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HomeMy WebLinkAboutCORRESPONDENCE - CS -1ASalas, Diana From: Sent: To: Cc: Subject: Attachments: CLOSED SESSION ITEM la AND 1b Mayor and City Council members, Chris S <chris714oc@gmail.com> Tuesday, December 17, 2019 3:41 PM eComment Pulido, Miguel; Sarmiento, Vicente; Penaloza, David; Solorio, Jose; Bacerra, Phil; Villegas, Juan; Iglesias, Cecilia; Ridge, Kristine; Carvalho, Sonia R.; Jennifer Peat; Nunez, Alvaro; Glen Dromgoole; Ken@lrvinePipe.com Fwd: What the..? image0jpeg;IMG_4031jpg Below is an email I received this morning with 2 attached pics from a Property Manager, Jennifer Peat, who manages the business park at Main and Dyer in Santa Ana. This business park is located right next to the Union Pacific railroad tracks at Main and Goetz, and has been negatively impacted by all the encampments on Union Pacific property. Over the last several years, this section of South Main St has been severely impacted by homeless encampments in full public view from individuals who receive services at MHA during the day and sleep in the public right of way or businesses at night. In the attached pics, you see 2 vehicles (white SUV with a County of Orange sticker and a dark colored van) parked in the parking lot of this private business and several County workers giving medical treatment to a male sitting in the back of one of the vehicles. In the second pic, you can see all the medical waste left behind on private property by the County staff instead of properly disposing of the medical waste. I am glad to see this person receiving medical treatment, but how are County staff allowed to give medical treatment on private property without the property owner's permission? Would this expose the property owner to any potential legal liabilities if the individual/s did not receive proper medical treatment from County staff on private property? This was obviously not a medical emergency or else 911 would have been called and OC Fire Authority would have responded to provide medical treatment. This person should have been transported by County staff to a proper medical facility to receive treatment instead of using the parking lot of a private business. Previously, the same Property Manager also had to send a cease and desist letter to a private individual who was repeatedly parking their vehicle in this same parking lot, and then walking over to the railroad tracks to talk with homeless individuals. The owner of the vehicle would bring homeless individuals back to the parking lot and hand out medical supplies for IV drug injections from the back of her vehicle. I remember seeing this same individual in the Civic Center passing out needles with the needle exchange operators. I would greatly appreciate if you would identify all possible legal options to prevent this happening again in our city, and ensure the County of Orange and its staff are not trespassing onto private property to provide medical treatment and leaving medical waste behind for people to come in contact with. Kind regards, Chris Schmidt ---------- Forwarded message --------- From: Jennifer Peat <jennifer@peatco.net> Date: Tue, Dec 17, 2019 at 9:08 AM Subject: What the..? To: Chris S <chris714oc&mail.com>, Chris - can you look at this photo and tell me what's going on in my parking lot? The guy with the blue jacket and clipboard was driving the county vehicle on the right. There's a nurse (?) providing medical care to a transient with an open wound on his leg - all on our private property? There was also medical trash left in the parking lot! Sent from my Whone (Please excuse any errors) �.: �� �., r `I c•� ^40� Salas, Diana From: Houston, Nicole Sent: Tuesday, December 17, 2019 2:44 PM To: eComment Subject: FW: Homeless closed session item on tonight's agenda and a proposed action plan Attachments: Building the System of Care April 17, 2018 BOS presentation.pdf; Central Spa Emergency Beds.pdf; 7 OC City Amicus Brief to SCOTUS on Martin v Boise.pdf; Homeless Point in Time Summary.png; Draft Homeless Action Plan (121719).docx Kind Regards, Nicole Houston I Executive Assistant City Manager's Offices nhouston@santa-ana ore 714.647.5200 120 Civic Center Plaza ISanta Ana, CA 92701 2020 SANTA ANA COUNTS This email and any files or attachments transmitted with it may contain privileged or otherwise confidential information. If you are not the intended recipient, or believe that you may have received this communication in error, please advise the sender via reply email and immediately delete the email you received. From: Lisa Mills [mailto:lmills007@yahoo.com] Sent: Tuesday, December 17, 2019 12:22 PM To: Phil Bacerra <phil@philbacerra.com>; Penaloza, David <DPenaloza@santa-ana.org>; Iglesias, Cecilia <Clglesias@santa-ana.org>; Solorio, Jose <JSolorio@santa-ana.org>; Sarmiento, Vicente <VSarmiento@santa-ana.org>; Villegas, Juan <JVillegas@santa-ana.org>; Pulido, Miguel <MPulido@santa-ana.org> Cc: Ridge, Kristine <kridge@santa-ana.org>; Carvalho, Sonia R. <SCarvalho@santa-ana.org>; Valentin, David <DValentin@santa-ana.org>; Paulson, Eric <EPaulson@santa-ana.org>; Mendoza, Steven <SMendoza@santa-ana.org> Subject: Homeless closed session item on tonight's agenda and a proposed action plan Dear Mr. Mayor and Members of the City Council, We need to take action. In the last few months: • Supervisor Do has moved ahead with the Yale Shelter breaking his promise to the city council and the community. • Supervisor Bartlett voted against the Yale Street shelter because she wanted to house homeless from South Orange County if beds were available. • San Clemente has shut their only city shelter and has decided to bus the homeless to the armories. This will be a joint effort with the cities of San Juan Capistrano and Dana Point. • Ten Mayors from South Orange County (in a recent article) stated that County - funded homeless shelter beds in other areas should be available for their homeless population. They want to abandon the Regional System of Care of North, Central and South spas. This position was reinforced with seven of these cities filing an amicus brief on the Boise vs Martin Supreme Court case (see attachment). . The County hasn't identified additional shelter sites in South County or other cities in the Central Spa (attached is a list of the current shelters in the Central Spa). My email to Judge Carter on June 11, 2018 (see below) is still relevant to our situation today. It also explains why Santa Ana's homeless counts increased significantly in 2018. Attached is a draft action plan for your review and discussion. We are a compassionate city and we continue to help the homeless population. Who is protecting the residents and businesses of Santa Ana? Lisa Mills ----- Forwarded Message ----- From: Lisa Mills <lmills007(wvahoo.com> To:doc chambers(6-vcacd.uscourts.gov<doc chambers�ucacd.uscourts.gov> Cc: Miguel Pulido <�ulida santa-ana.org>; Jose Solorio <jsolorio @santa-ana.org>; Vicente Sarmiento <vsarmientona santa- ana.or >; Michele Martinez <mimartinezj2sama-ana.org>; Sal Tmajero <stinaicro asanta-ana.org>; Juan Villegas <jvillegas(cilsanta- ana.or >; David Benavides <dbenavides(c�,santa-ana.ore>; Sonia R. Carvalho <scarvalho@santa-ana.org>; Raul Godinez <r¢odinez( Santa-ana.org>; Robert Cortez <rcortez5@sauta-ana.org>; Andrew Do <andrew.do t ocgov.com>; Kim Frank [HOA] <Fank kim(a�ocgov.com> Sent: Monday, June 11, 2018, 4:51:15 PM PDT Subject: June 13 Court hearing for additional emergency homeless shelters Dear Honorable Judge Carter, On June 13t', the County is tasked with bringing you three sites for emergency shelters. The City of Santa Ana residents and businesses are anxiously waiting for help in dealing with the homeless crisis. On June 5t1i, Chairman Andrew Do stated that a fractious Santa Ana City Council was creating a "fake crisis" regarding the MHA facility; and that the Santa Ana Police department cleared the Plaza of Flags. The relocation of the homeless individuals was the result of your court directive. He also stated the city council needed to speak with a unified voice. As a concerned resident, I have found the City Council to be unanimous on their homeless strategy. Our city is compassionate and willing to do more with permanent supportive housing. We also support relocating the Courtyard shelter to a more appropriate building and site within Santa Ana. Chairman Do is a good man trying to help solve the homeless crisis. Unfortunately, most of the resources and the associated impacts are in his district. He is receiving push back from the City of Santa Ana because the neighborhoods and businesses have seen a significant increase in the homeless population in the last year. His frustrations with the City were evident on June 5'. In reality, his frustration should be with his colleagues and cities outside his district. The following points comprise the reasons that Santa Ana needs relief and assistance from other cities in Orange County: County Funded Beds (Building the System of Care Report April 17, 2018 — page 41) Forty-nine percent (641) of these beds are in Santa Ana. As a result of the original agreement reached with your court, the County and the riverbed attorneys, 76 beds additional beds were created for a total of 717. Santa Ana was not a party to the original lawsuit and was not consulted about adding these beds but has agreed to them. In comparison, Anaheim Bridges at Kraemer has 193-200 beds and the Fullerton Armory has about 216. July 16, 2018 — Armories will close The current homeless count at each armory is about 120 people. There is no space at the current shelters to house these individuals. The Courtyard and Bridges at Kraemer are essentially full. Furthermore, the Fullerton armory is slated to close permanently based on an agreement reached with the cities and County. No similar agreement was reached with Santa Ana, so the Santa Ana armory must remain open next year and the Fullerton armory will close. Origins of Homeless Individuals(Building the System of Care Report — page 10) Based on client entries from July 2017 to January 2018, 50% of the individuals housed at the Courtyard were from outside of the Central Service Planning Area. Engagement with Encampments(Building the System of Care Report — page 40) Of the 697 individuals from the riverbed that were motel -sheltered, 359 individuals declined any sort of services or shelter or left before they could be assessed. Of the 234 individuals at Santa Ana Civic Center, 135 individuals declined assistance/left area without linkage Bottom line, 494 individuals declined assistance/shelter or left before being assessed. Where are they now? They are in our parks, neighborhoods, and city streets. Santa Ana Point In Time Count (Homeless Impact on Santa Ana — April 3, 2018 report) The count was conducted on March 31, 2018. The result— 1030 unsheltered homeless that represents 564 additional homeless in Santa Ana since the 2017 point in time count. This number is close to the 494 individuals that declined any sort of services or shelter. 3 If we could encourage these individuals to seek shelter, there is no room at the Courtyard for them. The Courtyard has sheltered between 397 to 414 individuals per night over the past few weeks. When the armories close on July 16, 2018 where will the additional 240 people currently being served seek shelter? Social Justice Santa Ana is 78% Latino. The majority of homeless are not Latino. Our city is only 27 square miles. Anaheim is 51 squares miles and Irvine is 66 square miles - the largest in Orange County. There are four county -funded facilities in Santa Ana's small geographic area that assist the homeless population: Santa Ana Armory, MHA Center, the Crisis Intervention Center, and the Courtyard. All of these facilities are located in economically disadvantaged, densely populated, minority neighborhoods. Most of our residents cannot attend public hearings because they are busy working and raising their children. Judge Carter, you have been their voice in requesting other cities step up and help identify other sites countywide. Santa Ana wants a `Bridges" type shelter just like Anaheim. We want other cities to provide 24/7 homeless services, transitional facilities and permanent supportive housing. Thank you for bringing fairness, accountability, and a regional solution to the homeless crisis. 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ROBERT MARTIN, ET AL., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF FOR AMICI CURIAE SEVEN CITIES IN ORANGE COUNTY IN SUPPORT OF PETITIONER JOHNA. VOGT JONES DAY 3161 Michelson Drive Suite 800 Irvine, CA 92612 YAAKOV M. RoTH Counsel of Record ALEX POTAPOV BENJAMIN J. CASSADY JONES DAY 51 Louisiana Ave., N.W. Washington, DC 20001 (202) 879-3939 yroth@jonesday.com Counsel for Amici Curiae I TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................... ii INTEREST OF AMICI CURIAE...............................1 INTRODUCTION & SUMMARY OF ARGUMENT........................................................... 2 ARGUMENT............................................................... 4 I. WHAT DOES IT MEAN FOR SHELTER TO BE AVAILABLE?....................................................... 4 A. It Is Unclear Where Shelter Must BeAvailable..................................................... 4 B. It Is Unclear What Kind of Shelter Must Be Available ............................................ 7 C. It Is Unclear When Shelter Must BeAvailable ................................................... 10 II. HOW SHOULD SHELTER AVAILABILITY BE MEASURED?..................................................... 13 A. It Is Prohibitively Difficult To Measure the Number of Homeless Individuals ........... 13 B. It Is Also Difficult To Assess the Number of Available Shelter Beds ................ 15 III. WHAT OTHER LAWS WILL BE AFFECTED? ............ 17 CONCLUSION......................................................... 21 ii TABLE OF AUTHORITIES Page(s) CASES Aitken v. City of Aberdeen, No. 3:19-cv-05322-RBL, 2019 WL 2764423 (W.D. Wash. July 2, 2019) .................... 19 Blake et al. v. City of Grants Pass, No. 1:18-cv-01823-CL, 2019 WL 3717800 (D. Or. Aug. 7, 2019) ............................. 19 Clinton v. Cody, No. H044030, 2019 WL 2004842 (Cal. Ct. App. May 7, 2019).................................... 5 Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424 (2002)................................................ 6 Hung v. Schaaf, No. 19-cv-01436-CRB, 2019 WL 1779584 (N.D. Cal. Apr. 23, 2019).......................19 In re Eichorn, 81 Cal. Rptr. 2d 535(1998).................................. 20 Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) .......................passim Manning v. Caldwell, 930 F.3d 264 (4th Cir. 2019)................................ 20 Quintero v. City of Santa Cruz, No. 5:19-cv-01898-EJD, 2019 WL 1924990 (N.D. Cal. Apr. 30, 2019)....................... 19 nl TABLE OF AUTHORITIES (continued) Page(s) Shipp v. Schaaf, No. 19-cv-01709-JST, 2019 WL 1644401 (N.D. Cal. Apr. 16, 2019)....................... 19 Tobe v. City of Santa Ana, 892 P.2d 1145 (Cal. 1995)...................................... 5 STATUTES Cal. Welf. & Inst. Code § 17000.................................. 5 OTHER AUTHORITIES County of Orange, Everyone Counts: 2019 Point in Time Final Report (July 30, 2019)................................ 14 Sarah Gerry, Note, Jones v. City of Los Angeles: A Moral Response to One City's Attempt to Criminalize, Rather than Confront, Its Homelessness Crisis, 42 Harv. C.R.-C.L. L. Rev. 239 (2007)................. 18 League of California Cities, 2017 City Population Rankings ............................. 5 Lolita Lopez & Phil Dreschler, NBC Los Angeles, Gangs of LA on Skid Row (Feb. 19, 2018)..................................... 15 INTEREST OF AMICI CURIAE' Amici are seven Cities in Orange County, California: the City of San Clemente, the City of San Juan Capistrano, the City of Lake Forest, the City of Laguna Hills, the City of Rancho Santa Margarita, the City of Mission Viejo and the City of Aliso Viejo. All of the Amici Cities share an interest in enforcing their public health and safety ordinances, and in effectively addressing the serious social problems associated with homelessness. 1 Pursuant to Rule 37.2(a), counsel for all parties received timely notice of the Cities' intent to file this brief, and consented to the filing of the brief. No counsel for any party authored this brief in any part, and no person or entity other than amici, amici's members, or amici's counsel made a monetary contribution to fund its preparation or submission. AV INTRODUCTION & SUMMARY OF ARGUMENT The decision below held that, under the Eighth Amendment, homeless individuals may not be penalized "for sleeping outdoors, on public property, when no alternative shelter is available to them." Pet.App. 36a. Although this rule may appear straightforward at first glance, in reality it gives rise to a welter of conceptual and practical imponderables. As a result, if this decision remains in effect, local governments throughout the Ninth Circuit may find themselves unable to enforce a wide range of public health and safety ordinances. The dangerous confusion wrought by the opinion below —which many of the Amici have already experienced firsthand — compels review. 