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 briefFeb 29, 2024

Ask Donna

What actually matters in this document.

Text

No. 23-175

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------CITY OF GRANT’S PASS, OREGON,

Petitioner,

GLORIA JOHNSON AND JOHN LOGAN,

ON BEHALF OF THEMSELVES AND

ALL OTHERS SIMILARLY SITUATED,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE

CALIFORNIA STATE SHERIFFS’ ASSOCIATION,

CALIFORNIA POLICE CHIEFS ASSOCIATION,

WASHINGTON ASSOCIATION OF SHERIFFS &

POLICE CHIEFS, CALIFORNIA CITIES OF

ENCINITAS, LA HABRA, PLACENTIA, SAN JUAN

CAPISTRANO, WHITTIER, WEST COVINA AND

WESTMINSTER IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------DENISE LYNCH ROCAWICH

Counsel of Record

JAMES R. TOUCHSTONE

JONES MAYER

3777 N. Harbor Blvd.

Fullerton, CA 92835

(714) 446-1400

dlr@jones-mayer.com

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

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

STATEMENT OF INTEREST OF

AMICI CURIAE................................................

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

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

Homelessness is a Critical Issue in California/Washington Policing Made Exponentially Worse by Martin .........................

A. California Law Enforcement Agencies

Receive Scores of Homeless-Related

Calls for Service .................................. 15

B. Homelessness Has A Significant Impact on Crime Rates ............................ 19

C. Traditional Police Safety Concerns

Are Accompanied by Concerns of Disease and Infection ............................... 22

D. Encampments Provide Dependable

Access to Illegal Drugs Leading to Disastrous Consequences ......................... 29

II.

This Court has Long Recognized the Need

for Workable Constitutional Standards,

Which Martin and Grants Pass Certainly

do not Provide ............................................ 32

CONCLUSION..................................................... 37

TABLE OF AUTHORITIES

Page

CASES

Brecht v. Abrahamson, 507 U.S. 619, 123 L. Ed.

2d 353, 113 S. Ct. 1710 (1993) ..................................2

Christal v. Police Com. of San Francisco, 33 Cal.

App. 2d 564 (Cal. App. 1939).....................................3

Johnson v. City of Grants Pass, 50 F.4th 787 (9th

Cir. 2022), amended on denial of reh’g, 72

F.4th 868 (9th Cir. 2023) ............... 4-12, 15, 22, 31-37

Martin v. City of Boise, 902 F.3d 1031 (9th Cir.

2018), amended on denial of reh’g, 920 F.3d

584 (9th Cir. 2019) ......... 4-9, 11-13, 15, 17, 22, 31-37

New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860

(1981) .......................................................................37

Smith v. Freland, 954 F.2d 343 (6th Cir. 1992) ..........32

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VIII ...................................... 4, 5, 34

STATUTES, RULES AND REGULATIONS

CAL. PENAL CODE § 13519.64(a)..................................20

SUP. CT. R. 37.6 ............................................................1

iii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

2022 Greater Los Angeles Homeless Count Deck,

Los Angeles Homeless Services Authority

(Jan. 24-26, 2023) available at https://www.

lahsa.org/documents?id=6545-2022-greaterlos-angeles-homeless-count-deck.pdf .....................10

2023 Greater Los Angeles Homeless Count Deck,

Los Angeles Homeless Services Authority

(Jan. 24-26, 2023) available at https://www.

lahsa.org/documents?id=7232-2023-greaterlos-angeles-homeless-count-deck.pdf .....................10

Anthony Rivas, LAPD Officers Being Treated for

Typhoid Fever, CBS NEWS, May 30, 2019

available at https://abcnews.go.com/Health/

lapd-officers-treated-typhoid-fever-typhussymptoms/story?id=63371616 ................................23

Ashley Sharp, Neighbors say out-of-control drug

use at Sacramento park’s homeless encampments is dangerous, frightening, CBS NEWS,

July 17, 2023 available at https://www.cbs

news.com/sacramento/news/neighbors-ofsacramentos-stanford-park-say-homelessencampment-drug-use-is-out-of-control/ ............29

Bamrah, S., et al., Tuberculosis among the homeless, United States, 1994–2010, INTERNATIONAL

JOURNAL OF TUBERCULOSIS AND LUNG DISEASE

17 (2013) ..................................................................23

TABLE OF AUTHORITIES – Continued

Page

Benjamin Oreskes and David Zahniser, Doug

Smith, L.A. plans nearly $1 billion in spending

to address homelessness under Garcetti plan,

LOS ANGELES TIMES, April 19, 2021 available

at https://www.latimes.com/homeless-housing/

story/2021-04-19/los-angeles-will-increasebudget-for-addressing-homelessness ..................13

Brenda Gazzar, LAPD union calls for ‘urgent

action’ on Hepatitis A vaccines after officer

contracts virus, DAILY NEWS, November 2,

2017 available at https://www.dailynews.com/

2017/11/02/lapd-union-calls-for-urgent-actionon-hepatitis-a-vaccines-after-officer-contractsvirus/ ........................................................................25

California Dep’t of Health, Human Flea-Borne

Typhus Cases in California Vector-Borne Disease Section (2001-2019) available at https://

www.cdph.ca.gov/Programs/CID/DCDC/CDPH

%20Document%20Library/Flea-borneTyphus

CaseCounts.pdf .......................................................23

Capt. [fmr. Lt.] Jeffery Puckett, Orange County

Sheriff’s Department Internal Memo re Santa

Ana Riverbed, October 26, 2017 p. 12 available

at https://1ccaxf2hhhbh1jcwiktlicz7-wpengine.

netdna-ssl.com/wp-content/uploads/2017/10/

OCSD_Internal_Memo_SAR_ Update.pdf ....... 21, 27, 29

TABLE OF AUTHORITIES – Continued

Page

Carolina Estrada, ‘We are going to die out here’:

Report finds that 2022 was deadliest year for

unhoused people in Sacramento County,

KCRA, December 15, 2023 available at https://

www.kcra.com/article/report-2022-deadliestyear-unhoused-people-sacramento-county/46

137574# ...................................................................31

Cawley C., Kanzaria, et al., Mortality Among

People Experiencing Homelessness in San

Francisco During the COVID-19 Pandemic.

JAMA NETW. OPEN., March 10, 2022 available

at https://jamanetwork.com/journals/jamanet

workopen/fullarticle/2789907 .................................30

Centers for Disease Control, Viral Hepatitis

Surveillance United States, 2018, July 28,

2020 available at https://www.cdc.gov/hepatitis/

statistics/2018surveillance/HepA.htm ...................24

Centers for Disease Control, Viral Hepatitis

Surveillance United States, 2015 available at

chrome-extension://efaidnbmnnnibpcajpcglcle

findmkaj/https://www.cdc.gov/hepatitis/

statistics/2015surveillance/pdfs/2015Hep

SurveillanceRpt.pdf ................................................24

Congressional Research Service, Recommendation

for New U.S. Circuit and District Court Judgeships by the Judicial Conference of the United

States (118th Congress), April 5, 2023....................10

TABLE OF AUTHORITIES – Continued

Page

County of Los Angeles Public Health, Mortality

Rates and Causes of Death Among People Experiencing Homelessness in Los Angeles

County: 2014-2021, May 2023 available at

chrome-extension://efaidnbmnnnibpcajpcglcle

findmkaj/http://publichealth.lacounty.gov/chie/

reports/Homeless_Mortality_Report_2023.pdf .......30

County of Santa Cruz, Hepatitis A Virus (HAV)

available at https://www.santacruzhealth.org/

HSAHome/HSADivisions/PublicHealth/

CommunicableDiseaseControl/HepatitisA.aspx.........25

Daniel Kim, ‘When You Gotta Go, What Do You

Do?’ Popular Beach Near Homeless Camps Tests

High for E. Coli, SACRAMENTO BEE, September

11, 2019 available at https://www.sacbee.com/

news/local/sacramento-tipping-point/article2

34979472.html#storylink=cpy ................................26

Darren Goodman, Police Chief of the City of San

Bernardino Police (SBPD), The Adverse Impacts

of Martin v. Boise on SB, September 18, 2023

[Press Release] available at https://www.sbcity.

org/news/whats_new/the_adverse_impacts_of_

martin_vs_boise_on_s_b ................. 14, 17, 19, 21, 28

Declaration of Local Emergency (Los Angeles),

December 12, 2022 available at https://mayor.

