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

No. 19-247

IN THE

CITY OF BOISE,

Petitioner,

v.

ROBERT MARTIN, LAWRENCE LEE SMITH, ROBERT

ANDERSON, JANET F. BELL, PAMELA S. HAWKES, AND

BASIL E. HUMPHREY,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth

Circuit

BRIEF OF AMICI CURIAE

INTERNATIONAL DOWNTOWN

ASSOCIATION,

CALIFORNIA DOWNTOWN ASSOCIATION,

CENTRAL CITY EAST ASSOCIATION OF LOS

ANGELES, HOLLYWOOD PROPERTY

OWNERS’ ALLIANCE, HISTORIC CORE

BUSINESS IMPROVEMENT DISTRICT

PROPERTY OWNERS ASSOCIATION, AND

DOWNTOWN PROPERTY OWNERS

ASSOCIATION IN SUPPORT OF PETITIONER

MATTHEW D. UMHOFER

ELIZABETH A. MITCHELL

Counsel of Record

SPERTUS, LANDES, & UMHOFER LLP

617 W. 7TH STREET, SUITE 200

LOS ANGELES, CA 90017

(213) 205-6520

emitchell@spertuslaw.com

Counsel for Amici Curia

i

TABLE OF CONTENTS

PAGE

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 6

I.

The Consequences of the Ninth

Circuit’s Decision Have Been

Devastating to its Cities ............................. 6

A. Los Angeles California .......................... 7

B. Seattle, Washington ............................ 11

C. Sacramento, California ....................... 14

D. Hollywood, California .......................... 17

II.

Outside the Ninth Circuit, the

Ambiguous Language and Circuit

Split is Wreaking Havoc ........................... 19

A. Austin, Texas ....................................... 20

B. Chicago, Illinois ................................... 22

C. Indianapolis, Indiana .......................... 24

D. Baltimore, Maryland ........................... 25

CONCLUSION.......................................................... 27

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Martin v. City of Boise

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

Court Documents

Declarations in Support of Motion to Intervene at

Docket No. 120-3, Mitchell v. City of Los Angeles, et

al., (C.D. Cal. June 24, 2019) (No. 16:cv-01750SJO-JPRx)............................................................... 9

Other Authorities

Mitchell Armentrout, Massive Tent City cleanup

biggest in recent memory, residents say, Chicago

Sun Times (Mar. 29, 2019),

https://chicago.suntimes.com/2019/3/29/18458338/

massive- ................................................................. 23

Hayleigh Colombo, Indianapolis grappling with

increase in deaths among homeless population,

Indianapolis Business Journal (Jan. 24, 2019),

https://www.ibj.com/articles/72185-indianapolisgrappling-with-increase-in-deaths-amonghomeless-population .............................................. 24

Castellow, J., Kloos, B., Townley, G., Previous

homelessness as a risk factor for recovery from

serious mental illnesses. Community Mental

Health Journal, vol. 51, pp. 674-84 (Aug. 2015)... 14

Mayor Eric Garcetti, LA Homeless Growing Faster

than Homeless Housing, CityWatch

(June 13, 2019) ........................................................ 7

iii

Martin Gould, California’s homeless crisis engulfs its

capital as Sacramento’s business owners tell how

they confront naked junkies and streets covered in

feces, urine, and syringes—with no solution in

sight, Daily Mail (Aug. 28, 2019, 12:19 PM),

https://www.dailymail.co.uk/news/article7396585/Californias-homeless-crisis-engulfscapital-Sacramentos-people-confront-nakedjunkies.html ........................................................... 16

Joel Grover and Amy Corral, LA’s Rat Problem

Grows Even After City Cleans Up Trash Heaps

Revealed by NBC4 I-Team, NBC Los Angeles (June

10, 2019, 10:24 PM),

https://www.nbclosangeles.com/news/local/LACrawling-With-Rodents-511112152.html............... 8

Joel Grover and Amy Corral, Your Insurance is

Canceled Because of Homeless Tent Fires, NBC Los

Angeles (Sept. 23, 2019, 10:54 PM),

https://www.nbclosangeles.com/news/local/LAHomeless-Encampment-Fires-Insurance-RatesTents-Homelessness-561145811.html .................. 10

Theo Hayes, Crews working to offer resources to

homeless during bitter cold, WBAL TV 11, show

transcript (Jan. 30, 2019, 5:17 PM),

https://www.wbaltv.com/article/baltimorehomeless-bitter-cold-conditions/26090995............ 27

Matthew Hendrickson, Woman sexually assaulted at

homeless encampment after man promised to find

her shelter, Chicago Sun Times (July 11, 2019, 4:48

PM),

https://chicago.suntimes.com/2019/7/11/20690686/t

ent-city-homeless-camp-chicago-sexual-assaultcrime-kenneth-horner ........................................... 24

iv

Evelyn Holmes, Propane tank explodes at South Loop

tent city, 80 homeless people forced to move, ABC

Chicago (Jan. 30, 2019),

https://abc7chicago.com/propane-tank-explodes-atsouth-loop-tent-city-80-homeless-peoplemoved/5113652/ ..................................................... 23

Eric Johnson, Seattle is Dying, KOMO News (Mar.