1. To begin, it is not clear what it means for shelter to be "available" to a homeless individual. One open question is where shelter must be available. If the shelter must be located in the jurisdiction that is attempting to enforce the ordinance, then even small towns may suddenly be charged with maintaining a substantial stock of shelter beds. Similarly, it is unclear what kind of shelter must be available. For example, amicus San Clemente has sought to comply with the decision below by designating a city -owned lot as a camping area for homeless individuals. But homeless advocates have argued that the decision below requires indoor shelter to be available before anti -camping ordinances can be enforced. And San Clemente has faced a barrage of complaints about the lot's conditions, including claims that the Constitution requires the City to provide cell - phone charging stations for the homeless. 3 Nor is it clear at what time availability should be measured. If the answer is "at the moment of enforcement," then a homeless person could immunize himself from public camping ordinances simply by violating shelter rules and getting evicted (with the result that the shelter would no longer be "available" to him). That cannot be right. But nor can any other answer be reasonably drawn from the decision below. II. There are also difficult questions concerning how to measure whether shelter is available. The decision below arguably allows enforcement of public sleeping ordinances only if the number of available shelter beds exceeds the number of homeless persons in the jurisdiction. But calculating the number of homeless individuals is prohibitively difficult. Nor is it straightforward to monitor the number of available shelter beds, especially given that some shelters are privately run, and not all shelter beds are available to all homeless individuals. In the end, many local governments may simply cease to enforce their public sleeping and camping ordinances rather than attempt to comply with the onerous requirements imposed by the decision below — indeed, some cities have already done so. III. Finally, it is unclear what other laws are cast into doubt by the decision below. The opinion's logic is sweeping. It is possible that, beyond sleeping and camping ordinances, the decision prohibits cities from enforcing laws that prohibit sleeping in designated areas or at certain times; laws that prohibit obstructing traffic; laws that prohibit lighting fires or building of structures on public land; and even laws against public urination, defecation, and drug use. n Ultimately, what all of these problems illustrate is that the panel's approach to this matter is profoundly mistaken. A particular homeless individual's inability to comply with the law should be addressed in that individual's criminal proceeding, perhaps through the assertion of a necessity defense. Attempting to solve the problem wholesale via broad pre -enforcement injunctions inevitably begets precisely the confusion that the decision below has already caused. For these reasons, this Court should intervene. ARGUMENT I. WHAT DOES IT MEAN FOR SHELTER TO BE AVAILABLE? A. It Is Unclear Where Shelter Must Be Available One significant question created by the Ninth Circuit decision is where the requisite shelter must be available —in other words, what is the jurisdictional level at which its rule must be applied. Given that the rationale for the rule is that it is improper to punish involuntary behavior, Pet.App. 61a- 62a, the relevant question would seem to be whether shelter is available in any jurisdiction that the homeless individual could reasonably access. But the decision below arguably goes broader. Instead, public sleeping and camping ordinances cannot be enforced as long as "there is a greater number of homeless individuals in a jurisdiction than the number of available [shelter] beds." Pet.App. 62a (emphasis added and internal quotation marks and alterations omitted); see Pet.App. 43a-51a (considering only whether shelters were available in Boise). This is certainly the interpretation adopted by homeless advocates. 5 That rule, however, makes little sense. Especially in areas containing many small jurisdictions, it may be completely impractical to ensure that each one has its own sufficient shelter space to house the maximum number of homeless individuals that might be present in that jurisdiction at a given time. California, for example, has over 100 incorporated cities with fewer than 10,000 residents each.2 Moreover, in some states —including California — the primary responsibility for providing indigent care lies with a different level of government than the primary responsibility for enforcing basic public order ordinances. While cities such as San Clemente enact ordinances regarding public sleeping and camping, it is counties that are charged by state law with caring for the indigent. See Cal. Welf. & Inst. Code § 17000; Tobe v. City of Santa Ana, 892 P.2d 1145, 1165 n.18 (Cal. 1995) ('If the inability of ... homeless persons ... to afford housing accounts for their need to `camp' on public property, their recourse lies not with the city, but with the county" to whom the legislature "allocat[ed] ... responsibility to assist destitute persons."); Clinton v. Cody, No. H044030, 2019 WL 2004842, at *8 (Cal. Ct. App. May 7, 2019) ("[C]ounties, not cities, have a statutory obligation regarding housing for the indigent."). Under the Ninth Circuit's rule, then, cities can only enforce their ordinances by taking on the obligations that state law assigns to counties. The decision below thus works a significant and unwarranted intrusion 2 See League of California Cities, 2017 City Population Rankings, available at https://www.cacities.org/Resources- Documents/About-Us/Careers/2017-City-Population-Rank. aspx. on California's scheme of governance. Cf. Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 437 (2002) ("Whether and how to use th[e] discretion [to delegate governmental powers to local government units] is a question central to state self-government.")3 The Ninth Circuit's rule also raises an additional puzzle. Suppose that, in an attempt to comply with the decision below, a city purchased a building in a neighboring city in order to operate it as a shelter. Are those beds "available" to homeless individuals in the city that owns and operates the shelter, or would that city violate the Eighth Amendment by enforcing its anti -camping ordinance in reliance on that shelter? Would the answer change if the city offered to provide free transportation to the shelter? How convenient would that transportation have to be? The decision below provides no answers —and no certainty. Furthermore, some homeless individuals may assert that they have a legal or practical obligation to remain in a limited geographical area (for example, to receive treatment for addiction). For such individuals, must shelter be "available" within that limited area? Again, the opinion below is silent. 3 The confusion as to the relevant jurisdictional level is reflected in a settlement that Orange County entered in order to resolve claims resembling those addressed by the decision below. Notice of Filing Settlement of Class Action, Orange Cty. Catholic Worker o. Orange Cty., et al., No. 8:18-cv-00155, Dkt. 318 (C.D. Cal., July 23, 2019). Orange County agreed that, in attempting to place homeless individuals in shelters, it would not transport those individuals across "Service Planning Areas." Id. at 10. These "Service Planning Areas" are arbitrary units with no preexisting jurisdictional significance or relevance under state law or otherwise. See id. at 9. 7 B. It Is Unclear What Kind of Shelter Must Be Available The Ninth Circuit's opinion also provides precious little guidance as to what sort of accommodations must be provided at a shelter in order to "qualify" as a true alternative to violating a public camping ordinance. Perhaps the most basic question is whether the shelters must be indoors. This is of immediate practical concern to amicus San Clemente. Seeking to comply with the decision below, San Clemente adopted an emergency ordinance designating a city -owned lot as a camping site where anti -camping ordinances would not be enforced.4 The City contracted for a decomposed granite floor covering, lighting and fencing, and bathroom facilities for the homeless population to use while at the site.5 The City also provides security, including cameras and a security guards In addition, City staff have coordinated with a homeless -outreach service provider to make regular visits to the site to offer various social services.? The City's objective is to ensure that the homeless have a place to sleep without violating the law —such that the City's ordinances may be constitutionally enforced in the rest of the City. 4 See Request for Judicial Notice at 9-14, Housing Is a Human Right Orange Cty. et al. a. Cty. of Orange et al., No. 8:19-cv-00388, Dkt. 72-2 (C.D. Cal. July 1, 2019). B Declaration of Erik Sand, ¶¶ 2, 5, Housing Is a Human Right Orange County et al. a. The County of Orange et al., No. 8:19-cv-00388, Dkt. 75-2 (C.D. Cal. July 1, 2019). 6Id. ¶¶2,6. 7Id. ¶¶ 10, 11. H Under the basic logic of the opinion below, the availability of an outdoor camping area like the San Clemente lot should allow a jurisdiction to enforce its public sleeping ordinances. After all, the underlying question is whether the homeless person had no choice but to sleep in an area where sleeping is prohibited. Pet.App. 62a-63a. The San Clemente lot gives homeless individuals a choice by providing them with an alternative place to sleep. However, homeless plaintiffs have invoked stray language in the opinion which suggests that only indoor shelter is acceptable. Pet.App. 62a (suggesting that the question is whether one has the "option of sleeping indoors"). If that is the rule, then no jurisdiction could enforce its public sleeping ordinances unless it erected and maintained sufficient indoor shelter space to house its entire homeless population —a prohibitively expensive proposition. See Pet.App. 17a-18a (M. Smith, J., dissenting from denial of rehearing en bane). Even assuming an outdoor lot is acceptable, the next question is what accommodations must be offered at that site (or for that matter at any other kind of shelter). For example, San Clemente has already had to contend with claims that conditions at its outdoor lot violate both the Fourteenth Amendment and the Americans with Disabilities Act, among other laws. Plaintiffs have asserted, among other things, that the lot violates the law because (1) it has overflowing trash receptacles; (2) there is no shade; (3) one must climb a hill to get to the site; (4) at the entrance to the camp, "the land dips several inches and there is a divot"; (5) the portable toilets are not serviced often N enough; (6) there is no easily accessible parking; (7) it is necessary to walk ".35 miles" to get to an area where cooking is permitted; and (8) there is no place for residents to charge cell phones.8 The uncertainty around claims of this sort is putting insurmountable pressure on cities and counties to settle, rather than expose themselves to costly litigation and the threat of damages under Section 1983. See, e.g., Notice of Filing Settlement of Class Action, Orange Cty. Catholic Worker u. Orange Cty., et al., No. 8:18-cv-00155, Dkt. 318 (C.D. Cal., July 23, 2019). Finally, yet another category of questions concerns whether, and under what circumstances, a shelter's policies can render it unavailable for a given homeless individual. For example, many shelters have a religious orientation. See, e.g., Pet.App. 37a-39a. Is such a shelter unavailable to an individual who advances a religious objection? The panel suggested that "coerc[ing] an individual to attend religion -based treatment" "via the threat of prosecution" would violate the Establishment Clause. Pet.App. 47a. If that position is correct, it would potentially eliminate all religious shelters from the calculus required by the decision below. Moreover, it would also be necessary to ask what other constitutional rights may render large categories of shelters unavailable. For example, could "coerc[ing]" an individual to stay at a shelter that requires residents to surrender certain dangerous items constitute a Fourth Amendment violation (or a 8 Memorandum in Support of Ex Parte Application for a Temporary Restraining Order at 5, 15-18, Housing Is a Human Right Orange Cty. et al. u. Cty. of Orange et al., No. 8:19-cv-00388, Dkt. 69-1 (C.D. Cal. June 30, 2019). 10 Second Amendment violation, for that matter)? Could a shelter policy against using profane language violate a resident's free speech rights? All of this remains to be determined, if the decision below holds. Other questions readily present themselves, too. For example, some shelters are open exclusively to men or to women. See, e.g., Pet.App. 38a-39a. Is such a shelter "available" to a married individual whose spouse would be excluded? Does that implicate his constitutional due process rights? Similarly, some have asserted that homeless individuals who own pets should not be required to use a shelter which does not allow pets. Indeed, it has been suggested that some homeless individuals are acquiring pets in the hopes that this will exempt them from the enforcement of anti -camping ordinances. In addition, some shelters may not admit persons with prior convictions for various serious offenses (such as violent crimes or sex crimes). Under the Ninth Circuit rule, does every jurisdiction have to maintain a separate shelter for such individuals? In short, the question of what constitutes "adequate" shelter remains profoundly unsettled. C.It Is Unclear When Shelter Must Be Available There are also serious lurking questions as to when a homeless individual must have access to shelter. The answer may appear to be obvious: shelter must be available as of the moment when the government attempts to enforce its ordinance. But that approach quickly devolves into paradox. Consider a shelter which (as any shelter must) imposes some basic rules on its residents, such as a 11 prohibition on assaulting other residents. Should such a shelter still be viewed as available to an individual who does not wish to abide by those rules? The answer must surely be yes. But now imagine that the same individual checks in to the shelter, violates the rule against assaulting other residents, and is evicted as a result. Should the shelter now be regarded as available? If the question is considered at the time of enforcement, the answer would appear to be no. See Pet.App. 48a-49a (suggesting that its rule would apply to individuals who were "denied entry" to a shelter "for reasons other than shelter capacity"). This cannot be right. There is no justification for allowing homeless individuals to exempt themselves from public sleeping ordinances simply by violating rules that, ex ante, all would agree they should be expected to follow. This is no mere theoretical construct. The Orange County Sheriffs Department —which is the contract law -enforcement agency for many cities within its borders —has advised amicus San Clemente that its officers would not enforce the City's public camping ordinance against individuals who have been evicted from the San Clemente campsite, claiming that such enforcement is barred by the decision below. This regime —which rewards willful violations of even the most uncontroversial shelter rules —is perverse and dangerous. And the same sort of temporal paradox reappears in any number of contexts. For example, the opinion below notes that two shelters in Boise deny admission to anyone arriving after 8 PM. Pet.App. 48a. If availability must be measured at the moment of 12 enforcement, a homeless individual could be cited for camping in public at 7:30 PM, but not at 8:30 PM (even though it would still be true at 8:30 PM that she had been free to go to the shelter at 7:30 PM). The Boise shelters described in the opinion below also do not allow individuals who voluntarily leave the shelters to return immediately. Pet.App. 48a. It would be odd to treat a shelter as unavailable to someone who is excluded from it only because he made a choice to leave; yet that is what the opinion below suggests. Pet.App.48a-49a. Another version of the same difficulty arises with respect to homeless individuals who travel from one location to another. Suppose there is adequate shelter in City A, but a homeless individual makes a voluntary decision to relocate to City B. Should shelter in City A be viewed as available to that individual? May City B, at least, impose a durational residency requirement such that its shelters are available only to persons who have lived in City B for some prescribed period? Prohibiting such requirements would be untenable as a practical matter; a desirable city could be forced to provide more and more shelter, ad infinitum, as more homeless individuals arrived from all over the country. And yet, again, that is arguably what the decision below would require. In all of these examples, the conceptual problem is traceable to the difficulty of assessing when an action should be considered "voluntary." The decision below completely fails to grapple with this question. Jones v. City of Los Angeles —an earlier Ninth Circuit opinion which reached the same conclusion but was vacated due to settlement —analyzed the matter a bit more 13 carefully. 