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

CITY OF GRANTS PASS, OREGON,

Petitioner,

v.

GLORIA JOHNSON, ET AL., ON BEHALF OF

THEMSELVES 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 AMICI CURIAE

INTERNATIONAL DOWNTOWN ASSOCIATION; CALIFORNIA

DOWNTOWN ASSOCIATION; CALIFORNIA BUSINESS

ROUNDTABLE; LA ALLIANCE FOR HUMAN RIGHTS; HISTORIC

CORE BUSINESS IMPROVEMENT DISTRICT PROPERTY

OWNERS ASSOCIATION; CENTRAL CITY EAST ASSOCIATION

OF LOS ANGELES; ARTS DISTRICT LA; HOLLYWOOD MEDIA

DISTRICT PROPERTY OWNERS ASSOCIATION; HOLLYWOOD

PROPERTY OWNERS ALLIANCE; DOWNTOWN SPOKANE

DEVELOPMENT ASSOCIATION; AND EAST SPOKANE BUSINESS

ASSOCIATION IN SUPPORT OF PETITIONER

MATTHEW DONALD UMHOFER

JEFFREY C. BRIGGS

ELIZABETH A. MITCHELL

UMHOFER, MITCHELL & KING LLP

767 S. ALAMEDA ST., SUITE 270

LOS ANGELES, CA 90021

(213) 394-7979

matthew@umklaw.com

elizabeth@umklaw.com

Briggs Law Office

3373 COUNTRY HOME CT.

THOUSAND OAKS, CA 91362

(323) 461-5400

jbriggs@jbriggslaw.com

Counsel of Record

Assisting Counsel

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .................................. 1

SUMMARY OF THE ARGUMENT ............................. 3

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

I.

The Consequences of the Martin-Grants Pass

Decisions Have Been Devastating to Cities ... 4

II.

Limitations on the Right-To-Camp are

Illusory ........................................................... 18

A. Martin Mandates “Counting” That is

Virtually Impossible .................................. 19

B. Voluntariness as a Distinguishing Factor

is a Mirage ................................................. 25

III. Martin-Grants Pass Has Hurt the Very

People It Intended to Help ............................ 31

CONCLUSION............................................................ 33

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Johnson v. City of Grants Pass,

72 F.4th 868 (9th Cir. 2023) ...........................passim

Marks v. United States,

430 U.S. 188 (1977)................................................ 29

Martin v. City of Boise,

920 F.3d 584 (9th Cir. 2019) ..........................passim

Patterson v. New York,

432 U.S. 197 (1977).................................... 29, 30, 31

Powell v. State of Texas,

392 U.S. 514 (1968)................................................ 29

Other Authorities

U.S. Const. amend. VIII .............................. 17, 28, 34

County of Los Angeles, Public Health, Mortality

Rates and Causes of Death Among People

Experiencing Homelessness in Los Angeles County:

2014–2021 (May 2023),

http://publichealth.lacounty.gov/chie/reports/Home

less_Mortality_Report_2023.pdf ......................... 31

Memorandum from Dee Williams-Ridley, City

Manager to the Honorable Mayor and Members of

the City Council, Eighth St. and Harriston St.

Encampment Efforts at 7–8 (Feb. 20, 2024),

https://berkeleyca.gov/sites/default/files/documents

/2024-02-20-

iii

%20Eighth%20St%20and%20Harrison%20St%20E

ncampment%20Efforts.pdf. ................................... 5

Marisa Kendall, It’s now significantly more deadly to

be homeless. Why are so many people dying? Cal

Matters.org (Feb. 29, 2024),

https://calmatters.org/housing/homelessness/2024/

02/homeless-mortality-report/ ............................. 14

Doug Smith, Los Angeles homeless count raises doubt

about accuracy, Is it time for a new way? Los

Angeles Times (Sept. 24, 2022, 5:00 AM),

https://www.latimes.com/california/story/2022-0924/doubts-raised-over-the-los-angeles-homelesscount-is-it-time-for-a-new-way ............................ 22

Jason M. Ward, Rick Garvey, Sara B. Hunter, Recent

Trends Among the Unsheltered in Three Los

Angeles Neighborhoods, RAND.org (May 4, 2022),

https://www.rand.org/pubs/research_reports/RRA1

8902.html#:~:text=Key%20Findings,September%2020

21%20to%20October%202022. ............................ 22

Video: Berkeley Homelessness Series (Downtown

Berkeley Ass’n (Aug. 14, 2023),

https://umklaw.sharepoint.com/:v:/s/UMKLaw/EY

Qrgmnl6IxIroK6B9q8FhUBLJWb66t_I1ibIR2tUak

Krg?e=Jb5VW1. ..................................................... 5

Video Series: Los Angeles Skid Row Series (Central

City East Association Operations Team (Feb. 28,

2024): Video 1,

https://umklaw.sharepoint.com/:v:/s/UMKLaw/Ebu

bZr_cbQVKsvhADna3j2kBpsy_MRKlfZP9DyUKqe

iv

vJ6Q?e=ZleZit; Video 2,

https://umklaw.sharepoint.com/:v:/s/UMKLaw/EZ

U4RQ3xK1MgiGeQNXYWQoBwK5N3PlpO4FUJNxPSBcwfg

?e=IQLeMe ; Video 3,

https://umklaw.sharepoint.com/:v:/s/UMKLaw/EZ2

NUvL5ENBrVLfRKwup88BFLOKocFvvlIyo0INvl0OmA?e

=xfO7aX; Video 4,

https://umklaw.sharepoint.com/:v:/s/UMKLaw/ETf

15Ggdn_BNiyOW54li5usBf5hSnGKelQ-TlA0gdCMtg?e=p5hjb1 ................................................ 12

1

INTEREST OF AMICI CURIAE 1

Downtowns throughout the United States, and

especially in the Ninth Circuit, are suffering under

the crushing weight of inhumanity both caused and

exacerbated by the Ninth Circuits’ recent decisions.

