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

No. 19-247

In the Supreme Court of the United States

__________________

CITY OF BOISE, IDAHO,

Petitioner,

v.

ROBERT MARTIN, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

__________________

AMICUS CURIAE BRIEF OF THE INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION, NATIONAL

LEAGUE OF CITIES, NATIONAL ASSOCIATION OF

COUNTIES, INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, WASHINGTON STATE

ASSOCIATION OF MUNICIPAL ATTORNEYS,

WASHINGTON ASSOCIATION OF SHERIFFS AND

POLICE CHIEFS, AND WASHINGTON STATE SHERIFFS

ASSOCIATION IN SUPPORT OF PETITIONER

__________________

RICHARD DOYLE

City Attorney

NORA FRIMANN

Assistant City Attorney

KATHRYN J. ZOGLIN

Senior Deputy City Attorney

Counsel of Record

MAREN J. CLOUSE

Senior Deputy City Attorney

Office of the City Attorney

200 East Santa Clara Street, 16th Floor

San José, California 95113-1905

(408) 535-1900

cao.main@sanjoseca.gov

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. Review Should Be Granted Because the Ninth

Circuit Improperly Expands the Reach of the

Eighth Amendment and Impinges on the Broad

Police Powers of Local Governments . . . . . . . . . . 5

A. The Martin Court Improperly Extends the

Eighth Amendment . . . . . . . . . . . . . . . . . . . . . 5

B. Martin Hampers Local Governments’ Ability

to Protect Their Communities . . . . . . . . . . . . 7

1. Spokane, Washington . . . . . . . . . . . . . . . . 8

2. San José, California . . . . . . . . . . . . . . . . . 11

3. Spokane Valley, Washington . . . . . . . . . . 14

4. Olympia, Washington . . . . . . . . . . . . . . . 15

II. Martin Sows Uncertainty for Local Governments

and Is Unworkable . . . . . . . . . . . . . . . . . . . . . . . 17

A. Martin Introduces Undefined Standards into

its Eighth Amendment Analysis. . . . . . . . . . 17

B. Martin’s Articulated Standards are

Unworkable as a Practical Matter . . . . . . . . 18

ii

III.

Martin’s Construction of Status, as Opposed

to Conduct, Leads to Untenable Results . . . 22

IV.

Responses to the Intractable Challenges of

Homelessness Are Best Addressed by

Policymakers . . . . . . . . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

TABLE OF AUTHORITIES

CASES

Brogan v. United States,

522 U.S. 398 (1998). . . . . . . . . . . . . . . . . . . . . . . 25

Day-Brite Lighting Inc. v. State of Missouri,

342 U.S. 421 (1952). . . . . . . . . . . . . . . . . . . . 24, 25

District of Columbia v. Brooke,

214 U.S. 138 (1909). . . . . . . . . . . . . . . . . . . . . . . . 7

Douglas Heay, et al., v. City of Olympia,

Thurston County Superior Court

No. 18-2-06080-34 . . . . . . . . . . . . . . . . . . . . . . . . 17

Eubank v. City of Richmond,

226 U.S. 137 (1912). . . . . . . . . . . . . . . . . . . . . . . . 7

Gonzales v. Oregon,

546 U.S. 243 (2006). . . . . . . . . . . . . . . . . . . . . . . . 8

Ingraham v. Wright,

430 U.S. 651 (1977). . . . . . . . . . . . . . . . . . . . . . 5, 6

Jones v. City of Los Angeles,

444 F.3d 118 (9th Cir. 2006), vacated,

505 F.3d 1006 (9th Cir. 2007). . . . . . . . . . . . . 6, 22

Kovacs v. Cooper,

336 U.S. 77 (1949). . . . . . . . . . . . . . . . . . . . . . . . . 7

Martin v. City of Boise,

920 F.3d 584 (9th Cir. 2019). . . . . . . . . . . . passim

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932). . . . . . . . . . . . . . . . . . . . . . . 25

iv

Orange County Catholic Worker, et al. v. County of

Orange, U.S. District Court Case

No. 8:18:cv-00155-DOC-JDE (C.D. Cal.) . . . . . . 21

Powell v. Texas,

392 U.S. 514 (1968). . . . . . . . . . . . . . . . . . 6, 23, 24

Robinson v. California,

370 U.S. 660 (1962). . . . . . . . . . . . . . . . . . . . . . . . 6

San Francisco Baykeeper v. City of San José,

U.S. District Court Case No. 15-CV-00642-BLF

(N.D. Calif.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Sligh v. Kirkwood,

237 U.S. 52 (1915). . . . . . . . . . . . . . . . . . . . . . . . . 7

Tenn. Wine & Spirits Retailers Ass’n v. Thomas,

139 S. Ct. 2449, 204 L. Ed. 2d 801 (2019) . . . . . 25

Tobe v. City of Santa Ana,

9 Cal.4th 1069 (1995) . . . . . . . . . . . . . . . . . . 24, 25

Vannucci v. County of Sonoma,

U.S. District Court, Case No. 18-cv-01955 VC

(N.D. Cal.) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

CONSTITUTION

U.S. Const. amend. VIII. . . . . . . . . . . . . . . . . . passim

CODES

Olympia, Wash., Code § 9.16.180 . . . . . . . . . . . . . . 16

Olympia, Wash., Code § 12.74.010 . . . . . . . . . . . . . 15

San José, Cal., Code § 10.20.150 . . . . . . . . . . . . . . . 12

v

Spokane, Wash., Code §§ 12.02.1000, et seq. . . . . . 10

Spokane, Wash., Code § 12.02.1010(D) . . . . . . . . . . . 8

OTHER AUTHORITIES

Annual Homeless Report & Homeless Emergency

Assistance Program (Oct. 22, 2018),

http://www.sanjoseca.gov/documentcenter/view

/80974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

City of San Jose Homeless Census & Survey (2019),

at https://www.sanjoseca.gov/DocumentCenter/

View/85898 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Comito, Barbara, Union Gospel Mission, “Cleaning