lacity.gov/news/mayor-karen-bass-declaresstate-emergency-homelessness ................. 12, 17, 20

vii

TABLE OF AUTHORITIES – Continued

Page

Division of Social Work and the Center for

Health Practice, Policy & Research at the California State University, Sacramento, Homelessness in Sacramento County (Results from

the 2022 Point in Time Count), July 2022

available at chrome-extension://efaidnbmnn

nibpcajpcglclefindmkaj/https://sacramentosteps

forward.org/wp-content/uploads/2022/06/PITReport-2022.pdf .......................................................13

Doug Smith, Q&A: Demystifying L.A.’s System of

Homeless Shelters, LOS ANGELES TIMES, September 29, 2017 available at https://www.latimes.

com/local/lanow/la-me-shelter-q-a-20170929htmlstory.html.........................................................36

Emily Zanotti, LAPD Officers Treated for Typhoid Fever, ‘Typhus-Like’ Symptoms After

Working Near Homeless Encampments, DAILY

WIRE, June 2, 2019 available at https://www.

dailywire.com/news/47935/lapd-officers-treatedtyphoid-fever-typhus-emily-zanotti ........................23

Erika Mahoney, Monterey County Declares Hepatitis A Outbreak Among Homeless, KQED

NEWS, February 7, 2018 available at https://

www.kqed.org/news/11648643/monterey-countydeclares-hepatitis-a-outbreak-among-homeless.......25

viii

TABLE OF AUTHORITIES – Continued

Page

Esteban Reynoso, Homeless-related fires make

up more than 40% of citywide fires, Fresno fire

says, Your Central Valley News.com, November

14, 2023 available at https://www.yourcentral

valley.com/news/local-news/homeless-relatedfires-make-up-more-than-40-of-citywide-firesfresno-fire-says/ ................................................. 17, 18

Fentanyl Overdoses Fueled Surge In 2020 San

Francisco Homeless Deaths, CBS NEWS, March

12, 2022 available at https://www.cbsnews.

com/sanfrancisco/news/fentanyl-overdosesfueled-surge-in-2020-san-francisco-homelessdeaths/ .....................................................................31

https://www.cdph.ca.gov/Programs/CID/DCDC/

Pages/Immunization/Hepatitis-A.aspx ..................24

Hundreds Of Pounds Of Human Waste, Needles

Cleaned From Former Homeless Encampment

At Echo Park, KCAL CBS NEWS, May 6, 2021

available at https://www.cbsnews.com/los

angeles/news/hundreds-of-pounds-humanwaste-needles-cleaned-from-former-homeless-encampment-echo-park/ ............................ 27, 30

Jordan Graham, For Orange County’s homeless

population, 2017 was the second deadliest

year on record, OC REGISTER, January 17,

2018 available at https://www.ocregister.com/

2018/01/17/for-orange-countys-homelesspopulation-2017-was-the-second-deadliest-yearon-record/ .................................................................30

TABLE OF AUTHORITIES – Continued

Page

League of California Cities, Homelessness Task

Force Report: Tools and Resources for Cities

and Counties February 2018 available at

https://www.cacities.org/Resources-Documents/

Policy-Advocacy-Section/Hot-Issues/HomelessResources/League-CSAC-Task-Force/HTFHomeless-2018-Web.aspx .......................................15

Los Angeles Homeless Services Authority, 2017

HIC Data Summary available at https://

www.lahsa.org/documents?id=1562-2017-hicdata-summary.pdf&ref=hc ......................................36

Los Angeles Homeless Services Authority, 20172018 Final Report available at https://www.

lahsa.org/dashboards?id=34-17-18-final-report .......36

Los Angeles Police Department (LAPD), 2018 4th

Quarter Report on Homelessness, January 29,

2019 available at chrome-extension://efaidnb

mnnnibpcajpcglclefindmkaj/https://www.lapd

policecom.lacity.org/031219/BPC_19-0073.pdf .... 19, 20

Madeleine Parker, Serious Crime in Santa Monica

Rises 8.8 Percent, SANTA MONICA DAILY PRESS,

January 30, 2019 available at https://www.

smdp.com/serious-crime-in-santa-monica-rises8-8-percent/172447..................................................16

Marek Marszawski, Fresno homeless population

count provides sobering reminder there’s no

easy fix, FRESNO BEE, July 29,2023 available at

https://www.fresnobee.com/opinion/opn-columnsblogs/marek-warszawski/article277765243.html........14

TABLE OF AUTHORITIES – Continued

Page

Maria L. La Ganga, This City in Idaho Is Why

L.A. Can’t Legally Clear its Streets of Homeless

Encampments, L.A. TIMES (Oct. 15, 2019)

available at https://www.latimes.com/california/

story/2019-10-15/homeless-boise-martin-supremecourt ...........................................................................9

National Coalition for the Homeless, Vulnerable

to Hate: A Survey of Bias-Motivated Violence

Against People Experiencing Homelessness in

2016-2017 available at https://nationalhomeless.org/wp-content/uploads/2019/01/hate-crimes2016-17-final_for-web2.pdf .....................................20

Press Release: Mayor Bass Signs Los Angeles

County Budget, May 26, 2023 available at

https://mayor.lacity.gov/news/mayor-bass-signslos-angeles-city-budget ...........................................13

Press Release: SFPD Responds to Media Report

on Use of Force, August 24, 2023 available at

https://www.sanfranciscopolice.org/news/sfpdresponds-media-report-use-force#:~:text=SFPD

%20officers%20received%20174%2C176%20

homeless,using%20a%20physical%20control

%20hold ...................................................................16

San Diego County Health and Human Services

Agency, Hepatitis A Outbreak, available at

https://www.sandiegocounty.gov/content/sdc/

hhsa/programs/phs/community_epidemiology/

dc/Hepatitis_A/outbreak.html ................................24

TABLE OF AUTHORITIES – Continued

Page

San Diego Mayor Todd Gloria Press Release: Illicit Fentanyl-Related Arrests Up 53% in City

of San Diego, December 11, 2023 available at

https://www.sandiego.gov/insidesd/illicit-fentanylrelated-arrests-53-city-san-diego ...........................31

Shasta County Community Action Agency, NorCal Continuum of Care’s Annual Point-inTime Count Executive Summary (2019 Annual

Report) available at chrome-extension://efaidn

bmnnnibpcajpcglclefindmkaj/https://www.

shastacounty.gov/sites/default/files/fileattach

ments/housing_amp_community_action_

programs/page/3427/2019-pit-report.pdf ...............14

Shasta County Community Action Agency, NorCal

Continuum of Care’s Annual Point-in-Time

Count Executive Summary (2022 Annual Report) available at chrome-extension://efaidnb

mnnnibpcajpcglclefindmkaj/https://wildrivers.

lostcoastoutpost.com/media/blog/post/2253/

2022-norcal-CoC-Pit-Report-Final.pdf .......................14

Talwar, A., et al., Centers for Disease Control,

Tuberculosis – United States, 2018, Vol. 68,

MORBIDITY AND MORTALITY WEEKLY REPORT,

March 22, 2019 available at https://www.cdc.

gov/mmwr/volumes/68/wr/mm6811a2.htm ............23

xii

TABLE OF AUTHORITIES – Continued

Page

Theresa Walker, Thousands of Pounds of Human

Waste, Close to 14,000 Hypodermic Needles

Cleaned Out from Santa Ana River Homeless

Encampments, ORANGE COUNTY REGISTER March

8, 2018 available at https://www.ocregister.

com/2018/03/08/thousands-of-pounds-of-humanwaste-close-to-14000-hypodermic-needlescleaned-out-from-santa-ana-river-homelessencampments/ ................................................... 27, 29

Tom Christensen, Local Public Health Emergency for Hepatitis A Outbreak Ratified by

Board of Supervisors, COUNTY NEWS CENTER,

September 6, 2017 available at https://www.

countynewscenter.com/local-public-healthemergency-for-hepatitis-a-outbreak-ratifiedby-board-of-supervisors/ .........................................24

U.S. Dept. of Housing and Urban Development,

2018 Continuum of Care Homeless Assistance

Programs Homeless Populations and Subpopulations – Boise/Ada County January 31, 2018

available at chrome-extension://efaidnbmnnn

ibpcajpcglclefindmkaj/https://files.hudexchange.

info/reports/published/CoC_PopSub_CoC_ID500-2018_ID_2018.pdf ..............................................9

xiii

TABLE OF AUTHORITIES – Continued

Page

U.S. Dept. of Housing and Urban Development,

2018 Continuum of Care Homeless Assistance

Programs, Homeless Populations and Subpopulations – Los Angeles City & County January

24, 2018 available at chrome-extension://

efaidnbmnnnibpcajpcglclefindmkaj/https://files.

hudexchange.info/reports/published/CoC_Pop

Sub_CoC_CA-600-2018_CA_2018.pdf ......................9

U.S. Dept. of Housing and Urban Development,

2022 Annual Homelessness Assessment Report (AHAR) to Congress – December 2022

available at chrome-extension://efaidnbmnnn

ibpcajpcglclefindmkaj/https://www.huduser.gov/

portal/sites/default/files/pdf/2022-ahar-part1.pdf ..................................................................... 3, 10

STATEMENT OF INTEREST OF AMICI CURIAE

Amici Curiae are the California State Sheriffs’

Association (“CSSA”), the California Police Chiefs Association (“CPCA”), the cities of Encinitas, La Habra,

Placentia, San Juan Capistrano, Westminster, West

Covina and Whittier and the Washington Association

of Sheriffs & Police Chiefs (“WASPC”).1 CSSA is a nonprofit professional organization that represents each of

the 58 California Sheriffs. CPCA represents virtually

all of the more than 350 municipal chiefs of police in

California. La Habra, Placentia, San Juan Capistrano,

and Westminster are cities in Orange County, California.

