Gloria Johnson v. City of Grants Pass

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GLORIA JOHNSON; JOHN LOGAN, Nos. 20-35752
individuals, on behalf of themselves 20-35881
and all others similarly situated,
D.C. No. 1:18-
Plaintiffs-Appellees, cv-01823-CL

v.
ORDER AND
CITY OF GRANTS PASS, AMENDED
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Mark D. Clarke, Magistrate Judge, Presiding

Argued and Submitted December 6, 2021
San Francisco, California

Filed September 28, 2022
Amended July 5, 2023

Before: Ronald M. Gould and Daniel P. Collins, Circuit
Judges, and Roslyn O. Silver, * District Judge.

*
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
2 JOHNSON V. CITY OF GRANTS PASS

Order;
Opinion By Judge Silver;
Dissent by Judge Collins;
Statement by Judges Silver and Gould;
Statement by Judge O’Scannlain;
Statement by Judge Graber;
Dissent by Judge M. Smith;
Dissent by Judge Collins;
Dissent by Judge Bress

SUMMARY **

Civil Rights / Homelessness

The panel issued an order amending the opinion and
dissent filed September 28, 2002, and reported at 50 F.4th
787; filed an amended opinion and dissent concurrently with
its order; and denied a petition for rehearing en banc after a
request for a vote on whether to rehear the matter en banc,
and the matter failed to receive a majority of the votes of the
nonrecused active judges in favor of en banc consideration,
in an action challenging City of Grants Pass ordinances
which, among other things, preclude homeless persons from
using a blanket, pillow, or cardboard box for protection from
the elements while sleeping within City limits.
In the amended opinion, the panel affirmed in part and
vacated in part the district court’s summary judgment and

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 JOHNSON V. CITY OF GRANTS PASS 3

permanent injunction in favor of plaintiffs; affirmed
certification pursuant to Fed. R. Civ. P. 23(b)(2), of a class
of “involuntary homeless” persons; and remanded.
The five municipal ordinances, described as an “anti-
sleeping” ordinance, two “anti-camping” ordinances, a
“park exclusion” ordinance, and a “park exclusion appeals”
ordinance, result in civil fines up to several hundred dollars
per violation. Persons found to violate ordinances multiple
times could be barred from all City property. If a homeless
person is found on City property after receiving an exclusion
order, they are subject to criminal prosecution for trespass.
The panel stated that this court’s decision in Martin v.
City of Boise, 902 F.3d 1031 (9th Cir. 2018), which held that
“the Eighth Amendment prohibits the imposition of criminal
penalties for sitting, sleeping, or lying outside on public
property for homeless individuals who cannot obtain
shelter” served as the backdrop for this entire
litigation. Pursuant to Martin, it is an Eight Amendment
violation to criminally punish involuntarily homeless
persons for sleeping in public if there are no other public
areas or appropriate shelters where those individuals can
sleep.
The panel first rejected the City’s argument that the
district court lacked jurisdiction because plaintiffs’ claims
were moot or because plaintiffs failed to identify any relief
that was within a federal court’s power to redress. The panel
held that there was abundant evidence in the record
establishing that homeless persons were injured by the City’s
enforcement actions in the past and it was undisputed that
enforcements have continued. The panel further held that the
relief sought by plaintiffs, enjoining enforcement of a few
municipal ordinances aimed at involuntary homeless
4 JOHNSON V. CITY OF GRANTS PASS

persons, was redressable within the limits of Article III. The
death of class representative Debra Blake while the matter
was on appeal did not moot the class’s claims as to all
challenged ordinances except possibly the anti-sleeping
ordinance. The panel vacated the summary judgment as to
that ordinance and remanded to allow the district court the
opportunity to substitute a class representative in Blake’s
stead. The remaining class representatives had standing to
challenge the park exclusion, criminal trespass and anti-
camping ordinances.
The panel held that, based on the record in this case, the
district court did not err by finding plaintiffs satisfied the
requirements of Fed. R. Civ. P. 23(a) such that a class could
be certified under Rule 23(b)(2). Although the City
appeared to suggest that Martin’s need for an individualized
inquiry of each alleged involuntary homeless person’s
access to shelter defeated numerosity, commonality and
typicality, the panel held that nothing in Martin precluded
class actions. The panel held that the district court did not
abuse its discretion in concluding the numerosity
requirement was met; that plaintiffs’ claims presented at
least one question and answer common to the class; and that
the class representatives’ claims and defenses were typical
of the class in that they were homeless persons who claimed
that the City could not enforce the challenged ordinances
against them when they have no shelter.
Addressing the merits, the panel affirmed the district
court’s ruling that the City of Grants Pass could not,
consistent with the Eighth Amendment, enforce its anti-
camping ordinances against homeless persons for the mere
act of sleeping outside with rudimentary protection from the
elements, or for sleeping in their car at night, when there was
no other place in the City for them to go. The panel held that
 JOHNSON V. CITY OF GRANTS PASS 5

Martin applied to civil citations where, as here, the civil and
criminal punishments were closely intertwined.
There was no need to resolve whether the fines imposed
under the anti-sleeping and anti-camping ordinances
violated the Eighth Amendment’s prohibition on excessive
fines because the permanent injunction would result in no
class member being fined for engaging in such protected
activity. Finally, the panel held that it was unnecessary to
decide whether plaintiffs properly pled their procedural due
process challenge to the park exclusion appeals ordinance
because subsequent to the district court’s order, the City
amended the ordinance.
The panel directed the district court on remand to narrow
its injunction to enjoin only those portions of the anti-
camping ordinances that prohibited conduct protected by
Martin and this opinion. In particular, the district court
should narrow its injunction to the anti-camping ordinances
and enjoin enforcement of those ordinances only against
involuntarily homeless persons for engaging in conduct
necessary to protect themselves from the elements when
there was no shelter space available.
Dissenting, Judge Collins stated that Martin seriously
misconstrued the Eighth Amendment and the Supreme
Court’s caselaw construing it, but even assuming that Martin
remains good law, today’s decision—which both misreads
and greatly expands Martin’s holding—is egregiously
wrong. Although the majority’s phrasing pays lip service to
the fact that the persons at issue must be “involuntarily
homeless,” the majority also explicitly rejects the City’s
contention that the holding of Martin can only be applied
after an individualized inquiry of each alleged involuntary
homeless person’s access to shelter. The net result, for class
6 JOHNSON V. CITY OF GRANTS PASS

certification purposes, is that any issue of individualized
involuntariness is set aside and Martin is thereby reduced to
a simplistic formula to be resolved on a classwide basis—
into whether the number of homeless persons in the
jurisdiction exceeds the number of available shelter
beds. The majority’s analysis fails because Martin does not
allow the individualized inquiry into involuntariness to be
set aside in this way. Further, the majority opinion combines
its gross misreading of Martin, which requires an
individualized inquiry, with a flagrant disregard of settled
class-certification principles pertaining to commonality
under Fed. R. Civ. P. 23(a) and the requirements of Fed. R.
Civ. P. 23(b). The end result of this amalgamation of error
is that the majority validates the core aspects of the district
court’s injunction in this case, which effectively requires the
City of Grants Pass to allow all but one of its public parks to
be used as homeless encampments.
In a joint statement regarding the denial of rehearing,
District Judge Silver and Judge Gould wrote that Judge
O’Scannlain’s statement regarding the denial of rehearing
and the dissent from Judge M. Smith significantly
exaggerate the holding in Johnson v. Grants Pass. Grants
Pass, relying on Martin, holds only that governments cannot
criminalize the act of sleeping with the use of rudimentary
protections from the elements in some public places when a
person has nowhere else to sleep. It does not establish an
unrestrained right for involuntarily homeless persons to
sleep anywhere they choose. Nor does it require
jurisdictions to cede all public spaces to involuntarily
homeless persons. Judges Silver and Gould also explained
that class certification was proper, that the commonality
requirement was met, that the majority applied existing
Supreme Court and Ninth Circuit authority to the record
 JOHNSON V. CITY OF GRANTS PASS 7

presented by the parties, and that Judge O’Scannlain greatly
overstated the extent to which Martin and Grants Pass fall
on one side of an existing circuit split.
Respecting the denial of rehearing en banc, Judge
O’Scannlain, joined by Judges Wallace, Callahan, Bea,
Ikuta, Bennett, R. Nelson, Bade, Collins, Lee, Bress, Forrest,
Bumatay, and VanDyke, and with whom Judge M. Smith
joins as to all parts except Part II-A, states that with this
decision, this Circuit’s jurisprudence now effectively
guarantees a personal federal constitutional ‘right’ for
individuals to camp or to sleep on sidewalks and in parks,
playgrounds, and other public places in defiance of
traditional health, safety, and welfare laws—a dubious
holding premised on a fanciful interpretation of the Eighth
Amendment. Judge O’Scannlain writes that the Boise panel
made no effort to ground its decision in the text, history, or
tradition of the Eighth Amendment. Unfortunately, the
problems created by Boise have now been visited upon the
City of Grants Pass by the panel majority here, which has
expanded Boise’s faulty holding to affirm an injunction
effectively requiring the City to resign all but one of its
public parks to be used as homeless encampments. This
Circuit is the first and only federal circuit to have divined
such a strange and sweeping mandate from the Cruel and
Unusual Punishments Clause. The jurisprudence in this case
is egregiously flawed and deeply damaging—at war with
constitutional text, history, tradition, and Supreme Court
precedent. And it conflicts with other circuits on a question
of exceptional importance—paralyzing local communities
from addressing the pressing issue of homelessness, and
seizing policymaking authority that the federal system of
government leaves to the democratic process.
8 JOHNSON V. CITY OF GRANTS PASS

Respecting the denial of rehearing en banc, Judge Graber
agreed with the basic legal premise that the Eighth
Amendment protects against criminal prosecution of the
involuntary act of sleeping but stated that the injunctive
relief in this case goes too far. The extension of Martin to
classwide relief, enjoining civil statutes that may eventually
lead to criminal violations but have never resulted in
criminal convictions for any named plaintiff, is a step too far
from the individualized inquiries inherent both in the Eighth
Amendment context and in the context of injunctive
relief. Even assuming that classwide injunctive relief were
available against a prosecution for criminal trespass, the
Eighth Amendment does not prohibit all civil remedies that
could, in theory, lead to such a prosecution. In this way,
Johnson unjustifiably expands the reach of the Eighth
Amendment.
Dissenting from the denial of rehearing en banc, Judge
M. Smith, joined by Judges Bennett, Bumatay, and
VanDyke, and with whom Judges Ikuta, R. Nelson, Bade,
Collins and Bress join as to Parts I and II, stated that Martin
cannot be squared with the Supreme Court’s Eighth
Amendment precedent; that the amendment to the original
opinion is not accompanied by any downstream changes to
the majority’s application of its rule to the facts or its
ultimate conclusion; and that by wholly collapsing the merits
into the class definition, the majority opinion certifies an
impermissible “fail safe” class. Local governments are
hard-pressed to find any way to regulate the adverse health
and safety effects of homeless encampments without
running afoul of this court’s case law—or, at a minimum,
being saddled with litigation costs. Judge M. Smith states
that Martin, particularly now that it has been supercharged
by Grants Pass, has proven to be a runaway train that has
 JOHNSON V. CITY OF GRANTS PASS 9

derailed and done substantial collateral damage to the
governmental units in which it has been applied and those
living therein. These cases use a misreading of Supreme
Court precedent to require unelected federal judges—often
on the basis of sloppy, mixed preliminary-injunction
records—to act more like homelessness policy czars than as
Article III judges applying a discernible rule of law.
Dissenting from the denial of rehearing en banc, Judge
Collins states that the panel majority’s joint statement
regarding the denial of rehearing confirms and illustrates the
layers of self-contradiction that underlie its opinion in this
case, and that the panel majority is wrong to suggest that a
newly enacted Oregon statute regulating the application of
local ordinances to homeless individuals provides another
reason to not rehear this case en banc.
Dissenting from the denial of rehearing en banc, Judge
Bress, joined by Judges Callahan, M. Smith, Ikuta, Bennett,
R. Nelson, Miller, Bade, Lee, Forrest, Bumatay and
VanDyke, states that with no mooring in the text of the
Constitution, our history and traditions, or the precedent of
the Supreme Court, the court has taken our national founding
document and used it to enact judge-made rules governing
who can sit and sleep where, rules whose ill effects are felt
not merely by the States, and not merely by our cities, but
block by block, building by building, doorway by
doorway. Local leaders—and the people who elect them—
must be allowed the latitude to address on the ground the
distinctly local features of the present crisis of homelessness
and lack of affordable housing. Not every challenge we face
is constitutional in character. Not every problem in our
country has a legal answer that judges can provide. This is
one of those situations.
10 JOHNSON V. CITY OF GRANTS PASS

COUNSEL

Aaron P. Hisel (argued), Capitol Legal Services, Salem,
Oregon; Gerald L. Warren, Law Office of Gerald L. Warren,
Salem, Oregon; Daniel R. Adler, Samuel Eckman, Theane
Evangelis, Patrick J. Fuster, and Bradley J. Hamburger,
Gibson Dunn & Crutcher LLP, Los Angeles, California; for
Defendant-Appellant.

Edward Johnson (argued) and Walter Fonseca, Oregon Law
Center, Portland, Oregon; Elise M. Baranouski and Kelsi B.
Corkran, Georgetown University Law Center Institute for
Constitutional Advocacy and Protection, Washington, D.C.;
Benjamin A. Gifford, Georgetown University, Brooklyn,
New York; for Plaintiffs-Appellees.

Eric S. Tars, National Homelessness Law Center,
Washington, D.C., for Amicus Curiae University of Miami
School of Law Human Rights Clinic, Homelessness Law
Center, and the Shift.

Ruthanne M. Deutsch, Deutsch Hunt PLLC, Washington,
D.C., for Amicus Curiae Fines and Fees Justice Center.

John He, Leslie Bailey, and Brian Hardingham, Public
Justice, Oakland, California; John Thomas H. Do, ACLU
Foundation of Northern California, San Francisco,
California; Kelly K. Simon, ACLU Foundation of Oregon,
Portland, Oregon; William R. Maurer, Institute for Justice,
Seattle, Washington; for Amici Curiae ACLU of Northern
California, ACLU of Southern California, ACLU of Oregon
Institute for Justice, National Center for Law and Economic
Justice, and Rutherford Institute.
 JOHNSON V. CITY OF GRANTS PASS 11

Nicolle Jacoby, Dechert LLP, New York, New York;
Tharuni A. Jayaraman and Eric Auslander, Dechert LLP,
Washington, D.C.; for Amici Curiae National Homelessness
Law Center, The Homeless Rights Advocacy Project at the
Korematsu Center for Law and Equality at Seattle University
School of Law, and the National Coalition for the Homeless.

Jennifer B. Henning, California State Association of
Counties, Sacramento, California, for Amici Curiae
California State Association of Counties and League of
California Cities.

Brandon M. Rain, Assistant City Attorney; Ann Davison,
Seattle City Attorney; Seattle City Attorney’s Office;
Seattle, Washington; for Amicus Curiae City of Seattle.

Eric S. Boorstin, Horvitz & Levy LLP, Burbank, California;
Jeremy B. Rosen, Horvitz & Levy, San Francisco,
California; for Amicus Curiae Los Angeles Area Chamber
of Commerce.

Anit K. Jindal and Hannah K. Hoffman, Markowitz Herbold
PC, Portland, Oregon, for Amici Curiae League of Oregon
Cities, City of Portland, Association of Idaho Cities,
International Municipal Lawyers Association, Special
Districts Association of Oregon, League of Arizona Cities
and Towns, and Washington State Association of Municipal
Attorneys.

Jeffrey C. Briggs, Briggs Law Office, Thousand Oaks,
California, for Amici Curiae LA Alliance for Human Rights,
Historic Core Business Improvement District Property
Owners Association, Central City East Association of Los
12 JOHNSON V. CITY OF GRANTS PASS

Angeles, and Hollywood Media District Property Owners
Association.

ORDER

The Opinion filed September 28, 2022, and reported at
50 F.4th 787, is hereby amended. The amended opinion will
be filed concurrently with this order.
The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc, and the matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35. Judge Watford did not
participate in the deliberations or vote in this case.
Future petitions for rehearing or rehearing en banc will
not be entertained in this case.
The petition for rehearing en banc is DENIED.
 JOHNSON V. CITY OF GRANTS PASS 13

OPINION

SILVER, District Judge:

The City of Grants Pass in southern Oregon has a
population of approximately 38,000. At least fifty, and
perhaps as many as 600, homeless persons live in the City.1
And the number of homeless persons outnumber the
available shelter beds. In other words, homeless persons
have nowhere to shelter and sleep in the City other than on
the streets or in parks. Nonetheless, City ordinances
preclude homeless persons from using a blanket, a pillow, or
a cardboard box for protection from the elements while
sleeping within the City’s limits. The ordinances result in
civil fines up to several hundred dollars per violation and
persons found to violate ordinances multiple times can be
barred from all City property. And if a homeless person is
found on City property after receiving an exclusion order,
they are subject to criminal prosecution for trespass.
In September 2018, a three-judge panel issued Martin v.
City of Boise, 902 F.3d 1031 (9th Cir. 2018), holding “the
Eighth Amendment prohibits the imposition of criminal
penalties for sitting, sleeping, or lying outside on public
property for homeless individuals who cannot obtain
shelter.” Id. at 1048. Approximately six weeks after the
initial Martin panel opinion, three homeless individuals filed
a putative class action complaint against the City arguing a
number of City ordinances were unconstitutional. The
district court certified a class of “involuntarily homeless”

1
During this litigation the parties have used different phrases when
referring to this population. For simplicity, we use “homeless persons”
throughout this opinion.
14 JOHNSON V. CITY OF GRANTS PASS

persons and later granted partial summary judgment in favor
of the class. 2 After the plaintiffs voluntarily dismissed some
claims not resolved at summary judgment, the district court
issued a permanent injunction prohibiting enforcement
against the class members of some City ordinances, at
certain times, in certain places. The City now appeals,
arguing this case is moot, the class should not have been
certified, the claims fail on the merits, and Plaintiffs did not
adequately plead one of their theories. On the material
aspects of this case, the district court was right. 3

2
Persons are involuntarily homeless if they do not “have access to
adequate temporary shelter, whether because they have the means to pay
for it or because it is realistically available to them for free.” See Martin,
920 F.3d at 617 n.8. However, someone who has the financial means to
obtain shelter, or someone who is staying in an emergency shelter is not
involuntarily homeless. See id. at 617 n.8. Contrary to the City’s
argument, this definition of involuntary homelessness is not the same as
the definition of “homeless” found in regulations for the Department of
Housing and Urban Development, 24 C.F.R. § 582.5, or the McKinney-
Vento Act, 42 U.S.C. § 11434a(2), the federal law regarding the right of
homeless children to a public education. For example, the McKinney-
Vento Act includes as “homeless children and youths” persons who may
not qualify as involuntarily homeless under Martin, such as children and
youths “living in emergency or transitional shelters.” 42 U.S.C. §
11434a(2). Though the district court noted in part that Plaintiffs met the
definition of homelessness set forth in 24 C.F.R. § 582.5, the district
court also relied on the specific definition of unsheltered homeless
persons set forth in the Department of Housing and Urban
Development’s regulations regarding point-in-time counts: “persons
who are living in a place not designed or ordinarily used as a regular
sleeping accommodation for humans must be counted as unsheltered
homeless persons.” 24 C.F.R. § 578.7(c)(2)(i).
3
Our dissenting colleague’s strong disagreement with the majority
largely arises from his disapproval of Martin. See, e.g., Dissent 56
(“Even assuming Martin remains good law . . .”); Dissent 90 (“. . . and
the gravity of Martin’s errors.”); Dissent 92 (claiming, without evidence,
 JOHNSON V. CITY OF GRANTS PASS 15

I.
This case involves challenges to five provisions of the
Grants Pass Municipal Code (“GPMC”). The provisions can
be described as an “anti-sleeping” ordinance, two “anti-
camping” ordinances, a “park exclusion” ordinance, and a
“park exclusion appeals” ordinance. When the district court
entered judgment, the various ordinances consisted of the
following.
First, the anti-sleeping ordinance stated, in full

Sleeping on Sidewalks, Streets, Alleys, or
Within Doorways Prohibited
A. No person may sleep on public sidewalks,
streets, or alleyways at any time as a matter
of individual and public safety.
B. No person may sleep in any pedestrian or
vehicular entrance to public or private
property abutting a public sidewalk.
C. In addition to any other remedy provided
by law, any person found in violation of this
section may be immediately removed from
the premises.

GPMC 5.61.020. A violation of this ordinance resulted in a
presumptive $75 fine. If unpaid, that fine escalated to $160.
If a violator pled guilty, the fines could be reduced by a state

that “it is hard to deny that Martin has ‘generate[d] dire practical
consequences”) (modification in original and citation omitted). But
Martin is controlling law in the Ninth Circuit, to which we are required
to adhere.
16 JOHNSON V. CITY OF GRANTS PASS

circuit court judge to $35 for a first offense and $50 for a
second offense. GPMC 1.36.010(K).
Next, the general anti-camping ordinance prohibited
persons from occupying a “campsite” on all public property,
such as parks, benches, or rights of way. GPMC 5.61.030.
The term “campsite” was defined as

any place where bedding, sleeping bag, or
other material used for bedding purposes, or
any stove or fire is placed, established, or
maintained for the purpose of maintaining a
temporary place to live, whether or not such
place incorporates the use of any tent, lean-
to, shack, or any other structure, or any
vehicle or part thereof.

GPMC 5.61.010. A second overlapping anti-camping
ordinance prohibited camping in public parks, including
“[o]vernight parking” of any vehicle. GPMC 6.46.090. A
homeless individual would violate this parking prohibition if
she parked or left “a vehicle parked for two consecutive
hours [in a City park] . . . between the hours of midnight and
6:00 a.m.” Id. Violations of either anti-camping ordinance
resulted in a fine of $295. If unpaid, the fine escalated to
$537.60. However, if a violator pled guilty, the fine could
be reduced to $180 for a first offense and $225 for a second
offense. GPMC 1.36.010(J).
Finally, the “park exclusion” ordinance allowed a police
officer to bar an individual from all city parks for 30 days if,
within one year, the individual was issued two or more
citations for violating park regulations. GPMC 6.46.350(A).
Pursuant to the “park exclusion appeals” ordinance,
exclusion orders could be appealed to the City Council.
 JOHNSON V. CITY OF GRANTS PASS 17

GPMC 6.46.355. If an individual received a “park
exclusion” order, but subsequently was found in a city park,
that individual would be prosecuted for criminal trespass.
Since at least 2013, City leaders have viewed homeless
persons as cause for substantial concern. That year the City
Council convened a Community Roundtable (“Roundtable”)
“to identify solutions to current vagrancy problems.”
Participants discussed the possibility of “driving repeat
offenders out of town and leaving them there.” The City’s
Public Safety Director noted police officers had bought
homeless persons bus tickets out of town, only to have the
person returned to the City from the location where they
were sent. A city councilor made clear the City’s goal
should be “to make it uncomfortable enough for [homeless
persons] in our city so they will want to move on down the
road.” The planned actions resulting from the Roundtable
included increased enforcement of City ordinances,
including the anti-camping ordinances.
The year following the Roundtable saw a significant
increase in enforcement of the City’s anti-sleeping and anti-
camping ordinances. From 2013 through 2018, the City
issued a steady stream of tickets under the ordinances. 4 On
September 4, 2018, a three-judge panel issued its opinion in

4
The City issued the following number of tickets under the anti-sleeping
and anti-camping ordinances:
2013: 74 total tickets
2014: 228 total tickets
2015: 80 total tickets
2016: 47 total tickets
2017: 99 total tickets
2018: 46 total tickets
18 JOHNSON V. CITY OF GRANTS PASS

Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018). 5 That
case served as the backdrop for this entire litigation.
In Martin, six homeless or recently homeless individuals
sued the city of Boise, Idaho, seeking relief from criminal
prosecution under two city ordinances related to public
camping. Martin, 920 F.3d at 603-04. As relevant here,
Martin held the Cruel and Unusual Punishment Clause of the
“Eighth Amendment prohibits the imposition of criminal
penalties for sitting, sleeping, or lying outside on public
property for homeless individuals who cannot obtain
shelter.” Id. at 616. Martin made clear, however, that a city
is not required to “provide sufficient shelter for the
homeless, or allow anyone who wishes to sit, lie, or sleep on
the streets . . . at any time and at any place.” Id. at 617
(quoting Jones v. City of Los Angeles, 444 F.3d 1118, 1138
(9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007))
(omission in original).

5
Following the opinion, the City of Boise petitioned for rehearing en
banc. On April 1, 2019, an amended panel opinion was issued and the
petition for rehearing was denied. Judge M. Smith, joined by five other
judges, dissented from the denial of rehearing en banc. He argued the
three-judge panel had, among other errors, misinterpreted the Supreme
Court precedents regarding the criminalization of involuntary conduct.
Martin, 920 F.3d at 591-92 (M. Smith, J., dissenting from denial of
rehearing en banc). Judge Bennett, joined by four judges, also dissented
from the denial of rehearing en banc. Judge Bennett argued the three-
judge panel’s opinion was inconsistent with the original public meaning
of the Cruel and Unusual Punishment Clause. Id. at 599 (Bennett, J.,
dissenting from denial of rehearing en banc). The merits of those
dissents do not alter the binding nature of the amended Martin panel
opinion. Unless otherwise indicated, all citations to Martin throughout
the remainder of this opinion are to the amended panel opinion.
 JOHNSON V. CITY OF GRANTS PASS 19

Pursuant to Martin, it is an Eighth Amendment violation
to criminally punish involuntarily homeless persons for
sleeping in public if there are no other public areas or
appropriate shelters where those individuals can sleep. Id.
at 617 n.8 (“Naturally, our holding does not cover
individuals who do have access to adequate temporary
shelter, whether because they have the means to pay for it or
because it is realistically available to them for free, but who
choose not to use it.”). When assessing the number of shelter
spaces, Martin held shelters with a “mandatory religious
focus” could not be counted as available due to potential
violations of the First Amendment’s Establishment Clause.
Id. at 609-10 (citing Inouye v. Kemna, 504 F.3d 705, 712-13
(9th Cir. 2007)).
In October 2018, approximately six weeks after the
Martin opinion, Debra Blake filed her putative class action
complaint against the City. The complaint alleged
enforcement of the City’s anti-sleeping and anti-camping
ordinances violated the Cruel and Unusual Punishment
Clause of the Eighth Amendment, the Equal Protection
Clause of the Fourteenth Amendment, and the Due Process
Clause of the Fourteenth Amendment. The complaint was
amended to include additional named plaintiffs and to allege
a claim that the fines imposed under the ordinances violated
the Excessive Fines Clause of the Eighth Amendment. On
January 2, 2019, a few months after the initial complaint was
filed, and before Plaintiffs filed their class certification
motion, the City amended its anti-camping ordinance in an
attempt to come into compliance with Martin. Prior to this
change, the anti-camping ordinance was worded such that
“‘sleeping’ in parks . . . automatically constitut[ed]
‘camping.’” According to the City, “in direct response to
Martin v. Boise, the City amended [the anti-camping
20 JOHNSON V. CITY OF GRANTS PASS

ordinance] to make it clear that the act of ‘sleeping’ was to
be distinguished from the prohibited conduct of ‘camping.’”
The City meant to “make it clear that those without shelter
could engage in the involuntary acts of sleeping or resting in
the City’s parks.” Shortly after the City removed “sleeping”
from the “camping” definition, Plaintiffs moved to certify a
class. Plaintiffs requested certification of a class defined as

All involuntarily homeless individuals living
in Grants Pass, Oregon, including homeless
individuals who sometimes sleep outside city
limits to avoid harassment and punishment
by [the City] as addressed in this lawsuit.

Plaintiffs’ class certification motion was accompanied by a
declaration from the Chief Operating Officer and Director of
Housing and Homeless Services for United Community
Action Network (“UCAN”), a non-profit organization that
serves homeless people in Josephine County, the county
where the City is located. 6 UCAN had recently conducted a
“point-in-time count of homeless individuals in Josephine
County.” 7 Based on that count, the Chief Operating

6
The Department of Housing and Urban Development regulations
impose obligations on the “continuum of care,” which is defined as “the
group composed of representatives of relevant organizations . . . that are
organized to plan for and provide, as necessary, a system of outreach,
engagement, and assessment . . . to address the various needs of homeless
persons and persons at risk of homelessness for a specific geographic
area.” 24 C.F.R. § 576.2.
7
As the “continuum of care” in the City, UCAN was required to conduct
point-in-time counts (“PIT counts”) of homeless persons within that
geographic area. 24 C.F.R. § 578.7(c)(2). PIT counts measure the
number of sheltered and unsheltered homeless individuals on a single
night. 24 C.F.R. § 578.7(c)(2). The Martin court relied on PIT counts
 JOHNSON V. CITY OF GRANTS PASS 21

Officer’s declaration stated “[h]undreds of [homeless]
people live in Grants Pass,” and “almost all of the homeless
people in Grants Pass are involuntarily homeless. There is
simply no place in Grants Pass for them to find affordable
housing or shelter. They are not choosing to live on the street
or in the woods.”
The City opposed class certification, arguing Plaintiffs
had not provided sufficient evidence to meet any of the
requirements for certifying a class. The district court
disagreed and certified the class proposed by Plaintiffs. The
parties proceeded with discovery and filed cross-motions for
summary judgment.
At the time the parties filed their summary judgment
motions, there were only four locations in the City that
temporarily housed homeless persons, which proved
inadequate. One location was run by the Gospel Rescue
Mission, an explicitly religious organization devoted to
helping the poor. The Gospel Rescue Mission operated a
facility for single men without children, and another facility
for women, including women with children. These two
facilities required residents to work at the mission six hours
a day, six days a week in exchange for a bunk for 30 days.
Residents were required to attend an approved place of
worship each Sunday and that place of worship had to
espouse “traditional Christian teachings such as the Apostles
Creed.” Disabled persons with chronic medical or mental

conducted by local non-profits to determine the number of homeless
people in the jurisdiction. See Martin, 920 F.3d at 604. Courts and
experts note that PIT counts routinely undercount homeless persons, but
they appear to be the best available source of data on homelessness. See,
e.g., id.
22 JOHNSON V. CITY OF GRANTS PASS

health issues that prevented them from complying with the
Mission’s rules were prohibited. 8
In addition to the Gospel Rescue Mission, the City itself
operated a “sobering center” where law enforcement could
transport intoxicated or impaired persons. That facility
consisted of twelve locked rooms with toilets where
intoxicated individuals could sober up. The rooms did not
have beds. The City also provided financial support to the
Hearts with a Mission Youth Shelter, an 18-bed facility
where unaccompanied minors aged 10 to 17 could stay for
up to 72 hours, and could stay even longer if they had
parental consent.
Finally, on nights when the temperature was below 30
degrees (or below 32 degrees with snow), UCAN operated a
“warming center” capable of holding up to 40 individuals.
That center did not provide beds. The center reached
capacity on every night it operated except the first night it
opened, February 3, 2020. Between February 3 and March
19, 2020, the warming center was open for 16 nights. The
center did not open at all during the winter of 2020-2021.
Presented with evidence of the number of homeless
persons and the shelter spaces available, the district court
concluded “[t]he record is undisputed that Grants Pass has
far more homeless individuals than it has practically
available shelter beds.” The court then held that, based on
the unavailability of shelter beds, the City’s enforcement of
its anti-camping and anti-sleeping ordinances violated the

8
Multiple class members submitted uncontested declarations to the
district court stating they did not stay at the Gospel Rescue Mission
because they suffer from disqualifying disabilities and/or were unwilling
to attend church.
 JOHNSON V. CITY OF GRANTS PASS 23

Cruel and Unusual Punishment Clause. The fact that Martin
involved criminal violations while the present case involved
initial civil violations that matured into criminal violations
made “no difference for Eight Amendment purposes.” Next,
the court held the system of fines violated the Eighth
Amendment’s Excessive Fines Clause. 9 Finally, the court
held the appeals process for park exclusions violated
procedural due process under the Due Process Clause of the
Fourteenth Amendment.
In reaching its decision the district court was careful to
point out that, consistent with Martin, the scope of its
decision was limited. The court’s order made clear that the
City was not required to provide shelter for homeless
persons and the City could still limit camping or sleeping at
certain times and in certain places. The district court also
noted the City may still “ban the use of tents in public parks,”
“limi[t] the amount of bedding type materials allowed per
individual,” and pursue other options “to prevent the

9
Part of the City’s argument on this issue was that the fines are not
mandatory because state court judges retain discretion not to impose
fines. This is inconsistent with the text of the ordinances and not
supported by the record. The provision of the municipal code defining
penalties for ordinance violations clarifies that the fines are mandatory.
It provides, the fines “shall be $295” and “shall be $75.” GPMC
1.36.010(J)-(K) (emphasis added). Conversely, it is only discretionary
to reduce fines because the relevant ordinance provides that, “[u]pon a
plea of guilty . . . the penalty may be reduced” to the amount listed for a
first or second offense. Id. (emphasis added). After a second citation,
there is no authority within the municipal code that permits judges to
reduce fines, and there is no evidence in the record demonstrating circuit
court judges have reduced fines except pursuant to GPMC 1.36.010.
24 JOHNSON V. CITY OF GRANTS PASS

erection of encampments that cause public health and safety
concerns.” 10
Approximately one month after the summary judgment
order, the district court issued a judgment which included a
permanent injunction that provided a complicated mix of
relief. First, the district court declared the ordinance
regarding the appeals of park exclusions failed to provide
“adequate procedural due process,” but that ordinance was
not permanently enjoined. Instead, the district court
enjoined only the enforcement of the underlying park
exclusion ordinance. Next, the district court declared
enforcement of the anti-sleeping and anti-camping
ordinances against class members “violates the Eighth
Amendment prohibition against cruel and unusual
punishment” and “violates the Eighth Amendment
prohibition against excessive fines.” Without explanation,
however, the district court did not enjoin those ordinances in
their entirety. Rather, the district court entered no injunctive
relief regarding the anti-sleeping ordinance. But the district
court permanently enjoined enforcement of the anti-camping
ordinances, as well as an ordinance regarding “criminal
trespassing on city property related to parks,” in all City
parks at night except for one park where the parties agreed
the injunction need not apply. 11 The district court also
permanently enjoined enforcement of the anti-camping
ordinances during daytime hours unless an initial warning
was given “at least 24 hours before enforcement.”

