayor: it was the brief of criminal la punishment scholars that i was referencrlier. i want to go back to justice thomas's beginning question. as i uerood it, the ninth circuit never reached the excessive fines questi presented by this case, correct? ms. evangelis: that's rrt. justice sotomayor: so that's still open. and you didn'se cert on that issue? ms. evangelis: that's correct. justice sotomayor: all right. assuming that there is no standing, i understand one of the appellees died, the one who was mpg outside died during the pendency of this appeal. d there are two other named plaintiffs. i know they have fines on them. i'm not sure that either of them has ancrinal -- crimes charged against them. where does that put this appeal? where does that put this case?

msevangelis: sure. well, the case -- justice sotomayor: should we be cating and remanding to see if there is -- ms. evangelis: no. justice sotomayo -a live plaintiff -- a plaintiff, a named plaintiff who is still suffering injury? ms. evangelis: no. sohe, the -- the sleeping ordinance, which is the one that ms. blake challenged, that is no longer ithcase. that ordinance limited only sleeping in certain rights-of-way d dewalks in the city, and it was a different law, and that's not at issue here. so sleeping is not at issue. it't the camping ordinance. and we very much have a live case because we are under the ntcircuit's injunction, and the named plaintiffs have -- justice sotomayor: no, t question is, could it give an injuncti? do -- are these people -- well, i guess, if they are not permitted to park -- ms. evangelis: that's correct. justice sotomayor: so it's not the camping, it's the parking, isn't it? ms. evangelis: well, and the camping. soe -- we intend to -- and -- to rely on these laws. we want to be able to rely on

these laws. they are very important and -- justice sotomayor: you're not answering -- just focus on my question. ms. evangelis: y. justice sotomayor: both these people sleepn rs. both of them sleep in cars outside of the town. so they're not seeking camping permission. your city not provide for overnight parking in any location at night except in private homes? ms. evangelis: camping in a vehicle is included in the camping ordinance. justice sotomayor: well, that's going into a camp. how do you define "camp"? ms. anlis: again, it is a place where someone has laid down without any more, has -- justice sotomayor: so, if they gont-- if there's a line of cars and they want to -- and the cars can stay overgh-- ms. evangelis: so -- justice sotomayor: -- and they want to park ionof those spaces, if they fall asleep in the car, ty're guilty of violating the camping law? ms. evangelis: no. ice sotomayor, ms. johnson parks her car oftentimes aa friend's, so she is not violating the law at those times. justice sotomayo jt answer my question. ms. evangelis: -- parking everywhere is not prohibited. in certain areas, private areas, you can. justice sotomayor: is sleeping

in your car prohibited? msgelis: if you are sleeping in your car in a park where you're not allowed to park overnight -- justice sotomayor: have any of them -- ms. anlis: -- then yes. justice sotomayor: -- indicated intent to sleep in a park, or have they just saith want to park somewhere in the city? and can they park somewhere in the city and sleep? ms. evanges:es, they have said that they have the intent to ctie their conduct and that they will be, therefore, bjt to the city's laws and justice sotomayor: i don't understand that an okay. chief justice roberts: justice ka justice kagan: you've referred a couple of times to the necessity defense, so could you tell me how that would work? ms. evangelis: yes. so there -- under oregon law, if a person says that -- it's ctively the lesser of two evils. they say, i had no alternative to -- no legal alternative other than what i did here toke the law, then i h nchoice and i therefore had to break the law and w in some sense involuntary, to use a term that

--hat many have been discussing. , there, you -- it would 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 a tre are no shelter beds available and the person has no place to go, and the person, of course, has to slp. and the person -- it's cold outside. the person has a blaet so that's the minimum conduct that the law prohits so the person sleeps outside with a bnk, and a police officer comes, and in the -- but the person say wl, i had no place else to go. would the city continue to push foso kind of penalty? person received a citation, so a if they did, then th wld have a defense of necessity. it's asserted as a defense. so what the other side is trying -- justice kagan: well, it's seed as a defense. ms. evangelis: yes.

justickan: i mean -- but -- so you're not willing to say , we're going to tell all our police officers that they shouldn't give a citation in that circumstance? you know, we're going to give a citation, and then we'll see how the courts deal with it, is all you're going to tell me? ms. evangelis: welicers always have discretion, and we know that they exercise it. and -- and it's hard to know -- justice kagan: well, the question is not an individual officer's discti. individual officers are in a tough situation here. ms. evangelis: they are. justice kagan: the question is, at is the city going to tell individual officers? so what is the city going to ll individual officers about a case of the kind that i said? are you going to tell individual officers issue the citation and we'll s ithe person knows enough to make a necessity defense and we'llee what the court does about that? or are you going to say, you knowthe are some things that just ought not to be the subject of civil or criminal frtions? ms. evangelis: so the city, in its policy, at joint appendix, page 158, for example, talks about what officers are supposed to do.

they' supposed to put people in touch with services first to contact if there is available help for them. these laws are absoluty tool that they need.ple the services many people need that intervti. justice kagan: well, you're not giving me a real answer -- ms. evangelis: yes. justice kagan: -- to the question of is the city telling officers that they should give citation ms. evangelis: no. justice kagan: -- in that circumstance. ms. evangelis: no. scretion. justice kagan: is there anything you can point -- 's a matter of discretion? ms. evangelis: yes. justice kagan: there's nothing you can point to that the city says we have a necessity defee,hat we're telling officers to do is to, you know, act consistently with that defense so that if it is truly a matter of need that you are sleeping othstreet alone with a blaetno, 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 att -- what it would or would not preclude. that would be an individualized

question after the fact if someone received a catn. and if they thought that that wasn't ough, the proper framework would be this court's framework in kahler, where we wod ok at the asserted defense, there, insanity of some form, and,er it would be necessity, and we would ask ether it is so deeply rooted in our history and -- an something that has to be imposed in this way on the states. justice kagan: thank you. msevgelis: thank you. justice roberts: justice gorsuch? justice gorsuch: i suppose mee could also initiate a class action of the sort tt happened here if -- if you were not allowing the necessity defense to operate and seek to have it enforced, couldn't they? ms. evangelis: potentially. i -- justice gorsuch. thank you. chief justice roberts: justice kavanaugh? justice kavanaugh: you've said

several times that it's a difficult poli qstion, a complicated policy question. i everyone would agree with that. how does this law help deal with the complipolicy issues? ms. evangelis: one of the most difficult challenges is getting people the help that they need. ws like this allow cities to intervene, and they'ren important tool in helping shelter.ize people to accept said in her deposition -- it's in the joint appenx that she does not wish to stay at the gospel rescue mission. one of the reasons is because of r dog. she also had other reasons. she doesn't like being around people and -- and so forth. peleave all sorts of circumstances. it's ry complex. and the individual decisions -- ste kavanaugh: how does it help if there are not -- how does it help -- the rule here, e law here, how does it help if there are not enough beds for the number of homeless people in the jurisdiction? ms. evangelis: so, for johnson, she sometimes stays with a friend. so there are other -- justice kavaug how about more -- more generally, though? ms. evangelis: yes.

justice kavaug i guess, if there's a mismatch between the number of beds available in shelte, en including gospel rescue, and the number of homeless people,he are going to be a certain number of people whthere's nowhere to go? ms. evangelit -- that is a difficult policy question. and we -- justice kavanaugh: how does this lade -- ms. evangelis: yes. justice kavanaugh: -- help with that policy question? ms. evangelis: so it encourages people to accept alternatives when they come up so that fewer people end up camping. it also -- there is harm in ly camping. whatever materials people are using when they arling in public spaces without plumbing d infrastructure, there's harm to the whole city and to the whole community, as well as to them. we know that -- that encampments d ese conditions also breed crime and very dangerous conditions so the city has an interest in protecting everyone, including -- justice vaugh: do you think the constitutional rule should beifrent when the number of beds available in the jurisdiction exceeds the number of homeless people versus the

nuer of homeless people exceeds the number of beds available in shelters? ms. evangelis: no. that's what we've seen in the nintciuit. we've seen that that is unworkable. thero way to count what beds are available and who is perhaps willing to take one and who would consert adequate. then the question becomes, are those beds adequate? so, here, sp rescue mission again -- justice kavanaugh: that's a separate issue, i agree. ms. evangelis: it is. justice kavanaugh: and it can be a challenging issue, i suppose, i know, as well. let me ask one last question, which , w does the necessity defense differ from the constitutional rule? you touched on this, but i just want to get a succinct answer to th, e state law necessity constitutional rule here. ms. evangelis: you would weigh thha from the individual's conduct in violating the law. so, if someone were camping near a school or near -or- or doing some -- something or engaged in some behavior that was particularly harmful and they had another place where they could that would be maybe a factor that you would raise in the necessity situatio it's -- it's narrower.

so, in a case of a -- the oregon cases include people who are gring marijuana for medical reasons but without a licee, and so the necessity defense was not accepted in that case because they could havobined a license. so, if a persohaa friend to go to, had a bed available at the gospel rescue mission, they would be ed to take it under the necessity defense. i think that's how it would play out. justice kavanaugh: i actually ha one last question. when you get out of jail iyo end up -- what's going to happen then? are -- you still don't have a bed available. so how does this help? ms. evangelis: so the -- and -- and i want -- i doanto make a point about that -- about the criminal aspect. the trespass law here is only igred after several civil citations. 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 get out, i mean, you're not going to be anbeer off than you were before in finding a bed if there aren't -- going to my earlier quesonif there aren't beds available in the jurisdiction, unless you're

removed fr t jurisdiction or you decide to -- to leave somehow. ms. evangelis: no. there are services available, and the jurisdiction can put you in touch with services and programs to help you in those circumstances. and for many people,hais a point where they're able to get into treatment. so that intervention actually saves lives. justice kavanaugh: okay. thank you. chief justice roberts: justice barret justice barrett: so let me follow up on that. so you're saying there are services availablethe's treatment available, so people would ultimately move off the stet? is that -- is that what you' saying? because i think part oth premise of all of this, right, is that there are not enough beds for homeless op to occupy, and so there will be a mismatch and there are going to be some peop can't be cared for. are you saying thaifour law is enforced, there is a way for everyoneo cared for?