14 2019), https://komonews.com/news/local/komonews-special-seattle-is-dying .......................... 11, 13

Eric Leonard, Crime Amongst LA’s Homeless

Population Rises Again, NBC Los Angeles (Feb. 13,

2019, 3:06 AM),

https://www.nbclosangeles.com/news/local/CrimeAmongst-LAs-Homeless-Population-Rises-Again505807741.html) ...................................................... 8

Scott P. Lindsay, System Failure: Report on Prolific

Offenders in Seattle’s Criminal Justice System

(Feb. 2019),

https://downtownseattle.org/files/advocacy/systemfailure-prolific-offender-report-feb-2019.pdf ........ 12

Steve Lopez, Column: He died Sunday on a West L.A.

sidewalk. He was homeless. He is part of an

epidemic, L.A. Times (Sept. 4, 2019, 10 AM),

https://www.latimes.com/california/story/2019-0904/homeless-deaths-los-angeles-coroner-record ..... 9

Tom Schuba, Homeless man shot to death at “Tent

City” in South Loop: state police, Chicago Sun

Times (Feb. 19, 2019),

https://chicago.suntimes.com/2019/2/19/18355088/h

omeless-man-shot-to-death-at-tent-city-in-southloop-state-police ..................................................... 23

Nicholas Slayton, Crime Rises Again in Downtown,

Los Angeles Downtown News (Jan. 15, 2019),

v

http://www.ladowntownnews.com/news/crime-risesagain-in-downtown/article_19c44618-1834-11e98cc9-0b48238c2c95.html .......................................... 8

Treffert, DA, Dying With Their Rights On, American

Journal of Psychiatry, 130(9), p. 1041

(Sept. 1973) ............................................................ 14

Odette Yousef, Where can homeless people pitch tents

in Chicago?, Chicago Coalition for the Homeless

(Oct. 23, 2017),

https://www.chicagohomeless.org/wbez-canhomeless-people-pitch-tents-chicago/ ................... 22

Homeless woman sexually assaulted in “Tent City” in

Chicago, Fox Chicago (Apr. 3, 2019),

https://www.fox32chicago.com/news/homelesswoman-sexually-assaulted-in-tent-cityin-chicago ............................................................... 23

Sacramento County Department of Health Services,

Sacramento County 2018 Homeless Deaths Report:

1/1/2017-12/31/2017 (Nov. 16, 2018),

https://dhs.saccounty.net/PRI/Documents/Health%

20Care%20for%20the%20Homeless/Meeting%20M

aterials/2018/20181116/Homeless%20Deaths%20R

eport%202017%20%20PowerPoint%20Presentation.pdf ................... 14

1

INTEREST OF AMICI CURIAE 1

The Ninth Circuit’s decision in Martin has

inflamed the homelessness crisis by fomenting

uncertainty among local governments struggling to

balance their need for clean and safe streets, and the

civil rights of those who live on them. And as

governments’ hands are being tied, the private sector

is left little choice but to intervene for the public good

or risk ruin.

The inter-circuit inconsistencies fostered by

Martin and the ambiguous language used by the

Ninth Circuit has flummoxed local governments

throughout the country—which in turn has had a

profoundly troubling impact on homeless and housed

alike. As cities withdraw services, public safety,

health, and welfare declines rapidly. When citizens

are left in chaos, compassion and empathy begin to

erode. This Court’s intervention is necessary to

resolve the conflict among circuits and clarify the role

local government is permitted to take to ensure the

safety of all its citizens.

The International Downtown Association (“IDA”)

is a trade association with voluntary membership

aimed at urban place management organizations, notfor-profit quasi-government entities managing city or

town centers. IDA is a world leader and champion for

vital and livable urban centers. Its members include

1 Rule 37 statement: All parties received timely notice of amici’s

intent to file this brief; their consent letters have been lodged

with the Clerk. No counsel for any party authored this brief in

whole or in part and no person or entity other than amici and its

members funded its preparation or submission.

2

business improvement districts, community benefit

districts, downtown development authorities, town

center managers, and city agencies that oversee the

development of the municipalities’ city centers.

California Downtown Association, like IDA, is a

representative membership association with the

primary purpose of exchanging information pertinent

to business districts and formulating solutions to

mutually shared problems, including helping publicprivate partnerships manage the increasingly difficult

issues surrounding those experiencing homelessness.

Central City East Association is the principal

advocate for property owners, businesses, employees,

and residents of the area known as “Skid Row” in Los

Angeles. Skid Row has become known as the epicenter

for homelessness in this country, with the highest

concentration of homeless, both sheltered and

unsheltered, in its 50-square blocks. Hollywood

Property Owners’ Alliance manages business

improvement districts in Hollywood, California.

Historic Core Business Improvement District

Property Owners Association, and Downtown

Property Owner Association manage business

improvement districts in their areas: the “Historic

Core” section of Downtown Los Angeles, and the

“Fashion District” section of Downtown Los Angeles

respectively.

INTRODUCTION AND SUMMARY OF

ARGUMENT

With Martin handcuffing local governments’

ability to actively address homeless issues, the private

sector has been forced to fill that void, conducting

3

outreach, cleaning up streets, and connecting

homeless with services at significant cost. But without

traditional police powers, local management entities

are unable to protect themselves or their memberbusinesses from the effects of government

abandonment. The Ninth Circuit’s decision thus

erodes local communities not only on a basic

humanitarian level, but also undermines the very

economic engine that powers most of these cities.

Throughout the Ninth Circuit, ordinary people—

small business owners, shop clerks, students—find

themselves unable to secure basic government

assistance in matters of safety and sanitation. Los

Angeles’ Skid Row is a prime example. Skid Row, a

50-square-block area in the heart of Downtown L.A.,

has long been a locus of human hardship. But in large

part because of the Ninth Circuit’s decision in Martin

v. City of Boise, the hardship has become inhumanity.

According to the Los Angeles Homeless Services

Authority, almost 5,000 homeless individuals live in

the one-square-mile of Skid Row, and approximately

60 percent are unsheltered and living on the

sidewalks.

The build-up of property makes it

impossible to determine what items are a health or

safety risk. The mountains of garbage, food waste,

human waste, and contaminated items are breeding

grounds for rats, which in turn breeds disease. The

anonymity afford by tents permits criminals to peddle

their illicit wares—weapons, narcotics, even

humans—undisturbed. In one of the most prosperous

cities in the country, innocent people—small children

4

whose parents lost their jobs, residents who are trying

desperately to claw their way out of the cycle of

homelessness and poverty, small business owners

trying to make a living—now face conditions worse

than those found in developing countries.