10
The district court denied summary judgment on other claims brought
by Plaintiffs. Those claims were subsequently voluntarily dismissed.
11
The City ordinance regarding “criminal trespass” was never at issue in
the litigation until the permanent injunction. Plaintiffs explain it was
included in the injunction “[b]y agreement of the parties.”
 JOHNSON V. CITY OF GRANTS PASS 25

Accordingly, under the permanent injunction, the anti-
camping ordinances may be enforced under some
circumstances during the day, but never at night.
The City appealed and sought initial en banc review to
clarify the scope of Martin. The petition for initial hearing
en banc was denied.
II.
The core issue involving enforcement of the anti-
camping ordinances is governed in large part by Martin.
While there are some differences between Martin and the
present case, the City has not identified a persuasive way to
differentiate its anti-camping ordinances from the
questioned ordinances in Martin. Therefore, the district
court’s ruling that the Cruel and Unusual Punishment Clause
bars enforcement of the anti-camping ordinances will be
mostly affirmed. We need not address the potential
excessiveness of the fines issue or whether Plaintiffs
adequately pled their due process challenge.
Our analysis proceeds in five parts. First, we reject the
City’s argument that the district court lacked jurisdiction.12
Second, we find no abuse of discretion in the district court’s
certification of a class of involuntarily homeless persons.
Third, we agree with the district court that at least portions
of the anti-camping ordinance violate the Cruel and Unusual
Punishment clause under Martin. Fourth, we conclude there
is no need to resolve whether the fines violate the Excessive

12
However, we vacate summary judgment and remand as to the anti-
sleeping ordinance to afford the district court the opportunity to
substitute a class representative in place of Debra Blake, who passed
away while this matter was on appeal.
26 JOHNSON V. CITY OF GRANTS PASS

Fines clause. Fifth, we hold it is unnecessary to decide
Plaintiffs’ procedural due process claim.
A.
Standing and mootness are questions of law that we
review de novo. Hartman v. Summers, 120 F.3d 157, 159
(9th Cir. 1997); Foster v. Carson, 347 F.3d 742, 745 (9th
Cir. 2003). “Federal courts must determine that they have
jurisdiction before proceeding to the merits,” and plaintiffs
must demonstrate standing as a necessary component of
jurisdiction. Lance v. Coffman, 549 U.S. 437, 439 (2007).
To have Article III standing, a plaintiff must show (1) a
concrete and particularized injury, (2) caused by the
challenged conduct, (3) that is likely redressable by a
favorable judicial decision. Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000). For purposes of injunctive relief, “[a]bstract injury
is not enough”—the plaintiff must have sustained or be in
immediate danger “of sustaining some direct injury as the
result of the challenged” law. O’Shea v. Littleton, 414 U.S.
488, 494 (1974) (quotation marks and citation omitted).
The City’s appellate briefing makes two standing
arguments. First, the City argues Plaintiffs’ claims are now
moot because Plaintiffs no longer face a risk of injury based
on the City’s changed behavior after Martin. Second, the
City argues Plaintiffs have not identified any relief that is
within a federal court’s power to redress. Both arguments
are without merit.
A claim becomes moot, and no longer justiciable in
federal court, if it has been remedied independent of the
court. See Genesis Healthcare Corp. v. Symczyk, 569 U.S.
66, 72 (2013). There is abundant evidence in the record
establishing homeless persons were injured by the City’s
 JOHNSON V. CITY OF GRANTS PASS 27

enforcement actions in the past. The City argues, however,
that it made changes after Martin such that there is no longer
a threat of future injury. The problem for the City is that
voluntary cessation of challenged practices rarely suffices to
moot a case and, in any event, there is evidence the
challenged practices have continued after Martin.
“It is well settled that ‘a defendant’s voluntary cessation
of a challenged practice does not deprive a federal court of
its power to determine the legality of the practice.’” Friends
of the Earth, 528 U.S. at 189 (quoting City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). This is so
“because a dismissal for mootness would permit a
resumption of the challenged conduct as soon as the case is
dismissed.” Knox v. Serv. Emps. Int’l Union, Local 1000,
567 U.S. 298, 307 (2012). Thus, the City “bears the
formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be
expected to recur.” Friends of the Earth, 528 U.S. at 190.
Instead of the City making it “absolutely clear” it has
stopped enforcement activities, the record shows ongoing
enforcement.
The parties diverge substantially on how to characterize
the degree of enforcement after Martin was issued in
September 2018. The City argued in its briefing and at oral
argument that it has largely complied with Martin, noting the
2019 amendment to an anti-camping ordinance, that
citations were issued “sparingly” in 2019, and in particular
it says it issued only two citations during the late evening
and early morning since Martin. The City supports its
petition with a declaration from a City police officer stating
“[i]t is the regular practice of every officer I know of on this
department to enforce these Ordinances sparingly and in
recognition of the different circumstances we encounter.”
28 JOHNSON V. CITY OF GRANTS PASS

As for Plaintiffs, they offered evidence showing
enforcement continued after Martin such that class members
received citations and exclusion orders for camping or
sleeping and were prosecuted for criminal trespass between
the point the lawsuit was filed and the close of discovery.
Although the record does show the rate of enforcement
of the various ordinances decreased since Martin, even
accepting the City’s position the evidence is undisputed that
enforcement continued. 13 It is plainly inaccurate for the City
to claim all enforcement ceased. The ongoing enforcement
activities establish the City did not meet its “formidable
burden” of showing the challenged activities will not recur.
Friends of the Earth, 528 U.S. at 190. The City’s mootness
argument fails. 14

13
The City also argues “there was no evidence that anyone was ever cited
for the simple act of sleeping in a City park” after Martin. But the
citation issued to Dolores Nevin in late December 2019 pursuant to the
City’s “criminal trespass” ordinance included a narrative explaining,
“[d]uring an area check of Riverside Park, Dolores Nevin was found
sleeping during closed hours. Nevin, who has been warned in the past,
was issued a citation for Trespass on City Property.” (emphasis added).
And on September 11, 2019, Grants Pass Police Officer Jason McGinnis
issued citations to Debra Blake and Carla Thomas for being in Riverside
Park at approximately 7:30 a.m. with sleeping bags and belongings
spread around themselves. The citation given to Debra Blake, a named
plaintiff, identified the offense as “Criminal Trespass on City Property.”
Debra Blake was later convicted of that offense and fined. Other
individuals cited for camping in a city park in 2019 include class
members: Gail Laine, William Stroh, Dawn Schmidt, Cristina Trejo,
Kellie Parker, Colleen Bannon, Amanda Sirnio, and Michael and Louana
Ellis.
14
Mootness was also considered during the Martin litigation. See Bell
v. City of Boise, 709 F.3d 890, 898, 900-01 (9th Cir. 2013). The City of
Boise argued that a combination of an amended definition of “camping”
 JOHNSON V. CITY OF GRANTS PASS 29

The City’s other jurisdictional argument is that
Plaintiffs’ claims are not redressable. According to the City,
any possible relief intrudes inappropriately upon matters of
policy best left to executive and legislative discretion. We
disagree. Consistent with Martin, the district court granted
limited relief enjoining enforcement of a few municipal
ordinances at certain times, in certain places, against certain
persons. None of the cases cited by the City credibly support
its argument that the district court injunction overstepped the
judiciary’s limited authority under the Constitution.
Contrary to the City’s position, enjoining enforcement of a
few municipal ordinances aimed at involuntarily homeless
persons cannot credibly be compared to an injunction
seeking to require the federal government to “phase out
fossil fuel emissions and draw down excess atmospheric
CO2.” Juliana v. United States, 947 F.3d 1159, 1164-65
(9th Cir. 2020). The relief sought by Plaintiffs was
redressable within the limits of Article III. See Renee v.
Duncan, 686 F.3d 1002, 1013 (9th Cir. 2012) (holding a
plaintiff’s burden to demonstrate redressability is “relatively
modest”) (citation omitted).

in the ordinance and a “Special Order,” prohibiting police officers from
enforcing the ordinances when a person is on public property and there
is no available overnight shelter, mooted the case. Id. at 894-95. We
rejected the argument that the change to the definition of “camping”
rendered the case moot because “[m]ere clarification of the Camping
Ordinance does not address the central concerns of the Plaintiffs’ Eighth
Amendment claims”—that the ordinance “effectively criminalized their
status as homeless individuals.” Id. at 898 n.12. And we held the
adoption of a “Special Order” did not moot the case because the Special
Order was not a legislative enactment, and as such it “could be easily
abandoned or altered in the future.” Id. at 901.
30 JOHNSON V. CITY OF GRANTS PASS

Finally, we raise sua sponte the possibility that the death
of class representative Debra Blake while this matter was on
the appeal has jurisdictional significance. Cf. Fort Bend Cty.
v. Davis, 139 S.Ct. 1843, 1849 (2019) (holding courts must
raise issues of subject matter jurisdiction sua sponte). We
hold Blake’s death does not moot the class’s claims as to all
challenged ordinances except possibly the anti-sleeping
ordinance. As to that ordinance, we remand to allow the
district court the opportunity to substitute a class
representative in Blake’s stead.
With respect to the park exclusion, criminal trespass, and
anti-camping ordinances, the surviving class representatives,
Gloria Johnson 15 and John Logan, 16 have standing in their

15
The dissent suggests Gloria Johnson does not have standing to
challenge the park exclusion and criminal trespass ordinances. Dissent
71-72. The dissent concedes, however, Johnson has standing to
challenge the anti-camping ordinances, GPMC 5.61.030, 6.46.090. But
the dissent does not provide a meaningful explanation why it draws this
distinction between the ordinances that work in concert. It is true
Johnson has not received a park exclusion order and has not been charged
with criminal trespass in the second degree. However, there is little doubt
that her continued camping in parks would lead to a park exclusion order
and, eventually, criminal trespass charges. Johnson is positioned to bring
a pre-enforcement challenge against the park exclusion and criminal
trespass ordinances, because they will be used against her given the
undisputed fact that she remains involuntarily homeless in Grants Pass.
She established a credible threat of future enforcement under the anti-
camping ordinances which creates a credible threat of future
enforcement under the park exclusion and criminal trespass ordinances.
16
The dissent claims John Logan has not established standing. Dissent
69-71. During the course of this case, Logan submitted two declarations.
At the class certification stage, his declaration stated he “lived out of
[his] truck on the streets in Grants Pass for about 4 years.” During that
time, he was “awakened by City of Grants Pass police officer and told
that I cannot sleep in my truck anywhere in the city and ordered to move
 JOHNSON V. CITY OF GRANTS PASS 31

own right. Although they live in their cars, they risk
enforcement under all the same ordinances as Blake and the
class (with the exception of the anti-sleeping ordinance,
GPMC 5.61.020, which cannot be violated by sleeping in a
car) and have standing in their own right as to all ordinances
except GPMC 5.61.020.

on.” To avoid those encounters, Logan “usually sleep[s] in [his] truck
just outside the Grants Pass city limits.” However, Logan stated “[i]f
there was some place in the city where [he] could legally sleep in [his]
truck, [he] would because it would save valuable gas money and avoid .
. . having to constantly move.” Logan also explained he has “met dozens,
if not hundreds, of homeless people in Grants Pass” over the years who
had been ticketed, fined, arrested, and criminally prosecuted “for living
outside.” At summary judgment, Logan submitted a declaration stating
he is “currently involuntarily homeless in Grants Pass and sleeping in
[his] truck at night at a rest stop North of Grants Pass.” He stated he
“cannot sleep in the City of Grants Pass for fear that [he] will be
awakened, ticketed, fined, moved along, trespassed and charged with
Criminal Trespass.” The dissent reads this evidence as indicating Logan
failed to “provide[] any facts to establish” that he is likely to be issued a
citation under the challenged ordinances. Dissent 70. We do not agree.
The undisputed facts establish Logan is involuntarily homeless. When
he slept in Grants Pass, he was awoken by police officers and ordered to
move. His personal knowledge was that involuntarily homeless
individuals in Grants Pass often are cited under the challenged
ordinances and Grants Pass continues to enforce the challenged
ordinances. And, but for the challenged ordinances, Logan would sleep
in the city. Therefore, as the district court found, it is sufficiently likely
Logan would be issued a citation that Logan’s standing is established.
That is especially true given the Supreme Court's instruction that a
plaintiff need not wait for “an actual arrest, prosecution, or other
enforcement action” before “challenging [a] law.” Susan B. Anthony List
v. Driehaus, 573 U.S. 149, 158 (2014). Finally, even if Logan had not
demonstrated standing, the dissent’s analysis regarding Logan is
irrelevant because this case could proceed solely based on the standing
established by Gloria Johnson and the class. See Bates v. United Parcel
Serv., Inc., 511 F.3d at 985 (9th Cir. 2007) (en banc).
32 JOHNSON V. CITY OF GRANTS PASS

With respect to the anti-sleeping ordinance, the law is
less clear. Debra Blake is the only class representative who
had standing in her own right to challenge the anti-sleeping
ordinance. Under cases such as Sosna v. Iowa, 419 U.S. 393,
401 (1975), and Franks v. Bowman Transportation Co., Inc.,
424 U.S. 747 (1976), a class representative may pursue the
live claims of a properly certified class—without the need to
remand for substitution of a new representative 17—even
after his own claims become moot, provided that several
requirements are met. 18 See Bates v. United Parcel Serv.,
Inc., 511 F.3d 974, 987-88 (9th Cir. 2007) (en banc). If
Debra Blake’s challenge to the anti-sleeping ordinance
became moot before she passed away, she could have
continued to pursue the challenge on behalf of the class
under the doctrine of Sosna. But we have not found any case
applying Sosna and Franks to a situation such as this, in

17
See Sosna, 419 U.S. at 403 (“[W]e believe that the test of Rule 23(a)
is met.”); id. at 416-17 (White, J., dissenting) (“It is claimed that the
certified class supplies the necessary adverse parties for a continuing
case or controversy . . . The Court cites no authority for this retrospective
decision as to the adequacy of representation which seems to focus on
the competence of counsel rather than a party plaintiff who is a
representative member of the class. At the very least, the case should be
remanded to the District Court.”).
18
The class must be properly certified, see Franks, 424 U.S. at 755-56,
or the representative must be appealing denial of class certification. See
United States Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980).
The class representative must be a member of the class with standing to
sue at the time certification is granted or denied. See Sosna, 419 U.S. at
403. The unnamed class members must still have a live interest in the
matter throughout the duration of the litigation. See Franks, 424 U.S. at
755. And the court must be satisfied that the named representative will
adequately pursue the interests of the class even though their own interest
has expired. See Sosna, 419 U.S. at 403.
 JOHNSON V. CITY OF GRANTS PASS 33

which the death of a representative causes a class to be
unrepresented as to part (but not all) of a claim. The parties
did not brief this issue and no precedent indicates whether
this raises a jurisdictional question, which would deprive us
of authority to review the merits of the anti-sleeping
ordinance challenge, or a matter of Federal Rule of Civil
Procedure 23, which might not.
Because Plaintiffs have not moved to substitute a class
representative pursuant to Federal Rule of Appellate
Procedure 43(a) or identified a representative who could be
substituted, because no party has addressed this question in
briefing, and because we are not certain of our jurisdiction
to consider the challenge to the anti-sleeping ordinance, we
think it appropriate to vacate summary judgment as to the
anti-sleeping ordinance and remand to determine whether a
substitute representative is available as to that challenge
alone. See Cobell v. Jewell, 802 F.3d 12, 23-24 (D.C. Cir.
2015) (discussing substitution of a party during appeal).
Substitution of a class representative may significantly aid
in the resolution of the issues in this case. Remand will not
cause significant delay because, as we explain below,
remand is otherwise required so that the injunction can be
modified. In the absence of briefing or precedent regarding
this question, we do not decide whether this limitation is
jurisdictional or whether it arises from operation of Rule 23.
We therefore hold the surviving class representatives at
a minimum have standing to challenge every ordinance
except the anti-sleeping ordinance. As to the anti-sleeping
ordinance, we vacate summary judgment and remand for the
district court to consider in the first instance whether an
adequate class representative, such as class member Dolores
Nevin, exists who may be substituted.
34 JOHNSON V. CITY OF GRANTS PASS

B.
The City’s next argument is the district court erred in
certifying the class. We “review a district court’s order
granting class certification for abuse of discretion, but give
the district court ‘noticeably more deference when reviewing
a grant of class certification than when reviewing a denial.’”
Patel v. Facebook, Inc., 932 F.3d 1264, 1275 (9th Cir. 2019)
(internal citation omitted) (quoting Just Film, Inc. v. Buono,
847 F.3d 1108, 1115 (9th Cir. 2017)). Factual findings
underlying class certification are reviewed for clear error.
Parsons v. Ryan, 754 F.3d 657, 673 (9th Cir. 2014).
A member of a class may sue as a representative party if
the member satisfies Federal Rule of Civil Procedure 23(a)’s
four prerequisites: numerosity, commonality, typicality, and
adequacy of representation. Fed. R. Civ. P. 23(a); Mazza v.
Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir.
2012). Assessing these requirements involves “rigorous
analysis” of the evidence. Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 351 (2011) (quoting Gen. Tel. Co. of the Sw.
v. Falcon, 457 U.S. 147, 161 (1982)).
If the initial requirements of Rule 23(a) are met, a
putative class representative must also show the class falls
into one of three categories under Rule 23(b). Plaintiffs
brought this suit under Rule 23(b)(2), seeking injunctive or
declaratory relief based on the City having “acted or refused
to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Fed. R. Civ. P.
23(b)(2).
The district court found the Rule 23(a) requirements
satisfied and certified a class under Rule 23(b)(2). The
City’s arguments against this class certification are obscure.
 JOHNSON V. CITY OF GRANTS PASS 35

It appears the City’s argument is that class certification was
an abuse of discretion because the holding of Martin can
only be applied after an individualized inquiry of each
alleged involuntarily homeless person’s access to shelter. 19
The City appears to suggest the need for individualized
inquiry defeats numerosity, commonality, and typicality.
While we acknowledge the Martin litigation was not a class
action, nothing in that decision precluded class actions.20
And based on the record in this case, the district court did
not err by finding Plaintiffs satisfied the requirements of
Rule 23 such that a class could be certified.
To satisfy the numerosity requirement a proposed class
must be “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). For purposes of
this requirement, “‘impracticability’ does not mean
‘impossibility,’ but only the difficulty or inconvenience of
joining all members of the class.” Harris v. Palm Springs
Alpine Ests., Inc., 329 F.2d 909, 913–14 (9th Cir. 1964)
(quotation omitted). There is no specific number of class
members required. See Gen. Tel. Co. of the Nw., Inc. v.
EEOC, 446 U.S. 318, 330 (1980). However, proposed

19
There is no reason to believe the putative class members are
voluntarily homeless. To the contrary, at least 13 class members
submitted declarations to the district court indicating that they are
involuntarily homeless.
20
Other courts have certified similar classes. See e.g., Lehr v. City of
Sacramento, 259 F.R.D. 479 (E.D. Cal. 2009) (addressing numerosity,
commonality, and typicality for homeless persons in Sacramento); Joyce
v. City & Cty. of S.F., 1994 WL 443464 (N.D. Cal. Aug. 4, 1994),
dismissed as moot, 87 F.3d 1320 (9th Cir. 1996) (finding typicality
despite some differences among homeless class members); Pottinger v.
City of Miami, 720 F.Supp. 955, 960 (S.D. Fla. 1989) (certifying a class
of homeless persons).
36 JOHNSON V. CITY OF GRANTS PASS

classes of less than fifteen are too small while classes of
more than sixty are sufficiently large. Harik v. Cal.
Teachers Ass’n, 326 F.3d 1042, 1051-52 (9th Cir. 2003).
When the district court certified the class on August 7,
2019, it found there were at least 600 homeless persons in
the City based on the 2018 and 2019 PIT counts conducted
by UCAN. The City does not identify how this finding was
clearly erroneous. In fact, the City affirmatively indicated to
Plaintiffs prior to the class certification order that the number
of homeless persons residing in Grants Pass for the past 7
years was “unknown.” Further, the only guidance offered
by the City regarding a specific number of class members
came long after the class was certified. A City police officer
claimed in a declaration that he was “aware of less than fifty
individuals total who do not have access to any shelter” in
the City. The officer admitted, however, it “would be
extremely difficult to accurately estimate the population of
people who are homeless in Grants Pass regardless of the
definition used.”
The officer’s guess of “less than fifty” homeless persons
is inconsistent with the general understanding that PIT
counts routinely undercount homeless persons. See Martin,
920 F.3d at 604 (“It is widely recognized that a one-night
point in time count will undercount the homeless
population.”) (internal quotation marks omitted). But even
accepting the officer’s assessment that there were
approximately fifty homeless persons in the City, the
numerosity requirement is satisfied. Joining approximately
fifty persons might be impracticable and especially so under
the facts here because homeless persons obviously lack a
fixed address and likely have no reliable means of
 JOHNSON V. CITY OF GRANTS PASS 37

communications. 21 At the very least, the district court did
not abuse its discretion in concluding the numerosity
requirement was met.
A class satisfies Rule 23’s commonality requirement if
there is at least one question of fact or law common to the
class. Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544
(9th Cir. 2013). The Supreme Court has said the word
“question” in Rule 23(a)(2) is a misnomer: “What matters to
class certification . . . is not the raising of common
‘questions’—even in droves—but rather, the capacity of a
class-wide proceeding to generate common answers apt to

21
Moreover, there is a well-documented correlation between physical
and mental illness and homelessness. See, e.g., Sara K. Rankin,
Punishing Homelessness, 22 N. CRIM. L. REV. 99, 105 (2019)
(“Psychiatric disorders affect at least 30 to 40 percent of all people
experiencing homelessness.”); Stefan Gutwinski et al., The prevalence
of mental disorders among homeless people in high-income countries:
An updated systematic review and meta-regression analysis, 18(8) PLOS
MED. 1, 14 (Aug. 23, 2021), (“Our third main finding was high
prevalence rates for treatable mental illnesses, with 1 in 8 homeless
individuals having either major depression (12.6%) or schizophrenia
spectrum disorders (12.4%). This represents a high rate of schizophrenia
spectrum disorders among homeless people, and a very large excess
compared to the 12-month prevalence in the general population, which
for schizophrenia is estimated around 0.7% in high-income countries.”);
Greg A. Greenberg & Robert A. Rosenheck, Jail Incarceration,
Homelessness, and Mental Health: A National Study, 59 PSYCHIATRIC
SERVS. 170, 170 (2008) (“Homeless individuals may also be more likely
to have health conditions . . . Severe mental illness is also more prevalent
among homeless people than in the general population.”); CTR. FOR
DISEASE CONTROL & PREVENTION, HOMELESSNESS AS A PUBLIC
HEALTH LAW ISSUE: SELECTED RESOURCES (Mar. 2, 2017)
(“Homelessness is closely connected to declines in physical and mental
health; homeless persons experience high rates of health problems such
as HIV infection, alcohol and drug abuse, mental illness, tuberculosis,
and other conditions.”).
38 JOHNSON V. CITY OF GRANTS PASS

drive the resolution of the litigation.” Wal-Mart, 564 U.S. at
350 (quoting Richard A. Nagareda, Class Certification in the
Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009))
(emphasis and omission in original)). “[C]lass members’
claims [must] ‘depend upon a common contention’ such that
‘determination of its truth or falsity will resolve an issue that
is central to the validity of each [claim] in one stroke.’”
Mazza, 666 F.3d at 588 (quoting Wal-Mart, 564 U.S. at 350).
As correctly identified by the district court, Plaintiffs’
claims present at least one question and answer common to
the class: “whether [the City’s] custom, pattern, and practice
of enforcing anti-camping ordinances, anti-sleeping
ordinances, and criminal trespass laws . . . against
involuntarily homeless individuals violates the Eighth
Amendment of the Constitution.” An answer on this
question resolved a crucial aspect of the claims shared by all
class members.
The City argues the commonality requirement was not
met because some class members might have alternative
options for housing, or might have the means to acquire their
own shelter. 22 But this argument misunderstands the class

22
The dissent adapts the City’s argument that enforcement of the anti-
camping ordinances depends on individual circumstances and is
therefore not capable of resolution on a common basis. Dissent 77-79.
That misunderstands how the present class was structured. The dissent
attempts to reframe the common question as a very general inquiry. It
appears the dissent interprets the question whether an Eighth
Amendment violation must be determined by an individualized inquiry
as whether each individual is “involuntarily homeless.” To assess that,
a court would have to conduct an individualized inquiry and determine
if an individual was “involuntarily homeless.” But that is not the
common question in this case. Rather, the question is whether the City's
enforcement of the anti-camping ordinances against all involuntarily
homeless individuals violates the Eighth Amendment. This question is
 JOHNSON V. CITY OF GRANTS PASS 39

definition. Pursuant to the class definition, the class includes
only involuntarily homeless persons. 23 Individuals who
have shelter or the means to acquire their own shelter simply

capable of common resolution on a prospective class-wide basis, as the
record establishes.
23
The dissent argues this created a prohibited “fail safe” class. That is
erroneous. As noted in a recent en banc decision, “a ‘fail safe’ class . . .
is defined to include only those individuals who were injured by the
allegedly unlawful conduct.” Olean Wholesale Grocery Coop., Inc. v.
Bumble Bee Foods LLC, 31 F.4th 651, 669 n.14 (9th Cir. 2022) (en
banc). Such classes are prohibited “because a class member either wins
or, by virtue of losing, is defined out of the class and is therefore not
bound by the judgment.” Id. See also Ruiz Torres v. Mercer Canyons
Inc., 835 F.3d 1125, 1138 (9th Cir. 2016) (noting a fail safe class “is one
that is defined so narrowly as to preclude[ ] membership unless the
liability of the defendant is established”). No such class is present here.
The class was defined, in relevant part, as “[a]ll involuntarily homeless
individuals living in Grants Pass.” Membership in that class has no
connection to the success of the underlying claims. Put differently, the
class would have consisted of exactly the same population whether
Grants Pass won or lost on the merits. The obvious illustration of this is
the class population would not change if a court determined the anti-
camping ordinance violated the Eighth Amendment while the anti-
sleeping ordinance did not. In that situation, class members would not be
“defined out of the class.” Olean, 31 F.4th at 669 n.14 (citation omitted).
Rather, class members would be “bound by the judgment” regarding the
anti-sleeping ordinance. Id. In any event, the dissent’s concerns
regarding individualized determinations are best made when the City
attempts to enforce its ordinances. Cf. McArdle v. City of Ocala, 519
F.Supp.3d 1045, 1052 (M.D. Fla. 2021) (requiring that officers inquire
into the availability of shelter space before an arrest could be made for
violation of the City’s “open lodging” ordinance). If it is determined at
the enforcement stage that a homeless individual has access to shelter,
then they do not benefit from the injunction and may be cited or
prosecuted under the anti-camping ordinances. Moreover, as we noted
above, several classes of homeless individuals have been certified in the
past. See supra note 20.
40 JOHNSON V. CITY OF GRANTS PASS

are never class members. 24 Because we find there existed at
least one question of law or fact common to the class, the
district court did not abuse its discretion in concluding
commonality was satisfied.
Typicality asks whether “the claims or defenses of the
representative parties are typical” of the class. Fed. R. Civ.
P. 23(a)(3). Typicality is a “permissive standard[].” Staton
v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003) (citation
omitted). It “refers to the nature of the claim or defense of
the class representative, and not to the specific facts from
which it arose or the relief sought.” Parsons, 754 F.3d at
685 (citation omitted).
The class representatives’ claims and defenses are
typical of the class in that they are homeless persons who
claim that the City cannot enforce the challenged ordinances
against them when they have no shelter. The defenses that
apply to class representatives and class members are
identical. The claims of class representatives and class
members are similar, except that some class representatives
live in vehicles while other class members may live on
streets or in parks, not vehicles. This does not defeat
typicality. The class representatives with vehicles may
violate the challenged ordinances in a different manner than
some class members—i.e., by sleeping in their vehicle,
rather than on the ground. But they challenge the same
ordinances under the same constitutional provisions as other

