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

NO. 23-175

In the

Supreme Court of the United States

CITY OF GRANTS PASS,

Petitioner,

v.

GLORIA JOHNSON, ET AL.,

Respondents.

__________________________

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

VENICE STAKEHOLDERS ASSOCIATION

IN SUPPORT OF PETITIONER

Jeffrey Lewis

Counsel of Record

JEFF LEWIS LAW, APC

827 Deep Valley Drive, Suite 209

Rolling Hills Estates, CA 90274

(310) 935-4001

Jeff@JeffLewisLaw.com

February 29, 2024

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

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

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

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

I. The Court Should Reverse Johnson and

Martin Because Cities Such as Grants Pass

and Los Angeles are Hamstrung by the

Requirement of Providing Beds for All

Homeless Before Enforcing Municipal Laws

for the Protection of Health and Public

Welfare ............................................................. 4

A. The Martin and Johnson Opinions

erred in Requiring Beds for an Entire

Homeless Population Rather than Beds

for the Number of Homeless Cited on

any Given Night ...................................... 10

B. The Martin and Johnson Courts Failed

to Adequately Define “Voluntary” and

“Involuntary” as it Relates to Homelessness .......................................................... 11

C. The Martin and Johnson Courts Failed

to Consider the Potential for Homeless

Encampments to Become Barriers to

Placement or Their Impact on

Neighborhoods ......................................... 12

D. It is Inappropriate to Apply a Rule

Developed for a Homeless Population of

Six Hundred People in Grants Pass to

Homeless Populations in the Tens of

Thousands in Large Cities ...................... 18

CONCLUSION ..................................................... 20

ii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Johnson v. City of Grants Pass,

72 F.4th 868 (9th Cir. 2022)......... 2-4, 9-12, 17-20

Jones v. City of Los Angeles,

444 F.3d 1118 (9th Cir. 2006) ..................... 4, 5, 7

Martin v. City of Boise,

902 F.3d 1031 (9th Cir. 2018) ...... 2-5, 7-13, 17-20

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

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

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

LASC, No. 19STCP00629 .................................... 1

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

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

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VIII ............................... 4, 5, 7, 17

STATUTES

L.A. Mun. Code § 41.18(d) ...................................... 5, 7

L.A. Mun. Code § 63.44........................................... 6, 7

JUDICIAL RULES

Sup. R. Civ. P. 37.2 ..................................................... 1

Sup. R. Civ. P. 37.6 ..................................................... 1

iii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Andrew I. Lief,

A Prosecutorial Solution to the

Criminalization of Homelessness 169 U.

PA. L. REV. 1971 (2021) ..................................... 17

Dan Simon,

He was a Yale graduate, Wall Street

banker and entrepreneur, who was

homeless at the time in Los Angeles, CNN

(September 17, 2019) https://edition.cnn.

com/2019/09/17/us/los-angeles-yalegraduate-homeless/index.html?no-st=

1568949532 ........................................................ 13

Emily Alpert Reyes,

Garcetti says L.A. can resume disputed

ban on overnight sidewalk sleeping, LOS

ANGELES TIMES (June 22, 2018) https://

www.latimes.com/local/lanow/la-me-lnsidewalk-sleeping-20180622-story.html ............. 5

Emily N. McMorris,

Jones v. City of Los Angeles: A Dangerous

Expansion of Eighth Amendment

Protections Stifles Efforts to Clean up

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

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

iv

TABLE OF AUTHORITIES – Continued

Page

Joel Grover,

Homeless Encampments Are Gone and

Crime is Way Down, So Far, in Venice,

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

www.nbclosangeles.com/investigations/

homeless-encampments-crime-venice/

3130573/ ............................................................... 8

K-CAL News Staff,

Tents return to Venice Beach after massive

homeless encampment cleared last year,

CBS NEWS (July 12, 2022),

https://www.cbsnews.com/losangeles/news

/tents-return-venice-beach-massivehomeless-encampment-cleared-last-year/ .......... 8

