Amicus Curiae Brief — City of Grants Pass, Oregon, Petitioner v. Gloria Johnson, et al., on Behalf of Themselves and All Others Similarly Situated

NO. 23-175

In the Supreme Court of the United States

CITY OF GRANTS PASS, OREGON,

Petitioner,

V.

GLORIA JOHNSON, ET AL.,

ON BEHALF OF T HEMSELVES AND

ALL OTHERS SIMILARLY SITUATED,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

VENICE STAKEHOLDERS ASSOCIATION

IN SUPPORT OF PETITIONER

Jeffrey Lewis

Counsel of Record

Jeff Lewis Law, APC

827 Deep Valley Drive, Suite 209

Rolling Hills Estates, CA 90274

(310) 935-4001

Jeff@JeffLewisLaw.com

September 25, 2023

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................... ii

INTEREST OF THE AMICUS CURIAE .................... 1

ARGUMENT ................................................................. 4

I.

The Court Should Review and Reverse

Johnson and Revisit Martin Because Cities

Such as Grants Pass and Los Angeles are

Hamstrung by the Requirement of Providing

Beds for All Homeless Before Enforcing

Municipal Laws for the Protection of

Health and Public Welfare ................................ 4

A. The Martin and Johnson Opinions

erred in Requiring Beds for an Entire

Homeless Population Rather than Beds

for the Number of Homeless Cited on

any Given Night ........................................... 8

B. The Martin and Johnson Courts Failed

to Adequately Define “Voluntary” and

“Involuntary” as it Relates to Home­

lessness .......................................................... 9

C. The Martin and Johnson Courts Failed

to Consider the Potential for Homeless

Encampments to Become Barriers to

Placement or Their Impact on Neighbor­

hoods ............................................................ 10

D. Prosecutorial Discretion Rather than

Bed Counts Properly Balances the Needs

of Local Government to Maintain

Public Safety Against the Rights of the

Homeless in Need of Services ................... 12

CONCLUSION ............................................................ 13

ii

TABLE OF AUTHORITIES

Page

TABLE O F AU THO RITIES

CASES

Jones v. City of Los Angeles,

444 F.3d 1118 (9th Cir. 2006), vacated,

505 F.3d 1006 (9th Cir. 2007) .............................. 4

Martin v. City of Boise,

902 F.3d 1031 (9th Cir. 2018) ......................... 2-13

VSA v. City of Los Angeles,

LASC No. 19STCP00044 ...................................... 1

VSA v. City of Los Angeles, et al.,

LASC No. 23STCP00346 ...................................... 2

VSA v. Los Angeles County Metropolitan

Transportation Authority,

LASC No. 19STCP00629 ...................................... 2

CONSTITUTIONAL PROVISIONS

U.S. Const. amend VIII .............................................. 12

OTHER AUTHORITIES

Andrew I. Lief,

A Prosecutorial Solution to the

Criminalization of Homelessness,

169 U. PA. L. REV . 1971 (2021) ........................... 12

Dan Simon,

He was a Yale graduate, Wall Street

banker and entrepreneur. Today he’s

homeless in Los Angeles, CNN, https://

edition.cnn.com/2019/09/17/us/los-angelesyale-graduate-homeless/index.html?nost=1568949532............................................... 10, 11

iii

TABLE OF AUTHORITIES – Continued

Page

Emily N. McMorris,

Jones v. City of Los Angeles: A Dangerous

Expansion of Eighth Amendment

Protections Stifles Efforts to Clean up

Skid Row, 40 LOY. L.A. L. REV. 1149

(2007) ...................................................................... 4

Joel Grover,

Homeless Encampments Are Gone and

Crime is Way Down, So Far, in Venice,

NBC LOS ANGELES, Apr. 6, 2023, https://

www.nbclosangeles.com/investigations/

homeless-encampments-crime-venice/

3130573/.................................................................. 6

KCAL News,

Tents return to Venice Beach after massive

homeless encampment cleared last year,

July 12, 2022, https://www.cbsnews.com/

losangeles/news/tents-return-venice-beachmassive-homeless-encampment-clearedlast-year/ ................................................................. 6

LA Committee of Homelessness and Poverty,

Motion Recommending Deletion of Sec.