24
We do not, as the dissent contends, “suggest[ ] that the class definition
requires only an involuntary lack of access to regular or permanent
shelter to qualify as ‘involuntarily homeless.’” Dissent 84. It is unclear
where the dissent finds this in the opinion. To be clear: A person with
access to temporary shelter is not involuntarily homeless unless and until
they no longer have access to shelter.
 JOHNSON V. CITY OF GRANTS PASS 41

class members. Cf. Staton, 327 F.3d at 957
(“[R]epresentative claims are ‘typical’ if they are reasonably
coextensive with those of absent class members; they need
not be substantially identical.”) (citation omitted). The
district court did not abuse its discretion in finding the
typicality requirement met.
The City does not present any other arguments regarding
class certification, such as the propriety of certifying the
class as an injunctive class under Rule 23(b)(2). We do not
make arguments for parties and the arguments raised by the
City regarding class certification fail.
C.
Having rejected the City’s jurisdictional arguments, as
well as its arguments regarding class certification, the merits
can be addressed. The City’s merits arguments regarding the
Cruel and Unusual Punishment Clause take two forms. First,
the City argues its system of imposing civil fines cannot be
challenged as violating the Cruel and Unusual Clause
because that clause provides protection only in criminal
proceedings, after an individual has been convicted. That is
incorrect. Second, the City argues Martin does not protect
homeless persons from being cited under the City’s amended
anti-camping ordinance which prohibits use of any bedding
or similar protection from the elements. The City appears to
have conceded it cannot cite homeless persons merely for
sleeping in public but the City maintains it is entitled to cite
individuals for the use of rudimentary bedding supplies, such
as a blanket, pillow, or sleeping bag “for bedding purposes.”
See GPMC 5.61.010(B). Again, the City is incorrect. Here,
we focus exclusively on the anti-camping ordinances.
According to the City, citing individuals under the anti-
camping ordinances cannot violate the Cruel and Unusual
42 JOHNSON V. CITY OF GRANTS PASS

Punishment Clause because citations under the ordinances
are civil and civil citations are “categorically not
‘punishment’ under the Eight Amendment.” 25 The City
explains “the simple act of issuing a civil citation with a
court date [has never] been found to be unconstitutional
‘punishment’ under the Eighth Amendment.” While not
entirely clear, the City appears to be arguing the Cruel and
Unusual Punishment Clause provides no protection from
citations categorized as “civil” by a governmental
authority. 26

25
This position is in significant tension with the City’s actions taken
immediately after Martin was issued. As noted earlier, the City amended
its anti-camping ordinance “in direct response to Martin v. Boise” to
allow for “the act of ‘sleeping’” in City parks. If the City believed
Martin has no impact on civil ordinances, it is unclear why the City
believed a curative “response” to Martin was necessary.
26
The primary support for this contention is Ingraham v. Wright, 430
U.S. 651 (1977). In Ingraham, the Supreme Court addressed whether
the Cruel and Unusual Punishment Clause was implicated by corporal
punishment in public schools. The Court stated the Cruel and Unusual
Punishment Clause limits “the criminal process in three ways: First, it
limits the kinds of punishment that can be imposed on those convicted
of crimes; second, it proscribes punishment grossly disproportionate to
the severity of the crime; and third, it imposes substantive limits on what
can be made criminal and punished as such.” Id. at 667. The Court
interpreted the challenge to corporal punishment as, in effect, asserting
arguments under only the first or second limitation. That is, the
challenge was whether “the paddling of schoolchildren” was a
permissible amount or type of punishment. Id. at 668. The Ingraham
decision involved no analysis or discussion of the third limitation, i.e.
the “substantive limits on what can be made criminal.” Id. at 667. Thus,
it was in the context of evaluating the amount or type of punishment that
Ingraham stated “Eighth Amendment scrutiny is appropriate only after
the State has complied with the constitutional guarantees traditionally
associated with criminal prosecutions.” Id. at 671 n.40. When, as here,
plaintiffs are raising challenges to the “substantive limits on what can be
 JOHNSON V. CITY OF GRANTS PASS 43

Plaintiffs’ focus on civil citations does involve an extra
step from the normal Cruel and Unusual Clause analysis and
the analysis of Martin. Usually, claims under the Cruel and
Unusual Clause involve straightforward criminal charges.
For example, the situation in Martin involved homeless
persons allegedly violating criminal ordinances and the
opinion identified its analysis as focusing on the “criminal”
nature of the charges over ten times. 920 F.3d at 617. Here,
the City has adopted a slightly more circuitous approach than
simply establishing violation of its ordinances as criminal
offenses. Instead, the City issues civil citations under the
ordinances. If an individual violates the ordinances twice,
she can be issued a park exclusion order. And if the
individual is found in a park after issuance of the park
exclusion order, she is cited for criminal trespass. See
O.R.S. 164.245 (criminal trespass in the second degree).
Multiple City police officers explained in their depositions
this sequence was the standard protocol. The holding in
Martin cannot be so easily evaded.
Martin held the Cruel and Unusual Punishment clause
“prohibits the imposition of criminal penalties for sitting,
sleeping, or lying outside on public property for homeless
individuals who cannot obtain shelter.” 920 F.3d at 616. A
local government cannot avoid this ruling by issuing civil
citations that, later, become criminal offenses. A recent
decision by the en banc Fourth Circuit illustrates how the

made criminal,” Ingraham does not prohibit a challenge before a
criminal conviction. See Martin, 920 F.3d at 614 (“Ingraham did not
hold that a plaintiff challenging the state’s power to criminalize a
particular status or conduct in the first instance, as the plaintiffs in this
case do, must first be convicted.”).
44 JOHNSON V. CITY OF GRANTS PASS

Cruel and Unusual Punishment Clause looks to the eventual
criminal penalty, even if there are preliminary civil steps.
The disputes in Manning v. Caldwell for City of
Roanoke, 930 F.3d 264 (4th Cir. 2019) (en banc) arose from
a Virginia law which allowed a state court to issue a civil
order identifying an individual as a “habitual drunkard.” Id.
at 268. Once labeled a “habitual drunkard,” the individual
was “subject to incarceration for the mere possession of or
attempt to possess alcohol, or for being drunk in public.” Id.
at 269. A group of homeless alcoholics filed suit claiming,
among other theories, the “habitual drunkard” scheme
violated the Cruel and Unusual Punishment Clause. In the
plaintiffs’ view, the scheme resulted in criminal prosecutions
based on their “status,” i.e. alcoholism. See id. at 281.
Using reasoning very similar to that in Martin, the Fourth
Circuit found the statutory scheme unconstitutional because
it provided punishment based on the plaintiffs’ status. Of
particular relevance here, the Fourth Circuit reasoned the
fact that Virginia’s “scheme operate[d] in two steps” did not
change the analysis. Id. 283. Issuing a civil order first,
followed by a criminal charge, was a “two-pronged statutory
scheme” potentially “less direct” than straightforwardly
criminalizing the status of alcohol addiction. Id. But the
scheme remained unconstitutional because it “effectively
criminalize[d] an illness.” Id. The fact that Virginia “civilly
brands alcoholics as ‘habitual drunkards’ before prosecuting
them for involuntary manifestations of their illness does
nothing to cure the unconstitutionality of this statutory
scheme.” Id.
The same reasoning applies here. The anti-camping
ordinances prohibit Plaintiffs from engaging in activity they
cannot avoid. The civil citations issued for behavior
 JOHNSON V. CITY OF GRANTS PASS 45

Plaintiffs cannot avoid are then followed by a civil park
exclusion order and, eventually, prosecutions for criminal
trespass. Imposing a few extra steps before criminalizing the
very acts Martin explicitly says cannot be criminalized does
not cure the anti-camping ordinances’ Eighth Amendment
infirmity.
The City offers a second way to evade the holding in
Martin. According to the City, it revised its anti-camping
ordinances to allow homeless persons to sleep in City parks.
However, the City’s argument regarding the revised anti-
camping ordinance is an illusion. The amended ordinance
continues to prohibit homeless persons from using “bedding,
sleeping bag, or other material used for bedding purposes,”
or using stoves, lighting fires, or erecting structures of any
kind. GPMC 5.61.010. The City claims homeless persons
are free to sleep in City parks, but only without items
necessary to facilitate sleeping outdoors. 27
The discrepancy between sleeping without bedding
materials, which is permitted under the anti-camping
ordinances, and sleeping with bedding, which is not, is
intended to distinguish the anti-camping ordinances from
Martin and the two Supreme Court precedents underlying
Martin, Robinson v. California, 370 U.S. 660 (1962) and

27
The Grants Pass ordinance does not specifically define “bedding” but
courts give the words of a statute or ordinance their “ordinary,
contemporary, common meaning” absent an indication to the contrary
from the legislature. See Williams v. Taylor, 529 U.S. 420, 431 (2000)
(citation omitted). The Oxford English Dictionary defines “bedding” as
“[a] collective term for the articles which compose a bed.” OXFORD
ENGLISH DICTIONARY. And “bed” is defined as “a place for sleeping.”
MERRIAM-WEBSTER COLLEGIATE DICTIONARY 108 (11th ed.). The
City’s effort to dissociate the use of bedding from the act of sleeping or
protection from the elements is nonsensical.
46 JOHNSON V. CITY OF GRANTS PASS

Powell v. Texas, 392 U.S. 514 (1968). Under those cases, a
person may not be prosecuted for conduct that is involuntary
or the product of a “status.” See Martin, 920 F.3d at 617
(citation omitted). The City accordingly argues that sleeping
is involuntary conduct for a homeless person, but that
homeless persons can choose to sleep without bedding
materials and therefore can be prosecuted for sleeping with
bedding.
In its order granting summary judgment, the district
court correctly concluded the anti-camping ordinances
violated the Cruel and Unusual Punishment Clause to the
extent they prohibited homeless persons from “taking
necessary minimal measures to keep themselves warm and
dry while sleeping when there are no alternative forms of
shelter available.” The only plausible reading of Martin is
that it applies to the act of “sleeping” in public, including
articles necessary to facilitate sleep. In fact, Martin
expressed concern regarding a citation given to a woman
who had been found sleeping on the ground, wrapped in
blankets. 920 F.3d at 618. Martin noted that citation as an
example of the anti-camping ordinance being “enforced
against homeless individuals who take even the most
rudimentary precautions to protect themselves from the
elements.” Id. Martin deemed such enforcement
unconstitutional. Id. It follows that the City cannot enforce
its anti-camping ordinances to the extent they prohibit “the
most rudimentary precautions” a homeless person might
take against the elements. 28 The City’s position that it is

28
Grants Pass is cold in the winter. The evidence in the record
establishes that homeless persons in Grants Pass have struggled against
frostbite. Faced with spending every minute of the day and night
outdoors, the choice to use rudimentary protection of bedding to protect
 JOHNSON V. CITY OF GRANTS PASS 47

entitled to enforce a complete prohibition on “bedding,
sleeping bag, or other material used for bedding purposes” is
incorrect.
The dissent claims we have misread Martin by
“completely disregard[ing] the Powell opinions on which
Martin relied, which make unmistakably clear that an
individualized showing of involuntariness is required.”
Dissent 82. The dissent concedes that pursuant to Martin,
the City cannot impose criminal penalties on involuntarily
homeless individuals for sitting, sleeping, or lying outside on
public property. Dissent 62. Thus, our purported “complete
disregard[ ]” for Martin is not regarding the central holding
that local governments may not criminalize involuntary
conduct. Rather, the dissent believes, based on its
interpretation of the Supreme Court opinions underlying
Martin, that the Eighth Amendment provides only “a case-
specific affirmative defense” that can never be litigated on a
class basis. Dissent 59. To reach this counterintuitive
conclusion, the dissent reads limitations into Robinson,
Powell, and Martin that are nonexistent.
In Robinson, the Supreme Court struck down, under the
Eighth Amendment, a California law that made “it a criminal
offense for a person to ‘be addicted to the use of narcotics.’”
Robinson, 370 U.S. at 666. The law was unconstitutional,
the Court explained, because it rendered the defendant
“continuously guilty of this offense, whether or not he has
ever used or possessed any narcotics within the State.” Id.
Six years later, in Powell, the Court divided 4-1-4 over
whether Texas violated the Eighth Amendment under

against snow, frost, or rain is not volitional; it is a life-preserving
imperative.
48 JOHNSON V. CITY OF GRANTS PASS

Robinson by prosecuting an alcoholic for public
drunkenness. In a plurality opinion, Justice Marshall upheld
the conviction of Leroy Powell on the ground that he was not
punished on the basis of his status as an alcoholic, but rather
for the actus reus of being drunk in public. Powell, 392 U.S.
at 535. Four justices dissented, in an opinion by Justice
Fortas, on the ground that the findings made by the trial
judge—that Powell was a chronic alcoholic who could not
resist the impulse to drink—compelled the conclusion that
Powell’s prosecution violated the Eighth Amendment
because Powell could not avoid breaking the law. Id. at 569-
70 (Fortas, J., dissenting). Justice White concurred in the
judgment. He stressed, “[i]f it cannot be a crime to have an
irresistible compulsion to use narcotics, I do not see how it
can constitutionally be a crime to yield to such a
compulsion.” Id. at 549 (White, J., concurring). However,
the reason for Justice White’s concurrence was that he felt
Powell failed to prove his status as an alcoholic compelled
him to violate the law by appearing in public. Id. at 553
(White, J., concurring).
Pursuant to Marks v. United States, 430 U.S. 188 (1977),
the narrowest position which gained the support of five
justices is treated as the holding of the Court. In identifying
that position, Martin held: “five Justices [in Powell] gleaned
from Robinson the principle that ‘that the Eighth
Amendment prohibits the state from punishing an
involuntary act or condition if it is the unavoidable
consequence of one’s status or being.’” Martin, 920 F.3d at
616 (quoting Jones, 443 F.3d at 1135). Martin did not—as
the dissent alleges—hold that Powell’s “controlling opinion
was Justice White’s concurrence.” Dissent 60. See id., 920
F.3d at 616-17. It would have violated the rule of Marks to
adopt portions of Justice White’s concurrence that did not
 JOHNSON V. CITY OF GRANTS PASS 49

receive the support of five justices. The dissent claims
Justice White’s concurrence requires that the individual
claiming a status must prove the status compels the
individual to violate the law—here, that each homeless
individual must prove their status as an involuntarily
homeless person to avoid prosecution. 29 Dissent 59-63. The

29
The dissent’s attempt to create a governing holding out of Justice
White’s concurrence is erroneous. By citing a word or two out of context
in the Powell dissenting opinion (e.g., “constitutional defense”) our
dissenting colleague argues both Justice White and the dissenting
justices in Powell agreed any person subject to prosecution has, at most,
“a case-specific affirmative ‘defense.’” Dissent 59-60, 77. We disagree.
Though status was litigated as a defense in the context of Leroy Powell’s
prosecution, no opinion in Powell held status may be raised only as a
defense. The Powell plurality noted trial court evidence that Leroy
Powell was an alcoholic, but that opinion contains no indication “status”
may only be invoked as “a case-specific affirmative ‘defense.’” As for
Justice White, the opening paragraph of his concurrence indicates he was
primarily concerned not with how a status must be invoked but with the
fact that certain statuses should be beyond the reach of the criminal law:

If it cannot be a crime to have an irresistible
compulsion to use narcotics, I do not see how it can
constitutionally be a crime to yield to such a
compulsion. Punishing an addict for using drugs
convicts for addiction under a different name.
Distinguishing between the two crimes is like
forbidding criminal conviction for being sick with flu
or epilepsy but permitting punishment for running a
fever or having a convulsion. Unless Robinson is to be
abandoned, the use of narcotics by an addict must be
beyond the reach of the criminal law. Similarly, the
chronic alcoholic with an irresistible urge to consume
alcohol should not be punishable for drinking or for
being drunk.

Powell, 392 U.S. at 548-49 (White, J., concurring) (internal citation
omitted). Finally, neither the remainder of Justice White’s concurrence
50 JOHNSON V. CITY OF GRANTS PASS

dissent claims this renders class action litigation
inappropriate. But no opinion in either Powell or Martin
discussed the propriety of litigating the constitutionality of
such criminal statutes by way of a class action. 30
The law that the dissent purports to unearth in Justice
White’s concurrence is not the “narrowest ground” which
received the support of five justices. No opinion in Powell
or Martin supports the dissent’s assertion that Powell offers
exclusively an “affirmative ‘defense’” that cannot be
litigated in a class action. 31 Dissent 59, 77. Although the

nor the dissenting opinion explicitly indicates one’s status may only be
invoked as a defense. Rather, Justice White and the dissenters simply
agreed that, if Powell’s status made his public intoxication involuntary,
he could not be prosecuted. There is no conceivable way to interpret
Martin as adopting our dissenting colleague’s position that one’s status
must be invoked as a defense. But even assuming the burden must be
placed on the party wishing to invoke a status, the class representatives
established there is no genuine dispute of material fact they have the
relevant status of being involuntarily homeless.
30
Federal courts have certified classes of homeless plaintiffs in the past,
see supra note 20, which counsels against the City’s and the dissent’s
position that such classes are impermissible under Rule 23.
31
As noted above, Martin did not hold homeless persons bear the burden
of demonstrating they are involuntarily homeless. See supra note 29.
Because the record plainly demonstrates Plaintiffs are involuntarily
homeless, there similarly is no reason for us to determine what showing
would be required. We note, however, that some district courts have
addressed circumstances in which the question of burden was somewhat
relevant. See, e.g., McArdle, 519 F.Supp.3d at 1052 (requiring, based in
part on Martin, that officers inquire into the availability of shelter space
before making an arrest for violation of the City’s “open lodging”
ordinance); Butcher v. City of Marysville, 2019 WL 918203, at *7 (E.D.
Cal. Feb. 25, 2019) (holding plaintiffs failed to make the “threshold
showing” of pleading that there was no shelter capacity and that they had
no other housing at the time of enforcement).
 JOHNSON V. CITY OF GRANTS PASS 51

dissent might prefer that these principles find support in the
controlling law, they do not. We thus do not misread Martin
by failing to apply the principles found solely in Justice
White’s concurrence. Rather, we adhere to the narrow
holding of Martin adopting the narrowest ground shared by
five justices in Powell: a person cannot be prosecuted for
involuntary conduct if it is an unavoidable consequence of
one’s status.
In addition to erecting an absolute bar to class litigation
of this sort, the dissent would also impose artificial
limitations on claims brought pursuant to Martin. The
dissent concedes Gloria Johnson has standing to bring
individual challenges to most of the City’s ordinances. But
the dissent then speculates that Gloria Johnson may, in fact,
not be involuntarily homeless in the City. The dissent would
insist that Gloria Johnson, for example, leave the City to
camp illegally on federal or state lands, provide the court an
accounting of her finances and employment history, and
indicate with specificity where she lived before she lost her
job and her home. Dissent 85-88. There, of course, exists
no law or rule requiring a homeless person to do any of these
things. Gloria Johnson has adequately demonstrated that
there is no available shelter in Grants Pass and that she is
involuntarily homeless.
The undisputed evidence establishes Gloria Johnson is
involuntarily homeless and there is undisputed evidence
showing many other individuals in similar situations. It is
undisputed that there are at least around 50 involuntarily
homeless persons in Grants Pass, and PIT counts, which
Martin relied on to establish the number of homeless persons
in Boise, revealed more than 600. See Martin, 920 F.3d at
604. It is undisputed that there is no secular shelter space
available to adults. Many class members, including the class
52 JOHNSON V. CITY OF GRANTS PASS

representatives, have sworn they are homeless and the City
has not contested those declarations. The dissent claims this
showing is not enough, implying that Plaintiffs must meet an
extremely high standard to show they are involuntarily
homeless. Even viewed in the light most favorable to the
City, there is no dispute of material fact that the City is home
to many involuntarily homeless individuals, including the
class representatives. In fact, neither the City nor the dissent
has demonstrated there is even one voluntarily homeless
individual living in the City. 32 In light of the undisputed
facts in the record underlying the district court’s summary
judgment ruling that show Plaintiffs are involuntarily
homeless, and the complete absence of evidence that
Plaintiffs are voluntarily homeless, we agree with the district
court that Plaintiffs such as Gloria Johnson are not
voluntarily homeless and that the anti-camping ordinances
are unconstitutional as applied to them unless there is some
place, such as shelter, they can lawfully sleep. 33

32
The dissent claims we have “shifted the burden to the City to establish
the voluntariness of the behavior targeted by the ordinances.” Dissent
87 n.13 (emphasis omitted). To the contrary, as we have explained, we
do not decide who would bear such a burden because undisputed
evidence demonstrates Plaintiffs are involuntarily homeless. Rather,
without deciding who would bear such a burden if involuntariness were
subject to serious dispute, we note Plaintiffs have demonstrated
involuntariness and there is no evidence in the record showing any class
member has adequate alternative shelter.
33
Following Martin, several district courts have held that the
government may evict or punish sleeping in public in some locations,
provided there are other lawful places within the jurisdiction for
involuntarily homeless individuals to sleep. See, e.g., Shipp v. Schaaf,
379 F.Supp.3d 1033, 1037 (N.D. Cal. 2019) (“However, even assuming
(as Plaintiffs do) that [eviction from a homeless encampment by citation
or arrest] might occur, remaining at a particular encampment on public
 JOHNSON V. CITY OF GRANTS PASS 53

Our holding that the City’s interpretation of the anti-
camping ordinances is counter to Martin is not to be
interpreted to hold that the anti-camping ordinances were
properly enjoined in their entirety. Beyond prohibiting
bedding, the ordinances also prohibit the use of stoves or
fires, as well as the erection of any structures. The record
has not established the fire, stove, and structure prohibitions
deprive homeless persons of sleep or “the most rudimentary
precautions” against the elements. 34 Moreover, the record
does not explain the City’s interest in these prohibitions.35

property is not conduct protected by Martin, especially where the closure
is temporary in nature.”); Aitken v. City of Aberdeen, 393 F.Supp.3d
1075, 1082 (W.D. Wash. 2019) (“Martin does not limit the City’s ability
to evict homeless individuals from particular public places.”); Gomes v.
Cty. of Kauai, 481 F.Supp.3d 1104, 1109 (D. Haw. 2020) (holding the
County of Kauai could prohibit sleeping in a public park because it had
not prohibited sleeping on other public lands); Miralle v. City of
Oakland, 2018 WL 6199929, at *2 (N.D. Cal. Nov. 28, 2018) (holding
the City could clear out a specific homeless encampment because
“Martin does not establish a constitutional right to occupy public
property indefinitely at Plaintiffs’ option”); Le Van Hung v. Schaaf, 2019
WL 1779584, at *5 (N.D. Cal. Apr. 23, 2019) (holding Martin does not
“create a right for homeless residents to occupy indefinitely any public
space of their choosing”). Because the City has not established any
realistically available place within the jurisdiction for involuntarily
homeless individuals to sleep we need not decide whether alternate
outdoor space would be sufficient under Martin. The district court may
consider this issue on remand, if it is germane to do so.
34
The dissent claims we establish “the right to use (at least) a tent.”
Dissent 89 n.15. This assertion is obviously false. The district court’s
holding that the City may still “ban the use of tents in public parks”
remains undisturbed by our opinion.
35
The dissent asserts, “it is hard to deny that Martin has ‘generate[d] dire
practical consequences for the hundreds of local governments within our
jurisdiction, and for the millions of people that reside therein.’” Dissent
92 (quoting Martin, 920 F.3d at 594 (M. Smith, J., dissenting from denial
54 JOHNSON V. CITY OF GRANTS PASS

Consistent with Martin, these prohibitions may or may not
be permissible. On remand, the district court will be
required to craft a narrower injunction recognizing
Plaintiffs’ limited right to protection against the elements, as
well as limitations when a shelter bed is available. 36
D.
The district court concluded the fines imposed under the
anti-sleeping and anti-camping ordinances violated the
Eighth Amendment’s prohibition on excessive fines. A
central portion of the district court’s analysis regarding these
fines was that they were based on conduct “beyond what the
City may constitutionally punish.” With this in mind, the
district court noted “[a]ny fine [would be] excessive” for the
conduct at issue.
The City presents no meaningful argument on appeal
regarding the excessive fines issue. As for Plaintiffs, they
argue the fines at issue were properly deemed excessive
because they were imposed for “engaging in involuntary,
unavoidable life sustaining acts.” The permanent injunction
will result in no class member being fined for engaging in
such protected activity. Because no fines will be imposed

of rehearing en banc)) (modification in original). There are no facts in
the record to establish that Martin has generated “dire” consequences for
the City. Our review of this case is governed only by the evidence
contained in the record.
36
The district court enjoined the park exclusion ordinance in its entirety.
The parties do not address this in their appellate briefing but, on remand,
the district court should consider narrowing this portion as well because
the park exclusion ordinance presumably may be enforced against
Plaintiffs who engage in prohibited activity unrelated to their status as
homeless persons.
 JOHNSON V. CITY OF GRANTS PASS 55

for protected activity, there is no need for us to address
whether hypothetical fines would be excessive.
E.
The final issue is whether Plaintiffs properly pled their
challenge to the park exclusion appeals ordinance. GPMC
6.46.355. That ordinance provided a mechanism whereby
an individual who received an exclusion order could appeal
to the City Council. Subsequent to the district court’s order,
the City amended its park exclusion appeals ordinance.
Therefore, the district court’s determination the previous
ordinance violated Plaintiffs’ procedural due process rights
has no prospective relevance. Because of this, we need not
decide if Plaintiffs adequately pled their challenge to the
previous ordinance.
III.
We affirm the district court’s ruling that the City of
Grants Pass cannot, consistent with the Eighth Amendment,
enforce its anti-camping ordinances against homeless
persons for the mere act of sleeping outside with
rudimentary protection from the elements, or for sleeping in
their car at night, when there is no other place in the City for
them to go. On remand, however, the district court must
narrow its injunction to enjoin only those portions of the
anti-camping ordinances that prohibit conduct protected by
Martin and this opinion. In particular, the district court
should narrow its injunction to the anti-camping ordinances
and enjoin enforcement of those ordinances only against
involuntarily homeless person for engaging in conduct
necessary to protect themselves from the elements when
there is no shelter space available. Finally, the district court
on remand should consider whether there is an adequate
representative who may be substituted for Debra Blake.
56 JOHNSON V. CITY OF GRANTS PASS

We are careful to note that, as in Martin, our decision is
narrow. As in Martin, we hold simply that it is
“unconstitutional to [punish] simply sleeping somewhere in
public if one has nowhere else to do so.” Martin, 920 F.3d
at 590 (Berzon, J., concurring in denial of rehearing en
banc). Our decision reaches beyond Martin slightly. We
hold, where Martin did not, that class certification is not
categorically impermissible in cases such as this, that
“sleeping” in the context of Martin includes sleeping with
rudimentary forms of protection from the elements, and that
Martin applies to civil citations where, as here, the civil and
criminal punishments are closely intertwined. Our decision
does not address a regime of purely civil infractions, nor
does it prohibit the City from attempting other solutions to
the homelessness issue.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.

