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 25, 2023
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No. 23-175
In the Supreme Court of the United States
——————
CITY OF GRANTS PASS , OREGON,
Petitioner,
v.
GLORIA JOHNSON, ET AL.,
Respondents.
——————
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
——————
BRIEF OF NEIGHBORS FOR A BETTER SAN
FRANCISCO, SAN FRANCISCO CHAMBER
OF COMMERCE, CALIFORNIA BUSINESS
ROUNDTABLE, CALIFORNIA RETAILERS
ASSOCIATION, AND MORE THAN 300 SAN
FRANCISCO-BASED COMPANIES, BUSINESS OWNERS AND EXECUTIVES, CIVIC
ORGANIZATIONS, PROFESSIONALS, AND
NEIGHBORHOOD LEADERS AS AMICI
CURIAE IN SUPPORT OF PETITIONER
——————
CHRISTOPHER G. MICHEL
Counsel of Record
RACHEL G. FRANK
MICHAEL SEBRING
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
1300 I Street, N.W.
Suite 900
Washington, D.C. 20005
(202) 538-8308
christophermichel@
quinnemanuel.com
Counsel for Amici Curiae
i
QUESTION PRESENTED
Whether a municipal government’s enforcement of
generally applicable laws regulating sleeping and
camping on public property constitutes cruel and unusual punishment in violation of the Eighth Amendment.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ............................................ i
TABLE OF AUTHORITIES........................................ iv
INTEREST OF AMICI CURIAE ................................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT....................................................... 3
ARGUMENT .................................................................. 5
I.
II.
San Francisco’s Experiences
Demonstrate The Critical Need For
This Court’s Review ........................................... 5
A.
San Francisco Faces An
Increasingly Dire Homelessness
Crisis ........................................................ 6
B.
San Francisco’s Attempts To
Address Its Homelessness Crisis
Have Been Undermined By The
Ninth Circuit ......................................... 12
The Ninth Circuit’s Decision Is Wrong.......... 15
A.
The Eighth Amendment Does
Not Prohibit State Or Local
Governments From Punishing
Proscribed Conduct............................... 15
B.
The Ninth Circuit Badly
Misinterpreted the Eighth
Amendment ........................................... 18
C.
The Ninth Circuit’s Decisions
Undermine Core Principles of
iii
Federalism and Judicial
Restraint ................................................ 21
III.
The Ninth Circuit’s Decisions Conflict
with Precedent from Other Courts,
Including the California Supreme Court ...... 24
CONCLUSION ............................................................ 25
APPENDIX A............................................................... 2a
APPENDIX B............................................................. 15a
iv
TABLE OF AUTHORITIES
Page
CASES
Coalition on Homelessness v. City & County of
San Francisco, 2022 WL 17905114
(N.D. Cal. Dec. 23, 2022)..................... 4, 7–9, 12–14
Gregg v. Georgia,
428 U.S. 153 (1976) ......................................... 21, 22
Harmelin v. Michigan,
501 U.S. 957 (1991) ............................................... 22
Ingraham v. Wright,
430 U.S. 651 (1977) ............................................... 16
Jones v. Hendrix,
599 U.S. 465 (2023) ............................................... 15
Jones v. United States,
463 U.S. 354 (1983) ............................................... 22
Kahler v. Kansas,
140 S. Ct. 1021 (2020) ........................................... 19
Kennedy v. Louisiana,
554 U.S. 407 (2008) ............................................... 22
Manning v. Caldwell,
930 F.3d 264 (4th Cir. 2019)..................... 17, 20, 21
Martin v. City of Boise,
920 F.3d 584 (9th Cir. 2019).......... 4, 13, 16, 18, 20
v
Powell v. Texas,
392 U.S. 514 (1968) ...................... 16, 17, 20, 21, 22
Roberts v. Louisiana,
431 U.S. 633 (1977) ............................................... 21
Robinson v. California,
370 U.S. 660 (1962) ......................................... 16, 18
Tobe v. City of Santa Ana,
892 P.2d 1145 (Cal. 1995) ..................................... 24
Wright v. North Carolina,
415 U.S. 936 (1974) ............................................... 25
O THER AUTHORITIES
Andrea Cavallier, Inside San Francisco’s Open
Air Drug Market, DAILY MAIL (Jan. 25,
2022), https://bit.ly/3Rs05Oa .................................. 8
Amy Graff, San Francisco Loses 2 Big
Conferences, SFGATE (July 6, 2023),
https://bit.ly/3sYuGsH........................................... 11
Betty Yu, Homeless Encampment Fires Plague
Residents of San Francisco Tenderloin
District Building, CBS NEWS BAY AREA
(June 27, 2023), https://cbsn.ws/3EEDpmy ........ 10
vi
Caroline J. Waddell et al., Possible Undetected
Mpox Infection Among Persons Accessing
Homeless Services and Staying in
Encampments — San Francisco,
California, October–November 2022, CTRS .
FOR DISEASE CONTROL & PREVENTION :
MORBIDITY AND MORTALITY WKLY. REP.
(Mar. 3, 2023), https://bit.ly/3rbtq50 ..................... 9
C.Y. Liu et al., Communicable Disease Among
People Experiencing Homelessness in
California, 148 EPIDEMIOLOGY &
INFECTION e85 (2020),
https://bit.ly/3Rk1Cpu ............................................. 9
Da Lin, ‘Coming to the City, I'm Sorry, It's
Scary’; Safety Fears Linger in Wake of a
Violent Week in San Francisco, CBS NEWS
BAY AREA, (Apr. 8, 2023), bit.ly/48jBpgX ............... 9
Dan Thorn, Homeless Encampment Fire
Destroys Woman’s Car in San Francisco,
KRON4 (July 28, 2023),
https://bit.ly/3EANQrd .......................................... 10
Dion Lim, Drug Dealing, Defecation, Debris:
SF Street Causing ‘Chaos’ for Homeowners,
Businesses, ABC 7 NEWS (June 23, 2023),
https://abc7ne.ws/48gxXDG.................................... 8
Erin McCormick, The Daily Battle to Keep
People Alive as Fentanyl Ravages San
Francisco’s Tenderloin, THE GUARDIAN
(Apr. 23, 2022), https://bit.ly/48rtlen..................... 9
vii
Henry O’Loughlin, Every Business Leaving
San Francisco, BUILD REMOTE (2020–2023)
(Sept. 3, 2023),
https://tinyurl.com/3sruvfpk................................. 10
Isabel Keane, Luxury San Francisco store may
close after 166 years due to ‘litany of
destructive’ policies making the city
‘unlivable’, NY POST (Aug. 16, 2023),
https://tinyurl.com/5n7ctk5v ................................ 12
James Gordon, San Francisco Whole Foods
Made More Than 560 Emergency Calls
Over 13 Months After Rampant Drug Use
In Restrooms, People Defecating On The
Floor, Violence Towards Staff, DAILY MAIL
(May 1, 2023),
https://tinyurl.com/mr3y6b5p............................... 10
Jonah Lamb, Bloody Sidewalks, Knife Attacks
and a Corpse: What Workers Face Outside
San Francisco Federal Building, S.F.
STANDARD (Sept. 8,
2023), https://bit.ly/44OuRUN. ............................ 23
Joshua Rhett Miller, Old Navy to Nordstrom:
Half of Retailers Fleeing Downtown San
Francisco, NY POST (June 21, 2023),
https://tinyurl.com/9jjj29us .................................. 10
Justine Waldman, SF Business Owners
Concerned About Homeless Near Store,
KRON4 (May 23, 2023),
https://bit.ly/3EAvjvd ............................................ 11
viii
Katy Grimes, San Francisco Collapse: More
Store Closures, Lawlessness, Drugs,
Homeless, CAL. GLOBE (May 11, 2023),
https://tinyurl.com/2z7v5fn8 ................................ 11
Kevin Fisher-Paulson, SF Retains Beauty
Despite All Our Decorating, S.F. CHRON.
(Jan. 29, 2018), https://bit.ly/3ZpWeDp................. 5
Lyanna Melendez, Some Federal Employees in
SF Asked to Work From Home Amid Drug,
Crime Concerns: Report, ABC 7 NEWS (Aug.