41.18(d), http://clkrep.lacity.org/online

docs/2019/19-0602-s1_mot_07-30-2019.

pdf, accessed on September 23, 2023 .................. 5

1

INTEREST OF THE AMICUS CURIAE 1

The Venice Stakeholders Association (VSA),

founded in 2009, is a nonprofit organization dedicated

to civic improvement. The VSA supports slow growth,

the limits of the Venice Local Coastal Specific Plan,

neighborhood safety, better traffic circulation, increased

parking for residents, neighborhood beautification

projects, historic preservation, habitat restoration and

protection of coastal waters.

Representing residents in the Venice district of the

City of Los Angeles, California, the VSA has grappled

with the horrendous impact of the homeless population

in Venice, at one point second only to downtown Los

Angeles’ infamous Skid Row in size, for over a decade.

The VSA provides research, education, advocacy

and litigation support for Venice Beach residents to

ensure that their voices are heard. VSA was in liti­

gation against the City of Los Angeles, the California

Coastal Commission and the Los Angeles County

Metropolitan Transportation Authority over the erect­

ion of a 154-bed homeless shelter complex in violation

of the California Environmental Quality Act, VSA v.

City of Los Angeles, LASC Case No. 19STCP00044

and VSA v. Los Angeles County Metropolitan Trans­

1 Pursuant to Rule 37.2, VSA provided timely notice to all

parties. Pursuant to Rule 37.6, VSA affirms that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than VSA,

their members, or their counsel made a monetary contribution

to its preparation or submission.

2

portation Authority, LASC Case No. 19STCP00629

until the State Legislature excluded the City of Los

Angeles, and only the City of Los Angeles, from CEQA

protections in instances of development projects serving

the homeless population. More recently, the VSA

filed a lawsuit against the City of Los Angeles for

failing to obtain a current Coastal Development Permit

under California’s Coastal Act for the same 154-bed

homeless shelter complex in Venice, VSA v. City of

Los Angeles, et al., LASC Case No. 23STCP00346.

This litigation is ongoing.

The extreme imbalance between the rights of the

homeless, and those of Venice’s residents and business

owners, will continue, and the latter will continue

to suffer the daily burdens of homeless individuals

camping rough a few yards from their homes or

businesses unless Johnson and Martin v. City of

Boise, 902 F.3d 1031 (9th Cir. 2018) are reversed.

Mark Ryavec is the president and founder of VSA.

He has an extensive career in public policy. He holds

a B.A. in Psychology from UCLA and an M.A. in Urban

Studies from a joint degree program of the CORO

Foundation and Occidental College. He served as a

Legislative Analyst in the Office of the Chief Legis­

lative Analyst of the Los Angeles City Council and in

that capacity served as the principal staff for Los

Angeles Mayor Tom Bradley’s Commission on the

Redevelopment of Los Angeles’ Central Business Dis­

trict. Later he served as Chief Deputy for Los Angeles

County Assessor Alexander Pope. He also served as a

founding Director of the non-profit American Oceans

Campaign, its State Legislative Director in 1996, and

as a member of the Board of Governors of Oceana, a

global ocean protection NGO. For five years in the early

3

2000s he was Executive Director of Neighborhood Part­

ners, a non-profit affordable housing provider in the

San Fernando Valley. As a public affairs consultant

he has represented clients as varied as Trump Wilshire

Associates, No Oil, Inc., Browning-Ferris Industries,

Marquart Corporation (a rocket propulsion firm),

Writers Guild of America, West, and the Consulate

General of Sweden and the Los Angeles Consular

Corps.

The outcome of the decision in Johnson will direct­

ly and profoundly impact VSA’s ability to influence

local policy makers to make sound decisions regarding

homelessness and its impacts on the community. If

Johnson (and Martin) stand, the power of municipalities to enforce anti-loitering and anti-camping ordin­

ances and to take other steps to protect the public

welfare will be diminished to the detriment of those

who suffer the adverse impacts of homelessness in

their communities. The balance between the rights of

the homeless and those that also suffer from the

impacts of the homeless will be irrevocably altered.

4

ARGUMENT

I.

The Court Should Review and Reverse

Johnson and Revisit Martin Because Cities

Such as Grants Pass and Los Angeles are

Hamstrung by the Requirement of Providing

Beds for All Homeless Before Enforcing

Municipal Laws for the Protection of Health

and Public Welfare.