ms. evangelis: no. i'm saying that's a policy question that isui difficult, but these laws are an important part of the puzzle they're not the only solution. and we don't -- we don'believe that they are, but we think they're an importanto. and without them, we've seen what's happened on r reets. we've seen that people are -- are dying in encpmts. we've seen that cities are -- are being forced to ce of their public spaces. so that ultiteuestion is for the legislature and policymakers to figure out athe right solution, what the right mix of poliess. but the wrong answer is to do what the ninth circuitere and to constitutionalize -- justice baet okay. let me just inrrt you there. you're right, it's a very, very difficult policy question. and i asked u fore about whether this was just about blankets or whether it went into having fr urinating and defecating outdoors and that rtf thing, and justice sotomayor pointed out that thi particular injunction did carve t those things and was just talking about sleep. but, you know, otheras have been litigated in the ninth circuit that he ne beyond that, and because the line is things tt e involuntary, that are human needs, it can -- it c eend -- it's difficult to draw the line, and whatever we decide here about this case bout the line. so can you describe for meom of the things that are difficult to figure out about the line?

there's sleeping. there's sleeping with blankets. what else? ms. evangelis: public urination and deon, that is a serious problem. those are parts of biological necessities of being human. a urt in sacramento addressed that, and the ninth circuis rule would actually reach those things. i think any rule that we are wondering about and debating whether it wouthat far, i think that is a sign that it is not a workable rule. the slippery slope here is very real. it's t just for camping and conduct that might be a bial necessity, putting aside tents and fires and cold climates what other things would be allowed? all of the things th auman needs to survive, for example, potentially come into focus under the ninth circuit's rule but also in other areas. someone coy that my drug use or possession is the other side of the coin because i'm an addict or because i -- a -- a person who violates other laws could say that i had a coulsion to do those things

that i couldn't contro and the plurality opinion in powell addressed that very thing and why it's so important to draw the le ere. and when conduct is involved and once the court gets into deciding which conduct may be exsed under the eighth amendment, it is so far afld of what the eighth amendment was ever understood to address. justice barret oy. speaking of status and conduct, you've -- you've auethat robinson w wng and we don't need to overrule it. and i agree. i don'-- i don't think we should overrule robinson. y've also been kind of resisting the status -- you've be resisting characterizing anything other than the dr addiction that was at issue in binson as status. so what if the law sais unlawful and punishable by days in prin have the status of homelessness? just go with me. just assume that the law defines homelesssss a status and it is atas. would robinson say tat law is unconstitutional under the

eighth amendment? would you concede that? ms. evangelis: and you're saying hat is a status? justice barrett: yes. ms. evangelis: all of the -- justice barrett: the law din it as a status, and it's a status. ms. evangelis: well, yes, and i think it looks a lot like robinson under that hypothetical, but, of course, we disagree that it is -- justice barrt: i understand you disagree -- ms. evangelis: -- a status in ay. justice barrett: -- but you are accepting that robinson awa distinction between status and nduct and you're just fighting about the definition of a status? ms. evangelis: it -- it draws the line where a law h actus reus. so i think that's the easiest line. i -- i don't fend the line under the eighth amendment becausi n't think actually that the court -- i know the court di't rely on any eighth amendment principles or history of -- justice barrett: but the hypoetal i just gave you had no actus reus either. the status of homelessness, i mean, it could be, y kw, 4:00 in the afternoon and the person is just standing outse the bus stop. you agree that if the law prohibited that, made that crime, that under robinson, whether robinson was right or wrong, that under rons, that would be a violation of the eighth amendment? ms. evangelis: well, i -- i -- i think the better framework is

due process. justice barrett: i understand that. under robinson, do you agree that that would be wrong? ms. evangelis: yes. juice barrett: okay. thank you. ms. evangelis: thank you. chief justice roberts: justice jackson? justice jackson: so picking up where justice barrett left off, you say that the ordinance here pertains to conduct and status, and i'm just trying to figure that out. i'm not so sure for this reason. it's because all humans engage in the act in question, sleeping. and yet the statute operates or the ordinance operates to penalize only ceai individuals, those who have no choice but to do that act in public. so it appears, i think, not to be the act that the statorhe city in this case nd criminally culpable. it's instead the act as engaged in by certain people, by ppl

who cannot afford usg and have nowhere else to go. so why is that the wrong way to think abouit 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 look at the law and it has a conduct elemt. the conduct is establishing a place -- aamite. and that is something that a person who has a home or a shelter could do as well. justice jackson: but you've just fid away the basic actus reus, right? the actus reus is sleeping out -- guess outside to the extent u put outside in it, but that's the problem i'm talking ab the actus reus is the slpi, right? everybody -- that's not a criminally culpable kind of activity. that's what i think might distinguish it from robinson and -- and make wse for you in a way because, in robinson at least, to the extent someone had a disease, and the question wa well, are they engaging in otherwise criminally culbl conduct, buying and selling drugs, taking drugs,ounow,

we -- we look at that kind of category of things. here, the actus uss sleeping, human, universal. the -- the -- the city adds, okay, but you can't sleep outsid d i guess what i'm trying to understand is, to the extent that that only hpe with respect to a certain category of people who have no other place to go, why isn't that really stunishing the status of being someone who doesn't have any place to go? ms. evangelis: it doesn't apply only to those people. the respondents hererying to exempt a whole category of people. what -- so wt u look at there is the -- the conduct of camping federal law and in this court's decision in clark, it was understood that that is conduct. it is just like trespass, where, ou are found in a place, if then you remain there withoutt permission under quarles -- justice jackson: but it's not

just like tresssecause, presumably, you have other places to go. so let me just -- let me just ask you this other question. what -- what is your understanding of the martin rule? because i -- i thought it was premised on the circumstance in which someone had nowhere else to go and they needed to sleep and they needed toe there. but you seem to suggest that necessity is not sort of baked into wt rtin was doing. ms. evangelis: martin speaks in terms of someone who is inluarily homeless, and that raises all of those policy questions that we've been discussing about how do you determine that. justice jackson: but assume they exist. involuntarilless means the person has nowhere else to slee ms. evangelis: yes, that is -- the necessity defense is available. what respondents are asking to do is to constitutionale eighth amendment. under the so, as i said earlier,t uld be -- the argument could be made -- it would be a very high bar under due process,hat is the sort of argument that we would expecto make under a due process framework -- justice jackson: thank you. ms. evangelis: -- under this

court's kahler decision. chief justice roberts: thank yonsel. mr. kneedler. mrneedler: justice, and may it please the court: in robinn, this court held that the government cannot imalize status. and respondent has conceded here today that the city cannot criminalize the status of being homeless. our narrow subssn in this case is that government cannot circumvent the principle of robinson by ki it unlawful for a person to reside in the jurisdiction if heashat status. that is what the ordinances here

do. as applied to someone who has nowhere seo sleep, which is an essential human function, the ordinances are the equivalent of makingt crime to be homeless while living in grants pass. although we inthe ninth circuit was right to recognize th t core principle of robinson is implicated in this case, the court was wronto award broad injunctive relief in the circumstances and manner in which it did. the robionrinciple requires an individualized determination, anthninth circuit's failure to require such a determination d s issuance of much broader injunctive relief has led to the problems at issue that the petitioner and its amici have rais, t the core principle of robinson. and, therefore, we urge the court to adhere to the core principle of robinson but to emphizthat cities have flexibility to implement these and, in particular, time, ac and manner restrictions on where someone can sleep are entire valid if they are reasonable, and, indeed, the sta l that justice jackson referred to

establishes a state poli tt time, manner, and place restrictions are the way to go if they are reasonable. i welcome the court'questions. justice thomas: mr. kneedler, woul't you have a better argument if robinson involved someone inarrested for using drugs, but then the court said that you were in effect arresting him r e status of a drug user because he was -- he had no choice but to use drugs because he's an addict? mr kneedler: no. our -- o pition is not that the conduct as in robinson, the ugddict can't stop from using drugs. thats t our position.

that's a question of personal culpability on the basis of what the substances make - justice thomas: so what's the dierce between that and -- and -- and camping out? what you' sing here, it seems as though you're saying, well, they -- there's no other choice, soouave to camp out. therefore, you're really resting this person for the status of homelessness. mr knele yes, but -- but not because of an -- of an vontary compulsion sense. i think, as justice alito pointed out, the nexus here is actually closer ann the -- than in the addiction situation because sleeping outside is essentially the mirror image or the other side of the coin or the definition -- justice gorsuch: well, -- edle -- of the status of -- of homelessness. justice gorsuch: -- kneedler, i -- i agree that thinction between status and conduct is a slippery one and that they're often closely related. and in robinson, though, the court said youant make the

status of being a drug addict a crime, but you canrinalize the conduct, even if it is involuntary and compulsive. and powell reaird that line very strongly, at least the plurality opinion di a said we're not going to go further. and i wond wther the government is asking us to take that step that powell counseled agait saying that it is -- it is status -- effectively status, anth is throughout your brief. yousthe word "effective" or "essentially" or "tantamount to,” those kinds of words, and -- and so i just wanted to get your response to that -- that concern. mr. kneedler: no, we are not asking the court to take the step that it declined to take in powell, which had to do with personal rpoibility, the -- the sort of issues that were inlved -- justice gorsuch: okay. if you're -- not asking us to do that, then -- then -- then gus i just want to circle back to what justice thomas was getting at, which is, sure, e government wants to continue to enforce the drug laws and all kinds of other laws that peleould make an argument that i had involuntary need to do, a necessity defense to. you don't want us to wipe out all those laws? mr. kneedler: 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 -- antisocial conduct. justice gorsuch: well, justice white made clear that some people are going to be forced to drink in public because they don't have aome. he made this very point. mr. kneedler: no, we don'-- but --- but -- but the point here, it is the government that is prohibiting the alternative. it's not the individual's inability to conolis own conduct. the government, because the person -- because of other circumstances, the lack of money, t lk of a friend to st wh, the lack of shelter space, there is no place -- we take as a given in our position at there is no other place for the person to sleep -- justice gorsuch: and i think, couldn't a drug addict, though, make the exa se argument? i had no other choice. mr. kneedler: but that is -- the other choice would be a matter of -- of personal -- juice gorsuch: no. say the record says -- mr. kneedler: -- undstding, personal culpability.