14, 2023), https://abc7ne.ws/3RoTUdV ............... 23
Lezla Gooden, SF Apartment Building Seeks
Help as Homeless Encampment Grows
Underneath, CBS NEWS BAY AREA (July 19,
2023), bit.ly/3Ez7t2V ............................................... 7
Mallory Moench, Dad Reveals Horrific Details
of Baby’s Reported Fentanyl Overdose at
S.F. Playground, S.F. CHRON. (Nov. 30,
2022), https://bit.ly/3LooT6a .................................. 8
Maureen Kelly, San Francisco Business
Owner Considering Closing Shop After
Being Bitten by Homeless Person Twice,
KRON4 (Sept. 10, 2019),
https://bit.ly/3RlHrYo .............................................. 9
Megan Cassidy, Crime Is So Bad Near S.F.
Federal Building Employees Are Told to
Work From Home, Officials Said,
S.F. CHRON. (Aug. 11, 2023),
https://bit.ly/3Ll9LWT........................................... 23
ix
Michael Thomas et al., Residents: We Warned
SF City Leaders Before Massive Fire,
KRON4 (Aug. 2, 2023),
https://bit.ly/3LlRUzp............................................ 10
Miles Dilworth, San Francisco Exodus Gather
Pace: T-Mobile Shutters Flagship Store
After Nordstrom And Saks Off Fifth ShutUp Shop, DAILY MAIL (May 8, 2023),
https://tinyurl.com/3p47r82e ................................ 10
Roland Li & Kevin Fagan, Marc Benioff: Next
Month’s Dreamforce Could Be Last in S.F.
if It's Affected by Homelessness, Drug Use,
S.F. CHRON. (Aug. 29, 2023),
https://bit.ly/3EMdZmS......................................... 11
San Francisco District Attorney Chesa Boudin
Recalled, 136 H ARV. L. REV. 1740 (2023). .......... 12
SF Neighborhood Group Installs Planters
Along Sidewalk Once Taken Over by
Homeless Encampment, CBS NEWS BAY
AREA (June 13, 2023),
https://cbsn.ws/3Riwyqg.......................................... 8
William J. Stuntz & Joseph L. Hoffman,
DEFINING CRIMES (2011) ...................................... 17
Wilson Walker, Homeless Encampment
Sweeps Are Just One Aspect of a System
Not Working for SF Residents, CBS NEWS
BAY AREA (Aug. 23, 2023),
cbsn.ws/3RoYGrM ................................................. 14
1
INTEREST OF AMICI CURIAE
Amici curiae are a broad range of civic, community, and business organizations in San Francisco, as
well as San Francisco-based companies, business
owners and executives, other professionals, and
neighborhood leaders. A full list of amici appears as
Appendix A to this brief.
The civic and community association amici include
Neighbors for a Better San Francisco, a group of San
Franciscans committed to improving public safety,
public education, and quality of life for the City; numerous neighborhood associations, including the Castro Community Benefit District, Dolores Heights Improvement Club, and Inner Mission Neighborhood Association; and the Chinese American Democratic Club
and Edwin M. Lee Asian Pacific Democratic Club.
The business advocacy amici include the California Business Roundtable, California Retailers Association, San Francisco Chamber of Commerce and San
Francisco Filipino American Chamber of Commerce,
San Francisco Apartment Association, BOMA (Building Owners and Management Association) San Francisco, Small Property Owners of San Francisco Institute, San Francisco Council of District Merchants Associations, and many district merchant associations.
Pursuant to Supreme Court Rule 37, amici affirm that no counsel for a party authored this brief in whole or in part, and no one
other than amici or its counsel made a monetary contribution
intended to fund the preparation or submission of the brief.
Counsel of record for all parties received notice at least 10 days
prior to the due date of the intention of amici to file this brief.
2
The company amici include businesses in many
sectors and parts of the City, including Abanico Coffee
Roasters, Anresco Laboratories, Banks & Sugarman,
the Castro Room, Cliff’s Variety, The Edge, Lucy Junus Interior Design, MicroTracers, Inc., Midnight
Sun, San Francisco Office Lofts, Sign Me Up! Photography, Smile SF, SV Angel, and Zingari Ristorante.
The individual amici include prominent business
executives, such as the co-founder of Door Dash,
Chairman and Chief Executive Officer (CEO) of Prologis, former Chairman of Gap, Inc., CEO of Kilroy Realty, President of Paramount Hotels, and senior members of leading foundations and investment firms.
The individual amici also include dozens of small
business owners and employees; former law-enforcement officials, including a former San Francisco Chief
of Police and a former Assistant United States Attorney; doctors; educators; authors and artists; restauranters; philanthropists; public policy advocates; and
many other community leaders and stakeholders.
Amici hold widely varying views on many policy
issues. But they agree on the key aspects of this
case: San Francisco is facing a growing homelessness
crisis that endangers the City’s residents, businesses,
visitors, and homeless people themselves. A critical
tool in addressing that crisis is the enforcement of
common sense public safety laws that prevent homeless encampments from taking over the City’s
streets. By holding that enforcement of such laws violates the Eighth Amendment, the Ninth Circuit committed a serious legal error that will have devastating
consequences for cities on the frontlines of the homelessness crisis. Amici urge the Court to grant review
in this case and reverse the flawed decision below.
3
INTRODUCTION AND
SUMMARY OF ARGUMENT
San Francisco is one of the world’s great cities. It
combines spectacular natural beauty, vibrant culture
and arts, and a spirit of innovation that has endured
from the Gold Rush to the Tech Boom. Those features
have attracted generations of residents, entrepreneurs, and visitors. And the City has long prided itself on its openness and tolerance, welcoming diverse
ways of life and points of view.
Unfortunately, San Francisco now faces a dire crisis arising from homelessness. In many parts of the
City, it is impossible to walk down the sidewalk or enter buildings because of homeless encampments—collections of tents and other personal belongings where
homeless people congregate to live and sleep. Encampments are frequently sites of drug use and violence, endangering both passersby and homeless people themselves. And encampments create other
health and safety risks, ranging from fire to disease.
For too long, San Francisco’s leaders ignored—or
even encouraged—the homelessness crisis. While the
City’s policies may have reflected good intentions,
they were badly misconceived. There is nothing compassionate about abandoning homeless people to the
nightmare of encampments. It is not a hallmark of
progress to let addicts use drugs in public or defecate
on the streets. It is an abdication of the first duty of
government: to enforce the law and protect the people.
Spurred by business and civic groups, including
many of the amici joining this brief, San Francisco’s
leaders have finally started to grapple with the homelessness crisis. The City has devoted vast amounts of
4
resources to expanding shelter capacity, while beginning to enforce laws to reclaim public spaces for all
members of the community. But just as that belated
response has begun, a new obstacle has emerged.
In Martin v. City of Boise, 920 F.3d 584 (9th Cir.
2019), the Ninth Circuit held that a city’s enforcement
of laws prohibiting public sleeping and camping
against “involuntarily” homeless people violates the
Eighth Amendment. Id. at 617. Suits followed
against many cities throughout the West, including
this suit against Grants Pass, Oregon, and one
against San Francisco. The Ninth Circuit panel in
this case reiterated and expanded Martin’s holding.
Pet. App. 42a–55a. Then, relying on Martin and the
panel decision in this case, a district court enjoined
San Francisco from enforcing laws prohibiting similar
practices, including two that were adopted by city voters through referenda in 2010 and 2016.1
As a result, San Francisco has been disabled from
enforcing critical public safety laws, effectively requiring it “to surrender [its] sidewalks and other public places to homeless encampments.” Pet. App. 128a
(statement of O’Scannlain, J., respecting the denial of
rehearing en banc). The consequences have been
tragically predictable: a rise in crime, an exodus of
downtown residents and businesses, a decline in tourism, and—worst of all—even more miserable conditions for the homeless.
Coalition on Homelessness v. City & Cnty. of S.F., 22-cv-05502,
2022 WL 17905114 (N.D. Cal. Dec. 23, 2022) (“Coalition”). This
brief cites the appellate excerpts of record (“ER”) in the Coalition
case, which is now on appeal to the Ninth Circuit (No. 23-15087).
