UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GLORIA JOHNSON; JOHN LOGAN, Nos. 20-35752 individuals, on behalf of themselves 20-35881 and all others similarly situated, D.C. No. 1:18- Plaintiffs-Appellees, cv-01823-CL

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

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

Argued and Submitted December 6, 2021 San Francisco, California

Filed September 28, 2022 Amended July 5, 2023

Before: Ronald M. Gould and Daniel P. Collins, Circuit Judges, and Roslyn O. Silver, * District Judge. * The Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation. 2 JOHNSON V. CITY OF GRANTS PASS

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

SUMMARY **

Civil Rights / Homelessness

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

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

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