Laura Ingraham,

Venice Beach residents rally to combat

homeless encampments in their

neighborhood, INGRAHAM ANGLE, FOX

News (Aug. 29, 2019), available at https://

video.foxnews.com/v/6080063740001/#sp=

show-clips .......................................................... 16

Martin Macias Jr.,

‘Commercialized Grittiness’ Taking Hold

in Free-Spirited Venice, California,

COURTHOUSE NEWS SERVICES, (July 5,

2019) https://www.courthousenews.com/

commercialized-grittiness-taking-hold-infree-spirited-venice-california/ ............................ 5

Mary Boatright,

Jones v. City of Los Angeles: In Search of

a Judicial Test of Anti-Homeless

Ordinances, 25 LAW & INEQ. 515 (2007) ............. 5

v

TABLE OF AUTHORITIES – Continued

Page

Melanie Camp,

Another Shooting in Venice Police

Hunting for Suspect, YO VENICE! (March

15, 2018) ............................................................ 14

NBCUniversal Media, LLC,

Homeless encampments force seniors off

sidewalks in Venice (September 1, 2023),

available at https://www.nbclosangeles.

com/on-air/homeless-encampments-forceseniors-off-sidewalks-in-venice/3217577 .......... 16

1

INTEREST OF THE AMICUS CURIAE1

V ENICE STAKEHOLDERS A SSOCIATION (VSA),

founded in 2009, is a nonprofit organization dedicated

to civic improvement. The VSA supports slow growth,

the limits of the Venice Local Coastal Specific Plan,

public safety, better traffic circulation, increased parking

for residents, beautification projects, historic preservation, habitat restoration and protection of coastal waters.

Representing residents in the Venice district of the

City of Los Angeles, California, the VSA has grappled

with the horrendous impact of the homeless population

in Venice, at one point second only to downtown Los

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

The VSA provides research, education, advocacy

and litigation support for Venice Beach residents to

ensure that their voices are heard. VSA was in litigation against the City of Los Angeles, the California

Coastal Commission and the Los Angeles County

Metropolitan Transportation Authority over the erection of a 154-bed homeless shelter complex in violation

of the California Environmental Quality Act, VSA v.

City of Los Angeles, LASC, Case No. 19STCP00044 and

VSA v. Los Angeles County Metropolitan Transportation

Authority, LASC, Case No. 19STCP00629 until the

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

Pursuant to Rule 37.6, VSA affirms that no counsel for any party

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

made a monetary contribution intended to fund the preparation

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

or its counsel made a monetary contribution to its preparation or

submission.

2

State Legislature excluded the City of Los Angeles,

and only the City of Los Angeles, from CEQA protections in instances of development projects serving the

homeless population. More recently, the VSA filed a

lawsuit against the City of Los Angeles for failing to

obtain a current Coastal Development Permit (CDP)

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

homeless shelter complex in Venice, VSA v. City of Los

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

months of delay and the prospect of a trial looming,

the city filed for and obtained a CDP for the lease

extension until December 31, 2024; the VSA subsequently dismissed its suit.

The extreme imbalance between the rights of the

homeless, and those of Venice’s residents and business

owners, will continue, and the latter will continue to

suffer the daily burdens of homeless individuals camping

rough a few yards from their homes or businesses

unless Johnson and Martin are reversed.

Mark Ryavec is the president and founder of VSA.