1
5
The Ninth Circuit’s decisions in this case and Martin are an indefensible overreach. They have no basis
in the text or original meaning of the Eighth Amendment, which cannot plausibly be read to bar enforcement of public safety laws that impose modest penalties for defined conduct—not a person’s status. They
violate principles of federalism and judicial restraint
by allowing federal courts to displace the policy judgments of local leaders and voters who are closest to
the problems. They conflict with the decisions of
other appellate courts—including the California Supreme Court—upholding similar laws. And they do
not promote values of compassion or tolerance; they
make it more dangerous to live, work, and travel in
our nation’s largest cities, and they ultimately worsen
life for the homeless themselves.
When a federal appellate court has enjoined state
and local laws on federal constitutional grounds, local
residents and businesses have nowhere to turn but
this Court. This Court’s review is fully warranted and
desperately needed. Amici urge the Court to grant review and reverse the egregious errors committed by
the Ninth Circuit.
ARGUMENT
I.
San Francisco’s Experiences Demonstrate
The Critical Need For This Court’s Review
Frank Lloyd Wright once called San Francisco “the
only city I can think of that can survive all the things
[that] people are doing to it and still look beautiful.”2
The homelessness crisis, exacerbated by the Ninth
Kevin Fisher-Paulson, SF Retains Beauty Despite All Our
Decorating, S.F. CHRON. (Jan. 29, 2018), https://bit.ly/3ZpWeDp.
2
6
Circuit’s decisions, is testing that description. And diminishing the City’s appearance is only the beginning
of the problem. The constraints imposed by the Ninth
Circuit are creating intolerable safety risks and inflicting other profound costs on residents, businesses,
tourists, and homeless people themselves.
A.
San Francisco Faces An Increasingly
Dire Homelessness Crisis
Homelessness is not a new challenge in San Francisco. Amid the City’s vast cultural and economic
prosperity, some people have always lacked housing
for a complex range of reasons. Public and private
entities in the City have responded in different ways
at different times, producing what can fairly be described as mixed results. But while the problem has
long persisted, it has generally been manageable.
That has changed. Over the past few years, homelessness in San Francisco has escalated into a crisis.
The problems of earlier eras—struggling people sleeping on park benches or outside shelters—have given
way to the new phenomenon of homeless encampments, where large numbers of people congregate for
extended periods, often with a substantial volume of
belongings. As a result, sidewalks, streets, and other
public spaces in many parts of the City are littered
with an array of tents, tarps, boxes, shopping carts,
cooking gear, trash heaps, spoiled food, suitcases, and
other paraphernalia. The image below (drawn from
the record in the Coalition suit against San Francisco)
is from the Embarcadero near Washington Street, one
of the tourism and commercial centers of the City.
7
Embarcadero near Washington Street3
In some places, encampments create even more serious problems, obstructing walkways and blocking
entrances to schools, businesses, residences, health
clinics or pharmacies, grocery stores, public transportation, and other critical destinations.4 The result is
to make those places more difficult and dangerous—
and in some cases impossible—to access, posing severe challenges for daily living. The obstructions also
force more pedestrians (including those with strollers
or wheelchairs) into the streets, where they face
3
Coalition, 2-ER-120.
Lezla Gooden, SF Apartment Building Seeks Help as Homeless
Encampment Grows Underneath, CBS N EWS BAY AREA (July 19,
2023), bit.ly/3Ez7t2V.
4
8
greater danger from vehicles.5 One of many examples
is depicted below.
Erie Street between SOMA and the Mission6
In effect, a significant number of San Francisco’s
public spaces have been converted into unofficial
open-air public housing facilities. That transformation has far-reaching negative effects. For one, illegal drug use and attendant crime thrive within
homeless encampments, fueling the deadly fentanyl
epidemic and creating new health risks through discarded needles and drugs—some of which end up in
playgrounds or other areas accessible to children. 7
SF Neighborhood Group Installs Planters Along Sidewalk Once
Taken Over by Homeless Encampment, CBS N EWS BAY AREA
(June 13, 2023), https://cbsn.ws/3Riwyqg.
5
6
Coalition, 2-ER-179.
Dion Lim, Drug Dealing, Defecation, Debris: SF Street Causing
‘Chaos’ for Homeowners, Businesses, ABC 7 N EWS (June 23,
2023), https://abc7ne.ws/48gxXDG; Mallory Moench, Dad
Reveals Horrific Details of Baby’s Reported Fentanyl Overdose at
S.F. Playground, S.F. CHRON.
(Nov. 30,
2022),
https://bit.ly/3LooT6a; Andrea Cavallier, Inside San Francisco’s
7
9
Homeless encampments also lack most elements of
modern sanitation. A recent filing by the City described its collection from an encampment of “items
(including bedding and clothing) soiled by infectious
or hazardous materials, including human waste, body
fluids, mold and mildew, as well as items infested by
rodents and insects, such as rats, mice, fleas, lice and
bed bugs.”8 Such conditions require homeless people
to endure unthinkable hardships, repel residents and
visitors from approaching, and contribute to the
spread of communicable diseases like tuberculosis.9
Encampments create other physical risks as well.
They are frequently sites of violence and harassment,
both for passersby and those in the encampments.10
And the use of open flames in encampments—for
Open Air Drug Market, DAILY MAIL (Jan. 25, 2022),
https://bit.ly/3Rs05Oa; Erin McCormick, The Daily Battle to
Keep People Alive as Fentanyl Ravages San Francisco’s
Tenderloin, THE GUARDIAN (Apr. 23, 2022), https://bit.ly/48rtlen.
8
Coalition, 5-ER-1047.
Caroline J. Waddell et al., Possible Undetected Mpox Infection
Among Persons Accessing Homeless Services and Staying in
Encampments — San Francisco, California, October–November
2022, CTRS. FOR DISEASE CONTROL & PREVENTION: MORBIDITY
AND
MORTALITY
WKLY.
REP.
(Mar.
3,
2023),
https://bit.ly/3rbtq50; C.Y. Liu et al., Communicable Disease
Among People Experiencing Homelessness in California, 148
EPIDEMIOLOGY & INFECTION e85 (2020), https://bit.ly/3Rk1Cpu.
9
Da Lin, ‘Coming to the City, I'm Sorry, It's Scary’; Safety Fears
Linger in Wake of a Violent Week in San Francisco, CBS N EWS
BAY AREA, (Apr. 8, 2023), bit.ly/48jBpgX; Maureen Kelly, San
Francisco Business Owner Considering Closing Shop After Being
Bitten by Homeless Person Twice, KRON4 (Sept. 10, 2019),
https://bit.ly/3RlHrYo.
10
10
cooking, warmth, and drug use—creates fire hazards.11 In recent months, several fires started in encampments have spread to other parts of the community, destroying property and endangering lives.12
The proliferation of encampments has been devastating to San Francisco’s business and working communities. The ever-expanding roster of companies reducing operations or fleeing the City includes commercial leaders like T-Mobile, AT&T, Banana Republic, Old Navy, Whole Foods, and Nordstrom.13 In the
iconic Union Square neighborhood alone, “[a]t least 22
big-name businesses have closed or announced plans
to flee the area since January 2022.”14 And things are
Betty Yu, Homeless Encampment Fires Plague Residents of
San Francisco Tenderloin District Building, CBS N EWS BAY
AREA (June 27, 2023), https://cbsn.ws/3EEDpmy; Dan Thorn,
Homeless Encampment Fire Destroys Woman’s Car in San
Francisco, KRON4 (July 28, 2023), https://bit.ly/3EANQrd.
11
Michael Thomas et al., Residents: We Warned SF City Leaders
Before
Massive
Fire,
KRON4
(Aug.
2,
2023),
https://bit.ly/3LlRUzp.
12
Joshua Rhett Miller, Old Navy to Nordstrom: Half of Retailers
Fleeing Downtown San Francisco, NY POST (June 21, 2023),
https://tinyurl.com/9jjj29us; Henry O’Loughlin, Every Business
Leaving San Francisco, BUILD REMOTE (2020–2023) (Sept. 3,
2023), https://tinyurl.com/3sruvfpk; Miles Dilworth, San
Francisco Exodus Gather Pace: T-Mobile Shutters Flagship Store
After Nordstrom And Saks Off Fifth Shut-Up Shop, DAILY MAIL
(May 8, 2023), https://tinyurl.com/3p47r82e; James Gordon, San
Francisco Whole Foods Made More Than 560 Emergency Calls
Over 13 Months After Rampant Drug Use In Restrooms, People
Defecating On The Floor, Violence Towards Staff, DAILY MAIL
(May 1, 2023), https://tinyurl.com/mr3y6b5p.