444 F.3d 1118, 1132 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007). Jones suggested that the underlying question was whether an individual's "past volitional acts" were "sufficiently proximate to the conduct at issue ... for the imposition of penal sanctions to be permissible." Id. at 1137. Under that framework, the issue in the examples above would be whether the lack of available shelter is so tightly linked to an individual's prior volitional acts that the individual should be viewed as sleeping on the streets voluntarily, even if no shelter is available to her at that precise moment. But it is not clear whether the decision below leaves room even for that modest qualification. And even if it did, the exception would not be administrable. There is no practical way for city officials making street -level enforcement decisions to conduct an all -things -considered evaluation of which "past volitional acts" (if any) deprived a particular homeless person of access to shelter. II. How SHOULD SHELTER AVAILABILITY BE MEASURED? A. It Is Prohibitively Difficult To Measure the Number of Homeless Individuals The opinion below declares that public sleeping ordinances cannot be enforced "so long as there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters." Pet.App. 62a (quotation marks & alterations omitted). Thus, to determine whether it may enforce its ordinances, a local government must determine how many homeless individuals are within its jurisdiction. Obtaining that information, however, is virtually impossible. 14 One logical place to start would be the "Point in Time" count (or "PIT Count"), a federally required census of the homeless population. However, the PIT Count of the unsheltered population is conducted only once every two years.9 Thus, at most times the PIT Count information will be significantly out of date, especially given that homeless populations fluctuate dramatically. While governments may attempt to adopt enforcement policies based on the most recent PIT Count, it is far from certain that courts will treat the PIT Count as a safe harbor. Any attempt to count the homeless population more frequently —for example, on any day when the local government would wish to enforce its public sleeping or camping ordinances —would be impossibly expensive and difficult. As Judge Smith noted, someone would have to "painstakingly tally the number of homeless individuals block by block, alley by alley, doorway by doorway." Pet.App. 16a (M. Smith, J., dissenting from denial of rehearing en bane). In Los Angeles, for example, this task requires three days even with the participation of thousands of volunteers —and still fails to produce a complete count. Pet.App. 16a. Further, the problems of counting the homeless population are compounded by the fact that, for purposes of the decision below, not every individual sleeping on the streets should be counted. As the B See County of Orange, Everyone Counts: 2019 Point in Time Final Report 13 (July 30, 2019); Pet.App. 36a-37a (noting that the most recent available data for Boise was from 2016, and claiming that the `TIT Count likely underestimate[d] the number of homeless individuals" in the area). 15 panel explained, its "holding does not cover individuals who do have access to adequate temporary shelter," such as individuals who "have the means to pay for it" but decline to do so. Pet.App. 62a n.8. Accordingly, to obtain an accurate count of individuals for whom shelter must be made available, local governments would have to somehow distinguish between individuals who are sleeping outside by necessity and those who are doing so by choice. There is simply no feasible way to do this.10 B. It Is Also Difficult To Assess the Number of Available Shelter Beds Continually measuring the availability of shelter beds presents its own set of challenges. For one thing, some shelters are run by private organizations, so governments must engage in a complex coordination effort to maintain accurate and up-to-date records of vacancies at those shelters. What is more, some shelters are limited to one gender, so simply knowing that shelter beds are available may not be sufficient. More generally, as discussed in Part I of this brief, determining whether a given shelter is "available" for a given individual is a complex and fraught fact -intensive inquiry. In addition, it is not clear what relationship a given jurisdiction should strive to achieve between the io The task is made even more difficult by the fact that criminals often take up residence in homeless encampments in order to hide among —and victimize —the genuinely homeless. See, e.g., Lolita Lopez & Phil Dreschler, NBC Los Angeles, Gangs of LA on Skid Row (Feb. 19, 2018), available at https://www.nbelosangeles. com/news/local/Gangs-of-LA-on-Skid- Row-474531353.html. 16 number of shelter beds and the number of homeless individuals. One option would be simply to aim for the number of beds to exceed the homeless population by at least one. But, as Judge Smith noted, it would be easy to miscalculate by failing to account for one or more homeless individuals. That innocent error would create an Eighth Amendment violation, "potentially leading to lawsuits for significant monetary damages and other relief." Pet.App. 17a (M. Smith, J., dissenting from denial of rehearing en banc). The only safe alternative, then, would be to maintain shelter capacity significantly exceeding the homeless population. That would make compliance with the Ninth Circuit's rule even more extravagantly expensive. And the expense would not be justified by any coherent policy rationale. In effect, it would result in maintenance of a significant stock of shelter beds that will never be used. Indeed, even maintaining a number of beds equal to the number of homeless persons would guarantee that some beds would go unused, as some portion of the homeless population simply does not wish to reside in a shelter.11 In the end, it is far from clear what it would take to comply with the Ninth Circuit's rule. What is clear is that —as long as the decision below remains in force — local governments will not be able to enforce their ordinances without great risk and expense. As a result, Il Perhaps in tacit recognition of this point, the court in one recent case approved a settlement requiring the defendants to have beds "for at least 60 percent of the unsheltered individuals" in the relevant area. Notice of Settlement at 5, Orange Cty. Catholic Worker et al. v. Orange Cty. et al., No. 8:18-cv-00155, Dkt. 272 (C.D. Cal. Oct. 26, 2018). Of course, that figure is entirely arbitrary. 17 many cities will be forced to simply abandon them —as some have already begun to do. Pet.App. 17a-19a (M. Smith, J., dissenting from denial of rehearing en bane). The consequences for public safety and health will be as predictable as they are dire. III. WHAT OTHER LAWS WILL BE AFFECTED? A. The expansive logic of the decision below also threatens a host of other public health and safety laws. To appreciate the panel opinion's scope, it is helpful to compare it with its vacated predecessor, Jones. The Jones panel made at least some effort to cabin its opinion. In particular, it identified a safe harbor for laws which required, as an element, "some conduct" beyond simply sitting, lying, or sleeping in the streets. 444 F.3d at 1123-24. Jones made clear that such laws were permissible because they did not "criminaliz[e] the status of homelessness." Id. at 1123. The decision below, however, contains no such assurances. One category of laws falling within the Jones safe harbor are "time, place, and manner" laws—e.g., ordinances that apply only during limited hours, or prohibit sleeping "in clearly defined and limited zones," or prohibit "obstruct[ing] pedestrian or vehicular traffic." Id. at 1123. The opinion below, by contrast, says only that such statutes "might well be constitutionally permissible." Pet.App. 63a n.8 (emphasis added). That is hardly reassuring. Indeed, as noted above, the opinion below could be read as suggesting that cities must provide indoor shelter before enforcing their ordinances. Under that logic, would an ordinance restricting public sleeping in certain designated areas be construed as an attempt to, in effect, turn the rest of the city into an inadequate outdoor shelter? If so, then Judge Smith was right to say that the decision "effectively allows homeless individuals to sleep and live wherever they wish on most public property." Pet.App. 18a-19a (M. Smith, J., dissenting from denial of rehearing en bane). B. Another category of laws that Jones viewed as clearly permissible were ordinances against camping (as opposed to merely sleeping) in public. 444 F.3d at 1123. And yet one of the Boise ordinances at issue in the decision below was a camping ordinance. Pet.App. 64a-65a. The opinion made clear that this ordinance fell within the scope of its rule, because the ordinance could be "enforced against homeless individuals who take even the most rudimentary precautions to protect themselves from the elements." Pet.App. 65a. One cannot help but wonder what else the Ninth Circuit will regard as constitutionally protected "rudimentary precautions ... from the elements." For example, it is easy to imagine an argument that the decision below creates an Eighth Amendment right to light fires (necessary for cooking) or even erect structures (necessary to ensure shade from the sun and protection from the rain) on public property. More generally, the panel's insistence that only voluntary conduct can be criminalized leads naturally to the conclusion that a wide range of other laws — such as laws against public urination, defecation, and drug use —may also be unconstitutional in many cases. See Pet.App. 17a-20a (M. Smith, J., dissenting from denial of rehearing en bane). As one pro -Jones commentator acknowledged: It is unclear ... why the line should be drawn [at public sleeping ordinances]. Both sleeping 19 and eating are human necessities. If criminalization of sleeping on the streets violates the Eighth Amendment when there is no alternative shelter, then surely criminalization of panhandling would face the same charge when there is no alternative source of money to purchase food. Sarah Gerry, Note, Jones o. City of Los Angeles: A Moral Response to One City's Attempt to Criminalize, Rather than Confront, Its Homelessness Crisis, 42 Harv. C.R.-C.L. L. Rev. 239, 248-49 (2007). In sum, it is clear that, unless it is checked, the logic of the decision below will expand widely, posing a profound threat to the protection of even the most basic health and safety standards within the Ninth Circuit. Unsurprisingly, a number of plaintiffs have already filed lawsuits relying on the panel opinion, and undoubtedly there are more to come.12 The issue, then, is not whether States within the Ninth Circuit will be able to "criminalize homelessness"; the issue is whether those States will be able to exercise their fundamental regulatory prerogatives. In addition, review of this decision 12 See, e.g., Shipp o. Schaaf, No. 19-cv-01709-JST, 2019 WL 1644401 (N.D. Cal. Apr. 16, 2019); Hung u. Schaaf, No. 19-cv- 01436-CRB, 2019 WL 1779584 (N.D. Cal. Apr. 23, 2019); Quintero o. City of Santa Cruz, No. 5:19-cv-01898-EJD, 2019 WL 1924990 (N.D. Cal. Apr. 30, 2019); Aitken o. City of Aberdeen, No. 3:19-cv- 05322-RBL, 2019 WL 2764423 (W.D. Wash. July 2, 2019); Complaint, Rios et al. o. Cty. of Sacramento et al., No. 2:19-cv- 00922-KJM-DB (E.D. Cal. May 22, 2019); see also, e.g., Blake et al. u. City of Grants Pass, No. 1:18-cv-01823-CL, 2019 WL 3717800 (D. Or. Aug. 7, 2019) (certifying class of homeless people in a challenge to city's sleeping and camping ordinances). 20 would provide much -needed clarity in other circuits, given that courts of appeals have now taken three different positions on the constitutionality of criminalizing purportedly involuntary conduct. Pet. 20-25; see, e.g., Manning v. Caldwell, 930 F.3d 264, 281-85 (4th Cir. 2019) (en banc). As the many problems discussed above illustrate, the decision below is profoundly misconceived from a procedural standpoint. It simply makes no sense for courts to attempt to resolve these complex issues with broad pre -enforcement injunctions. If a particular homeless person cannot comply with a particular ordinance, that issue should be addressed in that person's criminal trial —perhaps via the traditional necessity defense, recognized under California law. See In re Eichorn, 81 Cal. Rptr. 2d 535, 539-40 (1998). That approach would properly allow individual circumstances to be taken into account. By contrast, the blunderbuss approach adopted by the panel will severely undermine the ability of local governments to address difficult social problems. This Court should step in and prevent these grave practical consequences from coming to pass. 21 CONCLUSION For the foregoing reasons, the Court should grant the petition for a writ of certiorari. September 25, 2019 JOHN A. VOGT JONES DAY 3161 Michelson Drive Suite 800 Irvine, CA 92612 Respectfully submitted, YAAKOV M. ROTH Counsel of Record ALEX POTAPOV BENJAMIN J. CASSADY JONES DAY 51 Louisiana Ave., N.W. Washington, DC 20001 (202) 879-3939 yroth@jonesday.com Counsel for Amici Curiae DRAFT Santa Ana Homeless Action Plan December 17, 2019 Key Issue - Social Justice and Shared Responsibility Need — Strong consensus from City Council and Leadership Facts —Santa Ana is 27.27 square miles with a population of 337,716 78,2% Latino, 10.4% Asian, 9.2% White, 1.0% Black Median Age is 29.1 (50% of SA population is younger than this age) Economically Disadvantaged Community Unsheltered Homelessness in Central Spa • 29.67 % are between the ages of 25-39 • 62.61 % are over the age of 40 • 66.78 % are non-Hispanic/non-Latino • 74.33 % are male Legally binding agreement needed from County of Orange/Judge approved? Yale Street Shelter Agree only to 200 beds at Yale Street Shelter operated similar to Bridges program. Require that the City sits on the selection committee for operator selection --similar to past practices with the Bridges program. Agree that this facility is only for the central spa and maintain a percentage of beds for Santa Ana). Require monthly reports of sheltered individuals to determine which city they came from, and their disposition (transitioned to permanent supportive housing, to another emergency shelter, or back on the street). Courtyard Shelter • Move only 200 Courtyard sheltered individuals to the Yale Street site. Move the remaining 200-225 to other shelters in the Central Spa. Require an implementation/operational plan for this transition. Otherwise, the homeless population will settle in the surrounding area. Civic Center Designate the area as a Homeland Security area — no loitering, camping, etc Have County participate in the funding for this security zone. SA Armory • Require it to close permanently by April 2020. • Current contract with Mercy House ends with this winter/rain cycle. MHA facility on South Main • Require permanent closure when current contract ends (July 1, 2018- June 30, 2021) or sooner if services can be transferred to the new BeWell facility in Orange when it opens. • Continue to ensure the MHA facility is used for the approved use and that code violations are corrected. Crisis Stabilization Unit on South Bristol (not sure who runs this facility) • Need a release plan for all patients. People have been seen wandering the streets nearby. Prisoner release program • Possibly need legislation to ensure released individuals are transported back to their home towns or jurisdiction of arrest. O (A m N 0 0 ii r�r- ui G N ` V LO r C N cli w .� Al Al Diana From: timrush@bhhscaprops.com Sent: Friday, December 13, 2019 4:02 PM To: eComment Subject: FW: SAN FRAN Mayor and Council ........ as you wrestle with decisions on what to do with the homeless ..... I beg of you ..... and we all beg of you to TAKE ACTION stop dawdling our city once known as THE GOLDEN CITY is becoming as Brett here states "a third world country". Tim Rush, Wilshire Square. From: befranklin dslextreme.com <befranklin@dslextreme.com> Sent: Friday, December 13, 2019 1:50 PM To: Tom Lutz <luterlutz@aol.com> Cc: lmills007@mac.com; timrush@bhhscaprops.com; Rob Richardson <rob.richardson@earthlink.net>; philbacerra <philbacerra@gmail.com> Subject: Re: SAN FRAN Can't tell you how sad it is to see 17th go from one of the best streets to what it is today, unattractive and unsafe. Drive it at night and you will see nearly every alcove and ally inhabited by drug addicts. I have to patrol my office building nightly to make sure there is no one lurking/sleeping behind it. Even in the day time I now avoid many business in Santa Ana. Last night after Elliott's basketball game he asked if we could stop by a Del Taco. We have begun avoiding the one at Tustin and Santa Clara at night because they are allowing homeless to congregate at the front door. Since we were close we gave it a shot and there were two people plus camping gear/junk up against the building. We then tried the one at Grand and the 22 and found the same conditions. I was witness to the crazy knife guy at Ross and 17th a couple days ago and now have several encounters a week with increasingly aggressive drug addicts asking for money. I NEVER see the police interviewing/arresting bad guys on the street and the hand full of times I've called the police for what I considered dangerous situations with homeless, they never arrived. It's getting worse by the day. The number of businesses I have to avoid at night is growing. We pay so much in utility / retail / property taxes and yet the city looks like a 3rd world country. From: "Tom Lutz" <IuterIutZ(aOI.COm> To: "befranklinCcDdslextreme.com" <befranklin(a)dslextreme com>, ImiIIs007(a)mac.com, "timrush(cD hhscaprops.com" <timrush (a)bhhscaprops.com>, "Rob Richardson" <rob.richardson(a)earthlink.net>, "philbacerra" <philbacerra(cDgmail.com> Sent: Friday, December 13, 2019 12:40:59 PM Subject: Fwd: SAN FRAN This is affecting us as you see our businesses leave or close up due to the riff raft hanging around their establishments. Seems like more and more vacancies along 17th St. From: kassorange(cDaol.com To: nanker6120(c)hotmail.com, miss winkv(cDoutlook.com, bruce.davis(a).cox.net, graysonhodge(a-)amail.com, LuterLutz(d-)aol.com Sent: 12/13/2019 12:22:48 PM Pacific Standard Time Subject: SAN FRAN https://www.western.journal.com/poop-covered-streets-cost-san-f rancisco- 192-mi 1-tech-giant-moves-event/ Salas, Diana From: Tim Johnson <tjohnson@jlkrllp.com> Sent: Tuesday, December 17, 2019 10:27 AM To: eComment Cc: Pulido, Miguel; Sarmiento, Vicente; Penaloza, David; Iglesias, Cecilia; Solorio, Jose; Bacerra, Phil; Villegas, Juan; Ridge, Kristine Subject: Item 1A- Cross Complaint (Cross Complaint) Attachments: 232- SA ANA Orange Tustin Stip to extend response date to SA Suit dtd 5..... pdf; 246- SA ANA Orange Tustin Stip to extend response date to SA Suit dtd 7..... pdf; 158- Santa Ana Cross Complaint suing other OC Cities dtd 4.26.18.pdf; 7 OC City Amicus Brief to SCOTUS on Martin v Boise.pdf Mayor, City Council, and CM Ridge ... Thank you for including the city's cross complaint in the Catholic Worker case on tonight's closed session (item 1A). With Monday's recent Supreme Court's decision to not hear the Martin vs. Boise appeal, this item will take even more importance now. As our city works towards steps that will allow our PD to enforce our ordinances, other cities will also be making determinations on how they will proceed -their decisions will have major impacts on our city I believe. I am concerned about what I believe is a major foreshadowing by the 7 South County cities that joined together in an amicus brief in the Boise case. One of the questions that they asked the court was whether a city could purchase a building in another city and operate an emergency shelter in that city, outside of their own boundaries, and satisfy the Martin requirement to have available shelter beds in order to enforce certain laws. See attached for the amicus brief where the pertinent item here is on page 6 of the brief which is on page 10 of the adobe file. I personally believe that South County cities will likely in the near future try to operate a shelter in another city, such as Santa Ana. Let that sink in for a minute ... San Clemente, Dana Point, Laguna, San Juan, Newport, Lake Forest, Mission Viejo etc... could purchase or rent a building in Santa Ana, provide transportation from their local city, and send their homeless to their own city operated shelter here in Santa Ana (or another city). When taken in consideration with San Clemente and a couple other South County cities have indicating that they will transport their homeless to the Armory here in Santa Ana, I believe that them operating a facility outside of their boundaries being a distinct and real possibility. They essentially have foreshadowed their line of thinking in the amicus brief. Please consider being pro- active in this matter. It will likely need to be a legal strategy and I urge you to get on top of it now and not wait to be reactive. Again, I feel that South County cities will look at operating a shelter outside of their own boundaries... the cities likely will work together. That means that it is very possible that they will look to operate that shelter, possibly together as a joint venture of cities, here in Santa Ana. That may be good for the homeless individuals, which I am concerned for, but we also need to be concerned for our own residents. I also urge you to work with the county on this topic. As you know, the county is working on Yale. Many residents are concerned. The county needs to show that they are not just dumping on us here in our city. Some of their own policies contribute to relocation of homeless to our city of Santa Ana. Some of these policies include: 1) Release from county jail onto the streets of Santa Ana without ensuring that the person is transported directly back to their city of origin, 2) County not returning jail released folks' items stored at the county's yard at the same time that they are released making it more likely the individual will be here on our streets, 3) The county allowing other cities to transport to the Santa Ana Armory, 4) The county only providing transportation from the Santa Ana Armory to 2 locations here in Santa Ana and not to other cities even in the Central SPA- this means that even if someone comes to the Armory from Seal Beach, they will spend the day in Santa Ana. Please work with the county to lessen the impact on our city through their own policies and procedures. As I have suggested in the past, I believe that the council is not staying true to what it voted on in April of 2018 when it chose, after public discussion, to sue the other cities in Orange County, and the county itself, over the impact of homelessness in our community of Santa Ana. Despite voting to proceed with litigation, the city decided only to serve 3 cities (Orange, Tustin, Anaheim) and the county. Subsequently, the cities have been released due to prior settlements in the Catholic Worker case and only the county remains. By not serving the other cities, I believe that the city is allowing South County cities to continue to do what they have been doing which is to continue to disproportionately impact our city with quality of life issues as well as fiscal obligations. It has been almost 20 months since the city council voted to proceed with litigation yet no service of the suite on any South County city has occurred. It is time for the council to follow through on its vote to sue or to have a public discussion in an open forum on its decision not to proceed. This is even more important now in light of the 7 cities' comments about operating a shelter in another jurisdiction. There likely are reasons for the council to not follow through on its prior vote... some of those reasons may be valid while others may not be in the public's eye, but the residents and businesses have a desire to know what is going on. I would say that we have a reasonable right to know what is going on since it has been almost 20 months since this vote happened. Additionally, the city has chosen to delay indefinitely the responses from the county in the case. So essentially, we have spent the time and resources to prepare the suit, serve 4 jurisdictions, not serve any of the South County cities, released 3 of the cities (likely rightfully so) and even chosen to allow the one jurisdictions that was served, and not released, to not even respond to the lawsuit. The timeline for these matters is as follows: • April 25, 2018: During Closed Session, city council voted unanimously (6-0, 1 absent) to file a cross complaint against all cities in Orange County and the County of Orange over the impact of homelessness in our city of Santa Ana • April 26, 2018: The filing actually happened in federal court. See attached document #158. • May 1, 2018: The county of Orange and the cities of Tustin, Anaheim, and Orange were served the lawsuit (no other cities including those in South County have been served). See attached document #232 indicating the service date of May 1, 2018. • May 17, 2018: The cities of Santa Ana, Tustin, Anaheim, Orange and the county of Orange agree to a response date of July 23, 2018 for the defendants to respond to the Santa Ana cross -complaint. See attached document #232. • July 11, 2018: The cities of Santa Ana, Tustin, Anaheim, Orange and the county of Orange agree to delay the response date indefinitely until such a time that the court issues an order that a responsive pleading must be filed. See attached document #246. 1 urge the council to consider serving the suit against South County cities in order to protect the interests of Santa Ana's residents, businesses, and visitors. There may be concerns about whether Judge Carter is able to preside or whether serving the suit will allow other cities and their leaders to look down upon our city or its leadership, yet that is not what you are tasked with doing. Instead, I ask that you do what is best for the city of Santa Ana. If it is determined to be best not to pursue this course of action, you owe it to the residents to provide an explanation or at a minimum a vote to reverse action on this item because the last vote that happened was on April 25, 2018 where the then current council voted unanimously (6-0, 1 absent) to file the suit which would presumably include serving and progressing forward with litigation. The task at hand is a big one. I trust that you will do what is best for our city. Thank you for the time you devote to this topic. Blessings, Tim Johnson Rosenberger I Pam Johnson, CPA CM.FeJWdie At,... 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Case DE Document 232 Filed 05/17/18 Page 1 of 5 Page ID #:2651 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 188793) SSISTANT CITY ATTORNEY 'ITY OF SANTA ANA 0 CIVIC CENTER PLAZA M-29 O. BOX 1988 ANTA ANA, CALIFORNIA 92702 ELEPHONE: (714) 647-5201 ACSIMILE: (714) 647-6515 Attorneys ITY OF SANTA ANA and Cross -Claimant UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION ORANGE COUNTY CATHOLIC WORKER, an unincorporated association; Lisa Bell, Shawn Carroll, Melissa Fields, Larry Ford, Cameron Ralston, Kathy Schuler, Gloria Shoemake, as individuals; Plaintiffs, V. ORANGE COUNTY, the City of Anaheim, the City of Costa Mesa, the City of Orange, and the City of Santa Ana, Defendants. 1 Case No.: SACV 18-00155-DOC-JDE Hon. David O. Carter STIPULATION TO EXTEND TIMI TO RESPOND TO CROSS COMPLAINT FILED BY CITY OF SANTA ANA Cross Complaint served: May 1, 2018 Current response due: May 22, 2018 New response date: July 23, 2018 Case 8:18-cv-00155-DOC-JDE Document 232 Filed 05/17/18 Page 2 of 5 Page ID #:2652 1 I I City of Santa Ana, Cross -Claimant, V. County of Orange, City of Aliso Viejo, 6 City of Anaheim, City of Brea, City of 7 Buena Park, City of Costa Mesa, City of Cypress, City of Dana Point, City of 8 Fountain Valley, City of Fullerton, City of 9 Garden Grove, City of Huntington Beach, 10 City of Irvine, City of La Habra, City of La Palma, City of Laguna Beach, City of 11 Laguna Hills, City of Laguna Niguel, City 12 of Laguna Woods, City of Lake Forest, City of Los Alamitos, City of Mission 13 Viejo, City of Newport Beach, City of 14 Orange, City of Placentia, City of Rancho 15 Santa Margarita, City of San Clemente, City of San Juan Capistrano, City of Seal 16 Beach, City of Stanton, City of Tustin, 17 City of Villa Park, City of Westminster and City of Yorba Linda, 18 19I1 Cross -Defendants. 20 21 22 WHEREAS, Defendant and Cross -Claimant City of Santa Ana ("City") filed 23 a Cross Complaint within the above -captioned action on April 26, 2018; 24 WHEREAS, the City served its Summons and Cross Complaint on Cross- 25 1 Defendants County of Orange, City of Anaheim, City of Orange, and City of Tustin 01i 27 28 ("Cross -Defendants") on May 1, 2018; WHEREAS, Cross -Defendants are required to file their answer and/or respond to City's Cross Complaint by May 22, 2018, or twenty-one days following service of the Summons and Cross Complaint; and 2 Case 8:18-cv-00155-DOC-JDE Document 232 Filed 05/17/18 Page 3 of 5 Page ID #:2653 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 21) 23 24 25 26 77 28 WHEREAS, the parties have agreed to a sixty-day extension in light of the importance of the issues to be raised. NOW, THEREFORE, by and through their respective counsel, the parties hereby stipulate and agree, subject to approval by the Court, that Cross -Defendants' answer and/or response to the City's Cross Complaint shall be due on July 23, 2018. IT IS SO STIPULATED. CITY OF SANTA ANA Dated: May / , 2018 By: vg 7k/ ohn M.Funk Assistant City Attorney THEODORA ORINGHER PC Dated: May , 2018 By: Kevin N. Royer Attorneys for County of Orange CITY OF ANAHEIM Dated: May / 7 , 2018 By: 4 y 4_✓' Gregg M. Audet Deputy City Attorney CITY OF ORANGE Dated: May �7 , 2018 By:/J�17� Wa e W. Winthers City Attorney 3 Case 8:18-cv-00155-DOC-JDE Document 232 Filed 05/17/18 Page 4 of 5 Page ID #:2654 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, the parties have agreed to a sixty-day extension in light of the importance of the issues to be raised. NOW, THEREFORE, by and through their respective counsel, the parties hereby stipulate and agree, subject to approval by the Court, that Cross -Defendants' answer and/or response to the City's Cross Complaint shall be due on July 23, 2018. IT IS SO STIPULATED. Dated: May _, 2018 Dated: May L 7 , 2018 Dated: May _, 2018 Dated: May � 7 , 2018 CITY OF SANTA ANA M. John M.Funk Assistant City Attorney THEODORA ORINGHER PC By: Kevin N. Royer Attorneys for County of Orange CITY OF ANAHEIM Gregg M. Audet Deputy City Attorney CITY OF ORANGE 3 Wa e W. Winthers City Attorney Case 8: DE Document 232 Filed 05/17/18 Page 5 of 5 Page ID #:2655 1 WOODRUFF, SPRADLIN & SMART 2 3 Dated: May 17, 2018 By: ' 4 David K I<en Mg 5 Attorneys for City of Tustin 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C! Case Document 246 Filed 07/11/18 Page 1 of 6 Page ID #:2694 1 I WAYNE W. WINTHERS, CITY ATTY. #134659 wwmthers(� cittyyoforan e.org 2 RYAN E. LU0, ASSIST. CITY ATTY. #286564 3 4 5 6 VI 8 9 10 11 IN 13 14 15 16 I&A 18 19 20 21 22 23 24 25 26 27 28 300 East Chapman Avenue Orange, California 92866 (714)744-5580 Attorneys for Defendant and Cross -Defendant CITY OF ORANGE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION ORANGE COUNTY CATHOLIC WORKER, an unincorporated association; Lisa Bell, Shawn Carroll, Melissa Fields, Larry Ford, Cameron Ralston, Kathy Schuler, Gloria Shoemake, as individuals; Plaintiffs, V. ORANGE COUNTY, the City of Anaheim, the City of Costa Mesa, the City of Orange, and the City of Santa Ana, Defendants. 1 Case No.: SACV 18-00155-DOC-JDE Hon. David O. Carter STIPULATION TO EXTEND TIMI TO RESPOND TO CROSS COMPLAINT FILED BY CITY OF SANTA ANA Cross Complaint served: May 1, 2018 Current response due: July 23, 2018 Indefinite per Court Order Case A8-cv-00155-D0C-JDE Document 246 Filed 07/11/18 Page 2 of 6 Page ID #:2695 1.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City of Santa Ana, Cross -Claimant, County of Orange, City of Aliso Viejo, City of Anaheim, City of Brea, City of Buena Park, City of Costa Mesa, City of Cypress, City of Dana Point, City of Fountain Valley, City of Fullerton, City of Garden Grove, City of Huntington Beach, City of Irvine, City of La Habra, City of La Palma, City of Laguna Beach, City of Laguna Hills, City of Laguna Niguel, City of Laguna Woods, City of Lake Forest, City of Los Alamitos, City of Mission Viejo, City of Newport Beach, City of Orange, City of Placentia, City of Rancho Santa Margarita, City of San Clemente, City of San Juan Capistrano, City of Seal Beach, City of Stanton, City of Tustin, City of Villa Park, City of Westminster and City of Yorba Linda, Cross -Defendants. WHEREAS, Defendant and Cross -Claimant City of Santa Ana ("City") filed a Cross Complaint within the above -captioned action on April 26, 2018; WHEREAS, the City served its Summons and Cross Complaint on Cross - Defendants County of Orange, City of Anaheim, City of Orange, and City of Tustin ("Cross -Defendants") on May 1, 2018; WHEREAS, the Court has previously granted Cross -Defendants a 60-day extension to respond to City's Cross -Complaint to July 23, 2018; and 2 Case 8: Document 246 Filed 07/11/18 Page 3 of 6 Page ID #:269E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, the parties have agreed to an open-ended extension to file a responsive pleading to follow the Court's open-ended extension for filing responsive pleadings to the underlying complaint and the Court tentatively stated its agreement at our last court appearance. NOW, THEREFORE, by and through their respective counsel, the parties hereby stipulate and agree, subject to approval by the Court, that Cross -Defendants' time to file a responsive pleading be extended indefinitely, until the court issues an order that responsive pleadings must be filed. IT IS SO STIPULATED. Dated: July IL, 2018 Dated: July 12018 Dated: July , 2018 CITY OF SANTA ANA By: K/, hn M. Funk Assistant City Attorney U-5 Kevin N. Royer Attorneys for County of Orange CITY OF ANAHEIM LE 3 Gregg M. Audet Deputy City Attorney Case Document 246 Filed 07/11/18 Page 4 of 6 Page ID #:2697 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 11.2 19 20 21 22 U.xl 24 25 26 27 28 WHEREAS, the parties have agreed to an open-ended extension to file a responsive pleading to follow the Court's open-ended extension for filing responsiv pleadings to the underlying complaint and the Court tentatively stated its agreement at our last court appearance. NOW, THEREFORE, by and through their respective counsel, the parties hereby stipulate and agree, subject to approval by the Court, that Cross -Defendants' time to file a responsive pleading be extended indefinitely, until the court issues an order that responsive pleadings must be filed. IT IS SO STIPULATED. Dated: July , 2018 Dated: July , 2018 Dated: July 12018 CITY OF SANTA ANA John M.Funk Assistant City Attorney THEODORA ORINGHER PC By: Kevin N. Royer Attorneys for County of Orange CITY OF ANAHEIM LOW 3 Gregg M. Audet Deputy City Attorney Case Document 246 Filed 07/11/18 Page 5 of 6 Page ID #:2698 1 WHEREAS, the parties have agreed to an open-ended extension to file a 2 responsive pleading to follow the Court's open-ended extension for filing responsiv 3 pleadings to the underlying complaint and the Court tentatively stated its agreement 4 at our last court appearance. 