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 briefMar 1, 2024

Ask Donna

What actually matters in this document.

Text

No. 23-175

In the Supreme Court of the United States

_____________

CITY OF GRANTS PASS, PETITIONER,

GLORIA JOHNSON AND JOHN LOGAN, ON BEHALF OF

THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,

RESPONDENTS

_____________

O1 WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_____________

BRIEF OF AMICUS CURIAE

OFFICE OF THE SAN DIEGO COUNTY

DISTRICT ATTORNEY IN SUPPORT OF PETITIONER

_____________

SUMMER STEPHAN

District Attorney

LINH LAM

Deputy District Attorney

Chief,

Appellate & Training Division

VALERIE RYAN

Deputy District Attorney

Asst. Chief,

Appellate & Training Division

330 West Broadway

San Diego, CA 92101

RONALD A. JAKOB

Counsel of Record

Deputy District Attorney

330 West Broadway

San Diego, CA 92101

(619) 531-3671

ronald.jakob@sdcda.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

IDENTITY AND INTEREST OF

AMICUS CURIAE ...........................................

SUMMARY OF THE ARGUMENT ....................

ARGUMENT ........................................................

The Ninth Circuit’s Holdings in

Martin and Petitioner’s Case Threaten the Enforcement of Commonsense

Fire Safety Ordinances and ArsonRelated Laws that Protect Local

Communities from the Ravages of

Wildfires...............................................

The Ninth Circuit’s Extension of

Eighth Amendment Protections to

Unavoidable Consequences of One’s

Status or Being Threatens the Enforcement of Life-Saving Laws that

Can Reduce the Disproportionately

High Fatality Rate of the Homeless

from Fentanyl ......................................

CONCLUSION ....................................................

II.

APPENDIX

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Johnson v. City of Grants Pass,

72 F.4th 868 (9th Cir. 2023) ..................... 3, 6-8,

10, 11, 13-15, 17, 19, 20

Jones v. City of Los Angeles,

444 F.3d 1118 (9th Cir. 2006)................... 9, 16

Jones v. City of Los Angeles,

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

Martin v. City of Boise,

920 F.3d 583 (9th Cir. 2019)..................... 3-11

13-17, 19, 20

Powell v. Texas,

392 U.S. 514 (1968) ................................... 16, 17

STATUTES

CALIFORNIA HEALTH & SAFETY CODE

Section 11350 ............................................

Section 11550 ............................................

CALIFORNIA PENAL CODE

Section 451 ................................................

Section 452 ................................................ 14, 15

SAN DIEGO MUNICIPAL CODE

Section 63.0402 .........................................

iii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Center for Disease Control and Prevention, CDC Fentanyl Fact Sheet, https://

www.cdc.gov/ore/pdf/CDC_Fentanyl-Fac

t-Sheet_General_508.pdf ..........................

Debbie L. Sklar, SDFD Extinguishes

Mission Valley Homeless Encampment

Blaze (November 22, 2023), Times of San

Diego, https://timesofsandiego.com/crime

/2023/11/22/sdfd-extinguishes-mission-v

alley-homeless-encampment-blaze/..........

Gary Warth, San Diego’s Homeless Camp-

ing Ban May Face a Legal Challenge.

Could this Case in Another City Be a

Bellwether? (June 17, 2023), The San Di-

ego Union Tribune ....................................

To Sweep Homeless

Camps, California Cities Say They Offer

Shelter. What that Really Means Is Up

for Debate (September 13, 2023), CAL

Jeanne

Kuang,

MATTERS, https://calmatters.org/housi

ng/homelessness/2023/09/california-hom

eless-camps/ ..............................................

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Lisa Halverstadt, Fentanyl Plagues San

Diego’s Homeless Population (November

21, 2022), Voice of San Diego,

https://voiceofsandiego.org/2022/11/21/fe

ntanyl-plagues-san-diegos-homeless-pop

ulation/ ...................................................... 3, 18

Data Shows Explosive

Growth in Homeless-Related Fire Calls

Mary

Payton,

(October 13, 2020), NBCsandiego, https:

//www.nbcsandiego.com/news/local/datashows-explosive-growth-in-homeless-rel

ated-fires/2423854/ ...................................

Plummer, Fire Risks Tied to

Homelessness in San Diego’s Canyons

Leave Residents on Edge (December 10,

2019), inewsource......................................

Mary

Mary Plummer, San Diego’s Homeless Tied

to Nearly 13% of All Fire Dispatch Calls

(January 17, 2020), inewsource, https://in

ewsource.org/2020/01/17/san-diego-home

less-fire-dispatch-calls/ .............................

Mike Madriaga, San Diego River Neigh-

bors Worry About Homeless Fires (Sept-

ember 13, 2022), San Diego Reader,

https://www.sandiegoreader.com/news/

2022/sep/13/san-diego-river-neighborsworry-about-homeless-fir/.........................

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

National Risk Index for San Diego County,

California, FEMA, https://hazards.fema.

gov/nri/report/viewer?dataLOD=Countie

s&dataIDs=C06073...................................

Office of the San Diego County District

Attorney, Homeless Individuals and

Their Intersection with the Criminal

Justice System (November 2019 –

October 2021 (March 21, 2022) ................ 2, 15

Regina Yurrita, FEMA Study Ranks San

Diego County at the Top of List for

Wildfire Risk (July 11, 2023), CBS8,

https://www.cbs8.com/article/news/local/

san-diego-ranks-at-the-top-for-being-at-ris

k-for-wildfires/509-7b42ff71-67e3-4651815e-6f64082cb1a4 .......................................

Will Huntsberry, Homeless Deaths Are

Rising at a Much Greater Rate than

Homelessness (June 13, 2023), Voice of

San Diego, https://voiceofsandiego.org

/2023/06/13/homeless-deaths-are-risingat-a-much-greater-rate-than-homeless

ness/ ...........................................................

IDENTITY AND INTEREST

OF AMICUS CURIAE 1

Amicus Curiae, the Office of the San Diego

County District Attorney (“SDCDA”), is the

governmental entity which represents the People of

the State of California in the criminal prosecution of

felonies committed within San Diego County as well

as misdemeanors in the unincorporated areas and

most municipalities within the county. This

responsibility includes the prosecution of arson and

controlled substance offenses under California’s Penal

and Health & Safety Codes. In this capacity, SDCDA’s

chief mission is to ensure public safety and to pursue

equal and fair justice for all individuals, including the

county’s sizable homeless population.

San Diego County ranks among the highest in

the nation of counties at risk for wildfires. Massive

wildfires have destroyed thousands of homes and

buildings, stolen the lives of its citizens, caused

millions of dollars in damage, and created a

heightened sensitivity and vigilance to guard against

this danger. As such, San Diego County offers a unique

perspective on the highly elevated arson risks

connected to homelessness.