13
14
Miller, supra note 13.
11
only getting worse; the City has already lost two major 2024 conferences, and it risks losing Dreamforce—
Salesforce’s 40,000 person conference that generated
almost $90 million in spending in 2023.15
Small businesses have been especially hard hit. A
neighborhood bike shop recently announced that it
made the “tough decision to close” after “repeated
break-in attempts over the last year, and more broken
windows than we can count.” 16 The owners of a dog
daycare center are facing the same choice because
“homeless people are leaving needles and feces on
their front door” and “threatening people as they walk
in.”17 Countless other closures have deprived communities of needed commerce and workers of their livelihoods. One retailer spoke for many when it recently
took out a full-page newspaper ad admonishing the
City for “allowing the homeless to occupy our sidewalks, to openly distribute and use illegal drugs, to
harass the public[,] and to defile the city’s streets.” 18
Amy Graff, San Francisco Loses 2 Big Conferences, SFGATE
(July 6, 2023), https://bit.ly/3sYuGsH; Roland Li & Kevin Fagan,
Marc Benioff: Next Month’s Dreamforce Could Be Last in S.F. if
It's Affected by Homelessness, Drug Use, S.F. CHRON. (Aug. 29,
2023), https://bit.ly/3EMdZmS.
15
Katy Grimes, San Francisco Collapse: More Store Closures,
Lawlessness, Drugs, Homeless, CAL. GLOBE (May 11, 2023),
https://tinyurl.com/2z7v5fn8.
16
Justine Waldman, SF Business Owners Concerned About
Homeless Near Store, KRON4 (May
23,
2023),
https://bit.ly/3EAvjvd.
17
Isabel Keane, Luxury San Francisco store may close after 166
years due to ‘litany of destructive’ policies making the city
18
12
B.
San Francisco’s Attempts To Address Its
Homelessness Crisis Have Been Undermined By The Ninth Circuit
As the homelessness crisis has escalated, San
Francisco residents have responded. They have supported massive public expenditures—$672 million
last year alone—to expand shelter capacity, fund new
public housing, and provide direct financial assistance to the homeless.19 They have provided commonsense legal tools for City officials to use in addressing
homelessness, such as a public ordinance adopted by
referendum in 2016 that makes it “unlawful to place
an [e]ncampment upon a public sidewalk.” 20 They
have urged City officials to enforce that and other
laws to reclaim public spaces for the whole community. And when officials have refused, residents have
replaced them at the ballot box.21
After delaying for far too long, San Francisco’s
leaders started to address the problem. Using the
2016 encampment ordinance and other public safety
laws that prohibit camping or sleeping in public
places, the City began cleaning up several homeless
encampments per week.22 Before cleaning up any encampment, City personnel provide extensive outreach
to those affected, including offering a range of services
‘unlivable’,
NY
POST
https://tinyurl.com/5n7ctk5v.
19
Coalition, 5-ER-1040–1042.
20
S.F., Cal., Police Code § 169(c).
(Aug.
16,
2023),
See, e.g., San Francisco District Attorney Chesa Boudin
Recalled, 136 HARV. L. REV. 1740, 1741–43 & n.12 (2023).
21
22
Coalition, 5-ER-1052.
13
and assisting homeless people in finding shelter.23 After encampments are cleared and public access restored, the City retains any belongings collected for
return to homeless people who left them behind. 24
Just as those efforts started to yield progress,
however, the Ninth Circuit’s decisions in Martin and
Grants Pass have emerged as a new obstacle. In Martin, the Ninth Circuit held that a city’s enforcement of
laws prohibiting public sleeping and camping against
“involuntarily” homeless people—a term that the decision does not define—violates the Eighth Amendment. 920 F.3d at 617. The court expanded that holding in the decision below, allowing a class action and
permitting an injunction based on even civil enforcement. See Pet. App. 135a–136a (statement of Graber,
J., respecting the denial of rehearing en banc).
Predictably, a wave of similar suits has followed
against cities throughout the West. See Appendix B,
infra (compiling list of suits). One of those suits was
filed by the Coalition on Homelessness, seeking to enjoin San Francisco from enforcing similar laws. It
succeeded. Relying on Martin and the panel decision
in this case, a district court granted a sweeping preliminary injunction that prohibits San Francisco from
enforcing or threatening to enforce against anyone
deemed “involuntarily” homeless a host of provisions,
including the 2016 encampment ordinance, a 2010 ordinance enacted by referendum that prohibits sitting
or lying on public sidewalks during the daytime, and
23
Id.
24
Id.at 1066.
14
three sections of the California Penal Code that prohibit occupying or obstructing public property.25
As a result, San Francisco’s efforts to address
homeless encampments have been sharply curtailed.
Predictably, the constraints imposed by the injunction have reversed the progress that the City was
making and fueled the crisis described above. To take
just one recent example, City officials were unable to
remove a homeless encampment in the Tenderloin
neighborhood even after a fire that started in the encampment burned down a community laundromat
and endangered a large apartment building full of
tenants.26 Residents sought police help given that the
“fires started right underneath [their] house,” but lamented that “[t]he police do nothing because they say
the injunction prevents them from clearing that
camp.”27 The injunction exacerbates the problem in
other ways too; it allows criminals to turn encampments into safe havens for drug dealing, prostitution,
and other forms of illicit conduct under the guise of
being “involuntarily homeless.”
San Francisco has appealed the injunction, arguing principally that it adopts too broad a reading of
“involuntary” homelessness.28 But because the Ninth
Circuit is bound by Martin and the decision in this
25
Coalition, 2022 WL 17905114 at *7.
Wilson Walker, Homeless Encampment Sweeps Are Just One
Aspect of a System Not Working for SF Residents, CBS N EWS BAY
AREA (Aug. 23, 2023), cbsn.ws/3RoYGrM.
26
27
Id.
28
Coalition, ECF 11, 51, 54, 57, 68.
15
case, the best possible result for the City is a narrowing of the injunction around the margins. Under Martin and Grants Pass, San Francisco and other cities
will remain barred by federal courts from enforcing
state and local laws to address “the defining public
health and safety crisis in the Western United
States.” Pet. App. 138a (M. Smith, J., dissenting from
the denial of rehearing en banc). The results will be
felt “not merely by cities, but block by block, building
by building, doorway by doorway,” where residents
and businesses are having their lives endangered and
livelihoods destroyed. Id. at 161a (Bress, J., dissenting from the denial of rehearing en banc).
II. The Ninth Circuit’s Decision Is Wrong
It would be one thing if the burdens imposed by
the Ninth Circuit were required by the Constitution;
amici cherish the protections of the Bill of Rights and
recognize that enforcing those safeguards sometimes
has costs. But as petitioner and the dissenting judges
in this case and Martin explain in detail, the Ninth
Circuit’s decisions have no basis in the Eighth
Amendment as written, originally understood, or interpreted by this Court.
A.
The Eighth Amendment Does Not Prohibit State Or Local Governments From
Punishing Proscribed Conduct
The Eighth Amendment prohibits the infliction of
“cruel and unusual punishments.” By its terms, that
Clause “expresses a substantive constraint on the
kinds of punishments governments may ‘inflict.’”
Jones v. Hendrix, 599 U.S. 465, 488 (2023) (alteration
16
omitted). It does not address the scope of what governments may define as criminally or civilly proscribed.
That reading of the Eighth Amendment’s text reflects its history and original understanding. The
Cruel and Unusual Punishments Clause “has always
been considered, and properly so, to be directed at the
method or kind of punishment imposed for the violation of criminal statutes.” Ingraham v. Wright, 430
U.S. 651, 667 (1977) (emphasis added). “There is
simply no indication in the history of the Eighth
Amendment that [it] was intended to reach the substantive authority of Congress” or state and local governments to determine the scope of criminal or civil
prohibitions. Martin, 920 F.3d at 602 (Bennett, J.,
dissenting from the denial of rehearing en banc).