justice gorsuch: but the record says that there is no choice. i had to do it. mr. kneedler: well, i do think that engaging in conduct that is unrelated to -me take that back. the sleeping outside when you have no other place to go is the definitihomelessness. justice jackson: mr. kneedler, isn't the response -- juste rrett: but -- but judge -- justice jackson: -- also that two things are different? i mean, you're sort of saying 's about individual culpability. t it's not as though everyone engages in drug use. mr. kneedler: righ justice jackson: right? certain people do, and maybe they have addiction, and maybe you can't ni them because of the addiction, but you can still punish them as criminally culpable f eaging in the act. it seems to me we are in a tolldifferent category -- mr. kneedler: we are, yes. justice jaso -- when you're talking about acts that erybody participates in, that no one thinks in and of themselves are criminally culpable. and yet somehow this statute is reaching out to punish certain peop w engage in that universal human basic need. that seems to meo the

distinction -- . eedler: yes. justice jackson: -- in these situations. mr. kneedler: that is a critical distinction, and not onlist something that everybody engages in, but it's something that everybody has to eagin to be alive. so, if you can't sleep, you can't live, d,herefore, by prohibiting sleeping, the city is basically saying you cannot live in grants pass. it's the equivalent of nishment, which is -- which is something that is unknown to the wa-- justice sotomayor: mr. kneedler wa't grant pass's first attempt, policy choice, to put pele- homeless people on buses so they would leave the city? i understood that to be the history of grant pass. they put -- police officers would put -- buy them a bus

tiet, send them out of the city, but that didn't work because people came back because it had been their home, correct? mr. kneedler: they came back. ice sotomayor: they came back. mr. kneedler: i think they might have been sent bk the -- justice sotomayor: so then they passed this law. and didn't the city council president say,urntent is to make it so uncomfortable here that they'll me wn the road, meaning out of town, correct? mr. kneedl: at state -- that statement was made at a -- at a public meeting of the city council. justice sotomayor: all right. so let's assume what you' saying or accepting, that -- do you happen to know, or maybe hope one of you knows, how many beds there areant pass, shelter beds? mr. kneedler: i believe thon shelter beds, at least at the -- at the time the record in this se was compiled, was at the gospel mission. there has been at times a detox place. therhabeen a warming center that has been maintained. t, in terms of -- excuse me -- shelter beds -- talking about disproportionate -- mr. kneedler: -- i think 's approximately a hundred. there -- there are men's, women's. justice sotomayor: yeah. i thought itasuch less than that. mr. kneedler: yes. justice sotomayor: all right. so we go bk you want the district court to make

individualized findings. you've asked us to vacate d remand. can we go back to that so i understand it? i quite didn't understand it your brief because i thought individualized findings had to do with the class action, but question hasn't been certified here. mr. kneedler: right,ut- but i think the -- i think the merits -- our basipot is that a -- a person does not have an eighth amendment defense or an eighth amendmt aim unless he truly does not have some other place to reside. and so, by speaking of individualized, what we were -- juste tomayor: so -- mr. kneedler: -- saying is that it depends on whether that peonas some other place, has a relative. justice sotomayor: i accept all of that. this is what i didn't understand fr your brief -- are you saying that there can't be a class certification of homeless people ever? mr. kneedler: no. justice sotomayor: that you have to have individuals? or are you saying that the injunction is too broad if it doe't provide for remedies that are -- somehow that the person has to prove a certain --

number of things bor-- before theyre entitled to the i wasn't sure. mr. kneedler: no, th--he eighth amendment claim is a person o and, in this context, depends on whether the person does have another place tole. the person cannot benefit from the ehtamendment claim without an individualized -- without that person showing, if it comes up in a -- a affirmative injunctive action, without that person showing that he or she has no oerlace to stay. chief justice bes: thank you, counsel. if there is a --heown next to grants pass, minutes away, has just completed building a

homeless shelter that has many vacant beds, does that change the analysis here? i mean, weald about the town wanting to get -- ship people t of the town. would it be -- would -- would -- it -- would there still be a right to sleep, contrary to the ordinances in grants pass, cae you don't want to be tan minutes away where there's a homeless shelter? 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 town line, it would be appprte to take into account that there's a homeless shelter er even though it's not one in the city of grants pa. but often, in a situation, the two towns might cooperate to have one homeless shelter. chief justice roberts: well, yeah, -- the next towns don't always cooperate. so what 's miles away? is it -- is the shelter available in that case for your purposes, or are you goi to tell me it just depends on all the circumstances -- so municipalitn't have that much guidance? mr. kneedleri ink it depends on the accessibility. i mean, onofhe fundamental points here -- chief justicrts: the accessibility is that when an officecos up in grants pass and finds a homeless person and

says it violates our ordinance, but i will give you a ride down the road, miles, whatever it is, because there's a new homeless shelter there, and the pern says, no, i don't want to do that, can th pson be given a citation? mr. kneedler: i -- i think probably not, but let me -- if i could explain wh but i think one of the principal features herth shouldn't be overlooked is the city is seeking bish or expel its own residents, its own citizens, people whose children can go to school in that location, who may pay taxes in that locaon so, if the 30-mile-away shelter requires the person to leave his community and to live in another place, that -- that imicates -- chief justice roberts: what is the -- i mean, h f does that go? let's sathe are five cities all around grants pass and they l have homeless shelters. and yet the person wants to stay. you know, i've been a grants pass resident for a long time. i don't want to go to the one of those shelters. can that person be given a citation?

mr. kneedler: i -- i think under -- because of the concern i've mentioned, i think that would be a serious obm because -- chief justice roberts: you would say wld be a problem to give them a citation? . eedler: yes, i think so, because you would be requiring -- or e ty's ordinance requires them to leave the city of grants pass. if the homeless shelter is right over the line, they can still be part of the community gnts pass but sleep in the -- chief justicrorts: no, but it's in another city. you keep fighting the hypothetical. mr. kneedler: no, no-- and that's why i think it's different. i'm not prepared to say it, you know, th aolutely not, but i do think it's different because the city is implementing its polibanishing people, its own residents from -- chief justice roberts: banishment is a strange word when you' tking about something minutes away. mr. kneedler: but, again, the question is whether you could still realistically be part of the community eryou grew up. ja 114, 115 here shows that most of the homeless people in grants pasarfrom grants pass.

chiejuice roberts: counsel, everyone's mentioned, not everybody, many people have ntioned this is a serious policy problem. and it's a policy problem because the solution, of course, is to build shelr provide shelter for those who are otherwise harmless. it but municipalities have competing priorities. i meanwh if there are lead pipes in the water? do you build the homels shelter or do you take care of e lead pipes? what if there aren'--sn't enough fire protection? which one do you prioritize? why would you thk ese nine people are the best people to judge and weigh those policy judgments? mr. kndl: we're not suggesting that. we're not suggesting that the only solution is for -- peally in the current circumstances, the oy lution would be to build homess shelters. as i mentioned, time, place, and manner restrictis, -- i think, are a very sensible way to go. and, in factas mentioned, oregon state law requires that. in other words, a city adopts a

provision that you can't eep on the sidewalks anywhere because that obstructs people seeking to move. u can't camp near a school. you can't camp downtown. you can't eedowntown. you might be able to sleep in a park, and that could be patrolled for drug use and whatnot. chief justice roberts: counsel, this is -- mrkneedler: none of these other laws are inapplicable there's a time, place, and manner restriction. chief justice roberts:hiis an old question, but, you know, eating is a basic human function as well, that people he do, just like sleeping. so if someone is hungry and no one is giving him fo, n you prosecute him if he breaks into a store to get something to eat? mr. kneedler: sotely, absolutely. breaking into a store is a common crime that not everybody engages , like sleeping, which is what -- which is what we have here, which is really -- chief justice roberts: but it's a nessy for the person who needs food. mr. kneedler: it'not a necessity to break into a store. d with respect to -- chief justice roberts: well, you're fighting the hypothetical.

i'm saying this person needs od mr. kneedler: and the eighth amendment does not require that aterson be excused from doing it. i thk ere's -- there's a certain amount of common sense d practicality to this, and it's, ihi, well understood that just like drug use is not something the eighth amendment excuses you omeither is eating. and the problem of eating is addressed at the local level as the, youno history and the poor law shows is that the committakes care of its own residents. d 's common now as it was at the founding for churches an dividuals and whatnot to offer their help, to charity in the community. and that's wh hpens in grants pass. various organizations feed the homeless people. anthe are social services to help the homeless people. so this is -- this is consistent except for the absolute ban in sleeping in the city. otherwise the community's response is what h bn done down through history. chief ste roberts: thank you, counsel. mr. kneedlerits the city's absolute ban -- chiejuice roberts: thank

you. mr. kneedler: -- that interrupts that continuity. chief justice roberts: justice thomas? justice alito? ice alito: could you explain how your rule would be carried out by police officers on a day-to-day basis? let's y at there are 500 bedsn particular town and let's say it's 3:00 in the afternoon, 4:00 in the afternoon on a winter day. what is an individual police officer supposed to do if individual police officer would go around ancot the number of peoplwhare getting ready to sleep outside? i guess if that's 4:00, you wodn't get that. let's say it's 6:. count the number of people who e getting ready to sleep outside for the night and then ask each one of them whether you' ted to find a bed at -- at a shelter?

whether that person would be willing to go to a shelt ia bed is available without any conditions or whether the bed would have to be available on the conditions that the individual wants, like i won' goo a shelter where they won't take my dog or something like at? can you just explain how it would work on a daily basis. mr. kneedler: well, first of all, with respect to t individual encounter, i think the way this wou wk in the we'll wldand i think -- the re world, and i think it's important to understand what happs the ground in these situations. think in the circumstances you're talking about, i think atould happen is that the person encountering the homeless person would know whether there is a spot available. don't think the homeless person would be required to checea day with each shelter if there are multiple shelters. and in larger cities, these initl counters are not handled by law enforcement. they're typically handled by social serviceagcies who are in contact with people who are

camping and know what their circumstances are and th a ab tsay, we know that at such and such shelter, there are beds available -- justice alito: wt there's -- mr. kneedler: -- would you be willing to go? juicalito: what if there's a question whether there are, indeed, enough shelter beds availae? your rule wouldn't apply if there are enough beds availabl right? tre are 500 shelter beds and there are only 200 ppl who are trying to sleep outside, th your rule wouldn'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 people who want to sleep outside. mr. kneedler: right, yes. justice alito: so that would be the threshold eson? mr. kneedler: right. and ju want to clarify one point about that. i's not simply a measure of the number of beds against the number of homeless people, such th if there is a deficit, the city can't enforce the w all. if you have individualized estioning and you know that there are vacancies availae, even if not for everybody -- but there is a vacancy forhe person being interviewed, then, yes, that rs -- if that person is offered and refuses,

that person could be prosecuted or cited. justice alito: what if the person says, yeah, i know there's a bed available at the gospel rescue miiobut they won't take my dog. mr. kneedler: i don't think the inability to take your dog to a shelter is a sufficient reason. there are shelters in some larger cities that may well take pets, but -- justice alito: i know i could sleep in the home of a family member but they reallyatme and they're really nasty to me. mr. kneedler: you know, i -- stice alito: i'm not -- these r -- i'm just wondering how this is going to be administered on a ilbasis. mr. kneedler: with all respect, i think that example -- if the falys going to accept him, but, i mean, that's the question.

