Coalition on Homelessness v. City and County of San Francisco

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

COALITION ON HOMELESSNESS; No. 23-15087
TORO CASTANO; SARAH CRONK;
JOSHUA DONOHOE; MOLIQUE D.C. No.
FRANK; DAVID MARTINEZ; 4:22-cv-05502-
TERESA SANDOVAL; DMR
NATHANIEL VAUGHN,
Plaintiffs-Appellees,
OPINION
v.

CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO
POLICE DEPARTMENT; SAN
FRANCISCO DEPARTMENT OF
PUBLIC WORKS; SAN
FRANCISCO DEPARTMENT OF
HOMELESSNESS AND
SUPPORTIVE HOUSING; SAN
FRANCISCO FIRE DEPARTMENT;
SAN FRANCISCO DEPARTMENT
OF EMERGENCY MANAGEMENT;
LONDON BREED, in her Official
Capacity as Mayor; SAM DODGE, in
his Official Capacity as Director of the
Healthy Streets Operation Center
(HSOC),
Defendants-Appellants.
2 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

Appeal from the United States District Court
for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding

Argued and Submitted August 23, 2023
San Francisco, California

Filed January 11, 2024

Before: Patrick J. Bumatay, Lucy H. Koh, and Roopali H.
Desai, Circuit Judges.

Opinion by Judge Koh;
Dissent by Judge Bumatay

SUMMARY*

Homelessness

In an action seeking to prevent the City and County of
San Francisco (“City”) from enforcing any ordinance that
punishes sleeping, lodging, or camping on public property,
the panel affirmed the district court’s grant of a preliminary
injunction in favor of plaintiffs on their Eighth Amendment
claim as to the City’s new arguments regarding the
geographic and time limitations of some of the enjoined
ordinances, and in a concurrently filed memorandum
disposition affirmed in part and vacated and remanded in

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 3

part for the district court to clarify the preliminary injunction
as to the remaining issues.
The panel published its opinion to address the City’s
contention—raised for the first time in this appeal—that the
limited geographic scope of the encampment resolutions and
the time-limited nature of one of the enjoined ordinances
distinguishes this case from Martin v. City of Boise, 920 F.3d
584 (9th Cir. 2019), and Johnson v. City of Grants Pass, 72
F.4th 868 (9th Cir. 2023). The City argued before the district
court that plaintiffs were unlikely to succeed on the merits of
their Eighth Amendment claim because the City offers
shelters before requiring any unhoused person to vacate
public property. On appeal, the City argued for the first time
that the shelter offers were irrelevant because, unlike in
Martin and Johnson, the challenged enforcement actions do
not leave unhoused individuals with nowhere else to go—
instead, they require individuals to relocate from specific
encampment sites and only at certain times.
The panel determined that the City’s limited geographic
scope argument was waived because the City conceded that
it did not raise the argument before the district court. Even
if the panel had discretion to review the argument, it declined
to do so in the first instance, noting that the record was
undeveloped, and the City had no excuse for failing to raise
it below despite having ample opportunity to do so.
The panel next held that the City’s new argument did not
establish a basis to reverse the district court. The enjoined
laws were no narrower in scope than the laws at issue in
Martin and Johnson, and the City’s assertion that it
conducted encampment resolutions in a geographically
limited way was a factual point that was contradicted by
plaintiffs’ evidence. The panel concluded that at this stage,
4 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

the City had not shown that the preliminary injunction was
improper based on the arguments and evidentiary record
before the district court.
Finally, the panel declined to consider the City’s
argument—again raised for the first time on appeal—that
enjoining enforcement of San Francisco Police Code § 168
was improper because that provision is time restricted.
Section 168 prohibits sitting or lying on a public sidewalk
only “during the hours between seven (7:00) a.m. and eleven
(11:00) p.m.” The panel held that evaluating the City’s new
argument on appeal required factual developments that the
panel currently lacked. Because the City’s attempts to
distinguish this case from Martin and Johnson ultimately
turned on factual questions, the panel was not inclined to
reach these questions in the first instance.
Dissenting, Judge Bumatay stated that nothing in the
text, history, and tradition of the Eighth Amendment’s Cruel
and Unusual Punishments Clause comes close to prohibiting
enforcement of commonplace anti-vagrancy laws, like laws
against sleeping on sidewalks and in parks. The district
court’s broad injunction falls starkly outside the original
meaning of the Cruel and Unusual Punishments Clause,
disregards the long history of anti-vagrancy laws, and
broadly expands Martin and Grants Pass. It should be
vacated immediately.
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 5

COUNSEL

Wayne K. Snodgrass (argued) and Kaitlyn M. Murphy,
Deputy Attorneys, San Francisco City Attorney’s Office,
San Francisco, California; James M. Emery, Edmund T.
Wang, Ryan C. Stevens, and Miguel A. Gradilla, Deputy
City Attorneys; Yvonne R. Meré, Chief Deputy City
Attorney; David Chiu, City Attorney, San Francisco City
Attorney’s Office, San Francisco, California; for
Defendants-Appellants.
Joseph H. Lee (argued), Latham & Watkins LLP, Costa
Mesa, California; Alfred C. Pfeiffer Jr., Latham & Watkins
LLP, San Francisco, California; John Thomas H. Do, ACLU
Foundation of Northern California, San Francisco,
California; Elisa Della-Piana, Hadley Rood, and Zal K.
Shroff, Lawyer’s Committee for Civil Rights, San
Francisco, California; for Plaintiffs-Appellees.
Alexander C. Werner, Munger Tolles & Olson LLP, San
Francisco, California, for Amici Curiae Healthcare
Providers, Doctors Sharad Jain, Harrison Alter, Nicholas
Iverson, Hemal Kanzaria, Elaine Khoong, Margot Kushel,
John Landefeld, Katherine Lupton, Lisa Ochoa-Frongia,
Naomi Schoenfeld, Sara Teasdale, and Melody Tran-Reina.
Deborah E. Arbabi, Crowell & Moring LLP, Irvine,
California, for Amici Curiae National Homelessness Law
Center, National Low Income Housing Coalition, National
Coalition for the Homeless, and National Alliance to End
Homelessness.
Ruth M. Bond, Atkinson Andelson Loya Ruud & Romo,
Sausalito, California, for Amici Curiae California
Association of Counties, International Municipal Lawyers
Association, and League of California Cities.
6 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

Shanin Specter, Kline & Specter, Philadelphia,
Pennsylvania, for Amici Curiae College of the Law, San
Francisco.
Marissa A. Roy, O’Melveny & Meyers LLP, Los Angeles,
California, for Amici Curiae Current and Former Local
Elected Officials and Local Progress Impact Lab.
Y. Monica Chan, Fenwick & West LLP, Seattle,
Washington; Shayla R. Myers, Legal Aid Foundation of Los
Angeles, Los Angeles, California; for Amici Curiae
Disability Rights Advocates.
Eliana Machefsky, National Police Accountability Project,
New Orleans, Louisiana, for Amici Curiae Law
Enforcement Action Partnership and National Police
Accountability Project.

OPINION

KOH, Circuit Judge:
Appellant City and County of San Francisco (“the City”)
appeals the grant of a preliminary injunction in this action
brought by the Coalition on Homelessness and seven current
or formerly homeless residents of San Francisco
(“Plaintiffs”). We publish this opinion to address the City’s
contention—raised for the first time in this appeal—that the
limited geographic scope of the encampment resolutions at
issue in this case and the time-limited nature of one of the
enjoined ordinances distinguish this case from Martin v. City
of Boise, 920 F.3d 584 (9th Cir. 2019), and Johnson v. City
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 7

of Grants Pass, 72 F.4th 868 (9th Cir. 2023). We affirm the
district court on this issue.1
In September 2022, Plaintiffs sought a preliminary
injunction preventing the City from enforcing “any
ordinance that punishes sleeping, lodging, or camping on
public property,” including Cal. Penal Code § 647(e), Cal.
Penal Code §§ 370, 372, and S.F. Police Code §§ 168–69,
under the Eighth Amendment.2 Plaintiffs challenged the
City’s use of these laws to effect “sweep operations,”3 which
Plaintiffs contended—citing declarations from individuals
who had experienced and observed such encampment
closures—occurred across San Francisco on a daily basis,
without notice and with “no safe harbor at any location
within the City.” The City opposed the preliminary
injunction, arguing that Plaintiffs are unlikely to succeed on
the merits of their Eighth Amendment claim because the
City offers shelter before requiring any unhoused person to
vacate public property. The parties offered starkly different
accounts of the way encampment closures are carried out.
The district court found the Plaintiffs’ evidence more
convincing and entered a preliminary injunction. The City

1
We address the remainder of the City’s challenges in a concurrently
filed memorandum disposition, in which we remand for the district court
to clarify the preliminary injunction as to some issues.
2
Plaintiffs also sought preliminary injunctive relief to remedy purported
Fourth Amendment violations surrounding property seizure. The aspects
of the preliminary injunction addressing the Fourth Amendment claims
are not at issue in this opinion.
3
As the district court noted, the parties use different terminology for
these events. Plaintiffs use the term “sweeps,” while the City describes
them as “encampment resolutions.” We follow the district court’s usage
of “encampment closures” unless specifically referring to a party’s
argument.
8 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

then moved for clarification and for a stay of the Eighth
Amendment aspects of the preliminary injunction, again on
the ground that individuals who decline offers of shelter are
not involuntarily homeless under Martin and Johnson.
For the first time on appeal, the City argues that the
shelter offers were irrelevant all along. The City now
contends that unlike in Martin and Johnson, the challenged
enforcement actions do not leave unhoused individuals with
nowhere else to go—instead, they require individuals to
relocate from specific encampment sites. In Johnson, the
court declined to decide a somewhat similar question about
“alternate outdoor space.” See 72 F.4th at 894 n.33. This
appeal is not a proper vehicle to address this unsettled
question, either.
The City concedes that it did not raise this argument
about the limited geographic scope of encampment
resolutions to the district court. The City thus waived this
argument. See Armstrong v. Brown, 768 F.3d 975, 981 (9th
Cir. 2014). Although we may exercise our discretion to
consider a waived issue “when the issue presented is purely
one of law and either does not depend on the factual record
developed below, or the pertinent record has been fully
developed,” id. (quoting Ruiz v. Affinity Logistics Corp., 667
F.3d 1318, 1322 (9th Cir. 2012)), we disagree with the City
that these circumstances are present here, as we explain
below. In any event, “even if we have discretion to review
these arguments notwithstanding the [City’s] waiver, we
decline to do so.” Id. at 982. “The [City] has no excuse for
its failure to raise these arguments below. Unlike cases in
which we have exercised our discretion to consider
arguments that were not raised below, the [City] had ample
opportunity to craft its response to the district court.” Id.
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 9

