Amicus Curiae Brief — City of Grants Pass, Oregon, Petitioner v. Gloria Johnson, et al., on Behalf of Themselves and All Others Similarly Situated
Supreme Court briefSep 11, 2023
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No. 23-175
In the Supreme Court of the United States
__________
CITY OF GRANTS PASS,
PETITIONER
v.
GLORIA JOHNSON AND JOHN LOGAN,
RESPONDENTS
_________
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
____________
BRIEF OF AMICI CURIAE FREDDY BROWN
ET AL. IN SUPPORT OF PETITIONER
CITY OF GRANTS PASS
__________
ILAN WURMAN*
STEPHEN W. TULLY
MICHAEL BAILEY
Tully Bailey LLP
11811 N. Tatum Blvd.
Suite 3031
Phoenix, AZ 85028
(480) 965-2245
iwurman@tullybailey.com
*Counsel of Record
Counsel for Amicus Curiae
QUESTION PRESENTED
Does the enforcement of generally applicable laws
regulating camping on public property constitute
“cruel and unusual punishment” prohibited by the
Eighth Amendment?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................... i
TABLE OF AUTHORITIES ....................................... iii
INTEREST OF AMICI CURIAE ................................. 1
SUMMARY OF THE ARGUMENT ............................ 2
ARGUMENT ................................................................ 3
I. The Court should grant certiorari because the
Ninth Circuit decisions have directly led to
increases in public camping as City officials
used those decisions as an excuse to stop
enforcing camping and sleeping bans. ................... 3
II. The Court should grant certiorari because the
distinction between involuntary and voluntary
homelessness is difficult to apply, leading to
an increase in public encampments and
unsheltered homelessness...................................... 8
III.The Court should grant certiorari because the
Ninth Circuit decisions have created a
humanitarian crisis in Ninth Circuit states
where both sheltered and unsheltered
homelessness have increased dramatically
relative to other states. ........................................ 11
CONCLUSION .......................................................... 12
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Freddy Brown et al. v. City of Phoenix,
No. CV2022-010439 (Maricopa County
Superior Court) ............................................ 1–3, 11
Fund for Empowerment et al. v. City of Phoenix
et al., CV-22-02041-PHX-GMS (D. Ariz.) ................ 1
Johnson v. City of Grants Pass,
50 F.4th 787 (9th Cir. 2022), amended on denial of
reh’g, 72 F.4th 868 (9th Cir. 2023) ................ 1–4, 12
Martin v. City of Boise,
902 F.3d 1031 (9th Cir. 2018), amended on denial
of reh’g,
920 F.3d 584 (9th Cir. 2019) ............ 1–4, 6–7, 10–12
INTEREST OF AMICI CURIAE *
Amici Freddy Brown, Joel and Jo-Ann Coplin, Joseph and Deborah Faillace, Karl Freund, Gallery 119,
Michael Godbehere, Jordan Evan Greenman, Rozella
Hector, Daniel and Dianne Langmade, Ian Likwarz,
Matthew Lysiak, Michael Lysiak, Old Station Sub
Shop, PBF Manufacturing Co., Inc., Phoenix Kitchens
SPE, LLC, and Don Stockman, are homeowners,
businessowners, or property owners between 7th and
15th Avenues and Van Buren and Grant Streets in
Phoenix, Arizona, in a part of downtown known as
“the Zone.”
The Zone comprises several city blocks of open-air
public encampments on the streets and sidewalks
with a population of upwards of 1,000 unsheltered
individuals. Amici are Plaintiffs in a state court action, Freddy Brown et al. v. City of Phoenix, No.
CV2022-010439, in Maricopa County Superior Court,
where they have thus far successfully sued the City of
Phoenix for creating and maintaining a public nuisance. The City has invoked both the Martin v. City
of Boise and Johnson v. City of Grants Pass decisions
as a defense to the nuisance claims. Amici are also
intervenors in a federal court action, Fund for Empowerment et al. v. City of Phoenix et al., CV-2202041-PHX-GMS (D. Ariz.), where the plaintiffs there
* In accordance with Rule 37.6, no counsel for any party
authored this brief in whole or in part, and no person or entity
other than amicus made a monetary contribution intended to
fund the brief’s preparation or submission. In accordance with
Rule 37.2, this brief was filed at least 10 days prior to the filing
deadline, providing sufficient notice to the parties.
2
invoked these decisions to seek a federal injunction to
prevent the relief amici sought in state court.
Amici file this brief in support of certiorari to lay
before this Court the stark evidence of the negative
consequences that have resulted from the Boise and
Grants Pass decisions, and the havoc those decisions
have wrought in cities within the Ninth Circuit and
in cities elsewhere that have used those decisions as
excuses to abdicate responsibility over unsheltered
homelessness.
SUMMARY OF THE ARGUMENT
1. The testimony at trial in Brown v. Phoenix established that Martin v. City of Boise, 902 F.3d 1031
(9th Cir. 2018), amended on denial of reh’g, 920 F.3d
584 (9th Cir. 2019), and Johnson v. City of Grants
Pass, 50 F.4th 787 (9th Cir. 2022), amended on denial
of reh’g, 72 F.4th 868 (9th Cir. 2023), have directly
led to increases in public encampments in Phoenix as
City officials have cited those decisions in support of
their complete refusal to enforce camping and sleeping bans, even though such a policy goes plainly beyond what the Ninth Circuit held. City officials also
admitted that they do not distinguish between voluntarily and involuntarily homeless persons, despite the
decisions being limited to the latter. Several witnesses also claimed to be “confused” by the scope of the
Ninth Circuit decision.
2. The testimony and evidence at trial in Brown v.
Phoenix demonstrated that most unsheltered (as opposed to sheltered) individuals are voluntarily homeless (that is, voluntarily unsheltered) because they
prefer to live on the streets where they do not have to
follow rules that they would have to follow in a tradi-
3
tional homeless shelter. That such individuals are
nevertheless allowed to camp on the streets reveals
the depth of confusion over the scope of the Boise and
Grants Pass decisions, the difficulty of applying the
distinction between voluntary and involuntary homelessness, or the extent to which those decisions have
given cities an excuse to refuse to enforce legislatively
enacted public sleeping and camping bans. The practical effect has been to increase public encampments
and unsheltered homelessness.
3. The evidence in Brown v. Phoenix also revealed
that since the Boise decision in 2018, both sheltered
and unsheltered homelessness have increased in
Ninth Circuit states generally relative to sheltered
and unsheltered homelessness in other states. Boise
had a real impact: it made Ninth Circuit states a
magnet for a mobile population of unsheltered persons who seek what is effectively a low-barrier shelter on the city streets where they can do drugs and
engage in other activities that would be prohibited in
a homeless shelter. In Phoenix, the photographic evidence of the size and scope of the encampments that
arose directly as a result of the Boise decision is
stark.
ARGUMENT
I. The Court should grant certiorari because
the Ninth Circuit decisions have directly led
to increases in public camping as City officials used those decisions as an excuse to
stop enforcing camping and sleeping bans.
On August 10, 2022, amici (“Plaintiffs”) filed a
lawsuit for public nuisance in Maricopa County Superior Court. Their theory was simple. The Boise de-
4
cision did not require a city to allow unsheltered persons to camp anywhere in the city at any time. Boise,
920 F.3d at 589 (Berzon, J., concurring in the denial
of rehearing en banc) (“On the merits, the opinion
holds only that municipal ordinances that criminalize
sleeping, sitting, or lying in all public spaces, when
no alternative sleeping space is available, violate the
Eighth Amendment. Nothing in the opinion reaches
beyond criminalizing the biologically essential need
to sleep when there is no available shelter.”); id. at
617 n.8 (majority opinion) (“Nor do we suggest that a
jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter
is unavailable, an ordinance prohibiting sitting, lying,
or sleeping outside at particular times or in particular locations might well be constitutionally permissible. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain
structures.”). If Boise did not prohibit all ordinances
or enforcement efforts, then surely it did not allow,
let alone require, the City of Phoenix to permit camping in such a way that would violate several state
statutes respecting public nuisances.
Despite this rather obvious point about the limit
of the Boise decision, the City routinely cited the Boise and Grants Pass decisions as a defense to the public nuisance claim—and as the reason why the City
has experienced a growth in public encampments. At
trial, the City’s lawyers argued, “The City has never
made it a point to allow people to come into an area of
town and set up shop and camp. So why is it happening? Well, let’s start with some of the most recent legal decisions that have come down out of the federal
courts that are -- that are definitely giving us some
guidance as to what we -- what we can and cannot
5
do.” Appendix A at 4a (Trial Tr. 7/10/23 at 23:9-15).
The City’s lawyers added, “[T]his is not the City creating -- having some choice or some amenity to allow
people to do this. We are constitutionally required
based on at least the majority decision in the 9th Circuit to allow some things.” Id. (24:9-13).
City officials also testified at trial that the Ninth
Circuit decisions precluded them from taking any action against public encampments whatsoever, even
though that is an obvious overreading of the decisions. In one remarkable exchange, the Deputy Director of the City’s Office of Homeless Solutions testified
that on one occasion, City officials encountered a person on the street who actually “had housing,” and
when asked if the City “force[d] that person to leave
and go back to their house,” he responded, “Well, the
City of Phoenix can’t force anybody to go anywhere
per se.” See Appendix A at 29a (264:14-25).
Similarly, the Director of the Office of Homeless
solutions testified that even if the City of Phoenix
had alternative available space in a sanctioned or
structured campsite, the City would still not force
anyone off the streets and require them to move into
the sanctioned campsite. She testified that, as a result of the preliminary injunction in the case, the City
was planning to open up a “safe outdoor space,” or
regulated campground, by September. She was then
asked, “And then at that point the City could—would
the City remove those unsheltered in the zone to that
area who are unwilling to take other shelter?” To
which she responded, “That is not the plan, no.”
When asked again, “[T]he City is not going to require
them to either move there or be subject to arrest or
. . . take other action against them?” She responded,
6
“The intention of the safe outdoor space is that it will
be voluntary just as all of our indoor shelters, it is a
voluntary option.” Appendix A at 25–26a (235:20–
237:10).
Additionally, the City’s witnesses explained that
they do not distinguish between voluntarily and involuntarily homeless persons, even though the Boise
decision specifically applied only to the latter. When
asked, “[I]s the City at this point categorizing individuals as involuntarily homeless?” The Deputy Director responded, “No. A person experiencing homelessness is a person experiencing homelessness.” Appendix A at 30a (266:2-8). He testified that the City
does not inquire into an unsheltered individual’s
means of support. Id. at 29–30a (265:1–266:1).
Finally, two of the City’s witnesses claimed that,
at a minimum, City officials are confused by the
Ninth Circuit decisions and are unclear about their
legal authority. When asked whether it is illegal for
an individual to erect a tent on a sidewalk (the City
has an anti-camping ordinance), the police commander in charge of the downtown area testified that “[w]e
get consulted by lawyers, and it’s difficult to get a
straight answer on that one.” Appendix B at 33a (Trial Tr. 7/11/23 at 83:3-14). When asked whether it
would help for the state court “to provide some guidance to you in your duties with regard to those who
are constructing tents,” the police commander responded, “So there’s two courts, as you’re aware of.
And it would help that -- if we had a -- it would help if
we had a straight answer between the two courts.” Id.
(at 83:16-22).
When asked if “[t]he reason you are not enforcing,
currently enforcing the City ordinance against camp-
7
ing in the right of ways is at the direction of the
City?,” the police commander responded that it was
at the direction of a “federal judge” and the “ninth
circuit ruling.” Appendix B at 34a (86:18–87:9). When
asked by his own counsel how the City is able to
square the state-court injunction to clear a public
nuisance with a federal-court injunction applying
Boise, the police commander testified that “It puts us
in a difficult position. It’s not easy at all to reconcile
the difference between the two suits. . . . [I]t just appears that one court is saying we are doing too much
and the other court is saying we are not doing
enough.” Id. at 35–36a (100:19–101:9).
Finally, the City’s own expert witness and consultant, Dr. Sheila Harris, testified that the Boise decision “created an era of uncertainty,” and a court order was necessary to “clarify” what the City is allowed to do. Appendix B at 42a (172:2-17). She testified “that the Boise decision has caused confusion
about what are or are not legal policies and procedures.” Id. at 43–44a (174:1-9). She added, “[T]hat’s
why we are here today. It’s not clear what that decision means.” Id. at 44a (174:14-15). She confirmed
that “clarity from a court would be helpful.” Id. (at
174:23-25).
In short, the Court should grant certiorari because
the underlying Ninth Circuit decisions have directly
led to an increase in public encampments, at least in
Phoenix, as City officials have, as a consequence of
those decisions, effectively stopped enforcing public
camping and sleeping bans altogether.
8
II. The Court should grant certiorari because
the distinction between involuntary and
voluntary homelessness is difficult to apply,
leading to an increase in public encampments and unsheltered homelessness.
At trial, the evidence revealed that the vast majority of individuals on the streets in the Zone are voluntarily homeless (that is, voluntarily unsheltered) because they would refuse access to temporary shelter if
offered. These individuals need other kinds of help—
whether because of drug use or mental health issues—but the City believes it is precluded from requiring these individuals to remove from the streets
and treat their self-destructive behaviors. The City is
either confused about how to distinguish between
voluntary and involuntary homelessness, or that distinction is difficult to apply, or the City is once again
using the Ninth Circuit decisions as cover to stop enforcing sleeping and camping bans altogether. Either
way, the Ninth Circuit decisions have in practice disabled cities from enforcing public camping and sleeping bans at all, leading to an increase in public encampments and unsheltered homelessness.