He has an extensive career in public policy. He holds

a BA in Psychology from UCLA and an MA in Urban

Studies from a joint degree program of the CORO

Foundation and Occidental College. He served as a

Legislative Analyst in the Office of the Chief Legislative Analyst of the Los Angeles City Council and in that

capacity served as the principal staff for Los Angeles

Mayor Tom Bradley’s Commission on the Redevelopment of Los Angeles’ Central Business District. Later

he served as Chief Deputy for Los Angeles County

Assessor Alexander Pope. He also served as a founding

Director of the non-profit American Oceans Campaign,

its State Legislative Director in 1996, and as a member

of the Board of Governors of Oceana, a global ocean

3

protection NGO. For five years in the early 2000s he

was Executive Director of Neighborhood Partners, a

non-profit affordable housing provider in the San

Fernando Valley. As a public affairs consultant he has

represented clients as varied as General Real Estate

Management, Trump Wilshire Associates, No Oil, Inc.,

Browning-Ferris Industries, Marquart Corporation (a

rocket propulsion firm), Writers Guild of America,

West, and the Consulate General of Sweden and the

Los Angeles Consular Corps.

The outcome of the decision in Johnson will directly

and profoundly impact VSA’s ability to influence local

policy makers to make sound decisions regarding homelessness and its impacts on the community. If Johnson

(and Martin) stand, the power of municipalities to

enforce anti-loitering and anti-camping ordinances

and to take other steps to protect the public welfare

will be diminished to the detriment of those who suffer

the adverse impacts of homelessness in their communities. The balance between the rights of the homeless

and those that also suffer from the impacts of the

homeless in their neighborhoods will be irrevocably

altered.

4

ARGUMENT

I.

The Court Should Reverse Johnson and

Martin Because Cities Such as Grants Pass

and Los Angeles are Hamstrung by the

Requirement of Providing Beds for All

Homeless Before Enforcing Municipal Laws

for the Protection of Health and Public

Welfare.

The increase in homeless on Venice’s sidewalks,

alleys, parks and along its beach is in significant measure due to the laissez-faire conditions following the

2007 settlement reached in Jones v. City of Los

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

505 F.3d 1006 (9th Cir. 2007). Jones was brought by

six homeless individuals challenging enforcement of

criminal penalties for lying, sitting or sleeping on a

sidewalk. The Jones plaintiffs challenged the criminal

penalties on the grounds that Los Angeles had insufficient shelters and, therefore, the punishment was

cruel and unusual within the meaning of the Eighth

Amendment.

In 2006, the Ninth Circuit found in favor of the

Jones plaintiffs and found a violation of the Eighth

Amendment. Legal scholars condemned the Jones

decision as an unwarranted impairment of the power

of cities to protect the public health. See Emily N.

McMorris, Jones v. City of Los Angeles: A Dangerous

Expansion of Eighth Amendment Protections Stifles

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

1149, 1150 (2007) [referring to the Jones opinion as a

“misinterpretation and exceedingly broad reading” of

5

Eighth Amendment precedent]; and Mary Boatright,

Jones v. City of Los Angeles: In Search of a Judicial

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

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

“oblique and confusing.”]

Following the 2006 ruling in Jones, a settlement

was reached in 2007. The City of Los Angeles agreed

to forgo enforcement of its “No lying, sitting or sleeping

on a sidewalk” ordinance (L.A. Mun. Code § 41.18(d))2

between the hours of 9 p.m. and 6 a.m. until 1,250 units

of permanent, supportive housing for the homeless

were constructed.

Los Angeles Mayor Eric Garcetti announced3 in

January 2018 that the necessary permanent additional 1,250 units had been constructed and the City

would begin returning to nighttime enforcement of

Section 41.18(d) in instances when the city had offered

a shelter bed and it had been declined. After the Ninth

Circuit decided Martin, this return to enforcement

was abandoned and the homeless population expanded

in Los Angeles by 12% in 2018 and by 16% in Venice

in the same period.4

2 Further statutory references are to the Los Angeles City

Municipal Code.

3 Los Angeles Times, Garcetti says L.A. can resume disputed ban on

overnight sidewalk sleeping, https://www.latimes.com/local/lanow/

la-me-ln-sidewalk-sleeping-20180622-story.html, last accessed

September 22, 2023.

4 Courthouse News Services, ‘Commercialized Grittiness’ Taking

Hold in Free-Spirited Venice, California, https://www.courthouse

news.com/commercialized-grittiness-taking-hold-in-free-spiritedvenice-california/, last accessed September 22, 2023.