The dissent would nevertheless wade into the deeply
complex and significant constitutional issues implicated in
the City’s new geographic scope argument without the
benefit of consideration or key factual findings by the district
court. “Our judicial system generally assumes that
consideration of an issue at both the trial court and appellate
court level is more likely to yield the correct result, because
the issue will be more fully aired and analyzed by the parties,
because more judges will consider it, and because trial
judges often bring a perspective to an issue different from
that of appellate judges.” Ecological Rts. Found. v. Pac.
Lumber Co., 230 F.3d 1141, 1154 (9th Cir. 2000). These
principles are the foundation of our waiver doctrine and
present sound reasons for us to decline to consider these
issues at this juncture.4
Even aside from the waiver problem, however, the City’s
new arguments do not establish a basis to reverse the district
court. Review of the City’s arguments further shows how
factually intensive the resolution of the geographic scope is
in this case—all the more reason not to reach the issue
without factual findings from the district court on this
heavily disputed factual record.
I.
As a threshold matter, most of the enjoined laws are no
narrower in scope than the laws at issue in Martin and
Johnson. California Penal Code § 647(e) is virtually
identical to the law that was enjoined in Martin. Compare
Cal. Penal Code § 647(e) (prohibiting as “disorderly

4
This is particularly so given that we are remanding the case in any
event, eliminating any “efficiency interest” in resolving newly raised
arguments. Stout v. FreeScore, LLC, 743 F.3d 680, 688 (9th Cir. 2014)
(quoting Ecological Rts. Found., 230 F.3d at 1154).
10 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

conduct” “lodg[ing] in any building, structure, vehicle, or
place, whether public or private, without the permission of
the owner or person entitled to the possession or in control
of it”), with Martin, 920 F.3d at 604 (challenge to Boise City
Code § 6-01-05, which banned “[o]ccupying, lodging, or
sleeping in any building, structure, or public place, whether
public or private . . . without the permission of the owner or
person entitled to possession or in control thereof”).5 The
City also does not argue that the enjoined public nuisance
provisions are meaningfully limited such that they would
leave involuntarily homeless individuals with somewhere
else to go. See Cal. Penal Code § 370 (defining “public
nuisance” to include “[a]nything which is injurious to health,
or is indecent, or offensive to the senses, or an obstruction to
the free use of property, so as to interfere with the
comfortable enjoyment of life or property by an entire
community or neighborhood, or by any considerable number
of persons, or unlawfully obstructs the free passage or use,
in the customary manner, of any . . . public park, square,
street, or highway”); id. § 372 (criminalizing maintenance or
commission of a public nuisance as a misdemeanor).
Although the dissent endeavors to distinguish these laws, it
is not our role to make the parties’ arguments for them,
particularly given the preliminary posture of this case. “In
our adversarial system of adjudication, we follow the
principle of party presentation,” because “our system is
designed around the premise that parties represented by

5
The dissent parses the distinction between “lodging” and “mere
sleeping,” but Boise’s law barred “occupying” and “lodging” as well as
“sleeping” (which the dissent omits when quoting that law), and the
Martin court did not distinguish among the Boise ordinance’s
prohibitions when enjoining the ordinance in its entirety. 920 F.3d at
606, 618.
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 11

competent counsel know what is best for them, and are
responsible for advancing the facts and argument entitling
them to relief.” United States v. Sineneng-Smith, 140 S. Ct.
1575, 1579 (2020) (cleaned up).
For the most part, then, the City has not argued that the
enjoined laws themselves are geographically limited.
Instead, the City argues that its enforcement of these laws
during encampment closures is consistent with the Eighth
Amendment because, per City policies, these resolutions
“clear only a few City blocks” and notice is provided before
a location is cleared.
However, the district court considered the City’s
evidence—or lack thereof—about the way the City conducts
encampment closures and found it “wholly unconvincing” in
light of Plaintiffs’ “detailed evidence demonstrating
significant failures to comply with the polic[ies].” The
City’s argument that it conducted encampment resolutions
in a geographically limited way is a factual point that is
contradicted by Plaintiffs’ evidence. For example, the
district court found that “Plaintiffs . . . submit[ted]
significant evidence that written notice of encampment
closures is rarely provided.” Plaintiffs also included
declarations describing individuals having to move multiple
times in a day from different locations and being told they
could not move to various alternative locations. Thus, at
best, the City’s geographic scope arguments rest on disputed
factual premises.
To the extent the district court did not make clearer
findings about whether the encampment closures leave
involuntarily homeless individuals with nowhere else to go,
that is because the City did not put that issue before the court
despite multiple opportunities to do so. As litigation in this
12 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

case proceeds, the district court should consider whether the
City’s encampment closures leave involuntarily homeless
individuals with a realistically available place to go. At this
stage, however, the City has not shown that the preliminary
injunction was improper based on the arguments and
evidentiary record before the district court.
Accordingly, the bulk of the dissent is dedicated to
arguing that Martin and Johnson themselves are inconsistent
with the original meaning of the Eighth Amendment and, as
such, were wrongly decided. As a three-judge panel,
however, we “are bound by the law of our circuit, and only
an en banc court or the U.S. Supreme Court can overrule a
prior panel decision.” Balla v. Idaho, 29 F.4th 1019, 1028
(9th Cir. 2022). As the dissent observes, the city of Grants
Pass has filed a petition for certiorari with the U.S. Supreme
Court, in which it argues that both Martin6 and Johnson were
wrongly decided. No. 23-175 (U.S. Aug. 22, 2023). In the
meantime, we remain bound by Martin and Johnson, as does
the district court.
II.
The City further argues—again for the first time on
appeal—that enjoining enforcement of San Francisco Police
Code § 168 was improper because that provision is time
restricted. Section 168 prohibits sitting or lying on a public
sidewalk only “during the hours between seven (7:00) a.m.
and eleven (11:00) p.m.” S.F. Police Code § 168(b). The
City relies on language in Martin suggesting that “an
ordinance prohibiting sitting, lying, or sleeping outside at
particular times or in particular locations might well be

6
The Supreme Court previously declined to review Martin. 140 S. Ct.
674 (2019).
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 13

constitutionally permissible.” 920 F.3d at 617 n.8 (emphasis
added).7 However, the Martin court did not resolve this
question because such a law was not before it.
Whether such a law is in fact constitutionally permissible
is not a question that is properly before us in this case, either.
Here, the record includes declarations describing homeless
individuals being forced to move multiple times in a day,
from multiple locations, while also being told that they could
not move to various alternative locations. Accordingly, the
district court found that Plaintiffs demonstrated the requisite
likelihood of success on their as-applied constitutional
claims that the City used a set of laws and practices,
including S.F. Police Code § 168, to criminalize sitting,
sleeping, or lying in public—in other words, that the City
used these laws to do precisely what Martin and Johnson
prohibit.
Whether the scope of S.F. Police Code § 168 changes the
constitutional analysis thus turns on factual questions
involving the practical impact of the City’s enforcement.
Our dissenting colleague simply assumes that, because the
S.F. Police Code § 168’s text describes only certain hours
and certain locations, the City’s enforcement of it and other
laws must be constitutional. The record, however, paints a
more complicated picture. For one thing, the parties dispute
whether encampment closures are in fact limited to the hours
during which S.F. Police Code § 168 is in effect. The record

7
The City raises a somewhat similar argument about S.F. Police Code
§ 169, which applies only to sidewalks. Because we have directed the
district court to reevaluate the preliminary injunction as to that law on
other grounds in the concurrently filed memorandum disposition, we do
not address the argument here.
14 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

is underdeveloped on this point, and we should not decide
the question in the first instance.
The City, for its part, appears to accept that its argument
additionally depends on there being somewhere else for
involuntarily homeless individuals to go during the hours
during which S.F. Police Code § 168 is in effect, and it
argues that parks are available during those hours. Here too,
however, the record is unclear as to whether San Francisco’s
parks are in fact realistically available during the hours in
question. S.F. Police Code § 168 prohibits sitting, sleeping,
and lying on sidewalks from 7:00 a.m. to 11:00 p.m., while
S.F. Park Code § 3.13 makes it unlawful to “remain in any
park for the purpose of sleeping” from 8:00 p.m. to 8:00 a.m.
As a result, there are four hours in which neither sidewalks
nor parks are available for sleeping: 7:00 a.m. to 8:00 a.m.,
and 8:00 p.m. to 11:00 p.m.
The dissent contends that the combined impact of S.F.
Police Code § 168 (barring sleeping on sidewalks) and S.F.
Park Code § 3.13 (barring sleeping in parks) is not so
draconian. Again, however, this difficult issue deserves the
benefit of full factual development at the trial court level,
which our court lacks as a direct result of the City’s decision
not to raise this argument below. Conversely, in wading into
this issue in the first instance, the dissent again assumes
away unanswered factual questions.
First, although the dissent suggests that S.F. Park Code
§ 3.13 is irrelevant because the district court did not enjoin
its enforcement, the key issue is the practical impact of the
City’s enforcement of all the challenged laws in tandem. As
we observed above, Plaintiffs submitted a number of
declarations describing individuals being required to move
from location to location (including parks), multiple times in
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 15

a day, and being told they could not move to various
alternative locations without any hints as to what would be a
permissible location. Because the City did not raise an
argument about the limited scope of S.F. Police Code § 168
below, the district court has not yet considered Plaintiffs’
declarations in the context of the question whether parks are
a realistically available alternative to sidewalks during the
hours in which sleeping on sidewalks is prohibited.
Second, the dissent contends that other public areas such
as beaches and plazas can fill the gap during the hours in
which neither sidewalks nor parks are available, but the City
has not shown that these spaces are realistically available
during the hours in question, as Johnson requires. 72 F.4th
at 894 n.33. Indeed, the City did not even raise either
contention until its reply brief on appeal, and so these
arguments are “not properly before the panel.” Kaffaga v.
Estate of Steinbeck, 938 F.3d 1006, 1018 n.8 (9th Cir. 2019).
In short, the record is unclear as to whether, in fact, parks or
other public areas are realistically available, further
demonstrating why it is inappropriate for this court to reach
waived issues on an undeveloped factual record. Even if the
record were clear, as we previously stated, “consideration of
an issue at both the trial court and appellate court level is
more likely to yield the correct result.” Ecological Rts.
Found., 230 F.3d at 1154.
All these unsettled questions demonstrate that our
dissenting colleague is mistaken: evaluating the City’s new
arguments on appeal requires factual development that we
currently lack.8 As a result, it is inappropriate to review the