In the 24-month period between November

2019 and October 2021, a published SDCDA study

showed the homeless population committed felony

arson at a rate 514 times higher than the non1 Pursuant to Rule 37.6, no party or party’s counsel authored

this brief in whole or in part, or contributed money that was

intended to fund its preparation or submission; and no person

other than the amicus curiae, its members, or its counsel,

contributed money that was intended to fund the preparation or

submission of this brief.

homeless population. Office of the San Diego County

District Attorney, Homeless Individuals and Their

Intersection with the Criminal Justice System

November 2019 - October 2021 (March 21, 2022),

Appendix A at 3a. The increased risk of fire danger

from the homeless population means that the use of

cooking and heating devices—whether for sustenance

or warmth—and the reckless setting of fires on public

lands pose a serious and recurrent threat to the safety

and wellbeing of the entire community the SDCDA

serves.

San Diego County also finds itself at the

epicenter of the fentanyl crisis given its proximity to

the nation’s southern border and being identified as

the largest entry point of illicit fentanyl to the rest of

the nation, providing the SDCDA with significant

insight into the ravages this highly addictive and

deadly drug has had on the homeless population of the

county. These deadly overdose outcomes warrant

robust enforcement of laws related to drug possession,

especially fentanyl. Enforcement of illegal drug

possession is a pathway to life-saving treatment

through effective Drug Courts and other treatment

courts.

San Diego County’s high rate of drug fatalities

from fentanyl has been especially devastating to the

county’s homeless population primarily living in

public encampments. According to San Diego County

Medical Examiner data, as reported by the SDCDA in

Appendix A, by midyear 2021, the risk of a homeless

individual dying of a drug overdose was 118 times

higher than the county’s non-homeless population on

a per capita basis. 2 Appendix A at 7a. In the first

quarter of 2022, fentanyl deaths among the homeless

were 23 percent higher than the same period in 2021,

causing the county board of supervisors to declare a

public health crisis from illicit fentanyl. Lisa

Halverstadt, Fentanyl Plagues San Diego’s Homeless

Population (November 21, 2022), Voice of San Diego,

https://voiceofsandiego.org/2022/11/21/fentanylplagues-san-diegos-homeless-population/.

Although San Diego County recognizes that all

the issues connected to homelessness are important,

the focus of this amicus brief is on the dangers of fires

and fentanyl attributable to homeless encampments.

The SDCDA’s experiences are significant to open a

window for this Court to view the striking impact the

Ninth Circuit’s decisions have had and will have on

the People within San Diego County—homeless and

non-homeless alike—who look to the SDCDA for

solutions to safeguard the community.

The majority panel opinion in Petitioner’s case,

Johnson v. City of Grants Pass, 72 F.4th 868 (9th Cir.

2023) (Johnson), expressly contemplates that

ordinances barring the use of fire or stoves and similar

critical fire prevention laws may not be permitted

under the Eighth Amendment when enforced against

“involuntarily homeless” individuals occupying public

encampments. Additionally, the logic and reasoning of

the majority panel opinions in this case and its

predecessor, Martin v. City of Boise, 920 F.3d 583 (9th

Cir. 2019) (Martin), are susceptible of being read to

2 This statistic was derived and calculated by the SDCDA from

raw data provided by the San Diego Medical Examiner’s Office

and then included in the SDCDA’s published report contained in

Appendix A.

extend Eighth Amendment protections to homeless

individuals for simple possession or being under the

influence of a controlled substance in public

encampments where the behavior is deemed an

“unavoidable consequence” of one’s condition.

As such, these Ninth Circuit decisions create

confusion, and even arguably a bar, to law

enforcement and prosecution of individuals occupying

homeless encampments for arson and drug-related

offenses. While the SDCDA endeavors to treat the

homeless population with compassion and dignity

through education, treatment and services, we also

recognize that tying the hands of local governments

attempting to mitigate the harms from wildfires and

drug fatalities hurts the homeless as much as the

community at large. Accordingly, SDCDA has a

significant interest in seeking reversal of the Ninth

Circuit panel decision in this case and the overruling

of the Martin opinion upon which the panel’s majority

relied.

SUMMARY OF THE ARGUMENT

Addressing the critical issues surrounding

homelessness and the criminal justice system is a

complex and monumental task. In most metropolitan

areas of the United States today, homelessness and

the attendant encampments have produced a

humanitarian and public safety crisis. Unsafe and

inhumane conditions in homeless encampments on

public property in San Diego County pose a serious

threat to the safety and wellbeing of their occupants

as well as the general public. It is this complexity that

calls for allowing local government to have full access

to the legal tools necessary to permit an approach that

strives for public safety, fairness, and dignity, while

also recognizing the need for more humane ways to

serve homeless individuals.

Of particular concern to San Diego County is

the yearly threat of devastating wildfires originating

in its canyons, riverbeds, woodlands and other public

lands, quickly spread by strong, dry Santa Ana winds.

The overwhelming statistic that the homeless

population committed felony arson at a rate 514 times

higher than the non-homeless population over a twoyear period is not one to be taken lightly. Enacting

commonsense restrictions on conduct which presents

a fire risk is therefore one of the highest priorities of

local governments throughout the county. For

example, the City of San Diego’s unsafe camping

ordinance prohibits the use of camp stoves or cooking

equipment in public encampments to prevent the

scourge of wildfires. These restrictions safeguard

against the catastrophic impact of wildfire destruction

that too often leaves families, neighborhoods, and

communities suffering in the wake of wide-ranging

and long-lasting damage.

It is of great concern that the majority panel

decision in this case contemplates that a municipal

ordinance prohibiting the use of stoves or even open

fire in public encampments “may or may not be

permissible” under the Ninth Circuit’s novel

construction of the Eighth Amendment in Martin.

Intruding on the traditional role of local government

in policymaking to protect its community, the panel

majority subjects Petitioner’s eminently reasonable

fire prevention ordinance to an unprecedented and

standardless Eighth Amendment balancing test

against the interests of homeless individuals

occupying public encampments.

This likewise injects confusion and uncertainty

into the enforcement and prosecution of arson-related

crimes such as recklessly causing a fire on public

lands. Just like the bedding and cardboard enclosures

addressed in Petitioner’s case, the occupants of

homeless encampments could assert an Eighth

Amendment claim under Johnson and Martin that a

fire was necessary for rudimentary protection from the

elements or the preparation of food in furtherance of

involuntary human needs for warmth and sustenance.

Given its proximity to the nation’s southern

border and being identified as the largest entry point

of illicit fentanyl to the rest of the nation, San Diego

has become the epicenter of the fentanyl crisis. This

highly addictive and deadly drug has ravaged no

community harder than the homeless population of

the county. Robust enforcement of laws criminalizing

public intoxication and drug possession, especially

fentanyl, is warranted.

The San Diego County Medical Examiner’s data

showing that the risk of a homeless individual dying

of a drug overdose was 118 times higher than the

county’s non-homeless population on a per capita basis

emphasizes the need to employ local law enforcement

solutions—as assessed and determined by local

agencies with a deeper understanding of their own

communities’ overdose problems—without the

overbroad constraints imposed by the Ninth Circuit.