For example, the City of Phoenix’s own homelessness task force produced a report in April 2022 that
included survey data of unsheltered individuals in
the downtown Phoenix area. Appendix C at 56a; Appendix A at 12–13a (94:14–95:12). Less than 15 percent of those individuals cited the lack of available
shelter as the reason for their being unsheltered. Appendix C at 56a; Appendix B at 50a (190:17–191:11).
According to that data, approximately 50 percent of
unsheltered individuals in the Zone cite having pets,
property, or partners; not wanting to follow curfews
9
or other rules; or being mentally ill or addicted to illegal substances as the reason for their being unsheltered. Appendix C at 56a; Appendix B at 53–54a
(195:7-17).
The City’s own expert, Dr. Harris, testified that
some other reasons unsheltered individuals do not go
into shelter is that they prefer less “confined” spaces
or do not want to go through metal detectors. Appendix B at 37a, 38a, 40a (119:16-22, 128:4-10, 130:2324). For example, some unsheltered individuals have
three or four tents just to themselves. Id. at 39a
(129:12-15). Dr. Harris admitted that individuals who
cite any of the above reasons for not wanting to go into shelter are not “involuntarily homeless,” that is,
involuntarily unsheltered. Id. at 45–49a (180:6–
184:18). She confirmed that individuals who cite such
reasons for not wanting to go into shelter are not “biologically compelled” to be on the streets. Id.
The Plaintiffs’ expert witness, Dr. Judge Glock,
further testified that according to an Arizona State
University study, only 25 to 41 percent of unsheltered
individuals would accept services if offered. Appendix
A at 8a (84:7-16). Therefore, combining the available
data, the record suggests that anywhere from 60 percent to 85 percent of unsheltered individuals are typically “service resistant” and “voluntarily homeless” in
the sense that they would not accept a shelter if offered to them. Id. at 13a (96:3-5).
Additionally, the record revealed that a significantly higher proportion of unsheltered homeless
compared to sheltered homeless have substance
abuse or mental health issues, sometimes as high as
75 percent of that population. Appendix A at 7–8a
(82:7–83:15). Eight times as many unsheltered than
10
sheltered individuals cite substance abuse as the reason for their lack of housing, and three times as many
unsheltered than sheltered individuals cite mental
health issues as the reason for their being unsheltered. Id. at 8a (83:16-22). These individuals are often
service resistant because shelters do not allow substance abuse. Id. at 9–10a (85:16-22).
The City’s own expert witness explained that the
presence of fentanyl has dramatically exacerbated
the substance abuse crisis among unsheltered homeless. Appendix B at 40–41a (140:14-21); id. at 48a
(183:8-13). Individuals who are unsheltered because
they are addicted to fentanyl, which they cannot use
in a traditional shelter, are not involuntarily homeless within the meaning of the Boise decision.
Despite the differences between involuntarily and
voluntarily unsheltered persons, the City regularly
treats them the same, demonstrating the depth of
confusion over the scope of the Ninth Circuit’s decisions; that the distinction between voluntary and involuntary homelessness is difficult to apply; or that
the City has once again used those decisions as an
excuse to abdicate responsibility over public sleeping
and camping bans. The practical effect has been to
increase the number and scope of public encampments.
11
III. The Court should grant certiorari because the Ninth Circuit decisions have created a humanitarian crisis in Ninth Circuit
states where both sheltered and unsheltered
homelessness have increased dramatically
relative to other states.
The Supreme Court should also take this case because of its societal importance. In particular, the
record in the Brown v. Phoenix litigation establishes
that in states within the U.S. Court of Appeals for the
Ninth Circuit, homelessness and the number of unsheltered have gone up dramatically since that
court’s Boise decision. According to the evidence,
there has been a 25 percent increase in homelessness
(sheltered and unsheltered) in Ninth Circuit states
since Boise, while homelessness decreased in other
states. Appendix A at 22a (117:24–118:16). Studies
also show that unsheltered homelessness specifically
increased 28 percent in Ninth Circuit states while increasing only 8 percent in other states. Appendix D at
72a.
Part of the reason that unsheltered homelessness
increased as a result of the Boise decision is that individuals who would otherwise be in shelters can now
choose to live on the street. Specifically, where public
camping is an available option, cities see significantly
increased numbers of unsheltered homeless. Appendix A at 13–14a, 15–18a, 20–21a (96:13–97:22, 99:22–
102:13, 105:9-18). These same cities often see at the
same time a reduction in sheltered homeless. For example, when Austin, Texas, repealed the City’s camping ban in 2019, the unsheltered homeless population
jumped by about 45 percent within that year, while
12
the population of sheltered homeless dropped by 20
percent. Id. at 14a (97:3-11).
Additionally, the testimony revealed that the unsheltered population is generally mobile, and many
move to cities with more permissive camping policies.
Appendix A at 15–16a (98:13–99:16). Evidence from
comparable cities shows that anywhere from onethird to one-half of unsheltered individuals became
homeless in another city. Id. (99:1-16).
The consequences for Phoenix—and surely for
other jurisdictions—have been stark. The Plaintiffs
personally took several photographs of the conditions
of downtown Phoenix since the Boise decision came
down, all in the trial court record. See Appendix E at
74a–78a. They paint a picture of an American crisis—
one caused in no small part by the decision of the
U.S. Court of Appeals for the Ninth Circuit now under review by this Court.
CONCLUSION
The decisions in Martin v. City of Boise and Johnson v. City of Grants Pass have caused widespread
confusion and uncertainty over what cities can and
cannot do to tackle the growing crisis of unsheltered
homelessness. Those decisions have directly led to a
dramatic increase in both sheltered and unsheltered
homelessness in states within the Ninth Circuit relative to states elsewhere. This case is of tremendous
societal importance, and the Court should grant certiorari.
13
Respectfully submitted,
ILAN WURMAN*
STEPHEN W. TULLY
MICHAEL BAILEY
Tully Bailey LLP
11811 N. Tatum Blvd.
Suite 3031
Phoenix, AZ 85028
(480) 965-2245
iwurman@tullybailey.com
SEPTEMBER 11, 2023
*Counsel of Record
APPENDIX
APPENDIX TABLE OF CONTENTS
Page
APPENDIX A:
Freddy Brown et al. v. City of Phoenix, CV2022010439 (Maricopa County Superior Court), Trial
Transcript 7/10/23 (excerpts) ................................. 1a
APPENDIX B:
Freddy Brown et al. v. City of Phoenix, CV2022010439 (Maricopa County Superior Court), Trial
Transcript 7/11/23 (excerpts) ............................... 31a
APPENDIX C:
Freddy Brown et al. v. City of Phoenix, CV2022010439 (Maricopa County Superior Court), Trial
Exhibit 53 ............................................................. 55a
APPENDIX D:
Freddy Brown et al. v. City of Phoenix, CV2022010439 (Maricopa County Superior Court), Trial
Exhibit 54 ............................................................. 57a
APPENDIX E:
Freddy Brown et al. v. City of Phoenix, CV2022010439 (Maricopa County Superior Court), Trial
Exhibits 1, 2, 18, 21, 22, 24, 26, 28, 30, 31 .......... 74a
1a
APPENDIX A
[1] IN THE SUPERIOR COURT OF
THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
————
CV2022-010439
————
FREDDY BROWN, et al,
Plaintiff,
vs.
CITY OF PHOENIX,
Defendant.
————
Phoenix, Arizona
July 10, 2023
————
BEFORE THE HONORABLE SCOTT A. BLANEY
————
REPORTER’S TRANSCRIPT OF PROCEEDINGS
TRIAL DAY 1 - BENCH TRIAL
————
PREPARED FOR:
COPY
KRISTINE M. MAYO, RPR, CRR, CRC
Certified Court Reporter #50958
kristine.mayo@JBAZMC.maricopa.gov
————
2a
[2] APPEARANCES
FOR THE PLAINTIFFS:
BY:
Stephen W. Tully
Ilan Wurman
Attorney at Law
FOR THE DEFENDANT:
BY:
Justin Pearce
Aaron D. Arnson
Trish Stuhan
Attorney at Law
[3] INDEX
WITNESS
PAGE
IAN FRANCIS LIKWARZ
Direct Examination by Mr. Tully
Cross-Examination by Mr. Pierce
Redirect Examination by Mr. Tully
36
43
54
FREDDY H. BROWN, JR.
Direct Examination by Mr. Tully
Cross-Examination by Ms. Stuhan
Redirect Examination by Mr. Tully
61
68
73
JUDGE GLOCK
Direct Examination by Mr. Wurman
Cross-Examination by Mr. Arnson
Redirect Examination by Mr. Wurman
77
121
173
RACHEL MILNE
Direct Examination by Mr. Arnson
Cross-Examination by Mr. Tully
Redirect Examination by Mr. Arnson
192
226
239
3a
SCOTT HALL
Direct Examination by Mr. Arnson
Cross-Examination by Mr. Tully
Redirect Examination by Mr. Arnson
250
258
267
* * *
[22] THE COURT: Good morning.
MR. PIERCE: I’m going to see if I can hook this in.
MR. WURMAN: I think they have to turn it back on
for you.
OPENING STATEMENT
MR. PIERCE: And, your Honor, I did share this with
the Plaintiffs’ Counsel after we – after we met to make
sure that they were aware of the PowerPoint that I
would share with you.
Thank you for allowing us to be here today. We’re
here today primarily because this Court has asked for
the City to update it as to what it is doing to address
the issues from the preliminary injunction. I will not
spend much time discussing the legal issues that we
believe continue to exist. We have briefed those as
to why – I will mention at times why – why we will
request that the Court exercise judicial restraint, but
I don’t want to cover in significant detail all of the legal
issues that we think are complicated other than to
point out that the City of Phoenix has made, since your
preliminary injunction in March, in fact, even prior to
that, if we go back to the date of the hearing in
October, steps have been taken all along the way and
we have seen [23] some significant progress, even as
the Plaintiffs have – have noted in their opening, in
parts of the area downtown near the Human Services
Campus. The City has made extensive efforts, but
what we do need to address is what – what counsel
4a
indicated in the opening of this – this alleged amenity
that the City is providing, this right to pitch a tent on
public property, this choice to allow public camping,
that is simply not the evidence.
The City has never made it a point to allow people
to come into an area of town and set up shop and camp.
So why is it happening? Well, let’s start with some of
the most recent legal decisions that have come down
out of the federal courts that are – that are definitely
giving us some guidance as to what we – what we can
and cannot do.
You may have seen – and I don’t know, your Honor,
this is just last week, the grants passed, the 9th
Circuit issued and amended decision on it. I’ve never
really seen – it is 200 pages long, and I don’t know that
I have seen judges go after each other quite as hard as
in that – in that case. But it does inform the Court here
as to the challenges the City faces in this proposition.
I included up here some language from the dissent
where Judge O’Scannlain says that this is what the
majority is doing to cities and towns. It’s the Circuit’s
[24] jurisprudence that effectively guarantees a personal
Federal Constitutional right for individuals to camp or
to sleep on sidewalks and parks, playgrounds, and
other public places in defiance of traditional health,
safety, and welfare laws, a dubious holding premised
on a fanciful interpretation of the Eighth Amendment.
I bring that up and I’m glad I had this slide in light
of what was presented in the opening because this
simply is not – again, this is not the City creating –
having some choice or some amenity to allow people to
do this. We are constitutionally required based on at
least the majority decision in the 9th Circuit to allow
some things.
5a
Now, again, we’re going to get to what the City has
been doing in light of this, but I think it would be –
it is overly simplistic to conclude that this is just
something the City can set aside. A couple of points,
because guess what, in that – I don’t know if the Court
has had a chance to read those decisions but in
footnote, too, of that dissent, the City of Phoenix made
a cameo, your Honor, they even cited to the City of
Phoenix case, the federal case as one of the victims of
the jurisprudence.
While our mistaken jurisprudence – this is again the
dissent – in this area has some limits, we [25] should
not pretend that the jurisprudential experiments
started by Boise and expanded by grants passed,
which effectively strikes down the anti-camping and
anti-sleeping ordinances of countless, if not all cities
within our jurisdiction is narrow.
The judges that are on the dissenting side of this are
saying that that’s what the majority’s decision are
effectively doing. And, again, here is another dissent
from Judge Smith where the City of Phoenix is
specifically brought up as a city that is suffering a
similar fate based on the majority’s reasoning. In other
words, what the City is able to do is constrained
significantly by these decisions whether – whether we
like it or not.
But here is – and I won’t read all of these. I mean, I
put up here significant language from these courts to
show simply that we are – we’re walking a very tight
– we’re walking a legal tightrope when we seek to
clean up the area around the Human Services Campus
and anywhere else for that matter. In fact, as this
Court is aware, there’s a companion case in federal
court, the one that the judge cited in dissent, and we
6a
faced an order to show cause recently by the Plaintiffs
in that case.
Now, as meritless as we felt that was – and the
Judge agreed with us that it had no merit – it
* * *
[81] who is living in a place not fit for human
habitation. So that means people on the street, in
parks, or in cars, or in uninhabitable locations of any
sort. It is about 40 percent of the national homeless
population is unsheltered.
MR. WURMAN: Your Honor, I would move to
qualify Dr. Glock as an expert under Rule 702?
THE COURT: Any objection?
MR. ARNSON: Your Honor, we have already
stipulated to both experts, so...