Up Homeless Encampments,” UGM (blog), 5

June 2019, https://blog.uniongospelmission.org/

the-impact/cleaning-up-homeless-encampments

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

“Downtown & Northeast Community Court Eligible

Offenses” at Spokane Municipal Court website,

https://static.spokanecity.org/documents/munic

ipalcourt/therapeutic/community-court/commun

ity-court-eligible-offenses-2017-12-11.pdf . . . . . . 8

Epperly, Emma, “Booby trap injures city worker

cleaning out illegal camp,” The SpokesmanReview, 8 Aug. 2019, https://www.spokesman.

com/stories/2019/aug/28/booby-trap-injures-cityworker-cleaning-out-illega/. . . . . . . . . . . . . . . . . 11

vi

“Homeless Census Survey, Comprehensive Report,”

Santa Clara County (2019), pp. 25-26 at

https://www.sccgov.org/sites/osh/Continuumof

Care/ReportsandPublications/Documents/2015

%20Santa%20Clara%20County%20Homeless%

20Census%20and%20Survey/2019%20SCC%20

Homeless%20Census%20and%20Survey%20Re

port.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

https://www.nbcbayarea.com/news/local/HomelessCamp-Near-East-Oakland-School-SparksBacklash-558377631.html . . . . . . . . . . . . . . . . . . 4

https://www.sanjoseca.gov/DocumentCenter/View/

85899 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

https://www.theatlantic.com/health/archive/2019/

03/typhus-tuberculosis-medieval-diseasesspreading-homeless/584380/. . . . . . . . . . . . . . . . . 4

Roley, Amanda, KREM 2 Spokane News, “City of

Spokane launches project to coordinate homeless

camp clean-ups,” 5 Feb. 2019,

https://www.krem.com/article/news/local/city-ofspokane-launches-project-to-coordinatehomeless-camp-clean-ups/293-5d95345d-4de0406a-b7fe-85b9bdf36a39. . . . . . . . . . . . . . . . . 9, 10

Spokane City Council “Briefing Paper and Fiscal

Note” regarding SMC §§ 12.02.1000, et seq.,

available at https://static.spokanecity.org/docum

ents/citycouncil/advance-agendas/2018/04/citycouncil-advance-agenda-2018-04-30.pdf . . . . . . 10

vii

Spokane Municipal Court, “City of Spokane

Community Court” brochure at

https://my.spokanecity.org/courts/municipalcourt/therapeutic/ . . . . . . . . . . . . . . . . . . . . . . . . . 9

“The Annual Homeless Assessment Report to

Congress,” U.S. Department of Housing and

Urban Development (Dec. 2018), at

https://files.hudexchange.info/resources/docum

ents/2018-AHAR-Part-1.pdf . . . . . . . . . . . . . . . . . 3

Union Gospel Mission: Our Doors Are Open,” 22

April 2019, https://blog.uniongospelmission.org/

the-impact/union-gospel-mission-our-doors-areopen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1

INTERESTS OF AMICI CURIAE1

Established in 1935, the International Municipal

Lawyers Association (“IMLA”) is the oldest and largest

association of attorneys representing United States

municipalities, counties, and special districts. IMLA’s

mission is to advance the responsible development of

municipal law through education and advocacy by

providing the collective viewpoint of local governments

around the country on legal issues before state and

federal appellate courts.

The National League of Cities (“NLC”) is the

country’s largest and oldest organization serving

municipal governments and represents more than

19,000 cities and towns in the United States. NLC

advocates on behalf of cities on critical issues that

affect municipalities and warrant action.

The National Association of Counties (“NACo”) is

the only national organization that represents county

governments in the United States. NACo provides

essential services to the nation’s 3,069 counties

through advocacy, education, and research.

The International City/County Management

Association (“ICMA”) is a nonprofit professional and

educational organization of over 9,000 appointed chief

1

Pursuant to Supreme Court Rule 37.6, amici curiae state that no

counsel for any party authored this brief in whole or in part, and

no entity or person aside from counsel for amicus curiae made any

monetary contribution toward the preparation and submission of

this brief. Pursuant to Supreme Court Rule 37.2, amici curiae

state that counsel for all parties received notice and have

consented to the filing of this brief.

2

executives and assistants serving cities, counties,

towns, and regional entities. ICMA’s mission is to

create excellence in local governance by advocating and

developing the professional management of local

governments throughout the world.

The Washington State Association of Municipal

Attorneys (“WSAMA”) is a non-profit organization of

municipal attorneys in Washington State representing

the over 280 municipalities throughout the state.

The Washington Association of Sheriffs and Police

Chiefs (“WASPC”) is a non-profit representing

management personnel from Washington State law

enforcement agencies, including county sheriffs, city

and town police chiefs, executives of the Washington

State Patrol and Department of Corrections, and

representatives of federal and tribal law enforcement

agencies. WASPC’s mission is to foster collaboration

among law enforcement executives to enhance public

safety.