However, the Ninth Circuit’s expansive

definition of involuntary conduct and status offenses

as set forth in Martin and reaffirmed in Petitioner’s

case raises the specter of Eighth Amendment claims of

immunity by homeless individuals occupying

encampments from drug-related law enforcement

actions and prosecutions. Without the option of law

enforcement intervention and a resulting criminal

case, the Ninth Circuit’s restraints threaten the trial

court’s authority to mandate drug treatment as part of

a criminal prosecution for fentanyl addicts who refuse

voluntary treatment or because life-saving treatment

and residential services are simply not available on

the streets or effectively provided through voluntary

participation. Yet, these law enforcement measures

provide a viable mechanism to avoid the high rates of

fentanyl overdose deaths among the homeless

population. The hope, of course, is to save lives.

As such, the novel Ninth Circuit decisions in

this case and Martin represent a result-driven

perversion of Eighth Amendment jurisprudence. By

restricting the ability of local governments to mitigate

the risk of devastating wildfires and drug fatalities,

those decisions in effect expose both the homeless and

local communities at large to great risks, not

protection against cruel and unusual punishments

within the original meaning of the Eighth

Amendment.

Similarly, the holdings in these Ninth Circuit

cases are not susceptible to clarification, as urged by

some,

since

they

are

essentially

policy

determinations—a function reserved and best suited

for local governments based on their particular needs

and circumstances. Johnson should therefore be

reversed and the Eighth Amendment holding in

Martin upon which the Johnson majority relied

overruled.

ARGUMENT

Like many other major metropolitan areas of

the United States today, the proliferation of homeless

encampments on public lands in San Diego County

poses a serious threat to the health, safety, and

welfare of the homeless as well as the general public.

Of particular concern in San Diego County is the risk

of wildfires associated with these homeless

encampments, which dot its dry canyons and

riverbeds, as well as the disproportionately high rate

of drug fatalities, primarily from fentanyl, amongst

the county’s homeless population.

By cloaking the conduct of homeless individuals

occupying public encampments with Eighth

Amendment protections as “the unavoidable

consequences of one’s status or being,” the Ninth

Circuit in Martin and Petitioner’s case have tied the

hands of local governments in alleviating the harms

and threats to public safety that are endemic to those

encampments. The Ninth Circuit’s expansive

construction of the Eighth Amendment in Johnson

and Martin can be read to immunize homeless

individuals from life-saving laws prohibiting the act of

possessing or being under the influence of controlled

substances in public as well as enforcement of

important fire safety and arson-related laws in public

encampments. This unwarranted expansion of the

Eighth Amendment and intrusion into the realm of

public policymaking by the Ninth Circuit in a

misguided and ineffective effort to help the homeless

should not be allowed to stand.

The Ninth Circuit’s decisions remove necessary

tools from various stakeholders who must collaborate

to address arson threats and the needs of homeless

individuals living with substance use disorders.

Reversing the Ninth Circuit’s decisions allows for the

development of solutions focused on the intersection of

criminal justice and public safety as San Diego County

works toward common goals for its citizens. While

many other tools provide humane treatment to the

homeless population—like mental health services,

substance abuse services, alternatives to incarceration

like the San Diego County District Attorney

Community Justice Initiative or Collaborative Courts,

peer support, smartphone applications for services,

acute crisis response teams, crisis and de-escalation

training, education, and many other categories of

assistance—the Ninth Circuit’s decisions must be

overturned to allow law enforcement the use of other

measures, within the bounds of the law and in

conjunction with alternative approaches, to ensure the

well-being of homeless individuals and the general

public are safeguarded.

The Ninth Circuit’s Holdings in Martin and

Petitioner’s Case Threaten the Enforcement of

Commonsense Fire Safety Ordinances and

Arson-Related Laws that Protect Local

Communities from the Ravages of Wildfires

In Martin, a three-judge panel of the Ninth

Circuit adopted from a previously-vacated opinion an

argument that “‘the Eighth Amendment prohibits the

state from punishing an involuntary act or condition if

it is the unavoidable consequence of one’s status or

being.’” Martin, 920 F.3d at 616-17, quoting Jones v.

City of Los Angeles, 444 F.3d 1118, 1135-36 (9th Cir.

2006), vacated, 505 F.3d 1006 (9th Cir. 2007) (Jones).

The Martin panel then expanded upon Jones to hold

that “the state may not ‘criminalize conduct that is an

unavoidable consequence of being homeless—namely,

sitting, lying, or sleeping on the streets.’” Id. at 617.

From that holding, the Martin panel fashioned

a rule that “as long as there is no option of sleeping

indoors, the government cannot criminalize indigent,

homeless people for sleeping outdoors, on public

property, on the false premise they had a choice in the

matter.” 3 Martin, 920 F.3d at 617. Relying on Martin,

a different three judge panel of the Ninth Circuit in

Petitioner’s case extended this rule to conduct related

to “rudimentary protection from the elements.”

Johnson, 72 F.4th at 896.

In relevant part, the anti-camping ordinances

at issue in this case prohibited individuals from

sleeping on sidewalks, streets, alleys or within

doorways, or in any pedestrian or vehicular entrance

on or abutting public property. Johnson, 72 F.4th at

876. In addition, the ordinances prohibited individuals

from occupying a campsite on public property. Id. In

defining the term “campsite,” the ordinances

prohibited the use of bedding, sleeping bags, or other

materials used for bedding purposes as well as the use

of stoves or fires, tents, lean-tos, shacks, or any other

Martin panel members who were

likely operating under a false premise that the homeless have no

choice in the matter of living in public encampments. A

substantial number of homeless individuals prefer encampments

to residing in shelters for a variety of reasons. Some of them

“chafe at the rules” not to their liking in the shelters, such as

curfews. See Jeanne Kuang, To Sweep Homeless Camps,

3 To the contrary, it was the

California Cities Say They Offer Shelter. What that Really Means

Is Up for Debate (September 13, 2023), CAL MATTERS,

https://calmatters.org/housing/homelessness/ 2023/09/californiahomeless-camps/. One San Diego police captain reported that

during the first month of enforcing the city’s new unsafe camping

ordinance only three out of 85 homeless individuals he contacted

indicated that they would agree to a shelter placement. Id.

structure or vehicle for purposes of maintaining a

temporary place to live. Id.

Relying on Martin, the panel majority found the

bedding provisions violated the Eighth Amendment

because they prohibited the homeless from engaging

in unavoidable activity of sleeping outdoors without

the “rudimentary forms of protection from the

elements.” Johnson, 72 F.4th at 890-91, 896. Insofar

as the erection of temporary structures and the use of

open fire or stoves, the panel majority held “these

prohibitions may or may not be permissible” under

Martin, tasking the district court on remand to engage

in a balancing test between the city’s interests in those

provisions and the interests of the homeless in

rudimentary protections from the elements to

determine whether those provisions also violated the

Eighth Amendment. Id. at 895.

Of course, the panel could not explain where in

this Court’s Eighth Amendment jurisprudence they

find recognition of any state interest in imposing cruel

and unusual punishment or authority for subjecting

the constitutional right to the whims of a balancing-ofinterests test. See Johnson, 72 F.4th at 895. In any

event, it is troubling that the Johnson panel

contemplates the prospect of finding commonsense fire

prevention laws concerning the use of open flames and

stoves on public lands prohibited under the Eighth

Amendment.

