FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GLORIA JOHNSON; JOHN LOGAN, 

individuals, on behalf of themselves 

and all others similarly situated, 

Plaintiffs-Appellees, 

 v. 

CITY OF GRANTS PASS, 

Defendant-Appellant.

Nos. 20-35752 

20-35881 

D.C. No. 1:18-

cv-01823-CL 

ORDER AND 

AMENDED 

OPINION

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 “antisleeping” 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 anticamping 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 anticamping 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 anticamping 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 McKinneyVento Act, 42 U.S.C. § 11434a(2), the federal law regarding the right of 

homeless children to a public education. For example, the McKinneyVento 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 “anticamping” 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, leanto, 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 anticamping 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 threejudge 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 anticamping 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 anticamping 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 antisleeping 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 Johnson15 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 anticamping 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 representative17—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 anticamping 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 anticamping ordinance violated the Eighth Amendment while the antisleeping 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 anticamping 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 anticamping 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 casespecific 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 anticamping 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 publiclyowned 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 preferto 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 preenforcement 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 anticamping ordinance, GPMC § 5.61.030, and the parks anticamping 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 anticamping 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 anticamping 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 criminaltrespass 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-ornothing 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 liabilitydetermining individualized issue in the class definition, there is no failsafe 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 anticamping 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 nonprosecution, 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 longterm 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-canbelethal/#:~: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 anticamping 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 antisleeping ordinance did “not criminalize involuntary 

behavior” because the plaintiff could “comply with the [antisleeping] 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 antisleeping 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 publicsleeping, 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 “judgesin 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 parkexclusion 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-AHARPart-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/randsurvey-finds-homelessness-up-18-in-l-a-hot-spots-where-the-officialcount-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/homelessnessand-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-cvrtmsummary-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-countyhomeless-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-outbreak20181011-story.html; Anna Gorman & Kaiser Health News, Medieval 

Diseases Are Infecting California’s Homeless, Atlantic, 

https://www.theatlantic.com/health/archive/2019/03/typhustuberculosis-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 publiccamping 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/meetthe-press/meetthepressblog/california-poll-homelessness-urgent-issuestate-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/homelesshousing-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/homelesshousing/story/2021-12-01/la-voters-are-frustrated-impatient-overpersistent-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 lifesustaining 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 offlimits 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 classwide 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 unavoidableconsequence-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-podcastcecil-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-mayorbass-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 publiccamping 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.” WalMart 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-PHXGMS, 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 “lifesustaining 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 classcertification 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.