West Covina and Whittier are cities in Los Angeles

County, California. Encinitas is a city in San Diego

County, California. WASPC’s membership includes

Washington State sheriffs, police chiefs, the Washington

State Patrol, the Washington Department of Corrections,

and representatives of a number of federal agencies.

Amici have identified this matter as one in which

their expertise may be of assistance to the Court and

wish to draw attention to the potentially sweeping operational and practical impact of the Court’s decision

on local cities and law enforcement agencies throughout the Nation especially in those States with ever-increasing homeless populations. Amici urge the Court

to reverse the decision of the Court of Appeals because

Pursuant to SUP. CT. R. 37.6, counsel for amici curiae certify that this brief was not authored in whole or in part by counsel

for any party and that no person or entity other than amici curiae,

its members, or its counsel has made a monetary contribution intended to fund the preparation or submission of this brief.

the issues presented have had and will continue to

have a profound impact on all cities and law enforcement agencies.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Amici are familiar with the briefs filed by Petitioner and do not seek to duplicate Petitioner’s arguments. Rather, Amici wish to discuss the practical

implications the Ninth Circuit’s decision is having and

will continue to have on law enforcement throughout

the Nation. Amici also wish to emphasize the exceptional public importance of the questions presented by

this matter from the perspective of those whose profession brings them in contact with the homeless population every single day.

Local municipalities have the legal authority to

pass ordinances that regulate the health, safety and

welfare of their citizens and the expertise of how to

best address the difficult and sensitive issues raised by

increasing homeless individuals on the streets of those

municipalities. Indeed, the States’ core police powers

have always included authority to enact and enforce

laws to protect the health, safety, and welfare of their

citizens. Brecht v. Abrahamson, 507 U.S. 619, 635, 123

L. Ed. 2d 353, 113 S. Ct. 1710 (1993). The problems

presented by an increasing homeless population and

the proliferation of homeless encampments is a crisis

of epic proportions raging on the streets of cities across

the United States. On a single night in 2022, 233,000

people were experiencing homelessness and unsheltered in the United States.2 With 155,491 unsheltered

homeless -– the highest in the Nation – no state has

felt the impact of this crisis more than the State of California.3 California accounts for half of all unsheltered

people in the country.4 This is more than nine times the

number of unsheltered people in the state with the

next highest number, Washington.5 Relevant here, over

42 percent of the Nation’s homeless population are located in States within the Ninth Circuit.6

As first responders, no profession faces this crisis

in a more direct way on a daily basis than that of law

enforcement. Police officers “are the guardians of the

peace and security of the community, and the efficiency

of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to

which such officers perform their duties . . . ” Christal

v. Police Com. of San Francisco, 33 Cal. App. 2d 564,

567 (Cal. App. 1939). The most basic function of a police

department is to protect the safety of the public.

In order to carry out these duties, society has

granted police officers enormous power, including the

U.S. Dept. of Housing and Urban Development, 2022 Annual Homelessness Assessment Report (AHAR) to Congress – December 2022 at pg. 2 available at chrome-extension://efaidnbmnn

nibpcajpcglclefindmkaj/https://www.huduser.gov/portal/sites/default/

files/pdf/2022-ahar-part-1.pdf.

Id. at p. 16.

Id.

power to cite and arrest persons for violating the law.

This enormous power provided to police officers, however, is not without strict limitations designed to ensure that the power is not abused. Courts are

constantly called upon to balance the immeasurable

value of effective law enforcement – to the individual

citizen and to society in general – against precious individual constitutional rights.

Prior to the Ninth Circuit’s decision in Martin v.

City of Boise, 902 F.3d 1031 (9th Cir. 2018), amended

on denial of reh’g, 920 F.3d 584 (9th Cir. 2019) and now

Johnson v. City of Grants Pass, 50 F.4th 787 (9th Cir.

2022), amended on denial of reh’g, 72 F.4th 868 (9th

Cir. 2023), enforcement of generally applicable criminal laws was the province of local law enforcement

agencies regardless of the alleged “involuntariness” of

the conduct at issue. The expansive interpretation

given to the Eighth Amendment by the Ninth Circuit,

first in Martin, and now in Grants Pass, impermissibly

intrudes on core police functions, impairs law enforcement’s ability to protect public safety and fails to provide law enforcement with sufficient direction or

flexibility to make critical decisions regarding citing

individuals for violations of basic health and safety

laws.

As discussed in more detail below, the Martin decision has had disastrous ramifications. Most notably,

it has led to the widespread proliferation of homeless

encampments across the Ninth Circuit which, in turn,

has led to higher call volumes to police agencies, higher

crime, higher rates of drug use and marked decrease

in the livability of numerous cities.

Worse, the Martin decision made it all but impossible for law enforcement agencies to curb the dangers

associated with those encampments despite the enormous risk to public health and safety the encampments pose. While Martin may have expanded the

rights of those suffering from homelessness, the rights

of business owners, taxpayers, children and other

housed citizens to clean, safe, drug-free streets and

public areas have been completely ignored. Undeterred

by this calamity, the Ninth Circuit doubled down in

Grants Pass, expanding Martin and binding the hands

of local law enforcement even tighter by further stripping law enforcement agencies of tools they need to

protect the health and safety of the public at large.

Under Grants Pass, administrative enforcement of

ordinances that could result in criminal penalties violates the Eighth Amendment, local agencies must treat

“rudimentary protection against the elements” equivalent to “sleeping,” for purposes of Martin (though what

constitutes “rudimentary protection” is not defined),

anti-camping ordinances violate the Eighth Amendment to the extent they prohibit homeless persons

from “taking necessary minimal measures to keep

themselves warm and dry while sleeping” (though

“necessary minimal measures” are not defined) and individuals are involuntarily homeless when they do not

have adequate access to reasonably available shelters

(though the parameters of what is “reasonably

available” are not defined beyond being non-religious

in nature). See Grants Pass, supra 72 F.4th at 891.

In short, the Martin and Grants Pass decisions

leave law enforcement in an untenable position without sufficient tools necessary to combat homelessness.

Continued non-enforcement of these municipal laws

imposes significant costs, such as loss of intended uses

of public parks and other areas, increased need to respond to uncontained fires, contaminated needles, biohazardous waste conditions, damage to critical

infrastructure and nature areas, reduced urban livability and desirability and loss of tax revenue.

For law enforcement, the Ninth Circuit’s lack of

clarity on the legal standard and failure to explain

what is meant by basic terms within the decision such

as “rudimentary protection,” “necessary minimal

measures,” “shelter,” “availability” and “involuntary”

present more than an interesting cerebral exercise. Instead, for the officers on the street who are making

thousands of contacts each month with the homeless

population on their city’s streets, the underdeveloped

and confusing decision leaves law enforcement agencies with little or no direction as to the scope of their

authority in those day-to-day policing contacts.

Worse than imposing amorphous standards that

are impossible for officers or courts to apply in a fair

and consistent way, the Grants Pass decision, and the

Martin decision upon which it rests, badly misconstrue

multiple areas of binding Supreme Court precedent

while forcing law enforcement agencies to suspend

enforcement of core public safety ordinances or face litigation and liability. These ordinances are crucial to

law enforcement’s ability to address the public health

crisis presented by burgeoning homeless encampments.

Amici’s members urge this Court to overturn

Grants Pass and its bedrock, the Martin decision, and

allow cities to enforce generally applicable laws designed to protect the health and safety of all the citizens in a community – both housed and unhoused. At

a minimum, Amici require this Court’s guidance on a

clear, consistent interpretation of the liability standard

with respect to law enforcement interactions with the

homeless population, the constitutional basis for those

duties, and the scope of laws either permitted or not

permitted to be enforced against the growing homeless

population.