This Court has applied the Eighth Amendment to
the substantive scope of criminal prohibitions in just
one narrow context. In Robinson v. California, 370
U.S. 660 (1962), the Court held that the Cruel and
Unusual Punishments Clause barred enforcement of
a state statute that made it a misdemeanor for a person “to be addicted to the use of narcotics.” Id. at 660
n.1, 666–67. The Court emphasized that a neighboring provision of the same statute that prohibited the
“use” of narcotics was permissible. Id. at 664. In
short, the Court held that the Eighth Amendment
prohibits criminalizing status but permits criminalizing conduct. Id. at 666–68.
That distinction was reiterated in Powell v. Texas,
392 U.S. 514 (1968), which involved a state law prohibiting public intoxication. The plurality opinion ex-
17
plained that the statute did “not fall within th[e] holding” of Robinson, because the defendant “was convicted, not for being a chronic alcoholic, but for being
in public while drunk on a particular occasion.” Id. at
532. Accordingly, Texas had “not sought to punish a
mere status, as California did in Robinson.” Id. Rather, it had “imposed upon [the defendant] a criminal
sanction for public behavior which may create substantial health and safety hazards, both for [him] and
for members of the general public, and which offends
the moral and esthetic sensibilities of a large segment
of the community.” Id. That was “a far cry from convicting one for being an addict.” Id. at 532.
In the ensuing decades, this Court has “never wavered from the decision in Robinson and the statusact distinction that it articulated.” Manning v. Caldwell, 930 F.3d 264, 288 (4th Cir. 2019) (en banc) (Wilkinson, J., dissenting). That does not mean that voluntariness has no place in determining liability. The
“centuries-long” criminal-law requirement of a voluntary act, along with familiar defenses like necessity
and duress, protect against the misapplication of responsibility for conduct that a person cannot avoid.
Powell, 392 U.S. at 535–36 (plurality opinion). Critically, however, definition of those requirements and
defenses is “the province of the States” and Congress,
not federal courts. Id. at 536; see, e.g., William J.
Stuntz & Joseph L. Hoffman, DEFINING CRIMES 53
(2011) (“[I]nsofar as the principle of voluntariness is
respected, it is respected by the terms of state and federal criminal statutes, not federal constitutional
law.”).
18
B. The Ninth Circuit Badly Misinterpreted
the Eighth Amendment
The Ninth Circuit’s holdings in this case and Martin defy those well-established constitutional principles. The decisions do not even attempt to establish
that the text or original meaning of the Eighth
Amendment forecloses the enforcement of laws
against sleeping in, camping in, or otherwise obstructing access to public spaces. Nor do the decisions
suggest that the state and local laws at issue expressly criminalize status in the way that the law in
Robinson did; to the contrary, the panel here recognized that the laws “prohibit [respondents] from engaging in activity.” Pet. App. 46a (emphasis added).
The Ninth Circuit’s decisions instead rest on the
proposition that the Eighth Amendment prohibits
criminalization of “conduct that is involuntary or the
product of a ‘status.’” Pet. App. 47a (quoting Martin,
920 F.3d at 617). But that reasoning collapses the
status/conduct distinction that this Court articulated
in Robinson and has adhered to ever since. By the
Ninth Circuit’s logic, statutes prohibiting the use of
narcotics would violate the Eighth Amendment if the
user’s conduct was “the product of” an addiction. Id.
But this Court rejected precisely that line of argument in Robinson, see 370 U.S. at 664, and has never
accepted it since.
The Ninth Circuit purported to draw support for its
position from Justice White’s opinion concurring in
the judgment in Powell, along with the dissents in
that case. See Martin, 920 F.3d at 616. But that approach represents a “startling misapplication of” this
Court’s rules on interpreting its own decisions. Pet.
19
App. 125a (statement of O’Scannlain, J.). As noted,
the result of Powell was to reject the argument that
Texas’s public-intoxication statute was invalid because it punished conduct resulting from addiction.
There is no valid way to get from that decision to the
Ninth Circuit’s position that Powell supports invalidating the laws at issue here. See id. at 125a–128a.
With no foundation in the Eighth Amendment, the
Ninth Circuit’s holding effectively amounts to recognition of an unenumerated constitutional right to
sleep and camp on public property in at least some
circumstances. But “[u]nder well-settled precedent,”
such a right may be recognized only if it is so “rooted
in the traditions and conscience of our people as to be
ranked as fundamental.” Kahler v. Kansas, 140 S. Ct.
1021, 1027 (2020). The Ninth Circuit did not attempt
to show that the right it recognized meets that standard, and no such showing is possible. After all, laws
against public sleeping and camping are longstanding
and—as shown by the wave of litigation in the wake
of Martin—remain highly prevalent today.
The Ninth Circuit’s position also lacks any meaningful limiting principle. The court’s rationale in
Martin was that constitutional protection extends to
“acts or conditions [that] are universal and unavoidable consequences of being human,” on the basis that
“any conduct” arising from such conditions “is involuntary and inseparable from status.” 920 F.3d at
616–17. The court has applied that principle to strike
down laws prohibiting public sleeping because “human beings are biologically compelled to rest.” Id.; see
Pet. App. 46a–48a. But the logic of the Ninth Circuit’s
position hardly stops there. The biologically compelled consequences of being human extend beyond
20
sleeping to include, for example, expelling bodily
waste. “By holding that the Eighth Amendment proscribes the criminalization of involuntary conduct,”
the Ninth Circuit’s reasoning thus seems to “inevitably result in the striking down of laws that prohibit
public defecation and urination.” Martin, 920 F.3d at
596 (M. Smith, J., dissenting from the denial of rehearing en banc).
The reasoning can be extended even further. If
cooking food with open flames and campfires is in service of biologically compelled needs, such conduct
might also fall within the Ninth Circuit’s rationale.
Use of drugs in public by a person with a biologically
rooted addiction might too. See, e.g., Manning, 930
F.3d at 292–93 (Wilkinson, J., dissenting) (discussing
the “staggering” consequences of discarding the status/conduct distinction, including possible invalidation of laws prohibiting child molestation and domestic violence against offenders who have addictions).
Nor is Martin’s rationale logically limited to sleeping or camping in outdoor spaces such as public parks
and sidewalks. The same reasoning seemingly could
justify a right of involuntarily homeless individuals to
sleep or camp in public buildings. Indeed, Martin
held that Boise could not issue citations for “sleeping
in a public restroom.” Martin, 920 F.3d at 618.
The breadth of the Ninth Circuit’s reasoning confirms its error. As Justice Marshall’s plurality opinion in Powell stressed, the Court’s holding in Robinson reaches “but a very small way into the substantive
criminal law.” 392 U.S. at 533. “[U]nless Robinson is
so viewed it is difficult to see any limiting principle
that would serve to prevent this Court from becoming,
21
under the aegis of the Cruel and Unusual Punishment
Clause, the ultimate arbiter of the standards of criminal responsibility, in diverse areas of the criminal
law, throughout the country.” Id. The Ninth Circuit’s
position leads to precisely that impermissible result.
C.
The Ninth Circuit’s Decisions Undermine Core Principles of Federalism and
Judicial Restraint
The Ninth Circuit not only misreads the Constitution; it does so in a way that undermines core principles of federalism and judicial restraint. “Under our
federal system, state and local leaders—not distant
federal judges—are primarily entrusted with the
power and duty to protect the common welfare of our
towns, cities, and neighborhoods, and to ensure that
our streets, squares, and sidewalks remain clean and
safe.” Pet. App. 133a (statement of O’Scannlain, J.).
The basis for state and local “legislative responsibility
over criminal law is fundamental: the criminal law exists to protect the safety of citizens, and ensuring the
safety of the people is one of those things that popular
government exists to do.” Manning, 930 F.3d at 297
(Wilkinson, J., dissenting); see Roberts v. Louisiana,
431 U.S. 633, 646 (1977) (Rehnquist, J., dissenting)
(“[T]he State has an interest in protecting its citizens … this surely is at the core of the Lockean ‘social
contract’ idea.”).
By prohibiting cruel and unusual punishments,
the Eighth Amendment expressly recognizes the primacy of legislative judgments and the “essential considerations of federalism.” Powell, 392 U.S. at 535
(plurality opinion); see Gregg v. Georgia, 428 U.S. 153,
175 (1976) (“[T]he constitutional test is intertwined
22
with an assessment of contemporary standards and
the legislative judgment weighs heavily in ascertaining such standards.”); Kennedy v. Louisiana, 554 U.S.