6

The homeless population increase in Venice results

from a convergence of Venice’s historic luster as a

tourist destination, its delightful weather, the easy

availability of drugs, and the well-publicized roll back

of both State law against possession of drugs for

personal use and any municipal enforcement of ordinances meant to promote civil society, public health and

safety, and quality of life for residents and visitors

alike. This population further increased again during

the Pandemic when city elected officials misread CDC

guidelines that suggested that homeless individuals

should not be moved because it might lead to a spread

of the virus. Prior to this decision, the city enforced

Los Angeles Municipal Code section 63.44, which bans

camping and tents in all its parks and beaches, and

establishes a nighttime curfew in these venues. (This

code section was adopted years ago when city authorities determined that the Los Angeles Police Department had insufficient officers to keep its citizens and

visitors safe in parks and along beaches.) Even though

it was the homeless campers who had moved to Venice,

the city stopped this enforcement at Venice Beach

(and elsewhere in the city) and a relatively small homeless presence of approximately 30 people then in the

Venice Beach Recreation Area increased to over 260,

with an accompanying shanty/tent/tarp encampment

that resembled a Third World refugee camp.

Homeless individuals in Venice routinely camp

within feet of residents’ homes and businesses’ front

doors. Many homeless have developed a sense of

entitlement to any public property and frequently

extend this to occupation of private property abutting

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

driveway aprons and carports. In the last few years

7

this has extended to occupation of buildings unoccupied

due to recent sale or under construction, leading to a

hellacious fire in 2022 in Venice’s fabled Canals that

destroyed three homes.

Under the Jones settlement, while the City of Los

Angeles could enforce Section 41.18(d) during the day

from 6 a.m. to 9 p.m. to push homeless encampments

—at least during the day—away from burdened residents, it rarely did. To prosecute individuals who failed

to abide by Section 41.18(d)‘s prohibition on lying,

sitting or sleeping on a sidewalk after 6 am required

four (4) hours of work by two officers: to arrest that

person, confiscate and inventory his/her belongings,

and then transport and book that individual at the

Pacific Division station. With an already understaffed

police force, the LAPD would only rarely enforce

Section 41.18(d).

In 2018, the Ninth Circuit issued its decision in

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

Martin held that imposing criminal penalties for

sleeping in public violated the Eighth Amendment if

the government has not provided public areas or shelters

for those individuals to sleep.

The broad and contradictory language of Martin

left the Los Angeles City Attorney to advise the LAPD

to not enforce Section 41.18(d) and aspects of the

related parks ordinance, Section 63.44.5 The result

was large encampments on world famous Venice Beach,

5 See July 30, 2019 Motion by City of LA Committee of Homelessness and Poverty recommending deletion of Section 41.18(d)

based on Martin, http://clkrep.lacity.org/onlinedocs/2019/190602-s1_mot_07-30-2019.pdf, accessed on September 23, 2023.

8

with certain sections taken over permanently by the

homeless.6

On one hand, the Martin court disingenuously

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

provide sufficient shelter for the homeless, or allow

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

. . . at any time and at any place,”7 while at the same

time holding “that so 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.”8

In the second quoted clause above, the Martin

court overturned the permission it affords jurisdictions

in the first clause to enforce restrictions on where

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

what time or place they may do this.

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

homeless encampment of tents had been cleared from the Venice

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

enforcement by the City of Los Angeles. K-CAL News Staff, Tents

return to Venice Beach after massive homeless encampment

cleared last year, CBS NEWS, July 12, 2022, https://www

.cbsnews.com/losangeles/news/tents-return-venice-beach-massivehomeless-encampment-cleared-last-year/ last accessed September 22, 2023. Newly elected Mayor Karen Bass and Councilwoman Traci Park cleared the tents again in January 2023, it

remains to be seen how long the tents will remain gone. “Homeless

Encampments Are Gone and Crime is Way Down, So Far, in

Venice,” Apr. 6, 2023, https://www.nbclosangeles.com/investigations/homeless-encampments-crime-venice/3130573/, last accessed

on September 22, 2023.