It develops industry best practices and

standards, including a comprehensive approach to

homelessness.

The Washington State Sheriffs Association

(“WSSA”) represents the 39 elected Sheriffs of

Washington State. WSSA’s mission is to promote

ethics, professionalism, leadership development,

training, and dialogue among its members and the law

enforcement community.

The decision in Martin v. City of Boise, 920 F.3d 584

(9th Cir. 2019), is of significant concern to local

governments nationwide and represents an

unwarranted departure from established law in its

3

application of the Eighth Amendment to invalidate a

municipal ordinance banning anyone from camping on

public property. The broad pronouncements in that

decision unduly impinge on local governments’

authority to exercise their police powers to protect the

public and public property from risks to health and

safety. The court imposes impracticable requirements

on local governments working to address the homeless

issue. In addition, Martin’s overbroad, and at times

contradictory, language creates confusion for local

governments as they try to interpret and apply the

decision as they serve homeless individuals and others

in their communities.

SUMMARY OF ARGUMENT

According to U.S. Department of Housing and

Urban Development statistics, 552,830 people

experienced homelessness in the United States on a

single day in January 2018; 35% of them reside in the

Ninth Circuit.2 The reasons for homelessness are

multi-fold, including the financial crisis of 2008, rising

housing costs, mental illness, drug and alcohol abuse,

and unemployment. A number of sub-populations

make-up the homeless, including families; those

suffering from alcoholism, drug addiction, and mental

illness; and the chronically homeless. Approaches to

address homelessness have evolved over time. It is no

longer seen solely as a criminal law enforcement

problem. Nor is it simply a housing issue, given that

2

“The Annual Homeless Assessment Report to Congress,” U.S.

Department of Housing and Urban Development (Dec. 2018), pp.

10, 14 at https://files.hudexchange.info/resources/documents/2018AHAR-Part-1.pdf.

4

many homeless individuals require services beyond

housing. Local governments are devoting significant

resources to these seemingly intractable problems,

taking different approaches depending on the

situations in their communities.

Local governments have limited resources, however.

While working to ease the plight of homeless

individuals, local governments are also dealing with

negative consequences of large numbers of people

camping on public property. These impacts include

public health and safety problems: unmanaged human

waste, garbage, discarded drug paraphernalia, camping

fires, blocked sidewalks and open spaces, and blight.

Encampments are frequently marked by outbreaks of

contagious diseases, vermin, and crime.3 Nearby

residents and businesses complain that these problems

negatively affect the community and render some

public property unusable by the general public.4

In Martin v. City of Boise, 920 F.3d 584 (9th Cir.

2019), the Ninth Circuit applied the Eighth

Amendment proscription on cruel and unusual

punishment well beyond what the Constitution’s

framers intended or how it has been interpreted by this

Court. Further, Martin improperly restricts local

governments’ ability to exercise their broad police

powers to safeguard the health, safety, and welfare of

their communities. Not only is the decision confusing,

but it is unworkable as a practical matter. The difficult

3

See https://www.theatlantic.com/health/archive/2019/03/typhustuberculosis-medieval-diseases-spreading-homeless/584380/.

4

See https://www.nbcbayarea.com/news/local/Homeless-CampNear-East-Oakland-School-Sparks-Backlash-558377631.html.

5

issue of homelessness is better left to local

policymakers to determine the most appropriate

responses rather than to the judiciary.

There is no question that more needs to be done to

address the root causes of homelessness, ensure that

all have adequate shelter, and remedy unsafe living

conditions. At the same time, local governments are

responsible for the health and safety of all their

constituents. Local governments need more tools, not

fewer, to deal with these challenges. The Martin

decision constrains local governments’ ability to

address one of the most challenging problems they face.

ARGUMENT

I. Review Should Be Granted Because the Ninth

Circuit Improperly Expands the Reach of the

Eighth Amendment and Impinges on the

Broad Police Powers of Local Governments

A. The Martin Court Improperly Extends the

Eighth Amendment

In Martin, the Ninth Circuit applied the Eighth

Amendment beyond how it has ever been interpreted

by this Court.

“[E]very decision of this Court

considering whether a punishment is ‘cruel and

unusual’ within the meaning of the Eighth and

Fourteenth Amendments has dealt with a criminal

punishment.” Ingraham v. Wright, 430 U.S. 651, 666

(1977). The Eighth Amendment is rarely used to limit

the scope of conduct that can be punished, and in those

rare cases, it is “to be applied sparingly.” Id. at 667.

6

By contrast, the Martin court proceeded on the

premise that ordinances making it a misdemeanor to

camp on public property criminalize an unavoidable

consequence of the status of being homeless. It

concluded the Eighth Amendment “bars a city from

prosecuting people criminally for sleeping outside on

public property when those people have no home or

other shelter to go to.” Martin, 920 F.3d at 603. In so

doing, the Ninth Circuit expanded the Eighth

Amendment to include the mere citation of individuals

for violations of anti-camping ordinances: “For those

rare Eighth Amendment challenges concerning the

state’s very power to criminalize particular behavior or

status, then, a plaintiff need demonstrate only the

initiation of the criminal process against him, not a

conviction.” Id. at 614 (emphasis added).