407, 462 (2008) (Alito, J., dissenting) (“Our cases have
cautioned against using the aegis of the Cruel and
Unusual Punishment Clause to cut off the normal
democratic processes.” (internal quotation omitted)).
Thus, “in assessing a punishment selected by a democratically elected legislature against” an Eighth
Amendment challenge, “a heavy burden rests on
those who would attack the judgment of the representatives of the people.” Gregg, 428 U.S. at 175.
Given those constitutional principles, courts
should take care to avoid “significantly limit[ing] the
States in their efforts” to address “a widespread and
important social problem” such as homelessness “by
announcing a revolutionary doctrine of constitutional
law that would also tightly restrict state power to deal
with a wide variety of other harmful conduct.” Powell,
392 U.S. at 537 (Black, J. concurring). “Diversity …
is the very raison d’être of our federal system,” and
the Eighth Amendment should not be understood to
“disabl[e] the States from … responding to changed
social conditions.” Harmelin v. Michigan, 501 U.S.
957, 990 (1991) (opinion of Scalia, J.). Rather, “in the
face of [] uncertainty, … courts should pay particular
deference to reasonable legislative judgments.” Jones
v. United States, 463 U.S. 354, 365 n.13 (1983).
The Ninth Circuit squarely defied those admonitions in Martin and this case. In both cases, panels of
three federal appellate judges countermanded the
judgments of local officials who are entrusted by voters to make policy decisions and who experience the
effects of the homelessness crisis in their communities
23
every day. As Judge O’Scannlain aptly observed, “[i]t
is easy enough for [judges], behind marble walls and
sealed doors, to dismiss the consequences of our decisions.” Pet. App. 132a. “But for those who call these
communities home—who must live by the criminal violence, narcotics activity, and dangerous diseases
that plague the homeless encampments buttressed by
our decisions—the consequences of our judicial arrogation are harder to accept.” Id.
Indeed, while the Ninth Circuit’s decisions
sharply constrain the ability of state and local governments to protect their communities, the federal government has been able to cope so far with the effects
of the San Francisco crisis by spending millions of dollars on “improvements” to the area outside of the San
Francisco Federal Building, including a “galvanized
steel fence to keep the plaza free of drug users and the
unhoused.”29 The federal government has also allowed its employees stationed in downtown San Francisco to work from home.30
Of course, most residents and businesses in San
Francisco are not able to escape the problem so easily.
For that reason, too, “[i]t is hard to imagine a jurisprudence that combines so little regard for the sacred
Lyanna Melendez, Some Federal Employees in SF Asked to
Work From Home Amid Drug, Crime Concerns: Report, ABC 7
N EWS (Aug. 14, 2023), https://abc7ne.ws/3RoTUdV.
29
See Megan Cassidy, Crime Is So Bad Near S.F. Federal Building Employees Are Told to Work From Home, Officials Said,
S.F. CHRON. (Aug. 11, 2023), https://bit.ly/3Ll9LWT; Jonah
Lamb, Bloody Sidewalks, Knife Attacks and a Corpse: What
Workers Face Outside San Francisco Federal Building, S.F.
STANDARD (Sept. 8, 2023), https://bit.ly/44OuRUN.
30
24
words of the Constitution, with so much disregard for
the state and local authorities that our constitutional
system entrusts as the primary protectors of the
health, safety, and welfare of our communities.” Pet.
App. 133a (statement of O’Scannlain, J.).
III. The Ninth Circuit’s Decisions Conflict with
Precedent from Other Courts, Including the
California Supreme Court
Although the importance of the case and the severity of Ninth Circuit’s errors alone warrant review, the
need for this Court’s intervention is especially significant because the Ninth Circuit’s position “squarely
conflicts with decisions from other circuits and other
courts.” Pet. App. 128a (statement of O’Scannlain, J.);
see Pet. 16–18.
Of particular concern to amici here, the Ninth Circuit’s position contradicts the California Supreme
Court’s holding in Tobe v. City of Santa Ana, 892 P.2d
1145 (1995). In Tobe, homeless residents of Santa
Ana sought to enjoin enforcement of that city’s ordinances barring camping on public streets, arguing
that it was impermissible punishment of the involuntary status of being homeless. Id. at 1166. The California Supreme Court expressly rejected the argument, holding that Robinson and Powell “ma[ke] clear
… that punishing the conduct of using or possessing
narcotics, even by an addict, is not impermissible punishment for status” and that “the Supreme Court has
not held that the Eighth Amendment prohibits punishment of acts derivative of a person’s status.” Id.
Cities in California thus face directly opposing interpretations of the Eighth Amendment’s application
to enforcement of laws prohibiting public sleeping and
25
camping. The governing interpretation is dependent
on whether the challenge is brought in California
state court or federal district court. That dynamic creates an inescapable risk of forum shopping and “cries
out for correction.” Pet. App. 130a (statement of
O’Scannlain, J.). When courts disagree on such critical constitutional issues, this Court is “the only source
of resolution for this conflict.” Wright v. North Carolina, 415 U.S. 936 (1974) (Douglas, J., dissenting from
denial of certiorari). Amici accordingly urge the Court
to address this question of profound importance to
residents, businesses, workers, and others in San
Francisco and similar cities throughout the West.
CONCLUSION
The Court should grant the petition for certiorari.
Respectfully submitted.
CHRISTOPHER G. MICHEL
Counsel of Record
RACHEL G. FRANK
MICHAEL SEBRING
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
1300 I Street, N.W.
Suite 900
Washington, D.C. 20005
(202) 538-8308
christophermichel@
quinnemanuel.com
Counsel for Amici Curiae
September 25, 2023
1a
APPENDIX TABLE OF CONTENTS
Page
APPENDIX A
List of Amici Curiae ......................................... 2a
APPENDIX B
Lawsuits Filed Under Martin v. City of
Boise and Johnson v. Grants Pass ............... 15a
2a
APPENDIX A
List of Amici Curiae
Associations and Foundations
BOMA San Francisco (Building Owners and
Management Association of San Francisco)
California Business Roundtable
California Retailers Association
Castro Community Benefit District
Castro Merchants
Central Mission Neighbors
Chinese American Democratic Club
D8 (District 8) Residents Task Force
Delta Chinatown Initiative
Dolores Heights Improvement Club
Edwin M. Lee Asian Pacific Democratic Club
Friends and Neighbors of Jose Coronado Playground
Gateway Tenants Association
GrowSF
Harrison St. Neighbors
Iconic D3 (District 3 Neighborhood Group)
Inner Mission Neighborhood Association
Merchants of Upper Market
Neighbors for a Better San Francisco
RecoverCA
San Francisco Apartment Association
San Francisco Briones Society
San Francisco Chamber of Commerce
San Francisco Council of District Merchants
Association
San Francisco Filipino American Chamber of
Commerce
Save the Castro
Small Property Owners of San Francisco Institute
3a
South of Market Business Association
TogetherSF
Understanding the Unhoused
Companies
Abanico Coffee Roasters
Anresco Laboratories
Banks & Sugarman
Castro Room
Cliff’s Variety
Handcrafted Horticulture
Lucy Junus Interior Design
Micro-Tracers, Inc.
Midnight Sun
Panoramic Interests
San Francisco Office Lofts (SFOL)
Second Label LLC
Shared Studios
Sign Me Up! Photography
Smile SF
SV Angel
The Edge
The Ngo House
Zingari Ristorante
Business Owners and Executives
Ana Valle (Owner, Abanico Coffee Roasters)
Ari Shp (Partner, Blok Living)
Barry Altschuler (Executive Vice President, Equity
Residential)
Bill Fisher (General Partner, Manzanita Capital)
Bill Russell-Shapiro (Restaurateur)
Carlos Lopez (Director of Finance, Quiet Capital)
Carrie Chittaro (Business Owner)
4a
Chris Roeder (Executive Managing Partner, JLL)
Dan Carroll (Co-Founder and Managing Partner,
Brooklands Capital Strategies)
Danny Conway (Chief Executive Officer, SuperFan
Games)
David DeWilde (Founder and Former Chief
Executive Officer, Chartwell Partners
International)
David Eisenberg (President, Anresco Laboratories
and Micro-Tracers, Inc.)