8
The dissent also briefly alludes to the City’s perfunctory statement (in
asking the district court to disregard one of Plaintiffs’ declarations) that
homeless individuals still had “somewhere to sleep.” This “cryptic
16 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

City’s arguments: although application of Martin and
Johnson is “ultimately a legal question,” its resolution turns
on “underlying factual disputes. Here, the record is
undeveloped.” Greisen, 925 F.3d at 1115 (internal quotation
marks and citation omitted); see also A-1 Ambulance Serv.,
Inc. v. County of Monterey, 90 F.3d 333, 339 (9th Cir. 1996)
(concluding that the court lacked the power to consider a
waived argument that was not “purely one of law” and that,
even if the court had discretion to review the argument, the
court “would decline to do so here”). Again, as the ongoing
litigation proceeds, the district court should consider
whether the City’s use of S.F. Police Code § 168 “to prohibit
involuntarily homeless individuals from sitting, lying, or
sleeping on public property” leaves those individuals with
somewhere else to go. Because the district court has made
no such finding, which is understandable given that the City
raised no argument to this effect to the district court, it is
premature for this court to consider how such factual
circumstances would play out under Martin and Johnson.
See Johnson, 72 F.4th at 894 n.33 (“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.”).
* * *
We acknowledge that this litigation raises difficult and
important legal questions with real stakes for San Francisco
and the thousands of unhoused individuals who call San

allusion” did not amount to raising the issue below. Greisen v. Hanken,
925 F.3d 1097, 1115 n.6 (9th Cir. 2019). Moreover, in context the
statement was advanced in support of the City’s actual argument before
the district court: that the City’s offers of shelter resolved this case.
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 17

Francisco home. This only counsels in favor of resolving
these questions with the benefit of two-level consideration
and a developed factual record on key issues that would
affect the constitutional analysis. Ecological Rts. Found.,
230 F.3d at 1154 (“two-level consideration” is more likely
to yield the correct result, both because “more judges will
consider” the issue and because “trial judges often bring a
perspective to an issue different from that of appellate
judges”). As our dissenting colleague admirably states, our
goal is to get the law right. Allowing the district court to
develop the record and consider the City’s new arguments in
the first instance makes it more likely that we will.
Particularly because the City’s attempts to distinguish this
case from Martin and Johnson ultimately turn on factual
questions, we are not inclined to reach these questions in the
first instance.
AFFIRMED.

BUMATAY, Circuit Judge, dissenting:
Today, we let stand an injunction permitting homeless
persons to sleep anywhere, anytime in public in the City of
San Francisco unless adequate shelter is provided. The
district court’s sweeping injunction represents yet another
expansion of our court’s cruel and unusual Eighth
Amendment jurisprudence. Our decision is cruel because it
leaves the citizens of San Francisco powerless to enforce
their own health and safety laws without the permission of a
federal judge. And it’s unusual because no other court in the
country has interpreted the Constitution in this way.
Based on a misreading of the Eighth Amendment’s Cruel
and Unusual Punishments Clause, the district court now
18 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

dictates to San Francisco how it may manage its sidewalks,
streets, and parks. The result of the district court’s far-
reaching injunction is that homeless persons now have a
choice to sleep, lie, or sit anywhere they want in public at
any time until San Francisco can provide them shelter. That
ruling is far removed from the original meaning of the Cruel
and Unusual Punishments Clause and disregards the long
history of anti-vagrancy laws in this country. And the district
court goes beyond even our circuit’s extraordinary reading
of the Clause.
Five years ago, this court began its campaign to increase
the power of the federal judiciary over States’ and localities’
management of the homelessness crisis. In Martin v. City of
Boise, 902 F.3d 1031 (9th Cir. 2018), opinion amended and
superseded on denial of reh’g, 920 F.3d 584 (9th Cir. 2019),
this circuit transformed the Eighth Amendment’s prohibition
on cruel and unusual punishments into a tool to
constitutionalize anti-vagrancy laws—barring local
governments from penalizing “homeless people for sleeping
outdoors, on public property,” unless given an “option of
sleeping indoors.” Martin, 920 F.3d at 617. But there’s
nothing in the text, history, and tradition of the Clause that
comes close to prohibiting enforcement of commonplace
anti-vagrancy laws, like laws against sleeping on sidewalks
and in parks.
Last year, we went even further in aggrandizing our role
over State and local governments’ homeless policies. In
Johnson v. City of Grants Pass, 50 F.4th 787 (9th Cir. 2022),
opinion amended and superseded on denial of reh’g, 72
F.4th 868 (9th Cir. 2023), we expanded Martin beyond
merely sleeping in public. We forbade governments from
enforcing criminal and civil bars against sleeping in public,
made our ruling enforceable through class actions, and
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 19

invented a right to “rudimentary forms of protection from the
elements” while sleeping outside. Grants Pass, 72 F.4th
at 896. Nearly half of the active judges on this court have
asked for Grants Pass to be overturned. See id. at 924
(O’Scannlain, J., respecting the denial of rehearing en banc).
And for good reason. As Judge O’Scannlain explained,
“[o]ur jurisprudence . . . is egregiously flawed and deeply
damaging—at war with constitutional text, history, and
tradition, and Supreme Court precedent.” Id. at 925.
That brings us to this case. The Coalition on
Homelessness sued San Francisco seeking to enjoin
enforcement of State and local laws barring sleeping on
sidewalks at certain times, public lodging and camping, and
obstructing streets and parks. See Cal. Penal Code
§§ 148(a), 370, 372, 647(e); S.F. Police Code §§ 168, 169.
Based on an underdeveloped factual record, and apparently
without even considering how these individual laws fit
within our Martin/Grants Pass framework, the district court
agreed to enjoin enforcement of the laws against
“involuntarily homeless individuals.” Worse yet, the district
court didn’t even define what it means to be “involuntarily
homeless” and gave conflicting signals on the point—an
issue we address in our concurrently filed memorandum
disposition. To top it off, the district court then set a novel
end date for the injunction. It continues “as long as there are
more homeless individuals in San Francisco than there are
shelter beds available.” Never mind that injunctions usually
terminate at the end of litigation, or that the relief here is
merely meant to be preliminary. This sweeping injunction
has no basis in the Constitution or our precedent. San
Francisco should not be treated as an experiment for judicial
tinkering.
20 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

While Martin and Grants Pass conflict with the text and
historical understanding of the Eighth Amendment, those
cases at least limited themselves to jurisdiction-wide, all-day
ordinances barring sleeping in public. When homeless
individuals can “sleep[] somewhere in public,” Grants Pass,
72 F.4th at 896 (simplified), Martin and Grants Pass have
no relevance. That’s because even our court recognized that
homeless persons have no right to “sleep on the streets . . .
at any time and at any place.” Martin, 920 F.3d at 617
(simplified). But the district court ignored these limitations
and enjoined laws that go far beyond what Martin and
Grants Pass protect. It enjoined laws that apply to only
certain areas of the City at certain times. It also enjoined
laws prohibiting more than mere sleeping, lying, or sitting—
but those prohibiting tents and encampments. It was a clear
abuse of discretion to fashion such a broad injunction.
Unfortunately, the majority acquiesces to the district
court’s ill-conceived injunction. Thankfully, however, the
majority does not endorse the district court’s misadventure
in judicial overreach. The majority simply concludes that
San Francisco’s arguments on appeal were waived. That
means that the district court’s legal rulings are not the law of
our court and they should be disregarded by other judges in
this circuit. The district court should also take the hint and
reconsider its radical rulings on remand.
Because the majority permits most of the district court’s
injunction to stand, I respectfully dissent.
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 21

I.
Original Meaning of the Cruel and Unusual
Punishments Clause
The Eighth Amendment provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U.S. Const., amend.
VIII. We must interpret the Amendment’s scope in
accordance with its “original and historical understanding.”
Bucklew v. Precythe, 139 S. Ct. 1112, 1122 (2019); see also
Estelle v. Gamble, 429 U.S. 97, 102 (1976) (looking to “[t]he
history of the constitutional prohibition of ‘cruel and unusual
punishments’”).
As a matter of text and original meaning, this Clause bars
punishments both cruel, meaning “inhumane” and
“barbarous,” and unusual, meaning “contrary to
longstanding usage or custom” or “fallen out of use.” Edmo
v. Corizon, Inc., 949 F.3d 489, 507 (9th Cir. 2020)
(Bumatay, J., dissenting from the denial of rehearing en
banc). And nothing supports the Ninth Circuit’s expansion
of the Clause to bar the enforcement of anti-vagrancy laws—
whether shelter is offered or not—which have a long and
unbroken pedigree in our historical tradition.
A.
The Cruel and Unusual Punishments Clause
Pre-Ratification
When our Founding generation banned “cruel and
unusual punishments” through the Bill of Rights, they did
not pluck the term out of thin air. Far from it. Indeed, the
whole of the Eighth Amendment was largely taken from the
English Declaration of Rights of 1689. See Harmelin v.
22 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