Amici believe the resolution of the questions

raised by this case are extremely important and submit this Brief out of concern that the health and safety

of the homeless population, and the public at large,

should not be compromised by vague and impracticable “constitutional” rules. Amici and their members

further have an interest in ensuring that law enforcement agencies and officers have appropriate flexibility

to make critical decisions regarding citations and arrests pursuant to basic health and safety laws without

facing the specter of money damages and attorneys’

fees awards, staggering defense costs, and the distractions of civil lawsuits.

Unfortunately, there is no easy answer to the problem of homelessness and there is no single tool that

will solve this crisis. Amici wish to make it very clear

that they, by no means, argue for the criminalization of

the homeless. Law enforcement agencies across California remain steadfast in their commitment to improving the outcomes for persons experiencing

homelessness, teaming up with various partners such

as social service agencies and other governmental departments and building support in communities to address homelessness all while keeping cities safe, clean

and accessible to all. To successfully reduce homelessness and homeless encampments, California law enforcement must continue to be creative and must be

able to employ each and every tool at their disposal.

Enforcement of the type of ordinances at issue in Martin and Grants Pass is simply one tool, a vital one, that

should be available to law enforcement. Accordingly,

Amici respectfully support the City of Grants Pass.

---------------------------------♦---------------------------------

ARGUMENT

Homelessness is a Critical Issue in California/Washington Policing Made Exponentially Worse by Martin

The disparate practical impact on California and

Washington of the Martin decision, arising out of

Boise, Idaho, and of the Grants Pass decision, arising

out of Grants Pass, Oregon, is staggering. Indeed, after

the Martin decision, it was noted that the mid-size city

of Boise, Idaho “with its relatively manageable

homeless population, is setting the enforcement standards for its much larger counterparts in the West.”7

More specifically, in 2018 when Martin was decided,

Boise and the county in which it sits, had 117 unsheltered homeless individuals.8 That same year, Los Angeles and the county in which it sits, had 36,461

unsheltered individuals – over 300 times more than

Boise.9

The impracticality of Martin as applied to cities

with large homeless populations has now grown exponentially under Grants Pass. A small town in Oregon

with “a population of approximately 38,000” and with

a homeless population between 50 and 60010 is now setting the enforcement standards for the entire Ninth

Circuit – a population of approximately 67 million

Maria L. La Ganga, This City in Idaho Is Why L.A. Can’t

Legally Clear its Streets of Homeless Encampments, L.A. TIMES

(Oct. 15, 2019) available at https://www.latimes.com/california/

story/2019-10-15/homeless-boise-martin-supreme-court.

U.S. Dept. of Housing and Urban Development, 2018 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations – Boise/Ada County January 31, 2018

available at chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/

https://files.hudexchange.info/reports/published/CoC_PopSub_

CoC_ID-500-2018_ID_2018.pdf.

U.S. Dept. of Housing and Urban Development, 2018 Continuum of Care Homeless Assistance Programs, Homeless Populations and Subpopulations – Los Angeles City & County January

24, 2018 available at chrome-extension://efaidnbmnnnibpcajpcgl

clefindmkaj/https://files.hudexchange.info/reports/published/CoC_

PopSub_CoC_CA-600-2018_CA_2018.pdf.

Grants Pass, supra 72 F.4th at 874.

people with a homeless population of approximately

250,000.11

The City of Los Angeles alone has a homeless population of an estimated 46,260 people12 – between 77

to 924 times as many homeless persons as reside in

Grants Pass. See Grants Pass, supra 72 F.4th at 874. In

fact, in 2022, the entire State of Oregon had a homeless

population of 14,586 homeless persons.13 Whereas, during that same time period, Los Angeles County alone –

one of 58 Counties in the State of California – had a

homeless population of nearly five times the size at

69,144 persons.14

Congressional Research Service, Recommendation for New

U.S. Circuit and District Court Judgeships by the Judicial Conference of the United States (118th Congress), April 5, 2023; U.S.

Dept. of Housing and Urban Development, 2022 Annual Homelessness Assessment Report (AHAR) to Congress – December

2022 at pg. 16 available at chrome-extension://efaidnbmnnnibp

cajpcglclefindmkaj/https://www.huduser.gov/portal/sites/default/

files/pdf/2022-ahar-part-1.pdf.

2023 Greater Los Angeles Homeless Count Deck, Los Angeles Homeless Services Authority (Jan. 24-26, 2023) available at

https://www.lahsa.org/documents?id=7232-2023-greater-los-angeleshomeless-count-deck.pdf.

U.S. Dept. of Housing and Urban Development, 2022 Annual Homelessness Assessment Report (AHAR) to Congress – December 2022 at pg. 104 available at chrome-extension://efaidnb

mnnnibpcajpcglclefindmkaj/https://www.huduser.gov/portal/sites/

default/files/pdf/2022-AHAR-Part-1.pdf.

2022 Greater Los Angeles Homeless Count Deck, Los Angeles Homeless Services Authority (Jan. 24-26, 2023) available at

https://www.lahsa.org/documents?id=6545-2022-greater-los-angeleshomeless-count-deck.pdf.

In short, the gravity of the issues surrounding

homelessness and the possible solutions for addressing

those issues in cities like Boise or Grants Pass do not,

in any way, practically equate to the entirety of the

Ninth Circuit. Simply put, the homelessness problems

in different cities require different approaches, strategies and tools, and preventing use of a tool by the Boise

or Grants Pass Police Departments simply does not

have the same effect as preventing the use of the same

tool by far larger agencies. Additionally, while the open

questions raised by Martin and Grants Pass may prove

difficult to answer in small towns – such as how to calculate the total homeless population day-to-day – those

questions become impossible to answer in cities such

as Los Angeles, San Francisco, and San Diego whose

homeless populations are so large that counts take

days to complete and are admittedly still not 100 percent accurate.

To say that Grants Pass and the further restrictions the decision imposes upon law enforcement

therein could not have come at a worse time would be

a gross understatement. The practical implications of

Martin have resulted in local governments having little or no enforcement power over their unhoused populations, leading to an explosion of encampments

throughout the State of California. As a result, many

unhoused people live in unnecessarily dangerous situations due to crime, trash, human waste and rampant

substance abuse. Grants Pass, affirming and expanding upon Martin, will make a difficult situation even

more dire.

In December of 2022, just over three years after

Martin, the mayor of Los Angeles declared a state of

emergency on homelessness.15 That Declaration contains a number of shocking statistics that demonstrate

the extent to which homelessness, particularly in Los

Angeles, is a problem of truly epic proportions. The

City of Los Angeles represents 9.6 percent of the State

of California’s population but 25 percent of the State’s

unsheltered population.16 The number of unsheltered

people in the City of Los Angeles is approximately 18

times higher than the number in New York City and

14 times higher than the number in Chicago.17

The Los Angeles County Department of Public

Health has reported an average of over 5 deaths per

day of unhoused persons as of March 2021, a 200 percent increase in the death rate of persons experiencing

homelessness over the past decade and a 56 percent

increase over just one year prior.18 Los Angeles recognized that one of the “key performance indicators in

addressing the emergency” includes decreasing the

number and size of encampments19 – a goal now made

nearly impossible under Grants Pass.

Declaration of Local Emergency (Los Angeles), December

12, 2022 available at https://mayor.lacity.gov/news/mayor-karenbass-declares-state-emergency-homelessness.

Id.

Id. [emphasis added]

Id.

The financial impact on Los Angeles is equally

staggering. In 2021, Los Angeles responded to the

rapid increase in its homeless population with unprecedented investments into homeless solutions budgeting $791 million for initiatives to help homeless

residents with an additional $160 million in roll over

funds.20 That spending plan was a nearly sevenfold

increase from the mayor’s budget five years prior.21 By

2023, that figure had increased to $1.3 billion.22

Sacramento County, in which California’s capitol

city is found, saw an astonishing 67 percent increase

in nightly homelessness between 2019 and 2022.23 Significantly smaller cities have also been substantially

impacted by the Martin decision with the Police Chief

of the City of San Bernardino, a member of Amici

CPCA here, finding that the decision “has contributed

to the city experiencing a 40 percent increase in the

Benjamin Oreskes and David Zahniser, Doug Smith, L.A.

plans nearly $1 billion in spending to address homelessness under

Garcetti plan, LOS ANGELES TIMES, April 19, 2021 available at

https://www.latimes.com/homeless-housing/story/2021-04-19/losangeles-will-increase-budget-for-addressing-homelessness.

Id. [emphasis added]

Press Release: Mayor Bass Signs Los Angeles County

Budget, May 26, 2023 available at https://mayor.lacity.gov/

news/mayor-bass-signs-los-angeles-city-budget.

