Amicus Curiae Brief — City of Boise, Idaho, Petitioner v. Robert Martin, et al.

Supreme Court briefSep 25, 2019

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No. 19-247

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In The

Supreme Court of the United States

-----------------------------------------------------------------CITY OF BOISE,

Petitioner,

ROBERT MARTIN, ET AL.,

Respondents.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE CALIFORNIA

STATE SHERIFFS’ ASSOCIATION,

CALIFORNIA POLICE CHIEFS ASSOCIATION, AND

CALIFORNIA PEACE OFFICERS’ ASSOCIATION

IN SUPPORT OF PETITIONER

-----------------------------------------------------------------JAMES R. TOUCHSTONE

Counsel of Record

DENISE L. ROCAWICH

JONES & MAYER

3777 N. Harbor Blvd.

Fullerton, CA 92835

(714) 446-1400

jrt@jones-mayer.com

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF

AMICI CURIAE................................................

SUMMARY OF ARGUMENT ..............................

ARGUMENT ........................................................

Homelessness is a Critical Issue in California Policing ............................................

a. California Law Enforcement Agencies Receive Thousands of HomelessRelated Calls for Service .....................

b. Homelessness Has A Significant Impact on Crime Rates ............................

II.

Traditional Public Safety Concerns

Are Now Accompanied by Concerns of

Disease and Infection .......................... 12

This Court has Long Recognized the Need

for Workable Constitutional Standards Which

Martin Certainly Does not Provide ............. 17

CONCLUSION..................................................... 24

TABLE OF AUTHORITIES

Page

CASES

Brecht v. Abrahamson, 507 U.S. 619, 123

L. Ed. 2d 353, 113 S. Ct. 1710 (1993) .......................3

Christal v. Police Com. of San Francisco, 33 Cal.

App. 2d 564 (1939) ....................................................3

New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860

(1981) .......................................................................23

Smith v. Freland, 954 F.2d 343 (6th Cir. 1992) ..........18

Whalen v. Roe, 429 U.S. 589, 51 L. Ed. 2d 64, 97

S. Ct. 869 (1977) ........................................................3

STATUTES

California Penal Code section 13519.64 ....................11

CAL. PENAL CODE § 13519.64(a)..................................11

RULES AND REGULATIONS

SUP. CT. R. 37.6 ............................................................1

OTHER AUTHORITIES

Anthony Rivas, LAPD Officers Being Treated for

Typhoid Fever, CBS NEWS, May 30, 2019 available at https://abcnews.go.com/Health/lapdofficers-treated-typhoid-fever-typhus-symptoms/

story?id=63371616 ..................................................13

iii

TABLE OF AUTHORITIES – Continued

Page

Board of Supervisors of the City and County of

San Francisco, Performance Audit of Homeless

Services in San Francisco June 13, 2016 p. iii

available at http://hsh.sfgov.org/wp-content/

uploads/2016/06/Homeless-Services-in-SF-BLAReport-June-13-2016.pdf ..........................................9

California Dep’t of Health, “Hepatitis A Outbreak Associated with Drug Use and Homelessness in California, 2016-2018” available at

https://www.cdph.ca.gov/Programs/CID/DCDC/

CDPH%20Document%20Library/Immunization/

2016-18CAOutbreakAssociatedDrugUseHome

lessness.pdf..............................................................14

California Dep’t of Health, Human Flea-Borne

Typhus Cases in California Vector-Borne Disease Section (2001-2019) available at https://

www.cdph.ca.gov/Programs/CID/DCDC/CDPH

%20Document%20Library/Flea-borneTyphus

CaseCounts.pdf .......................................................13

Capt. [fmr Lt.] Jeffery Puckett, Orange County

Sheriff’s Department Internal Memo re Santa

Ana Riverbed, October 26, 2017 p. 12 available

at https://1ccaxf2hhhbh1jcwiktlicz7-wpengine.

netdna-ssl.com/wp-content/uploads/2017/10/

OCSD_Internal_Memo_SAR_Update.pdf ..... 12, 16, 21

City of Anaheim, Anaheim Homeless Census November 2016 p. 2 available at https://www.

anaheim.net/DocumentCenter/View/14920/

Anaheim-Homeless-Census-Results-and-Find

ings-3-21-17 .............................................................18

TABLE OF AUTHORITIES – Continued

Page

County of Orange, Building the System of Care

April 17, 2018 p. 40 available at http://cams.

ocgov.com/Web_Publisher_Sam_Special/Agenda

04_17_2018_files/images/APRIL%2017%20

2018%20PRESENTATION%20-%20FINAL%20%204.24.2018_9851680.PDF ..................................21

County of Santa Cruz, Hepatitis A Virus (HAV)

available at https://www.santacruzhealth.

org/HSAHome/HSADivisions/PublicHealth/

CommunicableDiseaseControl/HepatitisA.aspx .......15

Daniel Kim, ‘When You Gotta Go, What Do You

Do?’ Popular Beach Near Homeless Camps

Tests High for E. Coli, SACRAMENTO BEE, September 11, 2019 available at https://www.sac

bee.com/news/local/sacramento-tipping-point/

article234979472.html#storylink=cpy ...................16

Doug Smith, Q&A: Demystifying L.A.’s System

of Homeless Shelters, LOS ANGELES TIMES,

September 29, 2017 available at https://www.