Michigan, 501 U.S. 957, 966 (1991) (opinion of Scalia, J.)
(“There is no doubt that th[is] Declaration of Rights is the
antecedent of our constitutional text.”). This English
precursor provided that “excessive Baile ought not to be
required nor excessive Fines imposed nor cruell and unusuall
Punishments inflicted.” 1 Wm. & Mary, Sess. 2, ch. 2
(1689).
It is generally accepted that this provision of the English
Declaration of Rights arose in response to “the arbitrary
sentencing power” of the “infamous” Lord Chief Justice
Jeffreys of the King’s Bench. Harmelin, 501 U.S. at 967–68
(opinion of Scalia, J.). “Jeffreys was widely accused of
‘inventing’ special penalties for the King’s enemies,
penalties that were not authorized by common-law precedent
or statute.” Id. at 968. Take the sentence of one perjurer,
Titus Oates—a Protestant cleric whose false accusations
caused the death of several Catholics. Id. at 969. Oates was
sentenced to “a fine of 1000 marks upon each Indictment,”
“stript of his Canonical Habits,” “pillor[ied] annually,”
“whipped by the common hangman,” and “imprisoned for
life.” Id. at 970 (citing Second Trial of Titus Oates, 10 How.
St. Tr. 1227, 1316 (K.B. 1685)).
Those punishments shocked many in Parliament and,
after Oates’s sentence, the Declaration of Rights was
enacted. Id. While a petition to set aside Oates’s punishment
proved unsuccessful, a minority of the House of Lords
dissented, concluding that the punishment was “barbarous,
inhuman, and unchristian” without “Precedent” and
“contrary to the Declaration [of Rights].” Id. at 971 (quoting
Second Trial of Titus Oates, 10 How. St. Tr. at 1325). They
decried that “there [were] no precedents to warrant the
punishments of whipping and committing to prison for life,
for the crime of perjury.” Second Trial of Titus Oates, 10
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 23

How. St. Tr. at 1325. Thus, the penalties “were contrary to
law and ancient practice” and the sentence would “be an
encouragement and allowance for giving the like cruel,
barbarous, and illegal judgments hereafter.” Id. The House
of Commons joined in condemnation of Oates’s punishment,
calling it an “ill Example, and illegal” to impose a life
sentence “where there is no express Law to warrant it” and
“unusual” that “an Englishman should be exposed upon a
Pillory, so many times a Year, during his Life.” Harmelin,
501 U.S. at 972–73 (opinion of Scalia, J.) (quoting 10
Journal of the House of Commons 247 (Aug. 2, 1689)).
In sum, those contemporary authorities believed that a
punishment violated the “cruell and unusall” right because
they were: “out of [the Judges’] Power,” “contrary to Law
and ancient practice,” without “Precedents” or “express Law
to warrant,” “unusual,” “illegal,” or imposed by “Pretence to
a discretionary Power.” Id.
These protests, centered on the novelty of Oates’s
punishment, contrasted with practices in long usage and
aligned with the common law. Under the common law,
courts “identif[ied] longstanding customary rules and
appl[ied] them to particular cases.” John F. Stinneford, The
Original Meaning of “Unusual”: The Eighth Amendment as
a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1768–
69 (2008). In the words of Sir Edward Coke, perhaps the
most important common-law jurist in English history,
“customary practices that enjoyed ‘long’ or ‘immemorial
usage’” were considered “inherently just and reasonable.”
Id. at 1772. “If a given customary law was used over a long
period of time, throughout the entire kingdom, Coke held
that this process confirmed the law’s goodness and
eliminated from the law anything that was bad or
unreasonable.” Id. at 1774. Indeed, in Coke’s view, such
24 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

long usage would be “fined and refined by an infinite
number of grave and learned men, and by long experience
growne to such a perfection.” Id. (quoting 1 Edward Coke,
Institutes of the Lawes of England § 138 (1608), as reprinted
in 2 The Selected Writings and Speeches of Sir Edward Coke
§ 138, at 701 (Steve Sheppard ed., 2003)).
Ratification
At the Founding, fear that the federal government might
enact punishments contrary to common usage was
widespread. George Mason led the charge:

There is no Declaration of Rights, and the
laws of the general government being
paramount to the laws and constitution of the
several States, the Declarations of Rights in
the separate States are no security. Nor are
the people secured even in the enjoyment of
the benefit of the common law (which stands
here upon no other foundation than its having
been adopted by the respective acts forming
the constitutions of the several States).

2 Kate Mason Rowland, Life of George Mason, 1725–1792,
Including His Speeches, Public Papers, and Correspondence,
at 385–86 (1892), reprinted in 2 The Records of the Federal
Convention of 1787, at 637 (Max Farrand ed., 1911). When
Mason made this statement, many States had adopted bans
on “cruel and unusual” or “cruel or unusual” punishments in
their constitutions. See, e.g., Va. Declaration of Rights § 9
(1776); Del. Declaration of Rights § 16 (1776); Md.
Declaration of Rights art. XXII (1776); N.C. Declaration of
Rights art. X (1776); Mass. Const. pt. I, art. XXVI (1780);
N.H. Bill of Rights art. XXXIII (1783).
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 25

In Massachusetts, Abraham Holmes, a legislator and
attorney allied with the Anti-Federalists, warned against
leaving Congress with the power to define novel
punishments without limit. He decried that the federal
government was “nowhere restrained from inventing the
most cruel and unheard-of punishments, and annexing them
to crimes.” 2 J. Elliott, The Debates in the Several State
Conventions on the Adoption of the Federal Constitution
111 (2d ed. 1891). Holmes, then, feared that the new federal
government would resurrect long out-of-use punishments so
that “racks and gibbets may be amongst the most mild
instruments of their discipline.” Id.
In Virginia, Patrick Henry echoed Holmes’s concern that
“members of Congress will loose the restriction of not
imposing excessive fines, demanding excessive bail, and
inflicting cruel and unusual punishments” and bemoaned
that “[w]hat has distinguished our ancestors [is t]hat they
would not admit of tortures, or cruel and barbarous
punishment.” 3 J. Elliott, The Debates in the Several State
Conventions on the Adoption of the Federal Constitution
447 (2d ed. 1891). Henry explained that Congress should
have full latitude “[i]n the definition of crimes;” yet, he
cautioned that the Constitution must limit the scope of
penalties. Id. “[W]hen we come to punishments,” he said,
“no latitude ought to be left, nor dependence put on the virtue
of representatives.” Id. In particular, he advocated for the
common-law tradition to set this limit, otherwise “Congress
may introduce the practice of the civil law, in preference to
that of the common law.” Id. At that time, the civil law was
understood to allow “cruel new practices” while the common
law required long usage and thus constrained such
inventions. Stinneford, supra, at 1776.
26 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

This point is underscored by the kinds of punishments
considered usual and thus permissible under the Clause. As
James Wilson, a key contributor to the Constitution
explained, it is “long customs, approved by the consent of
those who use them, [that] acquire the qualities of a law.” 2
James Wilson, Collected Works of James Wilson 759
(Kermit L. Hall & Mark David Hall eds., Indianapolis,
Liberty Fund 2007). Thus, customs enjoying a long history
of usage were described as “usual” practices. Stinneford,
supra, at 1770. Those contrasted with the unusual practices
that Mason, Holmes, Henry, and other proponents of the
Eighth Amendment worked to prevent.
So those who advocated for the Cruel and Unusual
Punishments Clause sought to ban innovative punishments
without longstanding acceptance in the legal tradition.
Post-Ratification
Post-ratification understanding of the Clause confirms
its prohibition of punishments contrary to longstanding
usage or custom. As Justice Story explained, the Clause bars
“violent proceedings,” such as those under the “arbitrary
reigns of some of the Stuarts” during which “[e]normous
fines and amercements were . . . sometimes imposed, and
cruel and vindictive punishments inflicted.” 3 J. Story,
Commentaries on the Constitution of the United States 750–
51 (1833). For that reason, post-ratification legal
commentators observed that the Clause would prohibit the
revival of long discarded penalties. See, e.g., J. Bayard, A
Brief Exposition of the Constitution of the United States 154
(2d ed. 1834) (barring “the use of the rack or the stake, or
any of those horrid modes of torture, devised by human
ingenuity”); B. Oliver, The Rights of An American Citizen
186 (1832) (prohibiting “various barbarous and cruel
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 27

punishments inflicted under the laws of some other
countries, . . . [like b]reaking on the wheel, flaying alive,
rending asunder with horses, various species of horrible
tortures inflicted in the inquisition, maiming, mutilating and
scourging to death”).
Likewise, early American courts, construing the term
“cruel and unusual” (typically as used in State constitutions),
upheld punishments that were not “unusual” in light of
common-law usage. See Stinneford, supra, at 1810–11
(citing Barker v. People, 20 Johns. 457, 459 (N.Y. Sup. Ct.
1823); Commonwealth v. Wyatt, 27 Va. (6 Rand.) 694, 701
(Va. Gen. Ct. 1828); People v. Potter, 1 Edm. Sel. Cas. 235,
245 (N.Y. Sup. Ct. 1846)).
***
All in all, as a historical matter, the Cruel and Unusual
Punishments Clause has two dimensions. The first prevents
“cruel” punishments—those in which “terror, pain, or
disgrace [were] superadded,” Bucklew, 139 S. Ct. at 1123
(quoting 4 W. Blackstone, Commentaries on the Laws of
England 370 (1769)), or which were “[p]leased with hurting
others; inhuman; hard-hearted; void of pity; wanting
compassion; savage; barbarous; unrelenting,” id. (quoting 1
S. Johnson, A Dictionary of the English Language (4th ed.
1773)). The second dimension prohibits “unusual”
punishments, meaning those that “had long fallen out of
use.” Id. Thus, we must look to both components when
considering the contours of the Clause.
B.
Tradition of Anti-Vagrancy Laws
With this background, we review the history of anti-
vagrancy laws. It should come as no surprise that it’s
28 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

