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

NO. 23-175

In the Supreme Court of the United States

CITY OF GRANTS PASS, OREGON,

Petitioner,

V.

GLORIA JOHNSON 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

LEAGUE OF OREGON CITIES, CITY OF PORTLAND,

SPECIAL DISTRICTS ASSOCIATION OF OREGON,

WASHINGTON STATE ASSOCIATION OF MUNICIPAL

ATTORNEYS, AND ASSOCIATION OF IDAHO CITIES

IN SUPPORT OF PETITIONER

Anit K. Jindal

Counsel of Record

Harry B. Wilson

April M. Stone

MARKOWITZ HERBOLD PC

1455 SW Broadway, Suite 1900

Portland, OR 97201

(503) 295-3085

anitjindal@markowitzherbold.com

Counsel for Amici Curiae

March 4, 2024

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION ....................................................... 2

ARGUMENT ............................................................... 3

I.

The Ninth Circuit’s Precedent Is Unworkable ... 3

A. Cities Are Often Unable to Determine If

Shelter Is “Realistically Available” to

Unsheltered Homeless Individuals ............ 3

B. The Ninth Circuit’s Precedent Provides

No Guidance on What Constitutes a

Permissible Restriction on the Time,

Place, or Manner of Camping on Public

Property....................................................... 6

II. Responding to Homeless Encampments Is

One of the Most Pressing and Complex

Problems for Local Governments .................... 8

A. Unsheltered Populations Have Increased

Dramatically in Recent Years ..................... 8

B. The Proliferation of Homeless Camps

Poses a Monumental Challenge for Public

Resources .................................................... 9

III. Responding to the Hazards Created By

Public Campsites Distracts from Local

Governments’ Direct Efforts to Provide

Shelter and Services ...................................... 17

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

APPENDIX: Photographs Taken by Amici Curiae . 1a

ii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Johnson v. City of Grants Pass,

72 F.4th 868 (9th Cir. 2023).. 2, 3, 4, 6, 15, 19, 20

Martin v. City of Boise,

920 F.3d 584 (9th Cir. 2019) .. 2, 3, 4, 6, 15, 19, 20

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VIII ....................................... 3, 19

STATUTES

Bend, Or. Municipal Code 4.20.30 ............................. 7

Cornelius, Or. Municipal Code 9.10.250 .................... 7

Portland City Code 14A.50.020 .................................. 7

Sandy, Or. Municipal Code 8.35.020.......................... 7

Vancouver, Wash. Municipal Code 8.22.040 ............. 7

REGULATIONS

43 C.F.R. § 423.22 ..................................................... 17

43 C.F.R. § 423.24 ..................................................... 17

43 C.F.R. § 423.31 ..................................................... 17

OTHER AUTHORITIES

Angela Hart,

‘Not Safe Anymore’: Portland Confronts

the Limits of its Support for Homeless

Services, LOS ANGELES TIMES (June 21,

2022), https://www.latimes.com/world-

iii

TABLE OF AUTHORITIES – Continued

Page

nation/story/2022-06-21/portland-liberalsupport-lags-homeless-services-drugs .............. 18

Angelica Thornton,

Officials Break Up Homeless Camp, Pull

Out 150 Stolen Cars, Tons of Trash, Live

Pigs, KATU (Oct. 19, 2022), https://

komonews.com/news/nation-world/citybreaks-up-homeless-camp-pulls-out-150stolen-cars-tons-of-trash-live-pigs-bigfour-corners-natural-area-portlandoregon-housing-crisis-damage-neighborgeorge-donnerberg-park-and-recenvironmental-impact ....................................... 10

Austen Macalus,

‘No Place To Go’: How Kitsap Is

Responding To A Federal Court Ruling

On Homeless Camping Laws, KITSAP SUN

(Dec. 8, 2019), https://www.kitsapsun.

com/story/news/2019/12/08/no-place-gohow-kitsap-responding-federal-courtruling-homeless-camping-laws/

2624812001/ ......................................................... 7

Benny Wescott,

City of Sweet Home Declares Homeless

State of Emergency, LEBANON LOCAL

(Mar. 10, 2023), https://www.lebanonlocal

news.com/city-of-sweet-home-declareshomeless-state-of-emergency/ ........................... 15

Benny Wescott,

Homeless Shelter Opens in Sweet Home,

LEBANON LOCAL (Jan. 25, 2023), https://

iv

TABLE OF AUTHORITIES – Continued

Page

www.lebanonlocalnews.com/homelessshelter-opens-in-sweet-home/ ........................... 14

Blake Mayfield,

35-year Bend Resident Leaving Oregon,

Says China Hat Road Homeless

Encampments, Issues Continue to Worsen,

KTVZ (Dec. 6, 2023), https: //ktvz. com/

news/government-politics/2023/12/06/35year-bend-resident-leaving-oregon-sayschina-hat-road-homeless-encampmentsissues-continue-to-worsen ................................. 11

City of Boise, Ending Family Homelessness,

https://www.cityofboise.org/departments/

planning-and-development-services/

housing-and-community-development

/homelessness/ending-familyhomelessness/ .................................................... 18

City of Portland,

City of Portland to Allocate $2M for 70bed Behavioral Health Treatment Center

in Central City (Jan. 4, 2024),

https://www.portland.gov/wheeler/news/

2024/1/4/city-portland-allocate-2m-70-bedbehavioral-health-treatment-centercentral ................................................................ 18

City of Portland,

Weekly Street Services Report: February

19-25, 2024, HOMELESSNESS AND URBAN

CAMPING IMPACT REDUCTION PROGRAM

(Feb. 27, 2024), https://www.portland.

gov/homelessnessimpactreduction/news/

v

TABLE OF AUTHORITIES – Continued

Page

2024/2/27/weekly-street-services-reportfebruary-19-25-2024 ............................................ 5