whether tre is a place to sleep. but i don't know thaitould very often come down to that -- that family hates me on the other hand, if it's a woman who left domestic abuse, she couldn't be expected to go back to her home or maybe her relatives' home or his relatives'omor something. so there's a lot of common sense. and again, the first encounter that a police officer or somebodylshas with a homeless person is very unlikely to be a situation in which the person would be issued a citation. justice alit oy. u mentioned just a couple of things that i wanted to follow up on. es it matter whether the person grew up in the townr not? suppose -- mr. kneedler: no. no. justice alito: ok. th's irrelevant? so they go up to some police officer or social services in san dio,oes up to somebody and says, you know, where are you from? oh,'m from fargo, but if i have to sleep outside, i sure would rather do it here than in fargo. that doesn't matter? mrkneedler: know, and i think -- not because of aneith amendmentul we are talking

out under this court' decisions in edwards and and saenz, the privileges and immunities clause or the commerce clause or the various right to travel provio would prohibit attaching that sort of limitations to a newcomer. but i would -- as i mentne regarding people -- justice alito: where i used to live in new jersey, there are a lot of really small municipalities, i think over 500 municipalities in the state. i could go for a 20-minute walk in the evening and be in three fr different municipalities. so to get back to the chief justice's question,f there aren't ou beds available in west caldwell, does it matter? west caldwell is out of luck even though there are a lot of beds available in caldwell, which , u know, a couple -- less than a mile away? . eedler: yeah, i think the way you're describing it, it

might be fair to say that at set of small and close-kt communities would be one community and the person wouldn't basically be banished from where he lived or where he grew ubyaying, you know, if there's a shelter in thiotr location, then you could be expected to go there. justice alito: there's so ty municipalities. what if a municipality doesn't have a park, so if somebody is ing to sleep outside, the only place where thatern can sleep is going to have to be on the street? does a time, place, or manner restriction work there? mr. kneedler: i mean, certainly not t street. because of safety, traffic, et cete. i mean, there are commonsense acmmodations, and i think even in the smallest town, therar probably latns where a person could sleep. you know -- justice alito: all right. thank you. chief justbert justice sotomayor? justice sotomayor: i don't want topetitive, but what are

we vacating and remanding for? individualized finding of what? mr. kneedler: well, the way that -- first of all, t css was defined simply on the basis of the aggregate numbers without an didualized determination as tohether, frankly, in our view, not a sufficient individualized determination as to the two named platis. and you identified several factors here. they both slept in their cars. several of them were ae or both of them chose at some times to sleep at a safeway parking lot orita friend. the other slept in a truck stop out of town. it's not clear that -neher of them ever actually camped in a park. and so -- and, in fact, the dissent below questioned whether one of those twoeoe even had standing. so that there -- even with respect to the named plaintiffs, there was not the sort of

examination of their individual circumstances. juic 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 sotomayor: well, we were told that sleeping or camping is out of the case because -- and the cot id that. mr. kneedler: sleeping, yes, but sleeping in a vehicle counts as cain justice sotomayor: right. mr. kneedlerbuit's not the sort of mpg that we've been talking about, to some extent, about sleeping on the ground with a blanket or a te o something like that. and it's true, the questionf tents are not in the cas if the city wanted to allow tents, i suppose it cod en require that they be taken down and put back 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'sai'm with you, mr. kneedler, on the fact that u can't prohibit being homeless, and because you can' prohibit being homeless, you can't prohibit sleinoutside if you are a genuinely homeless person. and let's say i'm with you that the fact tt is ordinance says, well, but we're prohibiting using a blanket, that can't be right. you know, you're not, like, ju, ke, get hypothermia and the problem -- the constitutional problem will go away. but it does seem as thoughhe are line-drawing issues, as you go up, right? it's a very cold night and sobo wants to make a fire. it's raining and somebody wants to put up a tarp. the city has said you can sleep in particular area b it turns out that those areas have a ton of crime. you know, you could go on and on. and i'm not -- how do you deal thuestions like that? these are not, like, gotcha questions.

this is, like, how do you deal with questions like that? where is the line where the city can say ouletimate municipal interests can come in and say, you know, as to that, as to that, you can't do that. mr. kneedler: yeah, so what -- and there are severaexples that you have there. with respect to tents and tarps, i guess youer saying, i think there's a differceetween what you might need to realistically sleep outsidif it's raining, snowing, or something like tha a what you might prefer to have as a structure for lo-tm camping. as i mentiedthe city might say you can put up a tent if it's very cold, but you'veot to take it down in the morning. that's like being in -- some shelters say you can stay here overnight, but you have to lve during the day and you can come back. i mean, that might see gratuitous of the city to do it. it might not wantoo it. but we're not saying that the eighth andnt would prevent

it from doing it, and especially as you say, if there's no alternative and 's, you know, 20 degrees. with respect to fires, there are really imporntssues on the other side of that question. in an urban area, if you're creangires, there may be hazards in a park. there might be -- justice kan: so how does -- mr. kneedler: -- thereig be fireplaces in a park. justice kagan: how does a court make these judgmen? because these are tough judgments and usually they're the kind of judgments that we think of as municipal officials make them. buy're saying, no, there's a certain level where it's out of their hands and it's in the court hands. and i guess i wa tknow what the principle is where those questions go to the court and why that principles e right principle. mr. kneedler: i think -- i mean, i think there are two principles. one is that it's the

municipality's determination, certainly in the fstnstance, with a great deal of flexibility how to address the qstn of homelessness and a time, place, and manner and then municipalities should be able to choose the place, should be leo choose the attributes of that place, should be abltoay we're not going tollow more than 20 people or somethg, to regulated in that manner. and i think the eighth amendment principle would be whether the city has effectively prevented sleeping outsi bause the protections needed from the elen are not available. and certaiy grants pass, i would think even a blanket would not be enougunr some -- but i think that's the touchstone. are you basically -- does it boil down to or is the core principle of rinn that you can'crinalize homelessness, which includes not being able to imalize sleeping outside? if you can't sleep outside because of lack of protection fr t elements, i think that's the principle a ur

would apply. but the ninth circuit in a number of cases has gone way beyond that and we think that's really the source of the problems that have been identified in the briefs, and not the core principle of robinson. justice ga thank you. chief justice roberts: justice gorsuch? justice gorsuch: mr. kneedler, i wanto obe this a little bit further because it does seem to me this status/conduct diinction is very tricky. and i had thought that robinson, afr powell, really was just limited to status. and now you're saying, well, there's some conduct that's effectively equated to status. and -- but you're saying involuntary drug use, you can regulate that conduc that doesn't qualify as status. you're saying compulsive alcohol use, you can rule that conduct in public, public drunkenness,veif it's involuntary. that doe't qualify as status, right? mr. kneedler: righ justice gorsuch: you're saying you can regulate somebody o ng and has no other choice but to steal. you can regulate tt nduct,

even though it's a basic human necessity. and that doesn't come under the status side of t le, right? mr. kneedler: yes. justice gorsuch: okay. but when it comes to homessss, which is a terribly difficult problem, you'reayg that's different and because there arnoeds available for them to go to in grants pass. whatbo someone who has a nt health problem that prohibits them -- they cannot sleep in a shelter. are they allowed to sleep outside or not? is that status or conduct that's regulable? mr. kneedler: tnk the question would be whether th shelter is available. justice gorsuch: it's available. mr. kneedler: well, no, available to the individual? justice gorsuch: it's available to the individual. mr. kneedl: ll -- justice gorsuch: it's just because of their mental health problem, they cannot do it. mr. kneedl: i think there might be -- i mean, tha's, the mental health problem -- justice gorsuch: status or conduct? mr. kneedler: the mental health situation itself is a status. justice gorsuch: right, i know at. it has this further knock-on effect on conduct.

is that regulable by the state or not? mr. kneedler: i think th -i think if the -- justice gorsuch: all the -- you know, alcohol, drug use -- that they veroblems too, but you're saying atonduct is regulable. how about with respect to this pervasive problem of persons with mental al problems? mr. kneedler: i think in a particular situation, if the person would engage in violent conduct - justice gorsuch: no, no, no, don'me with my hypothetical, counsel. [laughter] i like my hypothetical. i ow you don't. it's a hard one, and a's why i'm asking it. i'm just trying to uerand -- the limits of yourin mr. kneedler: i think it would depend on how serious the offense was on the individual. justice go it's a very serious effect. the mental health problem is serious, but there are beds avlae. mr. kneedler: what i was trying to say it would depend on how serious being require to go into the facility was on the

peonmental -- if it would make his mental health situation a lot rs then that may not be something that's -- justice gorsuch: so that's status -- thatal on the status side? put it that way -- justicecould gorsuch: that's what i'm wondering. i'm asking y. i really am just trying to figure out -- you are asking us to extend robinson. i'm asking how far? mr. kneedler: well, what w going to say, you could -- you could think of it stus, but i think another way to think about it, and this is our point about an individlid determination, is that place realtilly available to that person because -- justice gorsh:t is in the sense that the bed iavlable but not because of their personal circutaes. mr. kneedler: right. right. and that's my point. it's available in a physical sense. it may be available to somebody else, but requiring an individualized determination might include whetr at person could cope in that setting. that's the only -- justice gorsuch: so that might be an eighth amendment violation? . eedler: because it may not -- yes, because it's not available. justice gorsuch: it'an eighth amendment violation to require people to access avaab beds in the jurisdiction in which they live beusof their mental health problems? mr. kneedler: if going there would --

justice gorsuch: how about if they have a substance abuse prlem and they can't use those substances in the shelter? tt an eighth amendment -- mr. kneedler: that is not a sufficient -- justice gouc why? why? they're aicd to drugs, they cannot use them in the shelter. that's e the rules. mr. kneedler: well, if they -- if it ishehelter's rule, then they can't go there if they are addicted. justice gorsuch: so that's amendment violation? mr. kneedler: no, the eighth amendment violation is prohibiting sleeping outside because the only shelter that is available -- justice gorsuch: is norely available to that person? mr. kneedler: -'t take them -- won't take them, yes. and that's an individualized determinatio justice gorsuch: same thing with thalcoholic? mr. kneedler: yes. justice gouc okay. so the alcoholic has an eighth amendment right to sleep outside even though there's a bed available? mr. kneedler: if the only shelter in town won't take him, then i think he is in exactly the same condition. d there can be all sorts of reasons, and the city doesn't want normally -- justice gorsuch: and judges across the country are now going to supinnd this under the eighth amendment.