latimes.com/local/lanow/la-me-shelter-q-a-2017

0929-htmlstory.html ...............................................20

Emily Zanotti, LAPD Officers Treated for Typhoid Fever, ‘Typhus-Like’ Symptoms After

Working Near Homeless Encampments, DAILY

WIRE, June 2, 2019 available at https://www.

dailywire.com/news/47935/lapd-officers-treatedtyphoid-fever-typhus-emily-zanotti ........................13

TABLE OF AUTHORITIES – Continued

Page

Erika Mahoney, Monterey County Declares Hepatitis A Outbreak Among Homeless, KQED

NEWS, February 7, 2018 available at https://

www.kqed.org/news/11648643/monterey-countydeclares-hepatitis-a-outbreak-among-home

less ...........................................................................15

League of California Cities, Homelessness Task

Force Report: Tools and Resources for Cities

and Counties February 2018 p. 2 available at

https://www.cacities.org/Resources-Documents/

Policy-Advocacy-Section/Hot-Issues/HomelessResources/League-CSAC-Task-Force/HTFHomeless-2018-Web.aspx .........................................8

Los Angeles Homeless Services Authority, 2017

HIC Data Summary available at https://www.

lahsa.org/documents?id=1562-2017-hic-datasummary.pdf&ref=hc ..............................................20

Los Angeles Homeless Services Authority, 20172018 Final Report available at https://www.

lahsa.org/dashboards?id=34-17-18-final-report .......20

Los Angeles Police Department, 2018 4th Quarter Report on Homelessness, January 29, 2019

p. 2 available at http://www.lapdpolicecom.lacity.

org/031219/ BPC_19-0073.pdf .................... 10, 11, 18

Madeleine Parker, Serious Crime in Santa Monica Rises 8.8 Percent, SANTA MONICA DAILY

PRESS, January 30, 2019 available at https://

www.smdp.com/serious-crime-in-santa-monicarises-8-8-percent/172447...........................................9

TABLE OF AUTHORITIES – Continued

Page

National Coalition for the Homeless, Vulnerable

to Hate: A Survey of Bias-Motivated Violence

Against People Experiencing Homelessness in

2016-2017 p. 41 available at https://national

homeless.org/wp-content/uploads/2019/01/hatecrimes-2016-17-final_for-web2.pdf .........................10

Sacramento Police Department, Homeless Response Metrics (2019) available at https://www.

cityofsacramento.org/Police/Resources/Homelessand-Mental-Health-Outreach/Homeless-Metrics .........8

San Diego County Health and Human Services

Agency, Hepatitis A Outbreak, available at

https://www.sandiegocounty.gov/content/sdc/

hhsa/programs/phs/community_epidemiology/

dc/Hepatitis_A/outbreak.html ................................14

San Diego Regional Task Force on the Homeless,

2017 Weallcount Annual Report available at

https://www.rtfhsd.org/wp-content/uploads/2017/

07/comp-report-final.pdf .........................................21

Theresa Clift and Michael Finch II, Police called

nearly 800 times to a Sacramento homeless

shelter. Will new shelters be safer?, SACRAMENTO BEE, September 11, 2019 available at

https://www.sacbee.com/news/local/homeless/

article234710487.html ..............................................9

vii

TABLE OF AUTHORITIES – Continued

Page

Theresa Walker, Thousands of Pounds of Human Waste, Close to 14,000 Hypodermic Needles Cleaned Out from Santa Ana River

Homeless Encampments, ORANGE COUNTY

www.ocregister.com/2018/03/08/thousands-ofpounds-of-human-waste-close-to-14000-hypo

dermic-needles-cleaned-out-from-santa-anariver-homeless-encampments/ ................................16

Tom Christensen, Local Public Health Emergency for Hepatitis A Outbreak Ratified by

Board of Supervisors, COUNTY NEWS CENTER,

September 6, 2017 available at https://www.

countynewscenter.com/local-public-healthemergency-for-hepatitis-a-outbreak-ratified-byboard-of-supervisors/...............................................14

U.S. Dept. of Housing and Urban Development,

2018 Continuum of Care Homeless Assistance

Programs Homeless Populations and Subpopulations – California January 24, 2018 available at https://files.hudexchange.info/reports/

published/CoC_PopSub_State_CA_2018.pdf ..... 7, 18

U.S. Dept. of Housing and Urban Development,

2018 Continuum of Care Homeless Assistance

Programs Homeless Populations and Subpopulations – Boise/Ada County January 31, 2018

available at https://files.hudexchange.info/

reports/published/CoC_PopSub_CoC_ID-5002018_ID_2018.pdf .....................................................7

viii

TABLE OF AUTHORITIES – Continued

Page

U.S. Dept. of Housing and Urban Development,

2018 Continuum of Care Homeless Assistance

Programs Homeless Populations and Subpopulations – California January 24, 2018 available at https://files.hudexchange.info/reports/

published/CoC_PopSub_CoC_CA-600-2018_CA_

2018.pdf .....................................................................3

United States Interagency Council on Homelessness, California Homeless Statistics available at https://www.usich.gov/homelessnessstatistics/ca ................................................................3

STATEMENT OF INTEREST OF

AMICI CURIAE

Amici Curiae are the California State Sheriffs’ Association (“CSSA”), the California Police Chiefs Association (“CPCA”) and the California Peace Officers’

Association (“CPOA”).1

CSSA is a non-profit professional organization

that represents each of the 58 California Sheriffs. It

was formed to allow the sharing of information and resources between sheriffs and departmental personnel

in order to allow for the general improvement of law

enforcement throughout the State of California. CPCA

represents virtually all of the more than 400 municipal

chiefs of police in California. CPCA seeks to promote

and advance the science and art of police administration and crime prevention, by developing and disseminating professional administrative practices for use in

the police profession. It also furthers police cooperation

and the exchange of information and experience

throughout California. Finally, CPOA represents more

than 35,000 peace officers, of all ranks, throughout the

State of California. CPOA provides professional development and training for peace officers, and reviews

and comments on legislation and other matters impacting law enforcement.