Division of Social Work and the Center for Health Practice,

Policy & Research at the California State University, Sacramento,

Homelessness in Sacramento County (Results from the 2022 Point

in Time Count), July 2022 at p. 1 available at chrome-extension://

efaidnbmnnnibpcajpcglclefindmkaj/https://sacramentostepsforward.

org/wp-content/uploads/2022/06/PIT-Report-2022.pdf.

homeless population since 2019.”24 In that same vein,

the NorCal CoC region of California, which encompasses some of the least populous and most rural counties of California including Del Norte, Lassen, Modoc,

Plumas, Shasta, Sierra and Siskiyou, saw just under a

36 percent increase in unsheltered homeless from 2019

to 2022.25 In mid-size Madera County, with a population of 160,256 people in 2022, the number of unsheltered homeless rose 154.5 percent from 2022 to 2023

while the number of unsheltered homeless in the City

of Madera rose 180.8 percent.26

Indeed, though the numbers are staggering in the

major California cities of Los Angeles, San Francisco

and San Diego as mentioned above, “[r]ural and

Darren Goodman, Police Chief of the City of San Bernardino Police (SBPD), The Adverse Impacts of Martin v. Boise on SB,

September 18, 2023 [Press Release] available at https://www.sbcity.

org/news/whats_new/the_adverse_impacts_of_martin_vs_boise_

on_s_b.

Shasta County Community Action Agency, NorCal Continuum of Care’s Annual Point-in-Time Count Executive Summary

(2019 Annual Report) at p. 7 available at chrome-extension://

efaidnbmnnnibpcajpcglclefindmkaj/https://www.shastacounty.gov/

sites/default/files/fileattachments/housing_amp_community_action_

programs/page/3427/2019-pit-report.pdf and Shasta County

Community Action Agency, NorCal Continuum of Care’s Annual

Point-in-Time Count Executive Summary (2022 Annual Report) at

p. 12 available at chrome-extension://efaidnbmnnnibpcajpcglc

lefindmkaj/https://wildrivers.lostcoastoutpost.com/media/blog/post/

2253/2022-norcal-CoC-Pit-Report-Final.pdf.

Marek Marszawski, Fresno homeless population count provides sobering reminder there’s no easy fix, FRESNO BEE, July

29,2023 available at https://www.fresnobee.com/opinion/opncolumns-blogs/marek-warszawski/article277765243.html.

suburban parts of the state are equally impacted by

this crisis – the largest percentage increases since

2007 have been in the far north (330 percent), El Dorado County (151 percent), Sonoma County (121 percent), Monterey and San Benito counties (115 percent),

Yuba and Sutter counties (94 percent) and Placer and

Nevada counties (74 percent).”27

Without question, homelessness presents one of

the most significant challenges to California law enforcement today especially with the explosion of homeless encampments in cities up and down the State

since Martin. In short, the practical consequences of

the Martin and Grants Pass decisions on California

law enforcement have proven, and will continue to

prove, nothing short of disastrous.

A. California Law Enforcement Agencies

Receive Scores of Homeless-Related

Calls for Service

Homelessness often creates livability problems for

other citizens, homeless individuals often act out when

in crisis or suffering from mental illnesses, and encampments instill fear in our communities all of which

generate calls for service to local police agencies,. Unfortunately, the reality is that when the community

League of California Cities, Homelessness Task Force Report: Tools and Resources for Cities and Counties February 2018

p. 2 available at https://www.cacities.org/Resources-Documents/

Policy-Advocacy-Section/Hot-Issues/Homeless-Resources/LeagueCSAC-Task-Force/HTF-Homeless-2018-Web.aspx.

has fears, is uninformed about who to contact, what resources are available, or how to channel their willingness to help, they call the police.

California police and fire agencies are inundated

by calls and/or complaints about the homeless. Between 2017 and 2022, the San Francisco Police Department received an astonishing 174,176 homelessrelated calls for service.28 In 2018, the Santa Monica

Police Department reported that roughly 30 percent

of the Department’s calls for service were homelessrelated.29

In a survey of the 58 California Sheriffs comprising Amici CSSA, the San Bernardino County Sheriff ’s

Office reported that San Bernardino County Fire emergency calls related to homeless subjects increased from

2,127 incidents in 2020 to 3,783 incidents in 2022 with

an overwhelming 5,484 incidents from January to September of 2023. Again, large Counties are by no means

the only counties affected by this crisis. Mid-size Placer

County reported a 6 percent increase in homeless population between 2021 and 2022 with a 14 percent increase in homeless-related calls for service. In 2022,

Placer County Sheriff ’s Office received 421 homeless28

Press Release: SFPD Responds to Media Report on Use of

Force, August 24, 2023 available at https://www.sanfranciscopolice.

org/news/sfpd-responds-media-report-use-force#:~:text=SFPD%20

officers%20received%20174%2C176%20homeless,using%20a%20

physical%20control%20hold.

Madeleine Parker, Serious Crime in Santa Monica Rises

8.8 Percent, SANTA MONICA DAILY PRESS, January 30, 2019

available at https://www.smdp.com/serious-crime-in-santa-monicarises-8-8-percent/172447.

related calls for assaults, disturbances and agency assists.

The Sheriff ’s Office of Placer County also reports

that there are substantially more law enforcement incidents (crimes, calls for service, and self-initiated incidents) today as compared to 2018, i.e., prior to the

Martin decision. Specifically, 557 homeless-related law

enforcement incidents in 2018 and, from January to

September in 2023, there have already been 734. In

relatively small Humboldt County, there were 220 incidents tracked by the Sheriff ’s Office containing the

words “transient” or “homeless” in 2018. By 2022, that

number had ballooned to 912.

Law enforcement agencies are not the only safety

agencies impacted. In Los Angeles, occurrences of fires

related to homelessness nearly tripled between 2018

and 2021, averaging 24 fires a day in the first quarter

of 2021.30 By December 2021, fires related to homelessness constituted the majority of all fires to which the

Los Angeles Fire Department responded.31 Similarly,

in San Bernardino, since 2020, there have been 1,093

fires related to transients including everything from

encampment fires to trash fires to vacant building

fires.32 Further, the Fresno Fire Department responded

to roughly 6,000 fires in 2023.33 Over 43 percent of

Declaration of Local Emergency (Los Angeles), supra.

Id.

SBPD Chief Goodman, September 18 Press Release, supra.

Esteban Reynoso, Homeless-related fires make up more

than 40% of citywide fires, Fresno fire says, Your Central Valley

News.com, November 14, 2023 available at https://www.your

those fires can be linked to the homeless with over 200

of those homeless-linked fires being in buildings.34

CSSA member, the Sheriff ’s Office of Madera

County reported that Cal-Fire, who contracts for fire

services in Madera County, reported that there were

157 fires attributed to the homeless population in

2022. So far in 2024, there have been 61 fires attributed to the homeless population. In total, Cal-Fire

estimates that between 20 and 25 percent of fires in

Madera County are started by the homeless population. In May of 2022, a fire started by homeless individuals in a dry creek bed in the City of Madera got out

of control, burning down two homes and damaging several others. In July of 2023, a vacant residence in the

County of Madera was burned down by individuals

who were unlawfully squatting there. Prior to that,

other squatters had burned down the carport and

caused thousands of dollars in damage to the vacant

residence.

In sum, it is no exaggeration to say that California

law enforcement officers now spend a substantial portion of their day-to-day policing efforts dealing with

homeless-related issues. In that same vein, California

fire agencies are seeing unprecedented increases in

fires directly caused by the constantly growing homeless population.

centralvalley.com/news/local-news/homeless-related-fires-makeup-more-than-40-of-citywide-fires-fresno-fire-says/.

Id.

B. Homelessness Has A Significant Impact

on Crime Rates

In addition to simply dealing with an overwhelming volume of calls for service, the homelessness problem in California impacts the very heart of

law enforcement – crime rates. Homelessness-related

crime rates are significant both in terms of crimes

against the homeless and also crimes committed by the

homeless.

Persons experiencing homelessness are amongst

the most vulnerable persons in society. In the City of

San Bernardino, “15% of the transient population are

victims of crime and almost 50% of vehicle versus pedestrian collisions involve transients.”35 In 2017, in Los

Angeles, 1,762 persons experiencing homelessness

were reported to be victims of a violent or property

crime while in 2018 there were 2,965 such victims reflecting a stunning 68 percent increase in crimes

against homeless victims.36 The most significant

changes in crimes with a homeless victim from 2017 to

2018 were robbery, with an 89 percent increase, larceny, with an 86 percent increase and rape, with a 71

percent increase.37 In Los Angeles, the murder rate for

SBPD Chief Goodman, September 18 Press Release, supra.