5 NOW, THEREFORE, by and through their respective counsel, the parties 6 hereby stipulate and agree, subject to approval by the Court, that Cross -Defendants' 7 time to file a responsive pleading be extended indefinitely, until the court issues an 8 order that responsive pleadings must be filed. 9 10 IT IS SO STIPULATED. 11 12 CITY OF SANTA ANA 13 14 Dated: July , 2018 By: 15 John M. Funk 16 Assistant City Attorney 17 THEODORA ORINGHER PC 18 19 Dated: July 2018 By: 20 Kevin N. Royer 21 Attorneys for County of Orange 22 CITY OF ANAHEIM 23 24 25 Dated: July J I , 2018 By: )J14 Gregg M. Audet 26 Deputy City Attorney 27 28 3 Case 81 DE Document 246 Filed 07/11/18 Page 6 of 6 Page ID 4:2699 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: July // , 2018 Dated: July _[L, 2018 CITY OF ORANGE 1-G� Won-e W. Winthers City Attorney WOODRUFF, SPRADLIN & SMART By:as% 44) David E. Kendig Attorneys for City of Tustin H Case 8: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 iZ! 25 26 27 28 Document 158 Filed 04/26/18 Page 1 of 27 Page ID #:2479 RAMSISCHWA R ASSISTANT CITY ANTTORNEY8793) R PLAZA M-29 LIFORNIA 92702 14 647-5201 14;647-6515 jrunK�sanra ana.org Attorneys for Defendant and Cross -Claimant CITY OF SANTA ANA UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION ORANGE COUNTY CATHOLIC WORKER, an unincorporated association; Lisa Bell, Shawn Carroll, Melissa Fields, Larry Ford, Cameron Ralston, Kathy Schuler, Gloria Shoemake, as individuals; Plaintiffs, V. ORANGE COUNTY, the City of Anaheim, the City of Costa Mesa, the City of Orange, and the City of Santa Ana, Defendants. Case No.: SA CV 18-0155-DOC (JDE) CROSS -COMPLAINT BY CIT` SANTA ANA FOR CIVIL RIGI VIOLATIONS (42 U.S.C. § 1982 1. Eighth Amendment (Cruel & Unusual Punishment) 2. Fourteenth Amendment (Equal Protection) 3. Fourteenth Amendment (Due Process) Case 8:ib-cv-00155-DOC-JDE Document 158 Filed 04/26/18 Page 2 of 27 Page ID #:2480 l 11 City of Santa Ana, 2 Cross -Claimant, 3 V. 0 5 County of Orange, City of Aliso Viejo, 6 City of Anaheim, City of Brea, City of 7 Buena Park, City of Costa Mesa, City of Cypress, City of Dana Point, City of 8 Fountain Valley, City of Fullerton, City of 9 Garden Grove, City of Huntington Beach, 10 City of Irvine, City of La Habra, City of La Palma, City of Laguna Beach, City of 1 L Laguna Hills, City of Laguna Niguel, City 12 of Laguna Woods, City of Lake Forest, City of Los Alamitos, City of Mission 13 Viejo, City of Newport Beach, City of 14 Orange, City of Placentia, City of Rancho 15 Santa Margarita, City of San Clemente, City of San Juan Capistrano, City of Seal 16 Beach, City of Stanton, City of Tustin, 17 City of Villa Park, City of Westminster and City of Yorba Linda, 18 19 11 Cross -Defendants. 20 21 22 For itself, and on behalf of its residents, Defendant and Cross -Claimant, City 23 of Santa Ana, a charter city and municipal corporation organized and existing under 24 the Constitution and laws of the State of California, alleges the following: W, 26 INTRODUCTION 27 1. Across Orange County, a social crisis has unfolded whereby the 28 number of individuals experiencing homelessness has skyrocketed to unprecedented levels. In January 2017, the Orange County Continuum of Care Case 8: Document 158 Filed 04/26/18 Page 3 of 27 Page ID #:2481 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Point -in -Time Count and Survey found there were 4,792 homeless individuals in Orange County, more than half of whom were unsheltered. 2. Many of these individuals struggle to meet the basic necessities of life, including food, shelter, and health care. They often combat mental illness, substance abuse issues, physical disabilities, or any combination of these afflictions. A significant number are single women and veterans. 3. Social, mental health, and other services provided to homeless individuals by the County of Orange and entities contracting with the County, along with their funding levels, are woefully inadequate to address the instant and ongoing crisis of homelessness. 4. The Orange County Board of Supervisors has publicly admitted that it has failed to spend tens of millions of dollars available for homeless housing and services for the homeless population in the County. 5. The number of homeless individuals living in Orange County rose almost 8% from 2013 to 2017. (See, Exhibit "A".) Nowhere in the County was there and is there, a greater concentration of homeless individuals than in the City of Santa Ana. 6. Ultimately, Santa Ana seeks by this Cross -complaint, a fair and equitable distribution of responsibilities for homeless services among the County and all Orange County cities, as well as reimbursement and sustained funding by the County for Santa Ana's decades long efforts to relieve homelessness in Orange County. The recent actions of the County and Cross -Defendant cities show that such a result is not likely to be voluntarily achieved. THE PARTIES 7. Defendant and Cross -Claimant City of Santa Ana is and at all relevant times has been a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California. Case 8:fl8-cv-00155-DOC-JDE Document 158 Filed 04/26/18 Page 4 of 27 Page ID #:2482 1 8. Cross -Defendant County of Orange is and at all relevant times has 2 been a political and geographical subdivision of the State of California having its 3 principal offices in the City of Santa Ana. 4 9. Cross -Defendant City of Aliso Viejo is and at all relevant times has 5 been a general law city operating under the general laws of the State of California. 6 10. Cross -Defendant City of Anaheim is and at all relevant times has been 7 a charter city and municipal corporation organized and existing under the 8 Constitution and laws of the State of California. 9 11. Cross -Defendant City of Brea is and at all relevant times has been a 10 general law city operating under the general laws of the State of California. 11 12. Cross -Defendant City of Buena Park is and at all relevant times has 12 been a charter city and municipal corporation organized and existing under the 13 Constitution and laws of the State of California. 14 13. Cross -Defendant City of Costa Mesa is and at all relevant times has 15 been a general law city operating under the general laws of the State of California. 16 14. Cross -Defendant City of Cypress is and at all relevant times has been a 17 charter city and municipal corporation organized and existing under the Constitutior 18 and laws of the State of California. 19 15. Cross -Defendant City of Dana Point is and at all relevant times has 20 been a general law city operating under the general laws of the State of California. 21 16. Cross -Defendant City of Fountain Valley is and at all relevant times 22 has been a general law city operating under the general laws of the State of 23 California. 24 17. Cross -Defendant City of Fullerton is and at all relevant times has been 25 a general law city operating under the general laws of the State of California. 26 18. Cross -Defendant City of Garden Grove is and at all relevant times has 27 been a general law city operating under the general laws of the State of California. 28 Case Document 158 Filed 04/26/18 Page 5 of 27 Page ID #:2483 19. Cross -Defendant City of Huntington Beach is and at all relevant times 2 has been a charter city and municipal corporation organized and existing under the 3 Constitution and laws of the State of California. 4 20. Cross -Defendant City of Irvine is and at all relevant times has been a 5 charter city and municipal corporation organized and existing under the Constitution 6 and laws of the State of California. 7 21. Cross -Defendant City of La Habra is and at all relevant times has been 8 a general law city operating under the general laws of the State of California. 9 22. Cross -Defendant City of La Palma is and at all relevant times has been 10 a general law city operating under the general laws of the State of California. 11 23. Cross -Defendant City of Laguna Beach is and at all relevant times has 12 been a general law city operating under the general laws of the State of California. 13 24. Cross -Defendant City of Laguna Hills is and at all relevant times has 14 been a general law city operating under the general laws of the State of California. 15 25. Cross -Defendant City of Laguna Niguel is and at all relevant times has 16 been a general law city operating under the general laws of the State of California. 17 26. Cross -Defendant City of Laguna Woods is and at all relevant times has 18 11 been a general law city operating under the general laws of the State of California. 19 11 27. Cross -Defendant City of Lake Forest is and at all relevant times has 20 21 22 23 24 25 26 27 28 been a general law city operating under the general laws of the State of California. 28. Cross -Defendant City of Los Alamitos is and at all relevant times has been a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California. 29. Cross -Defendant City of Mission Viejo is and at all relevant times has been a general law city operating under the general laws of the State of California. 30. Cross -Defendant City of Newport Beach is and at all relevant times has been a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California. Case -JDE Document 158 Filed 04/26/18 Page 6 of 27 Page ID #:2484 1 31. Cross -Defendant City of Orange is and at all relevant times has been a 2 general law city operating under the general laws of the State of California. 3 32, Cross -Defendant City of Placentia is and at all relevant times has been 4 a charter city and municipal corporation organized and existing under the 5 Constitution and laws of the State of California. 6 33. Cross -Defendant City of Rancho Santa Margarita is and at all relevant 7 times has been a general law city operating under the general laws of the State of 8 California. 9 34. Cross -Defendant City of San Clemente is and at all relevant times has 10 been a general law city operating under the general laws of the State of California. 11 35. Cross -Defendant City of San Juan Capistrano is and at all relevant 12 times has been a general law city operating under the general laws of the State of 13 California. l4 36. Cross -Defendant City of Seal Beach is and at all relevant times has 15 been a charter city and municipal corporation organized and existing under the 16 Constitution and laws of the State of California. 17 37. Cross -Defendant City of Stanton is and at all relevant times has been a 18 charter city and municipal corporation organized and existing under the Constitutioi 19 and laws of the State of California. 20 38. Cross -Defendant City of Tustin is and at all relevant times has been a 21 general law city operating under the general laws of the State of California. 22 39. Cross -Defendant City of Villa Park is and at all relevant times has 23 been a general law city operating under the general laws of the State of California. 24 40. Cross -Defendant City of Westminster is and at all relevant times has 25 been a general law city operating under the general laws of the State of California. 26 41. Cross -Defendant City of Yorba Linda is and at all relevant times has 27 been a general law city operating under the general laws of the State of California. 28 Case DE Document 158 Filed 04/26/18 Page 7 of 27 Page ID #:2485 I JURISDICTION AND VENUE 2 42. The Court has jurisdiction over this action because the claims alleged 3 herein arise out of the transactions and occurrences that are the subject matter of the 4 original action. 5 43. Venue is proper in this Court under 28 U.S.C. section 1391(b) because 6 a substantial part of the events or omissions giving rise to the claims occurred in 7 this district. 8 FACTUAL ALLEGATIONS 9 BACKGROUND 10 44. The City of Santa Ana has a population of approximately 341,000 and 11 covers 27 square miles. It is ethnically diverse and boasts an ethnic make-up as 12 follows: 78% Hispanic, 10% Asian, 9% White, and other ethnicities in smaller 13 percentages. The average median income in Santa Ana is approximately $54,500, 14 as compared to the median income in Orange County of $75,400. Santa Ana has 15 the highest Hispanic population in the County and is one of the lowest income 16 cities in the County. (See, Exhibit `B" & "C".) 17 45. For decades, Santa Ana has borne the largest and most inequitable 18 burden of addressing and relieving homelessness in Orange County, whether by 19 providing necessary, related services on its own or by hosting the provision of such 20 services by the County and third parties within its borders. 21 HOMELESS STATISTICS 22 46. In 2017, there were a total of 2,584 unsheltered homeless individuals 23 and an additional 2,208 sheltered individuals, for a total 4,792 homeless individuals 24 in Orange County. (See, Exhibit "A".) On March 30, 2018, Andrew Do, the 25 Chairman of the Board of Supervisors, reported at a Special Meeting of the City 26 Council of the City of Santa Ana that in 2017, Santa Ana alone had 466 unsheltered 27 homeless individuals, which was the highest number in the County. In comparison, 28 Santa Ana had 100 more such individuals than Anaheim. Of the cities identified by Case 8: Document 158 Filed 04/26/18 Page 8 of 27 Page ID #:2486 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Supervisor Do, Buena Park had the tenth highest number of unsheltered homeless individuals in the County with a reported count of 70, or 15% of Santa Ana's total. 47. On March 31, 2018, a point -in -time count in Santa Ana revealed there is at least 1,030 unsheltered individuals within city borders, 81% of whom are chronically homeless (for one year or more). Combined with sheltered homeless, the number of homeless individuals in Santa Ana rises to 1,617. Santa Ana's 2018 count total is more than double the 2017 Count as reported by Supervisor Do. Santa Ana's Count established that 52% of the individuals counted came from outside Santa Ana and identified 32 Santa Ana public schools located within 1,000 feet of a homeless encampment. 48. Santa Ana is home to a low -barrier emergency shelter, a winter shelter, a home for homeless women and children, and a women's shelter. In total, Santa Ana has over 700 shelter beds or approximately 70% of the shelter beds across Orange County. IMPACTS ON SANTA ANA 49. The impact of homeless related issues on Santa Ana has been staggering. In 2017, Santa Ana estimates it spent approximately $15 million providing fire and police, security and other necessary services to address homeless related issues in and around the Civic Center and Santa Ana. 50. Santa Ana estimates it will be compelled to spend over $17 million in 2018 to address homeless issues at the expense of core services to Santa Ana residents. This figure represents approximately 7% of Santa Ana's general fund that pays for police and fire among other services. 51. Santa Ana's physical resources have been overwhelmed. lust until very recently, over 200 homeless individuals lived in the Civic Center in tents and other makeshift shelters. This encampment necessitated the leasing of temporary bathroom facilities and created issues regarding the storage of personal property left unattended in and around the Civic Center. The circumstances gave rise to the Case 8: DOC-JDE Document 158 Filed 04/26/18 Page 9 of 27 Page ID 4:2487 PA 3 4 5 6 7I M. 9 10 11 12 13 14 15 16 17 18 21 1 22 23 24 25 26 27 28 near -constant law enforcement presence in the Civic Center. Santa Ana police provided homeless outreach services and faced quality of life issues, a suicide attempt, physical assaults, petty crimes, and investigating a homicide, among a variety of other issues. City personnel also undertook extraordinary health and safety measures, including the collection of abandoned, used, uncapped hypodermic needles, disposal of human waste left in public areas, increased I maintenance services to confront excessive trash, and the implementation of weekly power washing to minimize Hepatitis A and other health concerns — all at Santa Ana's expense. 52. Homeless individuals are intentionally or unintentionally abandoned within Santa Ana by various means. Some are transported for services to Santa Ana and left without a plan for return transportation to the city of origin. Other homeless individuals are brought to Santa Ana for shelter and essentially remain in Santa Ana if that housing solution ends. For others, it is believed they are simply transported to Santa Ana by neighboring agencies and ultimately abandoned. Regardless of the intent as to how or why homeless individuals are brought to Santa Ana, the impact is severe and burdens its residents. 