David Schulte (Healthcare Venture Capitalist,
McKesson Ventures)
Dean Cash (Chairman and Chief Executive Officer,
ATEL Capital Group)
Diane Morris (Chairman, Morris Capital
Management)
Ditka Reiner (Chief Executive Officer, Reiner
Associates, Inc.)
Douglas Biederbeck (Small Business Owner)
Douglas J. Durkin (President, Douglas Durkin
Design, Inc.)
Dwight Crow (CEO, Additive.ai)
Ed Conlon (Senior Vice President, Hathaway
Dinwiddie Construction Company)
Eduardo Sagues-Castillo (Head of Development,
March Capital)
Emerald Xu (Director of Development, March
Capital)
Farah Sefidvash (Owner, Smile SF)
George H. Rathman (Former Chief Executive
Officer, Jon Douglas Realty)
Gerardo Delgado Cabrera (Director of Product
Management, NVIDIA)
5a
Greg Flynn (Founder, Chairman, and Chief
Executive Officer, Flynn Group LP)
Greg Vilkin (Chief Executive Officer, Baylands
Company)
Hamid Moghadam (Co-Founder, Chairman, and
Chief Executive Officer, Prologis)
Horatio Jung (Owner, Sign Me Up! Photography)
James A. Reuben (Owner and Partner, Reuben,
Junius & Rose)
James Mann (Senior Vice President, UBS Financial
Services)
James Sangiacomo (Principal, Trinity Properties)
Jason Fish (President, Sebastes Capital)
Jeff Corvi (Vice President, Metro Services Group)
Jeff Weber (Managing Director, Eastdil Secured)
Jeffrey Heller, FAIA (Founding Principal, Heller
Manus Architects)
Jeffrey Woods (Founder and President, Black
Mountain Construction)
Jennifer Tulley (Owner, TEF Design)
Jeremy Liew (Partner, Lightspeed Venture
Partners)
Jim Scopa (Venture Capitalist)
Jim Shapiro (Venture Capitalist)
John Adair (Managing Partner, Glencrest Group)
John Gall (Owner, San Francisco Office Lofts)
John Kilroy (Chief Executive Officer, Kilroy Realty
Corporation)
John Pritzker (Founding Partner and Director, Geolo
Capital; President, John Pritzker Family Fund)
K. Cyrus Sanadaji (Managing Principal, Presidio
Bay Ventures)
Kabir Seth (Principal, Presidio Bay Ventures)
6a
Karina Velasquez (Principal, Law Office of Karina
Velasquez)
Katherine Stiggelbout (Owner, Wellthy Co.)
Kathryn Degnan (Founder, Strategic Intelligence
Marketing)
Ken Callander (Managing Principal, Value
Strategies)
Kristin Morse (Owner, Taglio & Co.)
Kwabena Agyeman (Business Owner)
Leslie Tse (Owner, Seattle & Bay Area Properties
LLC)
Lucy Junus (Business Owner)
Mark Butler (Owner, Butler Cues)
Mark G. Conroe (Managing Partner, Presidio
Development Partners LLC; Former Executive
Committee Member, CityTeamSF)
Mark Lerdal (President, GlobalXDigital)
Mark Perry (Retired General Partner, New
Enterprise Associates, Venture Capital)
Mark Sugarman (President, Banks & Sugarman)
Matthew Zitzmann (Chief Executive Officer, Garage
AI, Inc)
Michael Bradley (Founding Shareholder, Murphy,
Pearson, Bradley & Feeney)
Michael Richardson (Owner, Castro Room LLC)
Mike Mauze (General Partner, VMG Partners)
Nathaniel Weiner (Owner, “We Know San
Francisco”)
Neeraj Miglani (Owner, Zingari Ristorante)
Patrick Kennedy (Owner, Panoramic Interests)
Peggy Mullin-Bogart (Business Owner)
Phil Tate (Senior Vice President, Kilroy Realty
Corporation)
Phil West (Owner, Second Label LLC)
7a
Ralph Hibbs (Owner, Welcome Castro; Organizer,
San Francisco Mercantile)
Rebecca Bradley (Owner, Rebecca Bradley Interior
Design)
Rebecca Menne (President and Chief Executive
Officer, Barron Ranches)
Renee Voss (Managing Partner, Real Estate
Investments)
Richard Leider (President, Paramount Hotels, Inc.)
Richard Thieriot (Chief Executive Officer, Parrott
Investment Co.)
Rob Giljum (Owner, The Edge, Midnight Sun, and
Beaux)
Robert Emery (Manager, Tourmalet Capital)
Robert J. Fisher (Former Chairman of the Board,
Gap Inc.)
Robert Tillman (Chief Executive Officer, RRT
Partners, LLC)
Rod Diehl (Senior Vice President, BXP)
Ron Conway (Founder, SV Angel)
Ruchi Sanghvi (Partner, South Park Commons)
Russell Notides (Former Chief Financial Officer,
Rapt Inc.)
Ryan Jones (Senior Vice President, Another Planet
Entertainment)
Sig Anderman (President, Springboard Initiative)
Stanlee Gatti (Founder, Stanlee Gatti Designs Inc.)
Stanley Tang (Co-Founder, DoorDash)
Stephen Williamson (Founder and Chief Executive
Officer, Forager Project)
Steve Fukuda (Business Owner)
Stuart Watson (Business Owner)
Tam Ngo (Chief Executive Officer, The Ngo House)
8a
Terry Asten Bennett (President, Castro Merchants;
Owner, Cliff's Variety)
Thomas F. White (President and Chief Executive
Officer, TriAct Therapeutics)
Todd Solmson (Managing Partner, Fairwood Capital)
Tom Chavez (Founder and General Partner,
super{set})
Tommaso Trionfi (Chief Executive Officer, Shared
Studios)
Tony Price (Managing Director, Russell Associates)
Topher Conway (Managing Partner, SV Angel)
Troy Weakley (Owner, Handcrafted Horticulture)
Wendi Van der Meer (Small Business Owner)
Community Leaders
Amanda M. Hoenigman (Former Chair, Golden Gate
National Parks Conservancy Advisory Council)
Andrea Aiello (Executive Director, Castro
Community Benefit District)
Angela Neal Grove (Founder, San Francisco Tech
Roundtable)
Anne Kenner (Former Assistant U.S. Attorney,
Eastern District of New York and Northern
District of California)
Anthony Fox (Tenderloin Community Leader)
Arjun Sodhani (Fire Place Productions)
Ayman Farahat (President, Friends and Neighbors
of Jose Coronado Playground)
Barbara Marienthal (Certified Public Accountant;
Neighborhood Leader)
Barry C. Baron, MD (Physician)
Bharath Kadaba (Business Leader and Consultant)
Bonnie Elliott (Former Educator, San Francisco
State University)
9a
Brenda C. Jewett (Advocate)
Bruce McCormack (Doctor)
Caroline Newman (Business Professional)
Carolyn Kenady (Chair, Dolores Heights
Improvement Club)
Carrie Schwab Pomerantz (Business Leader)
Carroll Yandell (Non-Profit Leader)
Christopher Nalen (Local Housing Developer)
Daman Kapoor (Homeowner Association President)
Dave Zilberman (Entrepreneur)
Doug Abbey (Lecturer, Stanford University)
Elizabeth Capdevielle Dressel (Attorney; Real Estate
Investor)
Ellanor Notides (Art Advisory)
Francesca Pastine (Lead, Inner Mission
Neighborhood Association)
Fred Medick (Friends of Eureka Valley Park)
Gad Heinic (Treasurer, Castro Community Benefit
District; Business Owner)
Gary Shansby (Business Leader)
George Yandell (Business Leader)
Greg Suhr (Former Chief of Police, San Francisco
Police Department)
Guang Peng Tan (S10W Classified Paraprofessional)
