Robert Martin; Lawrence Lee Smith; Robert Anderson; Janet F. Bell; Pamela S. Hawkes; and Basil E. Humphrey, Plaintiffs-Appellants,
City of Boise, Defendant-Appellee.
and Submitted July 13, 2017 Portland, Oregon
from the United States District Court for the District of
Idaho D.C. No. 1:09-cv-00540-REB Ronald E. Bush, Chief
Magistrate Judge, Presiding
Michael E. Bern (argued) and Kimberly Leefatt, Latham &
Watkins LLP, Washington, D.C.; Howard A. Belodoff, Idaho
Legal Aid Services Inc., Boise, Idaho; Eric Tars, National
Law Center on Homelessness & Poverty, Washington, D.C.;
J. Hall (argued), Michael W. Moore, and Steven R. Kraft,
Moore Elia Kraft & Hall LLP, Boise, Idaho; Scott B. Muir,
Deputy City Attorney; Robert B. Luce, City Attorney; City
Attorney's Office, Boise, Idaho; for Defendant-Appellee.
Before: Marsha S. Berzon, Paul J. Watford, and John B. Owens,
AND AMENDED OPINION
Concurrence in Order by Judge Berzon; Dissent to Order by
Judge Milan D. Smith, Jr.; Dissent to Order by Judge Bennett;
Opinion by Judge Berzon; Partial Concurrence and Partial
Dissent by Judge Owens
panel amended its opinion filed September 4, 2018, and
reported at 902 F.3d 1031, denied a petition for panel
rehearing, denied a petition for rehearing en banc on behalf
of the court, and ordered that no further petitions shall be
amended opinion, the panel affirmed in part and reversed in
part the district court's summary judgment in favor of
the City of Boise in an action brought by six current or
formerly homeless City of Boise residents who alleged that
their citations under the City's Camping and Disorderly
Conduct Ordinances violated the Eighth Amendment's
prohibition on cruel and unusual punishment.
sought damages for the alleged violations under 42 U.S.C.
§ 1983. Two plaintiffs also sought prospective
declaratory and injunctive relief precluding future
enforcement of the ordinances. In 2014, after this litigation
began, the ordinances were amended to prohibit their
enforcement against any homeless person on public property on
any night when no shelter had an available overnight space.
panel first held that two plaintiffs had standing to pursue
prospective relief because they demonstrated a genuine issue
of material fact as to whether they faced a credible risk of
prosecution on a night when they had been denied access to
the City's shelters. The panel noted that although the
2014 amendment precluded the City from enforcing the
ordinances when shelters were full, individuals could still
be turned away for reasons other than shelter capacity, such
as for exceeding the shelter's stay limits, or for
failing to take part in a shelter's mandatory religious
panel held that although the doctrine set forth in Heck
v. Humphrey, 512 U.S. 477 (1994), and its progeny
precluded most - but not all - of the plaintiffs'
requests for retrospective relief, the doctrine had no
application to plaintiffs' request for an injunction
enjoining prospective enforcement of the ordinances.
to the merits, the panel held that the Cruel and Unusual
Punishments Clause of the Eighth Amendment precluded the
enforcement of a statute prohibiting sleeping outside against
homeless individuals with no access to alternative shelter.
The panel held that, as long as there is no option of
sleeping indoors, the government cannot criminalize indigent,
homeless people for sleeping outdoors, on public property, on
the false premise they had a choice in the matter.
in part and dissenting in part, Judge Owens disagreed with
the majority's opinion that Heck v. Humphrey did
not bar plaintiffs' claim for declaratory and injunctive
relief. Judge Owens stated that a declaration that the city
ordinances are unconstitutional and an injunction against
their future enforcement would necessarily demonstrate the
invalidity of plaintiffs' prior convictions. Judge Owens
otherwise joined the majority in full.
in the denial of rehearing en banc, Judge Berzon stated that
on the merits, the panel's opinion was limited and held
only that municipal ordinances that criminalize sleeping,
sitting, or lying in all public spaces, when
no alternative sleeping space is available, violate
the Eighth Amendment. Judge Berzon further stated that a
photograph featured in Judge M. Smith's dissent from the
denial of rehearing en banc, depicting tents on a Los Angeles
public sidewalk, was not part of the record, was unrelated,
predated the panel's decision and did not serve to
illustrate a concrete effect of the panel's holding.