Last year, the Federal Emergency Management

Agency (FEMA) ranked San Diego County as being the

county most at risk for wildfires in the United States.

Regina Yurrita, FEMA Study Ranks San Diego

County at the Top of List for Wildfire Risk (July 11,

2023), CBS8, https://www.cbs8.com/article/news/local/

san-diego-ranks-at-the-top-for-being-at-risk-for-

wildfires/509-7b42ff71-67e3-4651-815e-6f64082cb1a4.

FEMA placed San Diego County in the top national

percentile for wildfire risk with “Very High” expected

annual loss, “Relatively High” social vulnerability,

and “Very Low” community resilience scores for

wildfires. National Risk Index for San Diego County,

California,FEMA, https://hazards.fema.gov/nri/report/

viewer?dataLOD=Counties&dataIDs=C06073.

“Look at the fire hazard map for San Diego, and

it’s nearly all red zones.” Mary Plummer, Fire Risks

Tied to Homelessness in San Diego’s Canyons Leave

Residents on Edge (December 10, 2019), inewsource,

Appendix B at 8a. The highest risk is for

approximately 40,000 homes and lots bordering the

county’s brush-filled canyons. Id. at 9a-10a, 19a.

“[T]he situation has been exacerbated as the

city grapples with a large, unsheltered homeless

population, some of whom use the canyons as their

home.” Appendix B at 9a.

Similarly, homeless

encampments near San Diego’s main riverbed—also

surrounded by dry brush—is of great concern to local

residents. Mike Madriaga, San Diego River Neighbors

Worry About Homeless Fires (September 13, 2022),

San Diego Reader, https://www.sandiego reader.com/

news/2022/sep/13/san-diego-river-neighbors-worryabout-homeless-fir/.

In 2019, a significant percentage of all fire

dispatch calls to the San Diego Fire-Rescue

Department were related to the homeless and their

encampments. Mary Plummer, San Diego’s Homeless

Tied to Nearly 13% of All Fire Dispatch Calls (January

17, 2020, inewsource, https://inewsource.org/2020/01/

17/san-diego-homeless-fire-dispatch-calls/; see also

Debbie L. Sklar, SDFD Extinguishes Mission Valley

Homeless Encampment Blaze (November 22, 2023),

Times of San Diego, https://timesofsandiego.com/

crime/2023/11/22/sdfd-extinguishes-mission-valley-ho

meless-encampment-blaze/; Mary Payton, Data Shows

Explosive Growth in Homeless-Related Fire Calls

(October 13, 2020), NBCsandiego, https://www.

nbcsandiego.com/news/local/data-shows-explosive-gro

wth-in-homeless-related-fires/2423854/.

Understandably, San Diego’s unsafe camping

ordinance enacted last year includes a prohibition on

the use of camp stoves and cooking equipment within

its definition of a public encampment. See San Diego

Municipal Code § 63.0402 (2023). However, the

majority opinions in this case and Martin create

uncertainty about the validity of the ordinance as a

whole. See Gary Warth, San Diego’s Homeless

Camping Ban May Face a Legal Challenge. Could this

Case in Another City Be a Bellwether? (June 17,

2023), The San Diego Union Tribune, Appendix C at

27a-29a.

Just like the bedding materials at the center of

the Johnson panel’s finding of an Eighth Amendment

infirmity in Petitioner’s public camping ordinances,

San Diego’s ban on the use of camp stoves and cooking

equipment for warmth and food preparation on public

lands likely comes within the panel’s definitions of

human activity that cannot be avoided and

rudimentary protection from the elements. Compare

Johnson, 72 F.4th at 890-91, 895-96. As one homeless

individual told a San Diego reporter,

[F]ires are a necessity when you live outdoors.

[¶] “We use fire in the canyons to eat with and

to keep warm with at night,” . . . “A lot of times

they’ll cover up with a tarp when it gets cold and

put on every stick of clothing they got just to

stay warm with. And a little candle underneath

the tarp . . . . . But then you’re taking the risk of

burning the canyon down and yourself.”

Appendix B at 12a.

Given the Johnson panel’s remarkable

conclusion that Petitioner’s ban on stoves and open

fires in public encampments “may or may not be

permissible” under Martin, San Diego’s efforts to

mitigate the risks of wildfires through its unsafe

camping ordinance likewise faces the threat of Eighth

Amendment challenges and claims of immunity if

Johnson and Martin are allowed to stand and continue

to govern the issue.

The two Ninth Circuit opinions likewise

threaten enforcement of California’s arson statutes.

California Penal Code section 451 sets forth the crime

of felony arson for any person who “willfully and

maliciously sets fire to or burns or causes to be burned

or who aids, counsels, or procures the burning of, any

structure, forest land, or property.” California Penal

Code section 452 provides for either felony or

misdemeanor charges for reckless setting of a fire,

burning, or causing to be burned, any structure, forest

land or property.

In the 24-month period between November

2019 and October 2021, a published SDCDA study

showed that among a homeless population of 7,296

people, a total of 162 felony arson cases were filed on

homeless defendants, whereas for the remaining San

Diego adult population of 2.6 million people, only 113

felony arson cases were filed for non-homeless

defendants. This reflects the homeless population

committing arson at a rate 514 times higher than the

non-homeless population. Office of the San Diego

County District Attorney, Homeless Individuals and

Their Intersection with the Criminal Justice System

November 2019 - October 2021 (March 21, 2022),

Appendix A at 3a.

Since the risk of wildfires from homeless

encampments will more likely be the result of

recklessness in conjunction with the use of open fires,

camp stoves, cooking equipment or other incendiary

devices associated with needs for sustenance and

warmth, the holdings in Martin and Johnson most

impact the viability of law enforcement and

prosecutions under California Penal Code section 452.

Will officers be subject to civil liability for attempting

to enforce arson statutes where the reason for the fire

was the unavoidable activity of preparing food for

consumption or rudimentary protection from the

elements faced by unsheltered individuals? Will such

individuals be cloaked with Eighth Amendment

immunity from criminal prosecution under an arson

statute?

In this way, the Martin and Johnson decisions

throw commonsense fire prevention laws and local

government efforts to curtail the risks of wildfires into

a state of uncertainty as applied to unsheltered

individuals living in homeless encampments. The

unprecedented and unwarranted expansion of Eighth

Amendment jurisprudence mandated by those cases

not only impact neighboring residents and the

community at large by impeding local government

efforts to reduce the risks of fires from homeless

encampments, but also endanger the very occupants

of those encampments. Accordingly, the majority

panel opinion in Johnson should be reversed and the

panel decision in Martin overruled.

II.