COLLINS, Circuit Judge, dissenting:

In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019),
we held that “the Eighth Amendment’s prohibition on cruel
and unusual punishment bars a city from prosecuting people
criminally for sleeping outside on public property when
those people have no home or other shelter to go to.” Id. at
603. Even assuming that Martin remains good law, today’s
decision—which both misreads and greatly expands
Martin’s holding—is egregiously wrong. To make things
worse, the majority opinion then combines its gross
misreading of Martin with a flagrant disregard of settled
 JOHNSON V. CITY OF GRANTS PASS 57

class-certification principles. The end result of this
amalgamation of error is that the majority validates the core
aspects of the district court’s extraordinary injunction in this
case, which effectively requires the City of Grants Pass to
allow all but one of its public parks to be used as homeless
encampments. 1 I respectfully dissent.
I
Because our opinion in Martin frames the issues here, I
begin with a detailed overview of that decision before
turning to the facts of the case before us.
A
In Martin, six individuals sued the City of Boise, Idaho,
under 42 U.S.C. § 1983, alleging that the City had violated
their Eighth Amendment rights in enforcing two ordinances
that respectively barred, inter alia, (1) camping in public
spaces and (2) sleeping in public places without permission.
920 F.3d at 603–04, 606. All six plaintiffs had been
convicted of violating at least one of the ordinances, id. at
606, but we held that claims for retrospective relief based on
those convictions were barred by the doctrine of Heck v.
Humphrey, 512 U.S. 477 (1994). See Martin, 920 F.3d at
611–12 (noting that, under Heck, a § 1983 action may not be
maintained if success in the suit would necessarily show the
invalidity of the plaintiff’s criminal conviction, unless that
conviction has already been set aside or invalidated). What
remained, after application of the Heck bar, were the claims

1
The majority’s decision is all the more troubling because, in truth, the
foundation on which it is built is deeply flawed: Martin seriously
misconstrued the Eighth Amendment and the Supreme Court’s caselaw
construing it. See infra at 90–92. But I am bound by Martin, and—
unlike the majority—I faithfully apply it here.
58 JOHNSON V. CITY OF GRANTS PASS

for retrospective relief asserted by two plaintiffs (Robert
Martin and Pamela Hawkes) in connection with citations
they had received that did not result in convictions, and the
claims for prospective injunctive and declaratory relief
asserted by Martin and one additional plaintiff (Robert
Anderson). Id. at 604, 610, 613–15; see also id. at 618–20
(Owens, J., dissenting in part) (dissenting from the
majority’s holding that the prospective relief claims survived
Heck). On the merits of those three plaintiffs’ Eighth
Amendment claims, the Martin panel held that the district
court had erred in granting summary judgment for the City.
Id. at 615–18.
Although the text of the Eighth Amendment’s Cruel and
Unusual Punishments Clause states only that “cruel and
unusual punishments” shall not be “inflicted,” U.S. CONST.,
amend. VIII (emphasis added), the Martin panel nonetheless
held that the Clause “places substantive limits” on the
government’s ability to criminalize “sitting, sleeping, or
lying outside on public property,” 920 F.3d at 615–16. In
reaching this conclusion, the Martin panel placed dispositive
reliance on the Supreme Court’s decisions in Robinson v.
California, 370 U.S. 660 (1962), and Powell v. Texas, 392
U.S. 514 (1968). I therefore briefly review those two
decisions before returning to Martin.
Robinson held that a California law that made “it a
criminal offense for a person to ‘be addicted to the use of
narcotics,’” 370 U.S. at 660 (quoting CAL. HEALTH &
SAFETY CODE § 11721 (1957 ed.)), and that did so “even
though [the person] has never touched any narcotic drug
within the State or been guilty of any irregular behavior
there, inflicts a cruel and unusual punishment in violation of
the Fourteenth Amendment,” id. at 667. The California
statute, the Court emphasized, made the “‘status’ of narcotic
 JOHNSON V. CITY OF GRANTS PASS 59

addiction a criminal offense,” regardless of whether the
defendant had “ever used or possessed any narcotics within
the State” or had “been guilty of any antisocial behavior
there.” Id. at 666 (emphasis added).
In Powell, a fractured Supreme Court rejected Powell’s
challenge to his conviction, under a Texas statute, for being
“found in a state of intoxication in any public place.” 392
U.S. at 517 (quoting TEX. PENAL CODE art. 477 (1952)). A
four-Justice plurality distinguished Robinson on the ground
that, because Powell “was convicted, not for being a chronic
alcoholic, but for being in public while drunk on a particular
occasion,” Texas had “not sought to punish a mere status, as
California did in Robinson.” Id. at 532 (plurality). The
plurality held that Robinson did not address, much less
establish, that “certain conduct cannot constitutionally be
punished because it is, in some sense, ‘involuntary’ or
‘occasioned by a compulsion.’” Id. at 533 (emphasis added).
Justice White concurred in the judgment on the narrower
ground that Powell had failed to establish the “prerequisites
to the possible invocation of the Eighth Amendment,” which
would have required him to “satisfactorily show[] that it was
not feasible for him to have made arrangements to prevent
his being in public when drunk and that his extreme
drunkenness sufficiently deprived him of his faculties on the
occasion in issue.” Id. at 552 (White, J., concurring). And
because, in Justice White’s view, the Eighth Amendment at
most provided a case-specific affirmative “defense” to
application of the statute, id. at 552 n.4, he agreed that the
Texas statute was “constitutional insofar as it authorizes a
police officer to arrest any seriously intoxicated person
when he is encountered in a public place,” id. at 554 n.5
(emphasis added). Emphasizing that Powell himself “did
not show that his conviction offended the Constitution” and
60 JOHNSON V. CITY OF GRANTS PASS

that Powell had “made no showing that he was unable to stay
off the streets on the night in question,” Justice White
concurred in the majority’s affirmance of Powell’s
conviction. Id. at 554 (emphasis added).
The four dissenting Justices in Powell agreed that the
Texas statute “differ[ed] from that in Robinson” inasmuch as
it “covers more than a mere status.” 392 U.S. at 567 (Fortas,
J., dissenting). There was, as the dissenters noted, “no
challenge here to the validity of public intoxication statutes
in general or to the Texas public intoxication statute in
particular.” Id. at 558. Indeed, the dissenters agreed that, in
the ordinary case “when the State proves such [public]
presence in a state of intoxication, this will be sufficient for
conviction, and the punishment prescribed by the State may,
of course, be validly imposed.” Id. at 569. Instead, the
dissenters concluded that the application of the statute to
Powell was unconstitutional “on the occasion in question”
in light of the Texas trial court’s findings about Powell’s
inability to control his condition. Id. at 568 n.31 (emphasis
added). Those findings concerning Powell’s “constitutional
defense,” the dissenters concluded, established that Powell
“was powerless to avoid drinking” and “that, once
intoxicated, he could not prevent himself from appearing in
public places.” Id. at 558, 568; see also id. at 525 (plurality)
(describing the elements of the “constitutional defense” that
Powell sought to have the Court recognize).
While acknowledging that the plurality in Powell had
“interpret[ed] Robinson as precluding only the
criminalization of ‘status,’ not of ‘involuntary’ conduct,” the
Martin panel held that the controlling opinion was Justice
White’s concurrence. 920 F.3d at 616. As I have noted,
Justice White concluded that the Texas statute against public
drunkenness could constitutionally be applied, even to an
 JOHNSON V. CITY OF GRANTS PASS 61

alcoholic, if the defendant failed to “satisfactorily show[]
that it was not feasible for him to have made arrangements
to prevent his being in public when drunk and that his
extreme drunkenness sufficiently deprived him of his
faculties on the occasion in issue.” Powell, 392 U.S. at 552
(White, J., concurring). 2 Under Marks v. United States, 430
U.S. 188 (1977), this narrower reasoning given by Justice
White for joining the Powell majority’s judgment upholding
the conviction constitutes the Court’s holding in that case.
See id. at 193 (“When a fragmented Court decides a case and
no single rationale explaining the result enjoys the assent of
five Justices, ‘the holding of the Court may be viewed as that
position taken by those Members who concurred in the
judgments on the narrowest grounds.’” (citation omitted));
see also United States v. Moore, 486 F.2d 1139, 1151 (D.C.
Cir. 1973) (en banc) (Wilkey, J., concurring) (concluding
that the judgment in Powell rested on the overlap in the
views of “four members of the Court” who held that
Powell’s acts of public drunkenness “were punishable
without question” and the view of Justice White that
Powell’s acts “were punishable so long as the acts had not
been proved to be the product of an established irresistible
compulsion”).
The Martin panel quoted dicta in Justice White’s
concurrence suggesting that, if the defendant could make the
requisite “showing” that “resisting drunkenness is

2
Justice White, however, did not resolve the further question of whether,
if such a showing had been made, the Eighth Amendment would have
been violated. He stated that the Eighth Amendment “might bar
conviction” in such circumstances, but he found it “unnecessary” to
decide whether that “novel construction of that Amendment” was
ultimately correct. 392 U.S. at 552–53 & n.4 (emphasis added).
62 JOHNSON V. CITY OF GRANTS PASS

impossible and that avoiding public places when intoxicated
is also impossible,” then the Texas statute “[a]s applied” to
such persons might violate “the Eighth Amendment.” 920
F.3d at 616 (quoting Powell, 392 U.S. at 551 (White, J.,
concurring)). These dicta, Martin noted, overlapped with
similar statements in the dissenting opinion in Powell, and
from those two opinions, the Martin panel derived the
proposition that “five Justices” had endorsed the view that
“the Eighth Amendment prohibits the state from punishing
an involuntary act or condition if it is the unavoidable
consequence of one’s status or being.” Id. (citation omitted).
Applying that principle, Martin held that “the Eighth
Amendment prohibits the imposition of criminal penalties
for sitting, sleeping, or lying outside on public property for
homeless individuals who cannot obtain shelter.” Id.
Because “human beings are biologically compelled to rest,
whether by sitting, lying, or sleeping,” Martin held that
prohibitions on such activities in public cannot be applied to
those who simply have “no option of sleeping indoors.” Id.
at 617.
The Martin panel emphasized that its “holding is a
narrow one.” Id. Martin recognized that, if there are
sufficient available shelter beds for all homeless persons
within a jurisdiction, then of course there can be no Eighth
Amendment impediment to enforcing laws against sleeping
and camping in public, because those persons engaging in
such activities cannot be said to have “no option of sleeping
indoors.” Id. But “so long as there is a greater number of
homeless individuals in a jurisdiction than the number of
available beds in shelters, the jurisdiction cannot prosecute
homeless individuals for involuntarily sitting, lying, and
sleeping in public.” Id. (simplified) (emphasis added).
Consistent with Justice White’s concurrence, the Martin
 JOHNSON V. CITY OF GRANTS PASS 63

panel emphasized that, in determining whether the defendant
was being punished for conduct that was “involuntary and
inseparable from status,” id. (citation omitted), the specific
individual circumstances of the defendant must be
considered. Thus, Martin explained, the panel’s “holding
does not cover individuals who do have access to adequate
temporary shelter, whether because they have the means to
pay for it or because it is realistically available to them for
free, but who choose not to use it.” Id. at 617 n.8. But
Martin held that, where it is shown that homeless persons
“do not have a single place where they can lawfully be,” an
ordinance against sleeping or camping in public, “as applied
to them, effectively punish[es] them for something for which
they may not be convicted under the Eighth Amendment.”
Id. at 617 (simplified). Concluding that the remaining
plaintiffs had “demonstrated a genuine issue of material
fact” as to their lack of any access to indoor shelter, Martin
reversed the district court’s grant of summary judgment to
the City. Id. at 617 n.9; see also id. at 617–18.
B
With that backdrop in place, I turn to the specific facts of
this case.
In the operative Third Amended Complaint, named
Plaintiffs Debra Blake, Gloria Johnson, and John Logan
sought to represent a putative class of “all involuntarily
homeless people living in Grants Pass, Oregon” in pursuing
a variety of claims under 42 U.S.C. § 1983 against the City
of Grants Pass. In particular, they asserted that the following
three sections of the Grants Pass Municipal Code
(“GPMC”), which generally prohibited sleeping and
camping in public, violated the Eighth Amendment’s Cruel
64 JOHNSON V. CITY OF GRANTS PASS

and Unusual Punishments Clause and its Excessive Fines
Clause:

5.61.020 Sleeping on Sidewalks, Streets, Alleys,
or Within Doorways Prohibited
A. No person may sleep on public sidewalks,
streets, or alleyways at any time as a matter
of individual and public safety.
B. No person may sleep in any pedestrian or
vehicular entrance to public or private
property abutting a public sidewalk.
C. In addition to any other remedy provided
by law, any person found in violation of this
section may be immediately removed from
the premises.
5.61.030 Camping Prohibited
No person may occupy a campsite in or upon
any sidewalk, street, alley, lane, public right
of way, park, bench, or any other publicly-
owned property or under any bridge or
viaduct, [subject to specified exceptions]. 3
6.46.090 Camping in Parks
A. It is unlawful for any person to camp, as
defined in GPMC Title 5, within the
boundaries of the City parks.
B. Overnight parking of vehicles shall be
unlawful. For the purposes of this section,

3
The definition of “campsite” for purposes of GPMC 5.61.030 includes
using a “vehicle” as a temporary place to live. See GPMC 5.61.010(B).
 JOHNSON V. CITY OF GRANTS PASS 65

anyone who parks or leaves a vehicle parked
for two consecutive hours or who remains
within one of the parks as herein defined for
purposes of camping as defined in this
section for two consecutive hours, without
permission from the City Council, between
the hours of midnight and 6:00 a.m. shall be
considered in violation of this Chapter.

Plaintiffs’ complaint also challenged the following “park
exclusion” ordinance as a violation of their “Eighth and
Fourteenth Amendment rights”:

6.46.350 Temporary Exclusion from City Park
Properties
An individual may be issued a written exclusion
order by a police officer of the Public Safety
Department barring said individual from all City
Park properties for a period of 30 days, if within a
one-year period the individual:
A. Is issued 2 or more citations for violating
regulations related to City park properties, or
B. Is issued one or more citations for
violating any state law(s) while on City park
property. 4

4
This latter ordinance was amended in September 2020 to read as
follows:
An individual may be issued a written exclusion order by a
police officer of the Public Safety Department barring said
66 JOHNSON V. CITY OF GRANTS PASS

In an August 2019 order, the district court certified a
class seeking declaratory and injunctive relief with respect
to Plaintiffs’ Eighth Amendment claims, pursuant to Federal
Rule of Civil Procedure 23(b)(2). 5 As defined in the court’s
order, the class consists of “[a]ll involuntarily homeless
individuals living in Grants Pass, Oregon, including
homeless individuals who sometimes sleep outside city
limits to avoid harassment and punishment by Defendant as
addressed in this lawsuit.”
After the parties filed cross-motions for summary
judgment, the district court in July 2020 granted Plaintiffs’
motion in relevant part and denied the City’s motion. The
district court held that, under Martin, the City’s enforcement
of the above-described ordinances violated the Cruel and
Unusual Punishments Clause. The court further held that,
for similar reasons, the ordinances imposed excessive fines

individual from a City park for a period of 30 days, if within a
one-year period the individual:
A. Is issued two or more citations in the same City park
for violating regulations related to City park
properties, or
B. Is issued one or more citations for violating any
state law(s) while on City park property.
The foregoing exclusion order shall only apply to the particular
City park in which the offending conduct under 6.46.350(A) or
6.46.350(B) occurred.
5
At the time that the district court certified the class, the operative
complaint was the Second Amended Complaint. That complaint was
materially comparable to the Third Amended Complaint, with the
exception that it did not mention the park-exclusion ordinance or seek
injunctive relief with respect to it.
 JOHNSON V. CITY OF GRANTS PASS 67

in violation of the Eighth Amendment’s Excessive Fines
Clause.
After Plaintiffs voluntarily dismissed those claims as to
which summary judgment had been denied to both sides, the
district court entered final judgment declaring that the City’s
enforcement of the anti-camping and anti-sleeping
ordinances (GPMC §§ 5.61.020, 5.61.030, 6.46.090)
violates “the Eighth Amendment prohibition against cruel
and unusual punishment” and its “prohibition against
excessive fines.” Nonetheless, the court’s final injunctive
relief did not prohibit all enforcement of these provisions.
Enforcement of § 5.61.020 (the anti-sleeping ordinance) was
not enjoined at all. The City was enjoined from enforcing
the anti-camping ordinances (GPMC §§ 5.61.030 and
6.46.090) “without first giving a person a warning of at least
24 hours before enforcement.” It was further enjoined from
enforcing those ordinances, and a related ordinance against
criminal trespass on city property, in all but one City park
during specified evening and overnight hours, which varied
depending upon the time of year. Finally, the City was
enjoined from enforcing the park-exclusion ordinance. 6

6
The district court’s summary judgment order and judgment also
declared that a separate ordinance (GPMC § 6.46.355), which addressed
the procedures for appealing park-exclusion orders under § 6.46.350,
failed to provide sufficient procedural due process. The parties dispute
whether this claim was adequately raised and reached below, but as the
majority notes, this claim for purely prospective relief has been mooted
by the City’s subsequent amendment of § 6.46.355 in a way that removes
the features that had led to its invalidation. See Opin. at 55. Accordingly,
this aspect of the district court’s judgment should be vacated and
remanded with instructions to dismiss as moot Plaintiffs’ challenge to
§ 6.46.355.
68 JOHNSON V. CITY OF GRANTS PASS

The City timely appealed from that judgment and from
the district court’s subsequent award of attorneys’ fees.
II
Before turning to the merits, I first address the question
of our jurisdiction under Article III of the Constitution.
Plains Com. Bank v. Long Family Land & Cattle Co., 554
U.S. 316, 324 (2008) (holding that courts “bear an
independent obligation to assure [them]selves that
jurisdiction is proper before proceeding to the merits”).
“In limiting the judicial power to ‘Cases’ and
‘Controversies,’ Article III of the Constitution restricts it to
the traditional role of Anglo-American courts, which is to
redress or prevent actual or imminently threatened injury to
persons caused by private or official violation of law.”
Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009).
“The doctrine of standing is one of several doctrines that
reflect this fundamental limitation,” and in the context of a
request for prospective injunctive or declaratory relief, that
doctrine requires a plaintiff to “show that he is under threat
of suffering ‘injury in fact’ that is concrete and
particularized; the threat must be actual and imminent, not
conjectural or hypothetical; it must be fairly traceable to the
challenged action of the defendant; and it must be likely that
a favorable judicial decision will prevent or redress the
injury.” Id. at 493. The requirement to show an actual threat
of imminent injury-in-fact in order to obtain prospective
relief is a demanding one: the Supreme Court has
“repeatedly reiterated that threatened injury must be
certainly impending to constitute injury in fact, and that
allegations of possible future injury are not sufficient.”
Clapper v. Amnesty Int’l USA, 568 U.S 398, 409 (2013)
(simplified).
 JOHNSON V. CITY OF GRANTS PASS 69

As “an indispensable part of the plaintiff’s case,” each of
these elements of Article III standing “must be supported in
the same way as any other matter on which the plaintiff bears
the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Because, as in Lujan, this case arises from a grant of
summary judgment, the question is whether, in seeking
summary judgment, Plaintiffs “‘set forth’ by affidavit or
other evidence ‘specific facts’” in support of each element
of standing. Id. (citation omitted). Moreover, “standing is
not dispensed in gross,” and therefore “a plaintiff must
demonstrate standing for each claim he seeks to press.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352–53
(2006) (emphasis added) (citation omitted).
Plaintiffs’ operative complaint named three individual
plaintiffs as class representatives (John Logan, Gloria
Johnson, and Debra Blake), and we have jurisdiction to
address the merits of a particular claim if any one of them
sufficiently established Article III standing as to that claim.
See Secretary of the Interior v. California, 464 U.S. 312, 319
n.3 (1984) (“Since the State of California clearly does have
standing, we need not address the standing of the other
[plaintiffs], whose position here is identical to the State’s.”);
see also Bates v. United Parcel Service, Inc., 511 F.3d 974,
985 (9th Cir. 2007) (en banc) (“In a class action, standing is
satisfied if at least one named plaintiff meets the
requirements.”). Accordingly, I address the showing made
by each named Plaintiff in support of summary judgment.
In my view, Plaintiff John Logan failed to establish that
he has standing to challenge any of the ordinances in
question. In support of his motion for summary judgment,
Logan submitted a half-page declaration stating, in
70 JOHNSON V. CITY OF GRANTS PASS

conclusory fashion, that he is “involuntarily homeless in
Grants Pass,” but that he is “sleeping in [his] truck at night
at a rest stop North of Grants Pass.” He asserted that he
“cannot sleep in the City of Grants Pass for fear that [he] will
be awakened, ticketed, fined, moved along, trespassed[,] and
charged with Criminal Trespass.” Logan also previously
submitted two declarations in support of his class
certification motion. In them, Logan stated that he has been
homeless in Grants Pass for nearly seven of the last 10 years;
that there have been occasions in the past in which police in
Grants Pass have awakened him in his car and instructed him
to move on; and that he now generally sleeps in his truck
outside of Grants Pass. Logan has made no showing that,
over the seven years that he has been homeless, he has ever
been issued a citation for violating the challenged
ordinances, nor has he provided any facts to establish either
that the threat of such a citation is “certainly impending” or
that “there is a substantial risk” that he may be issued a
citation. Susan B. Anthony List v. Driehaus, 573 U.S. 149,
158 (2014) (citation and internal quotation marks omitted).
At best, his declarations suggest that he would prefer to sleep
in his truck within the City limits rather than outside them,
and that he is subjectively deterred from doing so due to the
City’s ordinances. But such “[a]llegations of a subjective
‘chill’ are not an adequate substitute for a claim of specific
present objective harm or a threat of specific future harm.”
Laird v. Tatum, 408 U.S. 1, 13–14 (1972). Nor has Logan
provided any facts that would show that he has any actual
intention or plans to stay overnight in the City. See Lopez v.
Candaele, 630 F.3d 775, 787 (9th Cir. 2010) (“[W]e have
concluded that pre-enforcement plaintiffs who failed to
allege a concrete intent to violate the challenged law could
not establish a credible threat of enforcement.”). Even if his
 JOHNSON V. CITY OF GRANTS PASS 71

declarations could be generously construed as asserting an
intention to stay in the City at some future point, “[s]uch
‘some day’ intentions—without any description of concrete
plans, or indeed even any specification of when the some day
will be—do not support a finding of the ‘actual or imminent’
injury that [the Court’s] cases require.” Lujan, 504 U.S. at
564; cf. Driehaus, 573 U.S. at 161 (permitting pre-
enforcement challenge against ordinance regulating
election-related speech where plaintiffs’ allegations
identified “specific statements they intend[ed] to make in
future election cycles”). And, contrary to what the majority
suggests, see Opin. at 30–31 n.16, Logan’s vaguely
described knowledge about what has happened to other
people cannot establish his standing. Accordingly, Logan
failed to carry his burden to establish standing for the
prospective relief he seeks.
By contrast, Plaintiff Gloria Johnson made a sufficient
showing that she has standing to challenge the general anti-
camping ordinance, GPMC § 5.61.030, and the parks anti-
camping ordinance, GPMC § 6.46.090. Although Johnson’s
earlier declaration in support of class certification stated that
she “often” sleeps in her van outside the City limits, she also
stated that she “continue[s] to live without shelter in Grants
Pass” and that, consequently, “[a]t any time, I could be
arrested, ticketed, fined, and prosecuted for sleeping outside
in my van or for covering myself with a blanket to stay
warm” (emphasis added). Her declaration also recounts
“dozens of occasions” in which the anti-camping ordinances
have been enforced against her, either by instructions to
“move along” or, in one instance, by issuance of a citation
for violating the parks anti-camping ordinance, GPMC
§ 6.46.090. Because Johnson presented facts showing that
she continues to violate the anti-camping ordinances and
72 JOHNSON V. CITY OF GRANTS PASS

that, in light of past enforcement, she faces a credible threat
of future enforcement, she has standing to challenge those
ordinances. Lujan, 504 U.S. at 564. Johnson, however,
presented no facts that would establish standing to challenge
either the anti-sleeping ordinance (which, unlike the anti-
camping ordinances, does not apply to sleeping in a vehicle),
the park-exclusion ordinance, or the criminal trespass
ordinance. 7
Debra Blake sufficiently established her standing, both
in connection with the class certification motion and the
summary judgment motion. Although she was actually

7
The majority concludes that Johnson’s standing to challenge the anti-
camping ordinances necessarily establishes her standing to challenge the
park-exclusion and criminal-trespass ordinances. See Opin. at 30 n.15.
But as the district court explained, the undisputed evidence concerning
Grants Pass’s enforcement policies established that “Grants Pass first
issues fines for violations and then either issues a trespass order or
excludes persons from all parks before a person is charged with
misdemeanor criminal trespass” (emphasis added). Although Johnson’s
continued intention to sleep in her vehicle in Grants Pass gives her
standing to challenge the anti-camping ordinances, Johnson has wholly
failed to plead any facts to show, inter alia, that she intends to engage in
the further conduct that might expose her to a “credible threat” of
prosecution under the park-exclusion or criminal trespass ordinances.
Driehaus, 573 U.S. at 159 (citation omitted). Johnson’s declaration
states that she has been homeless in Grants Pass for three years, but it
does not contend that she has ever been issued, or threatened with
issuance of, a trespass order, a park-exclusion order, or a criminal
trespass charge or that she has “an intention to engage in a course of
conduct” that would lead to such an order or charge. Id. (citation
omitted). Because “standing is not dispensed in gross,” see
DaimlerChrysler, 547 U.S. at 353 (citation omitted), Johnson must
separately establish her standing with respect to each ordinance, and she
has failed to do so with respect to the park-exclusion and criminal-
trespass ordinances.
 JOHNSON V. CITY OF GRANTS PASS 73

living in temporary housing at the time she submitted her
declarations in support of class certification in March and
June 2019, she explained that that temporary housing would
soon expire; that she would become homeless in Grants Pass
again; and that she would therefore again be subject to being
“arrested, ticketed and prosecuted for sleeping outside or for
covering myself with a blanket to stay warm.” And, as her
declaration at summary judgment showed, that is exactly
what happened: in September 2019, she was cited for
sleeping in the park in violation of GPMC § 6.46.090,
convicted, and fined. Her declarations also confirmed that
Blake’s persistence in sleeping and camping in a variety of
places in Grants Pass had also resulted in a park-exclusion
order (which she successfully appealed), and in citations for
violation of the anti-sleeping ordinance, GPMC § 5.61.020
(for sleeping in an alley), and for criminal trespass on City
property. Based on this showing, I conclude that Blake
established standing to challenge each of the ordinances at
issue in the district court’s judgment.
However, Blake subsequently passed away during this
litigation, as her counsel noted in a letter to this court
submitted under Federal Rule of Appellate Procedure 43(a).
Because the only relief she sought was prospective
declaratory and injunctive relief, Blake’s death moots her
claims. King v. County of Los Angeles, 885 F.3d 548, 553,
559 (9th Cir. 2018). And because, as explained earlier,
Blake was the only named Plaintiff who established standing
with respect to the anti-sleeping, park-exclusion, and
criminal trespass ordinances that are the subject of the
district court’s classwide judgment, her death raises the
question whether we consequently lack jurisdiction over
those additional claims. Under Sosna v. Iowa, 419 U.S. 393
(1975), the answer to that question would appear to be no.
74 JOHNSON V. CITY OF GRANTS PASS

Blake established her standing at the time that the class was
certified and, as a result, “[w]hen the District Court certified
the propriety of the class action, the class of unnamed
persons described in the certification acquired a legal status
separate from the interest asserted by [Blake].” Id. at 399.
“Although the controversy is no longer alive as to [Blake], it
remains very much alive for the class of persons she [had]
been certified to represent.” Id. at 401; see also Nielsen v.
Preap, 139 S. Ct. 954, 963 (2019) (finding no mootness
where “there was at least one named plaintiff with a live
claim when the class was certified”); Bates v. United Parcel
Service, Inc., 511 F.3d 974, 987–88 (9th Cir. 2007) (en
banc).
There is, however, presently no class representative who
meets the requirements for representing the certified class
with respect to the anti-sleeping, park-exclusion, and
criminal trespass ordinances. 8 Although that would

8
Because—in contrast to the named representative in Sosna, who had
Article III standing at the time of certification—Johnson and Logan
never had standing to represent the class with respect to the anti-sleeping
ordinance, they may not represent the class as to such claims. See Sosna,
419 U.S. at 403 (holding that a previously proper class representative
whose claims had become moot on appeal could continue to represent
the class for purposes of that appeal); see also Bates, 511 F.3d at 987
(emphasizing that the named plaintiff “had standing at the time of
certification”); B.K. ex rel. Tinsley v. Snyder, 922 F.3d 957, 966 (9th Cir.
2019) (stating that “class representatives must have Article III
standing”); cf. NEI Contracting & Eng’g, Inc. v. Hanson Aggregates
Pac. SW., Inc., 926 F.3d 528, 533 (9th Cir. 2019) (holding that, where
the named plaintiffs never had standing, the class “must be decertified”).
The majority correctly concedes this point. See Opin. at 32–33.
Nonetheless, the majority wrongly allows Johnson and Logan to
represent the class as to the park-exclusion and criminal-trespass
 JOHNSON V. CITY OF GRANTS PASS 75

normally require a remand to permit the possible substitution
of a new class member, see Kuahulu v. Employers Ins. of
Wausau, 557 F.2d 1334, 1336–37 (9th Cir. 1977), I see no
need to do so here, and that remains true even if one assumes
that the failure to substitute a new class representative might
otherwise present a potential jurisdictional defect. As noted
earlier, we have jurisdiction to address all claims concerning
the two anti-camping ordinances, as to which Johnson has
sufficient standing to represent the certified class. And, as I
shall explain, the class as to those claims should be
decertified, and the reasons for that decertification rest on
cross-cutting grounds that apply equally to all claims. As a
result, I conclude that we have jurisdiction to order the
complete decertification of the class as to all claims, without
the need for a remand to substitute a new class representative
as to the anti-sleeping, park-exclusion, and criminal trespass
ordinances. Cf. Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 98 (1998) (holding that, where “a merits issue [is]
dispositively resolved in a companion case,” that merits
ruling could be applied to the other companion case without
the need for a remand to resolve a potential jurisdictional
issue).
III
I therefore turn to whether the district court properly
certified the class under Rule 23 of the Federal Rules of Civil
Procedure. In my view, the district court relied on erroneous
legal premises in certifying the class, and it therefore abused
its discretion in doing so. B.K., 922 F.3d at 965.

ordinances, based on its erroneous conclusion that they established
standing to challenge those ordinances. See supra at 69–72 & n.7.
76 JOHNSON V. CITY OF GRANTS PASS

A
“To obtain certification of a plaintiff class under Federal
Rule of Civil Procedure 23, a plaintiff must satisfy both the
four requirements of Rule 23(a)—‘numerosity,
commonality, typicality, and adequate representation’—and
‘one of the three requirements listed in Rule 23(b).’” A.B. v.
Hawaii State Dep’t of Educ., 30 F.4th 828, 834 (9th Cir.
2022) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 345, 349 (2011)). Commonality, which is contested
here, requires a showing that the class members’ claims
“depend upon a common contention” that is “of such a
nature that it is capable of classwide resolution—which
means that determination of its truth or falsity will resolve
an issue that is central to the validity of each one of the
claims in one stroke.” Wal-Mart, 564 U.S. at 350. In finding
that commonality was satisfied with respect to the Eighth
Amendment claims, the district court relied solely on the
premise that whether the City’s conduct “violates the Eighth
Amendment” was a common question that could be resolved
on a classwide basis. And in finding that Rule 23(b) was
satisfied here, the district court relied solely on Rule
23(b)(2), which provides that a “class action may be
maintained” if “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so
that final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole.” FED. R. CIV.
P. 23(b)(2). That requirement was satisfied, the district court
concluded, because (for reasons similar to those that
underlay its commonality analysis) the City’s challenged
enforcement of the ordinances “applies equally to all class
members.” The district court’s commonality and Rule
23(b)(2) analyses are both flawed because they are based on
an incorrect understanding of our decision in Martin.
 JOHNSON V. CITY OF GRANTS PASS 77

As the earlier discussion of Martin makes clear, the
Eighth Amendment theory adopted in that case requires an
individualized inquiry in order to assess whether any
individuals to whom the challenged ordinances are being
applied “do have access to adequate temporary shelter,
whether because they have the means to pay for it or because
it is realistically available to them for free, but who choose
not to use it.” 920 F.3d at 617 n.8. See supra at 61–63. Only
when persons “do not have a single place where they can
lawfully be,” can it be said that an ordinance against sleeping
or camping in public, “as applied to them, effectively
punish[es] them for something for which they may not be
convicted under the Eighth Amendment.” Id. at 617
(simplified) (emphasis added).
Of course, such an individualized inquiry is not
required—and no Eighth Amendment violation occurs under
Martin—when the defendant can show that there is adequate
shelter space to house all homeless persons in the
jurisdiction. Id. But the converse is not true—the mere fact
that a city’s shelters are full does not by itself establish,
without more, that any particular person who is sleeping in
public does “not have a single place where [he or she] can
lawfully be.” Id. The logic of Martin, and of the opinions
in Powell on which it is based, requires an assessment of a
person’s individual situation before it can be said that the
Eighth Amendment would be violated by applying a
particular provision against that person. Indeed, the opinions
in Powell on which Martin relied—Justice White’s
concurring opinion and the opinion of the dissenting
Justices—all agreed that, at most, the Eighth Amendment
provided a case-specific affirmative defense that would
require the defendant to provide a “satisfactor[y] showing
that it was not feasible for him to have made arrangements”
78 JOHNSON V. CITY OF GRANTS PASS

to avoid the conduct at issue. Powell, 392 U.S. at 552
(White, J., concurring); id. at 568 n.31 (Fortas, J., dissenting)
(agreeing with Justice White that the issue is whether the
defendant “on the occasion in question” had shown that
avoiding the conduct was “impossible”); see also supra at
59–60. 9
In light of this understanding of Martin, the district court
clearly erred in finding that the requirement of commonality
was met here. “What matters to class certification is not the
raising of common ‘questions’—even in droves—but rather,
the capacity of a class-wide proceeding to generate common
answers apt to drive the resolution of the litigation.
Dissimilarities within the proposed class are what have the
potential to impede the generation of common answers.”