Pursuant to SUP. CT. R. 37.6, Amici affirm that no counsel

for a party authored this Brief in whole or in part and that no

person other than Amici, its members, or its counsel has made

any monetary contributions intended to fund the preparation or

submission of this Brief. Amici have received consent and timely

notification from all parties to the filing of this Brief.

Amici have identified this matter as one in which

their expertise may be of assistance to the Court and

wish to draw the Court’s attention to the potentially

sweeping operational impact of the Court’s decision on

local law enforcement agencies throughout the State.

Amici urge the Court to grant the Petition for Writ of

Certiorari because the issues presented will have a

profound impact on the members of each Association,

as well as on all the law enforcement agencies and

peace officers in the State of California, and the general public.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

Amici are familiar with the Petition filed by the

City of Boise and do not seek to duplicate the Petitioner’s arguments. Rather, Amici wish to discuss the

practical implications that the Ninth Circuit’s underlying decision is having, and will continue to have, on

law enforcement throughout the State of California.

Amici also wish to emphasize the exceptional public

importance of the questions presented by the Petition

from the perspective of those whose profession brings

them in contact with the homeless population on a

daily basis in the course of their duties as peace officers.

Local municipalities have the legal authority to

pass ordinances that regulate the health, safety and

welfare of their citizens. These municipalities also

have the expertise to determine how to best address

the difficult and sensitive issues raised by the increasing homeless populations in their jurisdictions. Indeed,

the States’ core police powers have always included authority to define criminal law and to protect the health,

safety, and welfare of their citizens. See Brecht v. Abrahamson, 507 U.S. 619, 635, 123 L. Ed. 2d 353, 113

S. Ct. 1710 (1993); see also Whalen v. Roe, 429 U.S. 589,

603, n. 30, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977).

The problems presented by the ever-increasing

homeless population and the concomitant proliferation

of homeless encampments have created a crisis of epic

proportions on the streets of cities across the United

States. With 129,972 individuals experiencing homelessness on any given day as of January 2018 – the

highest in the Nation – no state has felt the impact of

this crisis more severely than the State of California.2

And as first responders, no profession faces the crisis

in a more direct way on a daily basis than that of law

enforcement.

Police officers “are the guardians of the peace and

security of the community, and the efficiency of our

whole system, designed for the purpose of maintaining

law and order, depends upon the extent to which such

officers perform their duties . . . ”. Christal v. Police

United States Interagency Council on Homelessness, California Homeless Statistics available at https://www.usich.gov/

homelessness-statistics/ca; see also U.S. Dept. of Housing and Urban Development, 2018 Continuum of Care Homeless Assistance

Programs Homeless Populations and Subpopulations – California

January 24, 2018 available at https://files.hudexchange.info/

reports/published/CoC_PopSub_State_CA_2018.pdf.

Com. of San Francisco, 33 Cal. App. 2d 564, 567 (1939).

Indeed, the most basic function of law enforcement

agencies is to protect the safety of the public.

In order to carry out these duties, society has

granted peace officers great authority, including the

power to cite and arrest persons for violating the law.

This authority provided to peace officers, however, is

not without strict limitations designed to ensure that

peace officers do not abuse this authority. Courts are

constantly called upon to balance the immeasurable

value of effective law enforcement – to the individual

citizen and to society in general – against precious individual constitutional rights.

Prior to Martin, enforcement of generally applicable criminal laws was the province of local law enforcement agencies regardless of the “involuntariness” of

the conduct at issue. The expansive interpretation

given to the Eighth Amendment by the Ninth Circuit

impermissibly intrudes on core peace officer functions,

impairs law enforcement’s ability to protect public

safety and fails to provide law enforcement sufficient

direction or flexibility to make critical decisions regarding citing individuals for violations of basic health

and safety laws. In short, the Martin decision leaves

law enforcement officers in a very difficult position in

their struggle to ensure the health and public safety

for all persons whom they serve.

For law enforcement, the Ninth Circuit’s lack of

analysis, lack of clarity on the legal standard and failure to explain what is meant by basic terms within the

decision such as “shelter,” “availability” and “involuntary” present more than an interesting cerebral exercise. Instead, for peace officers on the street, who are

making thousands of contacts each month with the

homeless population on their city’s streets, the underdeveloped and confusing decision provides law enforcement agencies with sparse direction as to the scope of

their authority in those day-to-day policing contacts or

with respect to how they must act to avoid future liability. In sum, Martin imposes an amorphous standard

that is impossible for officers, or courts, to apply in a

fair and consistent manner. In addition, the Martin decision significantly burdens peace officers in their daily

duties and creates substantial civil liability exposure

for those officers.