Homeless encampments are becoming entrenched,

and unlimited property accumulation obstructs the

free passage and use of the streets and sidewalks.

Encampments draw drug traffickers who target

persons experiencing homelessness, fueling drug use,

overdoses, human trafficking, property crimes, and

violent assaults, the victims of which are primarily

the unhoused. The multiplication of makeshift

structures, garbage, human waste, and other detritus

has led to disease outbreaks, fires, and lawlessness

that combine to cripple local businesses and render

neighborhoods unliveable for residents. Meanwhile,

multiple people living on the streets die every day in

major cities throughout the Ninth Circuit.

Amicus International Downtown Association

(“IDA”) is a trade association with voluntary

membership aimed at urban place management

organizations,

not-for-profit

quasi-government

entities managing city or town centers. IDA is a world

leader and champion for vital and livable urban

centers. Its members include business improvement

districts, community benefit districts, downtown

1 Rule 37 statement: All parties received timely notice of

amici intent to file this brief. No counsel for any party authored

this brief in whole or in part, and no person or entity other than

amici and its members made any monetary contribution to its

preparation or submission.

2

development authorities, town center managers, and

city agencies that oversee the development of the

municipalities’ city centers. California Downtown

Association, like IDA, is a representative membership

association with the primary purpose of exchanging

information pertinent to business districts and

formulating solutions to mutually shared problems,

including helping public-private partnerships manage

the increasingly difficult issues surrounding those

experiencing homelessness.

Amicus California Business Roundtable is a

California non-profit trade association focused on

California’s economy and the creation of jobs. Its

members are companies, including major employers

across the state, with a shared focus on improving

economic conditions in the state and in each

individual community in which they operate.

Amici Historic Core Business Improvement

District Property Owners Association, Central City

East Association, Hollywood Media District Property

Owners Association, and Hollywood Property Owners

Alliance are non-profit entities managing “business

improvement districts” (“BIDs”) formed under

California law. Similarly, amici Downtown Spokane

Development Association and East Spokane Business

Association manage BIDs formed under Washington

law. BIDs are supported by extra taxes property

owners impose on themselves in highly trafficked

areas needing more waste management, street and

sidewalk cleaning, public park maintenance, visitor

hospitality, and security services than the city

otherwise can provide. The BID amici operate where

3

all manner of business and residential neighbors live

cheek-by-jowl with schools, parks, museums, walking

paths and bikeways, and other public spaces. Many

BIDs provide outreach to unhoused individuals within

their district and have first-hand-experience and

knowledge of the difficulty in connecting humans in

desperate situations with needed services.

Amicus LA Alliance for Human Rights is a nonprofit coalition of unhoused, formerly unhoused, and

housed residents, property and business owners,

nonprofit service providers, and other community

members committed to ensuring local government

takes prompt and ongoing action to help homeless

individuals and to return public spaces to clean and

safe conditions for the benefit of all throughout Los

Angeles.

Amici are uniquely situated to provide the Court

with a ground-zero picture of the exceptionally

important real-life consequences of Grants Pass’

Eighth Amendment and class action decisions for

those required to deal with them.

SUMMARY OF THE ARGUMENT

The Ninth Circuit’s decision in Martin v. City of

Boise has backfired. It has elevated the legal risk to a

city on homeless issues to a level that has left local

government paralyzed, unwilling to enforce their own

laws for fear of legal reprisal. The consequence has

been nothing short of calamitous: encampments

reminiscent of countries facing civil war and societal

breakdown have proliferated in cities big-and-small,

4

replete with deadly diseases, violent conditions, and

death tolls.

Johnson v. Grants Pass (“Grants Pass”) has

adopted

and

extended

Martin’s

erroneous

constitutional analysis, placing a continued emphasis

on the impossible task of accurately counting beds and

people experiencing homelessness. And when a city

necessarily falls short in the equation, the MartinGrants Pass construct establishes a presumption that

every individual sleeping in public spaces is there

because he or she has no other place to go. This deeply

flawed presumption has placed an unmanageable

burden on cities, many of which have given up on

assistance and enforcement altogether because of the

quandary created by the Ninth Circuit’s Decisions.

However well-intentioned, the Martin-Grants Pass

paradigm ultimately harms most the people it was

intended to protect: those experiencing homelessness

who remain unassisted by stymied cities and troubled

communities.

ARGUMENT

I.

The Consequences of the Martin-Grants

Pass Decisions Have Been Devastating to

Cities

The homelessness crisis has been building for

decades; as mental health affliction and drug

addiction rates have risen, so has the cost of housing.

Support structures for those on the streets have been

stretched to the breaking point by burgeoning

demands and insufficient funding by local, state, and

federal governments. And in the last several years the

5

twin disasters of fentanyl explosion and the global

pandemic have devastated many urban centers.

The legal landscape demarcated set by the Ninth

Circuit in Martin v. City of Boise and most recently

extended in Johnson v. City of Grants Pass has caused

city governments, paralyzed by fear and confusion, to

withdraw services and attempts at regulation

altogether.