City of Salem,

Responding to Sheltering in Public Spaces

(Feb. 26, 2024), https://www.cityofsalem.

net/government/shaping-salem-s-future/

housing-shelter/learn-about-city-effortsto-address-homelessness/responding-tosheltering-in-public-spaces ............................... 13

City of Salem,

Responding to Sheltering in Public Spaces

(Feb. 5, 2024), https://www.cityofsalem.

net/government/shaping-salem-s-future/

housing-shelter/learn-about-city-effortsto-address-homelessness/responding-tosheltering-in-public-spaces ............................... 19

City of Spokane,

Code Enforcement Supplemental Field

Report (Dec. 9, 2021) (on file with author) ....... 12

City of Vancouver,

Declaration of Civil Emergency in and for

the City of Vancouver, No. 2023-01 (Nov.

3, 2023), https://www.cityofvancouver.us/

wp-content/uploads/2023/11/Declarationof-Civil-Emergency_2023-01.pdf ....................... 12

Claire Rush,

Portland, Oregon, to Clear Sidewalk Tents

to Settle Suit with People with

Disabilities, ASSOCIATED PRESS (June 2,

2023), https://apnews.com/article/

portland-ada-lawsuit-homeless-tents-

vi

TABLE OF AUTHORITIES – Continued

Page

sidewalks-aee2d079440d5f9427a18d9e

4771d92a ............................................................ 16

Colin Tiernan,

How Much Do Spokane and Spokane

County Spend on Homelessness?, THE

SPOKESMAN-REVIEW (July 25, 2023),

https://www.spokesman.com/stories/2023/

jul/25/how-much-do-spokane-andspokane-county-spend-on-ho/............................ 19

Courtney Vaughn,

Portland Aims to Have 780 Village-Style

Shelter Beds Open by End of 2024,

PORTLAND MERCURY (Feb. 8, 2024), https:/

/www.portlandmercury.com/news/2024/

02/08/47024179/portland-aims-to-have780-village-style-shelter-beds-open-byend-of-2024 ........................................................ 18

Elisha Meyer,

Despite Cleanup, Neighbors Feel Unsafe

as Trash, Homeless Remain, PORT

ORCHARD INDEPENDENT (Feb. 15, 2023),

https://www.kitsapdailynews.com/news/

despite-cleanup-neighbors-feel-unsafe-astrash-homeless-remain/ .................................... 14

Gemma DiCarlo,

Steel Bridge Reopens After Last Week’s

Fire Inside Onramp, OPB (Mar. 13, 2023),

https://www.opb.org/article/2023/03/13/

portland-steel-bridge-camp-fire-onramporegon-housing-homelessness/ .......................... 11

vii

TABLE OF AUTHORITIES – Continued

Page

John Tillman, Halfway Company Wins

Pendleton Contract to Clean up Homeless

Encampments, EAST OREGONIAN (Feb. 10,

2023), https://www.eastoregonian.com/

news/local/halfway-company-winspendleton-contract-to-clean-up-homelesscamps/article_9486fe02-a89c-11ed-be4d17e098decb33.html............................................ 14

Julie Sullivan-Springhetti,

Domicile Unknown: Review of deaths

among people experiencing homelessness

in Multnomah County in 2022,

MULTNOMAH COUNTY HEALTH

DEPARTMENT AND STREET ROOTS (Dec.

2023), https://multco-web7-psh-files-usw2.

s3-us-west-2.amazonaws.com/s3fspublic/Domicile-Unknown-2022-v3.pdf ............ 16

Kristopher W. Strickler,

2021-2023 ODOT Operational Report,

Oregon Department of Transportation

(Jan. 2024), https://www.oregon.gov/odot/

Get-Involved/OTCSupportMaterials/

Agenda_E_Operational_Report_PACKET.

pdf ...................................................................... 13

Lucas Manfield,

Data Shows Fires at Homeless Camps

Remained a Large Portion of Portland

Blazes Last Year, WILLAMETTE WEEK

(Mar. 15, 2023), https://www.wweek.com/

news/2023/03/15/data-shows-fires-athomeless-camps-remained-a-largeportion-of-portland-blazes-last-year/ ................ 10

viii

TABLE OF AUTHORITIES – Continued

Page

Multnomah County Health Department,

What to Know About Shigella (Jan. 4,

2024), https://www.multco.us/health/

news/what-know-about-shigella ....................... 16

Multnomah County, Or. Joint Office of

Homeless Services, Shelter Utilization in

Multnomah County (Dec. 2023), https://

public.tableau.com/app/profile/johs/viz/

ShelterUtilizationReport/Report. ....................... 5

Nate Sanford,

Complaints About Unsanctioned Homeless

Camps in Spokane Skyrocketed This Year,

INLANDER (Sept. 21, 2023), https://www.

inlander.com/news/complaints-aboutunsanctioned-homeless-camps-inspokane-skyrocketed-this-year-26673343 ........ 10

Nick Morgan,

Illegal Fish Dams along Greenway Net 1

Arrest, MAIL TRIBUNE (Oct. 21, 2022),

https://news.yahoo.com/illegal-fish-damsalong-greenway-035900800.html ..................... 12

Nicole Hayden, $200 Million Housing,

Homelessness Package clears Legislature,

OREGONLIVE (Mar. 21, 2023), https://

www.oregonlive.com/politics/2023/03/200million-housing-homelessness-packageclears-legislature.html ...................................... 17

Portland Fire & Rescue,

Fire Marshal’s Office – Fire Locations,

https://public.tableau.com/app/profile/roy.

lawson1690/viz/Flexdatestatistics

ix

TABLE OF AUTHORITIES – Continued

Page

Reportv9_16109949016810/Story1?