Amici’s members need this Court’s guidance

concerning a clear and consistent interpretation of the

liability standard governing law enforcement interactions with the homeless population, and the scope of

laws that permissibly may be enforced as to this population. Amici believe the resolution of the questions

raised by this case are extremely important and submit this Brief seeking guidance out of concern that the

laws fostered to ensure the health and safety of both

the homeless population and the public at large should

not be compromised by vague and impracticable constitutional standards. Amici and their members further have an interest in ensuring that law enforcement

agencies and peace officers have appropriate flexibility

to make critical decisions regarding citations and arrests for violations of basic health and safety laws

without facing the specter of monetary damages, attorneys’ fees awards, and defense costs that are associated with civil lawsuits.

Unfortunately, there is no easy answer to the problem of homelessness and there is no single tool that

will solve this crisis. Amici wish to make it very clear

that they, by no means, argue for the criminalization of

the homeless. Law enforcement agencies in California

remain steadfast in their commitment to improving

the lives of persons experiencing homelessness, by

partnering with social service agencies and community

groups to address homelessness, while maintaining

cities and counties that are safe, clean and accessible

to all. To successfully reduce homelessness and homeless encampments, California law enforcement must

continue to be innovative and must be able to employ

each and every tool at their disposal. Enforcement of

the type of ordinances at issue in Martin is simply one

tool, and a vital one, that should be available to law

enforcement. Accordingly, Amici respectfully support

the City of Boise’s Petition for Writ of Certiorari.

------------------------------------------------------------------

ARGUMENT

Homelessness is a Critical Issue in California Policing

The disparate practical impact on California of the

Martin decision, arising out of Boise, Idaho, is staggering. In 2018, Boise, and the county in which it sits, had

117 unsheltered homeless individuals.3 That same

year, Los Angeles and the county in which it sits, had

36,461 unsheltered individuals – over 300 times more

than Boise.4 To say that the homelessness problems in

different cities require different approaches, strategies

and tools is a gross understatement. Preventing the

use of a tool by the Boise Police Department simply

does not have the same effect as preventing the use of

the same tool by the Los Angeles Police Department.

Additionally, while the open questions raised by Martin may prove difficult to answer in Boise – such as how

to calculate the total homeless population day-to-day –

those questions become impossible to answer in cities

such as Los Angeles, San Francisco, and San Diego

whose homeless populations are so large that counts

take days to complete and are admittedly still not 100

percent accurate. In short, the practical consequences

of the Martin decision on California law enforcement

are nothing short of dire.

U.S. Dept. of Housing and Urban Development, 2018 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations – Boise/Ada County January 31, 2018

available at https://files.hudexchange.info/reports/published/ CoC_

PopSub_CoC_ID-500-2018_ID_2018.pdf.

U.S. Dept. of Housing and Urban Development, 2018 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations – Los Angeles City & County January 24,

2018 available at https://files.hudexchange.info/reports/published/

CoC_PopSub_CoC_CA-600-2018_CA_2018.pdf.

a. California Law Enforcement Agencies

Receive Thousands of Homeless-Related

Calls for Service

Without question, homelessness presents one of

the most significant challenges to California law enforcement today especially with the explosion of homeless encampments in cities throughout the State.

Though the numbers are staggering in the major California cities mentioned above, “[r]ural and suburban

parts of the state are equally impacted by this crisis –

the largest percentage increases since 2007 have been

in the far north (330 percent), El Dorado County (151

percent), Sonoma County (121 percent), Monterey and

San Benito counties (115 percent), Yuba and Sutter

counties (94 percent) and Placer and Nevada counties

(74 percent).”5

California law enforcement agencies are inundated by calls and/or complaints related to homeless

persons and homeless encampments. For example,

Sacramento Police Department received 3,416 homeless-related calls for service in April 2019, 3,286 calls

in March 2019, and 3,357 calls in February 2019.6

When a new shelter opened in that City, the

League of California Cities, Homelessness Task Force Report: Tools and Resources for Cities and Counties February 2018

p. 2 available at https://www.cacities.org/Resources-Documents/

Policy-Advocacy-Section/Hot-Issues/Homeless-Resources/LeagueCSAC-Task-Force/HTF-Homeless-2018-Web.aspx.

Sacramento Police Department, Homeless Response Metrics (2019) available at https://www.cityofsacramento.org/Police/

Resources/Homeless-and-Mental-Health-Outreach/HomelessMetrics.

Sacramento Police received nearly 800 calls made from

in and around the shelter alone during the 17 months

the facility was open.7 In 2018, the Santa Monica Police

Department reported that roughly 30 percent of the

Department’s calls for service were homeless-related.8

And, in 2015, San Francisco Police Department officers

were dispatched to a staggering 57,249 incidents initiated by calls from the public about homeless-related

quality of life legal violations.9 As such, it is no exaggeration to say that California peace officers spent a

substantial portion of their day-to-day policing dealing

with homeless-related issues.

b. Homelessness Has A Significant Impact

on Crime Rates

In addition to simply dealing with an overwhelming volume of calls for service, the homelessness problem in California impacts the very heart of law

enforcement – crime rates. Homelessness-related

Theresa Clift and Michael Finch II, Police called nearly 800

times to a Sacramento homeless shelter. Will new shelters be

safer?, SACRAMENTO BEE, September 11, 2019 available at https://

www.sacbee.com/news/ local/homeless/article234710487.html.