7 Martin, at 1048.

8 Martin, at 1048.

9

Based on the current average construction cost of

a brick-and-mortar homeless serving structure of over

$600,000 per room (and in some instances as high as

$830,00), and the recent city homeless count of 46,000,

the city would have to spend at least $27,600 billion

to house this population in permanent housing, which

is over $14 billion more than the city’s total $13 billion

2023-24 budget. The city will never have the financial

resources internally or from federal, state or philanthropic sources to underwrite such a construction

effort, leaving residents and businesses to endure

nearby homeless encampments in perpetuity unless

Johnson and Martin are reversed.

Johnson expanded the reach of Martin to encompass not only criminal penalties but also civil penalties and by doing so will compound the problem presented by Martin: forbidding local governments from

enforcing its laws, based on constitutional rights not

recognized by the Supreme Court, unless the local

governments follow an impractically high standard

for provision of public shelters for individuals who will

choose, in many instances, to never use those shelters.

Perhaps the unintended consequences of Martin were

not readily apparent at the time the City of Boise

sought review in this Court.9 Now, years later, the

petition by Grants Pass to review Johnson presents a

ripe opportunity to review the misstep of Martin, with

the benefit of seeing how Martin has acted as a disservice to local government and the unhoused individuals in need of help.

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

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

10

A. The Martin and Johnson Opinions erred

in Requiring Beds for an Entire Homeless Population Rather than Beds for the

Number of Homeless Cited on any Given

Night.

The Martin and Johnson courts failed to entertain the possibility that a city would rarely if ever

attempt to cite every homeless person in its jurisdiction for camping on public property at the same time

(no police department has the officers nor the jails to

do this), but rather would judiciously use the bar on

camping, one camper or one encampment at a time, to

address a particular person or group of campers that

are especially destructive to the environment, or disruptive of a neighborhood through noise, accumulation of trash, human sewage and food waste, used

needles, and thuggish threats to nearby residents and/or

business owners. The Martin and Johnson courts thus

should have only required that a shelter bed be available for those few campers the jurisdiction’s officers

might in the course of a typical day be called upon to

ask to move on due to the harm they are causing. A

requirement that in each instance an offer for a shelter

bed be documented would accomplish the same result—

no one would be cited if a bed was not truly available—

without hamstringing the jurisdiction from addressing

problematic homeless campers who have no interest

in housing.

11

B. The Martin and Johnson Courts Failed to

Adequately Define “Voluntary” and

“Involuntary” as it Relates to Homelessness.

Similarly, the Martin and Johnson courts made

no effort to examine and define the terms “voluntary”

and “involuntary” in relation to the condition of being

homeless. Despite the Martin plaintiffs’ contention

that their homeless state was involuntary, VSA’s

experience in Venice is that just cursory questioning

leads to a different conclusion.

Some years ago, the VSA was approached by thenCaptain Dominic Choi, the commander of the LAPD

Pacific Division (now Acting Chief of Police), and

asked to raise funds for the LAPD’s Venice Beach

Homeless Task Force, which was comprised of several

LAPD officers and two local chaplains, Regina and

Steve Weller. The Task Force would cruise Venice three

afternoons a week getting acquainted with the homeless campers. In addition to placing any willing homeless individuals into rehab or shelters, the Wellers

focused on “family reunification;” i.e., re-connecting

homeless individuals with family members “back

home” who the individual described to the Wellers as

“safe.” Commander Choi asked the VSA to provide bus

tickets and meal debit cards to those individuals the

Wellers’ had coaxed to accept a family member’s

invitation to return home. Hundreds were sent home

to welcoming families over the course of several years.

With such a low bar to returning to being housed,

were these individuals really involuntarily homeless?

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

have a few meals along the way.