publish=yes ........................................................ 10

PSU Homelessness Research & Action

Collaborative, 2023 Oregon Statewide

Homelessness Estimates, Portland State

University, at 23 (Jan. 2024),

https://drive.google.com/file/d/1Gf7GkHDS

TZzYdWT0eDAgfHdmhPkhW6xQ/view ............. 9

Rebecca Ellis,

70% of Pedestrians Killed in Portland

Traffic Crashes Last Year Were Homeless,

Report Finds, OPB (Feb. 3, 2022), https://

www.opb.org/article/2022/02/03/70percent-pedestrians-hit-cars-portlandwere-experiencing-homelessness/ ..................... 15

Seattle, Wa. Parks & Recreation,

Clean City Initiative, https://www.seattle.

gov/parks/about-us/special-initiativesand-programs/clean-city-initiative ................... 13

Sophie Peel,

315 Homeless Portlanders Died in 2022,

Multnomah County Says, WILLAMETTE

WEEK (Dec. 20, 2023) https://www.

wweek.com/news/city/2023/12/20/315homeless-portlanders-died-in-2022multnomah-county-says/ ................................... 15

Special Districts Association of Oregon,

What Is A Special District?, https://www.

sdao.com/files/a3473de8b/what-is-specialdistrict.pdf ........................................................... 1

x

TABLE OF AUTHORITIES – Continued

Page

Street Services Coordination Center, City of

Portland, Shelter Data (Jan. 2024) (on file

with author) ......................................................... 5

Sweet Home Fire District, Facebook (Aug. 11,

2023), https://www.facebook.com/

permalink.php? story_fbid=

pfbid0hUEoxYroUbET5TH3anwYhPEL55

NtStm4JXcquqCBfS4fwEHNYU56BQDpg

jvQQnr7l&id=100091817258553 ...................... 11

U.S. Census Bureau,

QuickFacts: Pendleton, Oregon, https://

www.census. gov/quickfacts/fact/table/

pendletoncityoregon/PST045223 ...................... 14

U.S. Census Bureau,

Quickfacts: Port Orchard, Washington,

https://www.census.gov/quickfacts/fact/tab

le/portorchardcitywashington,US/PST045

222...................................................................... 14

U.S. Census Bureau,

QuickFacts: Sweet Home, Oregon, https://

www.census.gov/quickfacts/fact/table/

sweethomecityoregon/PST040223 .................... 11

U.S. Department of Housing and Urban

Development,

The 2023 Annual Homeless Assessment

Report (AHAR) to Congress, (Dec. 2023),

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

default/files/pdf/2023-AHAR-Part-1.pdf ......... 8, 9

xi

TABLE OF AUTHORITIES – Continued

Page

Whitney Woodworth,

Salem City Council to Review Spending

on Homeless Services, More at Monday

Meeting, STATESMAN JOURNAL (Sept. 10,

2022), https://www.statesmanjournal.com/

story/news/local/2022/09/10/salem-councilreview-homeless-services-spending-traffic

-plan-speed-bump-update-climate-actionplan/68034871007/ ............................................ 19

1

INTEREST OF THE AMICI CURIAE1

Founded in 1925, the League of Oregon Cities is

an intergovernmental entity consisting of Oregon’s

241 incorporated cities. Oregon cities formed the League

to be, among other things, the effective and collective

voice of Oregon’s cities before the courts.

The City of Portland is the largest city in Oregon

with a population of more than 600,000 people.

The Special Districts Association of Oregon formed

in 1979 to represent special districts in the Oregon

Legislature. There are currently 34 different types of

special districts in the association, including parks

and recreation districts and utility districts.2

The Association of Idaho Cities formed in 1947 to

advocate on behalf of Idaho’s 199 cities and to provide

education, training, and assistance to strengthen the

ability of city elected officials and staff to serve their

communities.

The Washington State Association of Municipal

Attorneys is a non-profit corporation comprised of

attorneys who represent Washington’s 281 cities and

1 Amici state as follows: (1) no party’s counsel authored the brief

in whole or in part; (2) no party or counsel contributed money

that was intended to fund preparing or submitting the brief; and

(3) no person other than amici, their members, or their counsel

contributed money that was intended to fund preparing or

submitting the brief.

2 Special Districts Association of Oregon, What Is A Special

District?, https://www.sdao.com/files/a3473de8b/what-is-specialdistrict.pdf (last visited Feb. 21, 2024).

2

towns. The association’s members frequently advise

their clients on common municipal challenges and

interpretations of the law, and reflect the collective

voices of Washington’s cities and towns.

INTRODUCTION

Local governments are on the front lines of

confronting homelessness in America. Unfortunately,

the Ninth Circuit’s decisions in Martin v. City of Boise,

920 F.3d 584 (9th Cir. 2019), and Johnson v. City of

Grants Pass, 72 F.4th 868 (9th Cir. 2023), have limited

local governments’ options to protect the health and

safety of their communities—both housed and unhoused.

Cities throughout the Ninth Circuit are facing growing

homeless populations. Individuals experiencing homelessness face significant struggles every day. Amici,

and the municipal governments they represent, are

responsible for addressing the unhealthy, dangerous,

and sometimes deadly consequences of homeless

encampments. The Ninth Circuit’s precedent limits

the tools available to local governments for tackling

this complex and difficult human issue.

Writing in dissent in Johnson, Judge Collins noted

that “it is hard to deny that Martin has generated dire

practical consequences for the hundreds of local governments within our jurisdiction, and for the millions

of people that reside therein.” Johnson, 72 F.4th at

914 (Collins, J. dissenting) (internal quotation marks,

citation, and alterations omitted). “Those harms,”

Judge Collins continued, “will be greatly magnified by

3

the egregiously flawed reconceptualization and extension of Martin’s holding in [Johnson].” Id. Amici representing many of the “local governments within [the

Ninth Circuit’s] jurisdiction” strongly agree with Judge

Collins’ concerns. This Court should overturn Martin

and Johnson.