Madeleine Parker, Serious Crime in Santa Monica Rises

8.8 Percent, SANTA MONICA DAILY PRESS, January 30, 2019 available at https://www.smdp.com/serious-crime-in-santa-monica-rises8-8-percent/172447.

Board of Supervisors of the City and County of San Francisco, Performance Audit of Homeless Services in San Francisco

June 13, 2016 p. iii available at http://hsh.sfgov.org/wp-content/

uploads/2016/06/Homeless-Services-in-SF-BLA-Report-June-132016.pdf.

crime rates are significant both in terms of crimes

against the homeless and also crimes committed by the

homeless. In Los Angeles in 2017, there were a total of

4,400 “homeless involved” violent and property crimes,

defined as crimes involving either a homeless suspect,

homeless victim or both.10 In 2018, there were a total

of 6,671 homeless involved violent and property crimes

– reflecting a 52 percent increase in those crimes. Id.

This increase is particularly disturbing in light of the

fact that there was a 2 percent decrease in overall

citywide crime in Los Angeles between 2017 and 2018.

Persons experiencing homelessness are amongst

the most vulnerable persons in society. In 2017 in Los

Angeles, 1,762 persons experiencing homelessness

were reported to be victims of a violent or property

crime. In 2018 there were 2,965 such victims reflecting

a stunning 68 percent increase in crimes against

homeless victims. Id. The most significant changes in

crimes with a homeless victim between 2017 and 2018

were robbery, with an 89 percent increase, larceny,

with an 86 percent increase, and rape with a 71 percent increase. Id.

Statewide, the National Coalition for the Homeless found that in 2016 and 2017, there were 26 lethal

attacks against the homeless.11 Indeed, the problem of

Los Angeles Police Department, 2018 4th Quarter Report

on Homelessness, January 29, 2019 p. 2 available at http://www.

lapdpolicecom.lacity.org/031219/ BPC_19-0073.pdf.

National Coalition for the Homeless, Vulnerable to Hate:

A Survey of Bias-Motivated Violence Against People Experiencing

Homelessness in 2016-2017 p. 41 available at https://national

crime against the homeless was severe enough to be

addressed by the California Legislature. In enacting

California Penal Code section 13519.64, requiring the

Commission on Peace Officer Standards and Training

to develop training for all law enforcement agencies on

crimes against homeless persons, and how to deal effectively and humanely with homeless persons, the

California Legislature found “that California has had

serious and unaddressed problems of crime against

homeless persons, including homeless persons with

disabilities.” CAL. PENAL CODE § 13519.64(a).

However, crimes against homeless persons are not

the only homeless-related crime statistics of concern to

law enforcement in California. In Los Angeles in 2017,

there were 3,166 violent or property crimes in which a

homeless person was the suspect.12 In 2018, that crime

figure increased to 4,849 violent or property crimes, reflecting a 53 percent increase in crimes in which a

homeless person was the suspect. The most significant

changes in crimes with a homeless suspect between

2017 and 2018 were rape, with a 78 percent increase,

robbery, with a 64 percent increase and aggravated assault, with a 56 percent increase. Id. In 2017, the Orange County Sheriff ’s Department conducted 1118

consensual contacts in the Santa Ana Riverbed, the

County’s largest homeless encampment, and found

homeless.org/wp-content/uploads/2019/01/hate-crimes-2016-17final_for-web2.pdf.

Los Angeles Police Department, 2018 4th Quarter Report

on Homelessness, January 29, 2019 p. 2 available at http://www.

lapdpolicecom.lacity.org/031219/ BPC_19-0073.pdf.

that 85 percent of all those contacted had a prior criminal history.13

In short, with the significant increase in the homeless population and encampments in recent years has

come an alarming increase in crimes, both against the

homeless and by the homeless. Peace officers are

charged with the safety and security of the public, and

it is the duty of a peace officer to investigate crimes

and to confront dangerous situations. This, often times

unenviable job, is becoming increasingly more difficult

and dangerous due to the epidemic of homelessness

and the growing restrictions on law enforcement actions, such as those in Martin, which fail to take into

account the reality of the nature of the situation facing

officers.

c. Traditional Public Safety Concerns Are

Now Accompanied by Concerns of Disease and Infection

Homeless encampments raise a number of public

health concerns related to waste, sanitation and disease transmission. Homeless persons, like everyone

else, generate waste associated with their daily activities of food preparation and consumption, shelter

building and maintenance and storage of their

Capt. [fmr Lt.] Jeffery Puckett, Orange County Sheriff ’s

Department Internal Memo re Santa Ana Riverbed, October 26,

2017 p. 12 available at https://1ccaxf2hhhbh1jcwiktlicz7-wpengine.

netdna-ssl.com/wp-content/uploads/2017/10/OCSD_Internal_Memo_

SAR_Update.pdf.

possessions. Without any place or method of proper

storage or disposal of this waste, the resulting waste

becomes a food source for rodents, breeding grounds for

pathogens, fuel for fires, and unattractive nuisances affecting community standards. Further, the opportunity

for the spread of communicable diseases is increased

in homeless encampments, which typically lack basic

sanitation services and waste collection. As a result,

some diseases, such as hepatitis A and typhus, are

more likely to occur and spread in homeless populations.