THE COURT: I just want to put on the record.
MR. ARNSON: Yes.
THE COURT: The Court finds the witness qualified
to give expert testimony pursuant to Rule 702. Go
ahead and continue.
MR. WURMAN: Thank you, your Honor.
BY MR. WURMAN:
Q. Okay. Dr. Glock, I want to start, you said the
first thing you were asked to opine about is the causes
of unsheltered encampments. Are substance abuse
and mental illness two factors that attract unsheltered
individuals to encampments?
A.
Absolutely.
Q. Can you explain more about that, please?
7a
[82] A. Yes. So, as I mentioned before, there’s a
division of course among the homeless population
between the sheltered –
Q. Judge – Dr. Glock, can I ask you to slow down
just a little bit more the court reporter.
A.
Thank you very much. Much appreciated.
Yes. So there is a division, of course, between the
sheltered, who is living – largely living inside sheltered
transitional housing. About half of that population, a
little less, is families with children. The unsheltered
are overwhelming individuals, disproportionately male.
When they have surveys of the – of the unsheltered
homeless, you have different rates of self-reported
drug abuse, substance abuse use, and mental health
issues.
Q. Can you describe for the Court some of those
studies and the rates of substance abuse and mental
illness among those population?
A.
Yes.
So one study by the UCLA California Policy Lab
looked at the unsheltered in 15 states, largely in the
west, and their opinions – or sorry, their self-reported
problems on what’s called a VISPDAT, which is a
regular survey given to the homeless when they make
contact with service providers.
[83] THE COURT: Sir, can you spell that?
THE WITNESS: VISPDAT. And please don’t ask me
to remember the entire acronym. It is vulnerability
index service provider – I can’t remember every part
of it, but yes, the VISPDAT.
And they looked at self-reported rates of severe
substance use and mental illness among the sheltered
8a
and unsheltered. They found for the unsheltered about
75 percent supported – reported a severe mental
illness – or a substantial mental illness issue, about 75
percent reported a severe substance use issue, about
50 percent of the population reported that substance
use led to their loss of housing, and about 50 percent
reported that mental illness led to their – was one of
the causes of their loss of housing.
Now that rate was about – for the substance use
issue, it was about eight times for the unsheltered.
They reported substance use was an issue in their loss
of housing relative to the sheltered population, and
about three times the rate of the unsheltered population reported that mental health issues led to their loss
of housing, relative, yes.
Q. So – so – let me stop you there. And you
mentioned loss of housing, and now I want to ask
about unsheltered versus sheltered homeless, so we
can all agree [84] they have lost housing. What about
the unsheltered, the high rate of unsheltered?
Let me put it this way, what about the unsheltered
having substance abuse issues or mental illness
issues, those of them that have those issues, why are
they not in shelters?
A. Well, there are fairly high rates of self-reported
what’s called service resistance among the unsheltered
population. I mentioned – well, I mentioned the
expert report, but I – there is an ASU, Arizona State
University Center Problem Orienting Policing, which
cited two different surveys which showed just 25 percent
to 41 percent said they would go willingly into shelters
if they were offered, and in many cities in other
locations that have ample shelter room available, you
9a
still see large numbers of unsheltered out on the
streets.
Q. So if I’m understanding that part of the re – it
is part of the reason the unsheltered population, part
of the unsheltered population that is service resistant
is because they use substances or have mental health
issues?
THE COURT: Let me jump in just for a second, I
need you both just to slow down a little bit.
THE WITNESS: Of course.
MR. WURMAN: Sorry, your Honor.
In that case we will not finish quite [85] before
lunch, but we could go a little bit after.
THE COURT: Go ahead and re-ask your question, if
you would, please. A little slower.
MR. WURMAN: If the Court Reporter got it, can I
ask her to read back if she caught the warp speed at
which I was speaking.
COURT REPORTER: Let me find it –
THE COURT: Mr. Wurman, just go ahead and reask your question.
MR. WURMAN: Sure.
BY MR. WURMAN:
Q. Let me – let me ask a different one. Would those
who – those who use – those among the unsheltered
who have substance abuse issues or mental illness
issues, will going into a shelter even help them?
A. It can help them. Certainly depending on the
individual and the shelter’s rules. Large numbers
of the unsheltered do report that the rules and
10a
restrictions in shelters are one of the main reasons
they avoid them, and rules against drug abuse,
substance use is one of the most important rules in
those shelters which can deter the unsheltered.
Q. So let me ask the question this way: Does the
lack of available shelter beds have anything to do with
why these particular individuals with these substantial
[86] abuse issues and mental health issues are on the
streets as opposed to in a shelter?
A. I would say maybe the lack of available shelter
beds combined with the ability to sleep out on the
streets can be an issue, but if there are available
shelter beds in and of itself, large numbers of the
unsheltered will still not take them as we see in many
other cities.
Q. Dr. Glock, for individuals with substance abuse
or mental health issues, do they experience high rates
of crime? Are they victims of crime at high rates?
A. Yes. One of the most unfortunate aspects of
contemporary public encampments is that beyond the
high rates of overdose, which is the leading cause of
death, just about in any city that reports homeless
death for homeless individuals, violent crime is usually
one of the top causes of death.
Most cities don’t report separate crime statistics for
the homeless or for unsheltered, but if you look at Los
Angeles, where the homeless are about one percent of
the entire population, they constitute, according to
police statistics, about 15 percent of all of the violent
crime in the city involves a homeless person either as
a perpetrator or a victim. And the most common
victims of those perpetrators are other homeless
people. And the most recent stats that I saw that 24
percent of
11a
* * *
[93] Q. That’s ASU, Arizona State University?
A.
That is correct.
Q. Go ahead.
A. And that is the 25 percent to 41 percent who say
they would not go willingly into a shelter. We also
know that when they have encampment cleanups in
many places, usually you see a large majority that still
refuse to go into a shelter.
I mentioned in my report a case sort of in Burien,
Washington, where it was around 50 to 100 unsheltered individuals, and I believe it was less, significantly
less than 10 willingly went into shelter. Other cities
such as Colorado Springs also see minorities, substantial
minorities, but still minorities of all of those that
cleared from encampments that decide to go willingly
into a shelter.
Q. And I may have misheard, so that ASU study
you said 25 to 41 percent would accept shelter, would
willing go in, or –
A. According to their surveys, would willing go into
shelter.
Q. Okay.
A. Now, I – if I could clarify the service resistance,
some people would claim this population is not service
resistant, and they propose a lot of hypotheticals [94]
to say, well, if XYZ and any other number of other
factors were taken care of, would then you go into –
would you go into shelter.
So it certainly depends on the shelter’s offer, but
certainly if you have rules around, again, sobriety or
12a
others, that’s going to reduce the number of people
who would go willingly into those shelter situations.
Q. Okay. So just so I’m doing my math correct, that
would mean anywhere from 59 percent to – or yes,
59 percent to 75 percent would not accept services
willingly without some sort of mandate?
A.
According to those surveys, yes.
Q. Have you seen a survey of unsheltered
individuals in the zone specifically and what data does
that show?
A. Yes. There was a survey of 100 individuals by
Andre House, I believe was the name.
COURT REPORTER: Andre?
THE WITNESS: What?
MR. WURMAN: Andre House.
THE WITNESS: Andre House.
Yes, thank you, my apologies.
THE COURT: And slow it down just a little bit
please.
THE WITNESS: My apologies, yes, of course, [95]
sir.
BY MR. WURMAN:
Q. The first time in court it is okay to be a bit
nervous.
A.
That’s okay.
Yes. So by – a survey by Andre House that was
conducted in 2018 to ‘19, and that was about 100
individuals, and I believe it was less than 15 percent
said lack of a shelter bed was the reason they
remained out on the streets. Other majorities said
13a
issues with substances, criminal records, problems
with partners, again, or pets or property.
Q. Okay. And we’re just going to invert the math
again to figure out the percentage of those who would
then – who are service resistant as you have defined
it. So if we combine the Andre House study and the
ASU study, is it fair to say the range, at least according to those two studies, is 59 to 85 percent of
individuals in public encampments are service resistant?
MR. ARNSON: Objection, leading.
THE COURT: Sustained. If you could ask it again.
BY MR. WURMAN:
Q. Could you combine those studies to me and give
the Court a clear range for how many individuals in
these [96] encampments – and again, understanding
it is an estimate – tend to be service resistant?
A. Yeah. So the number that would not go willingly
into normal shelters, according to most of these
surveys, ranges from around 60 to up to 85 percent.
Q. Thank you.
Dr. Glock, when these studies show that, as you
have just said, 60 to 85 percent are service resistant,
is that if there’s no mandate of any kind?
A.
Yes.
Q. And what do you – can you explain to the Court
what I’m – well, what you understand by a mandate?
A. Yes. It depends – most of these surveys and
other sort of analysis of the unsheltered and service
resistant involve a situation where the option of public
camping is available, and we do know from a fair
amount of evidence of different cities and elsewhere
14a
where the option of public camping is available you are
more likely to have people out on the streets and less
likely to take up that shelter or other services.
Q. So if there is an anti-camping prohibition that’s
enforced, do more of these unsheltered individuals
who would otherwise be service resistant go into
shelter?
A.
Yes, that’s what it seems like.
So in my hometown of Austin, Texas, if I [97] could
give an example.
Q. Sure.
A. The – in 2019, the City repealed its camping ban
and allowed people to publicly camp on the streets and
the sidewalks, and what you saw, according to the next
year’s survey, what’s called the point in time count, the
unsheltered homeless jumped about 45 percent within
that year. Many people said that was because it
was more visible out on the streets, but they couldn’t
explain entirely why the unsheltered homeless – or
sorry, the sheltered homeless dropped by 20 percent.
So you saw a very substantial increase in the people
out on the streets and you saw a substantial decrease
in the number of people in shelters, and I would say
when the ban was then enforced again in Austin,
Texas, after a vote in, I believe, 2021, we saw another
increase again in the number of people in shelters, I
believe it was about 900 to about 1,100 people were in
the shelters and a corresponding decrease in the
number of people out on the streets, actually a more
than corresponding decrease. So enforcing mandates
moved some but not all of the people outside into
shelters.
Q. Great.
15a
Dr. Glock, moving to a related topic, is another
factor that leads to public encampments the [98]
mobility of the unsheltered population?
MR. ARNSON: Objection, leading.
THE COURT: Sustained.
MR. WURMAN: Your Honor, I’m not sure how that
was leading, I’m asking an open-ended question.
THE COURT: You still suggested the answer in the
question. You can rephrase it.
MR. WURMAN: Sure.
BY MR. WURMAN:
Q. Dr. Glock, can you describe the impact of
mobility of the unsheltered population on the growth,
if any, of public encampments?
A. Yes. Among the factors that have been studied
to look at the size of the unsheltered population in
cities, one factor is very clear and it is temperature,
which cities that have higher temperatures tend to
have a lot higher numbers of unsheltered homeless,
even holding constant the number of shelter beds, et
cetera.
So that would one to believe that the homeless are,
of course, attracted to areas that have more amenable
circumstances. When cities survey the homeless about
where they first became homeless or where they last
were housed, as only some cities do, you see substantial proportions say they came from outside of the city
they were located in.
[99] So, again, my hometown of Austin, Texas, you
see a little over a third of the homeless population
became homeless outside of the city and then moved
in. Similar rates for San Francisco, about a third. For
16a
Los Angeles, again, about a third of the unsheltered
population in that case came from outside of the city,
and Seattle did a study in 2016, I believe, where it was
the majority of the entire population – homeless
population was homeless outside of the city before they
moved in, and that proportion seems to be higher
among the unsheltered population.
So the unsheltered again more likely to be single,
more likely to have these other issues, seems to
be more mobile than the sheltered population and
substantial parts of them, sometimes even the
majority can come from outside of the city.
Q. Thank you.
Dr. Glock, in light of everything you’ve just said,
what, if any, role, does a municipality’s policy choices
have to do with the rise or growth of public
encampments in that municipality?
A. So, yes, so similar to the issues I described with
temperature, we know that a municipality that is
more welcoming to public encampments is going to see
more public encampments, that explains why many of
the cities I [100] have discussed which were open to
public camping and did not take enforcement action
were more likely to see that influx of population.
Most of the people reporting it reported – those
homeless who reported moving to the city reported
moving from other cities around the area often that
didn’t have as many services and stricter laws and so
forth.
Q. So I’ll stop you there, can you describe some of
the evidence for that proposition that a municipality’s
policy choices contribute to the rise of encampments?
I think you mentioned – I’m not trying to be repetitive,
17a
but I think you mentioned Austin, can you explain that
again and the evidence?
A.
Yes.
So Austin is one example where you saw both people
leave from the sheltered situations to the streets after
camping was – bans were no longer enforced, but you
also saw an increase in the total number of homelessness which seems to clearly indicate an influx.
You also have some cities that when they have
enforcement campaigns, they seem to see substantial
reductions in unsheltered homelessness in general.
Q. Can you give an example of those cities –
A.
Yes.
Q. – other than Austin?
[101] A. Other than Austin, so Los Angeles
conducted a program called the Safer Cities initiative
in 2006 I believe it started, and what you saw there is
substantial reductions in homelessness in the city.
It was focused on moving people off the streets,
enforcing laws against camping and sleeping, et
cetera, quality of life laws and so forth. And over the
next few years you saw about a 50 percent decline in
overall homelessness.
You also saw substantial improvements actually in
the situations of those neighborhoods that people
remained.