Helen Raiser (Board Member, Friends of the
Children)
Henry Karnilowicz (President, South of Market
Business Association)
Herbert Elliott (Board Member, Neighborhood
Association for Presidio Planning)
Hillary Hogan (Commercial Real Estate
Professional)
Jackie Safier (President, Helen Diller Foundation)
10a
Janan New (Board Member, San Francisco
Apartment Association)
Jay Jeffers (Business Leader)
Jennie Feldman (Organizer, The Briones Society)
Joel Goodrich (Real Estate Agent)
John Atwater (Business Leader)
Jose Pecho (Chairman, San Francisco Filipino
American Chamber of Commerce)
Joshua Siebalt (Host, Understanding the Unhoused)
Julie Purnell (Hotel Asset Manager, Flynn
Properties)
Karen Frank (Attorney)
Kate Smith (President, Saint Francis Foundation)
Kelli Armonas (Community Leader)
Kris Iversen (Author)
Kyle Olivo (Board Member, SOMA Grand)
Lily Ho (President, Delta Chinatown Initiative)
Luis Belmonte (Low Income Housing Property
Owner and Developer)
Lyn Werbach (Lead Organizer, Central Mission
Neighbors)
Madeleine Trembley (President, Gateway Tenants
Association)
Matt Pons (Fund Accountant, March Capital
Management)
Mauree Jane (Retired Oral Historian)
Michael Moritz (Chairman, TogetherSF)
Mujtaba Ali (Physician)
Nancy Montgomery (Trustee, Sarah Lawrence
College)
Noni Richen (President, Small Property Owners of
San Francisco International)
Patrick Spalding (Educator)
Paulina Fayer (Board Member, RecoverCA)
11a
Peter Dwares (Chairman, Pathways For Kids)
Phyllis Goodman (Retired Educator)
Randi Fisher (Co-Trustee, Pisces Foundation)
Remi Tan (Architect, Urban Planner)
Richard Parina (Steering Committee, Iconic D-3)
Robert Emmons (Organizer, San Francisco
Mercantile)
Sachin Agarwal (Director, GrowSF)
Sahil Shah (Board Member, Gateway Tenants
Association)
Sal Becerra (Board Member, Castro Commons
Association)
Sharon J. Malone (Business Leader)
Stephanie Lehman (Former Delegate, California
Democratic Party)
Steve Stemerman (Civil Rights Attorney)
Steven Buss (Director, GrowSF)
Steven Merrill (President, The Merrill Family
Foundation)
Stirling Spencer (Homeowners Association
President)
Tom Dehnel (Founder, Harrison St. Neighbors)
Trevor Traina (Former U.S. Ambassador; Business
and Philanthropic Leader)
Will Andereck (Business Leader)
Will Evers (Business Leader)
William E. Oberndorf (President, Oberndorf
Foundation)
William S. Andereck, MD (Physician; Medical
Ethicist)
Neighborhood Leaders
Ana Corina Arredondo
Annabelle Charbit
12a
April Cully
Betsy Blumenthal
Bixby Jamison
Bronwyn Brunner
Brynne Levy
Carolyn Mehran
Charles McGettigan
Chris Hockett
Chris McMahon
Connie Cox Price
Connie Tiret
Deirdre Hockett
Denis F. Shanagher
Diana Helander
Drew Min
Elliot Evers
Enrique Salem
Forrest Liu
Gary Demasi
Holly Peterson
Hugh Scott
Jack Wadsworth
James Gonzales
Jeffrey Congdon
Jennifer Schoch
Jerry Weissman
Joanne Liss
John Simpson
Jonathan Root
Jonathan Wen
Josephine Zhao
Julia Baron
Kalpi Kadaba
Karen Rathman
13a
Kate Robinson
Katherine Congdon
Kathleen White
Kevin Brunner
Krystyna Miguel
Laura Fisher
Leslie Podell
Linda Howell
Lucie Weissman
Luke Evnin
Marie Simpson
Martha Conte
Martin Quinn
Mary Pinkus
Mary Vascellaro
Matt Aljets
Max Neiman
Melis Inceer Tirpanceker
Michael Tiret
Mike Ruiz
Mithun Patel
Myra Rothfeld
Nancy Conner
Natalie Jamison
Nathan Swartley
Nina Allen
OJ Shansby
Paul Sears
Paul Simpson
Peter White
Philip Vy
Richard Barker
Roberta Baron
Roman Martinez
14a
Ryan Tiret
Sara R. Byrne
Sean Tiret
Sherri Sugarman
Simone M. Quarre
Sohela Shah
Steele Davidoff
Susan Lowe
Susan Mackowski
Susy Wadsworth
Tobias Marienthal
Vince Dio
Wayee Chu
Wes Powell
Will Schutte
William Brega
15a
APPENDIX B
Lawsuits Filed Under Martin v. City of Boise
and Johnson v. Grants Pass
Boyd v. City of San Rafael, No. 3:23-cv-04085 (N.D.
Cal. Aug 11, 2023)
Schwab v. City of Fremont, No. 3:23-cv-03037 (N.D.
Cal. Jun 21, 2023)
Community on Wheels v. City of Tucson, No. 4:23-cv00029 (D. Ariz. Jan. 17, 2023)
Fund for Empowerment v. City of Phoenix, No. 2:22cv-02041, 2022 WL 18213522 (D. Ariz. Nov. 30,
2022)
Yesue v. City of Sebastopol, No. 4:22-cv-06474 (N.D.
Cal. Oct. 25, 2022)
Coalition on Homelessness v. City and County of San
Francisco, No. 4:22-cv-05502 (N.D. Cal. Sep 27,
2022)
Bacon v. City of Chula Vista, No. 22-cv-01278 (S.D.
Cal. Aug. 29, 2022)
Blaike v. El-Tawansy, No. 3:22-cv-04669 (N.D. Cal.
Aug 15, 2022)
Boring v. Murillo, No. 2:21-cv-07305, 2022 WL
14740244 (C.D. Cal. Aug. 11, 2022)
McCloud v. Cnty. of Sonoma, No. 3:22-cv-04284, 2022
WL 2916546 (N.D. Cal. July 25, 2022)
Balin v. Cal. Dep’t of Transp., No. 3:22-cv-04178, 2022
WL 2954198 (N.D. Cal. July 18, 2022)
16a
Fitzpatrick v. Little, No. 1:22-cv-00162 (D. Idaho Apr
12, 2022)
Brown v. City of Fresno, No. 1:22-cv-00216 (E.D. Cal.
Feb. 21, 2022)
Pajaro/Watsonville Homeless Union v. City Of
Watsonville, No. 3:21-cv-09778, 2021 WL 6064429
(N.D. Cal. Dec. 19, 2021)
Sausalito/Marin Cnty. Chapter of Cal. Homeless
Union v. City of Sausalito, No. 21-cv-01143, 2021
WL 5889370 (N.D. Cal. Dec. 13, 2021)
Dominguez v. City of Berkeley, No. 3:21-cv-08599,
2021 WL 5150565 (N.D. Cal. Nov. 4, 2021)
Evenson-Childs v. Ravalli County Sheriff's Office, No.
9:21-cv-00089 (D. Mont. Aug 09, 2021)
Marin Cnty. Loc. of the Cal. Homeless Union v. City of
Novato, No. 21-cv-05401, 2021 WL 6931362 (N.D.
Cal. July 14, 2021)
Warren v. City of Chico, No. 2:21-cv-00640, 2021 WL
2894648 (E.D. Cal. July 8, 2021)
O’Callaghan v. City of Portland, No. 3:21-cv-00812 (D.
Or. May 25, 2021)
Geary v. City of Pacifica, No. 3:21-cv-01780, 2021 WL
1030073 (N.D. Cal. Mar. 15, 2021)
Niau v. County of Kauai, No. 1:20-cv-00319 (D. Haw.
Jul 20, 2020)
Jackson v. Gill, No. 6:20-cv-00906 (D. Or. Jun 05,
2020)
Winslow v. City of Oakland, No. 20-cv-01510, 2020
WL 1031759 (N.D. Cal. Mar. 3, 2020)
17a
Mahoney v. City of Sacramento, No. 2:20-cv-00258,
2020 WL 616302 (E.D. Cal. Feb. 10, 2020)
Young v. City of Los Angeles, No. 2:20-cv-00709 (C.D.
Cal. Jan 23, 2020)
Aitken v. City of Aberdeen, No. 3:19-cv-05322, 2019
WL 2764423 (W.D. Wash. July 2, 2019)
Quintero v. City of Santa Cruz, No. 5:19-cv-01898,
2019 WL 1924990 (N.D. Cal. Apr. 30, 2019)
Le Van Hung v. Schaaf, No. 19-cv-01436, 2019 WL
1779584 (N.D. Cal. Apr. 23, 2019)
Shipp v. Schaaf, No. 19-cv-01709, 2019 WL 1644401
(N.D. Cal. Apr. 16, 2019)
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.