Judge Berzon stated that what the pre-Martin
photograph did demonstrate was that the ordinances
criminalizing sleeping in public places were never a viable
solution to the homelessness problem.
from the denial of rehearing en banc, Judge M. Smith, joined
by Judges Callahan, Bea, Ikuta, Bennett and R. Nelson, stated
that the panel severely misconstrued three areas of binding
Supreme Court precedent, and that the panel's opinion
created several splits with other appellate courts. Judge M.
Smith further stated that the panel's holding has already
begun wreaking havoc on local governments, residents, and
businesses throughout the circuit. Judge M. Smith stated that
the panel's reasoning will soon prevent local governments
from enforcing a host of other public health and safety laws,
such as those prohibiting public defecation and urination,
and that the panel's opinion shackles the hands of public
officials trying to redress the serious societal concern of
from the denial of rehearing en banc, Judge Bennett, joined
by Judges Bea, Ikuta, R. Nelson, and joined by Judge M. Smith
as to Part II, stated that the panel's decision, which
allows pre-conviction Eighth Amendment challenges, is wholly
inconsistent with the text and tradition of the Eighth
Opinion filed September 4, 2018, and reported at 902 F.3d
1031, is hereby amended. The amended opinion will be filed
concurrently with this order.
panel has unanimously voted to deny the petition for panel
rehearing. 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. The matter failed to receive a
majority of votes of the nonrecused active judges in favor of
en banc consideration. Fed. R. App. P. 35. The petition for
panel rehearing and the petition for rehearing en banc are
petitions for rehearing or rehearing en banc will not be
entertained in this case.
BERZON, Circuit Judge, concurring in the denial of rehearing
strongly disfavor this circuit's innovation in en banc
procedure-ubiquitous dissents in the denial of rehearing en
banc, sometimes accompanied by concurrences in the denial of
rehearing en banc. As I have previously explained, dissents
in the denial of rehearing en banc, in particular, often
engage in a "distorted presentation of the issues in the
case, creating the impression of rampant error in the
original panel opinion although a majority-often a decisive
majority-of the active members of the court . . . perceived
no error." Defs. of Wildlife Ctr. for Biological
Diversity v. EPA, 450 F.3d 394, 402 (9th Cir. 2006)
(Berzon, J., concurring in denial of rehearing en banc);
see also Marsha S. Berzon, Dissent,
"Dissentals," and Decision Making, 100 Calif.
L. Rev. 1479 (2012). Often times, the dramatic tone of these
dissents leads them to read more like petitions for writ of
certiorari on steroids, rather than reasoned judicial
my distaste for these separate writings, I have, on occasion,
written concurrences in the denial of rehearing en banc. On
those rare occasions, I have addressed arguments raised for
the first time during the en banc process, corrected
misrepresentations, or highlighted important facets of the
case that had yet to be discussed.
case serves as one of the few occasions in which I feel
compelled to write a brief concurrence. I will not address
the dissents' challenges to the Heck v.
Humphrey, 512 U.S. 477 (1994), and Eighth Amendment
rulings of Martin v. City of Boise, 902 F.3d 1031
(9th Cir. 2018), as the opinion sufficiently rebuts those
erroneous arguments. I write only to raise two points.
the City of Boise did not initially seek en banc
reconsideration of the Eighth Amendment holding. When this
court solicited the parties' positions as to whether the
Eighth Amendment holding merits en banc review, the
City's initial submission, before mildly supporting en
banc reconsideration, was that the opinion is quite
"narrow" and its "interpretation of the
[C]onstitution raises little actual conflict with Boise's
Ordinances or [their] enforcement." And the City noted
that it viewed prosecution of homeless individuals for
sleeping outside as a "last resort," not as a
principal weapon in reducing homelessness and its impact on
City is quite right about the limited nature of the opinion.
On the merits, the opinion holds only that municipal
ordinances that criminalize sleeping, sitting, or lying in
all public spaces, when no alternative
sleeping space is available, violate the Eighth Amendment.
Martin, 902 F.3d at 1035. Nothing in the opinion
reaches beyond criminalizing the biologically essential need
to sleep when there is no available shelter.