53. Despite the wealth and considerable size of Orange County, the only'i low barrier emergency shelter is found in Santa Ana. In fact, the County placed the sole emergency shelter known as "The Courtyard" in Santa Ana and within proximity of sensitive land uses such as nearby residences, several schools, and two public libraries. The Courtyard provides shelter for upwards of 400 individuals on a nightly basis irrespective of weather. The dramatic need for shelter is exemplified by individuals camped on the sidewalk across the street from The Courtyard when it closes its doors to individuals because of overcrowding. The living conditions themselves in The Courtyard have come under severe criticism due to overcrowding, exposure to the elements, and the lack of privacy for women. as :18-cv-00155-DOC-JDE Document 158 Filed 04/26/18 Page 10 of 27 Page ID #:2488 1 54. Santa Ana has made multiple efforts to engage other Orange County 2 cities in developing solutions for addressing homelessness, but with little success. 3 In October 2016, Santa Ana reached out to the County's 33 other cities to hold a 4 meeting to discuss potential solutions. When the group finally met eight months 5 later on June 29, 2017, only 12 other Orange County cities sent representatives. 6 PLAINTIFFS' ORIGINAL LITIGATION 7 55. On January 29, 2018, Plaintiffs in these proceedings filed the 8 underlying civil rights action to halt the County's eviction of hundreds of homeless 9 individuals living in or near the Santa Ana Riverbed. 10 56. On or about February 4, 2018, the Court stayed the County's efforts I and later lifted that stay only after requiring the County to provide 30-day motel 12 vouchers for individuals relocated from the Riverbed and concurrent assessments of 13 those individuals to determine future shelter options and services. 14 57. Over 700 persons were relocated from the Riverbed, including single 15 women and veterans. Later, approximately 200 individuals from the Santa Ana 16 Civic Center were relocated. 17 58. As the motel stays for individuals were ending, the County faced 18 significant challenges in providing adequate services and shelter beds. The Court 19 has convened numerous hearings to resolve issues raised by Plaintiffs in this 20 21 22 23 24 25 26 27 28 1process. However, there are continued and consistent new issues arising with individuals who were removed from the Riverbed and placed in shelters or services outside of Santa Ana or in Santa Ana, who are now living on the streets of Santa ETIM 59. The Court has repeatedly implored the County and all Orange County cities to identify both short- and long-term solutions to the homeless crisis, including at the very least the placement of low -barrier emergency -type shelters. 60. The underlying litigation in these proceedings raised hopes of global participation by the County and its cities in addressing homelessness, a solution 18-cv-00155-DOC-JDE Document 158 Filed 04/26/18 Page 11 of 27 Page ID #:2489 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 long sought by Santa Ana. However, those hopes were dealt a fatal blow once the County, backed away from a plan to establish low barrier homeless shelters in three I cities. THE COUNTY'S ABORTED PLAN 61, On March 17, 2018, federal district court Judge David 0. Carter held a status conference in the Santa Ana City Council Chambers. He invited the mayors and city managers for all 34 cities in Orange County to attend. Judge Carter specifically stated that homeless issues should be addressed by Orange County, a place that was home to five of the twenty wealthiest cities in the entire nation. He noted that Santa Ana was overburdened compared to other cities in the County with not only the sheer number of homeless individuals, but also with the number of services located in Santa Ana. By the end of the Status Conference, Supervisor Do announced his laudable commitment to addressing homeless issues within the County. 62. To this end, on March 19, 2018, the Orange County Board of Supervisors voted to add up to 400 new emergency shelter beds on county -owned properties in the cities of Irvine, Huntington Beach, and Laguna Niguel. This plan would have located 200 homeless people in Irvine, then 100 in Huntington Beach and 100 in Laguna Niguel, if needed. The County also voted to spend about $70.5 million in unspent Mental Health Services Act funds for housing and services for homeless people with mental illnesses. 63. Within one day of the County's approval, all three cities vigorously opposed this plan and threatened to sue the County. The Huntington Beach and Laguna Niguel city councils voted to sue the County. Irvine filed a lawsuit on March 26, 2018 against the County. These actions were taken despite the fact that .alifornia law requires each city to zone for homeless shelters. 64. By March 27, 2018, the Board of Supervisors formally rescinded its approval of the three -shelter plan. Document 158 Filed 04/26/18 Page 12 of 27 Page ID #:2490 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 65. On April 19, 2018, the South Orange County Mayors proposed Silverado Elementary School, a rural county owned property, as a potential site for a I homeless shelter. 66. On April 24, 2018, the Board of Supervisors voted to reject the Silverado Elementary School site proposal. As of the filing of this Cross -Complaint, no Orange County city has provided a location for an emergency shelter. A WAY FORWARD 67. Santa Ana seeks meaningful progress toward an equitable distribution of homeless services, whether it be through resources or shelter throughout the County. Cross -Defendants must work collaboratively to resolve the current homeless crisis and to avert another. The communal goal must be a sustainable, long-term plan that is both city -specific and regional in nature. There must be a basic willingness to seriously consider, or at least not oppose, the provision of low barrier shelters and permanent supportive housing by Cross -Defendants as well as the provision of social services by city representatives or third parties, all in a dignified and humane manner. FIRST CAUSE OF ACTION Violation of Eighth Amendment (42 U.S.C. § 1983) (Against All Cross -Defendants) 68. Defendant and Cross -Complainant City of Santa Ana incorporates by 21 reference and realleges Paragraphs 1 through 67 as if fully set forth herein. 22 69. Cross -Defendant cities have either opposed, refused, or rejected the 23 siting of homeless shelters and services in their jurisdictions. Santa Ana has the 24 25 26 27 28 densest concentration of homeless individuals in the County. Despite state requirements for each city to provide housing for homeless individuals, Cross - Defendant cities have made insubstantial progress or failed to do so entirely. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 21 22 23 24 25 26 27 28 Document 158 Filed 04/26/18 Page 13 of 27 Page ID #:2491 70. Cross -Defendant County has established homeless services almost IIexclusively in Santa Ana, thereby further contributing to the dense concentration homeless individuals therein. 71. Cross -Defendant County has failed to spend in excess of $200 million it has available for the provision of services to mitigate homelessness in Orange County. It has also failed to account for the interest earned on these monies. 72. As a direct and proximate result of Cross -Defendants' acts and omissions, Santa Ana has been compelled to spend millions of dollars from its general fund budget to address a myriad of health and safety concerns attributable to Santa Ana's homeless population, including until just recently the over 200 unsheltered individuals living in the Santa Ana Civic Center. Santa Ana residents have faced: homeless encampments, the possibility of a Hepatitis A outbreak, the threat of or actual physical and verbal assault, exposure to public defecation and public urination, carelessly discarded, uncapped, used hypodermic needles, and excessive trash in the Civic Center and around Santa Ana. 73. Santa Ana would otherwise have spent these funds on the provision core services to its residents but has been forced to divert such funds to provide homeless -related services, resulting in a deprivation of critical services that could potentially positively affect the quality of life of its residents. 74. The foregoing acts and omissions of Cross -Defendants have caused this deprivation of core services and quality of life by necessitating the expenditure of Santa Ana funds on services related to homelessness. Residents of Santa Ana are entitled to these services and by this deprivation, they have been subjected to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E Document 158 Filed 04/26/18 Page 14 of 27 Page ID #:2492 SECOND CAUSE OF ACTION Violation of Fourteenth Amendment: Equal Protection (42 U.S.C. §1983) (Against All Cross -Defendants) 75. Defendant and Cross -Complainant City of Santa Ana incorporates by reference and realleges Paragraphs 1 through 74 as if fully set forth herein. 76. The population of Santa Ana is approximately 341,000, 78% of which is Hispanic. No other city in Orange County has a higher Hispanic population. 77. Santa Ana's median household income is also near the lowest of all cities in Orange County. 78. These ethnicity and income demographics are well-known to Cross - Defendants. 79. On account of these demographics, Cross -Defendants have either established, encouraged, or been content with the provision of homeless shelters and services almost exclusively within the borders of Santa Ana instead of their own jurisdictions. 80. This practice has continued unabated for years. Santa Ana hosts the only true low barrier emergency shelter in Orange County and by far the highest measure of social and other services targeted at homeless individuals. 81. Based on Cross -Defendants' acts and omissions, Santa Ana and its residents have suffered a denial of the equal protection of the laws, as guaranteed by the Fourteenth Amendment of the United States Constitution. THIRD CAUSE OF ACTION Violation of Fourteenth Amendment: Due Process (42 U.S.C. §1983) (Against All Cross -Defendants) 82. Defendant and Cross -Complainant City of Santa Ana incorporates by reference and realleges Paragraphs I through 81 as if fully set forth herein. 83. Santa Ana has a significant liberty interest in administering an efficient and effective government for the benefit of its citizens. 18-cv-00155-DOC-JDE Document 158 Filed 04/26/18 Page 15 of 27 Page ID #:2493 1 84. This interest has been severely compromised by Santa Ana's need to 2 devote substantial monetary and human resources to managing and relieving the 3 acute homelessness crisis within its borders. The diversion of such resources has 4 been to the detriment of Santa Ana residents. 5 85. This crisis has been precipitated and exacerbated by the foregoing 6 actions and omissions of Cross -Defendants, thereby depriving Santa Ana of its 7 liberty interest without due process of law in violation of the Fourteenth 8 Amendment of the United States Constitution, and detrimentally affecting its 9 residents. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// PA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 ME 20 21 22 23 24 25 26 27 28 18-cv-00155-DOC-JDE Document 158 Filed 04/26/18 Page 16 of 27 Page ID #:2494 PRAYER FOR RELIEF WHEREFORE, Defendant and Cross -Claimant City of Santa Ana prays for the following: 1. As against Cross -Defendant County, monetary damages according to proof as reimbursement for the costs spent on homeless resources and necessary related services; 2. As against Cross -Defendant County, monetary damages according to proof for funding the continued provision of homeless resources and necessary related services; 3. As against all Cross -Defendants, declaratory judgment that Cross - Defendants and each of them have denied Santa Ana's rights under the Eighth and Fourteenth Amendments as alleged herein; 4. As against all Cross -Defendants, an order requiring Cross -Defendants and each of them to establish city -specific and regional solutions to homeless issues or comply with state law as required; 5. As against all Cross -Defendants, reasonable attorney's fees; 6. As against all Cross -Defendants, costs of suit; and 7. Such further relief as the Court may deem just and proper. Dated: Apriak, 2018 By: CITY OF SANTA ANA Case 8:18-cv-00155-DOC-JDE Document 158 Filed 04/26/18 Page 17 of 27 Page ID #:2495 EXHIBIT "A" ORANGE GOVIV 1 DAINT IN TIUE COUNT 24 Orange Cou nty's Point in Time (PIT) count occured on January 28th, 2017. The PIT count is a biennial tally of people without a homeon a particularnight. We count because we want to understand homelessness in ourcommunity in orderto end it.This PIT count provides vital information that guides and shapes the way we approach and solve homelessness in Orange County. This information is provided to the federal Department of Housing and Urban Development (HUD) and informs the amount and type of resources Orange County receives to help end homelessness. UNSHELTERED 2,584 SERVICE PLANNING AREA MAP Orange County is divided into three Service Planning Areas (SPAS) that efficiently direct resources as individuals experiencing homelessness SHELTERED enter the Coordinated EntrySystem. EMERGENCY SHELTER 1,248 TRANSITIONAL SHELTER 960 CONTINUUM OF CARE A Continuum of Care (CoC) is an integrated system of care that guides homeless individuals & families through a comprehensive array of services and housing designed to prevent and end homelessness. The County of Orange is the lead for Orange County's CoC, which funds 14 nonprofits across the OC CoC. SUMMARY OF KEY FINDINGS 20113 2015 2017 Unsheltered Homeless People 2,201 2,584 Sheltered Homeless People 2,251 2,208 Emergency Shelter 925 1,248 Transitional Shelter 1,428 1,326 960 Total PIT Count 4,251 4,452 4,792 Change Year to Year +4,73%(201) +7.6%(340) In conjunction with 2-1-1 Orange County, the OC Commission to End Homelessness convened an ad hoc committee to provide guidance on the 2017 PIT count project. The ad hoc committee's direction included a public places count ". with sampling methodology. This methodology was also used for the 2013 and 2015 PIT counts. During the 2017 PIT count, 86 additional maps were counted and surveyed for a total of 270 maps in comparison to 184 maps in the 2015 PIT count. Reductions in oReallocation transitional shelter beds is reflective of national HUD funding priorities. Increase in emergency shelter beds is a result of The Courtyard, a County investment. of resources to permanent housing are not reflected in the count results. NORTH 936 CENTRAL 1362 SOUTH 286 HOMELESSNESS '2017 Point -In -Time Count' •l =Mi\' z,1so � aa4 k TOTAL: 2,584 357 UNSHELTERED VETERANS e County Is the third largest county in California, and sixth largest in the nation with a population of more than million people. Despite our affluent reputation, we have residents who have needs you might not expect. Like many les across the nation, we have people experiencing homelessness. The County of Orange Is working diligently to le funding and resources for this vulnerable population. Here is a look at what we've done in the last year. euetresa The Board of Supervisors has committed more than $23.5 MILLION to providing multiple shelter options that meet a variety of needs. KRAEMER CENTER (North Anaheim) CountI first year-round emergency shelter and multi -service center with _on -site programs. 100 beds In phase one opening Spring 2017, 100 additional beds In phase two anticipated In late 2018. 