The Martin court purported to base its decision on

a plurality opinion of this Court in Powell v. Texas, 392

U.S. 514 (1968), and on Jones v. City of Los Angeles,

444 F.3d 118 (9th Cir. 2006), vacated, 505 F.3d 1006

(9th Cir. 2007), even though the latter opinion was

vacated and is not binding. Martin expands without

any legal justification this Court’s more limited holding

in Robinson v. California, 370 U.S. 660, 666-67 (1962),

that the Eighth Amendment prohibits criminalizing the

condition of drug addiction when a person does not also

engage in the conduct of possessing or using drugs. As

Judge Smith articulated in explaining why the Ninth

Circuit should re-hear the case en banc, the Martin

court’s ruling is inconsistent with Ingraham and takes

the Ninth Circuit “far afield” from the purpose of the

Eighth Amendment. Martin, 920 F.3d at 599.

7

B. Martin Hampers Local Governments’

Ability to Protect Their Communities

The Ninth Circuit’s opinion in Martin disregards

public health and safety impacts of homeless

encampments as well as the power and responsibility

of local governments to address those problems. The

decision thus impinges on the well-established police

powers reserved to states and local governments.

This Court has long upheld the broad authority of

state and local governments to exercise their police

powers. For example, in Eubank v. City of Richmond,

226 U.S. 137 (1912), the Court explained the broad

reach of municipal police powers, which extend “not

only to regulations which promote the public health,

morals, and safety, but to those which promote the

public convenience or the general prosperity.” Id. at

142. In addition, “‘[i]t is the most essential of powers,

at times the most insistent, and always one of the least

limitable of the powers of government.’” Id. at 142-43

(quoting District of Columbia v. Brooke, 214 U.S. 138,

149 (1909)). This Court continued that “[g]overnmental

power must be flexible and adaptive.” Eubank, 226

U.S. at 143. Accord Kovacs v. Cooper, 336 U.S. 77, 83

(1949) (“The police power of a state extends beyond

health, morals and safety, and comprehends the duty,

with constitutional limitations, to protect the wellbeing and tranquility of a community”); Sligh v.

Kirkwood, 237 U.S. 52, 58-59 (1915) (“The limitations

upon the police power are hard to define, and its farreaching scope has been recognized in many decisions

of this court”; “The police power, in its broadest sense,

includes all legislation and almost every function of

8

civil government”). Moreover, local governments have

“great latitude under their police powers to legislate as

to the protection of the lives, limbs, health, comfort,

and quiet of all persons.” Gonzales v. Oregon, 546 U.S.

243, 270 (2006) (quotations and citations omitted).

The Ninth Circuit ruling limits and, in some cases,

eliminates the tool of criminal sanctions from local

governments as they work to protect the health, safety,

and welfare of the public. Below are some examples of

the impact of Martin on municipalities.

1. Spokane, Washington

The Martin decision seriously undermines

Spokane’s ability to connect unsheltered individuals

with social services through its jail alternative court

system. Spokane’s Municipal Court established a

Community Court docket, a criminal justice initiative

addressing low level non-violent misdemeanor crimes.

The list of Community Court eligible offenses includes

misdemeanors such as disorderly conduct, open

consumption, urinating/defecating in public, sidewalk

sitting/lying, and unauthorized camping on public

property.5

Jail is not the mission of Community Court.

Rather, individuals cited for eligible offenses such as

illegal camping are referred directly to Community

Court, where they access social services while they

5

See “Downtown & Northeast Community Court Eligible Offenses”

at Spokane Municipal Court website, https://static.spokanecity.org/

documents/municipalcourt/therapeutic/community-court/commun

ity-court-eligible-offenses-2017-12-11.pdf. See Spokane, Wash.,

Code § 12.02.1010(D).

9

commit to community service. Community Court

works with social service providers who connect

defendants with a range of services, including

assistance with food, clothing, health care and

insurance, education and job training, behavioral

health, and government assistance.6 The Martin

decision prevents Spokane from issuing the criminal

citations that require participation in these services. It

consequently seriously impairs Spokane’s ability to

connect individuals needing vital services through its

Community Court, which has a proven track record.

This situation underscores how local policymakers are

better situated than federal courts to determine the

most effective approaches to these problems.

Further, Spokane has a significant government

interest in using the criminal process to connect

homeless illegal campers with Community Court

services to help deter illegal encampments.

Encampments present public health and safety risks to

the public at large and campers themselves, and

addressing them requires significant public resources.

These risks arise from uncontained fires; improper

disposal of solid waste, including feces and hypodermic

needles; and other problems. In 2018, Spokane

received approximately 500 reports of homeless camps,

which cost approximately $100,000 to clean up.7

6

See Spokane Municipal Court, “City of Spokane Community

Court” brochure at https://my.spokanecity.org/courts/municipalcourt/therapeutic/.

7

See Roley, Amanda, KREM 2 Spokane News, “City of Spokane

launches project to coordinate homeless camp clean-ups,” 5 Feb.

2019, accessed 5 Sept. 2019, https://www.krem.com/article/news/

10

Cleanup teams include Spokane Department of Code

Enforcement employee crews, law enforcement officers,

and hauling/dump trucks.8 An estimated 1,000 pounds

of garbage per day is hauled out of homeless

encampments in Spokane.

The public health and safety risks of these

encampments include uncontained fires; improper

disposal of solid waste, including feces and hypodermic

needles; and damage to landscaping and critical

infrastructure such as bridge abutments and streets.9

At one encampment along the Spokane River, City staff

recently found a garbage pit fifteen feet across and four

feet deep, containing multiple five-gallon buckets filled

with human feces.10

The increasing presence of improvised and other

weapons at encampments poses yet another public

safety risk, including to the safety of City cleanup

crews. Almost all campers contacted reportedly conceal

at least one knife and many have uncapped, used

syringes. At one large encampment along the Spokane

River, officers located multiple edged weapons,

local/city-of-spokane-launches-project-to-coordinate-homelesscamp-clean-ups/293-5d95345d-4de0-406a-b7fe-85b9bdf36a39.