ARGUMENT

The Ninth Circuit’s interpretation of the Eighth

Amendment imposes unworkable restraints on local

governments and has allowed unchecked encampments

to overwhelm public spaces and threaten the health

and safety of both housed and unhoused communities.

This Court should correct the Ninth Circuit’s errors in

this increasingly important area of the law.

I.

The Ninth Circuit’s Precedent Is Unworkable.

A. Cities Are Often Unable to Determine If

Shelter Is “Realistically Available” to

Unsheltered Homeless Individuals.

Martin and Johnson are unworkable because

there is no practical way for law enforcement officers

to determine whether an individual has “access to

adequate temporary shelter,” as those cases require.

See Martin, 920 F.3d at 617 n.8 (“[O]ur holding does

not cover individuals who do have access to adequate

temporary shelter, whether because they have the

means to pay for it or because it is realistically available to them for free, but who choose not to use it.”

(emphasis in original)). As a result, local governments

4

must often forego enforcement of generally-applicable

ordinances that prohibit camping on public property.

Law enforcement officials face numerous barriers

to determining whether an individual has access to

adequate temporary shelter. For example, does an

individual who lacks a long-term residence, but has

access to family or friends on any given night, “have

access to adequate temporary shelter” under Martin

and Johnson? Can a city enforce a camping ordinance

against an individual who does not live in the municipality and is merely passing through? Does an individual have access to adequate shelter if there are

available beds at a local shelter or at a shelter in a

neighboring community? How is a law enforcement

officer to know which, if any, of these scenarios apply

when deciding whether to enforce a sleeping or camping

regulation? The ambiguity and informational barriers

about the availability of adequate temporary shelter

make it challenging, if not impossible, for law enforcement to accurately determine whether they can enforce

a regulation under Martin and Johnson.

Even if a city could build enough shelters to house

its entire homeless population—a budgetary impossibility for most cities—it is not clear even that would

be enough. The Ninth Circuit does not recognize shelter

beds provided by religious institutions as “available”

to people experiencing homelessness. Martin, 920

F.3d at 610. Regardless, what if shelters, even if not

religious, have rules that would preclude some people

from using their services, like restrictions on pets,

single people, drug and alcohol use, and time of entry?

Law enforcement officials may lack information about

the rules at every shelter in their community or may

5

not know how such rules impact a particular person

camping on public property.

Further, many unsheltered homeless refuse to go

to a shelter, regardless of availability. Between April

2022 and January 2024, Portland, Oregon officials

report that they made approximately 3,500 offers of

shelter beds to people experiencing homelessness and

were declined 2,795 times, i.e., over 70% of the time.3

Multnomah County’s average daily shelter utilization

rate only reached 100 percent during November and

December 2023 in adult shelters, and the average daily

utilization rate across all other shelter types (alternative shelters, COVID-related shelters, and family and

youth shelters) ranged from 70.3 percent to 97 percent

in 2023.4

Small cities are no exception. Officials in Sweet

Home, Oregon report that many of the residents living

in the city’s designated camping area were unwilling

to comply with the rules for Sweet Home’s low-barrier

3 Street Services Coordination Center, City of Portland, Shelter

Data (Jan. 2024) (on file with author); see also City of Portland,

Weekly Street Services Report: February 19-25, 2024, Homelessness and Urban Camping Impact Reduction Program (Feb. 27,

2024), https://www.portland.gov/homelessnessimpactreduction/

news/2024/2/27/weekly-street-services-report-february-19-25-2024

(describing total shelter offers between April 11, 2022 and February

25, 2024).

4 Multnomah County, Or. Joint Office of Homeless Services,

Shelter Utilization in Multnomah County (Dec. 2023), https://

public.tableau.com/app/profile/johs/viz/ShelterUtilizationReport/

Report. During the remainder of 2023, the average daily adult

shelter bed utilization rate ranged from 90.2 percent to 93.7

percent. Id.

6

shelter facility, which include limitations on drug use,

property destruction, and inappropriate sexual activity.

Complying with the Ninth Circuit’s precedent

presents a practical impossibility because cities often

lack the information necessary to apply Martin and

Johnson to the facts on the ground.

B. The Ninth Circuit’s Precedent Provides

No Guidance on What Constitutes a

Permissible Restriction on the Time,

Place, or Manner of Camping on Public

Property.

Similarly, Martin and Johnson provide local governments little clarity regarding what laws are permissible.

Local governments have relied on Martin’s footnote 8,

which suggests that local governments can regulate

the time, place, and manner of encampments even

when shelter beds are unavailable. See Martin, 920

F.3d at 617 n.8 (“Even where shelter is unavailable,

an ordinance prohibiting sitting, lying, or sleeping

outside at particular times or in particular locations

might well be constitutionally permissible.”). But the

Ninth Circuit has not explained what constitutes a

“constitutionally permissible” time, place, and manner

restriction. See Johnson, 72 F.4th at 894 n.33 (“Because

the City has not established any realistically available

place within the jurisdiction for involuntarily homeless

individuals to sleep we need not decide whether

alternate outdoor space would be sufficient under

Martin.”). Thus, even where a city allows camping on

public property, it still faces the threat of federal

litigation and class-wide injunctive relief for not

7

allowing camping at all times and in all circumstances.5

A few examples highlight the issue. Portland,

Oregon recently enacted a law that allows camping at

night on public property but requires that campsites be

dismantled during the day (i.e., between 8 a.m. and 8

p.m.).6 Portland’s law also prohibits camping near

certain sensitive areas (e.g., preschools, construction

sites).7 Other cities have enacted similar restrictions on

daytime camping and camping in certain areas.8

Bend, Oregon recently enacted a law that permits

homeless individuals to camp on public rights-of-way

but requires that encampments move to a different

block every twenty-four hours.9 Although Amici believe

that these ordinances are constitutional, the Ninth

5 Austen Macalus, ‘No Place To Go’: How Kitsap Is Responding

To A Federal Court Ruling On Homeless Camping Laws, KITSAP

SUN (Dec. 8, 2019), https://www.kitsapsun.com/story/news/2019/

12/08/no-place-go-how-kitsap-responding-federal-court-rulinghomeless-camping-laws/2624812001/.