Los Angeles Police Department (LAPD), 2018 4th Quarter

Report on Homelessness, January 29, 2019 at p. 2 available at

chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.

lapdpolicecom.lacity.org/031219/BPC_19-0073.pdf.

Id.

people experiencing homelessness increased by an

alarming 47 percent in 2021 alone.38

Statewide, the National Coalition for the Homeless found that in 2016 and 2017, there were 26 lethal

attacks against the homeless.39 The problem of crime

against the homeless was severe enough to be addressed by the California Legislature. In enacting California Penal Code section 13519.64 requiring the

Commission on Peace Officer Standards and Training

to develop training to be made available to all law enforcement agencies on crimes against homeless persons and on how to deal effectively and humanely with

homeless persons, the California Legislature found

“that California has had serious and unaddressed

problems of crime against homeless persons, including

homeless persons with disabilities.” CAL. PENAL CODE

§ 13519.64(a).

However, crimes against the homeless are not the

only homeless-related crime statistics of concern to law

enforcement in California. In Los Angeles, in 2017,

there were 3,166 violent or property crimes in which a

homeless person was the suspect.40 In 2018, that figure

increased to 4,849 violent or property crimes, reflecting

a 53 percent increase in crimes in which a homeless

Declaration of Local Emergency (Los Angeles), supra.

National Coalition for the Homeless, Vulnerable to Hate: A

Survey of Bias-Motivated Violence Against People Experiencing

Homelessness in 2016-2017 p. 41 available at https://national

homeless.org/wp-content/uploads/2019/01/hate-crimes-2016-17-final_

for-web2.pdf.

LAPD, 4th Quarter Report, supra.

person was the suspect. In the City of San Bernardino,

the crime committed by homeless individuals is grossly

disproportionate to the rest of the city’s population.

“While the transient population is slightly less than

1% of the city’s population, transients account for

15.88% of misdemeanor arrests and 14.33% of felony

arrests.”41 Indeed, “statistics in San Bernardino indicate 34% of the transient population has been arrested

for various crimes.”42 In 2017, the Orange County Sheriff ’s Department conducted 1,118 consensual contacts

in the Santa Ana Riverbed – the County’s largest

homeless encampment and found that 85 percent of all

those contacted had a prior criminal history.43

The exponential increase in the homeless population and encampments in recent years has resulted in

an increase in crimes both against the homeless and

by the homeless. Law enforcement officers are charged

with the safety and security of the public, and it is the

duty of an officer to investigate crimes and to confront

dangerous situations. This often times unenviable job

is becoming increasingly more difficult and dangerous

due to the epidemic of homelessness and the growing

restrictions on police action such as those set forth in

SBPD Chief Goodman, September 18 Press Release, supra.

Id.

Capt. [fmr. Lt.] Jeffery Puckett, Orange County Sheriff ’s

Department Internal Memo re Santa Ana Riverbed, October 26,

2017 p. 12 available at https://1ccaxf2hhhbh1jcwiktlicz7-wpengine.

netdna-ssl.com/wp-content/uploads/2017/10/OCSD_Internal_Memo_

SAR_ Update.pdf.

Martin and Grants Pass, which fail to take into account

the reality of the nature of the situation facing officers.

C. Traditional Police Safety Concerns Are

Accompanied by Concerns of Disease

and Infection

Homeless encampments also raise a number of

public health concerns related to waste, sanitation and

disease transmission. Homeless people, like all other

people obviously, generate solid waste during their

daily activities of food preparation and consumption,

shelter building and maintenance and storing their

possessions. Though without any place or method of

proper storage or disposal, the resulting piles of trash

become food sources for rodents, breeding grounds for

pathogens, fuel for fires, and unattractive nuisances to

the public. Further, the opportunity for the spread of

communicable diseases is increased in homeless encampments lacking basic sanitation services and

waste collection, with some diseases such as hepatitis

A, tuberculosis and typhus more likely to occur in

homeless populations.

Unfortunately, the law enforcement officers

charged with policing in and near these encampments

are feeling the full brunt of these dangers. While still

contending with the traditional dangers associated

with police work, officers are now faced with exposure

to diseases previously almost rendered extinct. In

California, there were 76 cases of Typhus in 2014.44 In

2022, that number had tripled to 229 cases.45 In 2019,

several Los Angeles Police Officers working near the

same homeless encampment either contracted typhoid

fever and/or showed typhus-like symptoms.46

Analogously, the incidence of tuberculosis nationally among people experiencing homeless was estimated from 36 to 47 cases per 100,000 population in

2006–2010,47 compared to 2.8 per 100,000 population

in the general population in 2017.48 Additionally,

“hepatitis A incidence increased 850% from 2014 to

2018. The increase in 2018 was primarily due to unprecedented person-to-person outbreaks reported in

24 states among people who use drugs and people

California Dep’t of Health, Human Flea-Borne Typhus

Cases in California Vector-Borne Disease Section (2001-2019)

available at https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH

%20Document%20Library/Flea-borneTyphusCaseCounts.pdf.

Id.

See Emily Zanotti, LAPD Officers Treated for Typhoid Fever,

‘Typhus-Like’ Symptoms After Working Near Homeless Encampments, DAILY WIRE, June 2, 2019 available at https://www.daily

wire.com/news/ 47935/lapd-officers-treated-typhoid-fever-typhusemily-zanotti; see also Anthony Rivas, LAPD Officers Being

Treated for Typhoid Fever, CBS NEWS, May 30, 2019 available at

https://abcnews.go.com/Health/lapd-officers-treated-typhoid-fevertyphus-symptoms/story?id=63371616.

Bamrah, S., et al., Tuberculosis among the homeless,

United States, 1994–2010, INTERNATIONAL JOURNAL OF TUBERCULOSIS AND LUNG DISEASE 17, 1414–1419 (2013).

Talwar, A., et al., Centers for Disease Control, Tuberculosis – United States, 2018, Vol. 68, MORBIDITY AND MORTALITY

WEEKLY REPORT, March 22, 2019 available at https://www.cdc.gov/

mmwr/volumes/68/wr/mm6811a2.htm.

experiencing homelessness.”49 California, in particular,

“experienced a large hepatitis A outbreak in 20162018, primarily among persons experiencing homelessness and/or using drugs in settings of limited sanitation.”50 In California in 2014, there were 142 cases

of hepatitis A statewide51 whereas in 2017 that number

was almost seven times higher at 947 cases.52

Some areas of California were hit particularly

hard. On September 1, 2017, San Diego County declared a state of emergency due to that County’s hepatitis A outbreak.53 As of January 9, 2018, there were

more than 577 confirmed hepatitis A cases, 20 deaths,

and 396 hospitalizations in San Diego County.54 The

City of Santa Cruz saw a similar outbreak beginning

Centers for Disease Control, Viral Hepatitis Surveillance

United States, 2018, July 28, 2020 available at https://www.

cdc.gov/hepatitis/statistics/2018surveillance/HepA.htm.

https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/

Immunization/Hepatitis-A.aspx.

Centers for Disease Control, Viral Hepatitis Surveillance

United States, 2015 at p. 16 available at chrome-extension://efaid

nbmnnnibpcajpcglclefindmkaj/https://www.cdc.gov/hepatitis/

statistics/2015surveillance/pdfs/2015HepSurveillanceRpt.pdf.

Centers for Disease Control, Viral Hepatitis Surveillance

United States, 2018, supra at Table 1.1.

Tom Christensen, Local Public Health Emergency for Hepatitis A Outbreak Ratified by Board of Supervisors, COUNTY NEWS

CENTER, September 6, 2017 available at https://www.countynews

center.com/local-public-health-emergency-for-hepatitis-a-outbreakratified-by-board-of-supervisors/; see also San Diego County

Health and Human Services Agency, Hepatitis A Outbreak, available

at https://www.sandiegocounty.gov/content/sdc/hhsa/programs/phs/

community_epidemiology/ dc/Hepatitis_A/outbreak.html.

Id.

in April 2017 with 76 confirmed cases of hepatitis A.55

Monterey County followed with a hepatitis A outbreak

among its homeless population in February 2018.56

Whether it is a pedestrian investigation on a busy

street, taking the report of a crime or placing a person

in custody, police officers have physical contact with

people throughout their busy work day. With that contact, comes the risk of being exposed to various infections such as hepatitis A. This risk is particularly high

in Skid Row areas and encampments where officers

are placed in direct contact with at-risk populations

within their living environments which have very poor

sanitary conditions. In 2017, the Los Angeles Police

Protective League recognized this risk identifying approximately 1,600 LAPD officers at high risk of exposure and urging the Los Angeles County Department

of Public Health to immediately provide vaccine doses

for those officers.57

These diseases spread quickly and widely among

people living on the streets, helped along by sidewalks

County of Santa Cruz, Hepatitis A Virus (HAV) available

https://www.santacruzhealth.org/HSAHome/HSADivisions/

PublicHealth/CommunicableDiseaseControl/HepatitisA.aspx.