12

In discussions over the last ten years with social

service workers who counsel those who live on Venice’s

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

over 70% are from out of state, and many are selfdescribed “travelers” who have no interest in a shelter

bed or housing. Under Martin, Los Angeles (and all other

jurisdictions) would have to build or lease housing

beds for these “travelers”—who forego shelter in all

instances—before it could enforce anti-loitering and

anti-camping laws.

C. The Martin and Johnson Courts Failed to

Consider the Potential for Homeless

Encampments to Become Barriers to

Placement or Their Impact on Neighborhoods.

The Martin and Johnson courts also did not

understand that the development of semi-permanent

encampments, such as the current ones in Venice on

Rose Avenue between Seventh Street and Lincoln, on

Lincoln between Machado Drive and Rose, and on

Mildred Avenue just east of Main Street, are themselves barriers to rescuing homeless individuals from

the street. Outreach and placement efforts are frequently in conflict with the familial bonds that develop

between those living in Venice’s encampments. Often

times, a counselee may agree to a placement—in rehab,

a shelter, a shared apartment, permanent/supportive

housing, or family reunification—but will not show up

at the appointed time for transport. They did not want

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

a part. These individuals were voluntarily remaining

13

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

no interest in shelter.10

The failure of the court to limit its decision to

those who by some criteria are truly without some

resources or options to change their status from

unhoused to housed alone demands that the Martin

decision be overturned.

The results of the wide-open nature of the Martin

decision in a dense urban setting such as Venice,

California have been catastrophic.

In just one example, it allowed a 20-person encampment to set up on the 200 block of Grand Boulevard

(formerly a canal in the era of Venice’s founder Abbot

Kinney), alongside the Venice Post Office’s large parking

lot filled with 40 delivery trucks and across the street

from single family homes and duplexes with an assortment of retirees, families and young couples.

In one case documented on the Neighbors of

Grand email list-serve, a couple on drugs engaged in

a fierce argument on July 9, 2016 at 7:30 a.m., shouting

obscenities at each other. Quoting from resident John

Vester’s message to his neighbors:

“The loudest, most obnoxious of the homeless

across the street loudly THREATENED TO

KILL one of the other homeless, then when

one of our neighbors [Underwood] asked

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

entrepreneur, who was homeless at the time in Los Angeles, https:

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

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

2019. The story highlights the frequency of voluntary homelessness.

The subject has a standing offer from his family for housing but

prefers to work through the issue himself.

14

them to please be quiet, he started loudly

mimicking her while jumping up & down

then he loudly THREATENED TO BURN

HER HOUSE DOWN.”

The LAPD responded an hour and a half later, after

the couple had stopped fighting; the officers would not

give credence to the threat reported by Mr. Vester.

Such nighttime intrusions into the lives of residents

are frequent occurrences all over Venice, and indeed,

all over Los Angeles.

This encampment was the generator of crime

of all types: car break-ins, vandalism, thefts from

residents’ yards of children’s toys and lawn furniture,

trespass, and defecation and urination on private and

public property. In one instance a camper threw a heavy

metal object over the Post Office’s fence and shattered

the front windscreen of an employee’s personal vehicle.

In another, one of the campers living in the encampment

shot and killed a man with whom he had a verbal

clash at the nearby Surfside restaurant on March 7,

2018.11

The sidewalk and parkway, about 12-feet wide,

were constantly blocked by the campers’ accumulation

of “stuff,” including furniture such as chairs and tables,

tents, dogs, mattresses, sleeping bags, duffel bags,

11 ”The following day, LAPD arrested 46-year-old Robert Mewhorter in connection with the shooting. Identified from video footage

and witness descriptions, Mewhorter “was spotted the next day

near an encampment where he lived on Grand” Avenue in Venice.

According to Stevens, Mewhorter was living in the encampment.”

Another Shooting in Venice Police Hunting for Suspect, YOU

VENICE! (March 15, 2018), https://yovenice.com/2018/03/15/

another-shooting-in-venice-police-hunting-for-suspect/ (last visited

September 23, 2023.)