mr. kneedler: actually don't think that it requires -- again, i don't think we should let the ninth circuit decisions characteri ts. justice gorsuch: you don't like the class certification, but that question n before us, counsel. mr. kneedler: no, but all we' talking about is the core inple of robinson, which is you cannot punish someone foa status. and i think communities guided by that principle, and it's the only principle a court should be enrcing, would retain a lot of flexibility. justice gorsuch: how about if there arnoublic bathroom facilities? do people have an eighth amendment right to defecate and urinate outside? mrkndler: no, we -- justice gorsuch: is that conduct or is that stu . kneedler: it's oioly -- there 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 rss? mr. kneedler: that situation, you know, candidly, has never aren and whether or not there -- i mean, in the litigation as i've

en. but no one is suggesting a we're not suggesting that public urination and defecaonaws cannot be enforced because there are very substantial public health reasons for that. justice gorsuch: well, there are substantial public health reasons withruuse, with alcohol, and with all these other things too. mrkndler: and they can all be -- justice gorsuch: but you're saying the eighth amendment overrides those. why not in this circumstance right now? mr. kneeer: no, i'm not -- i'm not saying the eighth amendment overrides the laws against drug us justice gorsuch: oh, i know that. mr. kneedler: oh, i'm sorry. justice gorsuch: i know that. mr. kneedler: no, i misunderstood what you -- justice gorsuch: that one the government wants to keep. i got that. mr. kneedl: , i misunderstood your question. sorry. justice gorsuch: yeah. last one. how about fires outdoors? i know you say time, place, and manner, but is there an eighth amendment right to cook outdoo? mr. kneedler: no. k what -- justice gorsuch that's a human necessity every person has to do. mr. kneedler: but this is one of those tngthat, you know, is taken care of onheround as a practical matter.

there are restaurants wher someone can go. there are -- justice gorsuch: well, no, no, we' talking about homeless people. e're not going to go spend money at a restaurant necessarily. . kneedler: well, there may be inexpensive places. some people get -- justice gorsuch: lets say there isn't, okay? let's say that there is no reasonable -- mr. kneedler: and the local mmity -- justice gorsuch: do they have a right to cook? ey have a right to eat, don't they? mr. kneedler: they have a right to eat, a right ck if it entails having a fire, which i think it probably would, but as i said, the eating andng is taken care of in most communities by nonofs and churches stepping forward -- they have for 200 years. justice gorsuch: but if tre isn't, there's an eighth amendment right to have a fi mr. kneedler: no, no, we are not saying there's anigh -- justice gorsuch: well, i thought you just said there wa mr. kneedler: well, there -- there's food that you can eat without cooking it. me they could get a handout from an individualha you know, people can beg for money. i meanthe are -- there are ways that this works out in

practice. justice gorsuch: last question. i'm tally sympathetic to the idea that there might be a necessity fee in these cases, and there's a footnote in your brief that indicates that in aotf cases you could maybe bring advance preliminy injunctive action at least as individuals. d don't even see why you couldn't do it on a cla-we sis. mr. kneedler: yeah, hen't ruled out class, we haven't ruled out class. justice gorsuch: well, i thought you did in that footnote. you sd the whole mistake here is that this w de on a class-wide basis. mr. kneedler: without sufficient inquiry into the individual circumstanceis what, particularly with the two class represtaves here. justice gorsuch: thank you. chief justice roberts: justice kavanaugh? justice kavanaugh: you just said a nu ago that a lot of this is taken care of on the ground as a practical matter. and i think one of the questions iswho takes care of it on the ground? is it going to be federal judges, or is it the local jurisdictions with -- workg with the nonprofits and religious organizations? so i guess followingp the necessity question, given the line-drawing problems that we've been going through, if a state has a traditional necessity

defense, won't that take care of most othconcerns, if not all, and, therefore, avoid the edor having to constitutionalize an area and have a federal judge sertend this rather than the local community, which you've emphasized many tis rking with the nonprofits and charitab a religious organizations, which is how it works in most places? mr. kneeerwell, i -- i think that the necessity defense at least traditionally has required a much stronger sense of urgency animminence than this. if states had a necessity defense and we knew thatt s available in all of these places, but even in oregon, i thini's a case called barrett, the court said it's theoreticallpoible, but there was a remand for factual issues. so we don't know at this point in time whether there is suca defense. and that's really not in the case here.

this comes up on an eighth amendment challenge who reference to the necessity defense and, frankly, without reference to theewregon statute, which seems highly instructive in terms of time, mann, d place that jurisdictions, grants pass should examine. but i don't think the court should put this core point about robinson to one side because, in -- the possibility that in oregon and may, u know, maybe no other place, i don't know about california law of necessity, mbet would be taken care of. i think, at this point in time, that is too speculative to -- juice kavanaugh: well, usually we think about before nstitutionalizing an area or extending a constitutional precedent, you might disre with that characterization, but before doing that, wuslly think about whether state law, local law already achieves those purposes so that the federal courts aren't micromanin homeless policy. and it's on a daily basis when yowo with the homeless.

it's a daily issue, how many pele are going to show up that day at the food bank? how many people are going to show up that day at the shelter? 's not like this is a once-a-year thg. mr. kneedler: yeah, no. for the people actually dealing with it day to day, that is certainly true. the city, the law enforcement, e city liaisons, the nonprofits, but it's not true for the federal court. the federal court doesn't have to get io any of that. the only time the federal court would get into iishen -- is if the core principle of robinson was being disregarded by not -- by crimiling somebody forleing outside when they have no place to sleep inside. that's the core principle. that's the only thing a court should be enforcing, not the -- not whether people show up. and the thing i would -- another thing i would say about the necessity defense, it may be that if the court issues an appropriate injuncti ithis case or another case limited to the core principle oronson,

but it develops t state law develops that there is a necessity defens tn i think that should be taken into account. i mean, tha's in effect the time, manner, and place or mir to that. if state law comes along and establishes a realistic defense or a realistic approach to how pele can remain in the community, then e courts obviously should defer to that. but we don't have that established state law at this me. ani n't think the court should decline to address this question, which is important in e nth circuit, both because the principle that those courts regnize should be sustained but the approach they've taken justice kavanaugh: last question i have on the food hypotheticals about stealing tfe yourself or cooking to feed yourself. you kind of waved all those away by, oh, that's all taken care of by local comnies, nonprofits, and religious organizations, and by and lae, heroic efforts each day to make sure that happens, but it doesn't always hapn any

stretch. mr. kneedler: no, it doesn't always happen. justice kavanaugh: and then at mr. kneedler: but homeless people are resourceful. they have friends who are also meless. they may -- they may know op in town. they may beg for money. and the towns are coping in the same way, frankly, tt individual homeless people do. they do the best they can under the circumstances, but that -- if those circumstaesail and the nonprofits, et cetera, can't -- you know, the truck doesn't show up one night, that doesn't become an eighth amendment probm. and we're by no means sgeing that there should be a federal diciary overlay on top of all that. the cities and the nprits should be left alone to do the work that they're doing, unless the core pncle of robinson is not respected. justice kavanaugh: thank you. chief justice roberts: justice barrett? justice barrett: so one odd thing about the posture of this seputting aside the class part, is its pre-enforcement ture, because in robinson and in powell too, the punhmt -- you know, the adjudication of guilt had already occurred and

it was time for thpushment to be to imposed, and then the eighth amendment challenge was raised. and justice alito was asking you abt lot of the very difficult on-the-ground factual determinations that law foement would need to make before deciding whether someone coulbeiven a citation for camping outdoors. why wouldn't itakmore sense, assuming that we agree in substance with the line that robinson would control here, why wouldn't it make more sense for the eighthmement claim to be raised as a defense, much like the neceitdefense, once a court is in the position, unlike the law enforcement officer just tryi tgather information on the ground, to determine whether there were available beds, whether the person had a place to go. why is a pre-enforme challenge the right way to think about this? mr. kneedler: well, several things. it obviously could be raised as

dense in a -- in a criminal prosecution or civil -- citation -- justice barrett: sure. mr. kneedler: but ihi -- for this particular eighth amendment claim, the claim is that the eighth amendment prohibitcriminalizing the act to begin with. it's not just the punishment that would be -- justice barrett: well, i mean -- i understand that. i mean -- let's see -- i do understand that, b 's not that it categorically prohibits punishing this act as one might say if it, you ow, prohibited sleeping altogether for everyone, rht this is because the eighth amendment clm that it punishes, criminalizes this act in a way that false disproportionately and uncotitionally on a particular class of people. and that requires adjudicati at the front end to figure out ether someone is protected or unprotected. if i go and sleep a encampment, i can be cited. it's different. there's a factual determination onheround. and robinson was a status-based challenge, and it came up in the

context of the individualized criminal proceeding. so why is a pre-enforcement challenge -- w ds it make sense, given the very, very fact-intensive nature of this? mr. kneedler: well, and in- you know, in an individual case, i think you're right, but imina situation where someone who genuinely had no other place to live ani's the third citation, the fourth citation, and yoha a pattern as to that person or other people where the city is -- is consistently not respecting the robinson principle. then i thi y might have a pre-enforcement review, just as you might for an asserted violatioofome other constitutional right, because re, again, it's not the eighth amendment regulating only the niment for an otherwise valid conviction. here the question is whether the tyan criminalize that 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 necessary -- issuance of a citation where the law enforcement offir the ground is not respecting the robinson principle, then you might have an inncve action. justice barrett: but this would be the first case,ig, because it didn't happen in robinsontsf, where we had -- where we required -- where we had a pre-enforcement challenge t basis of the eighth amendment to the criminalization of certain conduct, putting policemen in this situation, right? mr. kneedler: but i suppose in robinson itself, if the person had been arrested once, been arrested a second timeanthen he's arrested a third time, i would think he cldring a pre-enforcement challenge because the way the police we interacting wi h was not respecting the robinson principlwi respect to robinson himse. justice barrett: how does the federal government do this? son the brief, you talked about clearing the encampmenat mcpherson square. can you just describe, mn, briefly, if you can, i mean, do police then makendidualized inquiries?