A compelling example of this dynamic is found in

Berkeley, California, population 124,321, where an

encampment has taken over several street blocks

around Eighth Street and Harrison Street, a

historically industrial area. 2 The City of Berkeley, a

progressive city by all standards, has worked

tirelessly within the bounds of Martin-Grants Pass to

address the significant health, safety, and

environmental concerns at the encampment,

including “dead animals, open food sources and

spoiled food, used uncapped drug needles, combustible

materials like flammable gas containers inside unsafe

wooden structures, bottles of urine, human feces,

animal feces, soiled clothing and sheltering material,

and other unidentifiable liquid and waste products” in

addition to blocked sidewalks and debris “extend[ing]

into the roadway, creating numerous concerning fire

and traffic safety hazards.” 3 For months, city

2 Video: Berkeley Homelessness Series (Downtown

Berkeley Ass’n (Aug. 14, 2023),

https://umklaw.sharepoint.com/:v:/s/UMKLaw/EYQrgmnl6IxIro

K6B9q8FhUBLJWb66t_I1ibIR2tUakKrg?e=Jb5VW1.

3 Memorandum from Dee Williams-Ridley, City

6

management tried to work with encampment

residents to build “good neighbor guidelines” to no

avail. Beds were offered in congregate shelters, but

most turned them down. 4 Berkeley then applied for

and received a $5 million state grant, matched it with

$5 million of its own general funds, to lease a motel

and contract with a service provider to provide a lowbarrier, service-rich, non-congregate option to offer to

residents. Once the beds were secured, the city spent

months engaged in “intricate legal, operational, and

tactical planning by staff across numerous city

departments” to implement a full closure of the

encampment with individual offers of shelter to each

resident to avoid running afoul of Martin. 5 Dozens of

people were involved in planning between the City

Manager’s office, Neighborhood Services, Police,

Public Works, Health, Housing and Community

Services Parks, Recreation, and Waterfront and

multiple service providers.

Yet on three separate occasions in late 2023 when

the City tried to move forward with its plan to close

the encampment and move residents elsewhere it was

met with “[c]ourt orders to cease, hours before or even

during the operation, effectively rendering planning

Manager to the Honorable Mayor and Members of the City

Council, Eighth St. and Harriston St. Encampment Efforts at

7–8 (Feb. 20, 2024),

https://berkeleyca.gov/sites/default/files/documents/2024-02-20%20Eighth%20St%20and%20Harrison%20St%20Encampment

%20Efforts.pdf.

4 Williams-Ridley Memo. at 7

5 Id. at 3.

7

efforts moot.” 6 Now enmeshed in two separate

lawsuits— both based on Martin— the city ultimately

decided to completely stop all efforts to resolve any

encampments in the area “until the Court proceedings

in the two pending cases . . . give us more insight and

direction.” 7

The effect of the city’s paralysis has been

devastating both to the unhoused individuals in the

encampment who continue to deteriorate and on the

business community surrounding the area.

Tom Parrish runs the Berkeley Repertory Theatre

which owns a theater production facility in the heart

of the 8th/Harrison encampment.

Since the

establishment of the encampment in the last few

years, the Theatre has faced an infestation of rats

eating cables and wiring, encampments catching fire

adjacent to the building, toxic spills, and significant

increases in criminal activity including assaults,

vandalism, theft, and at least one shooting which left

a bullet hole in one of the employee’s office windows.

Parrish recently observed a female resident of the

encampment in a wheelchair stuck in a crosswalk

gutter, unable to move, crying and shrieking. He

asked her if he could help, and her answer shattered

him: “No. There is no helping me.”

Barry Braden owns Fieldwork Brewing Company

in the 8th/Harrison area, which had attracted

customers from all over the bay area. Since the

encampment exploded in the last couple years, his

6 Id. at 4.

7 Id. at 1.

8

sales have been down 25%, and he is now unsure if he

can sustain the business. The company no longer

allows employees to close at night on their own; they

are required to walk to their cars in pairs. Recently a

woman came into the brewery asking for free food.

When Barry started to offer help, she left only to

return two minutes later with a 10-foot metal pole

swinging it at customers and employees; she was

chased out of the restaurant by customers and

ultimately arrested by police.

Without the ability to adjust its response based on

local considerations, and with courts stymying every

attempt to reinstill order into the area due to the

Martin-Grants Pass construct, the city of Berkeley has

had to abandon both businesses and unhoused

residents in the area of 8th/Harrison to crushing

conditions. And Berkeley is only a microcosm of what

is playing out throughout the Ninth Circuit in Los

Angeles, San Fransisco, Spokane, Phoenix, Honolulu,

Las Vegas, Seattle, Sacramento, Portland, and

elsewhere.

In fiscal year 2021/2022 Sacramento County spent

$181 million to provide service and support for people

experiencing homelessness, yet the area still saw a

67% increase in homelessness from 2019-2022. Below

9

is a picture of 10th Street and J in Downtown

Sacramento:

In the Skid Row area of Los Angeles, Central City

East Association’s Clean and Safe teams responded to

32 homeless-related fires in 2014. Ten years later, in

2024, they had 259—nearly ten times the number.

Trash removal went from 1,780 tons of waste in 2019

to 3,190 in 2023. Nearby, in LA’s Historic Core

District, a young mom walked her four-year-old child

to the market when a mentally ill woman who had her

own children taken away grabbed the four-year-old;

the mom had to pick up her child and quickly move

away. One block later the mom and child passed a

person on the sidewalk writhing and screaming under

a blanket. The next block a man yelled

indistinguishably in Spanish as he pushed a small

10

cart. The day before, the mom had to shield the child

from a man masturbating at a bus depot.