The

uncertainty unleashed by Martin has unquestionably

inhibited the ability of local government to address

this human tragedy, and as a result, the problem has

multiplied.

Other cities and towns throughout the Ninth

Circuit are experiencing similar crises. In Seattle,

narcotics possession of up to 3 grams is tolerated,

which—combined with the explosion of persons living

in public—has led to an open-air drug market where

heroin is injected in front of children and people

wander through the streets in a drug-induced stupor.

Long-standing businesses are closing their doors due

to crime. In one district in Sacramento, tent

encampments have increased 466% since Martin was

decided; crime both by and on homeless individuals

has risen. And in Hollywood, where the community

has historically embraced its homeless residents, the

systems and services have been overwhelmed. As

much as the community fights to lift those

experiencing homelessness out of poverty, without

incentive to stay clean and off the streets, many—if

not most—revert to old habits. Throughout the Ninth

Circuit, our cities have lost one of their most

important tools to ensure safety and sanitation while

5

connecting homeless

enforcement of the law.

persons

with

services:

The legal conflict between the circuits forces cities

nationwide to choose between their respective

obligations to maintain safe and clean cities and fear

of violating the constitution. The private sector,

through business management associations, has

made every effort to fill the shoes of local governments

to find solutions, but without constitutional authority

to regulate conduct, that effort is overwhelmed by the

depth of the crisis.

Just three months ago in Austin, Texas the city

council repealed or significantly amended several

ordinances due to the increasing confusion about

government’s authority in regulating its own streets.

The number of people sleeping on sidewalks in

downtown Austin has since increased by 135%,

causing pandemonium in the community. In cities like

Baltimore, Indianapolis, and Chicago, local

governments remain in flux, unsure about how to

address these issues in ways that are both humane

and constitutionally permissible. This has resulted in

tragedy on the deepest levels: people dying subject to

the elements, violent attacks on and by homeless

individuals, sexual assaults on homeless women, the

mentally ill and drug-addicted left to languish without

the means to help themselves or mental acuity to

accept help from others.

With the lack of clarity in the law, local

governments have delegated by abnegation to the

private sector which is limited in its capabilities.

6

Allowing our homeless neighbors to reside on the

streets is no good for anyone. For the businesses this

means a struggle. For the homeless, this may mean

death. For all of us it means a loss of humanity.

ARGUMENT

I. The Consequences of the Ninth Circuit’s

Decision Have Been Devastating to its Cities

Today’s homeless crisis has been building for

years. Simultaneously, urban centers, the traditional

powerhouse of the local economy, have experienced a

resurgence in development, with intentional efforts to

encourage community at all levels. Due to various

policy decisions and legal challenges, city

governments have become increasingly ineffective at

managing this crisis. And so the private sector has

embraced this responsibility: Centro San Antonio

invested $140,000 in homeless outreach and street

clean-up programs; Downtown Seattle Association

formed a Human Services Committee to identify roles

for the business community in each of the city’s most

prominent homeless issues; Washington D.C.’s

Downtown Business Improvement District manages

and coordinates services at the Downtown Service

Center;

Hollywood’s

Entertainment

Business

Improvement District helped established Hollywood

4WRD (“Four Walls, a Roof, and a Door”), a broad

coalition coming together to coordinate homeless

outreach, expand housing alternatives, connect

homeless person with existing services, and develop

new services as needs are identified. But without the

constitutional authority to regulate behavior and

7

enforce order, the crisis grown larger than the private

sector can manage. With the lower court’s order in

Martin v. City of Boise, cracks emerge in the dam. The

practical result has been nothing short of disastrous

for the housed and the homeless alike.

A. Los Angeles, California

Los Angeles current ability to house all homeless

within the city, 2 and will not for at least a decade, if

ever. Thus, as accurately predicted, is has simply

“abandon[ed] enforcement of a host of laws regulating

public health and safety.” Martin v. City of Boise, 920

F.3d 584, 594 (9th Cir. 2019) (Smith, J., dissenting).

Citing Martin, the City of Los Angeles entered into

a settlement agreement earlier this year permitting

homeless individuals to live and maintain a nearly

unlimited amount of property on the sidewalks in Skid

Row, a 50-square block area in the heart of downtown

L.A. The Los Angeles City Attorney has explained

that after Martin, the city had no choice but to

abandon enforcement of both its anti-camping and

property restriction laws. Now that policy has

extended city-wide and unincorporated areas of Los

Angeles County have followed suit.

According to Los Angeles Housing Services

Authority, the homeless count in Los Angeles has

2 Los Angeles’ homeless population is growing at a rate that faroutpaces its housing provision, with no plan even being discussed

that would meet Martin’s high standard. Mayor Eric Garcetti,

LA Homeless Growing Faster than Homeless Housing, CityWatch

(June 13, 2019).

8

nearly doubled in the last three years; Los Angeles

County has nearly 60,000 homeless persons,

approximately 75% of whom are unsheltered. By far

the highest concentration of those unsheltered is

found in Skid Row. With increased population

density, unlimited property accumulation has become

a hotbed for flea-infested rats and other vermin, which

are largely responsible for the recent outbreaks of

medieval disease. 3 Large items also obstruct the free

passage and use of the streets and sidewalks. With

increased homeless encampments has come rampant

drug sales and use which in turn provides a platform

for violent assaults and property crimes. 4 The

structures, garbage, human waste, and other detritus

allowed to flourish creates an ongoing situation

throughout Skid Row that is crippling for local

3 See e.g., Joel Grover and Amy Corral, LA’s Rat Problem Grows

Even After City Cleans Up Trash Heaps Revealed by NBC4 ITeam, NBC Los Angeles (June 10, 2019, 10:24 PM),

https://www.nbclosangeles.com/news/local/LA-Crawling-WithRodents-511112152.html

4 Eric Leonard, Crime Amongst LA’s Homeless Population Rises

Again, NBC Los Angeles (Feb. 13, 2019, 3:06 AM),

https://www.nbclosangeles.com/news/local/Crime-Amongst-LAsHomeless-Population-Rises-Again-505807741.html);

Nicholas

Slayton, Crime Rises Again in Downtown, Los Angeles

Downtown

News

(Jan.