Erika Mahoney, Monterey County Declares Hepatitis A

Outbreak Among Homeless, KQED NEWS, February 7, 2018

available at https://www.kqed.org/news/11648643/monterey-countydeclares-hepatitis-a-outbreak-among-homeless.

Brenda Gazzar, LAPD union calls for ‘urgent action’ on

Hepatitis A vaccines after officer contracts virus, DAILY NEWS,

November 2, 2017 available at https://www.dailynews.com/2017/

11/02/lapd-union-calls-for-urgent-action-on-hepatitis-a-vaccinesafter-officer-contracts-virus/.

contaminated with human feces, crowded living conditions, weakened immune systems, and limited access

to health care. Unfortunately, the abundance of calls

for service along with the necessity to investigate the

litany of homeless-related crimes discussed above,

bring law enforcement in constant contact with these

dangerous conditions.

The homeless encampments have other consequences that may not be as obvious. For example, encampments have been springing up in parks and in

conservation areas for protected species. Park and wetland habitats are now being compromised by the homeless who make shelters there and use the natural

water for bathing and toilet needs. One example is

popular Tiscornia Beach on the American River in

Sacramento, which is downstream from homeless encampments that aren’t served by restrooms, and which

in 2019 had “alarmingly high levels of E. coli found in

water tests.”58

Ironically, the magnitude of danger posed by these

encampments becomes most evident when the encampments are cleared and cleaned. The Santa Ana

Riverbed encampment, mentioned above, was the largest in Orange County with somewhere between 700 to

Daniel Kim, ‘When You Gotta Go, What Do You Do?’ Popular

Beach Near Homeless Camps Tests High for E. Coli, SACRAMENTO

BEE, September 11, 2019 available at https://www.sacbee.com/

news/local/sacramento-tipping-point/article234979472.html#story

link=cpy.

1,000 homeless persons residing there.59 During the

cleanup of that encampment, incredibly dangerous

fire hazards were observed.60 Additionally, and nearly

beyond belief, 404 tons of debris and 5,279 pounds of

waste deemed hazardous such as human waste, propane, pesticides and other materials, were removed

from the site.61 During the cleanup of an encampment

in Echo Park in the heart of the City of Los Angeles, 35

tons of solid waste was removed which included more

than 723 pounds of biological waste consisting of 180

pounds of feces and 544 pounds of urine.62

Prior to the Riverbed cleanup, the Orange County

Sheriff ’s Department routinely policed inside the encampment both for outreach and enforcement purposes. Prior to the clean-up of Echo Park, LAPD officers

Capt. [fmr Lt.] Jeffery Puckett, Orange County Sheriff ’s

Department Internal Memo re Santa Ana Riverbed, October 26,

2017 p. 12 available at https://1ccaxf2hhhbh1jcwiktlicz7-wp

engine.netdna-ssl.com/wp-content/uploads/2017/10/OCSD_Internal_

Memo_SAR_ Update.pdf and Theresa Walker, Thousands of

Pounds of Human Waste, Close to 14,000 Hypodermic Needles

Cleaned Out from Santa Ana River Homeless Encampments, ORANGE COUNTY REGISTER March 8, 2018 available at https://

www.ocregister.com/2018/ 03/08/thousands-of-pounds-of-humanwaste-close-to-14000-hypodermic-needles-cleaned-out-from-santaana-river-homeless-encampments/.

Id.

Hundreds Of Pounds Of Human Waste, Needles Cleaned

From Former Homeless Encampment At Echo Park, KCAL CBS

NEWS, May 6, 2021 available at https://www.cbsnews.com/los

angeles/news/hundreds-of-pounds-human-waste-needles-cleanedfrom-former-homeless-encampment-echo-park/.

did the same. Policing inside an encampment, whether

for outreach or enforcement, routinely puts those officers inside a breeding ground for disease and in close

proximately to tens of thousands of hypodermic needles and thousands of pounds of human waste.

CSSA member, the Sheriff ’s Office of Madera

County, a county with a population 63 times less than

Los Angeles County, reported that their Homeless Outreach Unit facilitated the removal of about 19 tons of

refuse and hazardous waste attributed to homeless

activity in the county between August of 2022 and August of 2023. Additionally, the Sheriff ’s Jail Community Service Program removed about 10 tons of refuse

from homeless encampments, the Madera Water District and the Chowchilla Water District collectively removed several tons of waste from homeless activity in

several waterways in the county, and private landowners removed at least 20 tons of refuse attributed to

homeless encampments. In San Bernardino, as of September of 2023, the Public Works Department reported

it has disposed of 828 tons of trash from encampments

– averaging 23 tons per week.63 The physical and fiscal

negative impact of these encampments simply cannot

be understated.

SBPD Chief Goodman, September 18 Press Release, supra.

D. Encampments Provide Dependable Access to Illegal Drugs Leading to Disastrous Consequences

Another devastating consequence of the recent

proliferation of encampments is the increase of illegal

drug use and increased deaths of homeless persons

from that drug use. In short, encampments provide dependable access to illegal drugs in general and opioids

in particular and that increased access is leading to

horrifying results.

In Sacramento, the Department of Community

Response collected an unbelievable 24,500 hypodermic

needles just in the first seven months of 2023.64 During

the clean-up of the Santa Ana Riverbed encampment,

mentioned above, 13,950 hypodermic needles were removed from the site.65 During the cleanup of the City

of Los Angeles encampment in Echo Park, also

Ashley Sharp, Neighbors say out-of-control drug use at Sacramento park’s homeless encampments is dangerous, frightening,

CBS NEWS, July 17, 2023 available at https://www.cbsnews.com/

sacramento/news/neighbors-of-sacramentos-stanford-park-sayhomeless-encampment-drug-use-is-out-of-control/.

Capt. [fmr Lt.] Jeffery Puckett, Orange County Sheriff ’s

Department Internal Memo re Santa Ana Riverbed, October 26,

2017 p. 12 available at https://1ccaxf2hhhbh1jcwiktlicz7-wp

engine.netdna-ssl.com/wp-content/uploads/2017/10/OCSD_Internal_

Memo_SAR_ Update.pdf and Theresa Walker, Thousands of

Pounds of Human Waste, Close to 14,000 Hypodermic Needles

Cleaned Out from Santa Ana River Homeless Encampments, ORANGE COUNTY REGISTER March 8, 2018 available at https://www.

ocregister.com/2018/ 03/08/thousands-of-pounds-of-human-wasteclose-to-14000-hypodermic-needles-cleaned-out-from-santa-anariver-homeless-encampments/.

mentioned above, 30 pounds of hypodermic needles

were recovered.66

The mortality rate among homeless people in Los

Angeles County has increased by 55 percent in recent

years, according to the latest county public health report.67 Overdose is now the leading cause of mortality

among the homeless and, since 2016, overdoses resulting in death among the homeless population having increased by 84 percent.68 Overdose death is also the

leading cause of death amongst the homeless populations of Orange County69 and the City of San Francisco.70 Similarly, in Sacramento County in 2022,

substance abuse deaths remained the number one

Hundreds Of Pounds Of Human Waste, Needles Cleaned

From Former Homeless Encampment At Echo Park, KCAL CBS

NEWS, May 6, 2021 available at https://www.cbsnews.com/los

angeles/news/hundreds-of-pounds-human-waste-needles-cleanedfrom-former-homeless-encampment-echo-park/.

County of Los Angeles Public Health, Mortality Rates and

Causes of Death Among People Experiencing Homelessness in Los

Angeles County: 2014-2021, May 2023 available at chromeextension://efaidnbmnnnibpcajpcglclefindmkaj/http://publichealth.

lacounty.gov/chie/reports/Homeless_Mortality_Report_2023.pdf.

Id.

Jordan Graham, For Orange County’s homeless population,

2017 was the second deadliest year on record, OC REGISTER, January 17, 2018 available at https://www.ocregister.com/2018/01/

17/for-orange-countys-homeless-population-2017-was-the-seconddeadliest-year-on-record/.

Cawley C. Kanzaria, et al., Mortality Among People Experiencing Homelessness in San Francisco During the COVID-19

Pandemic. JAMA NETW. OPEN., March 10, 2022 available at

https://jamanetwork.com/journals/jamanetworkopen/fullarticle/

2789907.

cause of death, accounting for 46.7 percent of all homeless deaths.71

The sharp increase in overdose deaths is being

driven by drug overdoses involving fentanyl – a drug

widely available within the encampments. In San

Francisco, between March 2020 to March 2021, fentanyl overdoses accounted for a shocking 82 percent of

deaths of homeless individuals.72 Similarly, fentanyl

overdose was the leading cause of death amongst San

Diego’s homeless population in 2022.73 The use of intravenous drugs within encampments is a problem of

epic proportions. This problem, and the number of

deaths attributed to it, will only increase in size and

severity the longer Martin and Grants Pass are permitted to stand.