Judge M. Smith's dissent features an unattributed color
photograph of "a Los Angeles public sidewalk." The
photograph depicts several tents lining a street and is
presumably designed to demonstrate the purported negative
impact of Martin. But the photograph fails to
fulfill its intended purpose for several reasons.
starters, the picture is not in the record of this case and
is thus inappropriately included in the dissent. It is not
the practice of this circuit to include outside-the-record
photographs in judicial opinions, especially when such
photographs are entirely unrelated to the case. And in this
instance, the photograph is entirely unrelated. It depicts a
sidewalk in Los Angeles, not a location in the City of Boise,
the actual municipality at issue. Nor can the photograph be
said to illuminate the impact of Martin within this
circuit, as it predates our decision and was likely taken in
even putting aside the use of a pre-Martin,
outside-the-record photograph from another municipality, the
photograph does not serve to illustrate a concrete effect of
Martin's holding. The opinion clearly states
that it is not outlawing ordinances "barring the
obstruction of public rights of way or the erection of
certain structures," such as tents, id. at 1048
n.8, and that the holding "in no way dictate[s] to the
City that it must 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 1048 (quoting Jones v. City of Los
Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006)).
the pre-Martin photograph does demonstrate
is that the ordinances criminalizing sleeping in public
places were never a viable solution to the homelessness
problem. People with no place to live will sleep outside if
they have no alternative. Taking them to jail for a few days
is both unconstitutional, for the reasons discussed in the
opinion, and, in all likelihood, pointless.
distressing homelessness problem-distressing to the people
with nowhere to live as well as to the rest of society-has
grown into a crisis for many reasons, among them the cost of
housing, the drying up of affordable care for people with
mental illness, and the failure to provide adequate treatment
for drug addiction. See, e.g., U.S. Interagency
Council on Homelessness, Homelessness in America: Focus
on Individual Adults 5-8 (2018),
crisis continued to burgeon while ordinances forbidding
sleeping in public were on the books and sometimes enforced.
There is no reason to believe that it has grown, and is
likely to grow larger, because Martin held it
unconstitutional to criminalize simply sleeping
somewhere in public if one has nowhere else to do
foregoing reasons, I concur in the denial of rehearing en
SMITH, Circuit Judge, with whom CALLAHAN, BEA, IKUTA,
BENNETT, and R. NELSON, Circuit Judges, join, dissenting from
the denial of rehearing en banc:
misguided ruling, a three-judge panel of our court badly
misconstrued not one or two, but three areas of binding
Supreme Court precedent, and crafted a holding that has begun
wreaking havoc on local governments, residents, and
businesses throughout our circuit. Under the panel's
decision, local governments are forbidden from enforcing laws
restricting public sleeping and camping unless they provide
shelter for every homeless individual within their
jurisdictions. Moreover, the panel's reasoning will soon
prevent local governments from enforcing a host of other
public health and safety laws, such as those prohibiting
public defecation and urination. Perhaps most unfortunately,
the panel's opinion shackles the hands of public
officials trying to redress the serious societal concern of
respectfully dissent from our court's refusal to correct
this holding by rehearing the case en banc.
most harmful aspect of the panel's opinion is its
misreading of Eighth Amendment precedent. My colleagues
cobble together disparate portions of a fragmented Supreme
Court opinion to hold that "an ordinance violates the
Eighth Amendment insofar as it imposes criminal sanctions
against homeless individuals for sleeping outdoors, on public
property, when no alternative shelter is available to
them." Martin v. City of Boise, 902 F.3d 1031,
1035 (9th Cir. 2018). That holding is legally and practically
ill-conceived, and conflicts with the reasoning of every
other appellate court that has considered the issue.
panel struggles to paint its holding as a faithful
interpretation of the Supreme Court's fragmented opinion
in Powell v. Texas, 392 U.S. 514 (1968). It fails.
understand Powell, we must begin with the
Court's decision in Robinson v. California, 370
U.S. 660 (1962). There, the Court addressed a statute that
made it a "criminal offense for a person to 'be
addicted to the use of narcotics.'"
Robinson, 370 U.S. at 660 (quoting Cal. Health &
Safety Code § 11721). The statute allowed defendants to
be convicted so long as they were drug addicts, regardless of
whether they actually used or possessed drugs. Id.
at 665. The Court struck down the statute under the Eighth
Amendment, reasoning that because "narcotic addiction is
an illness . . . which may be contracted innocently or
involuntarily . . . a state law which imprisons a person thus
afflicted as criminal, even though he has never touched any
narcotic drug" violates the Eighth Amendment.