6 Portland, Or., Portland City Code 14A.50.020(C)(1) (2023),

https://www.portland.gov/code/14/a50/020.

7 Portland, Or., Portland City Code 14A.50.020(C)(2) (2023),

https://www.portland.gov/code/14/a50/020.

8 See, e.g., Vancouver, Wash. Municipal Code 8.22.040 (2023),

https://vancouver.municipal.codes/VMC/8.22.040 (restricting daytime camping and camping in certain areas); Sandy, Or. Municipal

Code 8.35.020 (2022), https://library.municode.com/or/sandy/codes

/code_of_ordinances?nodeId=TIT8HESA_CH8.35CAPRCEPL_

S8.35.020PRCA (same); Cornelius, Or. Municipal Code 9.10.250

(2022) https://www.codepublishing.com/OR/Cornelius/#!/Cornelius09

/Cornelius0910.html#9.10.250 (same).

9 Bend, Or. Municipal Code 4.20.30 (2023), https://bend.municipal.

codes/BC/4.20.030.

8

Circuit’s precedent subjects cities to the constant

threat of litigation about any regulation of camping on

public property as applied to individuals experiencing

homelessness.

II. Responding to Homeless Encampments Is

One of the Most Pressing and Complex

Problems for Local Governments.

A. Unsheltered Populations Have Increased

Dramatically in Recent Years.

Local governments in the Ninth Circuit are on the

front lines of responding to homeless encampments.

According to the U.S. Department of Housing and

Urban Development, western states report the highest

percentage of unsheltered homeless individuals.10

In 2023, all of the top five states with the highest

percentage of people experiencing unsheltered homelessness—California, Oregon, Hawaii, Arizona, and

Nevada—were in the Ninth Circuit.11

Oregon far exceeds the national rate of homelessness and ranks third in the nation in the percentage

10 U.S. Department of Housing and Urban Development

(“HUD”), The 2023 Annual Homeless Assessment Report (AHAR)

to Congress, at 16 (Dec. 2023), https://www.huduser.gov/portal/

sites/default/files/pdf/2023-AHAR-Part-1.pdf. “Unsheltered homelessness refers to people whose primary nighttime location is a

public or private place not designed for, or ordinarily used as, a

regular sleeping accommodation for people (for example, the

streets, vehicles, or parks).” Id. at 5. “Experiencing Homelessness

describes a person who lacks a fixed, regular, and adequate

nighttime residence.” Id.

11 Id. at 16.

9

of people experiencing homelessness who are unsheltered.12 Between 2022 and 2023, the number of

people experiencing homelessness in Multnomah

County, where the City of Portland is located, rose

by 29 percent.13 In Oregon, homelessness increased

by 8.5 percent overall between 2022 and 2023, while

the number of unsheltered people experiencing homelessness increased by 17.2 percent.14

From 2022 to 2023, the Idaho and Washington

homeless populations grew by 15 percent and 11

percent, respectively.15 Homeless encampments are

an increasingly urgent issue for local governments in

the Ninth Circuit.

B. The Proliferation of Homeless Camps

Poses a Monumental Challenge for Public

Resources.

The impact of the massive increase of people

sleeping in public areas is deeply felt. Portland,

Oregon receives thousands of citizen complaints each

week alleging that persons experiencing homelessness

are using drugs, engaging in domestic violence, and

leaving unsanitary waste (e.g., used tampons, feces)

on the ground.16 One clean-up effort exposed more

12 Id. at 30-31.

13 2023 Oregon Statewide Homelessness Estimates, Portland

State University, at 23 (Jan. 2024), https://drive.google.com/file/

d/1Gf7GkHDSTZzYdWT0eDAgfHdmhPkhW6xQ/view.

14 Id. at 3.

15 HUD, supra at 102, 113.

16 Blair Best, ‘We’re Done With Portland’: Some Residents Move

Away Over What They Say Is The City’s Lack Of Response To

10

than 150 stolen cars in a single Portland camp.17

Spokane, Washington, received 2,453 complaints about

unsanctioned encampments between 2022 and 2023,

a 54-percent increase over the prior year.18

A significant number of fires in Portland are

started in or near encampments—1,959 in 2022 and

1,457 in 202319—putting a strain on the city’s Fire &

Rescue Bureau, which responds to 5 or 6 of these fires

every night.20 In March 2023, a portion of Portland’s

Steel Bridge was closed for several days after a fire broke

Homeless Camps, KGW (Aug. 29, 2022), https://www.kgw.com/

article/news/local/homeless/portland-residents-move-washingtonover-lack-response-homeless-camps/283-6eea7e53-4a56-429697cc-f8fe106818c7.

17 Angelica Thornton, Officials Break Up Homeless Camp, Pull

Out 150 Stolen Cars, Tons of Trash, Live Pigs, KATU (Oct. 19,

2022), https://komonews.com/news/nation-world/city-breaks-uphomeless-camp-pulls-out-150-stolen-cars-tons-of-trash-live-pigsbig-four-corners-natural-area-portland-oregon-housing-crisisdamage-neighbor-george-donnerberg-park-and-rec-environmentalimpact.