Below are images captured by Clean and Safe

teams in Skid Row during recent intense storms in the

area in January, 2024:

11

12

Central City East Association’s Operations Team

recently recorded video of the conditions on

Wednesday, February 28, 2024: 8

San Fransisco’s Tenderloin District has the

highest concentration of children in San Fransisco,

many of whom from migrant families. Yet the

8 Video Series: Los Angeles Skid Row Series (Central

City East Association Operations Team (Feb. 28, 2024):

Video 1,

https://umklaw.sharepoint.com/:v:/s/UMKLaw/EbubZr_cbQVKs

vhADna3j2kBpsy_MRKlfZP9DyUKqevJ6Q?e=ZleZit;

Video 2,

https://umklaw.sharepoint.com/:v:/s/UMKLaw/EZU4RQ3xK1MgiGeQNXYWQoBwK5N3PlpO4FUJNxPSBcwfg?e=IQLeMe ;

Video 3, https://umklaw.sharepoint.com/:v:/s/UMKLaw/EZ2NUvL5ENBrVLfRKwup88BFLOKocFvvlIyo0INvl0OmA?e=xfO7aX ;

Video 4,

https://umklaw.sharepoint.com/:v:/s/UMKLaw/ETf15Ggdn_BNi

yOW54li5usBf5hSnGKelQ-TlA0-gdCMtg?e=p5hjb1.

13

Tenderloin is also the area’s epicenter of crime, drug

use, and homelessness. Small children and elderly

must walk in the street around tents completely

blocking the sidewalk:

The private sector—largely in the form of business

and residential groups exemplified by amici—has

stepped into the void to try to manage their corner of

the public realm to the extent possible. Residential

and Business Improvement Districts (BIDs), by

necessity, do a great deal to support homeless

residents in their districts and guide them toward

shelter and housing.

Block-by-Block is an

organization that provides Ambassador Services to

various BIDs, place management organizations, and

municipalities nation-wide, including sanitation,

security, and outreach to the unhoused community

within a BID district. They currently operate with

approximately 3,000 employees in 100 cities

nationwide, with 37 programs in the Ninth Circuit.

14

Outreach specialists with Block-by-Block work to

build a rapport with unhoused individuals to connect

them to services in the area or otherwise assist in

bringing each person inside. But many don’t want to

engage in services if they have the option to stay

where they are. In polling its offices nationwide,

Block-by-Block estimates 51.75% of unhoused

residents in their district are there by choice, meaning

they will not accept shelter or services when offered.

This is true despite months-to-years of trust-building

by specialists. That number increases even further

when the offers are exclusively for congregate shelters

rather than ones that offer more privacy like motel

conversions. As one BID member put it: “There are

carrots and there are sticks. And carrots don’t work if

the person isn’t hungry.”

Nationwide, the number of homeless individuals

has increased, though nowhere as dramatically as in

California which hosts 28% of the nation’s homeless.

Mortality rates (i.e. the rate at which homeless

individuals are dying) is up an “astonishing” 238%

from 2011 to 2020. 9 Block-by-Block statistics show

the same trend with a marked increase in outreach

contacts, panhandling calls, and bio-hazard cleanup

9 Marisa Kendall, It’s now significantly more deadly to

be homeless. Why are so many people dying? Cal Matters.org

(Feb. 29, 2024),

https://calmatters.org/housing/homelessness/2024/02/homelessmortality-report/.

15

(needles and human waste). In particular outreach

referrals have increased by 1,468%.

Block-By-Block Homelessness Response

200,000

150,000

100,000

50,000

0

2019

2020

2021

2022

Bio-Hazard Clean Up (Human)

2023

Bio-Hazard Needle

Outreach Contact

Calls for Services Received

Outreach Referrals

Camping/Sleeping

All Panhandling Aggressive/Passive/Regular

In practical terms, the Martin and Grants Pass

decisions have created a zone of immunity from

enforcement of any quality-of-life laws whenever the

subject is unhoused. The proliferation of litigation

capitalizing on Martin has bogged down response

efforts and perversely disincentivized cities from

doing anything more than the bare minimum damage

control. The product of this judicial meddling has

been an explosion in encampments, a kibosh on

public-realm enforcement, and culture of fear around

the use of enforcement as a tool to address the crisis.

16

In the laboratory of democracy, this experiment has

failed.

Standing in stark contrast to Berkeley, California

is Houston, Texas (not subject to the Martin-Grants

Pass confines) which has seen a 61% decrease in

overall homelessness since 2011.

By pairing

significant housing and shelter assistance with “camp

decommissioning,” Houston has tackled the most

difficult encampments and helped move tens of

thousands of people inside. The key to making it

work, according to community leaders, was local

control which permitted citizens and elected officials

to apply local solutions to local needs; sometimes that

meant decommissioning without requiring offers of

housing to every single resident. Unshackled by

Martin or Grants Pass, Houston doesn’t have to

navigate a Byzantine set of criteria like whether an

offer of shelter was “adequate” or investigate whether

a person is “involuntarily homeless,” and can instead

focus on using all means at its disposal (including the

enforcement of laws) to move encampment residents

out of unhealthy and unsafe situations.

Austin, Texas, a city equally known for its

progressive values, demonstrates the full spectrum of

difficulty around this issue. In 2019, in direct

response to the Martin v. City of Boise decision, Austin

rescinded its anti-camping laws for fear of lawsuits.