The Ninth Circuit’s Extension of Eighth

Amendment Protections to the Unavoidable

Consequences of One’s Status or Being

Threatens the Enforcement of Life-Saving Laws

that Can Reduce the Disproportionately High

Fatality Rate of the Homeless from Fentanyl

As noted, the Martin panel adopted from a

previously-vacated opinion the principle that “‘the

Eighth Amendment prohibits the state from punishing

an involuntary act or condition if it is the unavoidable

consequence of one’s status or being.’” See Martin, 920

F.3d at 616, quoting Jones, 444 F.3d at 1135. This

principle was developed by cobbling together dicta

within Justice White’s concurring opinion with a

dissenting opinion of Justice Fortas in Powell v. Texas,

392 U.S. 514 (1968) (Powell). Martin, 920 F.3d at 616.

In relevant part, Justice White wrote:

“For all practical purposes the public streets

may be home for these unfortunates, not

because their disease compels them to be there,

but because, drunk or sober, they have no place

else to go and no place else to be when they are

drinking. ... For some of these alcoholics I would

think a showing could be made that resisting

drunkenness is impossible and that avoiding

public places when intoxicated is also

impossible. As applied to them this statute is in

effect a law which bans a single act for which

they may not be convicted under the Eighth

Amendment — the act of getting drunk.”

Martin, 920 F.3d at 616, quoting Powell, 392 U.S. at

551 (White, J., concurring in the judgment).

Writing for himself and three other dissenting

justices, Justice Fortas argued that “‘criminal

penalties may not be inflicted upon a person for being

in a condition he is powerless to change,’ and that the

defendant, ‘once intoxicated, . . . could not prevent

himself from appearing in public places.’” Martin, 920

F.3d at 616, quoting Powell, 392 U.S. at 567 (Fortas,

J., dissenting).

The panel majority in Petitioner’s case likewise

found Justice White’s concurrence combined with

Justice Fortas’s dissent in Powell to serve as authority

for applying the Eighth Amendment to Petitioner’s

unlawful camping ordinances. See Johnson, 72 F.4th

at 891-93.

Of course, public intoxication can be either drug

or alcohol-induced and the result of the disease of drug

addiction as well as alcoholism. Accordingly, the

reasoning of Justices White’s dicta and Justice

Fortas’s dissent in Powell would apply with equal force

to the crime of being under the influence of a

dangerous controlled substance in a public place such

as a homeless encampment. Like its extension of

unavoidable consequences of homelessness to the use

of bedding in public camps by the Johnson panel,

simple possession could be seen as an unavoidable

consequence of drug use and addiction.

Due to its position on the nation’s southern

border and being identified as the largest entry point

of illicit fentanyl to the rest of the nation, San Diego is

experiencing a major crisis from the deadly drug

fentanyl—an opioid 50 times stronger than heroin and

100 times stronger than morphine. Center for Disease

Control and Prevention, CDC Fentanyl Fact Sheet,

https://www.cdc.gov/ore/pdf/CDC_Fentanyl-FactSheet

_General _508.pdf. The fentanyl crisis has hit the

homeless population of the county especially hard.

In the ten-year period between 2012 and 2022,

drug overdoses were the primary cause of a

dramatically increasing death rate among homeless

individuals in San Diego County, and “the fentanyl

epidemic is behind this rise” in homeless fatalities.

Will Huntsberry, Homeless Deaths Are Rising at a

Much Greater Rate than Homelessness (June 13,

2023), Voice of San Diego, https://voiceofsandiego.org

/2023/06/13/homeless-deaths-are-rising-at-a-much-gr

eater-rate-than-homelessness/. In 2021, more than

200 homeless individuals in San Diego County died of

fentanyl overdoses. Halverstadt, Fentanyl Plagues

San Diego’s Homeless Population, supra.

According to San Diego County Medical

Examiner data analyzed by and incorporated into the

SDCDA report (Appendix A), by midyear 2021, the

risk of a homeless individual dying of a drug overdose

was 118 times higher than the county’s non-homeless

population on a per capita basis. Appendix A at 7a. In

the first quarter of 2022, fentanyl deaths among the

homeless were 23 percent higher than the same period

in 2021, causing the county board of supervisors to

declare a public health crisis from illicit fentanyl.

Halverstadt, Fentanyl Plagues San Diego’s Homeless

Population, supra.

“Fentanyl’s life-taking power has thinned out

whole encampments,” reported one formerly-homeless

individual. Huntsberry, Homeless Deaths are Rising

at a Much Greater Rate than Homelessness, supra.

Even those not using drugs in the encampments worry

about the dangers of secondary exposure to fentanyllaced smoke. Id. Another individual commenting on

the encampments stated, “Don’t even ask me how

many dogs have been Narcan-ed . . . . They get into it

and lick it up.” Id.

California’s

Health

and

Safety

Code

criminalizes the act of being under the influence as

well as simple possession of a controlled substance,

such as fentanyl, in a public place. See Cal. Health &

Saf. Code §§ 11350 and 11550 (2023). Enforcement of

these criminal provisions in the homeless community

can serve as a helpful tool in effectively removing

homeless individuals suffering from fentanyl

addiction from the environment fostering use of the

deadly drug. The criminal justice system can be a

powerful catalyst in providing life-saving treatment

and residential services that are simply not available

on the streets or effectively provided through

voluntary participation.

By shrouding the “unavoidable consequence[s]

of one’s status or being” with the protections of the

Eighth Amendment, the panel opinions in Martin and

Johnson inject uncertainty and even perhaps a bar to

enforcement and prosecution of individuals in

homeless encampments with the offenses of possession

or being under the influence of a controlled substance

in a public place. These Ninth Circuit panel opinions

do no favor to homeless individuals bearing the brunt

of the fentanyl crisis in public encampments, as those

decisions can be read to immunize those individuals

from enforcement of certain drug-related laws such as

California Health and Safety Code sections 11550 and

11350.

Contrary to its proclamations in Martin of being

a “narrow” holding, 920 F.3d at 617, the Ninth

Circuit’s construction of the Eighth Amendment as

protecting the unavoidable consequences of being

homeless has already expanded to the use of bedding

materials, shelters, and incendiary devices under

Johnson. In a not so veiled intrusion into public

policymaking,

these

opinions

present

local

governments with a stark choice between providing

individuals who consider themselves involuntarily

homeless with judicially-determined adequate

housing at public expense or allowing homeless

encampments on public property that continue to pose

untenable fire and drug overdose risks. See Johnson,

72 F.4th at 896, Martin, 920 F.3d at 616-17. The Ninth

Circuit’s misguided attempts to expand the Eighth

Amendment beyond its original meaning should not be

allowed to stand.

CONCLUSION

The majority panel opinion of the Ninth Circuit

in Petitioner’s case should be reversed and Martin

overruled.

Respectfully submitted,

SUMMER STEPHAN

District Attorney

LINH LAM

Deputy District Attorney

Chief,

Appellate & Training Division

VALERIE RYAN

Deputy District Attorney

Asst. Chief,

Appellate & Training Division

330 West Broadway

San Diego, CA 92101

Counsel for Amicus Curiae

March 1, 2024

RONALD A. JAKOB

Counsel of Record

Deputy District Attorney

330 West Broadway

San Diego, CA 92101

(619) 531-3671

ronald.jakob@sdcda.org

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: Office of the San Diego

County District Attorney, Homeless Indi-

viduals and Their Intersection with the

Criminal Justice System (November 2019

- October 2021) (March 21, 2022), https://

www. sdcda.org/content/MediaRelease/Home

Less%20Rates%20PDF%203-21-22.pdf .........