15,

2019),

http://www.ladowntownnews.com/news/crime-rises-again-indowntown/article_19c44618-1834-11e9-8cc9-0b48238c2c95.html

(“The 2018 figures were higher than 2016 levels in almost every

category.”)

9

businesses, unlivable for residents, and often deadly

for those on the street. 5

The massive build-up of property and tents has

made the sidewalks unpassable: Charles Van Scoy,

who is restricted to a wheelchair is trapped in his own

home; Karyn Pinsky must walk with her young son in

a stroller in the middle of traffic. 6 The Inner-City Arts

Center had to hire security to walk with students and

staff to and from campus. Id. Business owners in the

area have suffered: customers cannot access their

businesses or are declining to hire them due to

conditions on the street, they are spending hundreds

of thousands of dollars on increased sanitation and

security measures and cannot maintain employees.

Id. Joseph Burke has lost tenants and hundreds of

thousands of dollars in client accounts. Id. Residents

and workers throughout the area are confronted daily

by disease, illicit drug sales and use, prostitution, and

general filth and squalor. Id. A single mother living

in the heart of skid row with her child regularly has

to disinfect her home because of the fleas that ride on

their pant legs as they walk past homeless

encampments surrounding their building. People are

5 Steve Lopez, Column: He died Sunday on a West L.A.

sidewalk. He was homeless. He is part of an epidemic, L.A.

Times (Sept. 4, 2019, 10 AM),

https://www.latimes.com/california/story/2019-09-04/homelessdeaths-los-angeles-coroner-record

See Declarations in Support of Motion to Intervene at Docket

No. 120-3, Mitchell v. City of Los Angeles, et al., (C.D. Cal. June

24, 2019) (No. 16:cv-01750-SJO-JPRx).

6

10

openly using drugs, urinating and defecating in

public. Id.

This travesty is not limited to the Skid Row area:

in the nearby Fashion District, approximately 400

people sleep on the streets every night without basic

services: trash pickup, toilets, showers, sinks, kitchen,

or laundry. At the flower markets, customer cars are

broken into and tents prevent patrons from loading

their vehicles. The industrial buildings have endured

fires from homeless camps, where heaters are set up

to keep people warm, open air fires are used to cook

food, utility wiring is tampered with to provide

electricity, and arson is committed due to some drug

or property dispute. In the first six months of 2019,

there were 65 fires just in this one small area.

Businesses are being dropped by insurance companies

because of the fire risks due to the homeless living on

their sidewalks. 7 Buildings have had to drastically

increase security. The Fashion District Business

Improvement District purchased hazmat suits and

special cleaning mats for their maintenance workers

who clean the sidewalks.

Local businesses have had to close public

restrooms to all guests due to pathogenic remnants

and misuse of such spaces for drug dealing, sleeping,

exposure, and assaults. The frequency of criminal

7 Joel Grover and Amy Corral, Your Insurance is Canceled

Because of Homeless Tent Fires, NBC Los Angeles (Sept. 23,

2019, 10:54 PM), https://www.nbclosangeles.com/news/local/LAHomeless-Encampment-Fires-Insurance-Rates-TentsHomelessness-561145811.html

11

conduct has expanded to the point where even

determined law enforcement officials can respond only

to the most violent conduct—and typically only after

serious injury has occurred. Recidivism is rampant as

even the few arrested quickly return to the streets.

A significant investment has been made in

downtown Los Angeles to build large-scale housing

developments to accommodate a larger population.

Yet now with the very real threats of exposure to

disease, hazardous waste, violence and crime on their

doorsteps, that population growth is beginning to

reverse; taking with it the economic engine driving the

local economy and those providing a significant source

of the much-needed homeless support.

B. Seattle, Washington

Over the last several years Seattle has experienced

a steady withdrawal of City services involving

individuals experiencing homelessness, peaking last

year with the Martin decision. Compounding this

problem is the federal consent decree Seattle Police

Department has been under, largely surrounding its

use of force (many involving homeless persons). While

the use of police was in many instances unsuitable, no

other city program has been instituted to replace

police contacts.

The City of Seattle has also stopped arresting

people with less than three grams of narcotics. 8 This

8 Eric Johnson, Seattle is Dying, KOMO News (Mar. 14 2019),

https://komonews.com/news/local/komo-news-special-seattle-isdying.

12

has created an environment of open-air drug use, with

people

shooting

heroin

and

smoking

methamphetamine in public with impunity. Id. Many

of these narcotics users are also suffering from mental

health issues, turning to opioids and other street

drugs to self-medicate. The proponents of this

approach cite the same arguments as the majority

opinion in Martin: that drug addicts are compelled to

use narcotics, and if they happen to be in public that

is not their fault. This drug culture is fueled by

shoplifting and trading in stolen goods, which are

often not prosecuted and as a result barely reported. 9

Shopkeepers must rotate managers and clerks to ease

the psychological burden of being on the front line of

this crisis.

Seattle’s regional economic boom has priced out

the entry and mid-level wage earners; as a result,

there are a high number of people who are connected

to Seattle through health care needs, jobs, and the

drug market but cannot afford housing. The mental

health system is broken, with very few inpatient beds

available. Homeless persons suffering from severe

mental illnesses are held until they are minimally

stable, then released without follow-up care. Certainly

System Failure: Report on Prolific Offenders

Criminal Justice System (Feb. 2019),

9 Scott P. Lindsay,

in

Seattle’s

https://downtownseattle.org/files/advocacy/system-failureprolific-offender-report-feb-2019.pdf

13

not all these issues were created by the courts, but

they do provide the fuel to the Ninth Circuit’s match.