Unfortunately, California law enforcement officers

charged with policing in and near these encampments

are feeling the full brunt of these dangers. Typhus is a

bacterial infection that is more common in overcrowded and trash-filled areas that attract rats. In California, there were 167 cases of typhus reported from

January 1, 2018 through February 1, 2019, whereas

there were only 13 cases during the same time span of

2013.14 This year, several Los Angeles Police Officers

working near the same homeless encampment have either contracted typhoid fever and/or shown typhuslike symptoms.15

California Dep’t of Health, Human Flea-Borne Typhus

Cases in California Vector-Borne Disease Section (2001-2019)

available at https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH

%20Document%20Library/Flea-borneTyphusCaseCounts.pdf.

See Emily Zanotti, LAPD Officers Treated for Typhoid Fever, ‘Typhus-Like’ Symptoms After Working Near Homeless Encampments, DAILY WIRE, June 2, 2019 available at https://www.

dailywire.com/news/47935/lapd-officers-treated-typhoid-fevertyphus-emily-zanotti; see also Anthony Rivas, LAPD Officers

Additionally, between 2016 and 2018, California

experienced a hepatitis A outbreak. Hepatitis A is

caused by a virus usually transmitted when people

come in contact with the feces of infected people. The

majority of people who have been infected with hepatitis A virus in this outbreak were people experiencing

homelessness and/or using illicit drugs in settings of

limited sanitation.16 Statewide, there were 98 cases of

hepatitis A in 2017 associated with homelessness and

178 in 2018 and 2019 – an 81% increase. Id. Some areas of California where hit particularly hard.

On September 1, 2017, San Diego County declared

a state of emergency due to that County’s hepatitis A

outbreak associated with the homeless population.17

The San Diego County Department of Sanitation was

brought in to assist with trash removal, and to begin a

program to spray bleach on surfaces that were

Being Treated for Typhoid Fever, CBS NEWS, May 30, 2019 available at https://abcnews.go.com/Health/lapd-officers-treated-typhoidfever-typhus-symptoms/story?id=63371616.

California Dep’t of Health, “Hepatitis A Outbreak Associated with Drug Use and Homelessness in California, 2016-2018”

available at https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH

%20Document%20Library/Immunization/2016-18CAOutbreak

AssociatedDrugUse Homelessness.pdf.

Tom Christensen, Local Public Health Emergency for Hepatitis A Outbreak Ratified by Board of Supervisors, COUNTY NEWS

CENTER, September 6, 2017 available at https://www.county

newscenter.com/local-public-health-emergency-for-hepatitis-aoutbreak-ratified-by-board-of-supervisors/; see also San Diego

County Health and Human Services Agency, Hepatitis A Outbreak, available at https://www.sandiego county.gov/content/sdc/

hhsa/programs/phs/community_epidemiology/dc/Hepatitis_A/

outbreak.html.

potentially affected by this outbreak. Id. As of January

9, 2018, there were more than 577 confirmed hepatitis

A cases, 20 deaths, and 396 hospitalizations in San Diego County. Id. The City of Santa Cruz saw a similar

outbreak beginning in April 2017, with 76 confirmed

cases of hepatitis A.18 Monterey County followed with

a hepatitis A outbreak among its homeless population

in February 2018.19

These diseases spread quickly and widely among

people living on the streets, promoted by sidewalks

contaminated with human feces, crowded living conditions, weakened immune systems, and limited access

to health care. Unfortunately, the abundance of calls

for service along with the necessity to investigate the

litany of homeless-related crime discussed above, bring

law enforcement in constant contact with these dangerous conditions. As though facing deadly threats

posed by some criminal suspects wasn’t enough, our officers now have diseases to contend with.

The homeless encampments have other consequences that may not be as obvious. For example, encampments have been appearing in parks and in

conservation areas for protected species. Park and wetland habitats are being compromised by the homeless

County of Santa Cruz, Hepatitis A Virus (HAV) available

at https://www.santacruzhealth.org/HSAHome/HSADivisions/

PublicHealth/CommunicableDiseaseControl/HepatitisA.aspx.

Erika Mahoney, Monterey County Declares Hepatitis A

Outbreak Among Homeless, KQED NEWS, February 7, 2018 available at https://www.kqed.org/news/11648643/monterey-countydeclares-hepatitis-a-outbreak-among-homeless.

persons who construct shelters there and use the natural water for bathing and toileting. One example of

this is occurring at the popular Tiscornia Beach on the

American River in Sacramento. Tiscornia Beach is

downstream from homeless encampments that aren’t

served by restrooms and suffered from “alarmingly

high levels of E. coli recently found in water tests.”20

Ironically, the magnitude of danger posed by

these encampments becomes most evident when the

encampments are cleared and cleaned. The Santa Ana

Riverbed encampment, mentioned above, was the

largest encampment in Orange County with somewhere between 700 to 1,000 homeless persons residing

there.21 During the clean up of that encampment, incredibly dangerous fire hazards were observed. Id. Additionally, and nearly beyond belief, 404 tons of debris

were removed from the site, 13,950 hypodermic needles were recovered and disposed of and 5,279 pounds

Daniel Kim, ‘When You Gotta Go, What Do You Do?’ Popular Beach Near Homeless Camps Tests High for E. Coli, SACRAMENTO BEE, September 11, 2019 available at https://www.sacbee.

com/news/local/sacramento-tipping-point/article234979472.html#

storylink=cpy.