The increase in homeless on Venice’s sidewalks,

alleys, parks and along its beach is in significant

measure due to the laissez-faire conditions following

the 2007 settlement reached in Jones v. City of Los

Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated,

505 F.3d 1006 (9th Cir. 2007). Legal scholars con­

demned the Jones decision as an unwarranted impair­

ment of the power of cities to protect the public health. 2

The decisions in Martin v. City of Boise, 902 F.3d 1031

(9th Cir. 2018) and Johnson have further impaired

the power of local governments to address the home­

lessness crisis.

The homeless population increase in Venice also

results from a convergence of Venice’s historic luster

2 See Emily N. McMorris, Jones v. City of Los Angeles: A

Dangerous Expansion of Eighth Amendment Protections Stifles

Efforts to Clean up Skid Row, 40 LOY. L.A. L. REV. 1149, 1150

(2007) [referring to the Jones opinion as a “misinterpretation

and exceedingly broad reading” of Eighth Amendment precedent];

and Mary Boatright, Jones v. City of Los Angeles: In Search of a

Judicial Test of Anti-Homeless Ordinances, 25 LAW & INEQ.

515, 527 (2007) [referring to the Jones analysis as “oblique and

confusing.”]

5

as a tourist destination, its delightful weather, the

easy availability of drugs, and the well-publicized

rollback of both State law against possession of drugs

for personal use and any municipal enforcement of

ordinances meant to promote civil society, public health

and safety, and quality of life for residents and visitors

alike. This population further increased again during

the Pandemic when city elected officials misread CDC

guidelines that suggested that homeless individuals

should not be moved because it might lead to a spread

of the virus.

Homeless individuals in Venice routinely camp

within feet of residents’ homes and businesses’ front

doors. Many homeless have developed a sense of entitlement to any public property and frequently extend

this to occupation of private property abutting public

property, such as front yards, side-yard setbacks,

driveway aprons and carports. In the last few years

this has extended to occupation of buildings unoccupied

due to recent sale or under construction.

In 2018, the Ninth Circuit issued its decision in

Martin holding that imposing criminal penalties for

sleeping in public violated the Eighth Amendment if

the government has not provided public areas or

shelters for those individuals to sleep.

The broad and contradictory language of Martin

left the Los Angeles City Attorney to advise the LAPD

to not enforce local anti-camping laws. 3 The result

was large encampments on world famous Venice Beach,

3 See July 30, 2019 Motion by City of LA Committee of Home­

lessness and Poverty recommending deletion of Section 41.18(d)

based on Martin, http://clkrep.lacity.org/onlinedocs/2019/19-0602s1_mot_07-30-2019.pdf, accessed on September 23, 2023.

6

with certain sections taken over permanently by the

homeless.4

On one hand, the Martin court disingenuously

held that it was not dictating “to the City that it

must provide sufficient shelter for the homeless, or

allow anyone who wishes to sit, lie, or sleep on the

streets . . . at any time and at any place,” 5 while at

the same time holding “that so long as there is a

greater number of homeless individuals in a juris­

diction6 than the number of available beds in shelters,

the jurisdiction cannot prosecute homeless individuals

for involuntarily sitting, lying and sleeping in public.” 7

In the second quoted clause above, the Martin

court overturned the permission it affords jurisdictions

4 In the summer of 2021, the media widely reported that a

homeless encampment of tents had been cleared from the

Venice boardwalk. A year later, the tents are back due to a lack

of enforcement by the City of Los Angeles. CBS NEWS, July 12,

2022, Tents return to Venice Beach after massive homeless

encampment cleared last year, https://www.cbsnews.com/losangeles/

news/tents-return-venice-beach-massive-homeless-encampmentcleared-last-year/ last accessed September 22, 2023. Newly elected

Mayor Karen Bass and Councilwoman Traci Park cleared the

tents again in January 2023, it remains to be seen how long the

tents will remain gone. Homeless Encampments Are Gone and

Crime is Way Down, So Far, in Venice, Apr. 6, 2023, https://

www.nbclosangeles.com/investigations/homeless-encampmentscrime-venice/3130573/, last accessed on September 22, 2023.