The issues outlined above have created a

convergence zone in downtown Seattle of people living

on the streets in tents or make-shift lean-tos, without

bathrooms, using narcotics in the open, accumulating

property and refuse en masse, while city officials stand

by powerless to act. 10

Lou Bond manages Melbourne Tower, a beautiful

ten-story office building in the heart of downtown

Seattle near the city’s famous Pike Place Farmers

Market, the Convention Center, and the waterfront.

In the past year he has seen fighting, beatings,

stabbings, and shootings; he watches people inject

heroin all over their bodies, his staff cleans up needles

and human waste multiple times a day. He witnesses

people stealing and running out of stores, selling

stolen merchandise on the sidewalks, and passed out

on the sidewalks in front of his building. He calls

police and they tell him there is nothing they can do.

Last month Tija Petrovich was attending an art

walk presentation in Pioneer Square when her

partner was attacked by a mentally unstable

homeless man who picked her up off her feet and

slammed her into the wall, then turned to attack

others in the group. The month prior to that Tija’s life

was threatened. Before that she was attacked from

behind by a homeless woman with a bag of glass

bottles and metal objects. Studies have shown that

10 Johnson,

Seattle is Dying, supra.

14

increased time spent experiencing homelessness leads

to higher levels of psychiatric distress, and lower rates

of recovery from mental illnesses. 11 By leaving

society’s defenseless to remain on the streets in the

name of compassion and civil rights, we are ensuring

their ultimate decline. By removing crucial tools from

our local governments to get people help, the lower

court in Martin is allowing them to die “with their

rights on.” 12

C. Sacramento, California

Sacramento’s River District has long been home to

multiple social services agencies and homeless

individuals. While there are more than 400 shelter

beds available in the district, there is also the highest

concentration of tents on sidewalks and in parks. In

July 2017, the tent count was under 30; today it is over

140 just in that one district. With a population of 1.5

million, Sacramento County counted 124 homelessrelated deaths in 2017. 13 If you are homeless in

11 Castellow, J., Kloos, B., Townley, G., Previous homelessness as

a risk factor for recovery from serious mental illnesses.

Community Mental Health Journal, vol. 51, pp. 674-84 (Aug.

2015).

12 Treffert, DA, Dying With Their Rights On, American Journal

of Psychiatry, 130(9), p. 1041 (Sept. 1973).

13 Sacramento County Department of Health Services,

Sacramento County 2018 Homeless Deaths Report: 1/1/201712/31/2017 (Nov. 16, 2018),

https://dhs.saccounty.net/PRI/Documents/Health%20Care%20fo

r%20the%20Homeless/Meeting%20Materials/2018/20181116/Ho

15

Sacramento, your life expectancy is reduced by 33%

(30 years for homeless women, 23 for homeless men).

Id.

Vaughn Medford is the general manager for

Sacramento Pipeworks, a climbing and fitness gym in

the River District. His building is surrounded on three

sides by homeless encampments, about which the City

says it can do nothing due to the Martin decision.

Recently one of the female residents from one of the

tents broke a building window and flung a feces-filled

towel inside; she returned later and attempted to

heave a bag filled with urine through the same

window. The month prior, one of his members

cancelled his membership in a letter, noting: “This

morning there was a man on the sidewalk outside the

open garage door. From the weight room I could see

him injecting IV drugs, his pants down and his

genitals fully exposed. He was in view of a number of

children who were also at the gym.” Due to the

building’s surroundings, the children served by the

center has been reduced drastically, from 1,558 in

2015 to only 500 projected in 2019.

Various management entities in Sacramento have

partnered with a group called Downtown Streets

Team who employee homeless individuals in

beautification projects in exchange for gift cards. The

program is effective, but only for those who want to

utilize its services; for those who, due to mental health

issues, drug addiction, or any other reason, wish to

meless%20Deaths%20Report%202017%20%20PowerPoint%20Presentation.pdf.

16

remain on the street without lawful employment,

there is no legal recourse.

According to the Downtown Sacramento

Partnership homeless count, there has been a 47%

increase in homeless persons living in public spaces

from 2017 to 2019. Comparing the first half of 2019 in

downtown Sacramento to the first half of 2018,

‘Business robbery’ increased 100%, ‘Robbery of

Person’ increased over 50%, ‘Business Burglary’

increased 33% and ‘Motor Vehicle Theft’ increased by

almost 30%. These increases not only reflect a change

in the ability to manage the public spaces around

businesses, but also an inability to manage criminal

elements.

Salon owner Liz Novak had to shut down her salon

because of the encampments outside her business,

with its concomitant urine, feces, garbage, and crime;

glass shop owner Robert Dutra was barricaded in his

business for an hour with his four-year old child until

the police could come. 14 The City needs tools to be able

to address the issues on a case-by-case basis. If

assistance is unwelcome or declined, city officials

must still have the means to enforce and maintain

public health and safety standards for the greater

good of everyone, including the homeless. Martin has

California’s homeless crisis engulfs its capital

as Sacramento’s business owners tell how they confront naked

junkies and streets covered in feces, urine, and syringes—with

no solution in sight, Daily Mail (Aug. 28, 2019, 12:19 PM),

14 Martin Gould,

https://www.dailymail.co.uk/news/article-7396585/Californiashomeless-crisis-engulfs-capital-Sacramentos-people-confrontnaked-junkies.html.

17

created a hot seat where the most vulnerable among

us is left as prey for the predators, and somehow this

is celebrated as progress.