APPENDIX B: Fire Risks Tied to Homelessness in San Diego’s Canyons Leave

Residents on Edge, Inewsource (December

10, 2019), https://inewsource.org/2019/12/

10/san-diego-homeless-canyon-wildfires........

APPENDIX C: Gary Warth, San Diego’s

Homeless Camping Ban My Face a Legal

Challenge. Could this Case in Another

City Be a Bellwether?, San Diego Union

Tribune (June 17, 2023), https://www.san

diegouniontribune.com/news/homelessness/

story/2023-06-17/san-diegos-homeless-camp

ing-ban-may-face-legal-challenge.....................

24a

APPENDIX A

Homeless Individuals and Their Intersection with

the Criminal Justice System

Using District Attorney data based on crimes

provable beyond a reasonable doubt

November 2019 to October 2021

(24-Month Period)

Homeless Victims

The increased vulnerability

associated with homelessness

APPENDIX B

Inewsource;

Fire Risks Tied to Homelessness

in San Diego’s Canyons Leave

Residents on Edge

https://inewsource.org/2019/12/10/san-diego-homelesscanyon-wildfires/

by Mary Plummer

December 10, 2019

San Diego fire department crews put down a fire near

Fairmont Avenue and Aldine Drive in San Diego, Oct.

15, 2019. Fire officials said it started near a homeless

encampment. (Zoë Meyers/inewsource)

Look at the fire hazard map for San Diego, and it’s

nearly all red zones.

San Diego’s landscape is dotted with hillside

developments — old and new — that border scenic

canyons and nature parks. The red on the map

includes those brush-filled areas and signifies a very

high fire danger.

The city fire department estimates the risk is

highest for about 40,000 homes and vacant lots that

sit along those canyon rims and slopes, from Cabrillo

Canyon in Balboa Park to Tecolote Canyon in

Clairemont to North Chollas Canyon in Oak Park.

Brush and overgrown vegetation have long created

fire risks in San Diego and at all times of the year, but

the situation has been exacerbated as the city grapples

with a large, unsheltered homeless population, some

of whom use the canyons as their home.

Why this matters

Most wildland fires in the U.S. are

caused by people, and nowhere in the

country are more structures at risk

than in California. San Diego’s urban

canyons and nature parks lined by

homes are especially vulnerable.

Fire incident call records obtained by inewsource

prove the point: For the first nine months of this year,

11% of those calls mentioned homeless encampments.

Other public records and interviews with residents

show frustration and at times anger with city officials

over what’s seen as serious fire hazards caused by

homeless living in the brush-filled canyons.

“It’s their responsibility to protect and clear our

10a

community,” said Karen Lockshaw, who lives in

Clairemont, four blocks from the Tecolote Canyon

Natural Park.

Lockshaw called the city’s approach to managing

brush and overgrowth an abuse of authority that puts

parts of San Diego in danger of wildfires.

“It’s a matchbox,” she said. “It’s just a matter of

time.”

San Diego Homes Most At Risk For Fires

The fire hazard map for San Diego is nearly all red

zones, which signifies very high fire danger.

The city proactively assesses about 40,000 of the

most at risk properties to ensure brush and weeds are

properly cut and managed to reduce fire risk. City staff

also respond to brush complaints residents submit.

This database allows you to search properties the

city checks for vegetation-related fire risks. Fire

officials say the vast majority are assessed proactively

rather than checked after a complaint.

To submit a complaint to the city, click here or call

(619) 533-4444.

To submit an infrastructure story tip to inewsource

email: fixthis@inewsource.org.

https://inewsource.github.io/tables/san-diego-firedanger/

Fire-related complaints filed on the city’s Get It

Done app show she’s not alone.

“Illegal campsite with what appears to be some sort

of campfire or cooking fire or something in Marston

Canyon at the bottom of Vermont,” reads a report

submitted in July.

11a

“Possibility for fires, etc. exists with homeless

camps. This is NOT a campground,” reads another,

reporting concerns in Balboa Park in September. “This

has been previously reported but the camp has grown

larger.”

“I live on the corner of Mason and Jackson and hear

yelling and fighting every day,” reads another from

October 2018 about a homeless encampment in

Presidio Park. “There is evidence beside these camps

that they are building fires next to them. Please help

remove these camps as soon as possible.”

An attached photo shows a red baby stroller among

the trees filled with personal belongings, and clothing

hanging from a branch.

Tom Scott is a homeless veteran who said he’s lived

in Balboa Park for about 15 years. He said he

recognizes the conflict with residents and their fire

fear.

Tom Scott looks out into Florida Canyon in Balboa

Park, Nov. 18, 2019. Scott has been homeless for 40

years, and for some of those years lived in Florida

12a

Canyon. (Zoë Meyers/inewsource)

“I understand that part and why they don’t like us

down there,” Scott said. But, he added, the fires are a

necessity when you live outdoors.

“We use fire in the canyons to eat with and to keep

warm with at night,” he said. “A lot of times they’ll

cover up with a tarp when it gets cold and put on every

stick of clothing they got just to stay warm with. And

a little candle underneath the tarp. … But then you’re

taking the risk of burning the canyon down and

yourself.”

Nothing like that has happened this year, but small

fires linked to the homeless have threatened San

Diego neighborhoods — from a brush fire in October

near Talmadge and Kensington to a canyon fire in July

in Skyline to an April blaze that homeless people

trying to keep warm started inside a section of the

Cabrillo Bridge in Balboa Park.

Deputy Fire Chief Doug Perry, who oversees the

city’s fire prevention efforts, said he understands the

public’s concern about fire risks within city parks.

“They have a right to be worried,” he said. “The San

Diego area, probably our greatest concerns even more

than earthquakes are wildland fires.”

The city has made addressing homelessness a

priority, he said, but added that the best solution

would be to get people out of the canyon and park

encampments and into some kind of housing.

“When they’re cold, they’re going to start fires,”

Perry said. “Preventative-wise, we’ve got to find places

for them to be housed and taken care of.”

inewsource asked for an interview with Mayor

13a

Kevin Faulconer and the head of his homeless efforts.

His spokeswoman instead emailed a response to

questions about fire risks associated with homeless

people in the parks and canyons.

It said, in part: “If there is a potential fire risk,

Mayor Faulconer has directed staff to remove that risk

as quickly as possible. During peak fire season, public

safety of all our residents is our number one priority

and we are doing everything possible to mitigate the

potential for spark.”

San Diego fire department crews put down a fire near

Fairmont Avenue and Aldine Drive in San Diego, Oct.

15, 2019. (Zoë Meyers/inewsource)

14a

Get It Done app frustrates residents

Discarded items left from an encampment in Florida

Canyon in Balboa Park are shown in this photo, Nov.

18, 2019. (Zoë Meyers/inewsource)

Some residents who used the Get It Done app to

report people living and setting up camps in canyons

and parks found the system frustrating. They told

inewsource their submissions were sometimes

described as closed or corrected despite the problems

not being fixed. Some residents experienced long

delays in getting a response from the city, and others

never heard back, according to an inewsource review

of the complaint data.