400 BEDS ,THE COURTYARD® (Santa Ana Civic Center) Day service center and low barrier, low threshold safe sleep shelter. ONI-Y ARMORIES (Santa Ana and Fullerton) Overnight cold -weather emergency shelter providing 400 beds from December to April. PERMANENT SUPPORTIVE HOUSING The Board approved Issuance of the 2016 Permanent Supportive Housing Notice of Funding Availibllity to provide up to $8 million for the acquisition, new construction and acquisition/ rehabilitation of permanent supportive housing for Orange County's e#remely law -income households that are homeless. RESTAURANT MEALS PROGRAM S2509 PEP YEAR The Board approved the Restaurant Meals Program that will enable CalFresh recipients who are homeless, disabled and/or elderly to purchase meals from participating restaurants with their CalFresh benefits. It is Intended to increase food access for those who do not have a place to store or cook food, may not be able to prepare food or lad access to a grocery stare. WHOLE PERSON CARE INITIATIVE — The Whole Person Care Initiative will target services to those that are experiencing homelessness and are high utilizers of emergency rooms. $23.5 MILLION $9.6 MILLION PHASE ONE PHASE TWO NOVEMBER 2016 - DECEMBER 2020 TBD- DECEMBER 2020 Housing Navigators Beds J Support Service Coordinators CRISIS STABILIZATION UNITS • $23.9 MILLION In funding from the County has increased the number of beds available for people In a prychiaNccdsls, allowing Intllvitluals to receive Immediate psychiatric rare as opposed b going to the emergency room. Planning CONTINUUM OF CARE The County is the lead for Orange County's Continuum of Care, which provides $22,1 MILLION in funding to nonprofits to provide permanent housing options (rapid rehousing or permanent supportive housing) to individuals and families in our community. Provides funding for increased and strategic Coordination of resources targeting the monvulnemble populations. Permanent Housing EMERGENCY SOLUTIONS GRANTS $1.1 MILLION The Boat' approves local nonprofits to receive stategrant funding to provide emergency shelter and rapid rehousing services to Individuals and families in the community. • STATE COUNTY NONPROFIT INDIVIDUAL Case 8:18-cv-00155-DOC-JDE Document 158 Filed 04/26/18 Page 20 of 27 Page ID #:2498 EXHIBIT B" 4/26/2018 Case 8:18-cv-00155-DOCR.J®L"d€S't9t`L"&ffi,5lP"np�iWc"/MVltg--pftt i�labf 27 Page ID #:2499 a sum total percentage point deviation of place from �0 Orange County # rank of place out of 40 by % 'non -Hispanic 2excluding black and Asian Hispanics Hispanic o White c Hispanic u Black o Asian c Mixed o Other Hispanic' Population by Place#22 Percentage of the total population. Scope: population of Orange County, selected places in Orange County, and entities that contain Orange County https://statisticalatlas.com/county/California/Orange-County/Race-and-Ethnicity 13143 4/26/2018 Case 8:18-cv-00155-DOCBM9End €ho9 giY1@f r un'-if do(94 6/"-� IL1k1bf 27 Page ID 0% 20% 40% 60% COu#:250O Santa Ana La Habra Anaheim Stanton Los Angeles Tustin San Juan Capistrano Buena Park Orange California Placentia Garden Grove Costa Mesa Fullerton Orange Pacific Midway City West Brea Lake Forest Westminster Los Alamitos Rancho Santa Mars; Huntington Bch Laguna Hills Cypress San Clemente United States La Palma Yorba Linda Allso Viejo Fountain Vly Mission Viejo Ladera Ranch Las Flores Dana Point Laguna Niguel Seal Beach North Tustin Rossmoor Villa Park Irvine Coto de Caza Newport Beach Laguna Beach Laguna Woods 257k 1 36.6k 2 177k 3 182k 4 5.72M 30.Ok 5 13.5k 6 31.1k 7 52.6k 8 14.1 M 18.9k 9 63.2k 10 38.7k 11 46.8k 12 1.03M 15.5M 2,677 13 20.13M 10.6k 14 18.Ok 15 20.4k 16 2,470 17 9.036 18 35.9k 19 5,638 20 8,719 21 11.1k 22 50.5M 2,493 23 10.21< 24 7,627 25 8,702 26 14.7k 27 3,669 28 1,007 29 4,937 30 8,971 31 3,422 32 3,061 33 1,175 34 565 35 21.1k 36 1,357 37 7,146 38 1,690 39 755 40 https://statisUcalatias.conVeountylCalifomialOrange-County/Race-and-Ethnicity 14/43 Case 8:18-cv-00155-DOC-JDE Document 158 Filed 04/26/18 Page 23 of 27 Page ID #:2501 EXHIBIT "C" 4/26/2018 Case 8:18-cv-00155-DOC 0I4Ja'ea> gEigourNIMf@*®1-pAgLw—v4ef 27 Page ID #:2502 Household Income by Place in Orange County There are 40 places in Orange County. This section compares all 40 of those to each other, Orange County, and other entities that contain or substantially overlap with Orange County. Median Household Income by P1aceND Scope: households in Orange County, selected places in Orange County, and entities that contain Orange County 13/44 https://statisticalatias.mm/county/California/Orange-County/Household-Income 4/26/2018 Case 8:18-CV-00155-DOC4DLMoICBIG "6Wl6aunFy,iWco*ZS�g-tO- eI2&Uf 27 $Ok $50k $100k $150k % #.2§03 Page ID Coto de Caza Villa Park Las Flores Ladera Ranch North Tustin Yorba Linda Rossmoor Newport Beach Rancho Santa Mar... Laguna Niguel Also Viejo Mission Viejo Laguna Beach Lake Forest Laguna Hills Irvine San Clemente La Palma Los Alamitos Huntington Bch Fountain My Dana Point Brea Orange Cypress Placentia San Juan Capistrano Orange Tustin Fullerton Buena Park Costa Mesa La Habra California Los Angeles Pacific Garden Grove Anaheim West Santa Ana United States Westminster Seal Beach Stanton Midway City Laguna Woods 75112 08. b4.1 8k dk dk �)k 0.7k S 0.1k ''iff 5.8k _81.9k ?� lk 1 k $67 '57.2k 1,3k 3.Ok 6k 1 2k Sot 45?k S.g6 7k 2k t +117% 1 +106% 2 +70,1% 3 +64.5% 4 +-62.6% 5 +48.8% 6 +44.3% 7 +41.0% 8 +38.0% 9 +32.3% 10 +31.8% 11 +27.6% 12 +25.1% 13 +24.1% 14 +20.3% 15 +20.1% 16 +19.4% 17 +13.7% 18 +9.62% 19 +7.91 % 20 +7.22% 21 +6.25% 22 +4.91 % 23 +4.53% 24 +3.90% 25 +3.73% 26 +0.24% 27 0% -2.95% 28 -10.7% 29 -12.0% 30 -12.7% 31 -18.2% 32 -19.0% -20.1 % -20.3% -20.9% 33 -21.6% 34 -24.2% -29.3% 35 -29.7% -30.2% 36 -32.1% 37 -36.5% 38 -40.0% 39 -51.4% 40 h ttps://statisfcalatlas.wm/county/California/Orange-County/Household-Income 14144 4/26/2M Case 8:18-cv-00155-DOC+ olCm® ' 1ILrA'*i `@Wni'4.tg- q&I246amf 27 Page ID #:2504 percentage above or below median household income of Orange County # rank of place out of 40 by median household income Six -Figure Incomes by Place#21 Percentage of households with incomes above $100k. Scope: households in Orange County, selected places in Orange County, and entities that contain Orange County <$25k $25-50k$50-100k $100-200k $200k+ 15144 https:ltstatisticalatias.com/county/California/Orange-Cou my/Household-I ncome a/zs/zola Case 8:18 cv 00155-DOC+3N3Eho14lr@wR1,1611n1��nFir t N to PA el abf 27 Page ID 50% 0% 50% CoujW.2W05 Villa Park k64 Coto de Caza 9% Ladera Ranch 3 % North Tustin 38,b Las Flores 38 ° Yorba Linda 430 Newport Beach 47%M Rancho Santa Mar... 47%0 Rossmoor 47% E Laguna Niguel 50 Y. Aliso Viejo 50 Mission Viejo 5296 Laguna Beach 52% Lake Forest 53% Irvine 55% Laguna Hills 55% San Clemente 55% La Palma 59% Dana Point Huntington Bch %, Los Alamitos F60% Fountain Vly i61'' Brea 0 San Juan Capistrano I Cypress<:. Placentia NAIL Orange Orange f Tustin W Fullerton VNb Costa Mesa W/ California o Buena Park Los Angeles Seal Beach. Pacific La Habra �o Anaheim West �o Garden Grove Westminster United States Santa Ana Stanton_ Midway City Laguna Woods rJ, 29° M28°i 25%i 25°L, -Z25 % 23% 20% 18% 7] 16?:. 1,415 1 3.428 2 4,757 3 5,512 4 1,260 5 12.5k 6 20.3k 7 8,712 8 2,048 9 12.2k 10 9,228 11 16.Ok 12 5,271 13 12.7k 14 36.9k 15 4,703 16 10.9k 17 2.076 18 5,890 19 30.1k 20 1,623 21 7,356 22 5,509 23 4,429 24 6,092 25 6,091 26 16.2k 27 368k 8,529 28 14.Ok 29 12.6k 30 3.63M 6,578 31 1.21 M 3.511 32 4.80M 4,782 33 25.4k 34 6.49M 11.5k 35 6,721 36 26.OM 14.4k 37 2,091 38 483 39 1,267 40 https://statisticalatias.com/county/California/Orange-County/Household-Income 16144 No. 19-247 IN THE �Z)atlreme Court of the Muiteb *tatez CITY OF BOISE, Petitioner, V. ROBERT MARTIN, ET AL., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF FOR AMICI CURIAE SEVEN CITIES IN ORANGE COUNTY IN SUPPORT OF PETITIONER JOHNA. VOGT JONES DAY 3161 Michelson Drive Suite 800 Irvine, CA 92612 YAAKOV M. ROTH Counsel of Record ALEX POTAPOV BENJAMIN J. CASSADY JONES DAY 51 Louisiana Ave., N.W. Washington, DC 20001 (202) 879-3939 yroth@jonesday.com Counsel for Amici Curiae I TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................... ii INTEREST OF AMICI CURIAE ............................... 1 INTRODUCTION & SUMMARY OF ARGUMENT........................................................... 2 ARGUMENT............................................................... 4 I. WHAT DOES IT MEAN FOR SHELTER TO BE AVAILABLE?....................................................... 4 A. It Is Unclear Where Shelter Must BeAvailable..................................................... 4 B. It Is Unclear What Kind of Shelter Must Be Available ............................................ 7 C. It Is Unclear When Shelter Must BeAvailable...................................................10 II. HOW SHOULD SHELTER AVAILABILITY BE MEASURED?.....................................................13 A. It Is Prohibitively Difficult To Measure the Number of Homeless Individuals ...........13 B. It Is Also Difficult To Assess the Number of Available Shelter Beds................15 III.WHAT OTHER LAWS WILL BE AFFECTED? ............ 17 CONCLUSION......................................................... 21 11 TABLE OF AUTHORITIES Page(s) CASES Aitken v. City of Aberdeen, No. 3:19-cv-05322-RBL, 2019 WL 2764423 (W.D. Wash. July 2, 2019) .................... 19 Blake et al. v. City of Grants Pass, No. 1:18-cv-01823-CL, 2019 WL 3717800 (D. Or. Aug. 7, 2019) ............................. 19 Clinton v. Cody, No. H044030, 2019 WL 2004842 (Cal. Ct. App. May 7, 2019).................................... 5 Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424 (2002)................................................ 6 Hung v. Schaaf, No. 19-cv-01436-CRB, 2019 WL 1779584 (N.D. Cal. Apr. 23, 2019).......................19 In re Eichorn, 81 Cal. Rptr. 2d 535(1998).................................. 20 Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) .......................passim Manning v. Caldwell, 930 F.3d 264 (4th Cir. 2019)................................ 20 Quintero v. City of Santa Cruz, No. 5:19-cv-01898-EJD, 2019 WL 1924990 (N.D. Cal. Apr. 30, 2019)....................... 19 iii TABLE OF AUTHORITIES (continued) Page(s) Shipp u. Schaaf, No. 19-cv-01709-JST, 2019 WL 1644401 (N.D. Cal. Apr. 16, 2019).......................19 Tobe v. City of Santa Ana, 892 P.2d 1145 (Cal. 1995)...................................... 5 STATUTES Cal. Welf. & Inst. Code § 17000.................................. 5 OTHER AUTHORITIES County of Orange, Everyone Counts: 2019 Point in Time Final Report (July 30, 2019)................................14 Sarah Gerry, Note, Jones u. City of Los Angeles: A Moral Response to One City's Attempt to Criminalize, Rather than Confront, Its Homelessness Crisis, 42 Harv. C.R.-C.L. L. Rev. 239 (2007).................18 League of California Cities, 2017 City Population Rankings ............................. 5 Lolita Lopez & Phil Dreschler, NBC Los Angeles, Gangs of LA on Skid Row (Feb. 19, 2018).....................................15 INTEREST OF AMICI CURIAE, Amici are seven Cities in Orange County, California: the City of San Clemente, the City of San Juan Capistrano, the City of Lake Forest, the City of Laguna Hills, the City of Rancho Santa Margarita, the City of Mission Viejo and the City of Ahso Viejo. All of the Amici Cities share an interest in enforcing their public health and safety ordinances, and in effectively addressing the serious social problems associated with homelessness. 1 Pursuant to Rule 37.2(a), counsel for all parties received timely notice of the Cities' intent to file this brief, and consented to the filing of the brief. No counsel for any party authored this brief in any part, and no person or entity other than ¢mici, amici's members, or amici's counsel made a monetary contribution to fund its preparation or submission. X, INTRODUCTION & SUMMARY OF ARGUMENT The decision below held that, under the Eighth Amendment, homeless individuals may not be penalized "for sleeping outdoors, on public property, when no alternative shelter is available to them." Pet.App. 36a. Although this rule may appear straightforward at first glance, in reality it gives rise to a welter of conceptual and practical imponderables. As a result, if this decision remains in effect, local governments throughout the Ninth Circuit may find themselves unable to enforce a wide range of public health and safety ordinances. The dangerous confusion wrought by the opinion below —which many of the Amici have already experienced firsthand — compels review. I. To begin, it is not clear what it means for shelter to be "available" to a homeless individual. One open question is where shelter must be available. If the shelter must be located in the jurisdiction that is attempting to enforce the ordinance, then even small towns may suddenly be charged with maintaining a substantial stock of shelter beds. Similarly, it is unclear what kind of shelter must be available. For example, amicus San Clemente has sought to comply with the decision below by designating a city -owned lot as a camping area for homeless individuals. But homeless advocates have argued that the decision below requires indoor shelter to be available before anti -camping ordinances can be enforced. And San Clemente has faced a barrage of complaints about the lot's conditions, including claims that the Constitution requires the City to provide cell - phone charging stations for the homeless. 3 Nor is it clear at what time availability should be measured. If the answer is "at the moment of enforcement," then a homeless person could immunize himself from public camping ordinances simply by violating shelter rules and getting evicted (with the result that the shelter would no longer be "available" to him). That cannot be right. But nor can any other answer be reasonably drawn from the decision below. II. There are also difficult questions concerning how to measure whether shelter is available. The decision below arguably allows enforcement of public sleeping ordinances only if the number of available shelter beds exceeds the number of homeless persons in the jurisdiction. But calculating the number of homeless individuals is prohibitively difficult. Nor is it straightforward to monitor the number of available shelter beds, especially given that some shelters are privately run, and not all shelter beds are available to all homeless individuals. In the end, many local governments may simply cease to enforce their public sleeping and camping ordinances rather than attempt to comply with the onerous requirements imposed by the decision below — indeed, some cities have already done so. III. Finally, it is unclear what other laws are cast into doubt by the decision below. The opinion's logic is sweeping. It is possible that, beyond sleeping and camping ordinances, the decision prohibits cities from enforcing laws that prohibit sleeping in designated areas or at certain times; laws that prohibit obstructing traffic; laws that prohibit lighting fires or building of structures on public land; and even laws against public urination, defecation, and drug use. H Ultimately, what all of these problems illustrate is that the panel's approach to this matter is profoundly mistaken. A particular homeless individual's inability to comply with the law should be addressed in that individual's criminal proceeding, perhaps through the assertion of a necessity defense. Attempting to solve the problem wholesale via broad pre -enforcement injunctions inevitably begets precisely the confusion that the decision below has already caused. For these reasons, this Court should intervene. ARGUMENT I. WHAT DOES IT MEAN FOR SHELTER To BE AVAILABLE? A. It Is Unclear Where Shelter Must Be Available One significant question created by the Ninth Circuit decision is where the requisite shelter must be available —in other words, what is the jurisdictional level at which its rule must be applied. Given that the rationale for the rule is that it is improper to punish involuntary behavior, Pet.App. 61a- 62a, the relevant question would seem to be whether shelter is available in any jurisdiction that the homeless individual could reasonably access. But the decision below arguably goes broader. Instead, public sleeping and camping ordinances cannot be enforced as long as "there is a greater number of homeless individuals in a jurisdiction than the number of available [shelter] beds." Pet.App. 62a (emphasis added and internal quotation marks and alterations omitted); see Pet.App. 43a-51a (considering only whether shelters were available in Boise). This is certainly the interpretation adopted by homeless advocates. 5 That rule, however, makes little sense. Especially in areas containing many small jurisdictions, it may be completely impractical to ensure that each one has its own sufficient shelter space to house the maximum number of homeless individuals that might be present in that jurisdiction at a given time. California, for example, has over 100 incorporated cities with fewer than 10,000 residents each.2 Moreover, in some states —including California — the primary responsibility for providing indigent care lies with a different level of government than the primary responsibility for enforcing basic public order ordinances. While cities such as San Clemente enact ordinances regarding public sleeping and camping, it is counties that are charged by state law with caring for the indigent. See Cal. Welf. & Inst. Code § 17000; Tobe v. City of Santa Ana, 892 P.2d 1145, 1165 n.18 (Cal. 1995) ("If the inability of ... homeless persons ... to afford housing accounts for their need to `camp' on public property, their recourse lies not with the city, but with the county" to whom the legislature "allocat[ed] ... responsibility to assist destitute persons."); Clinton v. Cody, No. H044030, 2019 WL 2004842, at *8 (Cal. Ct. App. May 7, 2019) ("[C]ounties, not cities, have a statutory obligation regarding housing for the indigent."). Under the Ninth Circuit's rule, then, cities can only enforce their ordinances by taking on the obligations that state law assigns to counties. The decision below thus works a significant and unwarranted intrusion 2 See League of California Cities, 2017 City Population Rankings, available at https://www.cacities.org/Resources- Documents/About-Us/C areers/2017-City-Population-Rank.aspx. on California's scheme of governance. Cf. Columbus o. Ours Garage & Wrecker Seru., Inc., 536 U.S. 424, 437 (2002) ("Whether and how to use th[e] discretion [to delegate governmental powers to local government units] is a question central to state self-government.")3 The Ninth Circuit's rule also raises an additional puzzle. Suppose that, in an attempt to comply with the decision below, a city purchased a building in a neighboring city in order to operate it as a shelter. Are those beds "available" to homeless individuals in the city that owns and operates the shelter, or would that city violate the Eighth Amendment by enforcing its anti -camping ordinance in reliance on that shelter? Would the answer change if the city offered to provide free transportation to the shelter? How convenient would that transportation have to be? The decision below provides no answers —and no certainty. Furthermore, some homeless individuals may assert that they have a legal or practical obligation to remain in a limited geographical area (for example, to receive treatment for addiction). For such individuals, must shelter be "available" within that limited area? Again, the opinion below is silent. 