D. Hollywood, California

Hollywood—a neighborhood within Los Angeles,

but sufficiently distinct to require separate

discussion—is home to four business improvement

districts (“BIDs”), funded by self-imposed assessments

on property owners to secure public services beyond

what the city provides, such as additional waste

management, security and street cleaning. The

community was an early adopter of supportive

housing models and proactively worked to find offstreet solutions for Hollywood’s chronically homeless

and those who found more heartbreak there than

fame. Martin and its predecessors have, however,

eroded Hollywood’s prior success. The area has

experienced an increase in street encampments and in

quality of life crime, as law enforcement efforts,

hamstrung as they are, have been overwhelmed.

Hollywood embraced the City’s “bridge home” project,

an effort to temporarily house and ultimately stabilize

seventy chronic homeless locals. But those operating

the facility acknowledge that a substantial number of

entrants choose not to follow even their few

residential rules and return to the streets—where law

enforcement is, by virtue of the practical impacts of

Martin, unable to enforce anti-camping restrictions

even for those who have refused shelter. Hollywood’s

experience proves that even expensive temporary

18

shelter is no solution in the absence of coextensive law

enforcement.

Amber Mead, a Hollywood resident, watched as

police officers retrieved two machetes, drug

paraphernalia, and bags of human waste from a tent

blocking her path to work; she no longer considers

walking a viable commuting option. Jim Moushoul, a

small business owner, has had rocks hurled through

his windows on multiple occasions and has to clean

human waste from his business frontage on a daily

basis, often all from the same offenders after arrest

and prompt release. Public defecation, urination,

masturbation, and other forms of exposure have

become commonplace. Verbal and physical attacks on

women has imprisoned female residents in their own

homes and vehicles. Some businesses have taken to

escorting employees to lunch or, worse, insulate them

within office buildings by providing meals and other

amenities so they never have to venture onto

Hollywood’s streets.

Since the opening of the “bridge home” facility six

months ago, a project supported by the Hollywood

Entertainment District BID, BID employees have

conducted a weekly count of homeless throughout the

district and have seen a 50% increase. A survey of

nearly 1000 residents, business and property owners,

and local employees had startling results: 75%

described Hollywood as “very dirty/dirty” and 46%

characterized Hollywood as “very unsafe/unsafe,”

attributing these conditions most often to

homelessness.

The top four issues respondents

19

considered most important for Hollywood were

“homeless services” (83%), “cleanliness” (79%), “public

safety” (67%), and “disruptive street behavior” (63%),

again virtually entirely related to homeless

encampments. All this despite some 60 organizations

in Hollywood providing homeless services and the

BID’s expenditure of $2 million for supplemental

street cleaning services, removal of 15 tons of trash

per week from public homeless encampments, and $3

million for safety and security services.

The Hollywood community has been a good citizen,

welcoming a shelter and coordinating services and

providers for the benefit of those living on the streets

who truly need and want help. But without practical

street-level enforcement of quality of life protections

to discourage those who don’t want help from preying

on everyone else—protections as important for those

on the streets as for those who live, work, and visit

Hollywood—this most famous “city” in the world, built

on hope and visited by ten million people yearly, is

able to offer less and less.

II. Outside the Ninth Circuit, the Ambiguous

Language and Circuit Split is Wreaking

Havoc

Between the split of authority and the ambiguity

in the Martin order, cities are left baffled about how

to balance their obligations to maintain the safety,

health and welfare of its citizens with constitutional

rights of its homeless. Rather than grapple with these

issues and face costly litigation, cities even outside the

Ninth Circuit are throwing up their hands and

20

refusing to act at all. And just as in the Ninth Circuit,

the practical result has been disastrous.

A. Austin, Texas

Austin is suffering its own homelessness crisis. In

June of this year, in direct response to the Martin

decision and threats of nationwide litigation aimed at

extending Martin to other jurisdictions, Austin

amended multiple ordinances relating to homeless

activities. It is no longer a crime to “camp” or sit/lie

down in a public area unless that individual is

“intentionally, knowingly, or recklessly” a health or

safety threat or is making the use of public property

“unreasonably inconvenient or hazardous.”

Before the amendments, officers had a 98 percent

voluntary compliance rate; that is, they wrote

citations only two percent of the time they

encountered persons violating these ordinances.

Typically, officers and other city workers were able to

use these ordinances to incentivize homeless persons

to utilize social services. With the new ordinance

amendments, the number of people living on

downtown sidewalks just in the last couple months

has increased by 135 percent and homeless persons

have no incentive to utilize services…so they don’t.

Austin has consistently ranked in the top five

safest large cities in the United States.

Now

downtown office tenants are declining to renew leases.

Companies recently recruited to downtown are

expressing regret and failing to expand or sustain

Austin operations. Employees and residents report

21

being assaulted, aggressively pursued, and harassed

on their way to and from offices. Hotels report that

post-visitor survey show that an increasing number of

travelers say they will never return. Meeting and

convention groups are choosing to go to other cities

citing incidents of aggressive behavior and the

perception of lack of public safety as reasons.

Residents are making plans to move out of downtown.

For the past three months, this issue has nearly

consumed city management, city council members,

the Downtown Austin Alliance (DAA), and many key

stakeholders and citizens. It is driving a wedge into

the community at a time when it needs to be united in

its efforts to address homelessness. Incidents of

retribution targeting the homeless or their property

have been reported.

For many years the DAA has played a leadership

role in efforts to address homelessness. Since July 1,

there have been five community forums about the

ordinances that drew attendance of approximately

4,000 people. At most events, the audiences have

remained civil, but at others, attendees have become

quite heated, expressing anger, and resentment; a

clear reflection of compassion-fatigue.

In its September 18-20 meetings, the Austin City

Council once again considered amending the

ordinances. At a special-called Council meeting held

on September 18, 270 citizens testified. And, contrary

to the Council’s stated intention to implement

restrictions as more shelter, services and housing

were made available, there have been no new

22

emergency shelter beds, navigation centers or

services, temporary or permanent housing units

created or approved. Council postponed the vote,

citing the contentiousness of the meetings.