Austin’s

unsheltered

population

exploded,

particularly in the downtown area, crime spiked,

narcotics proliferated, and business and tourism

dropped. In a citizen-led-backlash in 2021, a local

election referendum reinstituted the anti-camping

17

ordinance passed by a strong margin. Since then,

Austin has had tremendous success with its “HEAL”

(Housing-focused Encampment Assistance Link)

initiative, pairing unhoused individuals with services

and shelter, and seen a significant increase in overall

shelter and housing stock. Critically, there has been

no significant increase in citations or arrests, but

there has been a decrease in the number of

unsheltered individuals from 1,574 in 2020 to 1,266 in

2023, with reductions of nearly sixty percent in

downtown Austin. The use of enforcement is judicious

and paired with minimum notice and an opportunity

to comply. In reflecting on the shift, local operators

note that when ordinances were abolished, intense

efforts to help people also flatlined. Now that

regulation of public spaces and quality-of-life laws

have returned, and the city has flexibility to respond

as needed, there is a significant effort to engage

unhoused individuals.

Comparing the experiences of Houston, Berkeley,

and Austin demonstrates the damage the MartinGrants Pass scheme has done to local cities’ ability to

react and respond appropriately in balancing the

needs of all citizens living within its borders, housed

and unhoused. Cities need a full range of tools to

address the homelessness crisis as appropriate in

their own local communities. By removing one of the

most powerful tools (enforcement of laws), the Ninth

Circuit has stripped West Coast cities’ ability to

regulate their own areas for the benefit of all persons.

The imposition of a constitutional barrier based on a

tenuous Eighth Amendment theory robs communities

18

of the power to exercise their humanity in addressing

the needs of their homeless residents and the

community at large.

II.

Limitations on the Right-To-Camp are

Illusory

The practical impact of purportedly “narrow”

rulings espoused in Martin and Grants Pass is

anything but narrow. The holdings in those cases

have handcuffed cities by ignoring the reality of

homelessness and how cities address it. Under the

Martin-Grants Pass regime, an officer, prior to every

single encounter, must understand the exact number

of homeless individuals within city limits and the

exact number of “available” shelter beds. Martin v.

City of Boise, 920 F.3d 584, 617 (9th Cir. 2019) (“[S]o

long as there is a greater number of homeless

individuals in a jurisdiction than the number of

available beds in shelters, the jurisdiction cannot

prosecute homeless individuals for involuntarily

sitting, lying, and sleeping in public.”) (citations

omitted). If the city has a shelter-bed-to-homelessindividual deficit, the officer presumptively may not

enforce anti-camping laws unless the officer proves

that the individual is “voluntarily” homeless which

requires the officer to either conduct an extensive,

impractical, and likely fruitless investigation or

alternatively offer a single shelter bed and wait for the

response. Id. at 617 n.8 (“[O]ur holding does not cover

individuals who do have access to adequate temporary

shelter, whether because they have the means to pay

for it or because it is realistically available to them for

free, but who choose not to use it.”); Johnson v. City of

19

Grants Pass, 72 F.4th 868, 893 (9th Cir. 2023) (“[A]

person cannot be prosecuted for involuntary conduct

if it is an unavoidable consequence of one’s status.”).

A judicial opinion focused on the unfairness of

enforcement might have made sense in theory, but in

practice, the theory falters. A review of the issues

encountered by outreach workers and others

employed by amici demonstrates the fallacy of such a

notion.

A.

Martin Mandates “Counting” That is

Virtually Impossible

The Martin-Grants Pass scheme presupposes that

cities know the exact number of homeless people

within its borders and the exact number of shelter

beds which could be counted as “available.” But in the

analog world of city government, that presumption

defies reality. The federal government, through the

Department of Housing and Urban Development

(HUD), requires that homeless individuals in each

jurisdiction be counted every other year in January as

a condition for certain homeless-related funding (this

is known as the “point in time” or PIT count). In larger

cities like Los Angeles, those counts take place over

the course of several days and require thousands of

volunteers, extensive training, and security.

“Accurate” counting is a myth, and most city efforts

to comply with the HUD-mandated count relies

largely on algorithms (e.g., 1.6 people assumed for

every tent, 2 people assumed for every van, etc.) and

extrapolation from certain areas physically counted to

those areas which are completely ignored.

20

Unsheltered people wrapped in blankets under a bush

or behind a dumpster are often missed completely.

Rooftops and remote areas go largely uninspected.

The PIT count is conducted in the winter, when many

shelters are open that are otherwise closed during the

summer, and when people are more likely to find a

temporary space inside where they are safer from the

elements.

The Los Angeles Homeless Services Authority

(LAHSA) runs the PIT count in L.A annually by

choice. Several of the amici BIDs participate in that

effort, and also do their own periodic counts on a

smaller scale at various times throughout the year.

The LA count takes several months to organize

because thousands of volunteers need to be recruited

by participating organizations like BIDs and other

local non-profits, training needs to be arranged,

recordkeeping needs to be prepared, law enforcement

needs to be organized, and some property owners need

to be notified for safety and access. “Counting” the

homeless for any city even just once a year is an

enormous undertaking.

“The last official count for which I volunteered was

the culmination of more than two months’ worth of

advance planning,” advises one volunteer counter in

the Hollywood area of Los Angeles. Once volunteers

gathered, they were assigned to a team, given training

about how to count and estimate, given safety

warnings, identification vests and flashlights, and

paperwork/computer pads for collecting information.

“I have volunteered for several of these counts over the

years, and I didn’t see a lot of familiar faces; most

21

people are willing to do it only once because it is a

huge commitment.”