Q. Did Los Angeles abandon that initiative at some
point in time?
A.
Yes, they did.
Q. And what were the results?
A.
Yes.
18a
So around 2014, 2013, ‘14, with new – with new
leadership the city stopped the former safer cities
initiative or enforcement along skid row. You saw the
number of homeless people increase, I believe double
or triple, and you saw, I think, even more concerningly
the number of homeless deaths, which hit a nadir of
about or a bottom of about 500 homeless deaths
increase to over 2,000 homeless deaths a year.
Q. And is Colorado Springs another example –
[102] A. Yes.
Q. – demonstrating your point?
And can you tell the Court about Colorado Springs?
A.
Yes.
So Colorado Springs in 2010 decided to start enforcing its anti-camping ordinance. They had around 600
unsheltered individuals according to their own surveys,
and what they found is after a year, they had about 2/3
move either into shelters, into families, into jobs, into
treatment of some sort, and to some permanent
housing that was provided and saw substantial drops
in unsheltered homelessness within a year.
Q. Thank you.
Dr. Glock, in light of the foregoing discussion about
the causes of public encampments, can you summarize
– I know we have testified a little bit about this, so just
– can you summarize for the Court your opinion about
whether a housing first policy will eliminate such
encampments?
A.
Yes.
So, as I said before, there’s clearly a space for a
housing first unit for some individuals, but one of the
things we know probably even more certainly than the
19a
lack of strong health effects for the homeless by [103]
giving these – these PSH units is the lack of connection
between a city which builds a lot of housing first units
and reductions in homelessness in that city.
So there was a Journal of Housing Economics study
from 2017 that said you needed to build about 10 of
these units to remove a single homeless person off the
street. If you just looked at cities that had built large
numbers of these units and you tried to see the
correlation between who built more and who built less
and how did they affect the homeless population, you
saw a very minor decrease, again, one to ten to even
the upper range of maybe even 20 units per single
individual that was moved off the streets.
Q. So can you explain why that is? I mean, I know
I asked you to summarize it and now I’m learning
new things, this journal study. So if you bring 10
supporting – permanent supportive housing units online,
you’re saying that only reduces one unsheltered person
on the street, and why would the numbers not align?
A.
Yeah.
According to the study – and they couldn’t entirely
identify the reason, but some of the ones they
speculated were ones that would make sense. That the
mobility of homeless is a factor. If you have a city that
builds a large number of these units, of course more
[104] people are going to want to live in the city that
builds a lot of free or heavily subsidized housing units,
attracting people from outside of the homeless system
into it or keeping them in it longer with the hope of
getting one of these free units seems to be an issue.
And so – I mean, one other issue which I should
mention is that a lot of homeless individuals when put
in these units can’t stay in them because of their
20a
demons, the problems they have with mental illness,
with substance use. They will still leave the units even
provided to them.
In San Francisco, I believe it was 11 percent of the
entire homeless population in the city was previously
– their last location was in one of these subsidized
housing units. So they get a substantial portion of the
entire population in San Francisco was already put in
a unit, and they could not stay inside of it.
Q. Okay. Dr. Glock, in light of the foregoing
discussion about the causes of public encampments,
can you summarize for the Court your opinion about
whether the lack of available shelter is responsible for
such public encampments?
A. The lack of available shelter would certainly
affect the number of people out on the streets.
[105] As I mentioned, there are numbers of people
that say they would go into shelter, it is minority of
the whole unsheltered population in most places, but
it is – it is a factor but not the main factor it seems.
Q. So in light of the foregoing discussion, can you
summarize for the Court your opinion about what is
the main factor of encampments – of the public
encampments here in the zone?
A. I would say the main factor, and perhaps not
surprising, is that cities and places that allow public
encampments and provide extensive services attract
extensive encampments, that seems to be the case
across numerous different cities, numerous different
times, and numerous different places.
Those cities that enforce laws against public encampments see reduction in them, those cities that don’t see
21a
increases in them, and that goes across time and that
goes across different cities.
Q. So that takes me to the next thing I wanted to
talk to you about which is solutions. So can you tell the
Court more about enforcement and what role enforcement plays in eliminating public encampments?
A. So, as I mentioned with both the LA Safer Cities
example, the Colorado Springs example, and the
Austin, Texas example, you have numerous examples
even beyond
* * *
[117] Q. Would more unsheltered individuals move
into a sanctioned site that’s low barrier than into a
higher barrier shelter?
MR. ARNSON: Objection, it calls for speculation.
THE COURT: Sustained. There’s another way to
ask it.
BY MR. WURMAN:
Q. Based on your experience, do unsheltered
individuals accept sanctioned campgrounds – a space
in a sanctioned campground at a higher rate than they
do at higher barrier shelters?
A.
Yes.
The number of barriers is a big determinant of how
many people accept sanctioned camping, or shelters
for that matter, as opposed to the streets.
Q. Okay. Thank you.
Dr. Glock, in the last few minutes, I just want to ask
you about the City of Boise decision.
22a
Could you describe for the Court what impact the
Boise decision appears to have had on homelessness in
the states in which that decision applies?
A. So – yes.
According to the – the national numbers, these point
in time count surveys as they’re known, where [118]
people go out and they count the number of people in
shelters and out on the streets once a year, you saw
since 2018, when the Boise decision was decided, about
a 25 percent – over a 25 percent increase in homelessness in the 9th Circuit states and you actually saw a
decrease in homelessness in the non-9th Circuit states.
You actually also saw an even more substantial
increase in unsheltered homelessness among those
9th Circuit states after the Boise decision from 2018 to
2022 relative to the rest of the country which saw I
believe it was low single digits, around a 6 to 8 percent
increase in unsheltered homelessness.
So since 2018, you’ve just seen unprecedented increases
in homelessness in the 9th Circuit and specifically
even higher increases in unsheltered homelessness.
Q. Dr. Glock, are there examples of cities in the 9th
Circuit that have been able to or shown that they can
enforce anti-camping laws notwithstanding the Boise
decision?
A.
Yes.
The city of Las Vegas actually strengthened its anticamping ordinance in 2020, so about two years after
the Boise decision, and one of the things they do is they
keep a running tally of the available shelter beds to
* * *
23a
[233] Q. And those 120, they are – that you brought
on this year, they are all full?
A. No, one just opened today. So it will be full over
the next week. We incrementally invite people to come
there.
Q. Are you involved in the City’s recent announcement that it was going to open a – what we have been
referring to as a structured campground, I don’t know
if you refer to that, but do you know what I’m talking
about?
A.
Yes, we refer to it as a safe outdoor space.
Q. A safe outdoor space, okay.
In October, when we had the hearing and the City
was asked about constructing something like that, the
City personnel testified that it was not something that
the City was interested in doing at that time.
Do you recall that?
A. I recall mentioning that it was in our strategies
to address homelessness plan, but it was – our focus at
that time was truly indoor locations, knowing that
indoor locations are the safest place for people to be.
Q. All right. The safest for someone who is
unsheltered, that’s the safest place for them to be,
correct?
A. It is the safest place for anyone to be, [234]
especially when it is 116 degrees out. You would want
to be in an indoor air-conditioned location.
Q. Sure, sure. But it is not – it is not safer to be on
the street than to be in a structured campground. Do
you agree with me?
24a
A. It is not safer to be on the street. No, I believe a
structured campground would be a safer place than on
the street, yes.
Q. Sure. And the street, leaving people on the
street, that doesn’t abate the nuisance, you would
agree with me about?
MR. ARNSON: Objection, it calls for a legal
conclusion.
THE COURT: Sustained. If you can just rephrase it.
MR. TULLY: Sure.
BY MR. TULLY:
Q. Yeah. All right. If you – if you build – well, let
me ask you this, let me ask you some other questions
about this.
The safe outdoor space you’re – the City is contemplating, what barriers are this – is the City anticipating
employing for those who would stay at that area?
A. I’m not sure I understand the question, but I’ll
[235] try. So –
Q. Well, let me – no, no, I want you to answer a
question that you understand.
Is the – is the City planning on putting a fence
around the lot?
A. The safe outdoor space that we are looking at is
fenced, yes.
Q. All right. And does the City anticipate having
security or police that are there 24/7?
A. The City’s plan is to get a nonprofit operator to
operate the site and to have that operator on site 24/7,
as well as security on site 24/7.
25a
Q. And does the City anticipate requiring the
operator to enforce any restrictions on the behavior of
those who are in the safe outdoor space?
A. The safe outdoor space will have a code of
conduct that people must agree to when they – if they
choose to move into that space.
Q. And where are we in that process?
A. So the city council voted to approve the
licensing agreement and sale of the property on June
28th, and our plan is to execute that by August 1st,
and then move into the property, if all goes as planned,
sometime hopefully at the beginning of September.
Q. And then at that point the City could – would
[236] the City remove those unsheltered in the zone to
that area who are unwilling to take other shelter?
A. That is not the plan, no.
Q. What is the plan?
A. The plan is to continue our block-by-block efforts
and offer indoor places where we can, but we want to
have an alternative location for the people who aren’t
ready to go to an indoor location. If they won’t be able
to remain camping on the block where they are, this
will be an alternative location where they can go camp,
a safer location than the block they are currently on.
In the three efforts that we’ve had where we have
closed down streets to camping, we have had 25
individuals say no thank you and not move to an
indoor location. So this alternative is for those 25 and
the people that we anticipate encountering as we
proceed with our block-by-block effort.
Q. All right. But – I’m not sure you were here, but
at the beginning of the day, counsel for the City got up
26a
and said that you planned every three weeks to clear
a street, and by their estimate, it would be done in
about – if they did it every three weeks, in about nine
months.
The first of September is – my math is not great. But
we’re in July, so July, August, oh, September. [237] It
is like two months, right? So in two months you’ve got
this area, right, but the City is not going to move all of
these people that are surrounding my clients’
buildings and living in tents and shelters, you know,
homemade shelters, the City is not going to require
them to either move there or be subject to arrest or –
or – or take other action against them?
A. The intention of the safe outdoor space is that it
will be voluntary just as all of our indoor shelters, it is
a voluntary option.
Q. So as you sit here today, the only plan that you
are aware of that might abate the nuis – or might
remove the individuals who are – who are illegally
living on the streets in and around the zone is your
plan to continue this every-three-week effort?
A. That is the best way, yes, that we found having
80 percent of the individuals that we’re working with
move into an indoor location and having an alternative
for those 20 percent that aren’t ready for that.
Q. So far though, I mean, I know there’s – there’s
– there’s always multiple factors, right? I mean, in life,
people are complicated, true?
A.
Agreed.
Q. Okay. And so you have done all of these shelter
* * *
27a
[262] there was a lot of nuances of that reasoning that
I wasn’t the end all be all on that, but all of those
situations came in place.
The Boise decision, making sure that we had legal
standing to be able to do that, while also getting the
cleanups going again without having a bunch of issues
with clients, because client safety was important to us
and we didn’t want to just do a huge disruption and
pace into it, so – I apologize. Thank you.
So to be specific on all of that, I don’t know if I could
answer that right here without notes in front of me but
that was some of the nuance within that.
Q. It took the Court’s order for the City to actually
clean a street and keep it clean, true?
A. I would say that was – that was a factor in it,
absolutely.
Q. Yeah. Sure.
Now, I just – I want to ask you a question. You had
mentioned in response to questioning that when you –
well, strike that.
Let me ask you this foundational question. Are
you – during these enhanced engagements, are you
personally out there talking to the homeless folks?
A. Most of them. There was, I believe, two that I
couldn’t be at because of other work-related issues, but
[263] most of the time I am the one out there from
beginning to end coordinating.
Q. And have you developed any relationships with
any of what we have been calling today during the
course of this hearing unsheltered individuals who are
living out there?
A.
Yes, sir.
28a
Q. So you know some of these folks?
A.
Yes, sir.
Q. So they have been there awhile?
A.
Yes, sir.
Q. All right. Have some of them have been there
more than six months?
A.
Yes, sir.
Q. More than a year?
A.
Yes, sir.
Q. All right. And so when you – now, you testified
I thought that virtually all of them have no other – is
it no other place to go or they just – or – I just wasn’t
clear whether you were testifying that they had no
other place to go or whether they were not currently
enrolled in a shelter someplace?
A. The question I believe I answered was whether
or not they had already had an alternative location to
stay other than other than a shelter in Phoenix. So I
answered [264] that my engagements with people that
didn’t have an alternative place that they already
could stay at, that they needed assistance in getting
placement to stay someplace.
Q. Okay. So by that, you’ve – you’re investigating
whether they have access to funds?
A. Whether or not they were already in a shelter
and just staying out there on their own or whether or
not they were in some other program.
Q. Okay. And how about – and so – and that occasionally occurs, people will be – they will be qualified
for a shelter but they live on the street anyway?
29a
A. Yeah. It has happened where someone has
actually had housing and been out there, but again,
that was anomaly and one-offs.
Q. All right. Did you force that person – did anyone
from the City force that person to leave and go back to
their house?
A. Well, the City of Phoenix can’t force anybody to
go anywhere per se. But when we’re working with
individuals and they do have a place, yes, we would
make that connection and try to reestablish where
they were at or if that thing wasn’t working for a
particular reason, try to do a new placement or a new
referral.
[265] Q. The – all right. And so – and when you say
that those percentages in your opinion, is that – that
includes investigating whether they have funds to rent
a place?
A. Well, funds is all self-reported. So during an
assessment of an individual’s needs, we do ask about
income, but it is all self-report by that individual. The
HMIS system I referred to earlier, we don’t track or
mandate people’s income, that’s a self-report from an
individual.