8

See Comito, Barbara, Union Gospel Mission (“UGM”), “Cleaning

Up Homeless Encampments,” UGM (blog), 5 June 2019, accessed

5 Sept. 2019, https://blog.uniongospelmission.org/the-impact/clean

ing-up-homeless-encampments.

9

See Spokane City Council “Briefing Paper and Fiscal Note”

regarding Spokane, Wash., Code §§ 12.02.1000, et seq., available

at https://static.spokanecity.org/documents/citycouncil/advanceagendas/2018/04/city-council-advance-agenda-2018-04-30.pdf.

10

See Comito, supra, note 8.

11

including knives, hatchets, and arrows. One city

employee assigned to a cleanup crew was injured when

he stepped on a concealed board with nails driven

through it used as a ‘booby-trap’ set up to protect an

illegal marijuana grow at a camp site. Several such

traps, resembling improvised spike strips, were laid

around the camp and trails.11

2. San José, California

The City of San José, the tenth largest city in the

country and home to over 6,000 homeless individuals,

looks to criminal enforcement as a last resort, when

outreach and warnings are ineffective in resolving

unsanitary or dangerous conditions at homeless

encampments.12 This tool is particularly important

when it comes to San José’s prerogative to issue

criminal citations to those, including the homeless, who

trespass in its watershed areas. The other tools at the

City’s disposal—such as outreach to homeless

individuals and maintaining fencing and other

barriers—are not always effective.

Homeless camps have repeatedly arisen along the

banks of Coyote Creek and the Guadalupe River. The

resulting trash and human waste are especially

problematic. Indeed, San José was sued in federal

court because of the increased fecal bacterial and trash

levels in these waterways and is under a federal court

11

See Epperly, Emma, “Booby trap injures city worker cleaning out

illegal camp,” The Spokesman-Review, 8 Aug. 2019, accessed 5

Sept. 2019, https://www.spokesman.com/stories/2019/aug/28/boobytrap-injures-city-worker-cleaning-out-illega/.

12

https://www.sanjoseca.gov/DocumentCenter/View/85899.

12

consent decree to reduce those levels.13 The allegations

centered on violations of the Clean Water Act, and as

a part of that consent decree, the City is to appropriate

at least $100 million to implement a Comprehensive

Load Reduction Plan to meet the Fecal Indicator

Bacteria load reduction standard.14 In other words, the

City must monitor and limit the amount of garbage and

human waste that enter local waterways.

Various City departments—from police to fire to

public works—regularly clear encampments, collect

and dispose of garbage and hazardous materials, and

maintain City infrastructure like damaged fencing and

bridges.15 The City’s municipal code prohibits anyone

from trespassing in watershed areas, under penalty of

fines and even jail time, and is a useful tool to prevent

abuse of these sensitive areas.16 In addition, more than

a third of the fire calls to which San José’s Fire

Department responded in the last fiscal year were

related to homeless individuals, including more than

40% of vegetation fires. Needless to say, fires

represent a significant concern in California.

13

San Francisco Baykeeper v. City of San José, U.S. District Court

Case No. 15-CV-00642-BLF (N.D. Calif.).

14

Id., Dkt. #51.

15

In its 2017-2018 fiscal year, San José removed 955 tons of

garbage from homeless camps. More than 80 percent of that

garbage was removed from waterways. Annual Homeless Report

& Homeless Emergency Assistance Program (Oct. 22, 2018),

http://www.sanjoseca.gov/documentcenter/view/80974.

16

San José, Cal., Code § 10.20.150.

13

San José works to assist people camping on public

land and to address the problems that often result from

homeless encampments.

It dispatches multidisciplinary teams from its housing department, who

speak with the homeless to understand their needs.

These teams provide the homeless with information

about housing and service options. City staff also

assess environmental needs like trash and sanitation

concerns. To protect public health and safety, as well

as to comply with the federal consent decree, the City

sometimes posts notices that a location must be

cleaned up, advising people camping there that they

must take their belongings and leave.

Despite San José’s efforts to connect homeless

individuals with supportive services, some refuse to

move from encampments.17 It is the City’s experience

that there is a population of long-term, chronically

homeless who refuse housing, whether due to mental

health issues; drug addiction; general opposition to

government services; shelter restrictions on pets, drug

or alcohol use; or other perceived limitations.18 In some

cases, homeless individuals who refuse services reestablish camps after the City has completed a cleanup

or set up camp on other public property. In these

circumstances, criminal sanctions for trespassing on

17

“Homeless Census Survey, Comprehensive Report,” Santa Clara

County (2019), pp. 25-26 at https://www.sccgov.org/sites/osh/Contin

uumofCare/ReportsandPublications/Documents/2015%20Santa

%20Clara%20County%20Homeless%20Census%20and%20Surve

y/2019%20SCC%20Homeless%20Census%20and%20Survey%20

Report.pdf.

18

See City of San Jose Homeless Census & Survey (2019), pp. 2122 at https://www.sanjoseca.gov/DocumentCenter/View/85898.

14

public property are useful to ensure that an area

remains clean and safe.

Yet under Martin, the City could be prevented from

enforcing its anti-trespassing ordinance, even in the

face of a consent decree mandating the cleanup of

waterways, if there are fewer shelter beds available

than the entire homeless population. Martin has thus

removed one of the tools available to maintain clean

and safe public areas in San José.