Id. at 667.
years later, in Powell, the Court addressed the
scope of its holding in Robinson. Powell
concerned the constitutionality of a Texas law that
criminalized public drunkenness. Powell, 392 U.S. at
516. As the panel's opinion acknowledges, there was no
majority in Powell. The four Justices in the
plurality interpreted the decision in Robinson as
standing for the limited proposition that the government
could not criminalize one's status. Id. at 534.
They held that because the Texas statute criminalized conduct
rather than alcoholism, the law was constitutional.
Powell, 392 U.S. at 532.
four dissenting Justices in Powell read
Robinson more broadly: They believed that
"criminal penalties may not be inflicted upon a person
for being in a condition he is powerless to change."
Id. at 567 (Fortas, J., dissenting). Although the
statute in Powell differed from that in
Robinson by covering involuntary conduct, the
dissent found the same constitutional defect present in both
cases. Id. at 567-68.
White concurred in the judgment. He upheld the
defendant's conviction because Powell had not made a
showing that he was unable to stay off the streets on the
night he was arrested. Id. at 552-53 (White, J.,
concurring in the result). He wrote that it was
"unnecessary to pursue at this point the further
definition of the circumstances or the state of intoxication
which might bar conviction of a chronic alcoholic for being
drunk in a public place." Id. at 553.
panel contends that because Justice White concurred in the
judgment alone, the views of the dissenting Justices
constitute the holding of Powell. Martin,
902 F.3d at 1048. That tenuous reasoning-which
metamorphosizes the Powell dissent into the majority
Powell was a 4-1-4 decision, the Supreme Court's
decision in Marks v. United States guides our
analysis. 430 U.S. 188 (1977). There, the Court held 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.'" Id.
at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169
n.15 (1976) (plurality opinion)) (emphasis added). When
Marks is applied to Powell, the holding is
clear: The defendant's conviction was constitutional
because it involved the commission of an act. Nothing more,
hardly a radical proposition. I am not alone in recognizing
that "there is definitely no Supreme Court holding"
prohibiting the criminalization of involuntary conduct.
United States v. Moore, 486 F.2d 1139, 1150 (D.C.
Cir. 1973) (en banc). Indeed, in the years since
Powell was decided, courts-including our own-have
routinely upheld state laws that criminalized acts that were
allegedly compelled or involuntary. See, e.g.,
United States v. Stenson, 475 Fed.Appx. 630, 631
(7th Cir. 2012) (holding that it was constitutional for the
defendant to be punished for violating the terms of his
parole by consuming alcohol because he "was not punished
for his status as an alcoholic but for his conduct");
Joshua v. Adams, 231 Fed.Appx. 592, 594 (9th Cir.
2007) ("Joshua also contends that the state court
ignored his mental illness [schizophrenia], which rendered
him unable to control his behavior, and his sentence was
actually a penalty for his illness . . . . This contention is
without merit because, in contrast to Robinson,
where a statute specifically criminalized addiction, Joshua
was convicted of a criminal offense separate and distinct
from his 'status' as a schizophrenic.");
United States v. Benefield, 889 F.2d 1061, 1064
(11th Cir. 1989) ("The considerations that make any
incarceration unconstitutional when a statute punishes a
defendant for his status are not applicable when the
government seeks to punish a person's
sure, Marks is controversial. Last term, the Court
agreed to consider whether to abandon the rule Marks
established (but ultimately resolved the case on other
grounds and found it "unnecessary to consider . . . the
proper application of Marks"). Hughes v.
United States, 138 S.Ct. 1765, 1772 (2018). At oral
argument, the Justices criticized the logical subset rule
established by Marks for elevating the outlier views
of concurring Justices to precedential status. The Court also
acknowledged that lower courts have inconsistently
interpreted the holdings of fractured decisions under
criticisms, however, were based on the assumption that
Marks means what it says and says what it means:
Only the views of the Justices concurring in the judgment may
be considered in construing the Court's holding.