Lauren Williams lives in Mission Hills and is the

Presidio Hills block captain for her neighborhood town

council. She said she walks the trails in Presidio Park

every day with her dogs and regularly files reports to

the city on fire dangers related to the homeless.

“I worry about it all the time, all year round,”

Williams said.

15a

Her fear now that it has gotten cold is that the

homeless people in the park will be lighting more fires

to stay warm. She’d like the city to increase lighting

and adjust when police patrol so the homeless don’t

know when officers will be in the park.

“If Presidio Park catches fire, my home and all of our

neighbors’ homes are going to catch fire very quickly,”

Williams said.

She estimates she’s submitted about 150 Get It

Done requests in the past year and a half — not all are

about fire dangers and the homeless — and about half

were responded to or resolved. Williams said she’d like

the city to be more responsive to the submissions but

is glad there is an easy way to report problems. She

said she’s seen improvements in the park since she

started using it.

Residents who have complained about homeless

encampments and other illegal activity in North

Chollas Community Park aren’t as positive about the

app.

16a

Oak Park residents Elida Chavez and Bruce

Thompson walk through North Chollas Community

Park, Oct. 3, 2019. Both have raised safety concerns

about

the

park

city

officials.

(Zoë

Meyers/inewsource)

On Aug. 12, a resident filed two Get It Done

complaints reporting homeless encampments inside

the park.

Four days later, they were listed as corrected

without the problems being addressed, neighbors said.

Then, on the afternoon of Aug. 25, a fire broke out in

a canyon near where the encampments were reported.

Firefighters stopped the blaze from spreading an hour

after it was reported.

The cause was ruled undetermined, but one resident

said a firefighter showed him where the fire likely

originated. It was a known spot for fires lit by the

homeless in the park, he said. While no one was

injured and no homes were damaged, the fire alarmed

the community.

Residents wrote to Faulconer in September, citing

“urgent requests” that included demands for more

prompt responses to fire risk reports and illegal

activity, clarification on which departments handle

removing homeless encampments and improvements

to the Get It Done app.

“We have used GET IT DONE frequently and have

typically found it useless in addressing illegal activity

in our park,” reads the letter signed by Oak Park

Community Council President Richard Diaz on behalf

of concerned residents.

Faulconer never responded personally to the letter,

but his spokeswoman said the city has taken steps to

17a

address residents’ concerns. Among them: Police and

workers from the Environmental Services Department

cleaned up encampments, and an arborist assessed

trees in the park.

Some neighbors said that’s not enough and continue

to call for safety improvements.

“We have gotten to a point that it’s no longer just

having a concern,” said Elida Chavez, who has lived in

the neighborhood for 45 years. “But it’s gotten to the

point of being angry and standing up and having a

voice.”

Dry brush is visible throughout North Chollas Comm

unity Park, Oct. 3, 2019. (Zoë Meyers/inewsource)

Bruce Thompson, another neighbor, said he

continues to see evidence of problems and fire risks

within the park. He described the current situation as

a “bureaucratic bottleneck” that puts “people and

property at risk.”

A recent park cleanup located “about eight lighters,

18a

eight empty marijuana containers, countless cigarette

butts, many empty miniature cigar packages that

people use to deal with marijuana so they don’t get

cited for smoking marijuana in public,” Thompson

said, plus materials used to smoke meth.

City officials acknowledge the Get It Done app needs

fixes. It started as a pilot in 2016 and has had multiple

updates and expansions. Another one is planned for

early next year to streamline reporting of homeless

encampments and directly route homeless problems to

the Neighborhood Policing Division, which works with

the Environmental Services Department to clear the

camps.

City brush rules leave most of San Diego untouched

When it comes to fire prevention, the city’s own rules

present challenges.

Fire officials said up to 100 feet of clearance is

required in city parks with brush and vegetation that

abuts homes. Depending on where the property line is,

the city and homeowner share responsibility for

maintaining the land.

The regulations do not require any brush clearance

beyond 100 feet, including canyon beds where some

homeless live.

North Chollas Community Park, for example, was in

compliance with the city’s brush rules, a San Diego

Fire-Rescue Department spokeswoman said.

The uneven topography where the fire originated

prevented brush clearing, Tim Graham, a spokesman

for the Parks and Recreation Department, said in an

email. He said it wasn’t “feasible to cut brush in the

area as we do not have equipment that would best be

used in that area.”

19a

The city assesses whether homes are properly

protected and checks about 40,000 high-risk

properties. Almost all of them are along canyons and

hillsides.

Houses are shown along the ridge line of Switzer

Canyon in San Diego, Oct. 7, 2019. (Zoë Meyers/

inewsource)

But city brush inspection records show those safety

requirements are monitored infrequently.

The city employs a staff of seven to assess brush

clearance compliance. From March 2017 to midNovember 2019, just 24% of sites had been inspected.

Of those, 10.6% were out of compliance.

In addition to fire department inspections, the Parks

and Recreation Department cuts brush and weeds in

11 areas of the city, but many residents feel it’s not

enough.

“I want that brush cleaned up and I want it done

now,” said Chavez, who lives near North Chollas

Community Park.

20a

Her major concern, she said, is “that people are

going to get hurt, that children, families, are going to

get hurt, and whoever’s living in this area is going to

get hurt, too. It’s about saving lives.”

This fiscal year the city budgeted for the Parks and

Recreation Department to clear 509 acres. For context,

San Diego has more than 40,000 acres of parkland

within its boundaries.

Living among the city’s brush

Scott, the veteran who lives in Balboa Park above

Florida Canyon, served in the Vietnam War. He’s 64

and said he’s been homeless for four decades. He said

he was born at the Navy’s old hospital in Balboa Park,

a short walk from where he now lives outdoors.

When asked how he would respond to residents

worried about the homeless setting fires in the parks

where they live, as he does, he said there are always

two sides.

“Are they going to come feed us? They ain’t going to

come down in the canyon and feed us. They ain’t going

to come down there and keep us warm,” Scott said.

21a

Tom Scott cooks Ramen noodles on a stove in Balboa

Park, Nov. 18, 2019. (Zoë Meyers/inewsource)

Scott said he uses a camp stove to cook with – a safer

option in his mind that allows for more control of the

flames. Others put wax on wood to make fires for

cooking, or use bark and paper bags for kindling, he

said.

When Scott sees people creating fires within the

canyon, he said he tells them to shut them down. Fires

in the park’s mulch are very dangerous, he said, and

will burn for a long time.

“Not all of us are bad people. Just because a couple

of homeless go out and do stupid things doesn’t mean

all of us are that way, but they treat us all the same,”

Scott said.

No one knows exactly how many homeless are living

in the city’s brush-filled canyons and parks. When the

annual point-in-time count is done on one night in

January, volunteers are not sent into most of these

22a

areas. It’s dark and a safety concern, said Kat Durant,

director of operations for the San Diego Regional Task

Force on the Homeless, which oversees the count.

This year’s count identified 5,082 homeless people in

the city, and more than half had no shelter. But

Durant cautioned that the numbers are considered an

undercount or minimum, because officials know they

don’t capture everyone.