3. Spokane Valley, Washington

The City of Spokane Valley has a population of

nearly 100,000 and is the tenth largest city in

Washington. Spokane Valley contracts for a majority

of its services. It has agreements with Spokane County

for all public safety-related services, including law

enforcement, prosecution and public defense, court, and

jail services. The City also contracts with a private

company to provide all park maintenance and upkeep

services.

Further, Spokane Valley does not have homeless

shelters within its boundaries. Instead, its residents

contribute over a million dollars per year to a regional

Continuum of Care program to address regional lowincome housing issues. The resources to assist those

experiencing homelessness, such as mental health,

drug or alcohol addiction services, or financial

assistance, are located outside of Spokane Valley in

downtown Spokane. Spokane Valley funds homeless

services that are available nearby but not within its

borders.

15

As a result, Martin’s requirement that a jurisdiction

have shelter space available in order to enforce its laws

has effectively frozen Spokane Valley’s efforts to

enforce the “no camping” regulations in its parks.

Between 2018 and 2019, the number of homeless living

in Spokane Valley’s parks is estimated to have

increased over 325%. Two City parks have seen such

a significant increase in homeless camping that citizens

no longer visit the parks, the City has stopped

accepting reservations for park facilities, and the parks

have in effect become City-funded homeless

encampments. Impacts include increased garbage and

litter, illegal drug paraphernalia, human waste,

graffiti, direct damage to park facilities, other illegal

activities, and incidents of direct interference with

other park users, as well as increased City costs to

combat these problems. Spokane Valley only has

thirteen parks, and one of the affected parks is in the

center of the City. Thus, losing these two parks to

homeless campers has a significant negative impact on

the parks program and park users.

4. Olympia, Washington

Olympia, population 51,000, is the capital of

Washington State.

The homeless population in

downtown Olympia is in the hundreds. In July 2018,

the city declared a public health emergency related to

homelessness.

The City’s municipal code forbids camping on cityowned property, except with permission of the city

manager after a declaration of emergency has been

passed by City Council. Olympia, Wash., Code

§ 12.74.010. It also provides that no one shall obstruct

16

passage of pedestrians or vehicles in the downtown

commercial zone between certain hours. Id. § 9.16.180.

As a result of the Martin decision, Olympia has stopped

arresting the homeless for violating these criminal

provisions when committed on city-owned property,

parks, or sidewalks, except as a last resort.

As a result of the constraints of Martin, public

health issues have proliferated.

Homeless

encampments have no solid waste facilities and create

mountains of garbage in mere days. Although the City

provides some of these services even to unsanctioned

encampments, issues with human feces, garbage

(including drug paraphernalia), fire, damage to city

property, and vandalism of public infrastructure

abound.

Because of Martin, Olympia can no longer use its

publicly-owned property for the benefit of the public at

large unless it has provided the homeless an

alternative place to sleep. That task is anything but

simple. First, the number of shelter space openings is

fluid. Second, the City’s attempts to provide

transitional sites for the homeless is proving

insufficient, particularly given that Olympia is now

being advertised as a “homeless sanctuary.” Third,

many homeless individuals have no identification,

making it impossible to track whether an individual

was offered and declined an alternative to camping.

Members of the business community allege that the

lack of enforcement has negatively impacted their

businesses and economic development in downtown.

The City’s limited enforcement of these municipal code

violations post-Martin has even resulted in legal action

17

against Olympia.19 Whatever the merits of those

claims, the City must use limited public resources to

defend against these actions.

Moreover, they

demonstrate the extent to which the Martin decision

hampers Olympia’s ability to provide a safe, hospitable

environment for its constituents.

II. Martin Sows Uncertainty for

Governments and Is Unworkable

Local

A. Martin Introduces Undefined Standards

into its Eighth Amendment Analysis

While on the one hand Martin prohibits cities from

prosecuting those who sleep outside on public property

when there are more homeless persons than available

shelter beds, its footnote number 8 creates confusion

about how local governments can comply with the

ruling.20

In footnote 8, the Ninth Circuit panel qualifies its

holding, saying its ruling does not apply to those who

“have access to adequate temporary shelter, whether

because they have the means to pay for it or because it

is realistically available to them for free, but who

choose not to use it.” Martin, 920 F.3d at 617 n.8. It

continues: “Nor do we suggest that a jurisdiction with

insufficient shelter can never criminalize the act of

sleeping outside. Even where shelter is unavailable, an

19

Douglas Heay, et al., v. City of Olympia, Thurston County

Superior Court No. 18-2-06080-34.

20

That confusion is exacerbated by the circuit split that Martin

created, with local governments outside of the Ninth Circuit left

guessing whether their own anti-camping ordinances are unlawful.

See Petition at pp. 19-21.

18

ordinance prohibiting sitting, lying or sleeping outside

at particular times or in particular locations might well

be constitutionally permissible.” Id. (emphasis in

original). This language suggests municipalities may

do what the holding prohibits, although it fails to

explain when it would be permissible.

Further, this language adds an element: the

housing must be “adequate” or “sufficient.” But the

court fails to define these terms. The decision leaves

open a number of questions, such as what might be

considered “adequate” or “sufficient” housing or how

the different needs of people experiencing homelessness

might impact the analysis.

Martin itself suggests the analysis is complicated.