The methodologies of all these counts are

similar: in the Hollywood area of Los Angeles, for

example, community volunteers, BID employees, and

BID vendor employees such as Block-by-Block teams

gather on the day of the count to divide up the areas

in which the count will occur, and teams of 2-4 then

begin a physical survey of each area, gathering again

at the end of their respective inspections to share the

collected information. The count typically begins in

the early evening and continues until late at night,

based on the assumption that most homeless persons

will be at or near where they sleep when evening

arrives. Some teams will cover an area entirely on

foot, others will cover an area by vehicle and exit as

homeless persons are observed so that parks and open

space areas are covered as well as city streets and

alleys. Vehicles, tents, and other temporarily erected

structures are not entered due to privacy and safety

concerns—anyone encountered outside of such a place

is asked how many are inside, and absent other

evidence counters are directed to list a tent or vehicle

size and are told an algorithm will be used to assign a

“count” to same. Teams assigned to city streets also

are told not to venture onto rooftops or other secluded

areas that may pose a danger to the counter, even

when homeless are known to encamp at such

spots. Similarly, park and open space areas are

counted only insofar as tents or other evidence of

encampments are observable from an adjacent

roadway. Inconsistencies between teams and where

22

they choose to look and how well they count only

further compound the already questionable degree of

accuracy.

“A not-insignificant number of people experiencing

homelessness that we meet on the streets during the

day have found rooftops and other inconspicuous or

difficult-to-reach places to encamp at night,” reports a

member of an amicus BID “safe” team. “Access to

many of those places, especially at night, is just plain

dangerous, and so the counters miss virtually all of

the people hiding there.” Another recent count

volunteer reports finding detritus associated with

encampments but without anyone present at the time

of the count—“We just had to guess about whether it

was one person there or several due to the hoarding.

I have seen mounds of garbage and several shopping

carts and even multiple tents that I know are

associated with only one person, so there is no good

way to tell how many might actually be sleeping at a

given encampment at a given time.”

A recent RAND study documented at least an 18%

count deficiency in Los Angeles’ 2022 count in three

separate geographic areas. 10 Other “micro” counts

within Los Angeles’ varied communities similarly

reflected wide variance from the official 2022 count. 11

10 Jason M. Ward, Rick Garvey, Sara B. Hunter, Recent

Trends Among the Unsheltered in Three Los Angeles

Neighborhoods, RAND.org (May 4, 2022),

https://www.rand.org/pubs/research_reports/RRA18902.html#:~:text=Key%20Findings,September%202021%20to%20

October%202022.

11 Doug Smith, Los Angeles homeless count raises doubt

23

During the 2024 count, widespread technical failures

were reported in Los Angeles of people’s devices

failing to upload or sync.

The challenges of counting persons experiencing

homelessness are mirrored in the amorphous effort to

count “adequate” and “available” shelter beds. Even

if a city has a state-of-the-art real time bed-counting

system (which most do not), what might be “adequate

and available” to one might not be “adequate and

available” to another person depending on

accessibility, time expired on emergency shelter

vouchers or other, and other individual considerations

(such as pets, property, and privacy—also known as

the “three Ps”). Some shelter beds are set aside for a

specific purpose: domestic violence survivors,

veterans, families, or single men.

Shelter beds also come in myriad forms, from onenight hotel room vouchers to temporarily converted

gymnasiums, to commandeered motels, and to nonprofit centers established for the specific purpose—

and there is no centralized system able to corral the

exact number of empty beds on any given

night. Moreover, those assigned a bed usually are free

to come and go, and typically do. It is virtually

impossible to know how and where each available bed

about accuracy, Is it time for a new way? Los Angeles Times

(Sept. 24, 2022, 5:00 AM),

https://www.latimes.com/california/story/2022-09-24/doubtsraised-over-the-los-angeles-homeless-count-is-it-time-for-a-newway.

24

might be on any given night without a tremendous

amount of work.

One amici outreach provider described the

arduous task as follows: “It takes several calls to local

bed providers to find even just one open bed on a given

night. Then we connect the homeless client to that

provider, and that requires paperwork that many of

our clients need substantial help to complete. Then

we get the client to the bed, and often we first have to

go find the client which itself can be difficult. There

are a number of beds going empty each night, and

some clients get to a provider only find “their” bed

already has been taken. It can take hours just to

connect one of our homeless clients to one bed for one

night—sometimes it takes days.”

And even if an accurate number of beds and

accurate number of people could be identified on a

single day of the year, those numbers vacillate widely

throughout the year because unhoused individuals, by

their very transitory nature, move in, out of, and

between jurisdictions. Thus, it is entirely possible

that the PIT count in January could reflect a shelterto-homeless surplus which, under Martin-Grants

Pass, would mean enforcement of anti-camping laws

could

happen

citywide

without

individual

determinations, but soon thereafter (through an

influx of individuals or simple miscounting of beds or

people) an involuntarily homeless individual is

lawfully arrested despite having other no shelter

options or any other lawful place to be.

In a city the size of Boise, Idaho (pop: 237,446; PIT

~2,298) or Grants Pass, Oregon (pop: 39,364; PIT

25

~600) such an equation may be possible (though

unrealistic), but for larger cities like Los Angeles,

California (pop: 3,959,657; PIT ~46,260) and San

Diego, California (pop: 1,382,000; PIT ~10,264) such

an equation is impossible to affix.

B.

Voluntariness as a Distinguishing

Factor is a Mirage

Should a city be in a shelter-deficit, as nearly all

cities are, the homeless population within the city

boundaries (itself an arbitrary distinction) are

presumed to all be “involuntarily homeless”—that is,

an individual who is without “a single place where

they can lawfully be”—unless a peace officer seeking

to enforce some quality-of-life law can prove

otherwise. Martin, 920 F.3d at 617. Again, this

reflects practical misunderstanding of both the

unhoused population and the efforts of those working

to bring them inside.