15

luggage, food, backpacks, and bicycles—and piles of

trash and food waste. Despite ADA requirements,

there was no passage available for the disabled. The

disabled who must use a cane, walker or wheelchair,

those pushing baby carriages, and other pedestrians

had to walk the length of the block in the street—

exposed to traffic—to get from one end of the block to

the other.

This encampment resulted in the filing of an

OSHA complaint against the U.S. Postal Service by

letter carriers. Due to the necessary arrival throughout the night of large trucks delivering the next day’s

mail, the Post Office staff had to leave its driveway

gate on Grand open. At night members of the encampment would trespass into the parking lot and relieve

themselves between the parked delivery trucks. The

next day, carriers, who spend the morning at their

trucks sorting mail, would have to stand in human

sewage and breathe the fumes from the accumulated

urine and feces for several hours as part of their job.

The U.S. Postal Service had to pay a fine as a result

of the OSHA complaint.

This unacceptable situation was only remedied

when neighborhood residents, at the recommendation

of LAPD Captain John Roberts and Senior Lead

Officer Kristen Delatori, working with the VSA and

the Post Office management, raised $35,000 and built

and installed 56 4’x8’ planter boxes filled with succulents on the parkway on Grand and on two other streets,

Windward and Riviera, that also border the Post

Office.12 The planter boxes, placed on the parkway

12 The installation of these planter boxes was documented by a

National television news report, Venice Beach residents rally to

combat homeless encampments in their neighborhood, Aug. 29,

16

between the sidewalk and curb, blocked erection of tents,

or accumulation of large piles of personal possessions,

and thus blocked the return of the encampment.

Though such planter boxes can be permitted under

the Los Angeles Municipal Code, the City’s Bureau of

Engineering initially denied any applications for such

projects in Venice. Several projects that were installed

at the urging of the Los Angeles Police Department

and the 11th City Council District have been cited by

the City’s Street Services Bureau and threatened with

removal. Only on August 26, 2019, after public outcry

against the threat of removal, did the City Bureau of

Street Services agree to let un-permitted planters

remain in place while the sponsors of the projects applied

for city permits. Oddly, due to the city’s shifting

requirements and last minute “moving of the goal

posts,” the VSA’s application for the 56 planter boxes

around the Venice Postal sorting facility is still pending.

Despite the presence of the planter boxes and requirement for ADA passage, some homeless campers

recently moved in between the boxes and onto the

sidewalk on Grand Boulevard, resulting in several

disabled seniors using walkers from a nearby senior

daycare center having to travel on Grand itself to

return to the daycare center, since the sidewalk was

blocked.13 Fortunately, LAPD officers eventually

arrived and forced the campers to remove their tents

2019, available at https://video.foxnews.com/v/6080063740001/#

sp=show-clips

13 The plight of disabled seniors was recently reported by the

local NBC news station, Homeless encampments force seniors off

sidewalks in Venice, September 1, 2023, available at https://www.

nbclosangeles.com/on-air/homeless-encampments-force-seniorsoff-sidewalks-in-venice/3217577.

17

and belongings from the sidewalk. The Martin decision has paralyzed the city of Los Angeles (and it appears

other cities in the Ninth Circuit’s jurisdiction), blocking

any commonsense regulation of homeless encampments and leading to a severe breakdown in the norms

of civil society. The decision so broadly defined “involuntarily homeless” that it includes many who have

resources or options to be housed but, for a variety of

discoverable reasons, choose not to pursue them.14 It

has made living in encampments preferable to accepting

available options to leave the streets; food, water,

blankets and tents are delivered by well-meaning

service agencies, showers (24 hour) and restrooms are

open a few blocks away, and there is no rent. This has

placed a heavy burden on residents and business

owners while preventing police from protecting them.