Marks, 430 U.S. at 193. The Justices did not even
think to consider that Marks allows dissenting
Justices to create the Court's holding. As a
Marks scholar has observed, such a method of vote
counting "would paradoxically create a precedent that
contradicted the judgment in that very
case." And yet the panel's opinion flouts
that common sense rule to extract from Powell a
holding that does not exist.
the panel really does is engage in a predictive model of
precedent. The panel opinion implies that if a case like
Powell were to arise again, a majority of the Court
would hold that the criminalization of involuntary conduct
violates the Eighth Amendment. Utilizing such reasoning, the
panel borrows the Justices' robes and adopts that holding
on their behalf.
Court has repeatedly discouraged us from making such
predictions when construing precedent. See Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989). And, for good reason. Predictions about how Justices
will rule rest on unwarranted speculation about what goes on
in their minds. Such amateur fortunetelling also precludes us
from considering new insights on the issues-difficult as they
may be in the case of 4-1-4 decisions like
Powell-that have arisen since the Court's
fragmented opinion. See E.I. du Pont de Nemours & Co.
v. Train, 430 U.S. 112, 135 n.26 (1977) (noting
"the wisdom of allowing difficult issues to mature
through full consideration by the courts of appeals").
short, predictions about how the Justices will rule ought not
to create precedent. The panel's Eighth Amendment holding
lacks any support in Robinson or Powell.
panel's opinion also conflicts with the reasoning
underlying the decisions of other appellate courts.
California Supreme Court, in Tobe v. City of Santa
Ana, rejected the plaintiffs' Eighth Amendment
challenge to a city ordinance that banned public camping. 892
P.2d 1145 (1995). The court reached that conclusion despite
evidence that, on any given night, at least 2, 500 homeless
persons in the city did not have shelter beds available to
them. Id. at 1152. The court sensibly reasoned that
because Powell was a fragmented opinion, it did not
create precedent on "the question of whether certain
conduct cannot constitutionally be punished because it is, in
some sense, 'involuntary' or 'occasioned by a
compulsion.'" Id. at 1166 (quoting
Powell, 392 U.S. at 533). Our panel-bound by the
same Supreme Court precedent-invalidates identical California
ordinances previously upheld by the California Supreme Court.
Both courts cannot be correct.
California Supreme Court acknowledged that homelessness is a
serious societal problem. It explained, however, that:
Many of those issues are the result of legislative policy
decisions. The arguments of many amici curiae regarding the
apparently intractable problem of homelessness and the impact
of the Santa Ana ordinance on various groups of homeless
persons (e.g., teenagers, families with children, and the
mentally ill) should be addressed to the Legislature and the
Orange County Board of Supervisors, not the judiciary.
Neither the criminal justice system nor the judiciary is
equipped to resolve chronic social problems, but
criminalizing conduct that is a product of those problems is
not for that reason constitutionally impermissible.
Id. at 1157 n.12. By creating new constitutional
rights out of whole cloth, my well-meaning, but unelected,
colleagues improperly inject themselves into the role of
reasoning of our panel decision also conflicts with
precedents of the Fourth and Eleventh Circuits. In
Manning v. Caldwell, the Fourth Circuit held that a
Virginia statute that criminalized the possession of alcohol
did not violate the Eighth Amendment when it punished the
involuntary actions of homeless alcoholics. 900 F.3d 139, 153
(4th Cir. 2018), reh'g en banc granted 741
Fed.Appx. 937 (4th Cir. 2018).The court rejected the argument
that Justice White's opinion in Powell
"requires this court to hold that Virginia's
statutory scheme imposes cruel and unusual punishment because
it criminalizes [plaintiffs'] status as homeless
alcoholics." Id. at 145. The court found that
the statute passed constitutional muster because "it is
the act of possessing alcohol-not the status of being an
alcoholic-that gives rise to criminal sanctions."
Id. at 147.
Ordinances at issue in this case are no different: They do
not criminalize the status of homelessness, but only the act
of camping on public land or occupying public places without
permission. Martin, 902 F.3d at 1035. The Fourth
Circuit correctly recognized that these kinds of laws do not
run afoul of Robinson and Powell.
Eleventh Circuit has agreed. In Joel v. City of
Orlando, the court held that a city ordinance
prohibiting sleeping on public property was constitutional.