Q. Okay. So as far as you know, the City is –
doesn’t know whether some of these individuals who
are living in the zone actually have the means to pay
for their own housing?
A. Correct. It could be found out when they do their
application for housing and then that income kind of
verification, but yes, our outreach teams and our
homeless team doesn’t do income verification, that’s
something a housing project would do once they apply
for housing or something of that sort.
30a
Q. And is the same true for whether they have
relatives that might house them?
A. Sure. So, again, that’s self-report from an
individual, and if they tell us they have family
members, we try to make those connections, that’s
part of our [266] process is family reunification.
Q. And then is the City at this point categorizing
individuals as involuntarily homeless?
A. No. A person experiencing homelessness is a
person experiencing homelessness, the nuance caricatures people like to put on them, that’s not something
we do. If someone is experiencing homelessness, we
work on trying to resolve that for the individual.
Q. All right. And that’s what your job is?
A.
Yes, sir.
Q. And your job is not to clean – it is not to clean
the streets of the tents in and around the zone?
A. No, I wouldn’t say that. Because our office is
wholistic. It is not only the individual we’re trying to
assist that’s experiencing homelessness, it is also our
communities. So we’re very ingrained in our community
groups and issues as it relates to, you know, debris left
over by homelessness or the negative impact of
homelessness.
Q. All right. Since you have been at the City,
statistically have the number of – well, of unsheltered
homeless in the city and in the zone, have they – has
that decreased or increased?
A. Our – I’m sorry, our regional data, HMIS data
has shown that our inflow of people experiencing
* * *
31a
APPENDIX B
[1] IN THE SUPERIOR COURT OF
THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
————
CV 2022-010439
————
FREDDY BROWN, et.al.,
Plaintiffs,
vs.
CITY OF PHOENIX,
Defendants.
————
Phoenix, Arizona
July 11, 2023
————
BEFORE THE HONORABLE SCOTT A. BLANEY
————
REPORTER’S TRANSCRIPT OF PROCEEDINGS
(Bench Trial)
————
PREPARED FOR:
COPY
MICHELE KALEY, CSR, RPR
Certified Court Reporter #50512
(480) 558-6620
————
32a
[2] APPEARANCES
FOR THE PLAINTIFF:
BY:
Stephen W. Tully
stully@tullybailey.com
Ilan Wurman
ilan.wurman@tullybailey.com
TULLY BAILEY LLP
11811 North Tatum Boulevard Unit 3031
Phoenix, Arizona 85028
FOR THE DEFENDANT:
BY:
Justin S. Pierce
Justin@piercecoleman.com
Aaron D. Arnson
Aaron@piercecoleman.com
Trish Stuhan
Trish@piercecoleman.com
PIERCE COLEMAN PLLC
7730 East Greenway Road Suite 105
Scottsdale, Arizona 85260
[3] INDEX
WITNESS
PAGE
JEREMY HUNTOON
Direct Examination by Mr. Pierce
Cross Examination by Mr. Tully
7
23
BRIAN FREUDENTHAL
Direct Examination by Mr. Arnson
Cross Examination by Mr. Tully
Redirect Examination by Mr. Arnson
31
80
95
SHEILA HARRIS
Direct Examination by Ms. Stuhan
Cross Examination by Mr. Wurman
103
160
33a
Redirect Examination by Ms. Stuhan
220
GINA MONTES
Direct Examination by Mr. Pierce
228
* * *
[83] way to ask it.
MR. TULLY: Sure.
Q. Is it against the City Code for an individual to
erect a tent on the sidewalk within the city limits?
A.
Depends on who you ask.
Q. Really? Does it violate a code provision to do so?
A. I think that’s the question, and that’s why we
are here today. I – you –
Q. Okay.
A. We get consulted by lawyers, and it’s difficult to
get a straight answer on that one. So is it – is it – is
there a law on the books that involves camping? Yes.
Q. Okay. So it would help for the Court here, this
Court to provide some guidance to you in your duties
with regard to those who are constructing tents on the,
in the right of ways in the Zone?
A. So there’s two courts, as you’re aware of.
And it would help that – if we had a – it would help
if we had a straight answer between the two courts.
Q. Okay.
A.
For me and my team.
Q. Right. Because, I mean, you mentioned that
* * *
[86] True?
34a
MR. ARNSON: Your Honor, I don’t want this to turn
into attorney/client privilege territory, so I’m going to
object.
THE COURT: Give me a second. What’s your
response to that?
MR. TULLY: Well, he’s admitted that there’s a city
ordinance.
THE COURT: I’ll tell you what. I’m going to cut you
off –
MR. TULLY: Sure.
THE COURT: – because I think it’s easier.
If you change your question and take the lawyers
out of it and say that’s the direction you got from the
City, I think it’s less offensive. So – not offensive, but
it doesn’t offend attorney/client privilege.
Q. BY MR. TULLY: The reason you are not
enforcing, currently enforcing the City ordinance against
camping in the right of ways is at the direction of the
City?
A. I disagree.
Q. All right. Who – whose direction are you –
A.
The federal judge.
Q. Okay. Okay. Now let me ask you, the Zone [87]
proceeded – the growth of the Zone, right, all those
tents, proceeded – when you say the federal judge,
you’re talking about Judge Snow’s order?
A. That’s part of it.
Q. Okay. Well, I mean, are you referring to a
different judge?
35a
A. Well, I think – well, I’m also referring to the 9th
Circuit ruling which Judge Snow utilize in his ruling,
right.
Q. All right. Well, let me ask you – let me ask you
this question. You’ve been working, not as the commander, but as an officer or lieutenant in and around
the area that’s now called the Zone for – for a fairly
long time, correct?
A. That’s correct.
Q. And how long?
A.
The majority of my career.
Q. All right. And was there a time when there was
no tent city in that area?
A. There was.
Q. All right. And during that time, did you enforce
the City Camping Ban?
A. We – there were times when we issued that
citation, but – yeah, there were times we issued that
one, along with the lying/sitting in a public right of
* * *
[100] A.
Yes.
Q. Okay. You mentioned the Martin v. Boise case,
and you also mentioned the federal case. Do you recall
that?
A.
Yes.
Q. Okay. You talked a little bit about Mr. – with
Mr. Tully about tents.
Do you remember that?
A.
Yes.
36a
Q. Okay. So for tents, do you know whether tents
can simply be removed without advising someone
first?
A. Can you rephrase?
Q. Sure, I can.
A. Can you repeat that question.
Q. I can. Can the City simply remove a tent
without advising the individual that a tent is going to
be removed?
A.
No.
Q. So all these court orders that have been flying
back and forth between the state court proceeding
and the federal court proceeding, how easy is that for
you – are they for you to reconcile?
A. It puts us in a difficult position. It’s not easy at
all to reconcile the difference between the two suits.
[101] Q. Why not?
A. Because they appear to conflict, to me.
Q. I’m only ask asking for your – for your read.
A.
Yeah.
Q. Okay. In what respects do they appear to
conflict?
A. In – I believe it just appears that one court is
saying we are doing too much and the other court is
saying we are not doing enough.
MR. ARNSON: Okay. I understand.
I don’t have any further questions, your Honor.
THE COURT: All right. Thank you. Do the defendants
believe this witness should be available for recall?
37a
MR. ARNSON: No, your Honor.
THE COURT: Plaintiffs?
MR. TULLY: No, your Honor.
THE COURT: All right. Thank you for your time,
Commander. You can step down.
You can either remain or leave. It’s up to you.
MR. PIERCE: Your Honor, can we get a – how much
time we’ve got left for our witnesses?
THE COURT: You’ve got three hours, 27
* * *
[119] coordination of those efforts. At the same time,
have them be very outcome driven, which hasn’t
necessarily been the focus of all the agencies working
on the campus.
Q. Okay. And so we’ve talked a little bit about
working on the campus. I’d like to break down a little
bit what that means. So what type of work happens?
If you’re doing an enhanced engagement, what is the
type of work that you have seen?
A. What I have seen is, not only City of Phoenix
staff going out prior to the engagement opportunity –
we are human people trying to assess where they
would like to live, if they would like to move, do they
have pets, are they a couple, what are some of the
challenges that they have in trying to secure housing.
Some of the people that are around the campus – I
would say the vast majority – don’t like to go on to the
campus because they don’t like to be in a confined
area. So that makes it really challenging when you are
trying to find someone a place to live that’s perhaps
used to not having four walls around them.
38a
So it’s not just what happens on the day of the
engagement. It’s what’s happening with the agencies
that are working on the campus, as well as
* * *
[128] street, maybe we don’t keep the shelters alive
forever. But we are having them so people can get out
of the heat, they can start to get services.
There is all kinds of barriers that people don’t think
about, quite frankly, that sort of enter into this
equation. One of the challenges at the campus, for
instance, is some people won’t go into the CASS
Shelter because they have to go through a metal
detector. They don’t want to do that, so they would
rather sleep someplace else.
Q. And so another place they could sleep is a
campground, right?
A.
Uh-huh.
Q. Is that a yes?
A.
Yes.
Q. I’m sorry. She’s taking down everything we say,
so I need yeses?
A.
Yes.
Q. Or nos or I dont knows.
So let’s talk a little bit on strategies. Did campgrounds
have any consideration in the strategies that the City
Council adopted?
A. I can’t remember if it was mentioned specifically in the report, but I do know there have been
discussions about campgrounds being an option. [129]
And I believe the City is pursuing that at this point in
time.
39a
Q. Do you think campgrounds are a viable option
for some people?
A.
Yes.
Q. Walk me through your assessment of the utility
of a campground for the City of Phoenix?
A. For one thing, it could be in a more controlled
environment. And I know some of the challenges are
people tend to get a lot of possessions.
And I know some of the encampment areas look like
they were probably three or four tents. It is actually
one person who combined three or four tents to be
where they were living. So it also reduces – it can be –
there can be screening for people to make sure that
there are adequate people there to work with them;
that they are not just put into a place and left.
So it’s – it’s not like you just build a campground and
you put every little place where you want people to
stay and then you close the door and go away. It still
will need supervision, and I do believe that’s in the
City’s plan.
Q. You’ve been out, you said, and observed five
[130] of the – or three of the five cleanings?
A. Five of the seven.
Q. Five of the seven. Me and numbers. So have you
observed some of the interactions with the engagement team with the homeless population?
A. Uh-huh, yes.
Q. And also, in your experience as Department of
Housing and Human Services, have you had
discussions and interactions with homeless people?
A.
Yeah.
40a
Q. Do you think that all of the people located in the
area around the Human Services Campus could be
able to live in a structured campground outside?
A. I don’t know about all of them, but I think some
of them can.
One of the things we found in my observation of one
of the cleanups is, sometimes people have really severe
health issues, and they don’t realize how ill they are;
and they do need medical attention. So there have
been people that have been transported to hospitals
and other healthcare has been provided to them.
Some people also like more space than the 12-by-12
area that has proposed. It’s going to have to happen,
unfortunately, and – not unfortunately,
* * *
[140] potentially.
You’ve seen some of this trial, discussions about
substance abuse and addiction, correct?
A.
Yes.
Q. Can you describe to me, have you seen any
changes in the addiction in the State of Arizona during
the time you have served from the Director of Housing
all the way to the current?
A. Yes. The drugs are becoming much more
plentiful and much cheaper. For instance, when I was
at the campus, we were having more problems with
crack cocaine. It was more expensive. It was harder to
get.
Today, I have been told you can buy a pill, a fentanyl
– what everybody hears about and how incredibly
addictive it is – for 20 cents. So the price of the drugs
have become a lot cheaper and a lot more plentiful.
41a
Q. Has that impacted the number of homeless on
the streets in the city of Phoenix?
A.
Yes.
Q. What about the nation?
A.
Yes.
Q. Let’s talk a little bit about the role of addressing
those types of substance abuse and
* * *
[171] A. I have not.
Q. Okay. Is it fair to say, looking at the
Washington Street shelter, that it’s possible to have a
shelter and homelessness services in a particular
space without having encampments surrounding it?
Is that fair to say?
A.
Yes.
Q. That’s possible. So would you agree with me
that the existence of shelter or services does not
necessarily lead to the existence of other public
encampments surrounding those services or shelters,
correct?
A.
Yes.
Q. Thank you. Dr. Harris, you’re familiar with
the City of Boise decision, correct?
A.
Yes.
Q. That decision first came down in the middle of
September of 2018, correct?
A.
Uh-huh.
Q. And I say, “first came down.” I don’t know if you
know there was a modified decision yet. But mid
42a
September 2018, the first Boise decision came down, to
the best of your knowledge, correct?
A.
Yeah.
Q. Your time at HSC had just ended, correct?
[172] A. Yes.
Q. Okay. But despite that, you’ve written that you
noticed that the Boise decision greatly affected and
changed how providers and cities provide services to
those experiencing homelessness, correct?
A.
Yes.
Q. Can you explain to the Court exactly how the
Boise decision affected and changed how providers and
cities provide services to those experiencing
homelessness?
A. It’s created an era of uncertainty. And I think
that’s probably why we are here today is to try and
clarify, what is that.
Q. Okay. So if we weren’t here today and we didn’t
receive any guidance from the Court, would there still
be that state of unclarity in the future if we weren’t
here today?
A.
To the best of my knowledge, yes.
Q. To the best of your knowledge, as a result of the
Boise decision – let me ask that another way.