It argues—although it does not hold—that “adequate”

shelter must not be incongruous with an individual’s

religious beliefs. Martin, 290 F.3d at 609-10. But the

decision is silent about how a jurisdiction should weigh

religious beliefs in determining whether a particular

person has an “adequate” alternative to camping. Nor

does Martin explain how to evaluate the adequacy of

available shelter that an individual chooses not to

access on a given day. Indeed, named plaintiff Martin,

whose claims the Ninth Circuit allowed to proceed,

apparently had housing in another city but chose to

travel to Boise, where he was cited for camping. Id. at

606.

B. Martin’s Articulated Standards are

Unworkable as a Practical Matter

Even if those definitions were established, it would

still be impossible as a practical matter to issue

19

camping citations without risking running afoul of

Martin. The shelter availability prerequisite cripples

the ability of local governments to issue criminal

citations to the homeless for these offenses.

First, most jurisdictions cannot practically

determine how many homeless individuals reside

within their geographical jurisdiction on a daily basis.

It would be impossible to do so without dedicating costprohibitive staffing resources to conduct daily counts.

These counts would take the whole workday or longer,

rendering count data untimely and useless for the anticamping enforcement shelter count requirement. See

also Martin, 920 F.3d at 594-95 (Smith, J., dissenting

from denial of rehearing en banc).

Second, Martin seems to foreclose counting some

available housing options. Martin does not specify

whether a local government may rely on available beds

in neighboring cities within its metropolitan area. And

Martin prevents local governments from counting beds

at religious institutions. In Spokane, 286 shelter beds

at Union Gospel Mission may not be counted under

Martin because the shelter’s services involve religious

rites.21 Even if all available beds could be counted,

many municipalities simply lack the capacity to shelter

all who need it, notwithstanding efforts to increase

housing opportunities.

Third, even assuming a local government had

shelter capacity for all homeless individuals in its

21

See “Union Gospel Mission: Our Doors Are Open,” 22 April 2019,

accessed 5 Sept. 2019, https://blog.uniongospelmission.org/theimpact/union-gospel-mission-our-doors-are-open.

20

jurisdiction, it is unclear whether the Martin shelter

availability prerequisite means available shelter beds

for overnight sleeping or 24/7. In some jurisdictions,

shelters are not open 24 hours due to staffing or

janitorial needs. During these periods of closure, no

shelter beds are available. Nor does the decision help

answer other questions, such as whether law

enforcement may rely on notice of shelter availability

from the preceding night to cite an individual engaging

in illegal camping on public property the next day.

In short, it is impossible to determine whether an

individual has “an option of sleeping indoors,” Martin,

920 F.3d at 617, on any given day, and thus whether a

local jurisdiction is in a position to enforce its criminal

laws prohibiting camping. These issues are more than

theoretical and demonstrate Martin’s overbreadth.

The challenges local governments face in

understanding and complying with the Martin decision

are further underscored by settlement agreements or

consent decrees some jurisdictions have entered into in

the aftermath of the ruling. For example, in Vannucci

v. County of Sonoma, involving Sonoma County and the

City of Santa Rosa, California, the order entered into in

reaction to Martin sets forth:

[t]he adequacy of a shelter will depend on a

person’s individual circumstances, such as

mental disability, physical disability, gender,

sexual orientation, gender identity, essential

personal possessions, family status, possession

of a service animal or pet, religious or ethical

convictions, educational needs of any schoolaged children, proximity to employment,

21

proximity to medical or other social services, and

transportation needs.

For some people

(particularly those with certain mental health

conditions), a barracks-style placement may not

be adequate based on their individual

circumstances.22

Moreover, to constitute “adequate shelter,” the

placement “must be immediately available for 30

consecutive days or more,” “be open both days and

nights,” and “must provide a single-gender placement

for someone who objects to a mixed-gender

placement.”23 It will be difficult, if not impossible, to

meet these criteria for “adequate” shelter and to have

all these options provided by a jurisdiction and

available at all times.

In a settlement agreement in a case arising in

Southern California, Orange County must “ensure

appropriate due process protocols, including a timely

and effective administrative appeals process, for

homeless individuals being denied access to, or being

terminated from County-administered shelters” that

“comply and be otherwise consistent with local, state,

and federal laws.”24 Whether an individual has access

to adequate shelter thus becomes a matter for a quasijudicial determination, leaving law enforcement’s

22

Vannucci v. County of Sonoma, U.S. District Court, Case No. 18cv-01955 VC (N.D. Cal.), Dkt. #109-1. See p. 5 of 14.

23

24

Id. at p. 6 of 14.

Orange County Catholic Worker, et al. v. County of Orange, U.S.

District Court Case No. 8:18:cv-00155-DOC-JDE (C.D. Cal.), Dkt.

#318-1, p. 15.

22

hands tied while that process plays out, and adds

further costs to litigating those issues that could be

better spent providing direct services or housing.

III.

Martin’s Construction of Status, as

Opposed to Conduct, Leads to Untenable

Results

Further difficulties arise when local governments

consider Martin’s impact beyond ordinances that

prohibit camping. The decision is premised on its

assertion that “sitting, sleeping or lying outside on

public property for homeless individuals who cannot

obtain shelter” are the “‘unavoidable consequence of

being human.’” Martin, 920 F.3d at 616 (quoting

Jones, 444 F.3d at 1136). It reasoned: “[A]ny ‘conduct

at issue here is involuntary and inseparable from

status—they are one and the same, given that human

beings are biologically compelled to rest, whether by

sitting, lying, or sleeping.’” Id. at 617 (quoting Jones,

444 F.3d at 1136).

Under the Martin court’s reasoning, a municipality

may not be allowed to prosecute those who urinate,

defecate, or even engage in sexual activities in public,

since under the Ninth Circuit’s analysis those are

“unavoidable consequences of being homeless.” These

acts should not be beyond the reach of a government’s

police powers. Accord Martin, 920 F.3d at 590 (Smith,

J., dissent from denial of rehearing en banc (“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”).

