Punishment clause governs which punishments are permitted. Not what conctan be prohibited. Second, n precedent supports the ninth circuit rule. Instead they misread robinson to bar any punishment for involuntary conduct lketo a status. But robinlls only that states cannot outlaw the status of drug addiction. It made clear they can phibit conduct like drug use could this court should not rewrite robinson six decades later thir the ninth circuits approachroven unworkable. The eighth amendment does not tell courts o is involuntarily homesswhat shelter is adequate, or wme, place and manner relations are allowed. T in 35 suits and countin federal courts are now deciding everything from the exact size of campsites to the adequacy of empty beds at specic shelters like the Gospel Rescue Mission rants pass. Ancies are struggling to apply arbitrary shifting stdards in the field. Thisourt should reverse and and the failed experiment which s eled the spread of encampments while harming those it purports to protect. I welcome the courts questions. Dyou consider these civil or criminal penalties . They are both. There is criminal trespass. Is that involved in this case . Yes. Have any of the parties hereby subject to criminal trpass . T are and yes, ey do apply here. They are for recidivist offenses. Which party has been held accountablfocriminal trespass . None of the individuals who are currently in the case. s of is involved in this case . For logan and johnson, it is a civil penalt is it the anticamping or yes, it is. Is th cil or criminal . The camping ordinance is civil and then for repeat offenders it is punishable by criminal offense. But we are not talking repeat offenders rit w . Correct. Have we ever applied the eighth amendnto civil penalts it will be forced to surreer its public spaces as it has been. Unfortunately beds are going unused. People a not getting the help they need. The city is under an injunction and unable toll rely on these basic ordinances. And they give no guidance on how they c nigate this very challenging area. The ninth circuit has effectively imposed a municipal code under the ninth circuit main rule to regulate what the city can do in its public spaces. Cannot just stop you moment . The gospel unused beds are listed at 100 and are thousands of homeless. There are as many as 600 and grants pass. But there are still less tha 100 beds. That is right. You are not asking us to overturn robinson, correct . We think robinson was wrongly extended but wdt need the court to hear. It pribs you criminalizing homelessness. So what you do is say only Homeless People who sleep outdoors will be arrested. That is the testimony of your chief of police. Two or three officers. Which is, if you rd e crime, it is only stopping you from slpi in public for the purpose of maintaining a tempory ace to live. And the Police Officers testified that that means that a stargazer wants to take a blanket or a sleeping bag out at night to wchhe stars and falls aslee y dont arrest them. You dont aesbabies who have blankets or em. You dont arrest people who are sleeping on the beach, as i tend to do if i have been there a while. You only arrest peop dont have a second home. Is that correct . Whot have a home. Announcer give me one example. Because your Police Officers could not. They explicitlsa if someone has another home has a home and is out there and hapns to fall asleep, they wont be arrested. Fall asleep with something them. Ms. Evangelis well, joint of a citation issued to a person with a home address. But, more importantly, i think what were tting at here is that these laws regulate conduct of everyone. Theres nothing in the law that criminalizes homelessness. I really want to Justice Sotomayor thats what thats what you s, t if i look at the record and see differently, its a different argument, isnt it . Ms. Evangelis grants pass policy actually very clearly sa tt being homeless is not a crime. And thats in justicsomayor well, i know thats what you say, but if yre enforcing it only against the homeless, i will suggest atyou look theres one brief let me see if i can find it that talks about this. At any rate, ill find it later and just mention it. The second thing i want to ask you is you seemed to start by saying that the eighth amendment is limited to forms of punishment and not to the nature of punisen the proportionality issue. There also is a number of amicus brief that lays out for us that from t mna carta through the founding, through state laws, through weems, which wasn 1910, through trop later in the century, tt roughout all of that, both the english, american coloesthis court has had some form of proportionality in eieighth amendment jurisprudence. Youre asking us to ignore all of that history. Evangelis no, were not, Justice Sotomayor. What we are saying is that this case doesnt implicate proportionality. Were not asking the court to take a position on whether its a proper inquiry under the eighth amendment. R example Justice Sotomayor oh, yes, s, you are, because youre saying that thething thats prohibited by the eighth amendment is the fm punishment, but, in those cases and in r story, we have said that certain punishments, trop, for examplt be done. Ms. Evangelis thats gh and the court has always looked at if a particulashment is considered too extreme or categorically so as in t dth penalty in some cases, the court looks atheer a lesser punishment would be acceptable. Again, its okg at punishment. And thats where the inquiry focuses. Here, only what what the respondents are asking this court to do is to extend robinson beyond Justice Sotomayor do you have hotels that are valuedt 0, 250 in your city . Angelis i i Justice Sotomayor just answ yes or no. Ms. Evangelis i dont i dont know. Justice sotomayor well, lets assume because, ev inew york city, which may be the most expensive city in the