During the annual PIT count, volunteers are

encouraged to collect a variety of information from the

people experiencing homelessness they are able to

count, including age, date of arrival in the city, job and

housing history, family information, and access to/use

of services. Only a small fraction of those who are

counted will agree to even speak to a counter. And

while some of the information collected—even if

accurate—might help gauge whether a given

individual is camping in a public space “voluntarily,”

few if any counters are qualified to make that

26

judgment at all, let alone in a manner consistent with

another counter’s assessment.

A Venice, California area non-profit employee

reports that she has volunteered for several counts,

and “only a handful of the dozens of people I counted

were willing to provide our team with information

about themselves. I have low confidence that those

who did provide information were entirely truthful,

particularly regarding how long they had been on the

street, where they came from, and the reason they

were on the street in the first place. In terms of the

sort of assistance they are getting or have been

offered, I encountered only one who was willing to

admit he was there just because it was on the beach

and cheaper than a hotel or apartment, and because

nobody was kicking him off the beach. But I know

others for whom this is true, I have seen and talked to

them at other times—I think not many are willing to

admit it, and especially when a cop is around while we

are doing the count.”

In Westwood, California, one Block-by-Block

outreach specialist notes: “Despite consistent

outreach efforts and the provision of information

regarding shelters and housing resources, only

approximately 10% of individuals have expressed

willingness to pursue these options.”

Another

specialist in Cleveland, Ohio observed “There is about

49% of the population that is voluntary and wants to

be outside because they do not have rules and can

spend their money on what they want.” And in

Nashville, Tennessee another outreach specialist

estimates, “Of the 80-100 people that we see each day

27

I’d say that 45-55% of those people are not interested

in service of any kind. The majority of the other

people that we see on the streets may want housing

but because of severe mental health and substance

abuse issues obtaining that housing is almost

impossible.”

These sentiments are reflective of

estimates throughout the country. Of all the central

city areas who responded to an amici national survey

request, the average response concluded that roughly

51.75% of the unhoused individuals encountered by

outreach specialists are voluntarily unhoused, and

another 48.25% either would take shelter if offered or

could not due to severe mental health or substance use

disorder issues:

There are also many success stories that outreach

workers are eager to share:

-

In Pasadena, CA, John M. had been unhoused

since 2019 due to severe mental health issues and

28

drug use. Over the course of several years, one

outreach worker was able to convince him to

accept health and he now lives in an apartment

just a couple blocks away.

-

In Birmingham, AL, Mrs. Mary was a married

woman who had separated from her husband but

without resources to pay for her own housing

ended up on the street. Nearby shelters were full,

and she was exhausted and depressed. After

several conversations, the outreach worker was

able to reunite her with her estranged husband

who was overjoyed to have her home. The two are

still together and very much in love.

The work of connecting to an individual living on

the street, gaining their trust, learning their story,

and understanding the resources they might have

(family support, social security payments, etc.) takes

days, weeks, months, or even years. It is not

something a police officer could discover in a twominute conversation (even if one could assume an

unhoused individual would be honest with the officer

which, in amici’s experience, is a strong assumption).

And for a city like Los Angeles whose unhoused

individuals outnumber uniformed police officers 10to-1, the task of investigating every homeless

individual’s “voluntary” status would incapacitate the

department.

Should this Court uphold the Martin-Grants Pass

Eighth Amendment “cruel and unusual” analysis as

applied to involuntary homeless individuals, amici

urge the Court to adopt Judge Collins’ view that

Powell, at most, provides that involuntariness is a

29

“case-specific affirmative defense to application of the

statute.” Grants Pass, 72 F.4th at 898 (Collins, J.,

dissenting). This is a fair reading of Powell under the

Marks “narrowest grounds” doctrine. Marks v. United

States, 430 U.S. 188, 193 (1977)) (“When a fragmented

Court decides a case and no single rationale

explaining the result enjoys the assent of five Justices,

‘the holding of the Court may be viewed as that

position taken by those Members who concurred in the

judgments on the narrowest grounds[.]”) In Powell,

Justice White, providing the fifth vote, concurred in

the judgment because “Powell showed nothing more

than that he was to some degree compelled to drink

and that he was drunk at the time of his arrest. He

made no showing that he was unable to stay off the

streets on the night in question.” Powell v. State of

Tex., 392 U.S. 514, 553-54 (1968) (White, J.,

concurring). As noted by Judge Collins, “the context

of the [Powell] case was precisely the extensive

affirmative defense that Powell presented at trial,

including the testimony of an expert.” Grants Pass, 72

F.4th at 907 n.9 (Collins, J., dissenting).

This reading resonates with this Court’s

jurisprudence. “[P]reventing and dealing with crime

is much more the business of the States than it is of

the Federal Government, and [] we should not lightly

construe the Constitution so as to intrude upon the

administration of justice by the individual States.”

Patterson v. New York, 432 U.S. 197, 201 (1977)

(citation omitted). Thus, it is “normally ‘within the

power of the State to regulate procedures under which

its laws are carried out, including the burden of

30

producing evidence and the burden of persuasion.’” Id.

(citation omitted). Affirmative defenses which seek to

excuse or justify conduct, but do not negate an

essential element of the crime, do not offend

constitutional due process limits and the prosecution

need not prove the nonexistence of recognized

mitigating circumstances. Id. at 209 (“If the State . . .

chooses to recognize a factor that mitigates the degree

of criminality or punishment, we think the State may

assure itself that the fact has been established with

reasonable certainty. To recognize at all a mitigating

circumstance does not require the State to prove its

nonexistence in each case in which the fact is put in

issue, if in its judgment this would be too cumbersome,

too expense, and too inaccurate.”).

