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.

pdf

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.

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