18 Nate Sanford, Complaints About Unsanctioned Homeless

Camps in Spokane Skyrocketed This Year, I NLANDER (Sept.

21, 2023), https://www.inlander.com/news/complaints-aboutunsanctioned-homeless-camps-in-spokane-skyrocketed-this-year26673343.

19 Portland Fire & Rescue, Fire Marshal’s Office – Fire Locations,

https://public.tableau.com/app/profile/roy. lawson1690/viz/Flex

datestatisticsReportv9_16109949016810/Story1?publish=yes

(updated Feb. 23, 2024); see also Lucas Manfield, Data Shows

Fires at Homeless Camps Remained a Large Portion of Portland

Blazes Last Year, WILLAMETTE WEEK (Mar. 15, 2023), https://

www.wweek.com/news/2023/03/15/data-shows-fires-at-homelesscamps-remained-a-large-portion-of-portland-blazes-last-year/.

20 Portland Fire & Rescue, supra.

11

out in an encampment that residents had tunneled

into the cement structure under the bridge.21

Deschutes County, which encompasses the city

of Bend, Oregon, has assigned a full-time sheriff’s

deputy to patrol a road where a large encampment has

developed to prevent wildfires.22 Sweet Home, Oregon

(population 10,09023), fought five human-caused fires

in six weeks in an area occupied by unauthorized

campsites.24

The City of Vancouver, Washington has declared

a civil state of emergency due to unsheltered homelessness. City officials report an increase in weapons,

firearms, careless storage of drugs, violence, and drug

overdoses at homeless encampments.25 These issues

21 Gemma DiCarlo, Steel Bridge Reopens After Last Week’s Fire

Inside Onramp, OPB (Mar. 13, 2023), https://www.opb.org/article/

2023/03/13/portland-steel-bridge-camp-fire-onramp-oregonhousing-homelessness/.

22 Blake Mayfield, 35-year Bend Resident Leaving Oregon, Says

China Hat Road Homeless Encampments, Issues Continue to

Worsen, KTVZ (Dec. 6, 2023), https://ktvz.com/news/government-politics/2023/12/06/35-year-bend-resident-leavingoregon-says-china-hat-road-homeless-encampments-issuescontinue-to-worsen.

23 U.S. Census Bureau, QuickFacts: Sweet Home, Oregon, https:

//www.census.gov/quickfacts/fact/table/sweethomecityoregon/

PST040223 (last visited Feb. 27, 2024).

24 Sweet Home Fire District, Facebook (Aug. 11, 2023), https://

www.facebook.com/permalink.php?story_fbid=pfbid0hUEoxYro

UbET5TH3anwYhPEL55NtStm4JXcquqCBfS4fwEHNYU56BQ

DpgjvQQnr7l&id=100091817258553.

25 City of Vancouver, Declaration of Civil Emergency in and for

the City of Vancouver, No. 2023-01, at 2-4 (Nov. 3, 2023), https://

12

strain the city’s medical and emergency services, which

creates response time delays throughout the city.26

People experiencing homelessness in Medford,

Oregon set up camp in the Bear Creek Greenway, a

conservation and recreation area that follows a

tributary of the Rogue River. In addition to limiting

public access to the greenway and littering Bear

Creek with toxic materials ranging from human waste

to coolants to rubber tires, campers illegally trapped

salmon and other protected anadromous fish 27 in

makeshift “dams” made from tarps.28

City officials in Spokane, Washington report similar

environmental concerns. Homeless encampments on

the Spokane River create riverbank erosion issues and

place garbage, human waste, and drug paraphernalia

in the river.29 Spokane officials also report that throughout the city they collected nearly 400 tons of garbage

from homeless encampments in 2023 alone.

www.cityofvancouver.us/wp-content/uploads/2023/11/Declarationof-Civil-Emergency_2023-01.pdf.

26 Id. at 4.

27 Anadromous fish are born in freshwater tributaries like Bear

Creek, spend most of their lives in saltwater, and return to the

tributaries of their birth to spawn.

28 Nick Morgan, Illegal Fish Dams along Greenway Net 1 Arrest,

MAIL TRIBUNE (Oct. 21, 2022), https://news.yahoo.com/illegal-fishdams-along-greenway-035900800.html.

29 See, e.g., City of Spokane, Code Enforcement Supplemental

Field Report (Dec. 9, 2021) (on file with author) (noting over

14,000 pounds of garbage collected from critical river environment during single day of clean-up).

13

Seattle, Washington has invested $3 million into

programs to clean up litter and garbage across the

city, including 194 encampment trash pick-up locations.

This program collected 46,497 discarded needles and

over 335 tons of trash in June 2022 alone.30 The Oregon

Department of Transportation (“ODOT”) reports that

it spent $22 million on cleanup efforts on ODOT property during the years 2021 through 2023.31 ODOT has

requested additional funding of $20 million designated

for use in cleanup efforts on ODOT property in the

Portland, Oregon area, with $4 million dedicated specifically to cleaning up campsites.32

Salem, Oregon has created a dedicated “Outreach

and Livability Services Program” that provides assistance and resources to, among others, property owners

affected by trespassers, and picks up trash and other

waste left behind by unsheltered residents.33

30 Seattle, Wa. Parks & Recreation, Clean City Initiative, https:

//www.seattle.gov/parks/about-us/special-initiatives-and-programs/

clean-city-initiative (last visited Feb. 28, 2024).

31 Oregon Department of Transportation (“ODOT”), 2021-2023

ODOT Operational Report, at 7-8 (Jan. 2024) (graffiti cleanup is

included in this number), https://www.oregon.gov/odot/Get-Involved/

OTCSupportMaterials/Agenda_E_Operational_Report_PACKET.

pdf.