how does this work? mr. kneedler: well, what happened there was the -- you know, was i think the gold stanrdf the way this should be done, and larger cities have this ability. the park service cooperated very closely with the dtrt government. the park service does not have the sortf cial services, et cetera, that a municipality has, in d.c. and so that function is sort of split. these are special national park prerties. but the national park servic relies, as the federal government does, the federal protective service f bldings elsewhere, cooperates with the local government. and the local government's soal service people or the non-profits went out and interviewed everybody who was in the -- who was in the encampment in mcpherson square and told them about what services are available. there was advance notice given that the encpmt is going to be clear whin -- i think it

was days. and people were -- so people were warned days in advance. they were warned the nig before, the day before, so they could collect their things. some just moved somewhere else. some did take the city up on the offer. some went into shelters. and that's the way thatheers are -- excuse me -- encampments e typically cleared, is the -- and particularly in cities where you've gotten a number of amicus briefs explaining the problem. that's what happens. it isn't the -- it isn't the example we've been talking about where the law enforcement officer for the first time is encountering the person. smaller cities don't have that capability, but grants pass do have these outreach workers. and that's who -- that's who carries on the dialogue. and so that's e way it was cleared. chief justice roberts: justice jackson? stice jackson: and so, given

that experience and the fact that martin has actually been the law sinc20, we don't really have to speculate as to how this works, right? i mean, this is happening -- this is the law, right now, in the ninth circuit. mr. kneedler: the robinson principle is. juste ckson: the robinson principle as adopted in martin. my understanding is, for example, california says that's e law, we comply with it, and there we are. mr. kneedler: yeah. they are not asking for robinson to be overruled. what they'rebjecting to is the injunctions that go well beyond that by -- justice jackson: yes, i understand. i'm just sort of responding to somee questions that you've gotten as to sort of how eshis rule work, can it work, that sort of suggest tt it's not already happening on the ground in these places, at the shelters and the workers are aware of what is avaab, that people are being advised, that, you know, the prcie of martin, at lstn the ninth circuit, is we hold that so long as there's a greater number of homelessndiduals in a jurisdiction than the number of avaiblbeds, the jurisdiction cannot prosecute homeless inviduals for sitting, lying, sleeping. this is not a new rule. that's what the law is right now in that situation, right? . kneedler: yeah, that -- that's what -- that's what

martin -- i don't want to say that the clearance procedures work perfectly in every case or that they're available in er case, but -- justice jackson: no, i just want to say we don't have to speculate about how the rule works. justice jackson: it's not a new thing that 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. leme ask you about whether or not you are asking for an tension of robinson. that's come up a colef times, and i don't -- i don't -- i don't see it as eension or whether that's being asked for. so can you explain wheer there's some sort of extension of robinson -- mr. kneedler: no. justice jackson: -haening today? mr. kneedler: no, i don'thk so at all because, as i said, the sleeping outside is an essential mafunction, and if you say someone can't sleep outside, that's -- that's sort of- has no place to sleep inside, that's the definion really, of homelessness. justice jackson: so y're not

suggesting that people should be excused from engaging in otherwise criminal conduct? so we've heard this example abt ople stealing in order to eat. i mean, that would be a situation in which someone is actively particiti in what would be otherwise criminal behavior -- if anybody did it. mr. kneedler: yes. juste ckson: and the idea, i guess, is that, well, maybe these peop nd to do it, and tt might be some sort of excuse. that's not what's happening in the facts here, correct? mr. kneedler: no. that's correct. one thing that i think is important to keep in mind in this, is if grants pass can do this, so couldve other city. so could a state do it state-wide. and, eventually, a homeless person would have no place to be. justice jackson: so this is more like the sort of initi ho of criminalizing eating outside, not that you'd dng something that was otherwise criminally culpable? mr. kneedler: yeah. yes. i suppose there could be ordinances tt e city would have about where you can -- you

can't eat at -- can't consume -- justice jaso that is time, place, and manner. mr. kneedler: yes. juice jackson: final question. you mentioned with respect to states doing this. y isn't the federal government arguing this case is moot in light of 195.530? this is the oregon recently passed statute that i mentioned earlier. why doesn't the government that law as i do to prevent grants pass from enforcing its ordinances to block sleeping outdoors at all places and all times? mr. kneedler: yeah, no, i certainly agree there appearto be a pretty stark inconsistency beeen that state law and the ordinance. it hasn't been applied. it has to be objectively, reasonable, i think -- justice jackson: so would the federal government -- mr. kneedler: -- but this isn't time, place and nn at all. justice jackson: right. what would your position be if the court cid that as a matter of constitutional avoidance or whatever else that we 't need to hear this or reach this decision in this segiven this new state ordinance?

mr. kneedler: that would bone possibility. it wouldn't answer theor robinson principle point and the limitationonhat point that has -- that has triggered the amicus briefs. justice jackson: right. but our typical rule is thatf there's some other way, we don't necessarily comment constitutional issues, correct? mr. kneedler: right. that would be one course to see how what time, place and manner meant under statlaand how -- how the eighth amendment could accommodate atr take it into account. justice jackson: thank you. chief justice roberts: thank you, cns. ms. corkran. ms. corkran: chi jtice and may it please the court: robinson v. california holds that status-based punishment scmes are categorically cruel and unusual under the eighth amendment. e challenged ordinances

inflict status-based punishment in both effect andurse. although the city describes its ordinances as punishing camping on public proptyit defines campsite as anyplace a homeless person is while covered with a blanket. the cityntprets and applies the ordinances to permit non-homeless people to rest on blke in public parks while a homeless person who does the same thing breaks the law. the ordinances by design make it physically impossiblfo homeless people to live in grants pass witht cing endless fines and jail time. the onlyueion under robinson is whether there's any meinul difference between a law that says being homeless is punishable and a law that sa ing homeless while breathing or sleeping or blinking punishable. inther words, does adding a universal human attribute to the definition of the offense make the punishment condu-bed instead of status-based? the answer is no. the purpose and effect of the second statu iexactly the same as the first, to make people with a status endlessly and unavday punishable if they don't leave grants pass.

indeed all the ordinances do is tu t city's homelessness problem into someone else's prlem by forcing its homeless residents into other jurisdictions. the injunctionel leaves the city with an abundance of tools to address homelessness. it can impose time, place, manner restrictions on when and erhomeless people sleep. it can ban tents and clear campments. it can enforce a sleepinba against homeless people who declines shelter and it can fully enforce laws prohibiting littering, public urination, defecation, drugsend violent or harassing behavior. the only tool the city wants that it doesn't have is authority to impose a 24/7 cityidsleeping ban that forces its homeless residents to th move to another jurisdiction or face endle punishment. the state police powers oad but it does not include the power to push thbuens of social problems like poverty on to other communities or the power to sis public demand by compromising individual constituon rights. i welcome the court's question

justice thomas: in robinson, there was a statute that outlawed -- that said atto be addicted" is a crime. is there an ordinance here that says "to be homele" a crime? ms. corkran: so the language for the purposes of a temporary place to live bakes homelessness into the definition of the offense, justice sotomayor was tainabout that earlier. so when you combine th language with the best of the camping definition, what you have is an ordinance that says being homeless, while sleeping with a blanket, is punishable. d i just said earlier, the question becomes when you atch the status to the universal attribute of sleeping, does it then transform the offense into conduct-based punishment instead

of status-baseshme and i think the answer is no. chief justice roberts: a number of us, i tare having difficulty with the distinction between status and conduct. you'll acknowledge, won't you, at in those terms, there's a difference between bei addicted to drugs and being homeless? in other wordssoone who's homeless can immediately become not homeless, right, if they find shelt. someone who is addicted to drugs, 's not so -- so easy. it seems to me that in robinson, it'much easier to understand the drug addiction as an ongoing stus, while here i think it is different because you can ve to and out of and into and out of the status, as you wod t it, as being homeless. ms. corkran: so it's interesting, we today understand addiction as aimtable status. in robinson, the court suggested that seo might be recovered and no longer have the status of addiction. so the robinson court wasn't thinking about addiction as something that couldn't change over time. chief justice roberts: well, that may limit the alibility of robinson to a different situation, but what is the -- i mean, what is the analytic

approach to deciding whether something's a status or a situation of conduct? ms. corkran: so the question is stus is something that a person is when they're n dng anything. so being addicted, havg cancer, being poor, are all statuses that you have apart from any conduct chief justice roberts: having cancer inothe same as being homeless, right? i mean, maybe i'm just repeating myself because homelessness can -- you can remove the homeless stusn an instant if you move to a shelter or situations otherwise change. and of course it can bmod the other way as well if you're kicked out of the shelter, whatever. so that is aisnction from all these other things that have been label stus, isn't it? ms. corkran: i don't think so beuse, you know, a cancer patient can go into remission, they no longer have that status. i don't think iean, i don't think there's any question that being poor is a status. it's something that you are apart omnything you do. it's a status that can change

overimand at that point you wouldn't be a part of the class but i don't think it changes the fact that it is a status. and what robinson fod 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 is ordinance means upon being asked to leave you don't leave. ms. corkran: violating this ordinance means you're homeless. ain, homelessness is not something that you do. it's just something that you are. and so the question becomes when you attach the uveal human attribute of sleeping or breathing tt status, does it make the punishment conduct-based instead of status-based and i think the answer is -- e sotomayor: counsel, 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:ndency is a not -- is a condition that can change over time, but the law was aimed at theransport of a person who wasn't morally reprehensible. ms. corkran: yes. thk that's notable because our history and tradition as a country is to emphatically

reject any sort of local legislative scmehat has the effect of pushing the burdens of poverty orndency into other communities. i's woven throughout through our constitution. sodwards located it in the dormant commerce clause. we have saenz v. roe which locates it in the privileges of immunities clause; papachristou addresses that status-based punishment in the context of a procedural due process. what rinn held is that when that expulsion is effectuated through status-based punishmen it violates the punishments clause. justice barrett: how do you define a community? so when justice alito was describing how new jersey has so many tightly woven municipalities close together and here, you know, the chief juste s asking about whether if grants pass, if there were -- was a new homeless shelter with border minutes away, you know, could that be taken in account?