9
The majority incorrectly contends that the dissenters in Powell did not
endorse Justice White’s conclusion that the defendant bears the burden
to establish that his or her conduct was involuntary. See Opin. at 48–51.
On the contrary, the Powell dissenters’ entire argument rested on the
affirmative “constitutional defense” presented at the trial in that case and
on the findings made by the trial court in connection with that defense.
See 392 U.S. at 558 (Fortas, J., dissenting). The majority’s suggestion
that I have taken that explicit reference to Powell’s defense “out of
context,” see Opin. at 49 n.29, is demonstrably wrong—the context of
the case was precisely the extensive affirmative defense that Powell
presented at trial, including the testimony of an expert. See 392 U.S. at
517–26 (plurality) (summarizing the testimony). And, of course, in
Martin, the issue was raised in the context of a § 1983 action in which
the plaintiffs challenging the laws bore the burden to prove the
involuntariness of their relevant conduct. The majority points to nothing
that would plausibly support the view that Powell and Martin might
require the government to carry the burden to establish voluntariness.
See Opin. at 50 n.31 (leaving this issue open). The majority claims that
it can sidestep this issue here, but that is also wrong: the burden issue is
critical both to the class-certification analysis and to the issue of
summary judgment on the merits. See infra at 78–89.
 JOHNSON V. CITY OF GRANTS PASS 79

Wal-Mart, 564 U.S. at 350 (simplified). Under Martin, the
answer to the question whether the City’s enforcement of
each of the anti-camping ordinances violates the Eighth
Amendment turns on the individual circumstances of each
person to whom the ordinance is being applied on a given
occasion. That question is simply not one that can be
resolved, on a common basis, “in one stroke.” Id. That
requires decertification.
For similar reasons, the district court also erred in
concluding that the requirements of Rule 23(b)(2) were met.
By its terms, Rule 23(b)(2) is satisfied only if (1) the
defendant has acted (or refused to act) on grounds that are
generally applicable to the class as whole and (2) as a result,
final classwide or injunctive relief is appropriate. As the
Supreme Court has observed, “[t]he key to the (b)(2) class is
‘the indivisible nature of the injunctive or declaratory
remedy warranted—the notion that the conduct is such that
it can be enjoined or declared unlawful only as to all of the
class members or as to none of them.’” Wal-Mart, 564 U.S.
at 360. It follows that, when the wrongfulness of the
challenged conduct with respect to any particular class
member depends critically upon the individual
circumstances of that class member, a class action under
Rule 23(b)(2) is not appropriate. In such a case, in which
(for example) the challenged enforcement of a particular law
may be lawful as to some persons and not as to others,
depending upon their individual circumstances, the all-or-
nothing determination of wrongfulness that is the foundation
of a (b)(2) class is absent: in such a case, it is simply not true
that the defendant’s “conduct is such that it can be enjoined
or declared unlawful only as to all of the class members or
as to none of them.’” Id. (emphasis added).
80 JOHNSON V. CITY OF GRANTS PASS

Because Martin requires an assessment of each person’s
individual circumstances in order to determine whether
application of the challenged ordinances violates the Eighth
Amendment, these standards for the application of Rule
23(b)(2) were plainly not met in this case. That is, because
the applicable law governing Plaintiffs’ claims would entail
“a process through which highly individualized
determinations of liability and remedy are made,”
certification of a class under Rule 23(b)(2) is improper.
Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 499 (7th Cir.
2012). Moreover, the mere fact that the district court’s final
judgment imposes sweeping across-the-board injunctive
relief that disregards individual differences in determining
the defendant’s liability does not mean that Rule 23(b)(2)
has been satisfied. The rule requires that any such classwide
relief be rooted in a determination of classwide liability—
the defendant must have acted, or be acting, unlawfully “on
grounds that apply generally to the class, so that final
injunctive or corresponding declaratory relief is appropriate
respecting the class as a whole.” FED. R. CIV. P. 23(b)(2)
(emphasis added). That requirement was not established
here, and the class must be decertified. 10

10
The majority wrongly concludes that the City has forfeited any
argument concerning Rule 23(b)(2) because it did not specifically
mention that subdivision of the rule in its opening brief. Opin. at 41.
This “Simon Says” approach to reading briefs is wrong. The substance
of the argument is contained in the opening brief, in which the City
explicitly contended that Martin requires “a more individualized
analysis” than the district court applied and that, as a result, “neither FED.
R. CIV. P. 23 nor Martin provide plaintiffs the ability to establish the type
of sweeping class-wide claims advanced in this case.” Indeed, Plaintiffs
themselves responded to this argument, in their answering brief, by
 JOHNSON V. CITY OF GRANTS PASS 81

B
The majority provides two responses to this analysis, but
both of them are wrong.
First, the majority contends that Martin established a
bright-line rule that the government cannot prosecute
“involuntarily homeless persons for sleeping in public”—or,
presumably, for camping—“if there are no other public areas
or appropriate shelters where those individuals can sleep.”
See Opin. at 19. As the majority makes clear, that latter
inquiry into available shelter space turns on whether “the
number of homeless persons outnumber the available shelter
beds,” except that, “[w]hen assessing the number of shelter
spaces,” shelters that have a “mandatory religious focus” are
not to be counted. See Opin. at 13, 19 (citation omitted).
Moreover, although the majority’s phrasing pays lip service
to the fact that the persons at issue must be “involuntarily
homeless,” the majority also explicitly rejects the City’s
contention that “the holding of Martin can only be applied
after an individualized inquiry of each alleged involuntarily
homeless person’s access to shelter.” See Opin. at 35. The
net result, for class certification purposes, is that any issue of
individualized involuntariness is set aside and Martin is
thereby reduced to a simplistic formula—to be resolved on a
classwide basis—into whether the number of homeless
persons in the jurisdiction exceeds the number of available
shelter beds. See Opin. at 34–35, 38.
The majority’s analysis fails, because Martin does not
allow the individualized inquiry into involuntariness to be
set aside in this way. Martin states that, if there are

explaining why they believe that the requirements of Rule 23(b)(2) were
met.
82 JOHNSON V. CITY OF GRANTS PASS

insufficient available beds at shelters, then a jurisdiction
“cannot prosecute homeless individuals for ‘involuntarily
sitting, lying, and sleeping in public.’” 920 F.3d at 617
(emphasis added). The lack of adequate shelter beds thus
merely eliminates a safe-harbor that might otherwise have
allowed a jurisdiction to prosecute violations of such
ordinances without regard to individual circumstances, with
the result that the jurisdiction’s enforcement power will
instead depend upon whether the conduct of the individual
on a particular occasion was “involuntar[y].” Id. Martin
confirms that the resulting inquiry turns on whether the
persons in question have access to “a single place where they
can lawfully be,” id. at 617 (emphasis added) (citation
omitted), and not just on whether they have access to
“appropriate shelters” or “other public areas.” And the
majority’s misreading of Martin completely disregards the
Powell opinions on which Martin relied, which make
unmistakably clear that an individualized showing of
involuntariness is required.
Second, and relatedly, the majority states that, to the
extent that Martin requires such an individualized showing
to establish an Eighth Amendment violation, any such
individualized issue here has been eliminated by the fact that
“[p]ursuant to the class definition, the class includes only
involuntarily homeless persons.” See Opin. at 38–40 (first
emphasis added). As the majority acknowledges, “[p]ersons
are involuntarily homeless” under Martin only “if they do
not ‘have access to adequate temporary shelter,’” such as,
for example, when they lack “‘the means to pay for it’” and
it is otherwise not “‘realistically available to them for free.’”
Opin. at 14 n.2 (quoting Martin, 920 F.3d at 617 n.8).
Because that individualized issue has been shifted into the
class definition, the majority holds, the City’s enforcement
 JOHNSON V. CITY OF GRANTS PASS 83

of the challenged ordinances against that class can in that
sense be understood to present a “common question” that
can be resolved in one stroke. According to the majority,
because the class definition requires that, at the time the
ordinances are applied against them, the class members must
be “involuntarily homeless” in the sense that Martin
requires, there is a common question as to whether “the
City’s enforcement of the anti-camping ordinances against
all involuntarily homeless individuals violates the Eighth
Amendment.” See Opin. at 38–39 & n.22.
The majority cites no authority for this audacious
bootstrap argument. If a person’s individual circumstances
are such that he or she has no “access to adequate temporary
shelter”—which necessarily subsumes (among other things)
the determination that there are no shelter beds available—
then the entire (highly individualized) question of the City’s
liability to that person under Martin’s standards has been
shifted into the class definition. That is wholly improper.
See Olean Wholesale Grocery Coop. v. Bumble Bee Foods,
31 F.4th 651, 670 n.14 (9th Cir. 2022) (en banc) (“A court
may not . . . create a ‘fail safe’ class that is defined to include
only those individuals who were injured by the allegedly
unlawful conduct.”); see also Ruiz Torres v. Mercer
Canyons Inc., 835 F.3d 1125, 1138 n.7 (9th Cir. 2016)
(stating that it would be improper to define a class in such a
way “as to preclude membership unless the liability of the
defendant is established” (simplified)).
The majority nonetheless insists that “[m]embership in
[the] class” here “has no connection to the success of the
underlying claims.” See Opin. at 39 n.23. That is obviously
false. As I have explained, Martin’s understanding of when
a person “involuntarily” lacks “access to adequate temporary
shelter” or to “a single place where [he or she] can lawfully
84 JOHNSON V. CITY OF GRANTS PASS

be,” see 920 F.3d at 617 & n.8 (citations omitted), requires
an individualized inquiry into a given person’s
circumstances at a particular moment. By insisting that a
common question exists here because Martin’s
involuntariness standard has been folded into the class
definition, the majority is unavoidably relying on a fail-safe
class definition that improperly subsumes this crucial
individualized merits issue into the class definition. The
majority’s artifice renders the limitations of Rule 23 largely
illusory. 11
To the extent that the majority instead suggests that the
class definition requires only an involuntary lack of access
to regular or permanent shelter to qualify as “involuntarily
homeless,” its argument collapses for a different reason.
Because Martin’s Eighth Amendment holding applies only
to those who involuntarily lack “access to adequate
temporary shelter” on a given occasion, see 920 F.3d at 617
n.8, such an understanding of the class definition would not

11
The majority contends that, despite the presence of a liability-
determining individualized issue in the class definition, there is no fail-
safe class here because one or more of the claims might still conceivably
fail on the merits for other reasons. See Opin. at 39 n.23. But the
majority does not identify any such other reasons and, of course, under
the majority’s view of the substantive law, there are none. But more
importantly, the majority is simply wrong in positing that the only type
of class that would qualify as an impermissible fail-safe class is one in
which every conceivable merits issue in the litigation has been folded
into the class definition. What matters is whether the class definition
folds within it any bootstrapping merits issue (such as the “injur[y]” issue
mentioned in Olean) as to which “a class member either wins or, by
virtue of losing, is defined out of the class and is therefore not bound by
the judgment.” Olean, 31 F.4th at 670 n.14 (citation omitted). To the
extent that the central individualized merits issue in this case has been
folded into the class definition, that defect is present here.
 JOHNSON V. CITY OF GRANTS PASS 85

be sufficient to eliminate the highly individualized inquiry
into whether a particular person lacked such access at a given
moment, and the class would then have to be decertified for
the reasons I have discussed earlier. See supra at 75–80. Put
simply, the majority cannot have it both ways: either the
class definition is co-extensive with Martin’s
involuntariness concept (in which case the class is an
improper fail-safe class) or the class definition differs from
the Martin standard (in which case Martin’s individualized
inquiry requires decertification).
IV
Given these conclusions as to standing and class
certification, all that remains are the individual claims of
Johnson for prospective relief against enforcement of the
two anti-camping ordinances. In my view, these claims fail
as a matter of law.
Johnson’s sole basis for challenging these ordinances is
that they prohibit her from sleeping in her van within the
City. In her declaration in support of class certification,
however, Johnson specifically stated that she has “often”
been able to sleep in her van by parking outside the City
limits. In a supplemental declaration in support of summary
judgment, she affirmed that these facts “remain true,” but
she added that there had also been occasions in which,
outside the City limits, county officers had told her to “move
on” when she “was parked on county roads” and that, when
she parked “on BLM land”—i.e., land managed by the
federal Bureau of Land Management—she was told that she
“could only stay on BLM for a few days.”
As an initial matter, Johnson’s declaration provides no
non-conclusory basis for finding that she lacks any option
other than sleeping in her van. Although her declaration
86 JOHNSON V. CITY OF GRANTS PASS

notes that she worked as a nurse “for decades” and that she
now collects social security benefits, the declaration simply
states, without saying anything further about her present
economic situation, that she “cannot afford housing.” Her
declaration also says nothing about where she lived before
she began living “on the street” a few years ago, and it says
nothing about whether she has any friends or family, in
Grants Pass or elsewhere, who might be able to provide
assistance. 12 And even assuming that this factual showing
would be sufficient to permit a trier of fact to find that
Johnson lacks any realistic option other than sleeping in her
van, we cannot affirm the district court’s summary judgment
in Johnson’s favor without holding that her showing was so
overwhelming that she should prevail as a matter of law.
Because a reasonable trier of fact could find, in light of these
evidentiary gaps, that Johnson failed to carry her burden of
proof on this preliminary point, summary judgment in her
favor was improper. 13

12
The majority dismisses these questions about the sufficiency of
Johnson’s evidentiary showing as “artificial limitations” on claims under
Martin, see Opin. at 51, but the standard for establishing an Eighth
Amendment violation under Martin and the Powell opinions on which it
relies is a demanding and individualized one, and we are obligated to
follow it. Indeed, in upholding Powell’s conviction for public
drunkenness, the controlling opinion of Justice White probed the details
of the record as to whether, in light of the fact that Powell “had a home
and wife,” he could have “made plans while sober to prevent ending up
in a public place,” and whether, despite his chronic alcoholism, he
“retained the power to stay off or leave the streets, and simply preferred
to be there rather than elsewhere.” 392 U.S. at 553.
13
The majority errs by instead counting all gaps in the evidentiary record
against the City, faulting it for what the majority thinks the City has
failed to “demonstrate[],” See Opin. at 52 & n.32. That is contrary to
well-settled law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
 JOHNSON V. CITY OF GRANTS PASS 87

But even assuming that Johnson had established that she
truly has no option other than sleeping in her van, her
showing is still insufficient to establish an Eighth
Amendment violation. As noted, Johnson’s sole complaint
in this case is that, by enforcing the anti-camping ordinances,
the City will not let her sleep in her van. But the sparse facts
she has presented fail to establish that she lacks any
alternative place where she could park her van and sleep in
it. On the contrary, her factual showing establishes that the
BLM will let her do so on BLM land for a “few days” at a
time and that she also has “often” been able to do so on
county land. Given that Johnson has failed to present
sufficient evidence to show that she lacks alternatives that
would allow her to avoid violating the City’s anti-camping
ordinances, she has not established that the conduct for
which the City would punish her is involuntary such that,
under Martin and the Powell opinions on which Martin
relies, it would violate the Eighth Amendment to enforce that
prohibition against her.
In nonetheless finding that the anti-camping ordinances’
prohibition on sleeping in vehicles violates the Eighth
Amendment, the majority apparently relies on the premise
that the question of whether an individual has options for
avoiding violations of the challenged law must be limited to
alternatives that are within the City limits. Under this view,
if a large homeless shelter with 1,000 vacant beds were

(holding that a movant’s summary judgment motion should be granted
“against a [nonmovant] who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial”). The
majority’s analysis also belies its implausible claim that it has not shifted
the burden to the City to establish the voluntariness of the behavior
targeted by the ordinances. See supra at 78 n.9.
88 JOHNSON V. CITY OF GRANTS PASS

opened a block outside the City’s limits, the City would still
be required by the Eighth Amendment to allow hundreds of
people to sleep in their vans in the City and, presumably, in
the City’s public parks as well. Nothing in law or logic
supports such a conclusion. Martin says that anti-sleeping
ordinances may be enforced, consistent with the Eighth
Amendment, so long as there is a “single place where [the
person] can lawfully be,” 920 F.2d at 617 (emphasis added)
(citation omitted), and Justice White’s concurrence in
Powell confirms that the Eighth Amendment does not bar
enforcement of a law when the defendant has failed to show
that avoiding the violative conduct is “impossible,” 392 U.S.
at 551 (emphasis added). 14 Nothing in the rationale of this
Eighth Amendment theory suggests that the inquiry into
whether it is “impossible” for the defendant to avoid
violating the law must be artificially constrained to only
those particular options that suit the defendant’s geographic
or other preferences. To be sure, Johnson states that having
to drive outside the City limits costs her money for gas, but
that does not provide any basis for concluding that the option
is infeasible or that she has thereby suffered “cruel and
unusual punishment.”
Finally, because the district court’s reliance on the
Excessive Fines Clause was predicated on the comparable
view that the challenged ordinances punish “status and not
conduct” in violation of Robinson, that ruling was flawed for
the same reasons. And because Johnson provides no other

14
The majority complains that this standard is too high, see Opin. at 52,
but it is the standard applied in Martin and in the Powell opinions on
which Martin relied.
 JOHNSON V. CITY OF GRANTS PASS 89

basis for finding an Excessive Fines violation here, her
claims under that clause also fail as a matter of law.
V
Accordingly, I would remand this case with instructions
(1) to dismiss as moot the claims of Debra Blake as well as
Plaintiffs’ claims with respect to GPMC § 6.46.355; (2) to
dismiss the claims of John Logan for lack of Article III
standing; (3) to dismiss the remaining claims of Gloria
Johnson for lack of Article III standing, except to the extent
that she challenges the two anti-camping ordinances (GPMC
§§ 5.61.030, 6.46.090); (4) to decertify the class; and (5) to
grant summary judgment to the City, and against Johnson,
with respect to her challenges to the City’s anti-camping
ordinances under the Eighth Amendment’s Cruel and
Unusual Punishments Clause and Excessive Fines Clause.
That disposes of all claims at issue, and I therefore need not
reach any of the many additional issues discussed and
decided by the majority’s opinion or raised by the parties. 15

15
Two of the majority’s expansions of Martin nonetheless warrant
special mention. First, the majority’s decision goes well beyond Martin
by holding that the Eighth Amendment precludes enforcement of anti-
camping ordinances against those who involuntarily lack access to
temporary shelter, if those ordinances deny such persons the use of
whatever materials they need “to keep themselves warm and dry.” See
Opin. at 46. It seems unavoidable that this newly declared right to the
necessary “materials to keep warm and dry” while sleeping in public
parks must include the right to use (at least) a tent; it is hard to see how
else one would keep “warm and dry” in a downpour. And the majority
also raises, and leaves open, the possibility that the City’s prohibition on
the use of other “items necessary to facilitate sleeping outdoors”—such
as “stoves,” “fires,” and makeshift “structures”—“may or may not be
permissible.” See Opin. at 45–46, 53–54. Second, the majority
indirectly extends Martin’s holding from the strictly criminal context at
issue in that case to civil citations and fines. See Opin. at 41–45. As the
90 JOHNSON V. CITY OF GRANTS PASS

VI
Up to this point, I have faithfully adhered to Martin and
its understanding of Powell, as I am obligated to do. See
Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003)
(en banc). But given the importance of the issues at stake,
and the gravity of Martin’s errors, I think it appropriate to
conclude by noting my general agreement with many of the
points made by my colleagues who dissented from our
failure to rehear Martin en banc.
In particular, I agree that, by combining dicta in a
concurring opinion with a dissent, the panel in Martin
plainly misapplied Marks’ rule that “[w]hen a fragmented
Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, ‘the holding of the
Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest
grounds.’” 430 U.S. at 193 (emphasis added) (citation
omitted). Under a correct application of Marks, the holding
of Powell is that there is no constitutional obstacle to
punishing conduct that has not been shown to be involuntary,
and the converse question of what rule applies when the

district court noted below, the parties vigorously debated the extent to
which a “violation” qualifies as a crime under Oregon law. The majority,
however, sidesteps that issue by instead treating it as irrelevant. The
majority’s theory is that, even assuming arguendo that violations of the
anti-camping ordinances are only civil in nature, they are covered by
Martin because such violations later could lead (after more conduct by
the defendant) to criminal fines, see Opin. at 44–45. But the majority
does not follow the logic of its own theory, because it has not limited its
holding or remedy to the enforcement of the ultimate criminal
provisions; on the contrary, the majority has enjoined any relevant
enforcement of the underlying ordinances that contravenes the
majority’s understanding of Martin. See Opin. at 55.
 JOHNSON V. CITY OF GRANTS PASS 91

conduct has been shown to be involuntary was left open. See
Martin, 920 F.3d at 590–93 (M. Smith, J., dissenting from
denial of rehearing en banc) (explaining that, under a proper
application of Marks, “‘there is definitely no Supreme Court
holding’ prohibiting the criminalization of involuntary
conduct” (citation omitted)).
Moreover, the correct answer to the question left open in
Powell was the one provided in Justice Marshall’s plurality
opinion in that case: there is no federal “constitutional
doctrine of criminal responsibility.” 392 U.S. at 534. In
light of the “centuries-long evolution of the collection of
interlocking and overlapping concepts which the common
law has utilized to assess the moral accountability of an
individual for his antisocial deeds,” including the “doctrines
of actus reus, mens rea, insanity, mistake, justification, and
duress,” the “process of adjustment” of “the tension between
the evolving aims of the criminal law and changing religious,
moral, philosophical, and medical views of the nature of
man” is a matter that the Constitution leaves within “the
province of the States” or of Congress. Id. at 535–36.
“There is simply no indication in the history of the Eighth
Amendment that the Cruel and Unusual Punishments Clause
was intended to reach the substantive authority of Congress
to criminalize acts or status, and certainly not before
conviction,” and the later incorporation of that clause’s
protections vis-à-vis the States in the Fourteenth
Amendment “worked no change in its meaning.” Martin,
920 F.3d at 602 (Bennett, J., dissenting from denial of
rehearing en banc); see also id. at 599 (explaining that
Martin’s novel holding was inconsistent with the “text,
tradition, and original public meaning[] [of] the Cruel and
Unusual Punishments Clause of the Eighth Amendment”).
Consequently, so long as “the accused has committed some
92 JOHNSON V. CITY OF GRANTS PASS

act, has engaged in some behavior, which society has an
interest in preventing, or perhaps in historical common law
terms, has committed some actus reus,” the Eighth
Amendment principles applied in Robinson have been
satisfied. Powell, 392 U.S. at 533 (plurality). The Eighth
Amendment does not preclude punishing such an act merely
“because it is, in some sense, ‘involuntary’ or ‘occasioned
by a compulsion.’” Id.; see also Martin, 920 F.3d at 592 n.3
(M. Smith, J., dissenting from denial of rehearing en banc)
(“Powell does not prohibit the criminalization of involuntary
conduct.”).
Further, it is hard to deny that Martin has “generate[d]
dire practical consequences for the hundreds of local
governments within our jurisdiction, and for the millions of
people that reside therein.” Id. at 594 (M. Smith, J.,
dissenting from denial of rehearing en banc). Those harms,
of course, will be greatly magnified by the egregiously
flawed reconceptualization and extension of Martin’s
holding in today’s decision, and by the majority’s equally
troubling reworking of settled class-action principles. With
no sense of irony, the majority declares that no such harms
are demonstrated by the record in this case, even as the
majority largely endorses an injunction effectively requiring
Grants Pass to allow the use of its public parks as homeless
encampments. Other cities in this circuit can be expected to
suffer a similar fate.
In view of all of the foregoing, both Martin and today’s
decision should be overturned or overruled at the earliest
opportunity, either by this court sitting en banc or by the U.S.
Supreme Court.
* * *
I respectfully but emphatically dissent.
 JOHNSON V. CITY OF GRANTS PASS 93

Silver, District Judge, and Gould, Circuit Judge, joint
statement regarding denial of rehearing:

The differences of opinion in this case are hard and there
is basis for good-faith disagreements which are reflected in
the filings from a variety of judges. The robust defense of
the panel majority opinion we offer here should not be read
as any comment on the sincerity of our colleagues’ quarrels
with our position.
The statement regarding the denial of rehearing from
Judge O’Scannlain and the dissent from Judge M. Smith
significantly exaggerate the holding in Johnson v. Grants
Pass, 50 F.4th 787 (9th Cir. 2022). Grants Pass, relying on
Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), holds
only that governments cannot criminalize the act of sleeping
with the use of rudimentary protections, such as bedding,
from the elements in some public places when a person has
nowhere else to sleep. It does not establish an unrestrained
right for involuntarily homeless persons to sleep anywhere
they choose. Nor does it require jurisdictions to cede all
public spaces to involuntarily homeless persons. The argued
notion that Martin and Grants Pass work together to
guarantee a “federal constitutional ‘right’ . . . to camp or to
sleep on sidewalks and in parks, playgrounds, and other
public places” is completely absent from the opinion. The
denial of en banc rehearing should not be criticized based on
rhetorical exaggerations.
Beyond misdescribing the holding of Grants Pass, Judge
O’Scannlain extrapolates and proposes that the Ninth Circuit
ignore 65 years of Supreme Court precedent in favor of his
preferred approach of looking exclusively to what he
declares is the “text, history, and tradition” of the Eighth
Amendment. But inferior courts are not free to embark on
94 JOHNSON V. CITY OF GRANTS PASS

such freewheeling adventures when the Supreme Court has
provided the applicable guidance. Judge M. Smith does not
join the portion of Judge O’Scannlain’s statement discussing
this point, but Judge M. Smith engages in a puzzling error
by attributing in part the homelessness problem throughout
the Ninth Circuit to Martin and now Grants Pass. The
homelessness problem predates Martin, and cities outside
the Ninth Circuit, and outside the United States, are
experiencing crisis-levels of homelessness. It is implausible
to argue the crisis would abate if jurisdictions in the Ninth
Circuit regained the authority to punish involuntarily
homeless persons for sleeping in public with blankets.
I. Limited Holding of Grants Pass
Judge O’Scannlain and Judge M. Smith aim most of their
fire at the portion of Grants Pass addressing the two
overlapping “anti-camping” ordinances. Grants Pass holds
the anti-camping ordinances enacted by the City of Grants
Pass violate the Eighth Amendment but only to the extent
they criminalize sleeping with rudimentary forms of
protection from the elements (i.e., bedding or sleeping bags)
by those persons without access to any other shelter (i.e.,
persons who are “involuntarily homeless”). Grants Pass
does not expressly preface every reference to “homeless
persons” with the adjective “involuntarily.” However, in
clear reliance on Martin, the opinion is strictly limited to
enforcement of the ordinances against “involuntarily”
homeless persons. Like Martin, Grants Pass holds only that
“it is ‘unconstitutional to [punish] simply sleeping
somewhere in public if one has nowhere else to do so.’” Id.
(quoting Martin, 920 F.3d at 590 (Berzon, J., concurring in
denial of rehearing en banc)).
The holding in Grants Pass is not that involuntarily
 JOHNSON V. CITY OF GRANTS PASS 95

homeless persons in the City of Grants Pass and elsewhere
in the Ninth Circuit are allowed to sleep wherever and
whenever they wish. When there is space available in
shelters, jurisdictions are free to enforce prohibitions on
sleeping anywhere in public. And emphatically, when an
involuntarily homeless person refuses a specific offer of
shelter elsewhere, that individual may be punished for
sleeping in public. When there is no shelter space,
jurisdictions may still enforce limitations on sleeping at
certain locations. The assertion that jurisdictions must now
allow involuntarily homeless persons to camp or sleep on
every sidewalk and in every playground is plainly wrong.
Jurisdictions remain free to address the complex policy
issues regarding homelessness in the way those jurisdictions
deem fit, subject to the single restriction that involuntarily
homeless persons must have “somewhere” to sleep and take
rudimentary precautions (bedding) against the elements. Id.
(quoting Martin, 920 F.3d at 590 (Berzon, J., concurring in
denial of rehearing en banc)).
Judge M. Smith misinterpreted a statement in the
original majority opinion that he believed mandated “a crude
jurisdiction-wide inquiry” dictating a local “government
cannot prosecute homeless people for sleeping in public if
there is a greater number of homeless individuals in a
jurisdiction than the number of available shelter spaces.”
Judge M. Smith’s understanding of the original statement
was incorrect. To avoid any possibility of confusion, the
majority has now removed the statement Judge M. Smith
found confounding. But Judge M. Smith is still not satisfied.
He complains the change did not result in any “downstream
changes” to the majority’s analysis. But Judge M. Smith
fails to acknowledge the undisputed facts established that in
the City of Grants Pass, there were zero shelter beds
96 JOHNSON V. CITY OF GRANTS PASS

available on almost every night of the year. Given that, there
was no need to change the remaining analysis.
As clearly explained in the majority opinion, the only
secular shelter beds in the City of Grants Pass (other than
beds for intoxicated adults) were located at a “warming
center” that operated on especially cold nights. The
warming center could hold 40 individuals and was open 16
nights during the winter of 2020 and zero nights during the
winter of 2021. Thus, on 95% of the nights in 2020 and
100% of the nights in 2021, the City of Grants Pass had zero
secular shelter beds for non-intoxicated adults. Given that
reality, there was no need to make “downstream changes” to
the analysis based on the availability of shelter beds in the
City of Grants Pass. When a jurisdiction has zero shelter
beds even theoretically available, it does not require
significant analysis to conclude the jurisdiction is barred
from prosecuting the involuntarily homeless persons in that
jurisdiction.
Judge M. Smith’s refusal to acknowledge the lack of
shelter space in the City of Grants Pass reveals his actual
complaint in this area is the perceived failure to strictly
police who will qualify as involuntarily homeless.
According to Judge M. Smith, it was inappropriate to find
that zero shelter beds, combined with “conclusory
allegations of involuntariness,” were enough to conclude
there were involuntarily homeless persons in the
jurisdiction. The “conclusory allegations” Judge M. Smith
faults are expressly found in a declaration submitted by
Gloria Johnson where she stated, in relevant part, “I have no
choice but to live outside and have no place else to go,” and
“I continue to live without shelter in Grants Pass.” It bears
repeating this case was resolved on summary judgment. The
City of Grants Pass did not present any evidence to the
 JOHNSON V. CITY OF GRANTS PASS 97

district court, nor did it argue on appeal, that Gloria
Johnson’s declaration was inaccurate. In fact, it is
undisputed there are at least fifty involuntarily homeless
persons in the City of Grants Pass, as stated in the testimony
of a City of Grants Pass police officer. Describing
unequivocal and undisputed statements submitted at the
summary judgment stage as mere “conclusory allegations”
is incorrect.
Judge M. Smith worries the amended opinion might still
prohibit any enforcement actions against individuals with
access to shelter. But the opinion repeatedly notes it only
addresses enforcement attempts against “involuntarily
homeless persons.” Grants Pass goes to great lengths to
make this clear. Grants Pass states individuals qualify as
“involuntarily homeless” only if they “do not have access to
adequate temporary shelter, whether because they have the
means to pay for it or because it is realistically available to
them for free.” Id. at 793 n.2 (internal quotation marks and
citation omitted). To remove any doubt, Grants Pass
stresses “[i]ndividuals who have shelter or the means to
acquire their own shelter simply are never class members,”
meaning such individuals are not “involuntarily homeless.”
Id. at 805. And to further illuminate the point, Grants Pass
states “To be clear: A person with access to temporary
shelter is not involuntarily homeless unless and until they no
longer have access to shelter.” Id. at 805 n.24. Judge M.
Smith’s assertion that Grants Pass might prohibit
enforcement against persons “no matter their personal
situations” is wrong.
When an individual has access to a shelter, such as
through a “city’s offer of temporary housing,” that person is
not “involuntarily homeless” and anti-camping ordinances
may be enforced against that person. Similarly, if a
98 JOHNSON V. CITY OF GRANTS PASS

jurisdiction always has shelter beds or other locations
available, that jurisdiction is free to enforce its anti-camping
ordinances on all other public areas.
Judge M. Smith also claims that after Grants Pass local
authorities are “powerless to cite” individuals “even for
public defecation.” 1 Neither Martin nor Grants Pass
involved particular ordinances precluding public urination
and defecation and the assertion that Martin and Grants Pass
resolved the constitutionality of ordinances addressing
public urination and defecation is mistaken. 2

1
Judge M. Smith’s sole support for this interpretation is an unpublished
decision by the Eastern District of California. Mahoney v. City of
Sacramento, No. 2:20-cv-00258-KJM, 2020 WL 616302 (E.D. Cal. Feb.
10, 2020). That case involved the removal of portable toilets from public
property that had been placed there by private citizens for homeless
individuals to use. The plaintiffs alleged many different constitutional
claims, including that the removal of the toilets would violate their
Eighth Amendment rights. On that point, the City of Sacramento stated
“neither the benefactors of the toilets nor the users of the toilets have, or
will be, criminally prosecuted.” In denying a request for a temporary
restraining order, the court stated “Extending Martin to these facts, the
City may not prosecute or otherwise penalize the plaintiffs . . . for
eliminating in public if there is no alternative to doing so.” Id. The court
continued, arguably based on the city’s representations regarding non-
prosecution, that “no irreparable injury to plaintiffs’ Eighth Amendment
rights is likely.” Id. Because the plaintiffs voluntarily dismissed their
claim nine days after the court’s order, the court did not provide a more
complete Eighth Amendment analysis based on Martin. A brief
statement made in the context of resolving an emergency motion is not
a solid foundation for Judge M. Smith’s assertion that after Grants Pass
local authorities are now “powerless to cite” individuals for public
defecation.
2
The focus of Martin and Grants Pass was sleep. Sleep is not a
voluntary act but an “identifiable human need[].” Rico v. Ducart, 980
F.3d 1292, 1298 (9th Cir. 2020). “[S]leep is critical to human existence.”
 JOHNSON V. CITY OF GRANTS PASS 99

As another panel recently noted, it is unwise “to
adjudicate slippery-slope hypotheticals.” Mayes v. Biden,
No. 22-15518, 2023 WL 2997037, at *17 (9th Cir. Apr. 19,
2023). And Judge O’Scannlain noted almost twenty years
ago, “[i]n our system of government, courts base decisions
not on dramatic Hollywood fantasies . . . but on concretely
particularized facts developed in the cauldron of the
adversary process and reduced to an assessable record.”
United States v. Kincade, 379 F.3d 813, 838 (9th Cir. 2004)
(en banc). Because there was no challenge to any public
urination or defecation ordinances in Grants Pass, the
parties did not develop a record regarding those issues such
that neither the district court nor Ninth Circuit had a basis to
address them. Judge M. Smith’s assertion that Grants Pass
prohibits citations “even for public defecation” is wrong.
II. Class Certification was Proper
Connected to the purported “jurisdiction-wide analysis,”
Judge M. Smith argues, as did the dissent by Judge Collins,
that Grants Pass erred in affirming certification of the class.

Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013). See also Wilkins
Kaplan & Sadock’s Comprehensive Textbook of Psychiatry, 10th Ed.
CH23 (“Sleep is a process required for proper brain function. Failure to
sleep impairs thought processes, mood regulation, and a host of normal
physiological functions.”). The lack of sleep may play a role in the
development of dementia. See Nedergaard and Goldman, Glymphatic
failure as a final common pathway to dementia, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8186542/. And long-
term sleep deprivation has been shown to be lethal in some animals. See
Why Severe Sleep Deprivation Can be Lethal, available at
https://brain.harvard.edu/hbi_news/why-severe-sleep-deprivation-can-
be-
lethal/#:~:text=We%20found%20high%20levels%20of,can%20eventua
lly%20trigger%20cell%20death.
100 JOHNSON V. CITY OF GRANTS PASS

According to Judge M. Smith, the opinion “wholly
collaps[es] the merits into the class definition” which
resulted in an “impermissible fail safe class.” The Grants
Pass opinion explains why that conclusion is wrong. 50
F.4th at 805 n.23. In brief, the population of the class of
“involuntarily homeless” individuals does not change based
on whether the class wins or loses. There has never been a
possibility that a “class member either wins or, by virtue of
losing, is defined out of the class.” Olean Wholesale
Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th
651, 669 n.14 (9th Cir. 2022) (quotation marks and citation
omitted).
Judge M. Smith, as did Judge Collins, also believes the
class should not have been certified due to a “lack of
commonality.” Judge M. Smith’s view is that
“commonality” was lacking because determining class
membership requires an individualized assessment of each
potential class member’s access to shelter. This is an
incorrect understanding of Federal Rule of Civil Procedure
23’s “commonality” requirement.
To satisfy Rule 23’s “commonality” requirement there
must be a “common contention” such “that determination of
its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). In Grants
Pass, the “common contention” was the assertion that the
City’s anti-camping ordinances violated the Eighth
Amendment as applied to the class. That contention could
be resolved in “one stroke,” meaning the “commonality”
requirement was met. Dukes, 564 U.S. at 350.
While not entirely clear, Judge M. Smith might be
arguing “commonality” does not exist when a court is unable
 JOHNSON V. CITY OF GRANTS PASS 101

to immediately and easily identify each and every class
member. But there has never been such a requirement. See
In re Google Inc. St. View Elec. Commc’ns Litig., 21 F.4th
1102, 1115 (9th Cir. 2021) (affirming class settlement
despite it being “not feasible” to identify class members).
Alternatively, Judge M. Smith might be arguing
“commonality” does not exist when some effort will be
required to identify class members. But it is entirely routine
for class actions to require individualized determinations to
identify class members.
For example, a recent Ninth Circuit opinion involved a
class defined as “All individuals who have worked as
California-based flight attendants of Virgin America, Inc.
while residing in California at any time during the Class
Period.” Bernstein v. Virgin Am., Inc., 3 F.4th 1127, 1134
(9th Cir. 2021). Identifying members of that class
necessarily required individualized determinations to
identify whether an individual had worked as a flight
attendant for Virgin America and where the individual had
lived throughout the multi-year class period. Judge M.
Smith’s view that “commonality” is not present whenever
class members can only be identified after an individualized
inquiry would preclude certification of most classes.
III. Eighth Amendment Doctrine
Judge O’Scannlain laments “Grants Pass never
meaningfully engaged the text, history, and tradition of the
Constitution.” For the most part, that criticism is misplaced
as the Grants Pass majority was bound to follow Martin.
More importantly, however, the present record does not
contain sufficient facts to conduct the analysis Judge
O’Scannlain wishes to perform, presumably because the
parties were aware Judge O’Scannlain’s preferred method of
102 JOHNSON V. CITY OF GRANTS PASS

analysis is foreclosed by long established precedent.
The historical inquiry regarding the meaning of
constitutional terms may require looking as far back as the
13th Century. See Dobbs v. Jackson Women’s Health Org.,
142 S. Ct. 2228, 2249 (2022) (discussing cases from 13th
century). The parties in Grants Pass did not gather and
present evidence regarding centuries of history to illuminate
the complete “text, history, and tradition” of the Eighth
Amendment. If, as Judge O’Scannlain believes, courts must
assess the Eighth Amendment exclusively under a “text,
history, and tradition” approach, the parties must be given
the opportunity to present relevant historical evidence. See
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579
(2020) (noting courts should follow “party presentation
principle”). That may require the parties retain experts. See,
e.g., Miller v. Smith, No. 22-1482, 2023 WL 334788, at *1
(7th Cir. Jan. 20, 2023) (remanding for district court to
solicit additional expert reports regarding “text, history, and
tradition framework” in Second Amendment case).
Notably, Judge O’Scannlain is not arguing Grants Pass
should be remanded for a proper inquiry under his proposed
“text, history, and tradition” test. Rather, he professes he has
conducted the relevant inquiry on his own and definitively
established the correct interpretation of centuries of history.
Our adversarial system takes a dim view of appellate courts
embarking on their own fact-finding missions. Alpha
Distrib. Co. of California v. Jack Daniel Distillery, 454 F.2d
442, 453 (9th Cir. 1972) (“The appellate court is not the trier
of facts and does not ordinarily make findings of fact.”).
And that is especially true when the inquiry has not been
briefed by the parties. Sineneng-Smith, 140 S. Ct. at 1579
(2020). Ultimately, however, Judge O’Scannlain’s favored
constitutional analysis is beside the point. The Supreme
 JOHNSON V. CITY OF GRANTS PASS 103

Court has made clear “text, history, and tradition” is not the
correct method when assessing Eighth Amendment claims.
According to the Supreme Court, the proper
interpretation of the Eighth Amendment does not turn
exclusively on standards from hundreds of years ago. In a
plurality opinion in 1958, the Supreme Court explained the
Eighth Amendment “must draw its meaning from the
evolving standards of decency that mark the progress of a
maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958)
(plurality opinion). More recently, the Supreme Court stated
a proper Eighth Amendment analysis “is determined not by
the standards that prevailed when the Eighth Amendment
was adopted in 1791 but by the norms that ‘currently
prevail.’” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008)
(citation omitted). And “courts must look beyond historical
conceptions” when assessing Eighth Amendment
challenges. Graham v. Florida., 560 U.S. 48, 58 (2010).
Given this guidance, lamenting Grants Pass did not
delve into the Eighth Amendment’s “text, history, and
tradition” is a complaint that the majority in Grants Pass
followed the Supreme Court’s settled guidance. Contrary to
Judge O’Scannlain, the majority in Grants Pass was not free
to ignore the Supreme Court, embark on its own fact-finding
mission, and conclude the correct interpretation of the
Eighth Amendment is the one Judge O’Scannlain likes.
Instead, the majority chose the more modest approach of
applying existing Supreme Court and Ninth Circuit authority
to the record presented by the parties. 3

3
Judge Graber agrees with the “underlying legal premise” that the Eighth
Amendment prohibits criminal prosecution of involuntarily homeless
persons. But she believes Grants Pass “unjustifiably expands the reach
of the Eighth Amendment” by prohibiting “civil remedies that could, in
104 JOHNSON V. CITY OF GRANTS PASS

IV. Application of Marks Doctrine
Both Judge O’Scannlain and Judge M. Smith take issue
with the Marks v. United States, 430 U.S. 188 (1977),
analysis in Martin and Grants Pass. According to them, the
proper application of the Marks doctrine is obvious and
should have prevented the result in Martin and Grants Pass.
It is not clear if the Marks analyses conducted by Judge
O’Scannlain and Judge M. Smith reach the same
conclusion. 4 Moreover, neither Judge O’Scannlain nor
Judge M. Smith cite the en banc majority opinion from the
Fourth Circuit that conducts the Marks analysis on the
relevant Supreme Court authorities and reaches the “same
conclusion” as that reached in Martin. Manning v. Caldwell
for City of Roanoke, 930 F.3d 264, 283 n.17 (4th Cir. 2019)
(en banc). Thus, Judge O’Scannlain and Judge M. Smith
show overconfidence that their application of the Marks
doctrine is correct. In the end, however, an exhaustive

theory, lead to [criminal] prosecution.” But all parties in Grants Pass
agreed the civil violations were used as the first step in the eventual
pursuit of criminal charges. This is not a case where the jurisdiction has
disavowed pursuing criminal charges.
4
Judge O’Scannlain describes Justice White’s concurrence in Powell v.
Texas, 392 U.S. 514 (1968), as “the dispositive fifth vote.” But Judge
O’Scannlain also relies heavily, without explanation, on statements
made by the non-binding plurality in Powell. As for Judge M. Smith, he
argues Powell produced “no single rationale and only its specific result
is binding.” But Judge M. Smith then faults the Martin and Grants Pass
majorities for not addressing arguments made by the non-binding
plurality in Powell. Judge M. Smith seems to believe proper application
of the Marks doctrine means only the result in Powell is binding, but
lower courts have an affirmative obligation to address points made by
the Powell plurality. Judge M. Smith does not cite any authority for his
idiosyncratic view of how the Marks doctrine operates.
 JOHNSON V. CITY OF GRANTS PASS 105

Marks analysis is not necessary.
Everyone agrees Robinson v. California, 370 U.S. 660
(1962) is the binding Supreme Court precedent. It is vital
that every justice in Powell v. State of Texas, 392 U.S. 514
(1968), fully embraced the holding in Robinson that a status
cannot be prosecuted. In Robinson, the Supreme Court
concluded it violated the Eighth Amendment for California
to criminalize the status of being “addicted to the use of
narcotics.” In doing so, the Supreme Court also noted it
would violate the Eighth Amendment for a state to make it a
criminal offense to be “mentally ill, or a leper, or to be
afflicted with a venereal disease.” Robinson, 370 U.S. at
666. And “[e]ven one day in prison would be a cruel and
unusual punishment for the ‘crime’ of having a common
cold.” Id. at 667. Judge O’Scannlain and Judge M. Smith
interpret Robinson as establishing a conclusive line between
constitutionally barred “status crimes” and constitutionally
permitted “conduct crimes.” But such a definitive line
requires Robinson be read rigidly, such that a jurisdiction
could avoid Robinson by tying “statuses” to inescapable
human activities.
For example, under a strict “status-conduct” distinction,
the California statute at issue in Robinson could have been
cured by tying the addiction status to sleeping. Under such
logic, it would have been constitutional for California to
make it a criminal offense for a person “addicted to the use
of narcotics” to fall asleep. Id. at 660. Similarly, it now
would be constitutional for a jurisdiction to criminalize
falling asleep while being “mentally ill, or a leper, or []
afflicted with a venereal disease.” Id. at 666. Reading
106 JOHNSON V. CITY OF GRANTS PASS

Robinson as allowing such simple evasion is absurd. 5
Regardless of the Marks analysis, Robinson limits the
reach of criminal law. Or, as the Supreme Court declared
fifteen years after Robinson, the Eighth Amendment
“imposes substantive limits on what can be made criminal
and punished as such.” Ingraham v. Wright, 430 U.S. 651,
667 (1977). Martin and Grants Pass recognize those
substantive limits reach the exceptionally narrow situation
of prohibiting punishment when involuntarily homeless
persons engage in the life-sustaining act of sleeping in
public. Criminalizing the act of sleeping in public when an
individual has nowhere else to sleep is, in effect,
criminalizing the underlying status of being homeless.
V. Non-Existent Circuit Split
Judge O’Scannlain greatly overstates the extent to which
Martin and Grants Pass fall on one side of an existing circuit
split. According to Judge O’Scannlain, no “federal circuit
or state supreme court . . . has ever embraced Grants Pass’s
sweeping holding” regarding the Eighth Amendment. Judge
O’Scannlain then cites opinions from the Eleventh and Fifth
Circuits, but neither of those opinions hold what Judge
O’Scannlain claims. In fact, no circuit court has reached the
merits of a challenge to public camping or sleeping

5
Even the dissent in the Fourth Circuit opinion Judge O’Scannlain cites
with approval understood the logic of Robinson points away from a rigid
interpretation. Manning v. Caldwell for City of Roanoke, 930 F.3d 264,
290 (4th Cir. 2019) (Wilkinson, J., dissenting). That dissent noted “[i]n
the rare case where the Eighth Amendment was found to invalidate a
criminal law, the law in question sought to punish persons merely for
their need to eat or sleep, which are essential bodily functions. This is
simply a variation of Robinson’s command that the state identify conduct
in crafting its laws, rather than punish a person’s mere existence.” Id.
 JOHNSON V. CITY OF GRANTS PASS 107

restrictions when no shelter space was available and
concluded such restrictions were lawful. Judge O’Scannlain
also points to a state supreme court opinion but that opinion
explicitly does not decide the question presented in Martin
and Grants Pass.
First, in Joel v. City of Orlando, 232 F.3d 1353 (11th Cir.
2000), the Eleventh Circuit addressed a challenge to an anti-
camping ordinance. The entire Eighth Amendment analysis
in that case was premised on the fact the City of Orlando
“presented unrefuted evidence that . . . a large homeless
shelter . . . never reached its maximum capacity and that no
individual has been turned away because there was no space
available or for failure to pay the one dollar nightly fee.” Id.
at 1362. Thus, the Eleventh Circuit concluded the anti-
sleeping ordinance did “not criminalize involuntary
behavior” because the plaintiff could “comply with the [anti-
sleeping] ordinance” by sleeping in the shelter. Id. There is
no suggestion the result would have been the same if there
were no shelter space available.
Judge O’Scannlain claims the availability of shelter
space is not a “compelling response” in terms of
distinguishing the result in Joel from that in Martin and
Grants Pass. But the central holding in Martin and Grants
Pass is that the Eighth Amendment analysis turns on
whether there are shelter beds or other locations where an
involuntarily homeless person can lawfully sleep. It would
be hard to imagine a more “compelling” way to distinguish
Joel than pointing out Joel did not involve involuntary
conduct because shelter space was always available.
Judge O’Scannlain also cites Johnson v. City of Dallas,
Tex., 61 F.3d 442 (5th Cir. 1995), where the Fifth Circuit
concluded the plaintiffs lacked standing to challenge an anti-
108 JOHNSON V. CITY OF GRANTS PASS

sleeping ordinance because they had not been prosecuted.
The district court had conducted an extensive overview of
the Supreme Court cases and concluded the challenged anti-
sleeping ordinance impermissibly “punishe[d] the homeless
for their status as homeless.” Johnson v. City of Dallas, 860
F. Supp. 344, 350 (N.D. Tex. 1994). Instead of rejecting or
even addressing such reasoning, the Fifth Circuit concluded
no individual had standing to seek pre-enforcement review
of a criminal statute. It is not clear whether Judge
O’Scannlain agrees with this standing analysis and there is
significant reason to doubt it is correct. See, e.g., Holder v.
Humanitarian L. Project, 561 U.S. 1, 15 (2010) (allowing
“preenforcement review of a criminal statute”). But at the
very least, it is misleading to describe the Fifth Circuit’s
rejection based on standing as establishing any position on
the merits of the Eighth Amendment issue. 6

6
Judge O’Scannlain also professes to find conflicting decisions from the
First and Seventh Circuits. In the First Circuit case, the defendant argued
“because his drug addiction is a disease, sentencing him to a term of
imprisonment for manifesting a condition of his disease constitutes cruel
and unusual punishment in violation of the Eighth Amendment.” United
States v. Sirois, 898 F.3d 134, 135 (1st Cir. 2018). The First Circuit
rejected this argument, primarily because the standard of review was
“clear error” based on the defendant’s failure to raise the argument in the
district court. Thus, the First Circuit held only that existing caselaw did
not make it “clear or obvious” that “the Eighth Amendment proscribes
criminal punishment for conduct that results from narcotic addiction.”
Id. at 138. Concluding existing caselaw did not make the issue “clear or
obvious” is not the same as reaching the merits of the issue. As for the
Seventh Circuit opinion, it is unpublished and is based on an obvious
error. The opinion discusses a defendant who, allegedly due to his
alcoholism, “failed to attend treatment programs, used cocaine, and
abused alcohol so excessively that it led to his arrest for public
intoxication.” United States v. Stenson, 475 Fed. App’x 630, 631 (7th
Cir. 2012). The Seventh Circuit concluded the defendant could be
 JOHNSON V. CITY OF GRANTS PASS 109

Judge O’Scannlain also cites Tobe v. City of Santa Ana,
892 P.2d 1145 (1995) from the California Supreme Court.
That case involved a facial challenge to an anti-camping
ordinance. Id. at 1154. The California Supreme Court
explicitly noted, however, it was not resolving whether an
“involuntarily homeless person who involuntarily camps on
public property may be convicted or punished under the
ordinance.” Id. at 1166 n.19. Claiming Tobe is contrary to
Grants Pass requires ignoring the language of Tobe.
Finally, Judge O’Scannlain does not disclose that
reaching his preferred result would create a circuit split with
the Fourth Circuit. In Manning v. Caldwell for City of
Roanoke, 930 F.3d 264, 268 (4th Cir. 2019) (en banc), the
en banc Fourth Circuit addressed Virginia’s statutory
scheme that made it a criminal offense for individuals
identified as “habitual drunkards” to possess or attempt to
possess alcohol. The Fourth Circuit concluded this scheme
might violate the Eighth Amendment’s Cruel and Unusual
Punishments clause because it targeted “conduct that is both
compelled by [the plaintiffs’] illness and is otherwise lawful
for all those of legal drinking age.” Id. at 281. In reaching
that conclusion, the Fourth Circuit unequivocally adopted
the same view of the Supreme Court cases regarding status
crimes as that adopted in Martin. 930 F.3d at 282 n.17.
Judge O’Scannlain acknowledges that Manning holds
“involuntary conduct may be exempt” from prosecution.

punished for those acts because he was not being “punished for his status
as an alcoholic but for his conduct.” Id. However, as noted by the Fourth
Circuit, the Seventh Circuit “erroneously treated the plurality opinion in
Powell as the holding of the Court.” Manning v. Caldwell for City of
Roanoke, 930 F.3d 264, 283 n.17 (4th Cir. 2019). Therefore, Stenson is
of little value.
110 JOHNSON V. CITY OF GRANTS PASS

But he argues Manning “limited its holding to laws that
singled individuals out for special punishment for otherwise
lawful conduct that is compelled by their illness.” Judge
O’Scannlain apparently believes the ordinances addressed in
Grants Pass do not “single out” individuals in a similar
manner. Judge O’Scannlain is wrong. The ordinances
addressed in Grants Pass target the involuntarily homeless
the same way the scheme in Manning targeted alcoholics.
Under the ordinances addressed in Grants Pass, it would
be lawful for an individual with access to shelter to wrap
himself in a blanket in a public park because the individual
was not using the blanket “for the purpose of maintaining a
temporary place to live.” 50 F.4th at 793. However, the
same conduct could lead to criminal prosecution of an
involuntarily homeless person because, with no other place
to live, the person would be using the blanket for purposes
of maintaining a place to live. In brief, blanket use in a
public park is criminal if you are homeless and “lawful
conduct” if you are not. As with the ordinances in Manning
regarding alcoholics, the ordinances addressed in Grants
Pass single out the involuntarily homeless for
criminalization of otherwise lawful conduct.
Judge O’Scannlain’s purported “deep and varied
intercircuit split over how to read the Eighth Amendment” is
an illusion. The Ninth Circuit is the sole circuit to have
addressed, on the merits, a challenge to the criminalization
of sleeping in public by involuntarily homeless persons. The
Ninth Circuit’s current approach is faithful to Supreme Court
precedent and consistent with the Fourth Circuit’s approach
to a similar issue. Thus, Judge O’Scannlain’s desire to hear
Grants Pass en banc is so that a circuit split with the Fourth
Circuit can be created, not that an existing circuit split can
be resolved.
 JOHNSON V. CITY OF GRANTS PASS 111

VI. Evidence Not in the Record
Judge M. Smith cites a wide variety of extra-record
evidence establishing homelessness is a serious issue
“caused by a complex mix of economic, mental-health, and
substance-abuse factors.” Everyone agrees. Judge M. Smith
then states, “local governments have taken a variety of steps
intended to ameliorate the crisis . . . but most of these
attempts to mitigate the challenging issues of homelessness
have been wholly or partially frustrated by an alleged
constitutional right conjured by a panel of our court.” This
appears to say that, but for Martin and now Grants Pass,
local governments would be able to pursue policies that
would reduce the homeless population. In other words,
Judge M. Smith believes Martin and Grants Pass are
somewhat responsible for the size of the homeless
population. That is not sensible.
Judge M. Smith points out the City of Los Angeles has
roughly 70,000 homeless persons. Judge M. Smith seems to
believe at least some of those 70,000 persons, and more
throughout the Ninth Circuit, remain homeless because of
the very limited protection offered by Martin. Thus, it
follows that if Martin were overruled and criminal penalties
were again possible, at least some of those 70,000 persons in
Los Angeles would obtain housing. Judge M. Smith does
not cite any authority that shows the possibility of criminal
penalties would have this effect. Available evidence points
away from such a conclusion. See, e.g., Donald Saelinger,
Nowhere to Go: The Impacts of City Ordinances
Criminalizing Homelessness, 13 Geo. J. on Poverty L. &
Pol'y 545, 559 (2006) (“[C]riminalization laws make it much
more difficult for the homeless to gain social and economic
mobility, and thus the laws have the result of extending the
period of time that one is homeless.”).
112 JOHNSON V. CITY OF GRANTS PASS

Judge M. Smith’s extra-record evidence is carefully
limited to support his causal theory. But if extra-record
evidence should be considered, other jurisdictions show
Martin is not the problem. New York City is experiencing a
crisis in the increase of the involuntarily homeless
population. As of February 2023, New York City had more
than 77,000 homeless persons, “by far the most ever
recorded and an increase of over 70 percent since May.”
Emma G. Fitzsimmons and Andy Newman, New York City
Commissioner Of Social Services Resigns, The New York
Times (Feb. 8, 2023). New York City is not in the Ninth
Circuit and it seems unlikely the holding in Martin is causing
a surge in the homeless population across the country. Thus,
Martin is not, as alleged, the driver of the homelessness
problem.
VII. Conclusion
The Eighth Amendment “imposes substantive limits on
what can be made criminal and punished as such.”
Ingraham v. Wright, 430 U.S. 651, 667 (1977). Those
substantive limits are implicated only in rare circumstances.
One such circumstance is when a jurisdiction attempts to
punish as a criminal offense the life-sustaining act of
sleeping in public with bedding when a person has nowhere
else to go. Because Grants Pass and Martin provide
exceptionally limited protection, and are consistent with
Supreme Court precedent, the decision not to rehear Grants
Pass en banc is correct. 7

7
The city ordinances addressed in Grants Pass will be superseded, to
some extent, on July 1, 2023, when a new Oregon state law takes effect.
The new state law requires “[a]ny city or county law that regulates the
acts of sitting, lying, sleeping or keeping warm and dry outdoors on
public property that is open to the public must be objectively reasonable
 JOHNSON V. CITY OF GRANTS PASS 113

O’SCANNLAIN, Circuit Judge, 1 with whom Judges
WALLACE, CALLAHAN, BEA, IKUTA, BENNETT, R.
NELSON, BADE, COLLINS, LEE, BRESS, FORREST,
BUMATAY, and VANDYKE join, and with whom Judge
M. SMITH joins as to all parts except Part II-A, respecting
the denial of rehearing en banc:

With this decision, our Circuit’s jurisprudence now
effectively guarantees a personal federal constitutional
‘right’ for individuals to camp or to sleep on sidewalks and
in parks, playgrounds, and other public places in defiance of
traditional health, safety, and welfare laws—a dubious
holding premised on a fanciful interpretation of the Eighth
Amendment. We are the first and only federal circuit to have
divined such a strange and sweeping mandate from the Cruel
and Unusual Punishments Clause. Our jurisprudence in this
case is egregiously flawed and deeply damaging—at war
with constitutional text, history, and tradition, and Supreme
Court precedent. And it conflicts with other circuits on a
question of exceptional importance—paralyzing local

as to time, place and manner with regards to persons experiencing
homelessness.” Or. Rev. Stat. Ann. § 195.530(2). The statute specifies
that “[k]eeping warm and dry means using measures necessary for an
individual to survive outdoors given the environmental conditions” but
it “does not include any measure that involves fire or flame.” Or. Rev.
Stat. Ann. § 195.530(1)(b)(B). This change in state law is yet another
reason why it was wise to not rehear Grants Pass.
1
As a judge of this court in senior status, I no longer have the power to
vote on calls for rehearing cases en banc or formally to join a dissent
from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P.
35(a). Following our court’s general orders, however, I may participate
in discussions of en banc proceedings. See Ninth Circuit General Order
5.5(a).
114 JOHNSON V. CITY OF GRANTS PASS

communities from addressing the pressing issue of
homelessness, and seizing policymaking authority that our
federal system of government leaves to the democratic
process. We should have reheard this case en banc to
reconsider our unfortunate constitutional mistake.
I
Instead of respecting constitutional “text, history, and
precedent,” Dobbs v. Jackson Women’s Health Org., 142 S.
Ct. 2228, 2271 (2022), our Eighth Amendment
jurisprudence here has disrupted the “paramount role of the
States in setting ‘standards of criminal responsibility,’”
Kahler v. Kansas, 140 S. Ct. 1021, 1028 (2020) (quoting
Powell v. Texas, 392 U.S. 514, 533 (1968) (plurality)). In
my view, our cases do not inspire confidence that we have
faithfully followed the Cruel and Unusual Punishments
Clause—and it is worth explaining how we got here before
considering why we should have reheard Grants Pass en
banc to fix our constitutional mistakes. See Martin v. City of
Boise, 920 F.3d 584, 603 (9th Cir. 2019) (inventing the
doctrine); Johnson v. City of Grants Pass, 50 F.4th 787 (9th
Cir. 2022) (expanding the doctrine).
A
Our untenable jurisprudence here started in Boise—
where a three-judge panel first invented a federal
constitutional ‘right’ (rooted in the Eighth Amendment, of
all places!) to sleep on public property. In Boise, six
homeless individuals alleged that the City of Boise, Idaho,
had violated their constitutional rights by enforcing
municipal ordinances that prohibited unauthorized sleeping
on sidewalks and in parks, plazas, and other public places.
Even though the Eighth Amendment, on its own terms, only
prohibits “cruel and unusual punishments,” U.S. Const.
 JOHNSON V. CITY OF GRANTS PASS 115

amend. VIII, the Boise panel went where no federal circuit
had gone before—holding that the Eighth Amendment
prohibited a local government from “prosecuting people
criminally” for the “involuntary act” of “sleeping outside on
public property [including sidewalks] when those people
have no home or other shelter to go to.” Boise, 920 F.3d at
603, 613, 616 (cleaned up).
In doing so, the Boise panel made no effort to ground its
decision in the text, history, or tradition of the Eighth
Amendment. Instead—after failing to identify a single
Supreme Court precedent blessing its approach—the Boise
panel attempted to fashion its preferred constitutional rule by
stitching together dicta in a lone concurrence with a dissent.
Id. at 616 (holding that these separate, unprevailing writings
in Powell “compel[led]” Boise’s result). While we declined
to rehear Boise en banc, see id. at 590-99 (M. Smith, J.,
dissental) (explaining Boise’s misconstruction of Supreme
Court precedent); id. at 599-603 (Bennett, J., dissental)
(articulating Boise’s inconsistency with the Eighth
Amendment), our mistake in Boise has (fortunately) not
been replicated in other circuits—and, as I have already
stated, we remain the only federal court of appeals to have
recognized an individual constitutional ‘right’ to sleep or to
camp on sidewalks and other public property.
B
Unfortunately, the problems created by Boise have now
been visited upon the City of Grants Pass by the panel
majority here, which has expanded Boise’s faulty holding to
affirm an injunction effectively requiring the City to resign
all but one of its public parks to be used as homeless
116 JOHNSON V. CITY OF GRANTS PASS

encampments. See Grants Pass, 50 F.4th at 792-93, 813. 2
In this case, several individuals sought to represent a putative
class of all involuntarily homeless people living in Grants
Pass, seeking a permanent injunction barring the
enforcement of municipal ordinances that prohibited
unauthorized sleeping or camping in public spaces. Id. at
792-94 (explaining that violating the challenged public-
sleeping, public-camping, and park-exclusion ordinances
could result in civil citations and fines, that repeat violators
could be excluded from specified City property, and that
violating an exclusion order could subject a violator to
criminal trespass prosecution). The district court sided with
the challengers—and it certified a class consisting of “[a]ll
involuntarily homeless individuals living in Grants Pass,”
and held that the City’s enforcement of the public-sleeping
and public-camping ordinances violated the Eighth
Amendment. Id. at 795-97.
1
A divided panel of our Court affirmed in all “material