To the best of your knowledge, did the Boise decision
affect the City of Phoenix’s policies with respect to
enforcing anti-camping laws?
A. I don’t know what their policies are on anticamping laws.
[173] Q. Okay.
43a
A. I can’t respond.
Q. Well, let me ask the question another way. You
testified that the situation got worse during COVID in
the Zone, correct?
A.
Yes.
Q. Between when the Boise decision came down
and when COVID began, were there tents in the Zone?
In other words, were there tents in the Zone prior to
COVID, to the best of your knowledge?
A. I believe there were a few. I could not
guesstimate or remember how many.
Q. Okay. So you don’t know one way or another
when the proliferation of tents occurred, correct?
A.
Yes.
Q. You testified that things got worse during
COVID, but things – the tents could have come to the
zone or arisen in the zone just after the Boise decision.
For all you know, that could be the case, correct?
A.
Not to the extent that they are there now.
Q. Because as you testified, it fluctuates all the
time, correct?
A. Right.
[174] Q. Okay. Now you also wrote – you know, this
goes a bit into what you already said about uncertainty. But you wrote in your report that the Boise
decision has caused confusion about what are or are
not legal policies and procedures.
Do you remember that?
A.
Uh-huh.
Q. That’s a yes?
A.
44a
Yes, I do. Excuse me. Yes.
Q. Can you explain to the Court what you meant
by that? What confusion has it caused, to the extent –
and I mean, you wrote that in your report.
Can you tell the Court what you meant by that?
A. I think that’s why we are here today. It’s not
clear what that decision means.
Q. Okay.
A.
It’s not.
Q. To your knowledge – or in your opinion, is the
City of Phoenix currently confused as to what is or is
not legal as a result of that decision?
A. I think they are working through to create their
policies to align with the decision.
Q. All right. Do you think clarity from a court
would be helpful?
A.
Yes.
* * *
[179] So go ahead and continue.
MR. WURMAN: Thank you, your Honor.
Q. Dr. Harris, that means you can answer the
question. And the question is, simply, is someone who
won’t accept an available bed because they would have
to part with a pet to do so, to accept that bed, is that
person involuntarily homeless under the definition we
just agreed on?
A. I believe so.
Q. You believe that that person is involuntarily
homeless still?
A.
said.
45a
It’s hard for me to honestly absorb what you
Q. Yeah, there is some double negatives maybe –
A.
Yes.
Q. – that I’m trying not to do?
A.
Yes.
Q. Let me ask –
A. That’s the problem.
Q. Let me ask the question another way. A person
who has a shelter bed available, but refuses it because
that shelter has a pet policy that they can’t comply
with, that person nevertheless has access to shelter,
correct? They just have to part with their pet.
[180] Isn’t that true?
A. That is the condition.
Q. So, yes, they have access to shelter?
A. They have access to shelter, but not with their
belongings.
Q. Correct, okay. Let me put it another way then.
And you’re welcome to qualify, you know, as much as
you feel is appropriate.
The person who refuses to give up a pet and
therefore stays on the street, rather than goes into
shelter, that person has a choice, correct?
They can choose to stay on the street with their pet,
or they can choose to part with their pet and go into
shelter, correct?
A. They have a choice. But I would say people that
make those kinds of decisions may have some challenges
in their logic, if you’re –
46a
Q. In their logic?
A. Yes. From that – to them, it’s much more
important to be with their pet. To you, it might not be
–
Q. Right, okay.
A.
– that important to be with your pet.
Q. Okay.
A.
That’s their choice.
[181] Q. One more way of asking. Having a pet is
not biologically compelled, correct?
A. Not that I’m aware of.
Q. Okay. An unsheltered person with personal
property, who can obtain shelter if that person gives
up that personal property, is not biologically compelled
to keep their property, rather than going into the
shelter, correct?
It’s a choice?
A. Could you rephrase that?
Q. Sure. Choosing to stay on the street with one’s
property, rather than going into shelter without
property, that’s not a biologically-compelled choice.
That’s a choice that you can choose to part with your
property or – or not, correct?
A.
Yes.
Q. Okay. So it’s not biologically-compelled to
choose your property over the shelter bed, correct?
That’s a yes?
A.
Yes.
Q. Now this question might sound callous, but an
unsheltered person with a partner who has a shelter
47a
bed available, but must part with their partner, is not
biologically compelled to choose their partner – to
choose staying with their partner over going into [182]
the shelter bed, correct?
A. Uh-huh, yes.
Q. Okay. I don’t know if you heard the testimony
from Mr. Hall yesterday, but this question is inspired
by his testimony.
If someone has a house that they could stay in, but
they choose to stay on the street, that person is not
involuntarily homeless, correct?
A. According to what you have told me, yes.
Q. Okay. Now you testified earlier today that some
individuals in the Zone don’t go into shelter because
they prefer more space or they don’t like a confined
space, correct?
A.
Yes.
Q. An individual who refuses to go into a shelter
because he prefers to have more space is not
biologically compelled to choose more space over going
into a shelter, correct?
A. Not biologically compelled.
Q. Okay. So according to our definition, that
person is not involuntarily homeless, correct?
A.
Given all the caveats we’ve discussed, yes.
Q. Okay. I think you’ve testified earlier today that
an individual – excuse me – that some individuals in
the Zone don’t want to go into shelter [183] because
they don’t want to go through metal detectors. Do you
remember that?
A.
Yes.
48a
Q. Is it fair to say that not wanting to go through a
metal detector is not a biologically-compelled action or
inaction?
A.
I think that’s reasonable.
Q. Okay. You described for the Court earlier today
that many individuals experiencing homelessness in
the Zone use illegal drugs, correct?
A.
Yes.
Q. And particularly fentanyl?
A.
Yes.
Q. Using illegal drugs is not a biologicallycompelled act, correct?
A. I don’t know that I’m qualified to answer that.
Q. Fair enough. Not all human beings use illegal
substances, correct?
A.
That’s true.
Q. Okay. All human beings need to sleep, correct?
A.
Yes.
Q. All human beings need to eat?
A.
Yes.
[184] Q. All human beings need to urinate and
defecate?
A.
If they want to function as a human being.
Q. Correct. Not all human beings need to use
drugs, correct?
A. To the best of my knowledge. But it does help, if
you’ve got high blood pressure, that you have medicine
you can take for that.
49a
Q. Sure. Fair enough. Let’s start with illegal
substances?
A. Okay.
Q. Fair to say not everyone needs to use illegal
substances, correct?
A.
Yes.
Q. Okay. Do shelters allow illegal drug use?
A. It occurs.
Q. But it’s not permitted?
A. It’s not probably in their operating procedures,
shall we say.
Q. Okay. Going back to your testimony about
fentanyl. Does an unsheltered person who uses
fentanyl and is addicted to fentanyl willingly go into a
shelter that prohibits drug use?
A. Probably not.
Q. And, in fact, if that individual went into the
shelter, would that be safe for the other persons in
* * *
[190] Q. Okay. And if I represent to you – you see
the hyperlink to research study? If I were to – in the
Task Force Report. And if I represent to you that I
found this survey by clicking on the hyperlink in the
Task Force Report, do you have any reason to doubt
me?
A. I do not.
Q. Okay. And if we look at the first page, it says –
oh.
Have you seen the study before, Dr. Harris?
50a
A. I may have.
Q. All right. Let’s just – do you have – you have no
recollection – it says Downtown Phoenix. Do you have
any recollection as to when the study was – when the
survey was conducted?
A.
No.
Q. All right. Well, nevertheless, in April 2022, and
on page 18 of the task force – the task force provides
this data from this survey of a hundred unsheltered
individuals in Downtown Phoenix, correct?
A.
That’s what it says on the title.
Q. Okay. So if we look at that pie chart – and you
can look back at the task force report now.
A.
Uh-huh.
Q. Yeah. It says that only 14.3 percent of those
[191] involved in the study – those surveyed in the
study – cited the lack of availability of beds as the
reason for their not currently being in shelter, correct?
A.
Yes.
Q. So that means that over 85 percent of
unsheltered individuals surveyed in this study of
Downtown Phoenix cited some reason, other than lack
of available beds, as the reason for their being
unsheltered, correct?
A.
Yes, that’s what this says.
Q. Okay. Now if we look here, a few unsheltered
individuals cited their having pets as the reason for
their being unsheltered, correct?
A.
Yes.
51a
Q. 2.4 percent. And let’s see. We talked about
personal belongings.
10.3 percent cited that as the reason for their being
unsheltered, correct?
A.
That’s what it says on the chart.
Q. And, again, it’s – you were on the task force that
provided this pie chart, correct?
A. I was on the task force that included this in the
report. I did not participate in this document.
Q. Okay. And this document, you mean
Attachment [192] C or wherever this pie chart is
appearing?
A. Right. In the unsheltered prospectus, I did not
participate in –
Q. Oh, sure, sure.
A.
– this document.
Q. Okay. And, in fact, you can put that away now.
A. Okay.
Q. We are not really allowed to talk to about it
anymore. I was just trying to refresh your recollection.
But you did – you did participate in publishing this
task force update from 2022, correct?
A.
Yes.
Q. Okay. And that includes this pie chart?
A.
Yes, it does.
Q. Okay. Moving on to partners and spouse. It
appears that 2.3 percent of the unsheltered individuals surveyed, according to pie chart, cited that as the
reason that they are currently unsheltered, correct?
52a
A. That’s what it says.
Q. Okay. And 20 percent – 19.8 percent cited that
they did not want to follow curfew or rules as the
reason for their being unsheltered, correct?
A. That’s what it says.
[193] Q. Okay. 7.1 percent cited addiction, correct?
A.
Yes.
Q. 5.6 percent cited mental health?
A.
Yes.
Q. And 21.4 percent cited, “other.” Do you see that?
A. I do.
Q. Okay. Do you have any idea what that “other”
might be?
A.
It’s really hard to say.
Q. Okay. All right. I don’t want – I read the study.
A.
Uh-huh.
Q. I’m not supposed to talk about it, so I’m going to
just – let’s just put an asterisk around that 21.4
percent for now.
And then it says, 11.1 percent had a criminal
background, correct?
A.
Yes.
Q. I presume that’s because some shelters don’t
allow individuals that have criminal backgrounds?
A.
That’s true.
Q. Okay. And 4.8 percent cited a disability,
correct?
A.
Yes.
53a
[194] Q. I suppose, in your experience, might that
be because some shelters can’t provide accommodations
for certain disabilities?
A.
That is true.
Q. Okay. So I want to be conservative here.
Let’s assume that individuals with a criminal background can’t get into shelter because of rules against
criminal backgrounds; those with disability can’t get
in because they can’t be accommodated; and those who
want it, cited a lack of available beds – you know, there
were no available beds. So that’s only 30 percent,
again, understanding there’s this “other” category.
To the extent we know, that’s only about 30 percent
of individuals in the survey who can’t access shelter
because of their criminal background, disability, or
lack of availability, correct?
A.
That’s what this chart says.
Q. Okay.
A. I don’t know the methodology for how the people
were selected. I don’t know if it was over time, who was
included, where they came from. There’s a whole host
of information. I believe this pie chart was put into the
report just to educate and be illustrative of all the
different challenges. I think [195] if we were to do the
same survey today, you might get completely different
results.
Q. Fair enough. But these are the results we have
in the task force report, which you are a member,
correct?
A.
That’s true.
Q. Okay. And so putting aside, “other,” which
again was 21.4 percent, it sounds like about 50
54a
percent, right, maybe about 49 percent of individuals
cited pets, property, partners, mental health, addiction,
or not wanting to follow curfew and rules as the reason
for their not being in shelter, correct?
A.
From this particular study.
Q. Correct. Of individuals in Downtown Phoenix,
correct?
A.
Yes.
Q. If we assume that the 21.4 percent who selected
“other” chose something, other than lack of availability, is it fair to say that that number would increase to
70 percent; cited something, other than lack of availability, criminal background or disability as the
reason for their being unsheltered?
A.
That’s what the math says.
Q. Okay.
* * *
55a
APPENDIX C
Freddy Brown et al. v. City of Phoenix,
CV2022-010439 (Maricopa County Superior Court),
Trial Exhibit 53
56a
TASK FORCE RECOMMENDATIONS TO THE
CITY MANAGER
ATTACHMENT C:
UNSHELTERED HOMELESSNESS
IN PHOENIX
According to the most recent point-in-time
report for Maricopa County, there were roughly
3,767 individuals experiencing unsheltered
homelessness in Maricopa County on a single
night. 2,380 of those individuals were in the City
of Phoenix. In a research study involving 100
unsheltered individuals in downtown Phoenix,
we learned that there are diverse reasons why
people are not currently in shelter:
GOAL: Provide guidance on an effective spectrum
of supportive services to ensure new/existing
shelters or sites can create environments that
adopt SAMHSA Principles for trauma-informed
design for their customers and the surrounding
community.
57a
APPENDIX D
[LOGO] Manhattan Institute
Expert Report of Judge Glock
Freddy Brown et al. v. City of Phoenix
Maricopa County Superior Court
CV No. 2022-010439
1. I am the Director of Research and a Senior
Fellow at the Manhattan Institute, where I focus on
the intersection of economics, financing, and housing.
I previously worked at the Cicero Institute where I
developed and advocated for solutions to homelessness
rooted in economic incentives and informed by my
research in economic history. I received a Ph.D. in
history, with a focus on economic history, from Rutgers
University in 2016 and was a visiting professor of
economics at West Virginia University from 2016 to
2018. A full list of my publications, including any
testimony I have given, is included in my curriculum
vitae, attached as Appendix A.