32 Id. at 9.

33 City of Salem, Responding to Sheltering in Public Spaces (Feb.

26, 2024), https://www.cityofsalem.net/government/shaping-salems-future/housing-shelter/learn-about-city-efforts-to-addresshomelessness/responding-to-sheltering-in-public-spaces.

14

Smaller communities face similar challenges. In

Port Orchard, Washington (population 17,08934), city

officials removed over 5 tons of trash, human waste,

cardboard, and abandoned tents and tarps from a

single encampment.35 Between May 2023 and January

2024, Pendleton, Oregon (population 17,07036) spent

over $60,000 in contractor fees for camp clean-ups.37

A new shelter opened in Sweet Home, Oregon in

2023.38 Sweet Home reports that it has made other

efforts to provide services to unhoused individuals.

For example, the city provides overflow camping on

public property when the shelter is full, lockers for

homeless individuals to securely store belongings,

lock boxes to securely charge cell phones, and has

worked with local partners to increase mental health

and addiction recovery services. Nonetheless, Sweet

34 U.S. Census Bureau, Quickfacts: Port Orchard, Washington,

https://www.census.gov/quickfacts/fact/table/portorchardcity

washington,US/PST045222 (last visited Feb. 28, 2024).

35 Elisha Meyer, Despite Cleanup, Neighbors Feel Unsafe as

Trash, Homeless Remain, PORT ORCHARD INDEPENDENT (Feb. 15,

2023), https://www.kitsapdailynews.com/news/despite-cleanupneighbors-feel-unsafe-as-trash-homeless-remain/.

36 U.S. Census Bureau, QuickFacts: Pendleton, Oregon, https://

www.census.gov/quickfacts/fact/table/pendletoncityoregon/

PST045223, (last visited Feb. 23, 2024).

37 John Tillman, Halfway Company Wins Pendleton Contract to

Clean up Homeless Encampments, EAST OREGONIAN (Feb. 10, 2023),

https://www.eastoregonian.com/news/local/halfway-companywins-pendleton-contract-to-clean-up-homeless-camps/article_

9486fe02-a89c-11ed-be4d-17e098decb33.html.

38 Benny Wescott, Homeless Shelter Opens in Sweet Home,

LEBANON LOCAL (Jan. 25, 2023), https://www.lebanonlocalnews.

com/homeless-shelter-opens-in-sweet-home/.

15

Home declared a state of emergency in March 2023

due to people experiencing homelessness.39

Relatedly, small towns often do not have the

resources to provide services and shelter beds to individuals experiencing homelessness, although those

resources may be available in neighboring communities.

Under Martin and Johnson, it is unclear whether

shelter beds available in neighboring jurisdictions are

“available” to people experiencing homelessness in a

small town. Compare Martin, 920 F.3d at 617 n.8

(“[O]ur holding does not cover individuals who do have

access to adequate temporary shelter, . . . because it is

realistically available to them for free. . . . ”) with

Johnson, 72 F.4th at 894 (affirming class certification

because “there is no available shelter in Grants Pass”)

(emphasis added).

Homeless encampments are not safe for anyone,

including those who live in them. In Portland, Oregon,

315 people died while homeless in 2022. 40 In Multnomah County, Oregon the mortality risk of unhoused

individuals was nearly 6 times higher for all causes of

39 Benny Wescott, City of Sweet Home Declares Homeless

State of Emergency, LEBANON LOCAL (Mar. 10, 2023), https://

www.lebanonlocalnews.com/city-of-sweet-home-declareshomeless-state-of-emergency/.

40 Sophie Peel, 315 Homeless Portlanders Died in 2022, Multnomah

County Says, WILLAMETTE WEEK (Dec. 20, 2023) https://www.

wweek.com/news/city/2023/12/20/315-homeless-portlanders-diedin-2022-multnomah-county-says/; see also Rebecca Ellis, 70% of

Pedestrians Killed in Portland Traffic Crashes Last Year Were

Homeless, Report Finds, OPB (Feb. 3, 2022), https://www.opb.

org/article/2022/02/03/70-percent-pedestrians-hit-cars-portlandwere-experiencing-homelessness/ (noting that 70% of Portland

pedestrians hit by cars are homeless).

16

death, 37 times higher for drug overdoses, and 32 times

higher for homicide, as compared to the general population.41 Also, Multnomah County is currently battling

a cluster of cases of antibiotic-resistant shigellosis among

people experiencing homelessness.42

The inability to manage encampments also exposes

cities to legal liability from other groups. For example,

last year the City of Portland settled a lawsuit that

alleged tents, encampments, and accompanying debris

on sidewalks violated the Americans with Disabilities

Act.43

Special districts have a particularly hard time

addressing the homelessness crisis. Some special districts maintain public property that is ill-suited to

public camping (e.g., utility infrastructure, public

waterways) but have no involvement in providing

shelter or other services to people experiencing homelessness. For example, the Klamath Irrigation District

operates on federal lands and has been tasked by the

Bureau of Reclamation with enforcement of 43 C.F.R.

part 423. This regulation, among other things, prohibits interference with agency operations, disorderly

41 Multnomah County, Domicile Unknown: Review of deaths

among people experiencing homelessness in Multnomah County

in 2022, at 5, (Dec. 2023), https://multco-web7-psh-files-usw2.s3us-west-2.amazonaws.com/s3fs-public/Domicile-Unknown-2022v3.pdf.

42 Multnomah County Health Department, What to Know About

Shigella, (Jan. 4, 2024), https://www.multco.us/health/news/whatknow-about-shigella.