2
The cities of Boise and Grants Pass are, regrettably, not the only victims
of our Eighth Amendment jurisprudence here—a point that is not to be
celebrated. See, e.g., Fund for Empowerment v. City of Phoenix, No.
CV-22-02041-PHX-GMS, 2022 WL 18213522 (D. Ariz. Dec. 16, 2022)
(applying Boise); Coal. on Homelessness v. City & Cnty. of San
Francisco, No. 22-CV-05502-DMR, 2022 WL 17905114 (N.D. Cal.
Dec. 23, 2022) (applying Grants Pass). While our mistaken
jurisprudence in this area has some limits, see Grants Pass, 50 F.4th at
812 n.33, we should not pretend that the jurisprudential experiment
started by Boise and expanded by Grants Pass—which “effectively
strikes down the anti-camping and anti-sleeping [o]rdinances … of
countless, if not all, cities within our jurisdiction,” Boise, 920 F.3d at 599
(M. Smith, J., dissental)—is “narrow,” contra id. at 617 (majority
opinion); Grants Pass, 50 F.4th at 813.
 JOHNSON V. CITY OF GRANTS PASS 117

aspects of this case.” Id. at 793. After concluding that class
certification was proper, the panel majority held, following
Boise, that the City could not enforce the public-camping
and park-exclusion ordinances against “involuntarily
homeless persons” for the “mere act of sleeping” or camping
in public spaces when “there is no other place in the City for
them to go.” Id. at 798 & n.12, 813 (remanding, inter alia,
on the public-sleeping ordinance because the relevant
plaintiff had died). It also expanded Boise by holding that
the City could not deprive persons of whatever materials
they needed “to keep … warm and dry,” and by extending
Boise from the purely criminal arena to civil fines and
citations. Id. at 806-09. In doing so, the panel majority—
content to rest on Boise’s tortured reading of Supreme Court
precedent, see id. at 808-11—declined to devote any serious
attention to the text, history, or tradition of the Eighth
Amendment.
2
Judge Collins dissented. Id. at 814-31. He explained,
inter alia, that the case should be reheard en banc because
the panel majority decision combined a “gross misreading of
[Boise] with a flagrant disregard of settled class-certification
principles,” and because “the foundation on which [the panel
majority decision] is built is deeply flawed: [Boise] seriously
misconstrued the Eighth Amendment and the Supreme
Court’s caselaw construing it.” Id. at 814, n.1. In his view,
Boise has “‘generate[d] dire practical consequences for the
hundreds of local governments within our jurisdiction,’” and
those harms will be “greatly magnified by the egregiously
flawed reconceptualization and extension of [Boise’s]
holding.” Id. at 831 (quoting Boise, 920 F.3d at 594 (M.
Smith, J., dissental)).
118 JOHNSON V. CITY OF GRANTS PASS

II
There is a simple reason why we should have reheard
Grants Pass en banc: it entrenches a deeply damaging and
egregiously wrong construction of the Eighth Amendment in
our Circuit’s precedent. An “erroneous interpretation” of the
Constitution is “always important.” Dobbs, 142 S. Ct. at
2265. But some judicial mistakes are “more damaging” than
others—and “more than just wrong.” Id. at 2265-66. The
novel and expansive jurisprudence entrenched by Grants
Pass—which thumbs its nose at the “standard grounds for
constitutional decisionmaking[:] text, history, and
precedent”—stands on “exceptionally weak grounds” and
“should be overruled.” Id. at 2264, 2266, 2271.
A
The first flaw in Grants Pass’s jurisprudence is that it
conflicts with the text, history, and tradition of the Eighth
Amendment—which demonstrate that the Cruel and
Unusual Punishments Clause does not establish a federal
constitutional “doctrine[] of criminal responsibility.”
Kahler, 140 S. Ct. at 1028 (cleaned up). Constitutional text,
history, and tradition make plain that the Clause was directed
to modes of punishment—and that it was never intended to
arrogate the substantive authority of legislatures to prohibit
“acts” like those at issue here, and “certainly not before
conviction.” Boise, 920 F.3d at 602 (Bennett, J., dissental).
Indeed, one might question whether the Cruel and Unusual
Punishments Clause has anything to do with the
jurisprudence embraced by Grants Pass—which authorizes
a plaintiff who has never been assigned a “punishment,” let
alone one that is “cruel and unusual,” to challenge traditional
anti-vagrancy regulations under the Clause. It is regrettable
that Grants Pass never meaningfully engaged the text,
 JOHNSON V. CITY OF GRANTS PASS 119

history, and tradition of the Constitution—which are the
“standard grounds for constitutional decisionmaking.”
Dobbs, 142 S. Ct. at 2271 (“text, history, and precedent”);
see, e.g., Ingraham v. Wright, 430 U.S. 651, 664 (1977)
(“history” and precedent); Kennedy v. Louisiana, 554 U.S.
407, 421 (2008) (“text, history, meaning, and purpose”); see
also, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407,
2428 (2022) (“historical practices and understandings”
(cleaned up)); New York State Rifle & Pistol Ass’n, Inc. v.
Bruen, 142 S. Ct. 2111, 2128-29 (2022) (“text and history”);
Washington v. Glucksberg, 521 U.S. 702, 721 (1997)
(“history and tradition” (cleaned up)).
1
The Eighth Amendment provides, “Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. amend. VIII
(emphasis added). The Amendment’s bar on excessive
“bail,” excessive “fines,” and the infliction of cruel and
unusual “punishments” indicates the Amendment’s punitive
focus. And the text of the Cruel and Unusual Punishments
Clause itself provides no substantive limit on what conduct
may be punished. Instead, it only prohibits “punishments”
(i.e., pain or suffering inflicted for a crime or offense) that
are “cruel” (i.e., marked by savagery and barbarity) and
“unusual” (i.e., not in common use), reflecting a
constitutional prohibition originally and traditionally
understood to forbid the government from “authorizing
particular forms or ‘modes’ of punishment—specifically,
cruel methods of punishment that are not regularly or
customarily employed.” Harmelin v. Michigan, 501 U.S.
957, 976 (1991) (opinion of Scalia, J.); id. at 979
(“[b]reaking on the wheel,” “flaying alive,” and “maiming,
mutilating, and scourging to death” (cleaned up)).
120 JOHNSON V. CITY OF GRANTS PASS

Constitutional text, history, and tradition make clear—
contrary to Grants Pass’s holding—that the Clause was not
originally understood to displace the authority of legislatures
to prohibit historically proscribable acts (and certainly not
before any punishment was imposed), see Boise, 920 F.3d at
599-603 (Bennett, J., dissental), and that the Clause was not
traditionally taken to enshrine a constitutional “doctrine[] of
criminal responsibility,” Kahler, 140 S. Ct. at 1028 (cleaned
up).
2
Ultimately, the text, history, and tradition of the Eighth
Amendment teach a simple truth: the Cruel and Unusual
Punishments Clause—a constitutional prohibition
fundamentally centered on modes of punishment—is not a
boundless remedy for all social and policy ills, including
homelessness. It does not empower us to displace state and
local decisionmakers with our own enlightened view of how
to address a public crisis over which we can claim neither
expertise nor authority, and it certainly does not authorize us
to dictate municipal policy here. Given the “centuries-long
evolution of the collection of interlocking and overlapping
concepts which the common law has utilized to assess the
moral accountability of an individual for his antisocial
deeds,” including the “doctrines of actus reus, mens rea,
insanity, mistake, justification, and duress,” the “process of
adjustment” of the “tension between the evolving aims of the
criminal law and changing religious, moral, philosophical,
and medical views of the nature of man” has primarily “been
thought to be the province of the States.” Powell, 392 U.S.
at 535-36 (plurality). So long as “the accused has committed
some act, has engaged in some behavior, which society has
an interest in preventing, or perhaps in historical common
law terms, has committed some actus reus,” the Eighth
 JOHNSON V. CITY OF GRANTS PASS 121

Amendment does not prohibit punishing such an act merely
“because it is, in some sense, ‘involuntary’ or ‘occasioned
by a compulsion.’” Id. at 533. It is troubling that our
Circuit—in inventing a new individual ‘right’ unmoored
from text, history, or tradition—has twisted the Eighth
Amendment to displace the substantive authority of local
officials to prohibit a species of antisocial conduct that was
neither originally nor traditionally thought to warrant the
protection of the Constitution, let alone immunity under the
Cruel and Unusual Punishments Clause.
B
The second flaw in Grants Pass’s jurisprudence is that it
lacks any foundation in the Eighth Amendment doctrine
handed down to us by the Supreme Court—which, to be
clear, has never accepted Grants Pass’s theory that the Cruel
and Unusual Punishments Clause establishes a federal
constitutional prohibition on the criminalization of
purportedly nonvolitional conduct. While Grants Pass
purports faithfully to follow the Supreme Court’s decisions
in Robinson v. California, 370 U.S. 660 (1962), and Powell
v. Texas, 392 U.S. 514 (1968), it actually rests on a plain
misreading of the Supreme Court’s instructions because it
does little more than combine dicta in a solo concurrence
with a dissent. In doing so, Grants Pass has clearly erred—
embracing a startling misapplication of the Marks doctrine
to venture far astray from Supreme Court precedent, see
Marks v. United States, 430 U.S. 188, 193 (1977) (“When a
fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the
narrowest grounds.” (cleaned up)).
122 JOHNSON V. CITY OF GRANTS PASS

1
The Supreme Court has never blessed our Circuit’s
sweeping approach to the Eighth Amendment here—and
neither Robinson nor Powell provide any support for Grants
Pass’s adventurous holding. In Robinson, the Supreme
Court first articulated the status-act distinction that should
have made this a simple case—holding only that the Eighth
Amendment prohibited states from making it a crime “to be
addicted to the use of narcotics.” Robinson, 370 U.S. at 662
(cleaned up). Unlike laws “punish[ing] a person for the use
of narcotics, for their purchase, sale or possession, or for
antisocial or disorderly behavior resulting from their
administration,” the California law invalidated by Robinson
punished the mere “status” of narcotics addiction, unmoored
from any particular conduct. Id. at 662, 666. The holding of
Robinson is simple: the criminal law cannot punish status
(e.g., “be[ing] addicted to the use of narcotics”); it can only
punish conduct (e.g., “the use of narcotics”). Id. at 662-67
(cleaned up); see Manning v. Caldwell for City of Roanoke,
930 F.3d 264, 288 (4th Cir. 2019) (en banc) (Wilkinson, J.,
dissenting).
The Supreme Court has not wavered from the status-act
distinction articulated by Robinson—and Powell is certainly
no exception. In Powell, decided soon after Robinson, a
fractured Supreme Court upheld a Texas law prohibiting
public drunkenness against an Eighth Amendment challenge
alleging that the alcoholic’s status compelled him to drink in
public. Powell, 392 U.S. 514. No controlling majority
rejected the status-act line drawn by Robinson: (1) Justice
Marshall’s four-justice plurality upheld the statute based on
Robinson’s status-act distinction, id. at 516-37 (plurality);
(2) Justice White’s lone concurrence (the dispositive fifth
vote) upheld the statute because it involved a volitional act,
 JOHNSON V. CITY OF GRANTS PASS 123

and he declined to determine whether a non-volitional act
could be criminalized, id. at 548-54 (White, J., concurring);
and (3) Justice Fortas’s four-justice dissent rejected
Robinson’s status-act distinction and deemed the statute’s
enforcement unconstitutional, id. at 554-70 (Fortas, J.,
dissenting). Because Justice White did not “reach[] the
broader question of compulsion, the judgment in Powell
neither extended [n]or contracted Robinson, which was left
undisturbed.” Manning, 930 F.3d at 289 (Wilkinson, J.,
dissenting). And the Supreme Court has certainly never
understood Powell to have such broad effect: it has neither
“walked away from Robinson” nor “embraced [Boise’s]
whole notion of nonvolitional conduct.” Id.
2
Nevertheless, Grants Pass—turning to Powell’s
fractured decision, see Grants Pass, 50 F.4th at 809-11
(contorting Powell and Marks)—attempts to “tease [its]
preferred reading from the dicta of a single justice,”
Manning, 930 F.3d at 290 (Wilkinson, J., dissenting).
Grants Pass’s distortion of Powell clearly violates Marks—
which, as explained, instructs that the Court’s holding is
“that position taken by those Members who concurred in the
judgment[] on the narrowest grounds.” Marks, 430 U.S. at
193 (cleaned up). Because no victorious majority in Powell
disrupted Robinson’s “status-act” distinction or blessed
Grants Pass’s “involuntary conduct” theory, we are left with
nothing more than Grants Pass’s attempt to craft its
preferred rule by combining dicta in a concurrence with a
dissent—which means that Grants Pass is ultimately
predicated on a plain Marks violation. Such a fundamental
mistake, which directly implicates the limits on an inferior
court’s authority to circumvent the limits of such controlling
precedents, should not remain the law of our Circuit.
124 JOHNSON V. CITY OF GRANTS PASS

III
The fundamental flaws in Grants Pass are sufficient
reason to reject its deeply damaging and egregiously wrong
interpretation of the Eighth Amendment. But even apart
from the constitutional errors entrenched by Grants Pass,
there are additional, compelling reasons why this case
warranted rehearing en banc. Perhaps most importantly, our
expansive interpretation of the Cruel and Unusual
Punishments Clause diverges from other courts on an issue
of exceptional importance—and it is telling that we remain
the only circuit bold enough to embrace an Eighth
Amendment doctrine that effectively requires local
communities to surrender their sidewalks and other public
places to homeless encampments.
A
The Eighth Amendment jurisprudence undergirding
Grants Pass squarely conflicts with decisions from other
circuits and other courts. We should not pretend that our
Circuit’s divination of a personal constitutional ‘right’ to
encamp on public property (including sidewalks) is anything
but the inventive, judge-made novelty that we all know it to
be.
1
The first set of conflicts—which centers on Grants
Pass’s result—is plain. No federal circuit or state supreme
court (not one!) has ever embraced Grants Pass’s sweeping
holding that the Eighth Amendment prohibits the
enforcement of public-camping restrictions (including
before any punishment is imposed). Other circuits to
consider the issue have uniformly upheld such laws against
Eighth Amendment challenges. See Joel v. City of Orlando,
 JOHNSON V. CITY OF GRANTS PASS 125

232 F.3d 1353, 1356, 1361-62 (11th Cir. 2000) (upholding
public-camping proscription because “[a] distinction exists
between applying criminal laws to punish conduct, which is
constitutionally permissible, and applying them to punish
status, which is not”); see also Johnson v. City of Dallas, 61
F.3d 442, 443-45, n.5 (5th Cir. 1995) (rejecting challenge to
public-camping proscription because the prohibition on
cruel and unusual punishments is applicable only after
prosecution and conviction, and none of the challengers had
been “convicted of violating the sleeping in public
ordinance” (relying on Ingraham, 430 U.S. at 664)). And no
state supreme court has reached the same result as our
aberrant decision here. See Tobe v. City of Santa Ana, 892
P.2d 1145, 1166 (Cal. 1995) (upholding public-camping
regulation because the “ordinance permits punishment for
proscribed conduct, not punishment for status”); Allen v.
City of Sacramento, 234 Cal. App. 4th 41, 60 (2015)
(upholding public-camping bar because “the Eighth
Amendment does not prohibit the punishment of acts,” and
the “ordinance punishes the act[] of [illegal] camping, … not
homelessness”). No defender of Grants Pass’s
jurisprudence has provided a compelling response to these
decisions, see Boise, 920 F.3d at 617 n.9 (attempting to
reconcile Boise with Joel’s alternative rationale, but
declining to do much else); Grants Pass, 50 F.4th 787 (not
even attempting this much)—let alone a federal appellate or
state supreme court case that has ever reached Grants Pass’s
result. While Grants Pass has not been replicated elsewhere,
aside from a smattering of trial-level dispositions, a decision
that stands so far out of step with so many other courts is one
that cries out for correction.
2
The second set of conflicts—which relates to Grants
126 JOHNSON V. CITY OF GRANTS PASS

Pass’s rationale—is similarly troublesome. Our approach to
the Eighth Amendment in this area conflicts with decisions
from the First Circuit, Fourth Circuit, and Seventh Circuit,
which embrace several competing tests for determining
whether the Eighth Amendment immunizes involuntary
conduct. At least two other circuits—the First Circuit and
the Seventh Circuit—have flatly rejected the Grants Pass
principle that purportedly “involuntary” conduct is exempt
from criminal liability under the Eighth Amendment, or that
Justice White’s lone concurrence in Powell provides the
binding opinion that compels such exemptions. See, e.g.,
United States v. Sirois, 898 F.3d 134, 137-38 (1st Cir. 2018);
United States v. Stenson, 475 F. App’x 630, 631 (7th Cir.
2012) (citing United States v. Black, 116 F.3d 198, 200-01
(7th Cir. 1997)); see also supra (collecting cases rejecting
Grants Pass’s reading of Robinson, Powell, and Ingraham).
And the Fourth Circuit—the only circuit that embraces
anything like Grants Pass’s approach—provides, at best,
only mixed support because even though it held that
involuntary conduct may be exempt based on dicta in Justice
White’s lone concurrence, it limited its holding to laws that
“singled” individuals “out for special punishment for
otherwise lawful conduct that is compelled by their illness.”
Manning, 930 F.3d at 281 n.14. Our Circuit is, therefore,
locked in a deep and varied intercircuit split over how to read
the Eighth Amendment in light of Robinson and Powell—
and, as explained, we are the only federal court of appeals to
have discovered a personal constitutional ‘right’ for
individuals to encamp on public property (including
sidewalks) in violation of traditional health, safety, and
welfare laws, a result that no other federal circuit or state
supreme court in the country has been bold enough to
replicate.
 JOHNSON V. CITY OF GRANTS PASS 127

B
Grants Pass also presents a question of exceptional
practical and institutional importance. The immodest
approach to the Eighth Amendment that it embraces is both
troubling and dangerous. It undermines the power of state
and local governments to address the homelessness crisis.
And it arrogates to federal judges authority that the
Constitution reserves elsewhere. We should have granted
rehearing en banc to stop the damage already being worked
by Boise and to stave off the mischiefs that Grants Pass is
sure to worsen. It is regrettable that our Circuit has declined
to grapple with the consequences of our mistakes.
1
The practical consequences should have been reason
enough to reconsider our jurisprudential experiment before
it did any more harm to our communities—and before its
dangers were exacerbated by Grants Pass. No one
reasonably doubts that our existing precedent in Boise has
created grave and troubling consequences for the state and
local communities within our jurisdiction. And no one
meaningfully contests that these harms will be greatly
worsened by the doctrinal innovations introduced by Grants
Pass. One need only walk through our neighborhoods—
through the Tenderloin (San Francisco) or Skid Row (Los
Angeles)—to know that our communities are fast coming
undone. Tents crowding out sidewalks, needles flooding
parks, and rubbish (and worse) marring public squares
reflect a threat to the public welfare that should not be taken
lightly. Nor do such troubling blights mark an area where
we should be eager to throw caution to the wind and to
embrace judicial adventurism so far removed from the
guardrails set by the Constitution’s text and the Supreme
128 JOHNSON V. CITY OF GRANTS PASS

Court’s precedents.
Unfortunately, the “Hobson’s choice” imposed by our
Circuit effectively requires state and local officials to
“abandon enforcement of a host of laws regulating public
health and safety,” Boise, 920 F.3d at 594 (M. Smith, J.,
dissental)—and, if today’s decision is any guide, our
precedents will readily be wielded effectively to require
jurisdictions throughout our Circuit to surrender the use of
many of their public spaces (including sidewalks) to
homeless encampments. It is easy enough for us, behind
marble walls and sealed doors, to dismiss the consequences
of our decisions. But for those who call these communities
home—who must live by the criminal violence, narcotics
activity, and dangerous diseases that plague the homeless
encampments buttressed by our decisions—the
consequences of our judicial arrogation are harder to accept.
2
In addition to the practical harms that our jurisprudence
creates for our communities, we also should have ended the
jurisprudential mistake embraced by Grants Pass as quickly
as possible because it “visit[s] structural and institutional
damage in so many respects.” Manning, 930 F.3d at 305
(Wilkinson, J., dissenting). In particular, the doctrine
embraced by Grants Pass puts “judges in policymaking roles
reserved largely for legislatures and states.” Id. at 297. It
erodes “the states’ role as separate sovereigns entrusted to
define the criminal law within their own borders,” and
“pushes the Eighth Amendment as a catch-all corrective” for
social ills identified by inexpert and unelected judicial
officers. Id. Under our federal system, state and local
leaders—not distant federal judges—are primarily entrusted
with the power and duty to protect the common welfare of
 JOHNSON V. CITY OF GRANTS PASS 129

our towns, cities, and neighborhoods, and to ensure that our
streets, squares, and sidewalks remain clean and safe. See
United States v. Lopez, 514 U.S. 549, 561 n.3 (1995). The
reason for such “legislative responsibility over criminal law
is fundamental: the criminal law exists to protect the safety
of citizens, and ensuring the safety of the people is one of
those things that popular government exists to do.”
Manning, 930 F.3d at 297 (Wilkinson, J., dissenting).
Unfortunately, this has not swayed our Court—with
consequences that will sweep well past the troubles visited
upon the City of Boise and the City of Grants Pass.
IV
Grants Pass is a regrettable mistake that entrenches and
expands upon previous deeply damaging jurisprudence.
While I do not doubt the good faith of my colleagues, it is
hard to imagine a jurisprudence that combines so little regard
for the sacred words of the Constitution, with so much
disregard for the state and local authorities that our
constitutional system entrusts as the primary protectors of
the health, safety, and welfare of our communities. Our
jurisprudence here is flawed—in conflict with the text,
history, and tradition of the Eighth Amendment, and the
precedents of the Supreme Court. And it splits from other
circuits on a question of exceptional importance, working
great violence to our constitutional structure and threatening
dire consequences for communities within our jurisdiction.
It is most regrettable that our Court has failed to rehear this
case en banc.
130 JOHNSON V. CITY OF GRANTS PASS

GRABER, Senior Circuit Judge, respecting the denial of
rehearing en banc:

The constitutional limits on a municipality’s ability to
address the issue of homelessness present an exceptionally
important and complex topic. I appreciate the many
thoughtful views expressed by my colleagues. I write
separately to offer a middle ground.
Whether or not the result is dictated by Powell v. Texas,
392 U.S. 514 (1968), the Eighth Amendment almost
certainly prohibits criminal punishment of persons who
engage in truly involuntary actions such as sleeping. I thus
agree with the underlying legal premise of the decisions in
Johnson v. City of Grants Pass, 50 F.4th 787 (9th Cir. 2022),
and Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019).
Eighth Amendment protection also extends to individualized
injunctive relief, such as precluding a municipality from
enforcing a particular criminal provision against a specific
person, if past actions by the municipality warrant such
equitable relief. Our opinion in Martin, though
controversial, reached a reasonable result, particularly
because Martin emphasized the “narrow” nature of its
holding. 920 F.3d at 617. I did not join, and did not agree
with, the dissents from denial of rehearing en banc in Martin.
In my view, though, the extension of Martin to classwide
relief, enjoining civil statutes that may eventually lead to
criminal violations but have never resulted in criminal
convictions for any named plaintiff, is a step too far from the
individualized inquiries inherent both in the Eighth
Amendment context and in the context of injunctive relief.
A key part of Johnson’s reasoning begins with the
observation that civil citations could lead to a civil park-
exclusion order which, in turn, could lead to a prosecution
 JOHNSON V. CITY OF GRANTS PASS 131

for criminal trespass (but which never has for the named
plaintiffs). 1 Johnson, 50 F.4th at 807–08. The opinion then
concludes that, because the Eighth Amendment would
prohibit that ultimate prosecution, it also must prohibit the
civil citations. Id. I disagree with that double leap in logic.
Even assuming that classwide injunctive relief were
available against a prosecution for criminal trespass, the
Eighth Amendment does not prohibit all civil remedies that
could, in theory, lead to such a prosecution. In this way,
Johnson unjustifiably expands the reach of the Eighth
Amendment.
The challenges faced by individuals experiencing
homelessness are severe. And the challenges that face
municipalities are daunting. When called upon, we have an
obligation to ensure that a municipality’s efforts to provide
for the common health and safety do not violate the
Constitution. I agree with the basic legal premise that the
Eighth Amendment protects against criminal prosecution of
the involuntary act of sleeping, but the injunctive relief in
this case goes too far. Moreover, given the widespread
nature of the homelessness crisis in our jurisdiction, it is

1
The amended opinion refers to Debra Blake as “a named plaintiff,” and
the amended opinion states that she was convicted of “Criminal Trespass
on City Property.” Amended Op. at 28 n.13. Blake unfortunately died.
As the opinion elsewhere recognizes, Johnson, 50 F.4th at 800–02, she
is no longer a named plaintiff. Moreover, Blake’s “conviction” is doubly
inapt here. First, despite the name of the citation, the conviction was for
a violation, not a crime. Second, Blake was cited for being in a closed
park, not for violating any of the civil statutes challenged here. The crux
of the opinion’s analysis is that a civil citation could lead to a criminal
misdemeanor conviction under Oregon Revised Statute section 164.245.
Johnson, 50 F.4th at 807. No evidence in the record suggests that the
civil statutes relevant here have caused Blake or any named plaintiff to
be convicted of that crime.
132 JOHNSON V. CITY OF GRANTS PASS

crucial that we get it right. Our court should have reheard
this case en banc.

M. SMITH, Circuit Judge, with whom Judges BENNETT,
BUMATAY, and VANDYKE join, and with whom Judges
IKUTA, R. NELSON, BADE, COLLINS, and BRESS join
as to Parts I and II, dissenting from the denial of rehearing
en banc:

Homelessness is presently the defining public health and
safety crisis in the western United States. California, for
example, is home to half of the individuals in the entire
country who are without shelter on a given night. 1 In the
City of Los Angeles alone, there are roughly 70,000
homeless persons. 2 There are stretches of the city where one
cannot help but think the government has shirked its most
basic responsibilities under the social contract: providing
public safety and ensuring that public spaces remain open to
all. One-time public spaces like parks—many of which
provide scarce outdoor space in dense, working-class
neighborhoods—are filled with thousands of tents and
makeshift structures, and are no longer welcoming to the

1
HUD, The 2022 Annual Homelessness Assessment Report (AHAR) to
Congress 16 2022),
https://www.huduser.gov/portal/sites/default/files/pdf/2022-AHAR-
Part-1.pdf.
2
Doug Smith, Rand Survey Finds Homelessness Up 18% in L.A. Hot
Spots Where the Official Count Recorded Decreases, L.A. Times (Jan.
26, 2023), https://www.latimes.com/california/story/2023-01-26/rand-
survey-finds-homelessness-up-18-in-l-a-hot-spots-where-the-official-
count-recorded-decreases.
 JOHNSON V. CITY OF GRANTS PASS 133

broader community. 3
It is a status quo that fails both those in the homeless
encampments and those near them. The homeless
disproportionately risk being the victims of violence, sexual
assault, and drug-related death, 4 and encampments’
unsanitary conditions have caused resurgences of plagues
such as typhus, tuberculosis, and hepatitis-A. 5 For those
who live, work, and attend school near these encampments,
they have become a source of fear and frustration. A
plurality of California residents rate homelessness and the
closely related issue of a lack of affordable housing as the

3
See generally Luis Sinco, Photos: An Unflinching Look at
Homelessness During the Pandemic (Mar. 8, 2021),
https://www.latimes.com/california/story/2021-03-08/homelessness-
and-the-pandemic (depicting homeless encampments); L.A. Homeless
Servs. Auth., Car, Van, RV/Camper, Tent, and Makeshift Shelter
(CVRTM) (2022), https://www.lahsa.org/documents?id=6533-cvrtm-
summary-by-geography (estimating the total number of tents and
makeshift structures across the City of Los Angeles).
4
See Gale Holland, Attacked, Abused and Often Forgotten: Women Now
Make Up 1 in 3 Homeless People in L.A. County, L.A. Times (Oct. 28,
2016), https://www.latimes.com/projects/la-me-homeless-women/;
Christian Martinez & Rong-Gong Lin II, L.A. County Homeless Deaths
Surged 56% in Pandemic’s First Year. Overdoses Are Largely to Blame,
L.A. Times (Apr. 22, 2022),
https://www.latimes.com/california/story/2022-04-22/la-county-
homeless-deaths-surge-pandemic-overdoses.
5
Soumya Karlamangla, L.A. Typhus Outbreak Adds Fuel to Debates
Over Homelessness and Housing, L.A. Times (Oct. 11, 2018),
https://www.latimes.com/local/california/la-me-ln-typhus-outbreak-
20181011-story.html; Anna Gorman & Kaiser Health News, Medieval
Diseases Are Infecting California’s Homeless, Atlantic,
https://www.theatlantic.com/health/archive/2019/03/typhus-
tuberculosis-medieval-diseases-spreading-homeless/584380/ (last
updated Mar. 11, 2019).
134 JOHNSON V. CITY OF GRANTS PASS

state’s two most pressing issues. 6 In the City of Los
Angeles, a startling 95% of residents view homelessness as
a serious or very serious problem, while roughly 40% of
residents report that pervasive homelessness makes them no
longer feel safe in their own neighborhoods. 7
Homelessness is caused by a complex mix of economic,
mental-health, and substance-abuse factors, and appears to
resist any easy solution. In recent years, state and local
governments have taken a variety of steps intended to
ameliorate the crisis: adopting zoning reforms to increase the
supply of housing, declaring public emergencies to bypass
red tape and more quickly build new public housing,
increasing spending on mental-health services, and
contracting with hotels and motels to offer temporary
housing to those living on the street. Some local
governments have also reasonably chosen to couple these
longer-term measures with attempts to enforce public-
camping bans and other public health measures—but most
of these attempts to mitigate the challenging issues of
homelessness have been wholly or partially frustrated by an

6
Mark Murray, California Poll: Homelessness Is Most Urgent Issue in
the State, NBC News (Mar. 1, 2023), https://www.nbcnews.com/meet-
the-press/meetthepressblog/california-poll-homelessness-urgent-issue-
state-rcna72972.
7
Benjamin Oreskes, Doug Smith & David Lauter, 95% of Voters Say
Homelessness is L.A.’s Biggest Problem, Times Poll finds. ‘You Can’t
Escape It.’, L.A. Times (Nov. 14, 2019),
https://www.latimes.com/california/story/2019-11-14/homeless-
housing-poll-opinion; Benjamin Oreskes & David Lauter, L.A. Voters
Angry, Frustrated Over Homeless Crisis, Demand Faster Action, Poll
Finds, L.A. Times (Dec. 1, 2021), https://www.latimes.com/homeless-
housing/story/2021-12-01/la-voters-are-frustrated-impatient-over-
persistent-homelessness-crisis.
 JOHNSON V. CITY OF GRANTS PASS 135

alleged constitutional right conjured by a panel of our court
that finds no support in United States Supreme Court
jurisprudence.
Assume, for example, that you are a police officer and
you encounter a homeless person in some public space—say,
San Francisco’s Civic Center near the James R. Browning
Building where our court sits. Assume further that the
person has set up a tent and “engage[d] in other life-
sustaining activities” like defecation and urination on the
sidewalk nearby. Martin v. City of Boise, 920 F.3d 584, 617
(9th Cir. 2019) (citation omitted). You also know that,
pursuant to the city’s good-faith efforts to comply with the
dictates of Martin, government workers have conducted
outreach and offered temporary housing to the homeless
persons in this area. Nonetheless, under the majority’s
reasoning, you are powerless to cite this person even for
public defecation because San Francisco has fewer shelter
beds than total homeless persons. It is irrelevant that the city
already offered this specific person shelter because “the
number of homeless persons outnumber the available shelter
beds.” Johnson v. City of Grants Pass, 50 F.4th 787, 792
(9th Cir. 2022) (cleaned up). 8 In a democracy, voters and
government officials should be able to debate the efficacy
and desirability of these types of enforcement actions.
Regrettably, our court has short-circuited the political
process and declared a reasonable policy response to be off-
limits and flatly unconstitutional.
Contrary to Judges Gould and Silver’s assertion, neither