None of the statutes at issue in Grants Pass refer

in any way to “voluntary” or “involuntary” conduct,

but rather collectively criminalize the mere act of

sleeping on public sidewalks, streets, alleyways,

parks, benches, and other publicly-owned property.

Grants Pass, 72 F.4th at 876. Thus, by proving the

act, the prosecution has met the elements; if the

constitution recognizes the mitigating circumstance of

lack of fault (involuntariness), that is properly

presented as an affirmative defense to conviction

rather than an element the prosecution (or citing

police officer) must prove the nonexistence of.

Patterson, 432 U.S. at 209.

From a practical standpoint, recognizing

involuntariness as an affirmative defense to

conviction rather than an element to the crime would

return control and flexibility to the local government

31

seeking to balance use of its public spaces for all

persons while still recognizing the right of person to

be free from punishments for acts which are not under

their control. Because after all, “preventing and

dealing with crime is much more the business of the

States than it is of the Federal Government, and [the

courts] should not lightly construe the Constitution so

as to intrude upon the administration of justice by the

individual States.” Id. at 201 (citation omitted).

III.

Martin-Grants Pass Has Hurt the Very

People It Intended to Help

In Los Angeles, six people experiencing homeless

die every day. 12 The Martin-Grants Pass regime

encourages and emboldens individuals who could

benefit from shelter and services to stay in unsafe and

unhealthy conditions. In so-doing, it allows criminal

elements to prey upon the most vulnerable who need

help rather than abandonment. In Berkeley, officials

attempting to abate serious conditions on the street

had to leave crucial beds open for months pursuant to

court order, all for individuals whom they knew would

not accept the offer anyway, just to “check the legal

box.”

In Los Angeles’ Skid Row, where 5,000 people

experiencing homelessness are packed into 50-square

blocks, it is impossible for outreach workers to

separate out those who are choosing to make a life on

12 County of Los Angeles, Public Health, Mortality Rates

and Causes of Death Among People Experiencing Homelessness

in Los Angeles County: 2014–2021 (May 2023),

http://publichealth.lacounty.gov/chie/reports/Homeless_Mortalit

y_Report_2023.pdf.

32

the streets from those who are desperately seeking

shelter and services. Everyone encountered who

claims interest in housing or shelter goes onto a list;

the needier the person (including significant mental

illness or drug addiction) the higher they rise on the

list. The result is that the healthier an individual is

(i.e. more likely to recover), the longer that individual

must stay on the street and suffer until they finally

become sick enough to come inside. The irony is that

the higher a person is on the list, the less likely they

are to accept shelter either because they don’t actually

want it or because their mental illness or addiction

prevents them from reasonably accepting it. Critical

beds stay empty for months as outreach workers

methodically move down the list trying to connect and

cajole acceptance. Meanwhile, Martin/Grants Pass’

zone of immunity from enforcement has allowed the

number of individuals on the street to increase,

diluting the valuable limited resources the city and

county have to offer.

Wenzial Jarrell, a veteran with shrapnel still

embedded in his torso, lived on the streets in Skid Row

for over six years as offer-after-offer of shelter or

housing fell through or was given to someone sicker

than him. During his time living unsheltered he

witnessed murders, assaults, human trafficking,

weapons and narcotics sales, and more flea-ridden

rats than he could count. Maria Diaz, a domestic

violence survivor, landed in Skid Row in 2017 when

she had no other place to go. She spent five years on

the streets, suffering daily threats of sexual and

violent assault, before she finally was able to get into

33

a shelter outside of the area. Both Wenzial and Maria

would have readily accepted shelter but never found

themselves high enough on the list in an over-clogged

system.

The Martin-Grants Pass scheme hamstrings BID

and other non-profit organizations’ efforts to get

people into shelter and off the streets for the benefit

of both the unhoused and housed communities. Cities

need a range of tools to address the homelessness

crisis, which may at times include the need for

enforcement in dynamic and flexible ways which

Martin-Grants Pass prevents.

No doubt these

decisions were well-intentioned as a means to protect

some of our country’s most vulnerable citizens, but the

practical effect has made things far worse for

everyone, including and especially those without

shelter.

CONCLUSION

Cities, residents, businesses, and unhoused

individuals alike are suffering under the crushing

weight of the Martin-Grants Pass construct.

It

deprives local governments of the essential tool of

enforcement while making it nearly impossible to

connect shelter-resistant homeless to critical services.

Conducting the bed and homeless population counting

that Martin/Grants Pass requires is all but

impossible, as is readily determining whether an

individual is on the streets voluntarily or

involuntarily. The construct taxes cities with

impossible standards, disincentivizing or sometimes

totally preventing any efforts at all to assist those on

34

the street. As unhoused individuals stay on the streets

longer, they are irreparably psychologically and

physically affected; crime increases, diseases spread,

homelessness becomes entrenched, acts of violence

become commonplace, and rampant drug use further

compounds the challenges facing the unhoused,

making it nearly impossible for people to move out of

homelessness and gain economic stability. The blunt

instrument of the Eighth Amendment has backfired,

and the essential enforcement powers of local

governments must be restored to allow cities and

counties to address the crisis of homelessness with

authority and urgency.

Respectfully Submitted,

Date: March 4, 2024

/s/ Matthew Donald Umhofer

Matthew Donald Umhofer,

Counsel of Record

Elizabeth A. Mitchell

Umhofer, Mitchell & King LLP

767 S. Alameda St., Suite 270

Los Angeles, CA 90021

(213) 394-7979

matthew@umklaw.com

elizabeth@umklaw.com

Counsel for Amici