longstanding. And the punishments for violating anti-
vagrancy laws were far more severe than the misdemeanors
and civil infractions involved here.
“Laws prohibiting loitering and vagrancy have been a
fixture of Anglo–American law at least since the time of the
Norman Conquest.” City of Chicago v. Morales, 527 U.S.
41, 103 (1999) (Thomas, J., dissenting). While the original
reason for these prohibitions is archaic—“[t]he break-up of
feudal estates in England” in the 14th century—their
longstanding character is without question. See
Papachristou v. City of Jacksonville, 405 U.S. 156, 161
(1972). By the 17th century, English “laws vested in local
governments responsibility for the poor and an almost
unfettered control over their daily lives.” Harry Simon,
Towns Without Pity: A Constitutional and Historical
Analysis of Official Efforts to Drive Homeless Persons from
American Cities, 66 Tul. L. Rev. 631, 637 (1992).
Even after the English Declaration of Rights in 1689,
anti-vagrancy enforcement was regular and the permissible
punishments severe. See C. J. Ribton-Turner, A History of
Vagrants and Vagrancy and Beggars and Begging 173–203
(1887). The examples are many—
In 1713, Parliament passed an Act allowing certain “idle
Persons” to be “taken up sent and conducted and conveyed
unto Her Majestie’s Service at Sea.” Id. at 180 (quoting 13
Anne c. 26 (Gr. Brit.)). Others were “ordered to be sent to
their place of settlement or birth, and if that could not be
known, then to the place where they were last found begging
or misordering themselves and passed unapprehended.” Id.
at 181 (quoting 13 Anne c. 26). “Vagrants without a legal
place of settlement” could “be committed to the custody and
power of the person apprehending them” who could
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 29

apprentice or keep the vagrant as a servant for a term of
seven years. Id. at 182 (quoting 13 Anne c. 26). Others still
could be sentenced to hard labor, incarceration, and public
whipping. Id. at 180–82.
In the city of Bath—a particularly attractive destination
to “poor persons so afflicted with [diseases]” given its
“Medicinal and Mineral Waters”—under a 1739 law, those
found “loitering, wandering, or begging” after discharge
could be punished with three months’ hard labor. Id. at 197
(quoting 12 Geo. II. c. 31 (Gr. Brit.)). And “loose, idle, and
disorderly persons” if found “wandering or begging” faced
up to twelve months’ hard labor. Id. (quoting 12 Geo. II. c.
31).
In 1740, Parliament further targeted idle persons,
including those wandering the streets, and authorized as a
penalty one month’s hard labor. Id. at 199 (citing 13 Geo.
II. c. 24 (Gr. Brit.)). It punished “all persons wandering
abroad, and lodging in barns and other outhouses, not giving
a good account of themselves, and all persons wandering
abroad and begging” more severely. Id. at 200 (quoting 13
Geo. II. c. 24). Those individuals would be sent back to their
last legal place of settlement and punished with hard labor
and up to six months’ imprisonment, with the possibility of
being pressed into service. Id. at 200–02.
These kinds of laws were also ubiquitous in early
American history. “[A]t the time of the founding, state and
local governments customarily criminalized loitering and
other forms of vagrancy.” Morales, 527 U.S. at 103
(Thomas, J., dissenting). This “[v]agrancy legislation in
America started in colonial times and closely followed
English models.” Simon, supra, at 638. For example, South
Carolina criminalized as vagrancy “all persons wandering
30 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

from place to place without any known residence.” An Act
for the promotion of Industry, and for the suppression of
Vagrants and other Idle and Disorderly Persons (1787),
reprinted in 5 The Statutes at Large of South Carolina, 41–
44 (Thomas Cooper ed., 1939). If the court did “not think
fit to discharge the offender,” it could sell the vagrant’s
services as a servant for up to one year. Id. at 42.
Alternatively, the vagrant could be punished with between
ten and thirty-nine lashes and banished from the area. Id.
at 43.
At least ten of the original colonies implemented such
laws by the end of the 1700s. Morales, 527 U.S. at 103 n.2
(Thomas, J., dissenting) (collecting laws). This included
places like Massachusetts, which had a constitutional
prohibition on “cruel or unusual punishments.” Compare
Mass. Const. pt. I, art. XXVI (1780), with Act for
suppressing and punishing of rogues, vagabonds, common
beggars and other idle, disorderly and lewd persons, ch. 54,
1787 Mass. Laws 623 (1788) (permitting punishment
through forced labor in a house of corrections). No rulings
suggested that these “cruel and unusual” bars interfered with
anti-vagrancy prohibitions or the punishments associated
with them.
Furthermore, criminalizing vagrancy was not an early
outlier. To the contrary, these laws lasted well through the
ratification of the Fourteenth Amendment. Morales, 527
U.S. at 103–04 & n.3 (Thomas, J., dissenting). They then
“remained on the books” into the middle of the 20th century.
Id. at 104. It was only during the late 20th century that the
Supreme Court began to question such laws—and even then,
only on due process grounds. See, e.g., Papachristou, 405
U.S. at 161–62.
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 31

From that perspective, it is notable that anti-vagrancy
legislation, and the associated punishments, have coexisted
with English, colonial, State, and federal prohibitions on
“cruel and unusual punishments” for centuries. And anti-
vagrancy laws with incarceration as a possible punishment
have continued well into our modern era. Our historical
tradition thus magnifies the disconnect between our court’s
jurisprudence and the proper scope of the Clause.
***
Nothing in the text or historical understanding of the
Clause supports barring States from enforcing the anti-
vagrancy laws here. Such a reading is completely outside
the bounds of the original understanding of the Eighth
Amendment and the long tradition of penalties for anti-
vagrancy laws. Thus, “[u]nder our federal system,” the
Clause generally leaves to “the States . . . primary authority
for defining and enforcing the criminal law.” United States
v. Lopez, 514 U.S. 549, 561 n.3 (1995) (simplified).
II.
Our Precedent Contradicts the Original Meaning
Given this history, Martin and Grants Pass
unquestionably contradict the original meaning of the Eighth
Amendment. With punishments for anti-vagrancy laws
longstanding in our tradition, the Cruel and Unusual
Punishments Clause places no substantive limits on laws
criminalizing sleeping, lying, and sitting on public streets
and sidewalks. Simply put, there’s nothing barbarous or
contrary to common usage about enforcing such laws with
misdemeanor penalties or civil violations. Instead of
following this straightforward reading, our court improperly
federalized the health and safety regulations of every State
32 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

and locality within this circuit. By doing so, we
impermissibly usurp powers left to the States and crown
ourselves czars over homeless policy.
Martin v. City of Boise
It began with Martin v. City of Boise. In Martin, several
homeless or previously homeless residents of Boise, Idaho
challenged the City’s two criminal ordinances against
sleeping outside on public property. 920 F.3d at 603. The
first ordinance barred the use of “any of the streets,
sidewalks, parks, or public places as a camping place at any
time.” Id. (quoting Boise City Code § 9-10-02 (repealed)).
“Camping” was defined as “the use of public property as a
temporary or permanent place of dwelling, lodging, or
residence.” Id. at 603–04. The other ordinance forbade
“[o]ccupying, lodging, or sleeping in any building, structure,
or public place, whether public or private . . . without the
permission of the owner or person entitled to possession or
in control thereof.” Id. at 604 (quoting Boise City Code § 6-
01-05 (repealed)). Both ordinances were misdemeanors. By
their plain language, they operated throughout the City of
Boise without geographic or temporal limitation. The
Martin plaintiffs argued that the anti-camping and disorderly
conduct ordinances violated the Cruel and Unusual
Punishments Clause because no shelter had been made
available to them.
Our court sided with the plaintiffs. We sweepingly ruled
that enforcement of the two ordinances “violates the Eighth
Amendment insofar as it imposes criminal sanctions against
homeless individuals for sleeping outdoors, on public
property, when no alternative shelter is available to them.”
Id. To get there, our court misread multiple Supreme Court
cases. Despite its original meaning, our court insisted that
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 33

the Cruel and Unusual Punishments Clause “places
substantive limits on what the government may criminalize.”
Id. at 615. But our court was wrong to stretch Supreme
Court jurisprudence to reach this unprecedented holding.
To be fair, the Supreme Court has once applied the Cruel
and Unusual Punishments Clause to overturn a substantive
criminal ordinance. See Robinson v. California, 370 U.S.
660 (1962). In that case, the Court reversed a California
conviction for “be[ing] addicted to the use of narcotics.” Id.
at 660 (simplified). According to the Court, a person could
violate the law without ever “touch[ing] any narcotic drug
within the State or be[ing] guilty of any irregular behavior
there.” Id. at 667. The law thus violated the Clause because
the punishment was based on the “status” of being a narcotic
addict—“an illness which may be contracted innocently or
involuntarily.” Id. At the same time, the Court emphasized
that States were free to imprison those found guilty of
“behavior[s]” such as using, purchasing, or possessing
narcotics. Id. at 666.
Of course, Robinson didn’t go far enough to support
Martin’s ruling against enforcing the Boise ordinances.
That’s because the Boise laws prohibited “behavior” (like
camping or sleeping), not “status” (like being a drug addict).
So Boise’s laws fell beyond the limits prescribed by
Robinson.
Rather than acknowledge that Robinson couldn’t support
its novel holding, Martin employed some judicial sleight of
hand, pulling out a concurrence and dissent from a case
declining to extend Robinson—Powell v. Texas, 392 U.S.
514 (1968). In Powell, the Supreme Court reviewed a Texas
conviction for “get[ting] drunk or be[ing] found in a state of
intoxication in any public place.” Id. at 517 (plurality
34 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