nation or close to it, there are hotels that are less than that or at that pri. If a homeless person had that kind of money, dont you think theyd stay in l . Evangelis so, Justice Sotomayor, the the difficulty here is that this hat the respondents are proposing rests on whether someones conduct is involuntary. Most importan here, were talking about conduct, so i want toabout how this is completely distinguishable from rob the point Justice Kagan so can i talk about that, ms. Capoor . So taking robinson as a given, you iminalize the status of homelessness . Msgelis well, i have a couple points to that. Ice kagan its just a simple question. Ms. Evangelis so robinson doesnt addrat and i think its completely distinguishable. So robinson was a Justice Kagan could you criminalize the status of homelessness . Ms. Evangelis well, i dont think that homelessness is a status like drug addiction, and robinson only stands f tt. Justice kagan well, homelessness is a status. Its the status of not having a hom ms. Evangelis i actually i disagree with that, Justice Kagan, because it is so fluid, its soifrent. People experiencing homelessness might be one day witho slter, the next day with. The federal definition contemplates various forms. Justice kagan at the period with which in the period where where you dont have a home and you are homeless, is that a status . Ms. Evangelis no. Justicn could you criminalize that . Ms. Evangelis no, its not. So robinson talked about Justice Kagan u couldnt just ms. Evangelis addiiolike a disease. Justice kan you you you could criminalize just homelessness . Ms. Evangelis so i want to say, first, a couple of things. So i think that for the the Justice Kagan i mea tts quite striking ms. Evangelis no, i dont. Justice kagan that you think that you c cminalize just homelessness. Ms. Evangelis no, wre not saying that homelessness is a status most importantly, i think the eighth amendment justice kan ell, youre not saying ms. Evangelis is t wng way to focus on this question. Justice kan ts really a simple question. Can you crize homelessness . And youre suggesting, yes, you cod. Ms. Evangelis no, we do not criminalize homelessssim not saying Justice Kagan could you criminalize homelessness . Not tell me what ydo, what you dont do. Could you . Ms. Evangelis so i thk ere would be due process problems and vagueness problems. I dont think theres an eighth amendment problem in the sense of robinson because that was a limited decisi wre the holding was solely about a diseasddiction. The court was very clear about distinguishing between addiction and possession or use. Justice jackson but, counsel ms. Evangelis and so Justice Kagan youre right t its a different status that was involved in robinson. Bu robinson made clear that there was a category of cases which were status offenses, which were different fromonct offenses. And when you started off here today, you saiwre just criminalizing conduct. So, to tell youheruth, i thought that this was going to be a quesonhere you would say no, of course, we cant criminaliz a status, but theres couc here. And then i was going to say what is theonct here . But you didnt say that. You saidouould criminalize even the status of homessss, and that suggests to me that that youre off on the wrong track in thinking about this issue. Ms. Evangelis so, Justice Kagan, i think the the point whe we are disagreeing here is really about whether the eighth amendment is the right framework for this discuio Justice Kagan well, the eighth amendment was the framework robinson. And taking robinson as a given, where robinson said the eighth amendment protects you against statusbased crimes ms. Evangelis i dont juickagan thats what the question is. Ms. Evangelis i dont think robinson extends that far. I think robinson itself was cabined and i think the marshall plural justice marshalls plurality in powell goes io discussion about this and how that was the right line. Justice kagan okay. What is the conduct here . Ms. Evangelis the conduct is camping, establishing a campsite. And its e me as in the federal regulations that the National Park serve lies on. Justice kagan so i dit think that that was the the conduct. I thought that the only conduct here wasleing outside with a blanket. Ms. Evangelis no, it is the nduct of establishing a campsite, which includes making a bed with bedding or other materials Justice Kagan well ms. Evangelis and the federal law is Justice Kagan a campsite ggts Something Different to people. It suggests a tent. Suggests a conglomeration of pele. You know, tent camps, if you will. But your ordinance does not just prohibit that. Your ordinance prohibits a Single Person who is homeless, so does not have another plactoleep, thats a status, i dont have another place to sleep, a Single Person sleeping instead in public with a blanket. Thatwhat i understand your statute to do. Is that not what your statute does ms. Evangelis the statute does not say anything about homelessness. Its a generally applicable law. One more it its very important that it apies to everyone Justice Kagan yeah, i i got that. Ms. Evges even people who are camping. Justice kagan but its a Single Person with a blanket. Ms. Evangelis and Justice Kagan you dont have to have a tent. You dont have to have a camp. Its a sing person with a blanket. Ms. Evangelis and sleeping in conduct csidered excuse me, sleeping in public is considered conduct. And this court this court in clark discussed that, that that is conduct. Also, the federal regulations ste kagan well, sleeping is ms. Evangelis arvery Justice Kagan a biological cessity. Its sort of like breathing. I mean, you could say breathing is conduct too, but, presumably, you would not think that its okay to criminalize breathing in public. Ms. Evangelis i would like to point to the federal regulations which i brought up. E kagan and for