Without guidance from this Court, Austin remains

paralyzed and its community in crisis. Its homeless—

desperately in need of help—will begin to deteriorate

and soon may resemble those in California.

B. Chicago, Illinois

Chicago’s homeless response is inconsistent, based

on a series of vague municipal codes, an ambiguous

“Homeless Bill of Rights,” and legal settlements that

may or may not be binding on the city. 15 While the

city pays lip service to addressing its homeless

population, it leans heavily on the business

management associations, such as Chicago Loop

Alliance, for primary contact. The Chicago Loop has

outreach ambassadors, street clean-up teams and

protocols in place to address concerns like aggressive

panhandling or tents set up that block public rightsof-way. Yet when the situation goes beyond voluntary

compliance, and criminal conduct needs to be

Odette Yousef, Where can homeless people pitch tents in

Chicago?, Chicago Coalition for the Homeless (Oct. 23, 2017),

15

https://www.chicagohomeless.org/wbez-can-homeless-peoplepitch-tents-chicago/.

23

addressed, city officials are reticent to act due to the

uncertain legal climate.

There is a long-standing tent encampment in an

area of Chicago known as “South Loop.” In January

of this year, a propane tank exploded; 16 in February

one man shot and killed another over an argument

about a heater. 17 City workers came in and tried to

connect residents with shelters and other housing,

while cleaning the area; many refused and chose to

stay. 18 In April a woman was sexually assaulted by a

fellow resident. 19 In July, another woman was

sexually assaulted and severely beaten after one of the

encampment residents promised to provide her

Propane tank explodes at South Loop tent city,

80 homeless people forced to move, ABC Chicago (Jan. 30, 2019),

16 Evelyn Holmes,

https://abc7chicago.com/propane-tank-explodes-at-south-looptent-city-80-homeless-people-moved/5113652/.

Homeless man shot to death at “Tent City” in

South Loop: state police, Chicago Sun Times (Feb. 19, 2019),

17 Tom Schuba,

https://chicago.suntimes.com/2019/2/19/18355088/homelessman-shot-to-death-at-tent-city-in-south-loop-state-police.

Mitchell Armentrout, Massive Tent City cleanup biggest in

recent memory, residents say, Chicago Sun Times (Mar. 29,

18

2019),

https://chicago.suntimes.com/2019/3/29/18458338/massive-

Homeless woman sexually assaulted in “Tent City” in

Chicago, Fox Chicago (Apr. 3, 2019),

19

https://www.fox32chicago.com/news/homeless-woman-sexuallyassaulted-in-tent-city-in-chicago.

24

shelter. 20 Meanwhile garbage builds and unsanitary

conditions thrive. Every attempt to clear and clean the

area has been met with threats of legal challenge and

city officials unclear on the law governing these

issues, sit on their hands. The encampment remains

today.

C. Indianapolis, Indiana

In response to a lawsuit several years ago,

Indianapolis established a “Homeless Bill of Rights”

modeled after Chicago’s.

While the intent was

honorable and noble, in practice it has become more

difficult to connect homeless people with services.

Since 2015, while the number of homeless persons has

steadily decreased, the number of people who are

dying after experiencing homelessness has been

steadily increasing. 21 Homeless individuals are now

exposed to the elements for longer periods of time,

many of whom are self-medicating with alcohol and

narcotics; the result is not only leading to increased

Woman sexually assaulted at

homeless encampment after man promised to find her shelter,

20 Matthew Hendrickson,

Chicago Sun Times (July 11, 2019),

https://chicago.suntimes.com/2019/7/11/20690686/tent-cityhomeless-camp-chicago-sexual-assault-crime-kenneth-horner.

Hayleigh Colombo, Indianapolis grappling with increase in

deaths among homeless population, Indianapolis Business

21

Journal (Jan. 24, 2019), https://www.ibj.com/articles/72185indianapolis-grappling-with-increase-in-deaths-amonghomeless-population.

25

deaths by natural causes, but also drug overdoses,

suicides, and homicides.

Peggy Thomas lived on the streets for over a

decade when she was found in winter two years ago

“basically frozen to the ground, her heart rate almost

gone.” She soon was placed in permanent housing, but

never fully recovered “mentally or physically” and

died within two years. Id.

Downtown Indy is a private, nonprofit

organization focusing on developing, managing, and

marketing downtown Indianapolis. It is helping to

coordinate multiple agencies, support building new

housing units, and reach into this crisis on a groundlevel; yet like other cities, its effectiveness is limited

by its lack of constitutional authority bestowed

exclusively on the government. And yet for reasons of

legal ambiguity, the local government is not acting

and people, like Peggy, are dying.

D. Baltimore, Maryland

As in other large cities, Baltimore is left in the dark

on how to address its homeless issues. And like

Seattle, the issue is more complicated because the

city’s police department has been under a consent

decree for years. With insufficient guidance from the

courts on the legality of ordinances addressing the

myriad of homeless issues, the city has declined to

pass virtually any restrictions on public living. Even

high-level nuisance laws are ignored. Aggressive carwindow-washing by homeless people has become an

issue: people are trapped in their cars and intimidated

26

into giving money for a service they did not ask for; if

payment is declined, often there is retaliation. Yet the

city has no restrictions against aggressive

panhandling, largely due to the confusion about the

constitutionality of such an ordinance.

The city now looks to the private sector, specifically

the Downtown Partnership of Baltimore, for virtually

all homeless support, including helping homeless

persons obtain identification, connecting them with

families where possible, finding temporary or

permanent housing, and addressing immediate

concerns like food and clothing. Baltimore Police

Department is even disbanding its Homeless

Outreach Team for lack of efficacy. When a homeless

individual is trespassing on private property, and that

property owner or store manager calls the police, if an

officer even arrives the owner or manager is typically

told that unless there was a violent assault, the officer

will not address it. Even when a person is in crisis

officers are rarely willing to justify a petition for

emergency assistance because of the legal

implications.