Capt. [fmr Lt.] Jeffery Puckett, Orange County Sheriff ’s

Department Internal Memo re Santa Ana Riverbed, October 26,

2017 p. 12 available at https://1ccaxf2hhhbh1jcwiktlicz7-wpengine.

netdna-ssl.com/wp-content/uploads/2017/10/OCSD_Internal_Memo_

SAR_Update.pdf; Theresa Walker, Thousands of Pounds of

Human Waste, Close to 14,000 Hypodermic Needles Cleaned Out

from Santa Ana River Homeless Encampments, ORANGE COUNTY

2018/03/08/thousands-of-pounds-of-human-waste-close-to-14000hypodermic-needles-cleaned-out-from-santa-ana-river-homelessencampments/.

of hazardous waste, such as human waste, propane,

pesticides and other materials, was removed. Id.

Prior to the Santa Ana Riverbed clean up, the Orange County Sheriff ’s Department routinely policed

inside the encampment both for outreach and enforcement purposes. Accordingly, those peace officers were

exposed to this breeding ground for disease and placed

in close proximity to tens of thousands of needles and

hazardous waste. Encampments simply cannot be permitted to exist and grow, and most certainly should not

be constitutionally protected to the effect of tying the

hands of law enforcement to deal with these massive

threats to the health and safety of the homeless population and public in general. However, homeless advocates are relying upon the Martin decision to assert

that law enforcement agencies are forbidden from

ameliorating these types of encampments.

II.

This Court has Long Recognized the Need for

Workable Constitutional Standards Which

Martin Certainly Does not Provide

While cities and counties tend to think about

homelessness globally in terms of how to reduce the

number of unsheltered homeless on their streets, law

enforcement has more immediate concerns. As noted

above, a substantial portion of peace officer time is devoted to homeless issues. The restrictions placed upon

officers must allow them to protect their own safety

and the safety of the public and cannot prevent them

from effectively carrying out their duties. “We must

never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world

that policemen face every day.” Smith v. Freland, 954

F.2d 343, 347 (6th Cir. 1992). The Martin decision does

exactly that – it strips law enforcement of a critical enforcement tool without any consideration of the practical effects on everyday policing.

First and foremost, the Martin decision fails to account for the makeup of the homeless population that

peace officers contend with. There are 31,168 homeless

persons in California who are severely mentally ill and

22,475 who have chronic substance abuse problems.22

The City of Anaheim receives over 1,000 emergency

mental health calls per year for unsheltered homeless

individuals, resulting in more than 300 involuntary

holds.23 And, in just a three month time span in 2017,

the Los Angeles Police Department’s Mental Health

Evaluation Unit received 1,559 mental health calls for

service regarding homeless persons.24 Martin’s assumed vision of law enforcement easily conversing

U.S. Dept. of Housing and Urban Development, 2018 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations – California January 24, 2018 available

at https://files.hudexchange.info/reports/published/CoC_PopSub_

State_CA_2018.pdf.

City of Anaheim, Anaheim Homeless Census November

2016 p. 2 available at https://www.anaheim.net/DocumentCenter/

View/14920/Anaheim-Homeless-Census-Results-and-Findings-321-17.

Los Angeles Police Department, 2018 4th Quarter Report

on Homelessness January 29, 2019 available at http://www.lapd

policecom.lacity.org/031219/BPC_19-0073.pdf.

with homeless persons, determining their needs and

offering available shelter is not reflected in reality

when dealing with mentally ill and drug-addicted persons.

Furthermore, Amici here are familiar with the

Briefs filed by Amici Curiae, California Cities and

Counties and by Cities in Orange County, and wholeheartedly agree with the issues raised therein. Specifically, that the Martin decision conjures numerous

practical questions affecting law enforcement. These

questions include: 1) what is meant by “shelter”; 2) at

what time is availability of shelter to be determined;

3) how can one effectively calculate the total homeless

population in any given jurisdiction on a day-to-day

basis; 4) how can one effectively assess the available

number of shelter beds; 5) what is meant by “available”; 6) and, most importantly, what other laws are

called into question beyond anti-camping and disorderly conduct ordinances? If the issues raised by other

Amici are confounding to the cities and counties, which

Amici here agree they are, they are infinitely more confounding from the perspective of the peace officer on

the street attempting to cope with the thousands of

calls for service discussed above while the Martin decision fails to provide them with clear guidance concerning which ordinances they can and cannot enforce.

For an officer on the street trying to comply with

Martin, the practical hurdles are absurd. What beds

can an officer consider when determining whether a

bed is “available”? If the person the officer proposes to

cite for camping is on Skid Row in downtown Los

Angeles, does an open bed ten miles away, but still in

Los Angeles County suffice as “available”? Five miles

away? Two miles away? More importantly, once an officer determines what geographical location he or she

must search for shelter availability, exactly how is he

or she supposed to accomplish that task?

Amici are not aware of any comprehensive list, in

any city or county, of shelters and their various restrictions. For example, in Los Angeles County there

are hundreds of shelters with thousands of beds of different types with different restrictions.25 Many of the

beds are only available seasonally in the winter. Id.

Many shelters do not permit men, or pets, or persons

with convictions for sex offenses. Id. How is an officer

standing on the street supposed to determine, not only

the current occupancy rate, but also be aware of

whether the person he or she is speaking to is even eligible for an empty bed if found?