and i think there was some back and forth and nonessarily agreement on that. what is yo pition? how do you define a community? take that example of a homeless shelter right outside the limits of grants pass. ms. corkran: yes. so to -- so to answer that hypothetical first, i'm not ncerned -- i don't have any problems with saying thaa homeless person in grants pass has legal and physical access to a shelter that's just over the lines, if th's, in fact, true. lots of jurisdictions limit their homeless shelters to people w a residents. so -- and just to be clear, the s no suggestion in the record here that there were any elrs available outside of grants pass. juice barrett: understood. but so community doesn't need to be determined by jurisdictional lines is what you're telling me -- ms. corkran: no. justice barrett: -as matter of -- because, let's see, i'm asking all of this because, in respon tjustice sotomayor, you were pointing out that our y know, our nation has a history and tradition of not ying you can shunt homeless people or the poor out oyo jurisdiction and on toths. so -- or out of your community

and on to others is i think how you -- how you phrased it. how do we know what those lines are? and you're saying it doesn't have to be jurisdiction-specific. . corkran: no. i think jurisdiction matters because that tells us kind of the lines in which the -- whatever ordinancer atute applies. so, when shelter is available, the ordinanc a enforceable because eyunish the conduct of not going to the shelter, as opposed to the status of homelessness. so i think that a municipality can punish the conduct of not going to a shelter that's just over the line if you have physicalndegal access to it. now,orhe reasons you say -- and this dates back to our -- our settlement system at the foding er a lot of municipalities do not allow people from outsidhe jurisdiction to use their shelters, and so, under those circumstances, the shelter wouldn't be legally available. chief justice roberts: is that

cruel and unusual punishment for them to turnway someone who wants to use their shelter? ms. corkran: no, that wouldn't be punhmt. 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 and jail time. we have a status-based punishment scheme that is, in fact, inicng punishing -- punishment within the meaning of the eighth amendment. justice barrett: counsel, do you want to -- oh, i'm sorry, chief. were you finished? chief justice roberts: no, i'm done that's fine. justice barrett: do you want to address some of the line-drawing problems that we've been going back and forth? i me, stice gorsuch pointed out, you know, eating is a basic maneed, and it's not the case that soup kitchens or soal services will always be able to meet it, and so hesk about whether the eighth amendment would prohibit punishment for stealing food. you might k e same questions about trespass and squatting in structures if there are -- you know, if that was the best alternative. so how do we -- how do we draw these diffullines about, you know, public urination and those sorts of things? ms. corkra si'll start with stealing food. stealing food is not part of definition of homelessness, and it's also not a universal attribute.

so -- so i put that outside the scope of any of the arguments w're making here. with respect to public urination and defecation, if you had a -- i don't think this would ever exist, but if u d a law that said homeless people cannot urinate or defecate anywhere with cy limits, i think then it starts to look like this case. but, if you're saying that people can't urinate or decate on public property, it is almost -- it's hard timine a situation where -- justice barret ty have no place else to go. so a hels 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 know that anyone's pointed to a jurisdiction where you truly d't have access. but if we had to say -- justice barrett: well, what's the cotitional principle? ms. corkran: right. justice barrett: take my poetical. say there -- there's not -- commercial establishments don't want non-patrons coming in to use the facilities, the e no public facilities, and it's a

generally applicable rule that says no public uriti. ms. corkran: so i think, there, one distinction between urination and fetion and sleeping is that sleeping outside is part of the definition of homelessness, ght? homessss is lacking a fixed, regular nighttime address. t sleeping prohibition goes more directly to the status of homelessness than urinatn defecation. justice barrett: so it would not -- so it would not violate the eighth amendment to punish public urinati a defecation? ms. corkran: you might come up with some different theory, but it's not the theory that we're putting foin this case. justice barrett: not the theory that you're -- okay. ms. n: yes. ms. corkran: yes.

justice kagan: what doou think, ms. corkran, of this idea that oregon's necessity dens essentially functions as an eighth amendmentn is context, so we don't have to constitutionalize the kinds of limits thay're talking about? ms. corkran: yeah, i would say it's not at all clear that th's true. as mr. kneedler pointed out, you know, there is a necessity defense in oregon law, but, so far, the oregon cotsave not applied it to this circumstance. it also wouldn'nessarily be available for the fines, the citations,e ve here. but i think that this question about the availability of the necessitdense really goes to the injunctive posture of the case. it's not going to come up if you're in the -- you know, you're -- if you're presentg the eighth amendment as an affirmative defense at theam time as a necessity defense in a criminal prosecution, right, it kind of moots out the eith amendment claim. but going to justice barrett's questions about injunctive relief, there, the question you're asking is, does the plaintiff have a credible threat of futurpushment? i'd say first that the injunctive relief is not before thcot. the city has not challenged the propriety of the injunction re. so i think it's a question for another day. the courts here did find that thplaintiffs had shown a credible threat of future punishment, i tnk that this case.he 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'eighth amendment holding with respect to status came without any adversarial testing, wasn't what w aued by the parties, it didn't have a whole lot of citatioor support, it came kind of in a eezy paragraph. ms. corkran: right. justice gorsuch: and some have suggested that that'really a mistake because the eighth amendment's abt nishments. it doesn't prevent states -- limit states' capacity to engage in passing lawth make conduct or actions or anything a crime. it jusgo to the nature of what punishments follow, putting aside the excessive fines clse. ms. corkran: yeah. justice gorsuch: so there's a lot of discussion in the brief about that and some -- some suggestion that, really, it's the fourteenth amendment that should be doing work here, if the is work to be done, because some form of the cessity defense has been always understood as inhering in due process from the founding and whether that can be foed through state laws, which might

differ, kansas versus kahler, but have to -- have to netheless cover the territory, and whether there might be injunctive relief onhabasis, possible in advance, not limited to defense psible. just reactions to that. i -- we haven't yet touched on it. ms. corkran: so robins predates graham v. connor, but i thinitspouses the same principle, which is, when you can identify an explicit textual source for a gh you locate the right in that amendment and not more generalized notions of due process. and so wt e robinson court did was they -- justice gorsuch: well, but, the more -- the more limited- i mean, let me just -- play with that for a mine. the more natural home for a necessity-type argument is due process. that's where it's ways historically been understood to lie, not the -- not an amendment having to do with niments, right?

e s to do with what you can criminalize. the other has to do with the nishments that follow. and you're not reay tacking the punishments here. you're saying any punishment is impermissible. ms. corkran: right. justice gorsuch: and any punishment is impermissible. and that is a necessity defense. that's a classic necessity dense. ms. corkran: so i think that it's right that robinson describes what it was doing as saying that the eighth amendment prohibited the crimilition. you see that language in i think weems and wilkerson v. utah. i agree it seems like a bit of a stnge fit. -- justice gouc so, if that's the case, if that's the case, would't that get rid of this awful status/conduct distinction that we have -- that we're struggling with here tay because, if it's a necessity, it doesn't matter whyt's a necessity. every person can make their ow argument about why it was nessary, and then the courts will decide. we d't get into the status/conduct stuff that -- that robinson seems to invite. thoughts? ms. corkran: well, but that's -- here, we don't have necessarily a necessity defense, so that wouldn'be very satisfying -- justice gorsuch: you don't thin

your clients have a good nessity defense? ms. corkran: the oregon courts so far have not applied the oregon -- justice gorsuch: i didn't ask whether the courts- have applied it. you haven't asked them to apply it, and you' ms. corkran: they've had a couple of cases like this. justice gouc have they? ms. corkran: mr. kneedler referred to the bartlett case. justice rsh: and how are they going? ms. corkran: the -- so far, they ha n applied the necessity defense. they left open the possibility that it might apply, but they haven't applied it -- yet. they didn't find that it was necessy der those circumstances. justice gorsuch: did they rule outh it might be necessary under some circumstances? ms. corkra ty left open that possibility, but i'd also say the civil citation or the -- i don'wa to say "civil.” it's a little murky. but the fines here are not subjec ion't think, or it's not clear, to the necessity defense. so it wouldn't take carofhe entirety of the claim. stice gorsuch: you've got excessive fines clause tre though, right? ms. corkran: yes. justice gorsuch: and th's not before us either? ms. corkran: we have raised the fines before this cot cause our challenge is to the package of punishments, and,

historically, that's how the court has look alying the excessive fines clause and the punishment clause together. we'ren really unfortunate posture here that we have claims that invveoth fines and punishment, and yet we're only he othe punishments clause piece of it. was one of the reasons we suggested this isn't a great hie. i think the court can say that, you know, it's not going to reach the fines because we won on that below, and so you can just focus on the -- on the jail time for -- for criminal trespass. justice alito: what is your definionf 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? . corkran: so -- so homelessness -- justice alito: does it require more than that? ms. corkran: right. homelessnesss fined as lacking a fixed, regular, adequate nighttime address. so, if you have a home, you have ho -- i'm not homeless when i go to grants pass because i ha a home in d.c. the second part of our class definition focuses on whether the homeless person has access to shelter.

that's not because that's part of the status. it'because, when someone has access to shelter, then the dinances aren't punishing them for the status. it's punishing them for the conduct of not going -- justice alito:el i asked the question because if homelessness is defined asily lacking a place to stay indoors on a partul night, then there is inclad connection between e conduct, which is sleeping outside, and the status of homelessness. but if homelessness is defined to require more than that, then my question woulbehether someone who is lacking a place to stay on a particular night or for a particularerd of time is homels,f the reason why the person finds himself or herself in that status is, for example, the person refuses to takentsychotic medicine that's been prescribed or refuses to go to drug rehab rehabilitation for alcoholism or the person has chosen to move from one place where the person might have a shelter or a home where the pers cld live to

another place. what about all of that? ms. corkra sthe status of homelessness is something that only changes once the person has a home. yolo your home, you're homeless. if you have a home againth you're not in the status anymore. i think what your question gets at is that second ec which is whether a person has access to shelter. that canhae from day to day. and so -- juicalito: no, that's not really what my question gets at. thqution is you can draw a distinction -- status is different from conduct, but there are some instancesf conduct that are closely tied to status or if homelesesis defined as simply lacking a place to stain particular night, they amount to the same thing. the definition of homelessness coasses the conduct of sleeping outside. so my question is whether this is -- what if the person fin th person in a homeless state because of prior life chois their refusal to make future life choices?