The Martin decision, made it exceptionally difficult for cities to clear tent encampments and to leverage criminal and civil penalties to force homeless

persons to accept drug treatment and housing. Grants

Carolina Estrada, ‘We are going to die out here’: Report

finds that 2022 was deadliest year for unhoused people in Sacramen-to County, KCRA, December 15, 2023 available at https://

www.kcra.com/article/report-2022-deadliest-year-unhoused-peoplesacramento-county/46137574#.

Fentanyl Overdoses Fueled Surge In 2020 San Francisco

Homeless Deaths, CBS NEWS, March 12, 2022 available at https://

www.cbsnews.com/sanfrancisco/news/fentanyl-overdoses-fueledsurge-in-2020-san-francisco-homeless-deaths/.

San Diego Mayor Todd Gloria Press Release: Illicit Fentanyl-Related Arrests Up 53% in City of San Diego, December 11,

2023 available at https://www.sandiego.gov/insidesd/illicit-fentanylrelated-arrests-53-city-san-diego.

Pass compounds this problem exponentially. Encampments simply cannot be permitted to exist and grow

and most certainly should not be “constitutionally”

protected such that law enforcement is effectively prevented from dealing with these massive threats to the

health and safety of the homeless population and to

the public in general.

II.

This Court has Long Recognized the Need

for Workable Constitutional Standards,

Which Martin and Grants Pass Certainly

do not Provide

While cities and counties tend to think about

homelessness globally in terms of how to reduce the

number of unsheltered homeless on their streets, law

enforcement has more immediate concerns. Day in and

day out, a substantial portion of law enforcement officer time is devoted to homeless issues. The restrictions placed upon officers must allow them to

maintain their own safety while protecting the safety

of the public but must stop short of preventing officers

from effectively carrying out these duties. “We must

never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world

that policemen face every day.” Smith v. Freland, 954

F.2d 343, 347 (6th Cir. 1992). The Martin and Grants

Pass decisions do exactly that – strip law enforcement

of critical enforcement tools without any consideration

of the practical effects on everyday policing.

To many, the dreadful situation resulting from

Martin has not come as a surprise. Dissenting to the

denial of rehearing en banc in Martin, Judge M. Smith,

joined by five other Judges, warned of “dire practical

consequences for the hundreds of local governments

within our jurisdiction and the millions of people living

there” further stating that the panel’s holding had already begun “wreaking havoc on local governments,

residents, and businesses throughout the circuit.” Martin, 920 F.3d at 590 and 594.

Judge M. Smith further warned in his dissent that

“the panel’s reasoning would soon prevent local governments from enforcing a host of other public health

and safety laws, such as those prohibiting public defecation and urination” thus shackling the hands of public officials “trying to redress the serious societal

concern of homelessness.” Id. In petitioning this Court

for Certiorari on Martin, the City of Boise gained the

support of 7 States and dozens of cities as amici curiae

each echoing the very concerns raised by Judge M.

Smith.

In Grants Pass, the Ninth Circuit issued a splintered 155 page opinion amending the original appellate opinion and denying rehearing en banc by the

slimmest of margins – 14 to 13 – over the objections of

17 active and senior judges, who explained that the

Ninth Circuit should have reconsidered this ill-conceived judicial experiment. 16 of the Ninth Circuit’s 52

judges issued fiery dissents underscoring the decision’s

grave practical and constitutional implications.

Judge M. Smith noted, dissenting in Grants Pass

as he had in Martin, that “Martin, particularly now

that it has been supercharged by Grants Pass, has

proven to be a runaway train that has derailed and

done substantial collateral damage to the governmental units in which it has been applied and those living

therein.” Grants Pass, supra 72 F.4th at 943. Also noting: “Martin handcuffed local jurisdictions as they

tried to respond to the homelessness crisis; Grants

Pass now places them in a straitjacket. If this case does

not involve a question of exceptional importance, I cannot imagine one that does.” Grants Pass, supra 72 F.4th

at 936.

The Ninth Circuit’s decisions, in divining a constitutional right to public vagrancy, have led and will continue to lead to an abandonment of a multitude of laws

regulating public health and safety due to the threat

of incurring civil liability for purportedly violating the

Eighth Amendment. For example, in large cities such

as San Francisco or Los Angeles in which the number

of homeless triple or quadruple the number of available beds, officers currently cannot cite an individual

who has set up a tent on the street and who defecates

on that street even if that person has been offered temporary housing. And, more to that point, many of the

homeless decline housing and treatment for drug addictions or mental illness. Martin and Grants Pass

make it nearly impossible for law enforcement to leverage criminal and civil penalties to force homeless

persons to accept that treatment and housing, such as

through drug diversion court programs.

The tools law enforcement are being deprived of

leave them powerless to address the devasting issues

presented by rising numbers of the homeless and

homeless encampments. For these reasons, Amici urge

this Court overturn Grants Pass and Martin upon

which it is founded.

At a minimum, Amici ask for clarification. If the

issues in Martin and Grants Pass are confounding to a

number of U.S. Court of Appeals judges, they are infinitely more confounding from the perspective of the officer on the street trying to cope with the thousands of

calls for service discussed above while receiving minimal guidance under Martin and Grants Pass as to

which ordinances they can and cannot enforce and

when they can and cannot enforce them. For an officer

on the street trying to comply with these decisions, the

practical hurdles are absurd. What beds can an officer

consider when determining whether a bed is “reasonably available”? If the person the officer proposes to cite

for camping is on Skid Row in downtown Los Angeles,

does an open bed 10 miles away but still in Los Angeles

County suffice as available? 5 miles away? 2 miles

away? More importantly, once an officer determines

what geographical location he must search for beds in,

exactly how are they supposed to accomplish that?

Amici are not aware of any comprehensive list, in

any city or county, of shelters and their various restrictions. For example, in Los Angeles County there

are hundreds of shelters with thousands of beds

available of different types with different restrictions.74 Many of the beds are only available seasonally in the winter.75 Many shelters do not permit

men, or pets, or persons with convictions for sex offenses. Id. How is an officer standing on the street supposed to check, not only the current occupancy rate, but

also be aware of whether the person he or she is speaking to is even eligible for an empty bed if found? And

what constitutes “rudimentary protection against the

elements”? Is it the same in someplace like Santa Monica, with nearly year round pleasant weather, as it is

in the deserts of California, where temperatures can

range anywhere from the teens to well over 100 degrees?

Amici respectfully submit that the constitutional

prohibition imposed by Martin and Grants Pass cannot

be formulated in a manner that would be workable

for the police officers on the beat. The categorical constitutional prohibition in these decisions poses insurmountable obstacles to legitimate law enforcement

and the ability of cities to govern all their city’s residents. The vagueness of these decisions’ perimeters

Doug Smith, Q&A: Demystifying L.A.’s System of Homeless

Shelters, LOS ANGELES TIMES, September 29, 2017 available at

https://www.latimes.com/local/lanow/la-me-shelter-q-a-20170929htmlstory.html; see also Los Angeles Homeless Services Authority,

2017-2018 Final Report available at https://www.lahsa.org/dash

boards?id=34-17-18-final-report; see also Los Angeles Homeless

Services Authority, 2017 HIC Data Summary available at

https://www.lahsa.org/documents?id=1562-2017-hic-data-summary.

pdf&ref=hc.

Id.

and expectations placed upon local agencies and officers fails to come even remotely close to the need for

clarity discussed in New York v. Belton, 453 U.S. 454,

101 S. Ct. 2860 (1981). In short, the decision is nearly

impossible for officers to employ in practice and does

nothing but create confusion and tie the hands of officers and city officials who are already facing outrageous

challenges due to homelessness every day. Martin and

Grants Pass have, and will continue to have, dire practical consequences upon municipalities and law enforcement should they be permitted to stand.

---------------------------------♦---------------------------------

CONCLUSION

For the foregoing reasons, Amici agree with Petitioner and respectfully request that the lower court’s

decision should be reversed.

Respectfully submitted,

DENISE L. ROCAWICH

Counsel of Record

JAMES R. TOUCHSTONE

JONES MAYER

3777 N. Harbor Blvd.

Fullerton, CA 92835

(714) 446-1400

dlr@Jones-Mayer.com

Counsel for Amici Curiae

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.