A 2017 San Diego Regional Task Force report

shows a growing number of people are choosing a tent

Doug Smith, Q&A: Demystifying L.A.’s System of Homeless

Shelters, LOS ANGELES TIMES, September 29, 2017 available at

https://www.latimes.com/local/lanow/la-me-shelter-q-a-20170929htmlstory.html; see also Los Angeles Homeless Services Authority,

2017-2018 Final Report available at https://www.lahsa.org/dash

boards?id=34-17-18-final-report; see also Los Angeles Homeless

Services Authority, 2017 HIC Data Summary available at https://

www.lahsa.org/documents?id=1562-2017-hic-data-summary.pdf&

ref=hc.

over a shelter bed.26 In fact, the number of people staying in shelters dropped 6 percent over last year despite

vacancies in shelters. Some of the reasons for this phenomenon include strict shelter rules, such as not being

able to bring pets or grocery carts filled with belongings. Id. Is a bed “available” under Martin if sleeping

in it requires a person to abandon their dog or belongings? Indeed, prior to the Santa Ana Riverbed clean up

efforts discussed above, less than 1 percent of homeless

persons residing in that encampment accepted supportive services offered by law enforcement and social

services personnel.27 It wasn’t until the Riverbed was

cleaned up and enforcement via arrest for return

threatened that that percentage of homeless persons

in that area accepting supportive services increased to

almost 50 percent.28 This statistic demonstrates concretely that enforcement of laws regulating trespass

and anti-camping can be a vital tool in assisting homeless persons by fostering acceptance of supportive services.

San Diego Regional Task Force on the Homeless, 2017

Weallcount Annual Report available at https://www.rtfhsd.org/

wp-content/uploads/2017/07/comp-report-final.pdf.

Capt. [fmr Lt.] Jeffery Puckett, Orange County Sheriff ’s

Department Internal Memo re Santa Ana Riverbed, October 26,

2017 p. 12 available at https://1ccaxf2hhhbh1jcwiktlicz7-wpengine.

netdna-ssl.com/wp-content/uploads/2017/10/OCSD_Internal_Memo_

SAR_Update.pdf.

County of Orange, Building the System of Care April 17,

2018 p. 40 available at http://cams.ocgov.com/Web_Publisher_Sam_

Special/Agenda04_17_2018_files/images/APRIL%2017%202018%20

PRESENTATION%20-%20FINAL%20-%204.24.2018_9851680.

PDF.

Another primary concern of Amici regarding peace

officers on the street consists of the lack of clarity in

the Martin decision with respect to which laws peace

officers can continue to enforce, and which laws are

now constitutionally infirm. The Ninth Circuit’s

decision exempts individuals from obeying a generally

applicable law because the conduct at issue is purportedly “involuntary” or life-sustaining. A host of conduct

could be interpreted as “involuntary” when applied to

those living on the street. Is law enforcement to permit

public urination and defecation because such acts are

necessary acts of the human condition? What about

public nudity? Bathing and changing clothes are also

necessary acts of the human condition? Since eating is

certainly a necessity, must law enforcement permit

open fires or unsafe use of propane stoves? If a person

has no means to afford food but must eat, must law

enforcement look the other way if they steal food? Due

to the lack of clarity as to what the terms “involuntary”

and “life-sustaining” mean, Amici fear the Martin decision will result in the failure to enforce a multitude

of laws regulating public health and safety due to the

threat of incurring civil liability for violating the

Eighth Amendment.

Amici respectfully submit that the constitutional

prohibition imposed by the Martin decision cannot be

delineated in a manner that would be workable for application by peace officers on the street. This Court has

made it abundantly clear that peace officers require

clear rules of straightforward application that they can

feasibly and fairly apply under the stressful conditions

of day-to-day policing.

In the context of the Fourth Amendment, this

Court explained in New York v. Belton, 453 U.S. 454,

101 S. Ct. 2860 (1981):

Fourth Amendment doctrine . . . is primarily intended to regulate the police in their

day-to-day activities and thus ought to be expressed in terms that are readily applicable

by the police in the context of the law enforcement activities in which they are necessarily

engaged. A highly sophisticated set of rules,

qualified by all sorts of ifs, ands, and buts and

requiring the drawing of subtle nuances and

hairline distinctions, may be the sort of heady

stuff upon which the facile minds of lawyers

and judges eagerly feed, but they may be ‘literally impossible of application by the officer

in the field.’ Belton, 453 U.S. at 458 quoting

LaFave, ‘Case-by-Case Adjudication’ Versus

‘Standardized Procedures,’ 1974 Sup. Ct. Rev.,

at 141.

The same logic should hold true here with respect to

the Eighth Amendment. The categorical constitutional

prohibition proposed by Martin is unworkable and

poses insurmountable obstacles to legitimate law enforcement activities. The vagueness of the decision’s

parameters and expectations placed upon law enforcement fails to come even remotely close to the need for

clarity noted in Belton. In short, the decision is nearly

impossible for officers to employ in practice and does

nothing but create confusion and tie the hands of

officers who are already facing difficult challenges related to homelessness every day. Martin has, and will

continue to have, dire practical consequences upon

California law enforcement that should not be permitted to stand.

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, Amici respectfully request that the Court grant the City of Boise’s Petition

for Writ of Certiorari.

Respectfully submitted,

JAMES R. TOUCHSTONE

DENISE L. ROCAWICH

JONES & MAYER

3777 N. Harbor Blvd.

Fullerton, CA 92835

(714) 446-1400

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.