that's the queson ms. corkn:eah, yeah. so- our definition of lacking access to shelteis lacking physical or legal access to shelter. and you're lookingt e person situation on that particular night. i think generally we're not doing an inquiryntall of a person's life choices that might have led tm the point where they're homeless and can't fi a place to sleep. robinson certainly didn't that sort of analysis with reect to addiction but there could be situations where the is such a tight causal nexus between a choice a person has made and their lack slter access that you would say this person has chosen not to take this shelter and to be very clear, if you cle shelter that is physically and legally available to you, you're not in a class -- you're in -- justice alito: well, see but the probm that once you move

away from the definition that makes the inquiry basicay tautological, then you get into the question of assessing the closeness of the connection between the at and the conduct. and you do run into problems with the person who's a epmaniac, or a person who suffers from pedophilia. so how do you distinguish that? how does the court assess how close the connection has to be? ms. corkran: so for both of those categories, the status is defined -- i don't know if status ithright word there -- being a pedophilia or having pedoil is defined by the urge that you have, not by your conduct and acting on that urge. so if someone were to act on that urge, that tight caal nexus on why they didn't have access to shelter, tn ey would be outside of our claim. justice jackson: i thought you made a very interesting remark in response to justice alito, and i'm rying to clarify. you seem to say that homelessne you've defined,

is not lacking access to shelter on a particular night. is that -- am i right abt that? ms. corkran: that's right. i use the hud definition which is homelessness means you lack a fixed regular adequate night-time address. justice jackson: so that kind of thing might -- going back to the chief justice's orin question, that's not changing night to night -- in the same way. ms. corkran: -- it can change ov te the same way that a cancer diagnosis could change over time, but -- justice jackson: and then the her part that was interesting to me is that assumingh's your definition, homelessness lacking a fixed gur address, when someone does have access to a shelter even though they lack a fiegular address, the ordinance in that situation, i thght you said, is operating to punish the act of not gng to the shelter -- ms. corkran: yes. justice jackson: -- as opposed to punishing the status of being

homeless. ms. corkran: yes, that's -- that's the exact reason that reasonable time, place, manner restrictio an't a problem because if you have time, manner -- time, place, and manner stctions what you're doing is punishing the conduct of t going to sleep where you're allowed to go. that rationale doesn't work when mee has nowhere to go. justice jackson:ndan you speak to whether or not we should really be even gettin into this in light of the new oregon law? ms. corkran: so we didn't argue mootness. we made this point in our brief in opposition. we didn't say mootness jt because we don't have an injunction under the oregon law yet and it's not self-executing. i don't thk ere is any question that the ordinances fall under t ogon law. i mean, it was intended to codify martin. it requires that any sort of reriions on sleeping or reing outside are reasonable with respect to homeless individuals. clearly the ordinances here

don't meet that standard. so i certainly wouldn't have any concerns with the court saying as a matter of constitutional avoidance, it appears this oregon law resolves this whole issue , u know, we're dismissing as improvidently granted or however the court nted to resolve the case. justice jackson: thank you. jusotomayor: so the plaintiff -- i'm sorry. the plaintiff who died here had usher provisional stay credits at the time of class certification, so she no longer had a shelter that was willing to take her. i think the hard hypothetical that justice alito wasosing and in part justice gorsuch is the person who os dog. ms. corkran: yeah. justice sotomayor: or let's say a mentally ill person. do you he e same response as the government? ms. corkran: so i would like to live in a world where separating someone from their pet is cruel. but it's outside the scope of our claim because we are just talking about physical and legal access to shelter. sof meone turns down a

elter offer that's physically and legally available because of their dog, they would not be within the scope of our claim. to get to e ntal health hypothetical, if a -- if the person's mental health issues made the shelter either ysally unavailable to them because if they went there, th would be at substantial risk of bodily harm orea, then i would say the shelter isn't physically available. you could also have a shelter that won't takeeoe with mental health problems, in which case it wouldn't be legally available to them. i would say thatf e shelter is physically d gally available, then they're outside the scope of their -- our claim but they might have ada claims or somotr law that applies that would restrict the city's abily punish them for not going to that place but that's outside our case. ief justice roberts: thankou. you, counsel. u go from having a fixed regular address to not havin one? ms. corkran: yes. chief justice roberts: can you go from not having oneving one? ms. corkran: yes. people -- chief justice roberts: thank you. ice thomas? justice thomas: in robinson, a narcotics officer testified that based on his experience, the marks on the defendant's arm

suesd that he was an addict. ms. corkran: yes. ste thomas: do we have anything like that where an expert testifies that these pele -- that the individuals here are homeless? mscorkran: so here the legal burden was on the plaintiffs to show that they were mess. the lower courts found that their declaratio a depositions satisfied that. justice thomas: well, what i'm interested in is the status. you say that this is the equivalent of robinson. and i'm trying to determine where the status of homelessness was determined andowt plays a role in this case. ms. corkran: so it was determined based on the declaratnsnd depositions of the punitive class members and named aintiffs. it also, you know, we talked a ttle about the ratio between beds to population. the ninth circuit ended up rejecting that as a hard and fast rule, but the lack of shelter beds in grants pass

provides credibility to the putive class members' declarations when they say they have nowhere to go i'd also say i don't understand the city to have ever contested that the named plaintiffs are homeless. whathecontested is whether they had access -- ste thomas: i think what's cousing me is that when i read the ordinance, the ordinance is an anti-camping ordinanc would a backpacker who happens to be in the area for a few days be allowed to campn on public property? ms. cora i think theoretically no but i would say that the city has never -- it s t able to identify any circumstance in which it had applied -- justice thomas: i understand that. it would apply to a backpacker? ms. corkran: sitould depend on the circumstances. the line that the police officers drew in their depositions was that if they saw a non-homeless person lying on a

blanket, they wouldn't enforce the ordinance. juste omas: no, i'm saying 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 divide or something. ms. corkran: so i caimine -- i'm putting myself in the place of the officers who were deposed. ifou gave them that hypothetical -- they might say no, that person isn't setting up a temporary place to live; they're just traveling through town. that particular hypothetical didn't come up, but we do -- justice om: so that would not violate the anti-camping dinance? ms. corkran: i don't know. i mean, ybe this gets to the vagueness of the -- of the provisions, but -- chf justice roberts: justice alito? justice sotomayor? justice kagan? justice kavanaugh? justice kavanaugh: i think one is that this is not good policyt for the homeless, and good policy would help homeless individuals transition, get mental healttrtment, get substance abuse treatment, job assistance, and that this don't fulfill those objectives.

and maybe you' n saying that, but i'm curious whether you think iss good policy in terms of incentivizing, or bad? you must think it's bad, and i'm cuouwhy. mscorkran: yeah, i don't think we've made that argumt. it certainly came across the amici briefs. st on the incentivizing, i think, is a non sequitur because the only questiohe is whether it violates the eighth amendment tonfce the ordinanceshesomeone has no access to shelter, when they're turning down the services. so that's a circumstan 're looking at. maybe -- i think what your honor's quesonets at is our discussion of no penological purpose. this court has recognized that when a punishment scheme has no penological purpose, it inflict gratuitous sufferinganthat is cruel and unusual punishment. and i will say, at this point,

the tyas not ever identified any penological purpose for punishing homeless people who do t have access to shelter. if you ask that questionevy time they pivot to encampments and fires and sanitation problems, which are l non-sequiturs. as i've said a number of times, this case is only about sleeping outside when there's no shelter available. and so i think that lack of penological purpose is signifan justice kavanaugh: well, we've heard about how it's re difficult to have an effective hole policy, given the rule that's been in effect in e ninth circuit over the last several years. ms. corkran: i think that's -- justice kavanaugh: how are we supposed to -- ms. corkran: -- that's at wrong. i'll go back to my opening. i gave the whole list of the things that the tys allowed to do under the ordinance and under ouclm. the only thing that they cannot do is impose a 24/7 sleeping ban that makes it impossible for homeless people to stay in the riiction. i'd also note, you know, they have a lot of amicus briefs on their side from local governments. almost the entirety of what those amicus briefar complaining about isn't at issue in this case. so when you have injunctions against caments, that's under the fourth amendment. we don't have a fourth amendment clm. a lot of the injunctions are under the fourteenth amendment, inuding the san rafael one

that the city identifies iit reply brief. i think it's maable that when the city was trying to identify the besexple it could come up with for its reply brief, it chose one involving a different constitutional claim. juice kavanaugh: thank you. chief justice roberts: justice barrt? justice barrett: no. chief justice roberts: justice jackson? jujackson: can a person go from being addicted to drugs not being addicted to drugs? . coran: so i think under common -- as we think about it in terms of modern medicine, the answer is no. but the robinsonou certainly thought that was the case, right? sixty yearag we didn't have the same understanding of addictn. justice jackson: so your view of binson is that it doesn't really matter, the permaney the condition; it's still a status? ms. corkran: right. the robinson court did not think that the permanency mattered, because it thought that adction was a status that could change. ice jackson: thank you. chief justice roberts: thank you, cou rebuttal? ms. evangelis: thank you. this case is worlds away from robinson. the eighth amendment does not answer any of estions that

we've been discussing today, and that is reason not to extend robinson. all se questions are unanswerable. t, i'd like to start with the united states' position. that would also bring chaos. it would be a disaster if martin any form.emain on the okin it does not makeference if the inquiry is pre-enforcement or post-enent. all the same questions come up about whether the person's coucis involuntary, what their choices are, how they are there, whether the shelter that's available is adequate, where it is, what rules h, all of that. and i'd like to clarify how all of this works in practice because it wlde impossible for peoplee ground to understand and predict what a courd say about the shelters that are available and thalrnatives that are available and the choices that were made, and the difficulty of all that. the grants pass' policy -- i'll

direct the court tpa 155 of the joint append. therays, officers are required to give a 24-hour notice before issuing a tion. so i want to just focus onha for a moment. how will the officer know, when -- when she or he comeba, whether the individual has another place to go? there's no way to know the answer to that. so they would have to take their word for it, perhaps. so it would lead to all of those meroble and it is hyperbole -- the other side talks abou banishment and all of that. grants pass for years.emained in there's nothing li tt going on here. they talk ouan isolated statement from a community meing that was a three-hour meeting. there are pages of minutes. it's one sentence. what that full context shows is a wide-ranging discussion abt all of these difficult policy oblems and how the city was accept shelter and dealing with

a small group that w csing serious problems and crime in the city. and they're trying to balance those who wouldn't ke the help with the city's needs to keep their public spaces open. when the ninth circuit constitutionalized this area, it left cities with really no choice, either keep building enough shelter that may or may not be adequate or stae to someone's preferences, or be forced to give ualof your public spaces. that is what's ppened. we've seen a suspension of enforcement of these basic laws that are so important. e ne-drawing problems are never-ending. that is exactly why po justice gorsuch, to your point about powell and the plurality there said thaife embark on this journey and we start constitutionalizing laws that ess conduct, the

line-drawing problemwi be endless. and so that is a reason not to extend robinson here. so i just want to make, again, our basic eighth amendment point here, which is that these are low-level fines and very short jail termsepeat offenders that aren fect in many other jurisdictions. this is not unusual in any it is certainly not cruel. and we can just point to our appendix in our reat goes through jurisdictions from west hollywood, calora to watertow msachusetts, that have the same type of policies. so the policy questis this case are very difficult. and i think th's what has come across today. the eighthmement question, though, is not. here theunhments are the sorts of punishments that have been held to be permissible for

-- since the founding and really arin use today. they're not in any way unusual. so we heard a lot of things about guessing how this would work in practice, but it sounds toe like courts would need to have some sort of rules so that they could tell a riiction like chico that the place it set aside for camping was adequate, when the fer court said no, it wasn't, because it's outdoors, or a san clemente that wathreatened with lawsuits because it didn't provide cell phone chargers in the area that it designated for camping, or san rafael, where the court said that 200 ft tween encampments -- between tents was tomu and that 100 feet was the maximum under the eighth amendment.

so for all of those reasons, the court should reverse