43 Claire Rush, Portland, Oregon, to Clear Sidewalk Tents to Settle

Suit with People with Disabilities, ASSOCIATED PRESS (June 2,

2023), https://apnews.com/article/portland-ada-lawsuit-homelesstents-sidewalks-aee2d079440d5f9427a18d9e4771d92a.

17

conduct, fires under certain circumstances, and trespassing. See 43 C.F.R. §§ 423.22 (interference with

agency operations and disorderly conduct), 423.24

(trespassing), 423.31 (fires). Irrigation District officials

report that unpermitted public camping results in

vandalism, fires, and sanitation issues among other

problems, which interferes with the district’s ability

to comply with these requirements.

In sum, unfettered public camping wreaks havoc

on local communities. The Ninth Circuit’s precedent

in this area limits the tools available to municipalities

trying to respond to this urgent but complicated

problem.

III. Responding to the Hazards Created By

Public Campsites Distracts from Local

Governments’ Direct Efforts to Provide

Shelter and Services.

Local governments in the Ninth Circuit have not

been idle in the face of the growing crisis of homelessness. In March 2023, Oregon passed a $200 million

package to combat homelessness, which includes additional funding for shelter beds.44 The City of Portland

alone allocated $85 million for housing and services to

address homelessness in 2022-2023, and the tri-county

metropolitan area45 passed a tax measure in 2020

44 Nicole Hayden, $200 Million Housing, Homelessness Package

clears Legislature, OREGONLIVE (Mar. 21, 2023), https://www.

oregonlive.com/politics/2023/03/200-million-housing-homelessness-package-clears-legislature.html.

45 Comprised of Washington, Clackamas, and Multnomah counties

in Oregon.

18

that is expected to raise $2.5 billion for homelessness

services by 2030.46

Portland plans to add hundreds of additional

village-style shelter beds in the coming months and

expects to have a total of 780 village-style beds by the

end of 2024.47 Portland has also allocated $2 million

to open a new mental health treatment facility with

over 70 beds this fall.48

The City of Boise, Idaho leads a public-private

partnership of over 30 agencies that provides supportive

housing to residents experiencing homelessness.49 The

City of Salem, Oregon allocated over $23 million in

fiscal years 2022 and 2023 to homeless services.50 In

46 Angela Hart, ‘Not Safe Anymore’: Portland Confronts the

Limits of its Support for Homeless Services, LOS ANGELES TIMES

(June 21, 2022), https://www.latimes.com/world-nation/story/202206-21/portland-liberal-support-lags-homeless-services-drugs.

47 Courtney Vaughn, Portland Aims to Have 780 Village-Style

Shelter Beds Open by End of 2024, PORTLAND MERCURY (Feb. 8,

2024), https://www.portlandmercury.com/news/2024/02/08/47024179

/portland-aims-to-have-780-village-style-shelter-beds-open-byend-of-2024.

48 City of Portland, City of Portland to Allocate $2M for 70-bed

Behavioral Health Treatment Center in Central City (Jan. 4,

2024), https://www.portland.gov/wheeler/news/2024/1/4/cityportland-allocate-2m-70-bed-behavioral-health-treatmentcenter-central.

49 City of Boise, Ending Family Homelessness, https://www.

cityofboise.org/departments/planning-and-development-services/

housing-and-community-development/homelessness/ending-familyhomelessness/ (last visited Feb. 28, 2024).

50 Whitney Woodworth, Salem City Council to Review Spending

on Homeless Services, More at Monday Meeting, STATESMAN

JOURNAL (Sept. 10, 2022), https://www.statesmanjournal.com/

19

Oregon’s Marion and Polk counties, officials and

community partners added 125 shelter beds in 2023

and during that same time prevented 2,144 people

from entering homelessness and rehoused 330 people.51

And in Spokane, the city and Spokane County spent a

combined $30 million on homeless services in 2022.52

Local governments in the Ninth Circuit have

stepped up to help address the homelessness crisis.

However, city budgets are stretched thin and local

governments are often prohibited by state law from

carrying a deficit. Under Martin and Johnson, local

governments face an impossible choice. They can, on

one hand, spend more and more to build housing for

growing homeless populations so that they may enforce

local ordinances prohibiting sleeping and camping in

public areas. But such spending limits their ability to

adequately fund public health and safety and engage

in other critical work to support their communities.

On the other hand, local governments can forego

enormous spending on building shelters, but, if so,

they can no longer enforce ordinances designed to protect public spaces for all communities. The Eighth

Amendment does not require such a choice, and local

story/news/local/2022/09/10/salem-council-review-homelessservices-spending-traffic-plan-speed-bump-update-climateaction-plan/68034871007/.

51 City of Salem, Expanding Housing and Shelter (Feb. 5, 2024),

https://www.cityofsalem.net/government/shaping-salem-s-future/

housing-shelter/learn-about-city-efforts-to-address-homelessness/responding-to-sheltering-in-public-spaces.

52 Colin Tiernan, How Much Do Spokane and Spokane County

Spend on Homelessness?, THE SPOKESMAN-REVIEW (July 25,

2023), https://www.spokesman.com/stories/2023/jul/25/how-muchdo-spokane-and-spokane-county-spend-on-ho/.

20

governments in the Ninth Circuit cannot afford to

make it.

CONCLUSION

For the reasons stated in the Petitioner’s Brief

and this amicus curiae brief, this Court should overturn

the Ninth Circuit’s decisions in Martin and Johnson.

Respectfully submitted,

Anit K. Jindal

Counsel of Record

Harry B. Wilson

April M. Stone

MARKOWITZ HERBOLD PC

1455 SW Broadway, Suite 1900

Portland, OR 97201

(503) 295-3085

anitjindal@markowitzherbold.com

Counsel for Amici Curiae

March 4, 2024