The VSA urges the Court to review and reject

Johnson (which relied on Martin) for its evisceration

of municipalities’ ability to control local health and

safety, and its erosion of residents’ right to the quiet

enjoyment of their homes.

14 How is society to deal with the quandary of those homeless

who choose to remain homeless and those who eagerly seek employment, shelters and other resources? One commentator

criticized Martin and suggested that relying on prosecutorial discretion to consider an individual’s specific needs and abilities—

rather than simply counting available shelter beds in deciding

whether to invoke the Eighth Amendment—is a preferable way

to balance the competing interests of the rights of the homeless

and local government in protecting public safety. (Andrew I. Lief,

A Prosecutorial Solution to the Criminalization of Homelessness

(2021) 169 U. PA. L. REV. 1971, 1993.) Relying on a prosecutor’s

discretion “accords with communal notions of fairness . . . ”

(Andrew I. Lief, A Prosecutorial Solution to the Criminalization

of Homelessness, 169 U. PA. L. REV. 1971, 1993 (2021).)

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D. It is Inappropriate to Apply a Rule

Developed for a Homeless Population of

Six Hundred People in Grants Pass to

Homeless Populations in the Tens of

Thousands in Large Cities.

Grants Pass had a homeless population of between

fifty and six hundred homeless people. Johnson v. City

of Grants Pass, 72 F.4th 868, 874 (9th Cir. 2022). The

number of shelter beds available to that small population of homeless was deemed inadequate and, therefore, enforcement of anti-camping laws was deemed to

be cruel and unusual punishment. The fix the Ninth

Circuit implied was to simply ensure 600 shelter beds

and only then could enforcement of anti-camping laws

be resumed. And a handful of social workers or law

enforcement officials, with a day’s work, could easily

measure the homeless population against beds. But

how are larger communities supposed to comply with

Martin and Johnson?

There was nothing in the Martin or Johnson

decisions that limited their application to small

communities. The City of Los Angeles, in contrast to

Grants Pass, had at last count 46,260 homeless spread

across 4,000 square miles. Los Angeles Am. Brief, p.

4. The practice implied in Johnson is not so easily

applied across a homeless population 100 times as

large as Grants Pass over a much larger area. On any

given evening, how are Los Angeles public officials or

law enforcement to gauge in any given period the

number of homeless, the number of beds and the

adequacy of services for the homeless? Los Angeles

only has the resources and time to conduct a homeless

count once a year. And those results are not typically

19

released for six months. Does that mean if the homeless population exceeds beds during its annual count,

that Los Angeles is barred for an entire year from

enforcing its anti-camping ordinance?

Neither Johnson nor Martin took into account the

difficulty in counting homeless populations or providing shelter beds on a massive scale. Worse, neither

Johnson nor Martin took into account the impact of

non-enforcement of anti-camping laws on a population

of 46,260 as opposed to 600. One need only glance at

the Venice Beach boardwalk—which once received 10

million visitors a year—to understand the impact of

Johnson and Martin’s shackling of public agencies’

ability to enforce its laws. Over 50 homeless individuals continue to camp out illicitly up and down Venice

Beach every night, public perception of safety on the

boardwalk has caused families to avoid visiting, and

several businesses, including the local Ben and Jerry’s

franchise, have recently closed due to physical attacks

on their staffs by homeless intruders.

To the extent that this Court approves of the bedcount methodology of Martin and Johnson, the Court

should limit that methodology to smaller communities

with smaller homeless populations that can be tallied

with reasonable effort.

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CONCLUSION

For the foregoing reasons, the VSA respectfully

urges this Court to reverse the Ninth Circuit’s judgment in Johnson and declare Martin wrongly decided.

Respectfully submitted,

Jeffrey Lewis

Counsel of Record

JEFF LEWIS LAW, APC

827 Deep Valley Drive, Suite 209

Rolling Hills Estates, CA 90274

(310) 935-4001

Jeff@JeffLewisLaw.com

Counsel for Amicus Curiae

Venice Stakeholders Association

February 29, 2024