2. I am not being paid for this report or this
engagement. The documents I consulted in preparing
this report are cited throughout.
3. I have been asked to opine on (1) what attracts
unsheltered populations to public encampments;
(2) potential solutions to public encampments, focusing particularly on the experience of other cities and
the use of structured campsites; and (3) the effect of
Martin v. City of Boise on homelessness and encampments in the West Coast.
4. My overall opinions are that unsheltered populations, including the population in what is known as the
“Zone” in Phoenix, have significantly higher rates of
mental illness and substance abuse than does the
58a
homeless but sheltered population. This makes the
currently fashionable “housing first” and no-enforcement model ineffective because housing alone or housing
without mandated treatment will not solve the underlying conditions of most of the unsheltered. This model
is also ineffective because the unsheltered population
is mobile, meaning many or most unsheltered individuals who are put in a “housing first” option will be
replaced by other unsheltered individuals.
5. The mobility of the population and the attraction
of camps for some local sheltered and even housed
residents with substance use issues also explains why
certain public encampments are large: unsheltered
individuals are attracted to the freedom they enjoy in
such encampments. That is, homeless encampments
tend to arise because of a municipality’s policy choices:
a refusal to enforce laws against drug use and camping
bans, and a refusal to force individuals to leave if they
refuse to accept services.
6. In contrast, municipalities that enforce drug laws
and camping bans and that will make individuals
leave or relocate to a structured campsite if they refuse
services see dramatic reductions in encampments with
almost no arrests. Other cities have demonstrated that
a humane enforcement policy, combined with providing structured campgrounds or similar maintained
sites where public camping is permitted, is effective in
getting unsheltered individuals into services or into
such maintained sites. Where these policies have been
deployed, almost all the unsheltered individuals who
do not wish to accept services or a place in the sanctioned camping area voluntarily leave. Only rarely
must an unsheltered individual be arrested.
7. Implementing these policies has become more
necessary in the wake of the Boise decision. Since that
59a
decision, homelessness has increased by 26% in states
within the jurisdiction of the U.S. Court of Appeals for
the Ninth Circuit, while decreasing elsewhere, and the
unsheltered population in such states has increased by
28%, while increasing elsewhere by only 8%.
What Attracts Unsheltered Populations to
Public Encampments
8. While the majority of the homeless in America
are sheltered, and most of the sheltered homeless do
not have severe problems with drugs, alcohol, or
mental illness, the unsheltered are a distinct group
where these problems are much more prevalent. One
UCLA study of the unsheltered homeless in 15 states
found that 78% reported a substantial mental health
condition, 75% reported a substance abuse problem,
and the majority reported both. 50% of the unsheltered
reported that their mental health condition was a
factor in their loss of housing, nearly three times the
sheltered rate, and 51% reported that substance use
was a factor in loss of housing, more than eight times
the sheltered rate.1 These problems appear to be worse
among the inhabitants of large public encampments.
One study of two Philadelphia homeless camps found
“near ubiquitous substance use among those staying
in the encampments.”2
1
Janey Rountree, Nathan Hess, and Austin Lyke, “Health
Conditions Among Unsheltered Adults in the U.S.,” California
Policy Lab Policy Brief, October 2019, https://www.capolicylab.
org/wp-content/uploads/2023/02/Health-Conditions-Among-Unsh
eltered-Adults-in-the-U.S..pdf
2
Stephen Metraux et. Al., “An Evaluation of the City of
Philadelphia’s Kensington Encampment Resolution Pilot,” City of
Philadelphia, March 5, 2019, https://www.phila.gov/media/20190
312102914/Encampment-Resolution-Pilot-Report.pdf
60a
9. Individuals with these problems, when left without
support or security in public, endure high rates of
violence and death. Although many cities do not keep
comprehensive statistics on homeless crime, in Los
Angeles in 2020 and early 2021, 15% of all violent
crime in the city involved a homeless person, the vast
majority of whom are unsheltered in the city, though
the homeless represent only about 1 % of the population.3 The most common victims of crimes by homeless
perpetrators were other homeless people. The homeless
were 24% of the city’s murder victims.4 The city has
also seen over 2,000 homeless deaths a year, a rate of
death that rivals or surpasses that of soldiers in
wartime, and that is comparable to homeless death
rates in other large cities.5
10. While reduced housing rents can help people out
of homelessness, for many unsheltered individuals
cheaper market-rate rental housing or even subsidized
housing is not enough. Researchers have noted that
rental cost variations between cities can explain only
between one quarter and a little over half of the
variation in the extent of homelessness across different locations. Housing and rental prices also seem to
3
Sophie Flay and Grace Manthey “What is really going on with
homeless crime?” ABC 7 Los Angeles, https://abc7.com/feature/
homeless-crime-los-angeles-data-response/10827722/
4
Eric Leonard, “LA’s Homeless Were 24% of City’s Murder
Victims,” NBC 4 Los Angeles, January 4, 2023, https://www.nbclos
angeles.com/investigations/las-homeless-were-24-of-citys-murdervictims/3066979/
5
“Mortality Rates and Causes of Death Among People
Experiencing Homelessness in Los Angeles County: 2014-2021,”
Los Angeles County Department of Public Health, May 2023,
http://publichealth.lacounty.gov/chie/reports/Homeless_Mortality
_Report_2023.pdf
61a
have more effect on the sheltered homeless population
than the unsheltered.6
11. The remaining variation in homelessness, especially among the unsheltered, seems to be related to
other issues including the ease or encouragement of
outside camping. Cities that have stopped enforcement
have seen sudden influxes of the unsheltered due to
the option of living on the street. When Austin voted
to end its camping ban in 2019, the city saw an
immediate increase in unsheltered homelessness of
45% by the following year. This was likely not just due
to increased visibility, since the sheltered homeless
dropped by 20% in the same time period.7 Los Angeles
saw an almost 50% decline in unsheltered homelessness the year after it began its “Safer Cities Initiative”
to enforce laws against street camping in Skid Row in
2006, and continued declines in unsheltered homelessness thereafter. But after the city moved away from
street enforcement around 2014, they have seen continual increases in unsheltered homelessness, from a
near nadir of 22,590 in 2014 to 45,878 in 2022.8 If a
city offers the option of pervasive street sleeping and
6
Clayton Page Aldern and Gregg Colburn, Homelessness is a
Housing Problem: How Structural Factors Explain U.S. Patterns
(University of California Press 2022)
7
“2020 Point-in-Time Count Results,” ECHO, https://www.
austinecho.org/wp-content/uploads/2020/07/PIT-2020-Three-OnePagers.Revised-7.9.2020.pdf; “2019 Austin/Travis County Point
in Time Count” ECHO, https://www.austinecho.org/wp-content/
uploads/2019/07/PIT-2019-results-one-pager.pdf
8
“CoC Homeless Populations and Subpopulations Reports,”
Department of Housing and Urban Development, https://www.hu
dexchange.info/programs/coc/coc-homeless-populations-and-subp
opulations-reports/?filter_Year=&filter_Scope=CoC&filter_State
=CA&filter_CoC=CA-600&program=CoC&group=PopSub
62a
camping, many of the formerly sheltered or housed,
and many nonresidents, will take it.
12. We know that large numbers of individuals in
public encampments are what is known as “service
resistant,” and without some sort of mandate they will
not willingly leave. In two studies of homeless encampment residents, only 25 to 41 % of residents said they
would go willingly into shelter.9 The mere provision of
shelter alternatives, without a mandate to use them,
will not get many of the unsheltered off the streets.
13. Temperature is also highly correlated with
unsheltered homelessness, meaning that the ease of
living outside is a significant contributor to the size of
the unsheltered homeless population.10
14. The mobility of the unsheltered homeless
populations is also an issue that makes mere changes
in housing prices in local markets less relevant to
solving unsheltered homelessness. In San Francisco
and Austin, Texas, around a third of the homeless
came from outside the cities, and in Los Angeles’ it was
about a third of all unsheltered.’11 More or cheaper
9
Sharon Chamard, “Homeless Encampments, 2010, https://
popcenter.asu.edu/content/homeless-encampments-0
10
“The State of Homelessness in America,” The Council of
Economic Advisers, September 2019, https://www.nhipdata.org/lo
cal/upload/file/The-State-of-Homelessness-in-America.pdf
11
Sarah Duzinski and Matt Mollica, “2020 Point-in-Time
Count Austin/Travis County,” ECHO, https://www.austintexas.go
v/edims/document.cfm?id=340650 ASR “San Francisco Homeless
County and Survey, 2022 Comprehensive Report,” San Francisco
Depaitment of Homelessness and Suppmtive Housing, https://
hsh.sfgov.org/wp-content/uploads/2022/08/2022-PIT-Count-Repor
t-San-Francisco-Updated-8.9.22.pdf “Greater Los Angles Homeless
Count 2020,” Los Angeles Homeless Services Authority,” https://
63a
housing in a city cannot solve the homelessness if
many of the homeless are moving into that city from
elsewhere. This explains why one study estimated that
it took about 10 permanent supportive housing beds to
reduce the number of homeless by a one.12 Additionally,
many of the unsheltered homeless are not prepared for
life inside. In San Francisco, 11 % of all the homeless
in the city were already in subsidized housing before
they became homeless, most likely for a second or third
time.13
15. Mobility also explains why cities that offer
permissive environments for camping and drug use
tend to attract more encampments. A 2016 Seattle
survey found that less than half of the homeless
became homeless inside the city. Of those who came to
the city almost 10% cited legal marijuana as their
reason for coming, 15% cited the provision of services
for the homeless, and 16% claimed they were just
“traveling or visiting.”14 Numerous homeless individuals state that the ease of drug use and the ability to
live on the streets are a reason for attracting them and
www.lahsa.org/documents?id=4558-2020-greater-los-angeles-hom
eless-count-presentation
12
Kevin Corinth, “The impact of permanent supportive
housing on homeless populations,” Journal of Housing Economics
35 (March 2017): 69-84 https://www.sciencedirect.com/science/art
icle/abs/pii/S11377
13
; ASR “San Francisco Homeless County and Survey, 2022
Comprehensive Report,” San Francisco Department of Homelessness and Supportive Housing, https://hsh.sfgov.org/wp-content/
uploads/2022/08/2022-PIT-Count-Report-San-Francisco-Updated8.19.22.pdf
14
ASR, “2016 Homeless Needs Assessment,” City of Seattle,
https://humaninterests.wpenginepowered.com/wp-content/uploa
ds/2017/04/City-of-Seattle-Report-FINAL-with-4.11.17-additions.
64a
other homeless individuals to the camps in cities that
encourage them.15
16. The pervasive mental health and addiction
problems among the unsheltered, the mobility of the
unsheltered population, and the relative lack of response
to increased subsidized or reduced-rate housing means
that enforcement of laws against public camping and
sleeping, conducted humanely with suitable alternatives,
is one of the only ways to reduce the problems
associated with pervasive unsheltered homelessness
and public encampments.
Humane Enforcement as Alternative
17. Considering the problems among the unsheltered
population, and the high rates of violence and death
among them, it is perhaps not surprising that effective
police response can help reduce the problems associated with public encampments. This response does not
require widespread arrests.
18. The most extensive study of enforcement against
camping and street sleeping is by Richard Berk and
John MacDonald and was published in Criminology &
Public Policy in 2010. They found significant reductions
in violent and property crime as part of Los Angeles’s
“Safer Cities Initiative” and efforts at clearing home15
Natasha Anderson, “I get paid to be homeless in San
Francisco,” Daily Mail, February 20, 2022, https://www.daily
mail.co.uk/news/article-10498607/San-Francisco-homeless-mansays-gets-paid-620-month.html; Heather MacDonald, “San Francisco,
Hostage to the Homeless,” City Journal, Autumn 2019, https://
www.city-joumal.org/article/sanfrancisco-hostage-to-the-homele
ss; Teun Voeten, “Skid Row: Insider the epicentre of LA’s homeless
and crystal meth crisis,” The Independent, October 10, 2021, https://
www.independent.co.uk/arts-entertainment/photography/skid-rowla-homeless-crystal-meth-crisis-b1934786.html
65a
less encampments along Skid Row. They found
reductions in violent crime in the area of around 40%.16
The enforcement was accompanied by significant
overall reductions of homeless deaths in the first year,
including an approximately 50% reduction in natural
deaths and overdoses on Skid Row.17 Berk and
MacDonald also found no negative spillover effects of
crime into other nearby communities-suggesting that
enforcement does merely shift the problem elsewhere.
19. Other cities have seen similar positive results
with enforcement. The city of Colorado Springs once
had around 600 homeless campers according to local
officials. But after it began enforcing its anti-camping
laws in February 2010, they saw significant reductions
in homelessness and increases in service acceptance.
According to Homeward Pikes Peak, the local homeless service provider, after enforcement about 160 of
the homeless went back to their families, 35 went into
rehabilitation, 80 into subsidized housing, and about
150 got jobs. As the head of the organization said, “We
reached out to 610 campers, and 435 didn’t return to
homelessness . . . We decreased chronic homelessness
by two-thirds in seven-and-a-half months.” Among
those that remain on the streets, the city still offers
services but also requires them to move if they
refuse.18
16
Richard Berk and John MacDonald, “Policing the homeless:
An evaluation of efforts to reduce homeless-related crime,”
Criminology & Public Policy 9 (November 2010): 813-840. https://
onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9133.2010.00673.x
17
Patrick McGreevy, “Crackdown cuts Skid Row Death Toll,
Bratton Says,” Los Angeles Times, June 8, 2007, https://www.lati
mes.com/archives/la-xpm-2007-jun-08-me-skid8-story.html
18
Jeremy P. Meyer, “Effect of camping bans debated as Denver
considers ordinance,” Denver Post, April 12, 2012, https://www.