5 Martin at 1048.

6 The Martin court also failed to appreciate the exponential

effect of applying its rule, developed for the City of Boise, with

a population of 237,000 to the City of Los Angeles, with a

population of 3.8 million.

7 Martin at 1048.

7

in the first clause to enforce restrictions on where

individuals sit, lie or sleep on the streets . . . and at

what time or place they may do this.

Based on the current average construction cost

of a brick-and-mortar homeless serving structure of

over $550,000 per room (and in some instances as

high as $830,00), and the recent homeless count of

46,000, the City of Los Angeles would have to spend

at least $23 billion to house this population in perm­

anent housing, which is $10 billion more than the

city’s total $13 billion 2023-24 budget. The city will

never have the financial resources internally or from

federal, state or philanthropic sources to underwrite

such a construction effort, leaving residents and

businesses to endure nearby homeless encampments in

perpetuity unless Johnson and Martin are reversed.

Johnson expanded the reach of Martin to encom­

pass not only criminal penalties but also civil penalties

and by doing so will compound the problem presented

by Martin: forbidding local governments from enforcing

its laws, based on constitutional rights not recognized

by the Supreme Court, unless the local governments

follow an impractically high standard for provision of

public shelters for individuals who will choose, in

many instances, to never use those shelters. Perhaps

the unintended consequences of Martin were not

readily apparent at the time the City of Boise sought

review in this Court. 8 Now, years later, the petition

by Grants Pass to review Johnson presents a ripe

opportunity to review the misstep of Martin, with the

benefit of seeing how Martin has acted as a disservice

8 The City of Boise sought review of Martin on June 3, 2019,

Case No. 19-247. This Court denied the on December 16, 2019.

8

to local government and the unhoused individuals in

need of help.

A. The Martin and Johnson Opinions erred

in Requiring Beds for an Entire Homeless

Population Rather than Beds for the

Number of Homeless Cited on any Given

Night.

The Martin and Johnson courts failed to entertain

the possibility that a city would rarely if ever attempt

to cite every homeless person in its jurisdiction for

camping on public property at the same time (no police

department has the officers nor the jails to do this),

but rather would use the bar on camping judiciously,

one camper or one encampment at a time, to address

a particular person or group of campers that are espe­

cially destructive to the environment, or disruptive of

a neighborhood through noise, accumulation of trash,

human sewage and food waste, used needles, and

threats to nearby residents and/or business owners.

The Martin and Johnson courts thus should have only

required that a shelter bed be available for those few

campers the jurisdiction’s officers might in the course

of a typical day be called upon to ask to move on due

to the harm they are causing. A requirement that in

each instance an offer for a shelter bed be documented

would accomplish the same result – no one would be

cited if a bed was not truly available – without ham­

stringing the jurisdiction from addressing problem­

atic homeless campers, some who have no interest

in housing.

9

B. The Martin and Johnson Courts Failed

to Adequately Define “Voluntary” and

“Involuntary” as it Relates to Homeless­

ness.

Similarly, the Martin and Johnson courts made

no effort to examine and define the terms “voluntary”

and “involuntary” in relation to the condition of being

homeless. Despite the Martin plaintiffs’ contention

that their homeless state was involuntary, VSA’s

experience in Venice is that just cursory questioning

leads to a different conclusion.

Some years ago, the VSA was approached by

then-Captain Dominic Choi, the commander of the

LAPD Pacific Division, and asked to raise funds for

the LAPD’s Venice Beach Homeless Task Force,

which was comprised of several LAPD officers and

two local chaplains, Regina and Steve Weller. The Task

Force would cruise Venice three afternoons a week

getting acquainted with the homeless campers. In

addition to placing any willing homeless individuals

into rehab or shelters, the Wellers focused on “family

reunification;” i.e., re-connecting homeless individuals

with family members “back home” who the individual

described to the Wellers as “safe.” Captain Choi asked

the VSA to provide bus tickets and meal vouchers to

those individuals the Wellers’ had coaxed to accept a

family member’s invitation to return home. Hundreds

were sent home to welcoming families over the course

of several years.

With such a low bar to returning to being housed,

were these individuals really involuntarily homeless?

For example, it cost about $100 to bus to Tucson and

have a few meals along the way.