232 F.3d 1353, 1362 (11th Cir. 2000). The court rejected the
plaintiffs' Eighth Amendment challenge because the
ordinance "targets conduct, and does not provide
criminal punishment based on a person's status."
Id. The court prudently concluded that "[t]he
City is constitutionally allowed to regulate where
'camping' occurs." Id.
ought to have adopted the sound reasoning of these other
courts. By holding that Boise's enforcement of its
Ordinances violates the Eighth Amendment, our panel has
needlessly created a split in authority on this
would think our panel's legally incorrect decision would
at least foster the common good. Nothing could be further
from the truth. The panel's decision generates dire
practical consequences for the hundreds of local governments
within our jurisdiction, and for the millions of people that
panel opinion masquerades its decision as a narrow one by
representing that it "in no way dictate[s] to the City
that it must 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." Martin,
902 F.3d at 1048 (quoting Jones v. City of Los
Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006)).
excerpt, however, glosses over the decision's actual
holding: "We hold only that . . . as long as there is no
option of sleeping indoors, the government cannot criminalize
indigent, homeless people for sleeping outdoors, on public
property." Id. Such a holding leaves cities
with a Hobson's choice: They must either undertake an
overwhelming financial responsibility to provide housing for
or count the number of homeless individuals within their
jurisdiction every night, or abandon enforcement of a host of
laws regulating public health and safety. The Constitution
has no such requirement.
* * *
the panel's decision, local governments can enforce
certain of their public health and safety laws only when
homeless individuals have the choice to sleep indoors. That
inevitably leads to the question of how local officials ought
to know whether that option exists.
number of homeless individuals within a municipality on any
given night is not automatically reported and updated in real
time. Instead, volunteers or government employees must
painstakingly tally the number of homeless individuals block
by block, alley by alley, doorway by doorway. Given the daily
fluctuations in the homeless population, the panel's
opinion would require this labor-intensive task be done every
single day. Yet in massive cities such as Los Angeles, that
is simply impossible. Even when thousands of volunteers
devote dozens of hours to such "a herculean task,"
it takes three days to finish counting-and even then
"not everybody really gets counted." Lest one think
Los Angeles is unique, our circuit is home to many of the
largest homeless populations nationwide.
cities do manage to cobble together the resources for such a
system, what happens if officials (much less volunteers) miss
a homeless individual during their daily count and police
issue citations under the false impression that the number of
shelter beds exceeds the number of homeless people that
night? According to the panel's opinion, that city has
violated the Eighth Amendment, thereby potentially leading to
lawsuits for significant monetary damages and other relief.
what if local governments (understandably) lack the resources
necessary for such a monumental task? They have no
choice but to stop enforcing laws that prohibit public
sleeping and camping. Accordingly, our panel's decision
effectively allows homeless individuals to sleep and live
wherever they wish on most public property. Without an
absolute confidence that they can house every homeless
individual, city officials will be powerless to assist
residents lodging valid complaints about the health and
safety of their neighborhoods.
the panel's actual holding wasn't concerning enough,
the logic of the panel's opinion reaches even further in
scope. The opinion reasons that because "resisting the
need to . . . engage in  life-sustaining activities is
impossible," punishing the homeless for engaging in
those actions in public violates the Eighth Amendment.
Martin, 902 F.3d at 1048. What else is a
life-sustaining activity? Surely bodily functions. By holding
that the Eighth Amendment proscribes the criminalization of
involuntary conduct, the panel's decision will inevitably
result in the striking down of laws that prohibit public
defecation and urination. The panel's reasoning also
casts doubt on public safety laws restricting drug
paraphernalia, for the use of hypodermic needles and the like
is no less involuntary for the homeless suffering from the
scourge of addiction than is their sleeping in public.
It is a
timeless adage that states have a "universally
acknowledged power and duty to enact and enforce all such
laws . . . as may rightly be deemed necessary or expedient
for the safety, health, morals, comfort and welfare of its
people." Knoxville Iron Co. v. Harbison, 183
U.S. 13, 20(1901) (internal quotations omitted). I fear that
the panel's decision will prohibit local governments from
fulfilling their duty to enforce an array of public health
and safety laws. Halting enforcement of such laws will
potentially wreak havoc on our communities. As we have
already begun to witness, our neighborhoods will soon feature
"[t]ents . . . equipped with mini ...