66a
20. In most places, once enforcement begins, there
have been few arrests and large numbers of individuals connected to services. There were no reported
arrests in Colorado Springs despite the large number
of people moved into services. In Burien, Washington,
after the city gave notice to around 50 to 100
unsheltered homeless to vacate, several moved on to
unknown locations, several accepted services, and only
1 was arrested.19 In Austin, Texas, after reinstatement
of a camping ban, there were substantial reductions in
public camping, and only one reported arrest after the
first year.20
21. The Arizona State University Center for ProblemOriented Policing includes “Shutting down homeless
encampments” as part of their “General Principles for
an Effective Strategy” for dealing with the “Problem of
Homeless Encampments.” They recommend providing
residents with effective notice of camp clearance, contacting homeless service providers to connect residents
with services, and offering the storage of personal
property. They then recommend citations of any
residents who refuse to . move followed by, if necessary,
denverpost.com/2012/04/21/effect-of-camping-bans-debated-as-den
ver-considers-ordinance/
19
Christopher Rufo, “Enforcement Works,” City Journal,
August 23, 2019, https://www.city-joumal.org/article/enforcementworks
20
Maria Aguilera, “On year after voters reinstated the camping
ban, Austin’s homeless woes continue,” KVUE, May 2, 2022,
https://www.kvue.com/article/news/local/homeless/austin-campin
g-ban-prop-b-homeless-housing-affordability/269-6ba7e3c2-e6de4724-8839-72bed06b7105
67a
the “arrest any remaining” residents, along with posted
signs to ensure residents do not return to the camp.21
22. In practice, camp clearings, warnings, and
referrals to services are usually enough to clear camps
with minimal citations and few if any arrests. The
large number of residents who return to families,
hometowns, or other locations that are not public
camps after such clearings means that many, or most,
do not require an immediate alternative location. Yet
it is effective and humane to provide such alternatives
for those who have nowhere else to go. It also suggests,
again, that a key factor leading to homeless encampments is the policies of a municipality that attract
unsheltered populations: lack of enforcement against
drug use and/or camping bans, and an unwillingness
to force individuals to leave if they refuse to accept
services.
Structured Camping and Other Alternatives to
Public Encampments
23. In most places that decide to enforce laws
against public camping, cities provide alternative
arrangements to those who choose to take them up.
Although some places have sufficient enclosed congregate ( or group) shelter space available, others have
tried alternatives such as tiny home villages and
structured camping facilities.
24. There have been many models of successful
structured camping areas across the United States
and many types of temporary homeless shelters that
are improvements over unsupervised public encamp21
Sharon Chamard, “Homeless Encampments: Responses to
the Problem of Homeless Encampments,” ASU Center for
ProblemOriented Policing, 2010, https://popcenter.asu.edu/conte
nt/homeless-encampments-page-3
68a
ments. One study from the Goldman School of Public
Policy at the University of California, Berkeley
examined several short-term shelter models and their
cost. They estimated that tiny homes cost about $2,200
per unit in Seattle and $2,000 in San Francisco.
In Oakland a site with tiny homes for 40 individuals
cost about $200,000 to set up, or about $5,000 per
individual, and about $650,000 in annual operating
expenses, most of which went to staffing, some of which
would be provided to the homeless without the site.
The study also estimated sanctioned tents cost about
$100 per unit. “Sprung Structures” or large tents,
could cost $800,000 but house up to 500 people, or
about $1,600 per individual.22
25. While some camps have more extensive structures and services and show substantially higher
capital and operating costs, others have shown even
lower capital and operating costs than those cited
above. Another Goldman School report on sanctioned
homeless encampments found that a sanctioned camp
in Ontario, California, which generally served 120
people, had start-up costs of about $100,000 and
ongoing operational costs after the first year of
$300,000 per year. That amounts to approximately
$2,500 per person per year.23
22
Rawan Elhalaby, “Housing Oakland’s Unhoused: Advanced
Policy Analysis,” Dellums Institute for Social Justice at the UC
Berkeley, Goldman School of Public Policy, Spring 2018, https://
static1.squarespace.com/static/55c573a9e4b014e7aace0627/t/5c0
5c5b9b8a04584587afacc/1543882173544/12.3.2018+FINAL+Hou
sing+Oakland%27s+ Unhoused+Oct+2018.pdf
23
Rebecca Cohen, Will Yetvin, and Jill Khadduri, “Understanding Encampments of Experiencing Homelessness and Community:
Emerging Evidence as of Late 2018,” U.S. Department of Housing
69a
26. Several cities have already tried versions of
open-air shelters and the evaluations have been
positive. Las Vegas opened its “Courtyard Homeless
Resource Center” with covered space available 24
accompanied by extensive services, in 2017. It was
expanded in 2022 after the city put in place an
expanded ban on public camping and sleeping that is
enforced as long as space is available in the Courtyard
Center or another provider. It has space for 800 guests,
and outreach teams that include law enforcement to
encourage the unsheltered to move to the courtyard
and has generally received favorable reports.24
27. The city of Seattle invested in six formalized
homeless encampments, and, according to a city
evaluation of the first three programs to open in 2017,
they have “met and exceeded the contracted performance measures” and the “neighboring communities
have responded positively” to the security of the
camps. In 2016, 467 individuals were in the camps at
some point, and of those 327 exited the camps. 61 % of
those who exited went to known locations, including
26% to permanent housing, 13% to transitional housing,
and 5% to shelter. The total program budget was
$755,500 for the year, meaning $2,310 per person
exited in the year, or $1,618 per individual served.25
and Urban Development, January 7, 2019, https://www.huduser.
gov/portal/sites/default/files/pdf/Understanding-Encampments.pdf
24
“Homeless Services,” Las Vegas, Nevada, https://www.lasve
gasnevada.gov/Residents/Resident-Services/Homeless-Services
25
“Permitted Encampment Evaluation,” City of Seattle, June
2017, https://www.seattle.gov/documents/departments/humanser
vices/aboutus/final%202017%20permitted%20encampment%20e
valuation.pdf
70a
28. The city of Portland created a small “pop-up”
encampment for women, the Kenton Women’s Village,
which opened in 2017, and according to the Portland
Mercury the camp “exceeded its founders’ cautious
expectations.” Of the 23 women who lived in the village
to mid-2018, 14 transitioned to permanent housing,
assisted by on-site case workers. Catholic Charities
manages the camp and has strict rules on open
containers of alcohol, drug use, and violence. There has
been no reported up tick in crime or other homeless
camps in the area.26 Portland has also contracted with
a nonprofit to manage a larger male and female
“Dignity Village” for homeless residents. There residents are responsible for security in the camp, and
they are required to pay $35 a month in rent, which
makes the camp “financially self-sustained,” according
to one of the Goldman School studies.27
29. The Ontario, California camp opened in 2007,
and came to serve about 120 chronically homeless
adults. The city enforced general laws against public
intoxication and drug use at the camp, enforced a
10pm curfew, and decided to restrict the encampment
to only city residents. It closed in 2014 after all but two
of the adults found permanent housing.28
26
Alex Zielinski, “A Safe Place to Sleep,” Portland Mercury,
June 20, 2018, https://www.portlandmercury.com/Housing/2018/
06/20/20727734/a-safe-place-to-sleep
27
Justin Patrick Jones et. al., “Alternatives to Unsanctioned
Homeless Encampments: A Report for the City of Oakland from
the Goldman School of Public Policy, University of California,
Berkeley,” May 2015, https://gspp.berkeley.edu/assets/uploads/pa
ge/15-13160_-_Goldman_Student_Report_-_Final_Draft_-_May_
11_2015_reduced_size.pdf.pdf
28
Justin Patrick Jones et. al., “Alternatives to Unsanctioned
Homeless Encampments: A Report for the City of Oakland from
71a
30. In Austin, Texas, the state’s clearance of unauthorized camps from state-owned land in 2019 (with
no reported arrests) was accompanied by the creation
of a 5-acre structured camping site now known as the
Esperanza Community, which has about 150
residents.29 The Other Ones Foundation, a homeless
nonprofit, helps administer the site. Many residents
have noted that they appreciate the increased security
of the community.30
31. In my opinion, the City of Phoenix could rapidly
and at low cost relative to its other homelessness
initiatives establish and operate structured campsites
similar to those in other cities. Such campsites will
improve the conditions for the unsheltered who stay
there as well as the security of the surrounding
neighborhoods.
the Goldman School of Public Policy, University of California,
Berkeley,” May 2015, https://gspp.berkeley.edu/assets/uploads/pa
ge/15-_13160_-_Goldman_Student_Report_-_Final_Draft_-_May
_11_2015_reduced_size.pdf.pdf
29
“The Other Ones Foundation, “Esperanza Community,”
https://toofound.org/esperanza-community/
30
Andrew Weber, “As Camp Gets Demolished, New Shelters
Are Built for Austinites Experiencing Homelessness,” KUT,
https://www.kut.org/austin/2021-04-16/as-camp-gets-demolishednew-shelters-are-built-for-austinites-experiencing-homelessness;
Alyssa Goard, “‘Esperanza Community’: Residents Elect New
Vision for State Homeless Camp in Austin,” KXAN, November 13,
2020,https://www.kxan.com/news/local/austin/esperanza-commu
nity-residents-elect-new-vision-for-state-homeless-camp-in-austi
n/ Fred Cantu, “More Shelters Arrive at former TxDot yard now
providing transitional housing,” CBS Austin, November 30, 2022,
https://cbsaustin.com/news/local/more-housing-arrives-at-formertxdot-yard-now-providing-transitional-housing-austin-homelesscamp-esperanza-community-the-other-ones-foundation-shelter
72a
Results of the Boise Decision
32. Since humane enforcement of laws and rules
against public encampments is essential for responding to their growth and the negative effects of such
camps, the pull-back in recent years of such enforcement that has accompanied a narrow reading of
the Martin v. City of Boise decision in the 9th Circuit
Court of Appeals has exacerbated the problems of
homelessness.
33. According to public data, the Boise decision does
not seem to have had a positive effect on homelessness
in the 9th circuit. From early 2018, the last time for
which data is available before the Boise decision, to
2022, the most recent year for which data is available,
homelessness in the 9th circuit states increased by
26%, while in the rest of the United States it decreased
by 6%. The unsheltered homeless increased in the 9th
circuit states by 28%, while in the rest of the country
the number of unsheltered increased by only 8%.31 In
many of the largest cities in the circuit, including Los
Angeles, Seattle, San Francisco, and Portland, we have
seen 50% or greater increases in annual homeless
deaths in some years since the Boise decision, largely
driven by increases in overdoses, with few or none
attributed to COVID.32
31
“2022 AHAR: Part 1 – PIT Estimates of Homelessness in the
U.S.,” Department of Housing and Urban Development, December
2022, https://www.huduser.gov/portal/datasets/ahar/2022-ahar-part1-pit-estimates-of-homelessness-in-the-us.html
32
Thomas Fuller, “Death on the Streets,” New York Times, April
25, 2022, https://www.nytimes.com/2022/04/25/us/homeless-deathslos-angeles-new-york.html. Anna Patrick, “More homeless people
died in King County in 2022 than ever recorded before,” The
Seattle Times, January 16, 2023, https://www.seattletimes.com/
seattle-news/homeless/more-homeless-people-died-in-king-county-
73a
34. Whatever the goal or intention of the Boise
decision, when it has been accompanied by a refusal to
enforce laws against street camping or a refusal to
provide alternatives to residents, there has been only
increases in homeless suffering and death.
Conclusion
35. Homelessness is a multifaceted problem whose
causes are in many ways as diverse as the number of
people experiencing it. Providing everyone with subsidized housing or waiting decades for a city to build
enough market-rate housing are not sufficient solutions
for large numbers of the unsheltered.
36. Humane enforcement of laws against public
camping and sleeping, accompanied by sufficient alternatives, such as expanded shelters, structured camping,
and tiny home villages, can make a material difference
in the lives of homeless people and in the cities of
which they are residents.
DATED: May 23, 2023.
/s/ Judge Glock
Judge Glock
in-2022-than-ever-recorded-before/ Caroline Cawley, Hernal Kanzaria,
Berry Zevin, et. al., “Mortality Among People Experiencing
Homelessness in San Francisco During COVID-19 Pandemic,”
JAMA Network Open, https://jamanetwork.com/jounials/jamane
tworkopen/fullarticle/2789907; ; “Substances Fuel Record Homeless
Deaths in Portland, Oregon,” Associated Press, February 15, 2023,
https://www.usnews.com/news/best-states/oregon/articles/2023-0215/substances-fuel-record-homeless-deaths-in-portland-oregon.
74a
APPENDIX E
Freddy Brown et al. v. City of Phoenix,CV2022010439 (Maricopa County Superior Court),
Trial Exhibits 1, 2, 18, 21, 22, 24, 26, 28, 30, 31
The Zone Photo 1
The Zone Photo 2
75a
The Zone Photo 18
The Zone Photo 25
76a
The Zone Photo 26
The Zone Photo 28
77a
The Zone Photo 30
The Zone Photo 32
78a
The Zone Photo 34
The Zone Photo 35
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.