opinion) (simplified). Under Robinson, the defendant
claimed that being punished for “being a chronic alcoholic”
was cruel and unusual. Id. at 532. The Court fractured 4-1-
4 to deny the constitutional challenge.
Writing for four members, Justice Thurgood Marshall
explained that the Cruel and Unusual Punishments Clause
had no relevance for laws proscribing conduct. Justice
Marshall reiterated that the Clause’s “primary purpose” has
“always been considered . . . to be directed at the method or
kind of punishment imposed for the violation of criminal
statutes.” Id. at 531–32. It thus had little to do with the
substantive area of criminal law. And Robinson wasn’t
controlling, he said, because the Texas defendant was
convicted for being drunk in public—“public behavior
which may create substantial health and safety hazards”—
not “mere status” as in the California case. Id. at 532.
Justice Marshall then warned against reading Robinson too
broadly. He said that case had no application to conduct,
even if that conduct were “in some sense, involuntary or
occasioned by a compulsion.” Id. at 533 (simplified).
Rather, Robinson merely held “that criminal penalties may
be inflicted only if the accused has committed some act.” Id.
Expanding Robinson would make federal courts “the
ultimate arbiter of the standards of criminal responsibility”
and flout “[t]raditional common-law concepts of personal
accountability and essential considerations of federalism.”
Id. at 533, 535. The plurality rejected that sweeping
federalization of criminal law.
Justice White agreed to affirm the conviction. Speaking
for himself, he concluded that the defendant had “showed
nothing more than that he was to some degree compelled to
drink and that he was drunk at the time of his arrest.” Id.
at 553–54 (White, J., concurring in the judgment). Because
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 35

the defendant could not establish that his being drunk in
public was “involuntary,” Justice White explained that he
“did not show that his conviction offended the Constitution.”
Id. at 554. True, Justice White opined in dicta, citing
Robinson, that “the chronic alcoholic with an irresistible
urge to consume alcohol should not be punishable for
drinking or for being drunk.” Id. at 549. Even so, Justice
White believed that “the chronic alcoholic” cannot be
“shielded from conviction when he has knowingly failed to
take feasible precautions against committing a criminal act.”
Id. at 550.
The dissent, written by Justice Fortas and joined by three
others, read Robinson broadly to conclude that “[c]riminal
penalties may not be inflicted upon a person for being in a
condition he is powerless to change.” Id. at 567 (Fortas, J.,
dissenting). He opined that being a “chronic alcoholic” was
a “condition” which the defendant “had no capacity to
change or avoid.” Id. at 568. Thus, the conviction for being
drunk in public resulted from “an uncontrollable compulsion
to drink.” Id. The dissenters would have reversed the
conviction under the Eighth Amendment. Id. at 570.
Cobbling together the dissent and concurrence, Martin
built a constitutional house of cards—constructing the
broadest reading of the Clause in its long history. Reading
Powell’s three opinions, Martin somehow “gleaned” that
Justice White’s vote to affirm the conviction really
constituted a vast holding that entirely agreed with the
dissenters. See Martin, 920 F.3d at 616. Thus, Martin
concluded that the narrowest grounds for the five Justices
was the sweeping proposition 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. (simplified).
36 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

Based on this innovative reading of the Clause, our court
thought it was “compel[led]” to prohibit enforcement of
Boise’s anti-camping and disorderly conduct ordinances
whenever shelter is not offered. Id. Martin reasoned that
sitting, lying, and sleeping are “universal and unavoidable
consequences of being human” so that the “conduct . . . is
involuntary and inseparable from status.” Id. at 617
(simplified). So Martin felt that governments cannot
criminalize the “state of being homeless in public places” if
“there is no option of sleeping indoors.” Id. (simplified). By
criminalizing “the simple act of sleeping outside on public
property” when no sleeping space was “practically available
in any shelter,” Martin concluded that Boise’s two
ordinances violated the Clause. Id. at 617–18. Thus, Martin
held that “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. at 617 (simplified).
Martin’s invented meaning for the Cruel and Unusual
Punishments Clause is wrong for several reasons—
Most important, it is untethered from the text or
historical understanding of the Clause. Martin refuses to
acknowledge that the constitutional guarantee proscribes
only barbarous and out-of-use punishments. And it
disregards the Clause’s focus on punishments rather than
substantive criminal law. Martin doesn’t even grapple with
the long history of anti-vagrancy laws and their peaceful co-
existence with the Cruel and Unusual Punishments Clause
for more than two centuries.
Next, Martin violates how we must read fractured
Supreme Court decisions. See Marks v. United States, 430
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 37

U.S. 188, 193 (1977) (requiring lower courts to follow the
“position taken by those Members who concurred in the
judgments on the narrowest grounds”). In interpreting
Powell, Martin pretended that the boldest, most disruptive
ground—one that has vast implications for substantive
criminal law across the Ninth Circuit—is really the
narrowest one. This ignores the obvious: the narrowest
ground of Powell—combining Justice White’s concurrence
and Justice Marshall’s plurality—is simply that
criminalizing acts of volitional conduct does not offend the
Eighth Amendment. It is absurd to conclude that the
narrowest ground of Powell fundamentally reshapes
substantive criminal law.
And finally, it overlooks the Supreme Court’s later
rulings. When the Court looks to Powell, it does so with
reference to Justice Marshall’s plurality—and especially its
conclusion that “doctrines of criminal responsibility must
remain the province of the States.” Kahler v. Kansas, 140 S.
Ct. 1021, 1028 (2020) (quoting Powell, 392 U.S. at 534,
536) (simplified); see also Manning v. Caldwell for City of
Roanoke, 930 F.3d 264, 289 (4th Cir. 2019) (Wilkinson, J.,
dissenting) (collecting cases). Indeed, the Supreme Court
has never endorsed a view of the Clause as broad as the
Ninth Circuit’s—one that protects anti-social conduct long
penalized by communities throughout the Nation.
Johnson v. City of Grants Pass
But we didn’t stop there. Only a few years later, we
pushed our interpretation further with Johnson v. City of
Grants Pass. In Grants Pass, a group of homeless persons
filed a class action to bar enforcement of various ordinances
forbidding unauthorized sleeping or camping in public. 72
F.4th at 875, 880. This time the ordinances were civil in
38 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

nature, with fines up to several hundred dollars and
exclusions from city property. Id. at 875.
Beyond expanding Martin to civil penalties and class
actions, the Grants Pass majority supercharged its
substantive reach. The City of Grants Pass argued that
Martin wasn’t applicable because its anti-camping
ordinances barred the use of bedding, sleeping bags, or other
materials for bedding purposes—not merely sleeping in
public. Id. at 890. The City had a good point. As Judge
Collins pointed out in dissent, Martin only barred
enforcement of laws against sitting, lying, and sleeping in
public, it said nothing about forbidding the use of ancillary
items for sleep. Id. at 912 n.15 (Collins, J., dissenting); see
also Martin, 920 F.3d at 617 & n.8.
The Grants Pass majority rejected this distinction. It
extended the Cruel and Unusual Punishments Clause to
allow a homeless person to “tak[e] necessary minimal
measures to keep themselves warm and dry while sleeping.”
Grants Pass, 72 F.4th at 891 (simplified). Claiming it a
“life-preserving imperative,” the Grants Pass majority ruled
that governments cannot prohibit “articles necessary to
facilitate sleep” or the “most rudimentary precautions . . .
against the elements” when shelter is unavailable. Id. at 891
& n.28. For the same reason, the Grants Pass majority also
barred enforcement of laws against sleeping in cars at night.
Id. at 896.
Originally, the Grants Pass majority also created one
additional wrinkle—the introduction of a “formula” to
assess when the Cruel and Unusual Punishments Clause
kicks in. The initial majority opinion established a
“formula” that “the government cannot prosecute homeless
people for sleeping in public if there ‘is a greater number of
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 39

homeless individuals in [a jurisdiction] than the number of
available’ shelter spaces.” Grants Pass, 50 F.4th at 795
(vacated opinion) (quoting Martin, 920 F.3d at 617). Such a
“formula” has led to confusion in the district courts,
including the one here, because the language suggested that
any enforcement of anti-sleeping or camping laws is barred
until States and localities build enough shelters for every
homeless person in their jurisdictions. The Grants Pass
majority wisely excised that novel “formula” calculation
from its amended opinion. Grants Pass, 72 F.4th at 874; id.
at 916 (joint statement on denial of rehearing en banc).
Grants Pass has not fared well. Seventeen judges of our
circuit have called for Grants Pass to be reheard en banc. Id.
at 924 (O’Scannlain, J., respecting the denial of rehearing en
banc); id. at 933 (Graber, J., respecting the denial of
rehearing en banc); id. at 935 (M. Smith, J., dissenting from
the denial of rehearing en banc); id. at 943 (Collins, J.,
dissenting from the denial of rehearing en banc); id. at 944
(Bress, J., dissenting from the denial of rehearing en banc).
A petition for certiorari remains pending at the Supreme
Court. States, cities, and community organizations from
across our Nation have joined the call to have Grants Pass
overturned by the Supreme Court. We should be reluctant
to turn a blind eye to its further expansion.
***
As a result of Martin and Grants Pass, we have moved
far from the “original and historical understanding of the
Eighth Amendment.” See Bucklew, 139 S. Ct. at 1122. A
prohibition against barbarous and out-of-use penalties now
paralyzes the States and localities of this circuit. We prohibit
them from effectively addressing homelessness, a pressing
public issue closely tied to core State interests like health,
40 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

safety, and crime—despite centuries of enforcement of anti-
vagrancy laws. We are gravely wrong with this line of
precedent. Our ill-conceived rulings endanger the public,
including those struggling on our streets. The district court’s
expansion of our precedent makes matters even worse.
III.
The District Court’s Expansion of Martin and Grants
Pass is Egregiously Wrong
Given everything just explained—the original meaning
of the Cruel and Unusual Punishments Clause, the tradition
of anti-vagrancy punishments, and the shaky foundation of
Martin and Grants Pass—the district court’s expansion of
this jurisprudence is egregiously wrong. Our precedent has
never required that homeless persons be allowed to sit, lie,
or sleep in any public place at any time. To the contrary,
even as sweeping as our rulings have been, they’ve expressly
limited themselves to situations involving all-day, citywide
bars on sleeping, sitting, or lying. Thus, Martin and Grants
Pass do not compel the injunction imposed by the district
court here. And we should not have ignored this undue
expansion and further unleashed our indefensible precedent
on the people of San Francisco.
A.
Martin and Grants Pass Did Not License Sleeping
Anywhere Anytime
Let’s turn back to the two cases. Despite their
extraordinary nature and perhaps realizing their astonishing
scope, the two panels at least limited these rulings in several
important respects. Indeed, both cases emphasized the
narrowness of their holdings. Martin, 920 F.3d at 617
(stating that its “holding is a narrow one”); Grants Pass, 72
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 41