a homeless person who has no place to go, sleinin public is kind of like breathing in blic. Ms. Evangelis well, two pnt so, first, even the federal regulations prohibit even sleeping. They doneven require any materials, including but ot necessary under the federal regulation. So this is conducthais understood by jurisdictions nationwide and even the federal government to be conduct that is prohibited, and so i want to make that point. Justice kagan see, ill ms. Evangelis the second point juickagan ill tell you the truth, ms. Capoor. I think th ts is this is a superhard policy problem for all municipalities. And if you were to come in here and you were to say, you know, we need certain protections to keeou streets safe and we canha, you know, people sleeping anyplace that they want and we cant have, you know, tent ti cropping up, i mean, that would create one set of issues. But yourrdance goes way beyond that. Your ordinance says as to a person d i understand that you think its genellapplicable, but we only come up with this problem for a person who is homeless, who has the stusf homelessness, who has no other place to sleep, and your statute says that person cnotake himself and hielonly and, you know, cant take a blanket and sleep someplace witht beg crime. And and and thats, you know well,t just seems like robinson. It seems like youre criminalizing a status. Ms. Evangelis well,t not. And we agree with you that this is a very difficult policy question, and thas exactly Justice Kagan but that it isnt. Ms. Evangelis why the eighth amendment Justice Jackson can you answer why . Why is it not . Just i mean, Justice Kagan ha laid out one of the essential problems here, which that youre making a distinction between status and conduct. Okay. We see that. And you keep saying this is conduct. Can you explain why . Ms. Evangeli t actus reus element, thats exactly what was missing inson and thats what we have here. And thats why that law was so unique. Its a very peculiar Justice Jackson so it seems to me that robinson actually hus you and not helps you in the following sense. You know, seems both cruel and unusual to punish people for acts that constitute basic human needs. So, here, unlike in robinson, where, you know, you had at let the sort of disease state, drugs and and and the like, and potentially cuab acts that relate to that disease stat he, were talking about sleeping that uversal, that is a basic fctn. And so i guess what i dont understand is in thiciumstance why that particular state is being considered conduct for the purpose of of of punishment. Ms. Evangelis well, i linedrawing problems because, if you look at blocal necessities and what a person needs to do,ounow, the ninth circuits decisions in this area would alw Justice Jackson can i give you a hypothetical . Ms. Evangelis all sorts of behavior. Justicjason can i give you a hypothetical . Ms. Evangelis yes. Thanyo Justice Jackson okay. So suppose the relevant ordince prohibited eating on public property rather than sleeping or camping. Wre talking about eating. And the city, for very, you know, rational reaso, s determined that when people eat outdoors, it creates problems with trash and rodents and the like, and so it bans eating in Public Places and it punishes violators. No just as here, that seems generally fine because most people have restaurants that they can go to, most people have houses that they can eat in. But some people donhave that option. They have to eat in public because theyre unhoused and theyat afford to go to a restaurant. Sos is your argument the same result, no eighth amendment problem, no problem with the city banning eating plic, even though thats a Public Function i mean, excuse me, even though thats a human necessity that everyone engages in, and, really, whats happening is youre only pug certain people who cant afford to do it privately . Ms. Anlis well, it sounds like i i take for a moment youre not saying the law that the law draws lis any sort of irrational basis or any equaprection issue justicjason no. The city has a rational basis. Ms. Evangelis and Justice Jackson when people eat in public ms. Evangelis yes. Justice jackson the trash, there are rodents, there are problems. Soheity says what were going to do is were going to say no eating in public. What icoerned about from your argument is the suggestion you know, you call it conduc ippreciate that, but what we have happening in opatn is that people who are able to afford doing this thin thats a basic human need privately are ok. Eyre not punished for it. But people who dont havenyther option or opportunity except for to do it in public are the ones who are being targeted by this statute. Ms. Evangelis so two responses. Rs i think the eighth amendment is the wrong way to look at itsoone might have a due process challenge to a law like that if there is a deeply entrenched liberty interest. Justice jackson but punishment is happeninginy hypothetical, people are going to jail because theyating in public. Ms. Evangelis so, in that case Justice Jackson why is the eighth amendment not implicated . Ms. Evangelis in that case, you would haefense under oregon law, for example, a necessity defense. Justice gorsuch counsel, on on on ms. Evangelis and i want to get to that on the camping. Justice gorsuch counsel, im sorry to interrupt. Ms. Evangelis yes. Justice gorsuch but, on that point, i think were having some debate about where to lodge the defense, whether its under the eighth amendment or under the fourteenth amendment. But do you concede that there are instances in which a necessity defense, long recognized at common law, would apply to eatg public, sleeping in public, or other things le at . Ms. Evges yes, i agree. And, actually, here, in the case of camping, oregon law recognizes a necessity defense, sos a matter of state law and policy and, again, tha