The City of Baltimore’s unwillingness or inability

to act effectively on this issue did not start with

Martin, but Martin has muddied the already opaque

waters surrounding a local government’s legal

capabilities in addressing homeless-related issues. It

is easier to do nothing than to do the wrong thing and

face a lengthy court battle or (perhaps worse

politically) bad press. Yet that means once again the

onus is placed on the private sector to try to cover

27

what is typically a government responsibility. And

yet, once again, the private sector lacks the authority

to enforce laws, thereby making its efforts minimally

effective. When a person rebuffs efforts to re-connect

her to civilization, and there is no incentive for her to

do so, she is subject to the elements … and in

Baltimore’s harsh weather, that means death. 22

CONCLUSION

Cities want to help. Private businesses and

residents want to help. We as a society want to lift

our poor and downtrodden up off the street and into a

better life. Martin, though well-intentioned, does the

opposite.

It removes a crucial tool from local

governments’ toolbelts, making the connection

between shelter-resistant homeless and critical

services nearly impossible. As our homeless stay on

the

streets

longer,

they

are

irreparably

psychologically and physically affected; crime

increases, diseases spread, homelessness becomes

entrenched, acts of violence become commonplace, and

rampant drug use further compounds the challenges

facing the homeless, making it nearly impossible for

people to move out of homelessness and gain economic

stability. And as we as citizens are forced to sit by and

watch it happen, our humanity slips away. Amici urge

22 Theo Hayes, Crews working to offer resources to homeless

during bitter cold, WBAL TV 11, show transcript (Jan. 30, 2019,

5:17 PM), https://www.wbaltv.com/article/baltimore-homelessbitter-cold-conditions/26090995.

28

this court to grant review and address this most

pressing crisis.

Respectfully Submitted,

MATTHEW D. UMHOFER

ELIZABETH A. MITCHELL

Counsel of Record

SPERTUS, LANDES, & UMHOFER LLP

617 W. 7TH STREET, SUITE 200

LOS ANGELES, CA 90017

(213) 205-6520

emitchell@spertuslaw.com

SEPTEMBER 24, 2019

29

CERTIFICATE OF WORD COUNT

As required by Supreme Court Rule 33.1(h), I certify

that the document contains 5,985 words, excluding

the parts of the document that are exempted by

Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on September 24, 2019

___________________________

Elizabeth A. Mitchell

Spertus, Landes, & Umhofer LLC

30

APPENDIX OF EXHIBITS

TABLE OF CONTENTS

Exhibits A-M ........................... Los Angeles, California

Exhibits N-S ................................. Seattle, Washington

Exhibits T-X ............................ Sacramento, California

Exhibits Y-CC ........................... Hollywood, California

Exhibits DD-HH .....................................Austin, Texas

Exhibits II-MM ................................... Chicago, Illinois

Exhibits NN-PP ......................... Indianapolis, Indiana

Exhibits QQ-RR .......................... Baltimore, Maryland

Exhibit A: Los Angeles, California

Exhibit A

Exhibit B: Los Angeles, California

Exhibit B

Exhibit C: Los Angeles, California

Exhibit C

Exhibit D: Los Angeles, California

Exhibit D

Exhibit E: Los Angeles, California

Exhibit E

Exhibit F: Los Angeles, California

Exhibit F

Exhibit G: Los Angeles, California

Exhibit G

Exhibit H: Los Angeles, California

Exhibit H

Exhibit I: Los Angeles, California

Exhibit I

Exhibit J: Los Angeles, California

Exhibit J

Exhibit K: Los Angeles, California

Exhibit K

Exhibit L: Los Angeles, California

Exhibit L

Exhibit M: Los Angeles, California

Exhibit M

Exhibit N: Seattle, Washington

Exhibit N

Exhibit O: Seattle, Washington

Exhibit O

Exhibit P: Seattle, Washington

Exhibit P

Exhibit Q: Seattle, Washington

Exhibit Q

Exhibit R: Seattle, Washington

Exhibit R

Exhibit S: Seattle, Washington

Exhibit S

Exhibit T: Sacramento, California

Exhibit T

Exhibit U: Sacramento, California

Exhibit U

Exhibit V: Sacramento, California

Exhibit V

Exhibit W: Sacramento, California

Exhibit W

Exhibit X: Sacramento, California

Exhibit X

Exhibit Y: Hollywood, California

Exhibit Y

Exhibit Z: Hollywood, California

Exhibit Z

Exhibit AA: Hollywood, California

Exhibit AA

Exhibit BB: Hollywood, California

Exhibit BB

Exhibit CC: Hollywood, California

Exhibit CC

Exhibit DD: Austin, Texas

Exhibit DD

Exhibit EE: Austin, Texas

Exhibit EE

Exhibit FF: Austin, Texas

Exhibit FF

Exhibit GG: Austin, Texas

Exhibit GG

Exhibit HH: Austin, Texas

Exhibit HH

Exhibit II: Chicago, Illinois

Exhibit II

Exhibit JJ: Chicago, Illinois

Exhibit JJ

Exhibit KK: Chicago, Illinois

Exhibit KK

Exhibit LL: Chicago, Illinois

Exhibit LL

Exhibit MM: Chicago, Illinois

Exhibit MM

Exhibit NN: Indianapolis, Indiana

Exhibit NN

Exhibit OO: Indianapolis, Indiana

Exhibit OO

Exhibit PP: Indianapolis, Indiana

Exhibit PP

Exhibit QQ: Baltimore, Maryland

Exhibit QQ

Exhibit RR: Baltimore, Maryland

Exhibit RR