F.4th at 896 (confirming its “decision is narrow”). We
should have taken those cases at their word and not allowed
the district court to expand them without serious thought.
Geographic and Temporal Limitations
First, Martin and Grants Pass do not allow homeless
persons to sleep anywhere, anytime. Those cases apply only
to universal all-day, citywide ordinances. So the Cruel and
Unusual Punishments Clause doesn’t come into play when
States and localities provide some place for homeless
persons to sleep, lie, and sit in public at some time.
Take Martin. It expressly rejected the idea that
governments must “allow anyone . . . to sit, lie, or sleep on
the streets . . . at any time and at any place.” 920 F.3d at 617
(emphases added). Even when shelter is unavailable, it said
that laws criminalizing “sitting, lying, or sleeping outside at
particular times or in particular locations might well be
constitutionally permissible.” Id. at 617 n.8 (emphasis
added). Indeed, the author of Martin expressly stated that
the case “holds only that municipal ordinances that
criminalize sleeping, sitting, or lying in all public spaces,
when no alternative sleeping space is available, violate the
Eighth Amendment.” Id. at 589 (Berzon, J., concurring in
the denial of rehearing en banc) (emphasis added). Thus,
Martin has nothing to say about anti-vagrancy laws that are
limited in geographic or temporal scope.
Grants Pass had similar limitations. It confirmed that its
line of reasoning only applies to all-day, jurisdiction-wide
laws. According to Grants Pass, the Eighth Amendment is
violated only “if there are no other public areas or
appropriate shelters where those individuals can sleep.” 72
F.4th at 877 (simplified). In fact, it reduced its holding to one
“simpl[e]” rule—“it is unconstitutional to punish simply
42 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

sleeping somewhere in public if one has nowhere else to do
so.” Id. at 896 (simplified). Thus, anti-vagrancy ordinances
are unconstitutional “unless there is some place, such as
shelter, [homeless persons] can lawfully sleep.” Id. at 894.
The judges of the Grants Pass majority characterized
this as an “exceptionally limited protection.” Id. at 924
(joint statement on denial of rehearing en banc). They did
“not establish an unrestrained right for involuntarily
homeless persons to sleep anywhere they choose.” Id. at 914
(emphasis added). So even “[w]hen there is no shelter space,
jurisdictions may still enforce limitations on sleeping at
certain locations.” Id. at 915.
Thus, if governments offer “alternate outdoor space” for
homeless persons to sleep, id. at 894 n.33, the Cruel and
Unusual Punishments Clause isn’t applicable.
Tents and Other Obstructions
Next, Martin and Grants Pass do not prevent bans on
using tents and other obstructive items in public. Its holding
doesn’t affect laws barring tents, encampments, lodgings,
and the like.
Martin expressly told us that it doesn’t reach laws that
bar “the obstruction of public rights of way or the erection
of certain structures.” 920 F.3d at 617 n.8. Indeed, Martin
only targeted criminalization of “the simple act of sleeping
outside on public property, whether bare or with a blanket or
other basic bedding.” Id. at 617.
Grants Pass went even further in limiting its scope. It
only barred enforcement of laws against homeless persons
possessing the “most rudimentary” bedding material, like
blankets and sleeping bags—leaving other obstructive
materials favored by homeless persons unprotected by the
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 43

Eighth Amendment. Grants Pass, 72 F.4th at 891, 895.
Grants Pass, for example, does not apply to prohibitions on
stoves, fires, or other structures. See id. at 895. Indeed, it
expressly upheld bans on the use of tents in public parks. Id.
at 895 n.34. So our precedent lets governments ban nuisance
items.
Involuntarily Homeless
Third, Martin and Grants Pass apply only to those who
are truly “involuntarily” homeless.
Our court has defined what it means to be “involuntarily”
homeless. See Grants Pass, 72 F.4th at 888 n.24 (“A person
with access to temporary shelter is not involuntarily
homeless[.]”); Martin, 920 F.3d at 618 (explaining that a
person is involuntarily homeless “when no sleeping space is
practically available in any shelter”). And that definition
“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.” Martin, 920 F.3d at 617
n.8. The judges of Grants Pass stated “emphatically” that
“when an involuntarily homeless person refuses a specific
offer of shelter elsewhere, that individual may be punished
for sleeping in public.” Grants Pass, 72 F.4th at 915 (joint
statement on denial of rehearing en banc). So governments
may continue to enforce their anti-vagrancy laws against
homeless persons who have received an offer of shelter.
No Control over Shelters
Finally, our court has said that the Cruel and Unusual
Punishments Clause does not control how governments may
run their shelters. Martin said its ruling in “no way
dictate[s]” that governments “must provide sufficient shelter
44 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

for the homeless.” 920 F.3d at 617 (simplified). As
Coalition conceded at oral argument, the “Eighth
Amendment and Martin and Grants Pass doesn’t dictate to
any city how they should manage their shelter system.” So
States and localities may manage their shelters in any way
they see fit, including setting aside shelter space for
enforcement activities.
B.
San Francisco’s Laws Don’t Implicate Martin and
Grants Pass
Our precedent is clear: the homeless have no right to
sleep anywhere at any time in any arrangement. Because
San Francisco allows homeless persons to sleep in public
parks, beaches, and plazas at certain times and its streets at
other times, the district court should not have enjoined
enforcement of the City’s ordinances under Martin and
Grants Pass.
Let’s look at the laws enjoined by the district court
here—

• California Penal Code § 647(e): “every person . . .
[w]ho lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the
owner or person entitled to the possession or in control
of it” is “guilty of disorderly conduct, a misdemeanor[.]”
• California Penal Code § 370: “[a]nything which is
injurious to health, or is indecent, or offensive to the
senses, or an obstruction to the free use of property, so
as to interfere with the comfortable enjoyment of life or
property by an entire community or neighborhood, or by
any considerable number of persons, or unlawfully
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 45

obstructs the free passage or use, in the customary
manner, of any navigable lake, or river, bay, stream,
canal, or basin, or any public park, square, street, or
highway, is a public nuisance.”
• California Penal Code § 372: “[e]very person who
maintains or commits any public nuisance, the
punishment for which is not otherwise prescribed, or
who willfully omits to perform any legal duty relating to
the removal of a public nuisance, is guilty of a
misdemeanor.”
• San Francisco Police Code § 168: “[i]n the City and
County of San Francisco, during the hours between
seven (7:00) a.m. and eleven (11:00) p.m., it is unlawful
to sit or lie down upon a public sidewalk, or any object
placed upon a public sidewalk,” punishable “by a fine of
not less than $50 or more than $100 and/or community
service” for the first offense.
• San Francisco Police Code § 169: “[i]n the City and
County of San Francisco, it is unlawful to place an
Encampment upon a public sidewalk. This prohibition
shall not apply to the placement of an Encampment on a
public sidewalk pursuant to and in compliance with a
street use permit or other applicable permit.”

The district court also enjoined use of California Penal
Code § 148(a) to enforce or threaten to enforce these laws.
Section 148(a) makes it unlawful when a person “willfully
resists, delays, or obstructs any public officer, peace officer,
or an emergency medical technician, . . . in the discharge or
attempt to discharge any duty of his or her office or
employment.”
46 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

Notice that these laws are limited in temporal or
geographic scope or prohibit conduct beyond what Martin
and Grants Pass protect. For ease of understanding the
scope of the injunction, here’s a summary of the laws at
issue:

CODE SUBSTANTIVE GEOGRAPHIC TEMPORAL
SECTION BAR SCOPE SCOPE
CAL. PENAL Unauthorized Any public place Any time
CODE lodging
§ 647(E)

CAL. PENAL Obstructing free Public parks, Any time
CODE passage squares, streets,
§§ 370, 372 and highways

S.F. POLICE Lying or sitting Public sidewalks Between 7:00
CODE § 168 a.m. and
11:00 p.m.

S.F. POLICE Encampments Public sidewalks Any time
CODE § 169

California Penal Code § 647(e). Start with § 647(e).
This section allows San Francisco police officers to arrest a
person for unauthorized “lodging,” meaning the use of a
“tent, tarp or other structure or shelter.” S.F. Police Dep’t
Bull. A-19-080 (Apr. 16, 2019). Thus, this law bans conduct
beyond “the simple act of sleeping outside on public
property, whether bare or with a blanket or other basic
bedding.” Martin, 920 F.3d at 617. As Grants Pass said
unequivocally, there is no “right to use . . . a tent” for
sleeping outdoors. 72 F.4th at 895 n.34.
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 47

By its plain text, § 647(e) requires more than mere
sleeping in public; it penalizes “lodg[ing]” in public. Cal.
Penal Code § 647(e). Lodging connotes the use of items or
structures associated with sleeping quarters. See Webster’s
New International Dictionary 1451–52 (2d ed. 1941)
(defining to “lodge” as “to encamp,” “provide quarters for,”
“establish or settle (oneself) in a place,” and “have lodging
or sleeping quarters”). Court decisions have confirmed that
§ 647(e) requires more than mere sleeping. See People v.
Ellis, 2017 WL 2463092, at *7 (Cal. Ct. App. June 7, 2017)
(unpublished) (holding the mere act of temporarily sitting on
a curb is not lodging under § 647(e)); Stone v. Agnos, 960
F.2d 893, 895 (9th Cir. 1992) (approving an arrest of a
homeless defendant for sleeping in a public plaza who had
previously erected a tent and describing the State’s interest
as the prevention of “unpermitted camping”); Joyce v. City
and Cnty. of San Francisco, 846 F. Supp. 843, 862–63 (N.D.
Cal. 1994) (holding predecessor of § 647(e) was not
unconstitutionally vague because San Francisco police
officers had been advised not to enforce the prohibition
against “the mere lying or sleeping on or in a bedroll,” but to
apply it only to persons who “set up living
accommodations”).1
Because § 647(e) targets conduct beyond sleeping with
the “most rudimentary” bedding, Grants Pass, 72 F.4th
at 891 (simplified), the law does not trigger our precedent.
We should have dissolved the injunction as it pertains to
§ 647(e).