Tiffanie Gibford holds her walking stick before going

into Florida Canyon in Balboa Park, Nov. 18, 2019.

Gibford has lived in Balboa Park for about six years

and says she feels safer living there than in a shelter.

(Zoë Meyers/inewsource)

23a

Tiffanie Gibford said she’s lived in Balboa Park for

about six years, and she’s seen the number of homeless

increase.

“It’s gotten worse,” she said.

But for now, it’s home to Gibford. She said she feels

safer there than in a shelter, and that homeless people

have campfires there every night.

* * *

24a

APPENDIX C

The San-Diego Union-Tribune

https://www.sandiegouniontribune.com/news/homeles

sness/story/2023-06-17/san-diegos-homeless-campingban-may-face-legal-challenge

San Diego’s homeless camping ban may

face a legal challenge. Could this case in

another city be a bellwether?

San Diego Mayor Todd Gloria address the City Council

to urge their support on the proposed Unsafe Camping

Ordinance on June 13. (Nelvin C. Cepeda/The San

Diego Union-Tribune)

A trial has been scheduled for San Francisco to defend

clearing homeless encampments. An attorney for a

national homeless rights group said San Diego’s

ordinance also could be challenged.

BY GARY WARTH

25a

SAN DIEGO – While the city of San Diego prepares

to begin enforcing a ban on homeless encampments, at

least one attorney says it could face a legal challenge,

and another California city already is fighting to

enforce its own camping prohibition.

In San Francisco, a judge has blocked police from

sweeping homeless encampments from side- walks

following a lawsuit filed by the Coalition on

Homelessness.

The city’s appeal to overturn the injunction was

denied in April, and a trial is set for April 2024.

That litigation challenges whether San Francisco is

abiding by the legal precedent established in a 2018

federal appeals court ruling, Martin v. Boise, that

limits a government’s ability to cite or arrest homeless

people for camping on public property. The ruling is

generally interpreted to mean that a city cannot cite a

person who has no other place to go, such as a shelter.

The San Francisco case was briefly brought up in

Tuesday’s marathon San Diego City Council meeting,

where the ordinance passed 5-4.

When Councilmember Kent Lee asked about the

pending litigation, Chief Deputy City Attorney Heather

Ferbert said the case offered little guidance in case law

since it remained undecided.

Ferbert said the case questions whether the Martin

v. Boise decision requires sufficient shelter to house

the entirety of the city’s unsheltered population in

order to enforce a no-camping law.

In San Diego, the city has argued it can cite an

individual who is camping on public land and refuses

an offer of a shelter. It does not require a specific

26a

number of vacant spots other than the one being

offered to the individual.

San Francisco has slightly more emergency shelter

beds than it has unsheltered people, with about 4,500

beds and about 4,400 people. The city of San Diego,

however, has nearly twice as many unsheltered people

as shelter beds — it funds about 1,700 shelter beds and

has about 3,300 unsheltered people.

While the San Francisco case is undecided, the City

Attorney’s Office wrote in a recent legal memo that

San Diego is on solid ground in its interpretation of

Martin v. Boise and can enforce its encampment ban.

In the legal opinion, the city attorney agreed that

cities may not prohibit people from sleeping on public

property if shelter is not available under the Martin

decision, but also said cities are allowed to cite people

for other behavior, such as blocking a sidewalk.

Critics of a homeless encampment ban held signs

showing their opposition to the proposal Tuesday in

the hours-long hearing before a divided City Council

27a

passed the measure. (Nelvin C. Cepeda/The San Diego

Union-Tribune)

The memo also states that the Martin decision does

not categorically prevent governments from prohibiting camping at particular times or in particular

locations.

That interpretation would appear to leave the door

open to banning camping in some places at all times,

regardless of shelter bed availability. In San Diego’s

case, such a ban would apply within two blocks of

schools, shelters, transit hubs, trolley stops, riverbeds,

waterfronts, beaches and city parks.

But the memo issued a caveat: “As the courts have

not established a test to evaluate the times or locations

where camping may be prohibited when shelter is not

available, Council should weigh the constitutional

rights of unsheltered individuals against the City’s

need to protect public health and safety in these

specific locations.”

“When considering whether to ban camping in

specific locations that would be applicable when

shelter is not available, our office recommends the

council’s decision be based on facts in the record

supporting a strong health and safety reason for the

ban,” Ferbert said Tuesday. “Council should also

consider the collective impact of the specific bans and

whether there is a place for people to go when shelter

is not available.”

Coleen Cusack, a lawyer who has defended homeless

people in San Diego, said she did not want to comment

on the city’s ordinance just yet but would be watching

the outcome of the San Francisco case for a possible

precedent.

28a

Will Knight, an attorney and decriminalization

program director for the Washington, D.C.-based

National Homelessness Law Center, said he sees

problems with San Diego’s ordinance and the city

attorney’s memo.

Knight notes that the memo says that to comply

with the Martin decision, the city must offer a shelter

bed that someone can actually accept based on their

individual needs. As an example, it says the city cannot

conclude it has complied if a woman is offered only a

top bunk she cannot access.

Knight agrees with the example but said the memo

doesn’t go far enough.

The city also should take a shelter’s location into

account when considering whether it is adequate, he

said. For instance, homeless parents may need a

shelter near their child’s school.

He also said that the memo shows that San Diego is

going further than other cities when considering a

blanket ban on encampments in certain areas because

of public safety concerns.

Knight was referring to a section of the memo that

reads: “Other jurisdictions have relied on Martin to

ban camping in specific locations when shelter is not

available, although this Office has not identified any

jurisdiction that has banned camping in a broad area

of the city.”

The memo states that Spokane had banned camping

underneath any railroad viaduct regardless of available

shelter, the city of Riverside banned camping in a

wildland area where houses meet or intermingle with

undeveloped wildland vegetation, and Santee banned

29a

camping in areas that threaten to discharge pollutants

or waste in the San Diego River corridor.

Knight said those examples are true public safety

issues, but San Diego is going beyond reason.

“The city of San Diego is taking it a mile further and

saying that Martin says we can do this whenever we

want, however we want,” he said.

“What are not legitimate public safety concerns?” he

said, raising a rhetorical question. “‘We don’t want

children to see homeless people.’ That’s the only reason

to keep them away from schools. Or ‘We don’t want

them in our beautiful parks.’”

Knight also pointed out another part of the memo

that calls the ordinance “defensible so long as it does

not unduly infringe upon the constitutional rights of

unsheltered individuals for the status of being

homeless and does not prohibit camping in a manner

that results in unsheltered individuals having no

alternative place to go.”

But the law, Knight argues, does just that, contending it criminalizes people for being poor, which is

unconstitutional.

“It’s something we’d certainly oppose, because it’s

definitely not a step in the right direction,” he said.

A second reading of the ordinance is expected to be

heard before the City Council later this month.

Under the motion approved by the council on

Tuesday, enforcement would not begin until 30 days

after the opening of a new city site that will have about

130 spaces for people to legally camp. It is expected to

open July 1.

* * *

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.