23

The Ninth Circuit’s decision narrowly identifies the

conduct at issue as “sitting, lying or sleeping” and

declares these acts to be “involuntary” and “inseparable

from status.” It concludes they are outside a city’s

authority to prosecute if there are a greater number of

homeless individuals in a city than the number of

available beds in shelters. This holding severely

misunderstands the public health and safety crisis

caused by illegal encampments and fails to recognize

what is occurring in many communities. Encampments

are often fraught with uncontained human waste,

garbage, illicit activity, and dangerous conditions that

violate universal social norms.

Many common

behaviors attendant to illegal camping cannot be

characterized as “the universal and unavoidable

consequences of being human.”

IV.

Responses to the Intractable Challenges of

Homelessness Are Best Addressed by

Policymakers

The problems created by the Ninth Circuit’s

decision underscore why local policymakers, not the

federal courts, should make decisions about how to

address homelessness in their communities. Local

governments are better equipped to evaluate the

immediate situation, to assess the resources available,

and to determine the most effective policy responses.

Indeed, another difficulty with the Ninth Circuit’s

approach is articulated in one of the opinions making

up the Powell plurality on which Martin relies: Justice

Black, in concurring, declined to extend the Eighth

Amendment to prevent criminalizing public

drunkenness because doing so “would significantly

24

limit the States in their efforts to deal with a

widespread and important social problem and would do

so by announcing a revolutionary doctrine of

constitutional law that would also tightly restrict state

power to deal with a wide variety of other harmful

conduct.” Powell, 392 U.S. at 536. He observed: “I

cannot say that the States should be totally barred

from one avenue of experimentation, the criminal

process, in attempting to find a means to cope with this

difficult social problem.” Id. at 539-40 (Black, J.,

concurring).

Judge Smith also expressed his concern about the

limits of judicial authority, explaining that the impact

of a local ordinance “‘should be addressed to the

Legislature and the [] 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.’” Martin, 920 F.3d at 593 (dissent to

denial of rehearing en banc, quoting Tobe v. City of

Santa Ana, 9 Cal.4th 1069 (1995)).

Yet that is precisely what the Martin panel has

done. The Ninth Circuit ruling ignores this Court’s

instruction that federal courts “do not sit as a superlegislature to weigh the wisdom of legislation nor to

decide whether the policy which it expresses offends

the public welfare. The legislative power has limits …

[b]ut the state legislatures have constitutional

authority to experiment with new techniques; they are

entitled to their own standard of the public welfare ….”

Day-Brite Lighting Inc. v. State of Missouri, 342 U.S.

25

421, 423 (1952) (upholding criminal enforcement of

Missouri statute guaranteeing paid time off to vote).

Similarly, “[c]ourts may not create their own

limitations on legislation, no matter how alluring

the policy arguments for doing so, and no matter how

widely the blame may be spread.” Brogan v. United

States, 522 U.S. 398, 408 (1998).

The Martin decision is in conflict with other courts,

as set forth in the petition for review, including the

California Supreme Court decision Tobe v. City of

Santa Ana, 9 Cal.4th 1069 (1995). See Petition at pp.

19-21. In Tobe, the California Supreme Court upheld

a city’s no-camping ordinance against Eighth

Amendment challenge. Under the guise of applying

this Court’s Eighth Amendment jurisprudence, the

Ninth Circuit has constrained California cities more

than their own Supreme Court has done. Martin

thereby turns on its head the teaching that states

should “serve as ‘laborator[ies]’ of democracy.” Tenn.

Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct.

2449, 2484, 204 L. Ed. 2d 801 (2019) (Gorsuch, J.,

dissenting) (quoting New State Ice Co. v. Liebmann,

285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)).

Further, local governments have broad

responsibilities to their communities but have limited

resources. Providing sufficient beds to comply with

Martin could hijack municipal budgets well beyond

what is appropriate in light of other municipal

responsibilities. But if local governments do not

comply, they may be left with encampments that are

beyond their reach. See Martin, 920 F.3d at 595-96

(Smith, J., dissenting) (if local governments lack the

26

resources to provide housing, “[t]hey have no choice but

to stop enforcing laws that prohibit public sleeping and

camping” and “effectively allow[] homeless individuals

to sleep and live wherever they wish on most public

property”). The Petition should be granted because the

Martin court’s interpretation of the Eighth Amendment

yields untenable results for local governments

responsible for addressing homelessness and serving

their broader communities.

CONCLUSION

For the foregoing reasons, and those set forth in the

Petition, amici curiae respectfully request that this

Court grant the Petition for Certiorari.

Respectfully submitted,

RICHARD DOYLE

City Attorney

NORA FRIMANN

Assistant City Attorney

KATHRYN J. ZOGLIN

Senior Deputy City Attorney

Counsel of Record

MAREN J. CLOUSE

Senior Deputy City Attorney

Office of the City Attorney

200 East Santa Clara Street, 16th Floor

San José, California 95113-1905

(408) 535-1900

cao.main@sanjoseca.gov

Counsel for Amici Curiae