1
Contrary to the majority’s view, § 647(e) is very different than the law
enjoined in Martin. Boise’s law in Martin barred merely “sleeping in
any . . . public place.” 920 F.3d at 604. Section 647(e) requires much
more—lodging.
48 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

California Penal Code §§ 370, 372. Because California
Penal Code §§ 370 and 372 target obstruction of streets or
public health nuisances, they also go beyond what Martin
and Grants Pass protect.
Bans on the obstruction of streets and other public areas
fall outside the scope of Martin and Grants Pass. Sections
370 and 372 permit San Francisco police officers to make an
arrest when a person or the person’s belongings “obstruct[ a]
passageway such that a person using a wheelchair would be
unable to pass.” S.F. Police Dep’t Bull. A-19-080 (Apr. 16,
2019). The provision does not bar mere sleeping. Examples
of obstruction require much more. See, e.g., Hayman v.
Block, 222 Cal. Rptr. 293, 298 (Cal. Ct. App. 1986)
(prostitutes stopping roadway traffic to solicit); People v.
Horton, 87 Cal. Rptr. 818, 823 (Cal. App. Dep’t Super. Ct.
1970) (protestors blocking a roadway and stopping
vehicles); Curtis v. Kastner, 30 P.2d 26, 28 (Cal. 1934)
(rafter protruding at eye level and injuring jogger). As the
author of Martin emphasized, that opinion “clearly states
that it is not outlawing ordinances ‘barring the obstruction of
public rights of way.’” Martin, 920 F.3d at 589 (Berzon, J.,
concurring in the denial of rehearing en banc) (quoting
Martin, 902 F.3d at 1048 n.8).
And Martin and Grants Pass have nothing to say about
laws against public health nuisances. Sections 370 and 372
also cover “anything which . . . is injurious to health or is
indecent, or offensive to the senses.” People ex rel. Gallo v.
Acuna, 929 P.2d 596, 604 (Cal. 1997) (simplified). This
means, at the very least, that the action must endanger “the
safety and health of the public at large,” be “grossly
unseemly or offensive to manners or morals,” or involve
“nauseating and offensive” conduct. People v. McDonald,
40 Cal. Rptr. 3d 422, 434–35 (Cal. Ct. App. 2006)
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 49

(simplified). Nothing in our Eighth Amendment precedent
questions laws that protect the public from health and safety
dangers or indecency.
So obstructive actions or public nuisances that
contravene §§ 370 and 372 do not violate our precedent and
the district court was wrong to include these laws in the
injunction.
S.F. Police Code § 168. This leads us to Police Code
§ 168. It is the only ordinance here that prohibits sleeping,
lying, and sitting. At first blush, this is the only law that
could fall under Martin and Grants Pass. But it does not.
That’s because of two important limitations. First, it is
geographically limited. Its “prohibition applies only to
public sidewalks.” S.F. Police Code § 168(a). So it has no
effect in San Francisco’s “beaches, plazas, public parks,
public benches, and other common areas open to the public.”
Id. Homeless persons thus can choose to sleep outside at
these other locations.2
Second, it is temporally limited. It prevents sitting and
lying only in the morning until late evening from 7:00 a.m.
to 11:00 p.m. Id. § 168(b). Section 168 targets this period

2
The Coalition argues that San Francisco Park Code § 3.13 forbids
sleeping in the park from 8:00 p.m. to 8:00 a.m., and so homeless persons
could not sit or sleep in the City for at least four hours of the day (because
both parks and sidewalks would be closed to them). The Coalition is
wrong for several reasons. First, other public places, like beaches,
benches, and plazas, are available by law to sleep and sit during those
hours. Second, the district court found that there was no “record of
enforcement” of § 3.13 against homeless individuals who cannot obtain
shelter in San Francisco. That’s why the district court refused to enjoin
enforcement of that ordinance. Third, Martin and Grants Pass do not
establish a right to sleep in public at all hours of the day. See Martin,
920 F.3d at 617.
50 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

because “[p]ersons who sit or lie down on public sidewalks
during business hours threaten the safety of pedestrians,
especially the elderly, disabled, vision-impaired, and
children.” Id. § 168(a). Thus, § 168 leaves available
nighttime hours for homeless persons to sleep on public
sidewalks. This part-time prohibition is no universal bar and
does not implicate our Cruel and Unusual Punishments
Clause jurisprudence. That’s because the homeless have no
right to sleep in public “at any time.” Martin, 920 F.3d
at 617.
The district court abused its discretion to expand Grants
Pass and Martin to enjoin § 168.
S.F. Police Code § 169. This leaves Police Code § 169.
It is a civil law banning the placement of an “[e]ncampment”
on a “public sidewalk.” S.F. Police Code § 169(c).
“Encampment” means “a tent or any structure consisting of
any material with a top or roof or any other upper covering
or that is otherwise enclosed by sides that is of sufficient size
for a person to fit underneath or inside while sitting or lying
down.” Id. § 169(b)(1). The law also requires City officials
to offer housing or shelter before removing a person from an
Encampment. Id. § 169(d).
So § 169 falls entirely out of the Martin/Grants Pass
analysis for two reasons. First, it doesn’t apply to the
involuntarily homeless. See Martin, 920 F.3d at 617 & n.8
(holding does not cover those “who choose not to use”
offered shelter). Second, it forbids only tents and other
structures. See id. at 617 n.8. (holding does not apply to “the
erection of certain structures”); Grants Pass, 72 F.4th at 895
n.34 (bars on tents are permissible).
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 51

As this panel instructs in an accompanying
memorandum disposition, the district court must consider
vacating the injunction as it pertains to § 169.
***
The district court abused its discretion by improperly
expanding our cruel and unusual punishments jurisprudence
and fashioning a sweeping and unjustified preliminary
injunction. See Quinn v. Anvil Corp., 620 F.3d 1005, 1010
(9th Cir. 2010) (explaining that it is an abuse of discretion to
base an injunction on an erroneous legal standard). On that
basis alone, we should have vacated and remanded. No
preliminary injunction should have been issued. San
Francisco should have remained free to enforce its laws
promoting health and safety on its streets, sidewalks, and
public spaces.
C.
The District Court’s Sweeping Expansion Is Not the
Law of the Circuit
It is important to note—the district court’s sweeping
expansion of Martin and Grants Pass is not the law of our
circuit. Because the majority doesn’t reach the merits of any
of the district court’s rulings—instead holding that the City
waived its arguments—the district court’s decision should be
considered a one-off, non-binding anomaly. Indeed, I agree
with the majority that the district court here needs to
reconsider its rulings entirely based on San Francisco’s
arguments.
Even so, the majority is wrong about waiver. “As the
Supreme Court has made clear, it is claims that are deemed
waived or forfeited, not arguments.” United States v.
Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004) (citing
52 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO

Yee v. City of Escondido, 503 U.S. 519, 534 (1992)). San
Francisco can make any argument in support of its claims on
appeal—it is “not limited to the precise arguments [it] made
below.” Allen v. Santa Clara Cnty. Corr. Peace Officers
Ass’n, 38 F.4th 68, 71 (9th Cir. 2022) (simplified).
At the district court, San Francisco explained that
“[e]nforcing restrictions on occupying public property is
constitutional, so long as the individual has somewhere to
sleep.” They proceeded to litigate that concern on appeal—
that the district court was ignoring the express limitations of
Martin and Grants Pass. In its opening brief, San Francisco
emphasized that its laws do not violate our precedent
because they are geographically or temporally limited or
because they proscribe conduct beyond mere sleeping in
public. And contrary to the majority’s contention, none of
San Francisco’s arguments require factual development. We
must only read the State and local laws—something the
district court apparently failed to do.
Finally, even if San Francisco somehow waived its
arguments, “the rule of waiver is a discretionary one.” Ruiz
v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir.
2012) (simplified). Given the importance of addressing the
homelessness crisis, we should not have ignored the district
court’s erroneous application of our precedents. “[A]s
judges, our duty is to get the law right.” Ctr. for Investigative
Reporting v. DOJ, 14 F.4th 916, 943–44 (9th Cir. 2021)
(Bumatay, J., dissenting). As Justice Thurgood Marshall
once instructed, “[w]hen an issue or claim is properly before
the court, the court is not limited to the particular legal
theories advanced by the parties, but rather retains the
independent power to identify and apply the proper
construction of governing law.” Kamen v. Kemper Fin.
Sevs., Inc., 500 U.S. 90, 99 (1991). So we should have
 COAL. ON HOMELESSNESS V. CITY & CNTY. OF SAN FRANCISCO 53

reached these critical questions and vacated the district
court’s injunction.
III.
The district court improperly enjoined prohibitions on
more than just sitting, lying, and sleeping in public with
rudimentary bedding—the only conduct protected by Martin
and Grants Pass. Instead, the preliminary injunction here
covers laws forbidding lying on the sidewalk at certain
hours, preventing camping or erecting structures, and
banning the obstruction of parks, squares, streets, and
highways. The laws enjoined are not blanket bars on the
simple act of sleeping—they restrict activities in certain
ways, at certain times, and in certain places.
But it cannot be cruel and unusual to prohibit homeless
persons from sleeping, camping, and lodging wherever they
want, whenever they want. While they are entitled to the
utmost respect and compassion, homeless persons are not
immune from our laws. And San Francisco should be free
to address this pressing concern without judicial interference
premised on the most radical interpretation of our
Constitution. The district court’s injunction falls starkly
outside the original meaning of the Cruel and Unusual
Punishments Clause, disregards the long history of anti-
vagrancy laws, and violates even our own precedent. It
should be vacated immediately.
The majority rightfully doesn’t endorse the district
court’s power grab. But because the majority doesn’t go far
enough to vacate the injunction, I respectfully dissent.