10

In discussions over the last ten years with social

service workers who counsel those who live on Venice’s

streets, VSA has learned that in the 16 to 24 age

range over 70% are from out of state, and many are

self-described “travelers” who have no interest in a

shelter bed or housing. Under Martin, Los Angeles

(and all other jurisdictions) would have to build or

lease housing beds for these “travelers” who forego

shelter in all instances before it could enforce antiloitering and anti-camping laws.

C. The Martin and Johnson Courts Failed

to Consider the Potential for Homeless

Encampments to Become Barriers to

Placement or Their Impact on Neighbor­

hoods.

The Martin and Johnson courts also did not

understand that the development of semi-permanent

encampments, such as the current one on Rose at

Seventh Street in Venice, are themselves barriers to

rescuing homeless individuals from the street. Out­

reach and placement efforts were frequently in conflict

with the familial bonds that develop between those

living in Venice’s encampments. Often times, a coun­

selee may agree to a placement – in rehab, a shelter,

a shared apartment, permanent/supportive housing,

or family reunification – but would not show up at

the appointed time for transport. They did not want

to give up the street “family” of which they had become

a part. These individuals were voluntarily remaining

homeless as much as the young “travelers,” who have

no interest in shelter. 9

9 CNN earlier profiled a Yale graduate, Wall Street banker and

entrepreneur who today is homeless in Los Angeles, https://

11

The failure of the court to limit its decision to

those who by some criteria are truly without some

resources or options to change their status from

unhoused to housed alone demands that the Martin

decision be overturned.

The results of the wide-open nature of the

Martin decision in a dense urban setting such as

Venice, California have been catastrophic.

The Martin decision has paralyzed the city of

Los Angeles (and it appears other cities in the Ninth

Circuit’s jurisdiction), blocking any commonsense

regulation of homeless encampments and leading to

a severe breakdown in the norms of civil society. The

decision so broadly defined “involuntarily homeless”

that it includes many who have resources or options

to be housed but, for a variety of discoverable reasons,

choose not to pursue them. It has made living in

encampments preferable to accepting available options

to leave the streets; food, water, blankets and tents are

delivered by well-meaning service agencies, showers

and restrooms are open 24 hours a few blocks away,

and there is no rent. This has placed a heavy burden

on residents and business owners while preventing

police from protecting them.

edition.cnn.com/2019/09/17/us/los-angeles-yale-graduate-homeless/

index.html?no-st=1568949532, last accessed on September 19,

2019. The story highlights the frequency of voluntary home­

lessness. The subject has a standing offer from his family for

housing but prefers to work through the issue himself.

12

D. Prosecutorial Discretion Rather than Bed

Counts Properly Balances the Needs of

Local Government to Maintain Public

Safety Against the Rights of the Homeless

in Need of Services.

The Martin and Johnson decisions focused on

bed counts as a limitation of the ability of local

government to enforce its rules. If this Court were to

conclude that bed counts is not an appropriate

benchmark for whether law enforcement can enforce

anti-camping rules, what limits should be place on

law enforcement? One commentator criticized Martin

and suggested that relying on prosecutorial discretion

to consider an individual’s specific needs and abilities

– rather than simply counting available shelter beds

in deciding whether to invoke the Eighth Amendment

– is a preferable way to balance the competing interests

of the rights of the homeless and local government in

protecting public safety. Relying on a prosecutor’s

discretion “accords with communal notions of fair­

ness . . . ” Andrew I. Lief, A Prosecutorial Solution to

the Criminalization of Homelessness (2021) 169 U.

PA. L. REV. 1971, 1993.

13

CONCLUSION

For the foregoing reasons, the VSA urges the

Court to review and reject Johnson (which relied on

Martin) for its evisceration of municipalities’ ability

to control local health and safety, and its erosion of

residents’ right to the quiet enjoyment of their homes.

The VSA urges this Court to grant the City of Grants

Pass Petition for a Writ of Certiorari.

Respectfully submitted,

Jeffrey Lewis

Counsel of Record

Jeff Lewis Law, APC

827 Deep Valley Drive, Suite 209

Rolling Hills Estates, CA 90274

(310) 935-4001

Jeff@JeffLewisLaw.com

Counsel for Amicus Curiae

September 25, 2023