8
This hypothetical is based on two district-court applications of Martin
and Grants Pass. See infra section III (San Francisco and Sacramento
examples).
136 JOHNSON V. CITY OF GRANTS PASS

my description of the West’s homelessness crisis nor my
offering of the above hypothetical is meant to “argue the
crisis would abate” if Martin and Grants Pass were
overruled. Though these decisions certainly add obstacles to
local governments’ already difficult path to solving the
homelessness crisis, I have never and do not here contend
that our precedent is an on/off-switch entirely responsible for
the crisis.
I describe the scope of the West’s homelessness crisis to
instead make a point about our proper role, as well as our
institutional competence and accountability. Unlike the
officials tasked with addressing homelessness, the members
of our court are neither elected nor policy experts. Of course,
the political process must yield to the fundamental rights
protected by the Constitution, and some of federal courts’
finest moments have come in enforcing the rights of
politically marginal groups against the majority. But when
asked to inject ourselves into a vexing and politically
charged crisis, we should tread carefully and take pains to
ensure that any rule we impose is truly required by the
Constitution—not just what our unelected members think is
good public policy. Unfortunately, the careful constitutional
analysis that the West’s homelessness crisis calls for is
absent from both Martin, 920 F.3d 584, and the majority
opinion here, Grants Pass, 50 F.4th 787.
Martin misread Supreme Court precedent, yet we failed
to give that case the en banc reconsideration it deserved.
Grants Pass now doubles down on Martin—crystallizing
Martin into a crude population-level inquiry, greenlighting
what should be (at most) an individualized inquiry for class-
wide litigation, and leaving local governments without a clue
of how to regulate homeless encampments without risking
legal liability. Martin handcuffed local jurisdictions as they
 JOHNSON V. CITY OF GRANTS PASS 137

tried to respond to the homelessness crisis; Grants Pass now
places them in a straitjacket. If this case does not “involve[]
a question of exceptional importance,” I cannot imagine one
that does. Fed. R. App. P. 35(a)(2). We should have taken
this second chance to revisit our flawed precedent en banc,
and I respectfully dissent from our decision not to do so.
I.
As Judge O’Scannlain explains in his Statement, Martin
cannot be squared with the Supreme Court’s Eighth
Amendment precedent. What is more, as Judge O’Scannlain
also explains, Martin violates Supreme Court precedent
regarding what constitutes binding precedent. The Marks
rule instructs in no uncertain terms that, “[w]hen a
fragmented [Supreme] Court decides a case and no single
rationale explaining the result enjoys the assent of five
Justices, the holding of the Court may be viewed as that
position taken by those Members who concurred in the
judgments on the narrowest grounds.” Marks v. United
States, 430 U.S. 188, 193 (1977) (cleaned up) (emphasis
added). Yet Martin counted to five votes for its
understanding of the Eighth Amendment by including the
four votes of the Powell dissenters. Martin, 920 F.3d at 616
(“The four dissenting Justices adopted a position consistent
with that taken by Justice White [in his concurrence] . . . .”).
When the Marks rule is properly applied to Powell v. Texas,
392 U.S. 514 (1968), it produces the holding that Powell’s
“conviction was constitutional because it involved the
commission of an act. Nothing more, nothing less.” Martin,
920 F.3d at 591 (M. Smith, J., dissenting from denial of
rehearing en banc); see also Grants Pass, 50 F.4th at 830
(Collins, J., dissenting) (“Under a correct application of
Marks, the holding of Powell is that there is no constitutional
obstacle to punishing conduct that has not been shown to be
138 JOHNSON V. CITY OF GRANTS PASS

involuntary, and the converse question of what rule applies
when the conduct has been shown to be involuntary was left
open.”). Put differently: When the Marks rule is properly
applied, Martin cannot hide behind Powell and insist that
Supreme Court precedent “compels the conclusion” it
reached. Martin, 920 F.3d at 616.
Martin therefore had the burden to affirmatively justify
its rule—that a “state may not criminalize conduct that is an
unavoidable consequence” of a person’s status—as
consistent with the Eighth Amendment. Id. at 617 (cleaned
up). But neither Martin nor the majority in this case even
attempts to make that showing, including rebutting the
number of reasons Justice Thurgood Marshall and the other
Justices in the Powell plurality thought an unavoidable-
consequence-of-status rule would be both improper and
unworkable. We are left completely in the dark as to why,
for example, the Martin panel and Grants Pass majority
apparently thought:

• The Powell plurality was wrong to interpret Robinson
v. California, 370 U.S. 660 (1962) as a ban on
“punish[ing] a mere status” and nothing more.
Powell, 392 U.S. at 532 (plurality) (Marshall, J.).
• The Powell plurality was wrong to be concerned that
an unavoidable-consequence-of-status rule would
lack “any limiting principle.” Id. at 533.
• The Powell plurality was wrong to think that a
constitutionalized unavoidable-consequence rule
would improperly override the ability of states to
develop “[t]he doctrines of actus reus, mens rea,
insanity, mistake, justification, and duress” to resolve
as they think best “the tension between the evolving
 JOHNSON V. CITY OF GRANTS PASS 139

aims of the criminal law and changing religious,
moral, philosophical, and medical views of the nature
of man.” Id. at 535–36.
• The Powell plurality incorrectly characterized an
unavoidable-consequence rule as conferring upon
unelected federal judges the impossible task of being
“the ultimate arbiter[s] of the standards of criminal
responsibility, in diverse areas of the criminal law,
throughout the country.” Id. at 533.
• The punishment flowing from a public-camping
prosecution (or even just a civil citation) constitutes
the “exceedingly rare” instance—outside the context
of capital punishment and juvenile life without
parole—where a particular sentence may violate the
Eighth Amendment. Rummel v. Estelle, 445 U.S. 263,
272 (1980); see Miller v. Alabama, 567 U.S. 460,
469–70 (2012) (summarizing proportionality case
law).

Judges Gould and Silver are correct to note that the Powell
plurality is, after all, just a plurality. But these questions,
and others, still warranted a response—one would hope that
a lower court, when fashioning a novel constitutional rule,
would at least grapple with the reasons four Supreme Court
Justices expressly chose to reject the very same rule. The
district courts tasked with applying Martin/Grants Pass, the
local governments placed in a straitjacket by these decisions,
and the residents of our circuit who now must live with the
consequences all deserved better than the half-reasoned
decisions they received from our court.
II.
Moreover, even if one assumes arguendo that the Eighth
140 JOHNSON V. CITY OF GRANTS PASS

Amendment supports an unavoidable-consequence-of-status
principle, Grants Pass’s homelessness-specific analysis has
nothing to do with that principle. One would reasonably
assume that Grants Pass implemented Martin’s general
Eighth Amendment principle by mandating that courts
conduct an individualized inquiry: whether public camping
by the individual plaintiffs before the court is an
“unavoidable consequence” of their status as homeless
persons—inquiring, for example, into whether the plaintiffs
declined offers of temporary housing. 9 But one would be
mistaken in that assumption. Instead of calling for an
individualized inquiry, the original Grants Pass majority
opinion candidly set forth a crude jurisdiction-wide inquiry:
“The formula established in Martin is that the government
cannot prosecute homeless people for sleeping in public if
there is a greater number of homeless individuals in a
jurisdiction than the number of available shelter spaces.”
Grants Pass, 50 F.4th at 795 (cleaned up); see id. at. 823–28
(Collins, J., dissenting) (arguing that Martin provides at
most a “case-specific,” as-applied claim). The original

9
One short-term housing site in Los Angeles sits nearly empty despite
proximity to a large homeless camp, and one of the new Los Angeles
mayor’s marquee offers of short-term housing had a below-50%
acceptance rate. See Helen Li, The Times Podcast: Why Hotel Rooms
for L.A.’s Homeless Sit Empty (Feb. 15, 2023),
https://www.latimes.com/podcasts/story/2023-02-15/the-times-podcast-
cecil-hotel-los-angeles; Benjamin Oreskes, Bass Wants to Bring
Homeless People Indoors. Can She Secure Enough Beds?, L.A. Times
(Dec. 22, 2022), https://www.latimes.com/california/story/2022-12-
22/karen-bass-homelessness-directive-inside-safe; see also David
Zahniser, In Downtown L.A., Bass’ Plan to Clear Encampments Faces
Crime, Addiction and Resistance (May 30, 2023), L.A. Times,
https://www.latimes.com/california/story/2023-05-30/la-me-mayor-
bass-homeless-encampment-resistance.
 JOHNSON V. CITY OF GRANTS PASS 141

majority opinion made clear that the beds-versus-population
“formula” is all that matters: Because the plaintiffs in this
case established a shelter-beds deficit, they are deemed—no
matter their personal situations—involuntarily homeless,
and the city effectively cannot enforce its ordinances against
any homeless person.
The majority has now amended its opinion to remove
this “formula” language, and the opinion’s body now quotes
Martin’s statement that individuals are outside the purview
of its holding if they “have access to adequate temporary
shelter, whether because they have the means to pay for it or
because it is realistically available to them for free, but [they]
choose not to use it.” Martin, 920 F.3d at 617 n.8. But I fear
that this amendment, in reality, does little to change the
substance of Grants Pass and instead simply obscures what
Grants Pass holds.
Notably, the amendment is not accompanied by any
downstream changes to the majority’s application of its rule
to the facts or its ultimate conclusion. So, the “formula”
language may be gone, but the approach that language
forthrightly described remains embedded in the opinion.
Grants Pass still holds that “[t]here, of course, exists no law
or rule requiring a homeless person” to “provide the court an
accounting of her finances and employment history” before
being deemed “involuntarily homeless.” 50 F.4th at 811. It
still equates a shelter-beds deficit with jurisdiction-wide
involuntariness: “[T]he number of homeless persons
outnumber the available beds. In other words, homeless
persons have nowhere to shelter and sleep in the City . . . .”
Id. at 792; see also id. at 797 (describing the district court
decision, which it largely affirms, as holding “that, based on
the unavailability of shelter beds, the City’s enforcement of
its anti-camping and anti-sleeping ordinances violated the
142 JOHNSON V. CITY OF GRANTS PASS

Cruel and Unusual Punishment Clause”). And it still treats
a shelter-beds deficit, when combined with conclusory
allegations of involuntariness, as sufficient for an individual
to show that he or she is involuntarily homeless: “Gloria
Johnson has adequately demonstrated that there is no
available shelter in Grants Pass and that she is involuntarily
homeless.” Id. at 811.
The amendment thus places district courts in an
impossible position. They will not be able to reconcile
Grants Pass’s disparate strands—because they cannot be
reconciled. District courts will have to choose between
following what Grants Pass now says in one place (there
must be a meaningful voluntariness inquiry) and what
Grants Pass says and does in another place (a shelter-beds
deficit and conclusory allegations are all one needs).
Indeed, Grants Pass’s class-certification analysis
confirms that its nod to the unavoidable-consequence or
involuntarily-homeless limitation is just window dressing—
and that the amendment to the opinion is one of form, not
substance. As Judge Collins explained, if Martin’s public-
camping ban is truly limited to those who are involuntarily
homeless, then Martin-type cases cannot possibly be
litigated on a class-wide basis. Grants Pass, 50 F.4th at 823–
28 (Collins, J., dissenting). To be certified, a putative class
must satisfy Federal Rule of Civil Procedure 23’s
commonality requirement, among others. “What matters”
for purposes of that requirement “is not the raising of
common questions—even in droves—but rather, the
capacity of a class-wide proceeding to generate common
answers apt to drive the resolution of the litigation.” Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)
(cleaned up). A court must be able to “resolve an issue that
is central to the validity of each one of the [class members’]
 JOHNSON V. CITY OF GRANTS PASS 143

claims in one stroke.” Id. Whether a public-camping ban is
unconstitutional as applied to a homeless plaintiff depends
(it would seem) on whether that plaintiff is “involuntarily
homeless,” which in turn depends on a host of individualized
factors: Did they decline the city’s offer of temporary
housing? Do they otherwise “have the means to pay” for
temporary housing? Were there areas of the city where they
could publicly camp without citation in light of the city’s
enforcement policies? It blinks reality to say that the district
court could, “in one stroke,” resolve the constitutionality of
the public-camping ban as applied to each of the “at least
around 50” class members here. Grants Pass, 50 F.4th at
811.
The majority, for what it is worth, tries to backdoor
involuntariness into its Rule 23 analysis. But its argument is
one that Philosophy 101 professors should consider using as
their go-to example of circular reasoning: The class satisfies
Rule 23’s commonality requirement because the class
members’ claims all present the question of whether
enforcement of public-camping ordinances against
“involuntarily homeless individuals violates the Eighth
Amendment.” Id. at 804–05 n.22. Answering that question
resolves the claims of each class member “in one stroke”
because “[p]ursuant to the class definition, the class includes
only involuntarily homeless persons.” Id. at 804–05
(citation omitted). The basis for that premise? “[T]he record
establishes” it. Id. at 804–05 n.22. As Judge Collins
explained, there is “no authority for this audacious bootstrap
argument.” Id. at 827 (Collins, J., dissenting). By wholly
collapsing the merits into the class definition, the majority
opinion certified an impermissible “fail safe” class. Id.
(quoting Olean Wholesale Grocery Coop. v. Bumble Bee
Foods, 31 F.4th 651, 670 n.14 (9th Cir. 2022) (en banc)).
144 JOHNSON V. CITY OF GRANTS PASS

In response to this criticism, Judges Gould and Silver
suggest that Grants Pass’s class-certification analysis is run
of the mill—analogizing it to our court’s recent approval of
a district court’s certification of a class of California
residents who worked for a certain employer. See Bernstein
v. Virgin Am., Inc., 3 F.4th 1127, 1134 (9th Cir. 2021). It is
telling that Judges Gould and Silver think involuntary
homelessness is as easily determined as residency and
employment history—another piece of evidence that
Martin’s involuntariness component has faded away or been
collapsed into the shelter-beds inquiry. More
fundamentally, their analogy overlooks that the Bernstein
class definition did not swallow the merits inquiry in the
manner that the class definition does here. Separate from
class membership (based on residency and employment), the
Bernstein plaintiffs still had to make a merits showing that
the defendant violated California labor laws by, among other
things, failing to pay a minimum wage and to pay for all
hours worked. See id. at 1133. Here, by contrast, the game
is essentially over as soon as the class is certified. The class
(purportedly) consists only of involuntarily homeless
people, and application of the challenged ordinances to the
class members is unconstitutional (under our flawed
precedent) because the class members are involuntarily
homeless.
Viewing the majority’s class-certification analysis, there
are only two possible conclusions: Either (1) the majority
erred in certifying the class despite a lack of commonality;
or (2) the majority read “involuntarily” out of Martin’s
purported involuntarily-homeless rule. Either conclusion
points to profound error that we should have used the en
banc process to correct.
 JOHNSON V. CITY OF GRANTS PASS 145

III.
Judges Gould and Silver insist that Martin and Grants
Pass apply only in “exceptionally narrow situation[s]” and
that critics of these decisions have resorted to “rhetorical
exaggerations.” But whose word should one take: that of a
panel majority defending its own work or that of several
district court judges who have no dog in this fight and are
simply trying to understand and apply the law as we have
handed it down to them? Several district court decisions
have understood Martin and now Grants Pass to run
roughshod over normal procedural rules and past any
substantive limiting principles. As a result, local
governments are hard-pressed to find any way to regulate the
adverse health and safety effects of homeless encampments
without running afoul of our court’s case law—or, at a
minimum, being saddled with litigation costs. If one picks
up a map of the western United States and points to a city
that appears on it, there is a good chance that city has already
faced a lawsuit in the few short years since our court initiated
its Martin experiment. Without expressing any view on how
other district courts or panels of our court should decide
these or similar cases pursuant to our existing precedent, I
offer a few examples of the judicial adventurism our case
law has already produced:
1. San Francisco responded conscientiously to Martin.
The police department promulgated an enforcement bulletin
intended to comply with that case’s dictates while retaining
flexibility to clear some of the city’s worst encampments.
See Coal. on Homelessness v. City & Cnty. of San Francisco,
No. 22-cv-05502-DMR, 2022 WL 17905114, at *3–7 (N.D.
Cal. Dec. 23, 2022). Pursuant to the bulletin, an officer
cannot arrest a homeless person for a set of enumerated
offenses unless SFPD first “secure[s] appropriate shelter.”
146 JOHNSON V. CITY OF GRANTS PASS

Id. at *4 (emphasis omitted). SFPD policy requires officers
to work with other city agencies to implement a multi-step
process: The city posts a notice that an encampment clearing
will occur on a particular date; city workers perform
outreach at the encampment the weekend before the
clearing; and city workers follow up at the encampment 24
to 72 hours before the clearing. Id. at *5–7. Only then can
an encampment clearing take place. To be sure, the record
on SFPD’s compliance with this policy was mixed. The
defendants asserted that they always comply with the
policy—“conduct[ing] regular training[s]” on it, setting
aside beds based on an estimated acceptance rate, and
providing officers with the means to check shelter-bed
availabilities. Id. at *13–15, *23. Some plaintiffs asserted
that they never received advance notice of encampment
clearings or offers of housing. Id. at *8–9. Other plaintiffs
asserted that SFPD sometimes complied with the policy and
“acknowledge[d] receiving and/or accepting shelter offers at
. . . encampment closures.” Id. at *22; see also id. at *10–
12. The plaintiffs’ expert opined that San Francisco had a
shelter-beds deficit but conceded that a “clear way to access
shelter is via an encampment [closure] while under threat
from law enforcement.” Id. at *14.
Nonetheless, the court found the mixed record before it
sufficient to issue a sweeping preliminary injunction. The
district court repeatedly returned not to the facts of specific
plaintiffs in specific encampment clearings but to the
consideration at the center of Grants Pass: whether there is
a shelter-beds deficit. See id. at *21 (“insufficient stock of
shelter beds”); id. *22 (“long-standing shelter bed
shortfalls”); id. at *23 (“there are thousands more homeless
individuals . . . than there are available shelter beds”); id. at
*27 (“shortfall of shelter beds”). The court determined that
 JOHNSON V. CITY OF GRANTS PASS 147

it “need not decide” how offers of housing, when actually
made, would impact the constitutionality of arrests or alter
the scope of an injunction. See id. at *23–24. The court
instead issued a broad, if ambiguous, injunction that appears
to effectively prevent SFPD from enforcing five separate
prohibitions against homeless persons in San Francisco “as
long as there are more homeless individuals . . . than there
are shelter beds available.” Id. at *28.
2. Phoenix suffered a similar fate. Like San Francisco,
it adopted a policy that police “officers must make
individualized assessments” before issuing citations against
homeless persons for certain offenses. Fund for
Empowerment v. City of Phoenix, No. CV-22-02041-PHX-
GMS, 2022 WL 18213522, at *3 (D. Ariz. Dec. 16, 2022).
Unlike the San Francisco case, the district court cited no
evidence in the record showing that Phoenix breached its
policy. Still, the district court issued a sweeping injunction
after conducting a merits inquiry that focused almost
exclusively on the Grants Pass beds-versus-population
inquiry. The district court noted that it was “not contested
that there are more unsheltered individuals than shelter beds
in Phoenix” and then concluded that Phoenix’s policy
“present[s] likely unconstitutional applications especially
when the unsheltered in the city outnumber the available bed
spaces.” Id. The city’s enforcement policy—as a mere
“statement of administrative policy”—was insufficient to
“forestall the Plaintiffs’ ultimate likelihood of success on the
merits.” Id. (quoting Martin, 920 F.3d at 607).
3. Santa Barbara adopted a half-measure: a
geographically- and time-limited ban against public sleeping
that applied only in the city’s downtown area. Boring v.
Murillo, No. CV-21-07305, 2022 WL 14740244, at *1 (C.D.
Cal. Aug. 11, 2022). Despite the ordinance’s modest scope,
148 JOHNSON V. CITY OF GRANTS PASS

the district court still held that the plaintiffs stated a plausible
claim to relief pursuant to Martin and denied the city’s
motion to dismiss. See id. at *5–6.
4. Sacramento found itself subject to a lawsuit after
taking the innocuous step of removing a portable toilet from
city-owned property. Mahoney v. City of Sacramento, No.
2:20-cv-00258-KJM, 2020 WL 616302, at *1 (E.D. Cal.
Feb. 10, 2020). Though the court ultimately declined to
issue a temporary restraining order because the plaintiffs’
claims failed on factual grounds, it still interpreted Martin to
cover public urination and defecation prosecutions and
stated that “the City may not prosecute or otherwise penalize
the plaintiffs . . . for eliminating in public if there is no
alternative to doing so.” Id. at *3.
Judges Gould and Silver argue this “brief statement
made in the context of resolving an emergency motion is not
a solid foundation” on which to suggest that the enforcement
of public defecation and urination laws may well be suspect
pursuant to our court’s precedent. In their view, that is
because Martin and Grants Pass did not involve a
“challenge to any public urination or defecation ordinances.”
But our decisions are not good-for-one-ride-only tickets
forever bound to their specific facts; they serve as precedent
to which parties analogize in related situations. Martin
attempted to limit its reach by explaining that sleep is a “life-
sustaining activit[y].” Martin, 920 F.3d at 617. In their
concurrence, Judges Gould and Silver offer a slightly
different version of that limiting principle—that sleep is an
“identifiable human need[].” But “[w]hat else is [an
identifiable human need]? Surely bodily functions.”
Martin, 920 F.3d at 596 (M. Smith, J., dissenting from denial
of rehearing en banc). It is not a slippery-slope fallacy to
note a realistic consequence that flows directly from Martin
 JOHNSON V. CITY OF GRANTS PASS 149

and Grants Pass’s reasoning. Moreover, Judges Gould and
Silver fail to recognize that something is fundamentally
amiss with our precedent if a city, even if it ultimately
prevails, must first go to court before it can remove a toilet
from property it owns.
5. Chico “constructed an outdoor temporary shelter
facility at the Chico Municipal Airport that accommodate[d]
all 571 of the City’s homeless persons.” Warren v. City of
Chico, No. 2:21-CV-00640-MCE, 2021 WL 2894648, at *3
(E.D. Cal. July 8, 2021). But the district court cited stray
lines in Martin in addition to Merriam-Webster’s definition
of “shelter,” conducted a single paragraph of analysis,
concluded that the airport shelter was not Martin-type
shelter, and subsequently enjoined Chico from enforcing its
anti-camping laws against “homeless persons in violation.”
Id. at *3–4.
As the district court itself recognized, this decision (as
well as the others above) shows that, while the Martin
analysis may be “straight-forward . . . [as] to the facts of [a]
case,” the “practical ramifications for the community are
much more complex” and the “concerns raised in the dissent
from the denial of rehearing en banc appear to have come to
fruition.” Id. at *4 n.4 (citation omitted). As I feared, our
case law has “prohibit[ed] local governments from fulfilling
their duty to enforce an array of public health and safety
laws,” and the “[h]alting [of] enforcement of such laws” has
“wreak[ed] havoc on our communities.” Martin, 920 F.3d
at 594 (M. Smith, J., dissenting from denial of rehearing en
banc).
***
I respect the good intentions of my colleagues on the
Martin panel and in the Grants Pass majority. But Martin,
150 JOHNSON V. CITY OF GRANTS PASS

particularly now that it has been supercharged by Grants
Pass, has proven to be a runaway train that has derailed and
done substantial collateral damage to the governmental units
in which it has been applied and those living therein. These
cases use a misreading of Supreme Court precedent to
require unelected federal judges—often on the basis of
sloppy, mixed preliminary-injunction records—to act more
like homelessness policy czars than as Article III judges
applying a discernible rule of law. I respectfully dissent
from our court’s decision not to rehear Grants Pass en banc.

COLLINS, Circuit Judge, dissenting from the denial of
rehearing en banc:

In my dissent as a member of the panel in this case, I
explained that:

• Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019),
is a “deeply flawed” decision that “seriously
misconstrued the Eighth Amendment and the
Supreme Court’s caselaw construing it”;
• Even if Martin were correct in its Eighth Amendment
holding, the panel majority’s decision in Johnson
“greatly expands Martin’s holding” in a way that is
“egregiously wrong”; and
• The panel majority’s decision “make[s] things
worse” by “combin[ing] its gross misreading of
 JOHNSON V. CITY OF GRANTS PASS 151

Martin with a flagrant disregard of settled class-
certification principles.”

See Johnson v. City of Grants Pass, 50 F.4th 787, 814 & n.1
(9th Cir. 2022) (Collins, J., dissenting). In its “joint
statement regarding denial of rehearing,” the panel majority
today recycles many of the flawed arguments in its opinion.
I have already explained in my dissent why those arguments
are wrong. See id. at 823–31. The statement of Judge
O’Scannlain respecting the denial of rehearing en banc and
Parts I and II of Judge M. Smith’s dissent from the denial of
rehearing en banc—which I join—further cogently explain
the multiple serious errors in the panel majority’s opinion. I
will not repeat all of what has already been said, but I think
that two points are worth underscoring in response to the
panel majority’s statement regarding the denial of rehearing.
First, the panel majority’s statement confirms and
illustrates the layers of self-contradiction that underlie its
opinion in this case.
The panel majority continues implausibly to insist that
its opinion is “strictly limited to enforcement of the
ordinances against ‘involuntarily’ homeless persons,” which
would suggest—as Martin itself suggested—an
individualized case-specific inquiry. See Panel Majority
Statement at 94. But the panel majority also continues to
insist that the class was properly certified because any
individualized issues concerning involuntariness were
moved into the class definition. See Panel Majority
Statement at 99–101. As I have explained, that “artifice”
ignores the requirements of Federal Rule of Civil Procedure
23, because it “rel[ies] on a fail-safe class definition that
improperly subsumes this crucial individualized merits issue
into the class definition.” 50 F.4th at 827 (Collins, J.,
152 JOHNSON V. CITY OF GRANTS PASS

dissenting). The panel majority tries to wave away the
problem as merely one of “individualized determinations to
identify class members,” arguing that what it did in this case
is no different than asking whether, for example, a given
class member resides in a particular State or performs a
given job for a company. See Panel Majority Statement at
101 (emphasis added). But in sharp contrast to the simple
factual inquiries in the panel majority’s examples, its
standard for “identifying” class members here—i.e., whether
a given plaintiff’s homelessness is involuntary under all of
the circumstances—is the central merits issue in the case
under a correct reading of Martin. Thus, under the faulty
class action upheld by the panel majority, if a particular
person’s individual circumstances confirm that his
homelessness is not “involuntary” in the sense that Martin
requires, then his Eighth Amendment claim under Martin
fails on the merits—and he is then defined out of the class.
But if his homelessness is involuntary under Martin’s
standards, then (under that decision’s reading of the Eighth
Amendment) his Martin claim is a winner—and he remains
in the class. The result is a classic fail-safe class: each “class
member either wins or, by virtue of losing, is defined out of
the class.” Olean Wholesale Grocery Coop. v. Bumble Bee
Foods, 31 F.4th 651, 669–70 n.14 (9th Cir. 2022) (en banc)
(citation omitted).
Underlying all of this is a fundamental inconsistency
between the various propositions endorsed by the panel
majority’s opinion. As I stated in my panel dissent, “the
majority cannot have it both ways: either the class definition
is co-extensive with Martin’s involuntariness concept (in
which case the class is an improper fail-safe class) or the
class definition differs from the Martin standard (in which
case Martin’s individualized inquiry requires
 JOHNSON V. CITY OF GRANTS PASS 153

decertification).” 50 F.4th at 827–28 (Collins, J.,
dissenting). Nothing in the panel majority’s statement
resolves these internal contradictions, which plague its
deeply flawed opinion.
Second, I cannot let pass without comment the panel
majority’s contention that a newly enacted Oregon statute
regulating the application of local ordinances to homeless
individuals provides “yet another reason why it was wise to
not rehear” this case en banc. See Panel Majority Statement
at 112–13 n.7. Even assuming that this statute will require
that city laws such as those challenged here must be
“objectively reasonable as to time, place and manner with
regards to persons experiencing homelessness,” under “the
totality of the circumstances,” see Or. Rev. Stat.
§ 195.530(2), (5), the removal of the objectively
unreasonable constitutional straitjacket wrongly imposed by
Martin and Johnson would continue to alter the outcome of
this case and would also greatly improve the cogency,
coherence, and correctness of Eighth Amendment
jurisprudence in this circuit. The panel majority is quite
wrong in suggesting that this statute provides any grounds
for looking the other way and allowing Martin’s cancer on
our jurisprudence to continue to metastasize.
I reiterate what I said in the conclusion of my panel
dissent, which is that both Martin and Johnson “should be
overturned or overruled at the earliest opportunity, either by
this court sitting en banc or by the U.S. Supreme Court.” 50
F.4th at 831 (Collins, J., dissenting). By denying rehearing
en banc today, we have regrettably failed to overrule Martin
and Johnson. I again emphatically dissent.
154 JOHNSON V. CITY OF GRANTS PASS

BRESS, Circuit Judge, joined by CALLAHAN, M. SMITH,
IKUTA, BENNETT, R. NELSON, MILLER, BADE, LEE,
FORREST, BUMATAY, and VANDYKE, Circuit Judges,
dissenting from the denial of rehearing en banc:

Looking out the windows of the Ninth Circuit’s
courthouse in San Francisco, one sees the most difficult
problems plaguing big-city America on display.
Homelessness, drug addiction, barely concealed narcotics
dealing, severe mental health impairment, the post-COVID
hollowing out of our business districts. These problems of
disrespect for the law, human suffering, and urban decline
would seem connected, the result of a complex interaction of
forces that defies any easy solution.
But on top of everything that our localities must now
contend with, our court has injected itself into the mix by
deploying the Eighth Amendment to impose sharp limits on
what local governments can do about the pressing problem
of homelessness—a problem now so often related to every
other in our great cities. With no mooring in the text of the
Constitution, our history and traditions, or the precedent of
the Supreme Court, we have taken our national founding
document and used it to enact judge-made rules governing
who can sit and sleep where, rules whose ill effects are felt
not merely by the States, and not merely by our cities, but
block by block, building by building, doorway by doorway.
The antecedent question we must always ask when
interpreting the Constitution is whether a matter has been
entrusted, in the first instance, to the courts or to the people.
The answer to that question here is clear: we must allow local
leaders—and the people who elect them—the latitude to
address on the ground the distinctly local features of the
present crisis of homelessness and lack of affordable
 JOHNSON V. CITY OF GRANTS PASS 155

housing. And we must preserve for our localities the ability
to make tough policy choices unobstructed by court-created
mandates that lack any sound basis in law. The expanding
constitutional common law our court is fashioning in this
area adds enormous and unjustified complication to an
already extremely complicated set of circumstances.
Not every challenge we face is constitutional in
character. Not every problem in our country has a legal
answer that judges can provide. This is one of those
situations. The decision in Johnson v. City of Grants Pass,
50 F.4th 787 (9th Cir. 2022), and our decision in Martin v.
City of Boise, 920 F.3d 584 (9th Cir. 2019), on which
Johnson is premised, are clearly wrong and should have been
overruled. I respectfully dissent from the denial of rehearing
en banc.