3 The confusion as to the relevant jurisdictional level is reflected in a settlement that Orange County entered in order to resolve claims resembling those addressed by the decision below. Notice of Filing Settlement of Class Action, Orange Cty. Catholic Worker o. Orange Cty., et al., No. 8:18-cv-00155, Dkt. 318 (C.D. Cal., July 23, 2019). Orange County agreed that, in attempting to place homeless individuals in shelters, it would not transport those individuals across "Service Planning Areas." Id. at 10. These "Service Planning Areas" are arbitrary units with no preexisting jurisdictional significance or relevance under state law or otherwise. See id. at 9. 7 B. It Is Unclear What Kind of Shelter Must Be Available The Ninth Circuit's opinion also provides precious little guidance as to what sort of accommodations must be provided at a shelter in order to "qualify" as a true alternative to violating a public camping ordinance. Perhaps the most basic question is whether the shelters must be indoors. This is of immediate practical concern to amicus San Clemente. Seeking to comply with the decision below, San Clemente adopted an emergency ordinance designating a city -owned lot as a camping site where anti -camping ordinances would not be enforced.4 The City contracted for a decomposed granite floor covering, lighting and fencing, and bathroom facilities for the homeless population to use while at the site.5 The City also provides security, including cameras and a security guards In addition, City staff have coordinated with a homeless -outreach service provider to make regular visits to the site to offer various social services.? The City's objective is to ensure that the homeless have a place to sleep without violating the law —such that the City's ordinances may be constitutionally enforced in the rest of the City. 4 See Request for Judicial Notice at 9-14, Housingh a Human Right Orange Cty. et al. v. Cty. of Orange et al., No. 8:19-cv-00388, Dkt. 72-2 (C.D. Cal. July 1, 2019). 5 Declaration of Erik Sand, ¶¶ 2, 5, Housing Is a Human Right Orange County et al. v. The County of Orange et al., No. 5:19-cv-00388, Dkt. 75-2 (C.D. Cal. July 1, 2019). B Id. ¶¶ 2, 6. 7 Id. IT 10, 11. e Under the basic logic of the opinion below, the availability of an outdoor camping area like the San Clemente lot should allow a jurisdiction to enforce its public sleeping ordinances. After all, the underlying question is whether the homeless person had no choice but to sleep in an area where sleeping is prohibited. Pet.App. 62a-63a. The San Clemente lot gives homeless individuals a choice by providing them with an alternative place to sleep. However, homeless plaintiffs have invoked stray language in the opinion which suggests that only indoor shelter is acceptable. Pet.App. 62a (suggesting that the question is whether one has the "option of sleeping indoors"). If that is the rule, then no jurisdiction could enforce its public sleeping ordinances unless it erected and maintained sufficient indoor shelter space to house its entire homeless population —a prohibitively expensive proposition. See Pet.App. 17a-18a (M. Smith, J., dissenting from denial of rehearing en bane). Even assuming an outdoor lot is acceptable, the next question is what accommodations must be offered at that site (or for that matter at any other kind of shelter). For example, San Clemente has already had to contend with claims that conditions at its outdoor lot violate both the Fourteenth Amendment and the Americans with Disabilities Act, among other laws. Plaintiffs have asserted, among other things, that the lot violates the law because (1) it has overflowing trash receptacles; (2) there is no shade; (3) one must climb a hill to get to the site; (4) at the entrance to the camp, "the land dips several inches and there is a divot"; (5) the portable toilets are not serviced often w enough; (6) there is no easily accessible parking; (7) it is necessary to walk ".35 miles" to get to an area where cooking is permitted; and (8) there is no place for residents to charge cell phones.8 The uncertainty around claims of this sort is putting insurmountable pressure on cities and counties to settle, rather than expose themselves to costly litigation and the threat of damages under Section 1983. See, e.g., Notice of Filing Settlement of Class Action, Orange Cty. Catholic Worker v. Orange Cty., et al., No. 8:18-cv-00155, Dkt. 318 (C.D. Cal., July 23, 2019). Finally, yet another category of questions concerns whether, and under what circumstances, a shelter's Policies can render it unavailable for a given homeless individual. For example, many shelters have a religious orientation. See, e.g., Pet.App. 37a-39a. Is such a shelter unavailable to an individual who advances a religious objection? The panel suggested that "coerc[ing] an individual to attend religion -based treatment" "via the threat of prosecution" would violate the Establishment Clause. Pet.App. 47a. If that position is correct, it would potentially eliminate all religious shelters from the calculus required by the decision below. Moreover, it would also be necessary to ask what other constitutional rights may render large categories of shelters unavailable. For example, could "coerc[ing]" an individual to stay at a shelter that requires residents to surrender certain dangerous items constitute a Fourth Amendment violation (or a s Memorandum in Support of Ex Porte Application for a Temporary Restraining Order at 5, 15-18, Housing Is a Human Right Orange Cty. et al. u. Cty. of Orange et al., No. 8:19-cv-00388, Dkt. 69-1(C.D. Cal. June 30, 2019). 10 Second Amendment violation, for that matter)? Could a shelter policy against using profane language violate a resident's free speech rights? All of this remains to be determined, if the decision below holds. Other questions readily present themselves, too. For example, some shelters are open exclusively to men or to women. See, e.g., Pet.App. 38a-39a. Is such a shelter "available" to a married individual whose spouse would be excluded? Does that implicate his constitutional due process rights? Similarly, some have asserted that homeless individuals who own pets should not be required to use a shelter which does not allow pets. Indeed, it has been suggested that some homeless individuals are acquiring pets in the hopes that this will exempt them from the enforcement of anti -camping ordinances. In addition, some shelters may not admit persons with prior convictions for various serious offenses (such as violent crimes or sex crimes). Under the Ninth Circuit rule, does every jurisdiction have to maintain a separate shelter for such individuals? In short, the question of what constitutes "adequate" shelter remains profoundly unsettled. C.It Is Unclear When Shelter Must Be Available There are also serious lurking questions as to when a homeless individual must have access to shelter. The answer may appear to be obvious: shelter must be available as of the moment when the government attempts to enforce its ordinance. But that approach quickly devolves into paradox. Consider a shelter which (as any shelter must) imposes some basic rules on its residents, such as a 11 prohibition on assaulting other residents. Should such a shelter still be viewed as available to an individual who does not wish to abide by those rules? The answer must surely be yes. But now imagine that the same individual checks in to the shelter, violates the rule against assaulting other residents, and is evicted as a result. Should the shelter now be regarded as available? If the question is considered at the time of enforcement, the answer would appear to be no. See Pet.App. 48a-49a (suggesting that its rule would apply to individuals who were "denied entry" to a shelter "for reasons other than shelter capacity"). This cannot be right. There is no justification for allowing homeless individuals to exempt themselves from public sleeping ordinances simply by violating rules that, ex ante, all would agree they should be expected to follow. This is no mere theoretical construct. The Orange County Sheriff's Department —which is the contract law -enforcement agency for many cities within its borders —has advised amicus San Clemente that its officers would not enforce the City's public camping ordinance against individuals who have been evicted from the San Clemente campsite, claiming that such enforcement is barred by the decision below. This regime —which rewards willful violations of even the most uncontroversial shelter rules —is perverse and dangerous. And the same sort of temporal paradox reappears in any number of contexts. For example, the opinion below notes that two shelters in Boise deny admission to anyone arriving after 8 PM. Pet.App. 48a. If availability must be measured at the moment of 12 enforcement, a homeless individual could be cited for camping in public at 7:30 PM, but not at 8:30 PM (even though it would still be true at 8:30 PM that she had been free to go to the shelter at 7:30 PM). The Boise shelters described in the opinion below also do not allow individuals who voluntarily leave the shelters to return immediately. Pet.App. 48a. It would be odd to treat a shelter as unavailable to someone who is excluded from it only because he made a choice to leave; yet that is what the opinion below suggests. Pet.App.48a-49a. Another version of the same difficulty arises with respect to homeless individuals who travel from one location to another. Suppose there is adequate shelter in City A, but a homeless individual makes a voluntary decision to relocate to City B. Should shelter in City A be viewed as available to that individual? May City B, at least, impose a durational residency requirement such that its shelters are available only to persons who have lived in City B for some prescribed period? Prohibiting such requirements would be untenable as a practical matter; a desirable city could be forced to provide more and more shelter, ad infinitum, as more homeless individuals arrived from all over the country. And yet, again, that is arguably what the decision below would require. In all of these examples, the conceptual problem is traceable to the difficulty of assessing when an action should be considered "voluntary." The decision below completely fails to grapple with this question. Jones u. City of Los Angeles —an earlier Ninth Circuit opinion which reached the same conclusion but was vacated due to settlement —analyzed the matter a bit more 13 carefully. 444 F.3d 1118, 1132 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007). Jones suggested that the underlying question was whether an individual's "past volitional acts" were "sufficiently proximate to the conduct at issue ... for the imposition of penal sanctions to be permissible." Id. at 1137. Under that framework, the issue in the examples above would be whether the lack of available shelter is so tightly linked to an individual's prior volitional acts that the individual should be viewed as sleeping on the streets voluntarily, even if no shelter is available to her at that precise moment. But it is not clear whether the decision below leaves room even for that modest qualification. And even if it did, the exception would not be administrable. There is no practical way for city officials making street -level enforcement decisions to conduct an all -things -considered evaluation of which "past volitional acts" (if any) deprived a particular homeless person of access to shelter. II. How SHOULD SHELTER AVAILABILITY BE MEASURED? A. It Is Prohibitively Difficult To Measure the Number of Homeless Individuals The opinion below declares that public sleeping ordinances cannot be enforced "so long as there is a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters." Pet.App. 62a (quotation marks & alterations omitted). Thus, to determine whether it may enforce its ordinances, a local government must determine how many homeless individuals are within its jurisdiction. Obtaining that information, however, is virtually impossible. 14 One logical place to start would be the "Point in Time" count (or "PIT Count"), a federally required census of the homeless population. However, the PIT Count of the unsheltered population is conducted only once every two years.9 Thus, at most times the PIT Count information will be significantly out of date, especially given that homeless populations fluctuate dramatically. While governments may attempt to adopt enforcement policies based on the most recent PIT Count, it is far from certain that courts will treat the PIT Count as a safe harbor. Any attempt to count the homeless population more frequently —for example, on any day when the local government would wish to enforce its public sleeping or camping ordinances —would be impossibly expensive and difficult. As Judge Smith noted, someone would have to "painstakingly tally the number of homeless individuals block by block, alley by alley, doorway by doorway." Pet.App. 16a (M. Smith, J., dissenting from denial of rehearing en banc). In Los Angeles, for example, this task requires three days even with the participation of thousands of volunteers —and still fails to produce a complete count. Pet.App. 16a. Further, the problems of counting the homeless population are compounded by the fact that, for purposes of the decision below, not every individual sleeping on the streets should be counted. As the 9 See County of Orange, Everyone Counts: 2019 Point in Time Final Report 13 (July 30, 2019); Pet.App. 36a-37a (noting that the most recent available data for Boise was from 2016, and claiming that the "PIT Count likely underestimate[d] the number of homeless individuals" in the area). 15 panel explained, its "holding does not cover individuals who do have access to adequate temporary shelter," such as individuals who "have the means to pay for it" but decline to do so. Pet.App. 62a n.8. Accordingly, to obtain an accurate count of individuals for whom shelter must be made available, local governments would have to somehow distinguish between individuals who are sleeping outside by necessity and those who are doing so by choice. There is simply no feasible way to do this.10 B. It Is Also Difficult To Assess the Number of Available Shelter Beds Continually measuring the availability of shelter beds presents its own set of challenges. For one thing, some shelters are run by private organizations, so governments must engage in a complex coordination effort to maintain accurate and up-to-date records of vacancies at those shelters. What is more, some shelters are limited to one gender, so simply knowing that shelter beds are available may not be sufficient. More generally, as discussed in Part I of this brief, determining whether a given shelter is "available" for a given individual is a complex and fraught fact -intensive inquiry. In addition, it is not clear what relationship a given jurisdiction should strive to achieve between the 10 The task is made even more difficult by the fact that criminals often take up residence in homeless encampments in order to hide among —and victimize —the genuinely homeless. See, e.g., Lolita Lopez & Phil Dreschler, NBC Los Angeles, Gangs of LA on Skid Row (Feb. 19, 2018), available at https://www.nbclosangeles.com/news/local/Gangs-of-LA-on-Skid- Row-474531353.htm1. 16 number of shelter beds and the number of homeless individuals. One option would be simply to aim for the number of beds to exceed the homeless population by at least one. But, as Judge Smith noted, it would be easy to miscalculate by failing to account for one or more homeless individuals. That innocent error would create an Eighth Amendment violation, "potentially leading to lawsuits for significant monetary damages and other relief." Pet-App. 17a (M. Smith, J., dissenting from denial of rehearing en banc). The only safe alternative, then, would be to maintain shelter capacity significantly exceeding the homeless population. That would make compliance with the Ninth Circuit's rule even more extravagantly expensive. And the expense would not be justified by any coherent policy rationale. In effect, it would result in maintenance of a significant stock of shelter beds that will never be used. Indeed, even maintaining a number of beds equal to the number of homeless persons would guarantee that some beds would go unused, as some portion of the homeless population simply does not wish to reside in a shelter.11 In the end, it is far from clear what it would take to comply with the Ninth Circuit's rule. What is clear is that —as long as the decision below remains in force — local governments will not be able to enforce their ordinances without great risk and expense. As a result, 11 Perhaps in tacit recognition of this point, the court in one recent case approved a settlement requiring the defendants to have beds "for at least 60 percent of the unsheltered individuals" in the relevant area. Notice of Settlement at 5, Orange Cty. Catholic Worker et al. o. Orange Cty. et al., No. 8:18-cv-00155, Dkt. 272 (C.D. Cal. Oct. 26, 2018). Of course, that figure is entirely arbitrary. 17 many cities will be forced to simply abandon them —as some have already begun to do. Pet.App. 17a-19a (M. Smith, J., dissenting from denial of rehearing en bane). The consequences for public safety and health will be as predictable as they are dire. III. WHAT OTHER LAWS WILL BE AFFECTED? A. The expansive logic of the decision below also threatens a host of other public health and safety laws. To appreciate the panel opinion's scope, it is helpful to compare it with its vacated predecessor, Jones. The Jones panel made at least some effort to cabin its opinion. In particular, it identified a safe harbor for laws which required, as an element, "some conduct" beyond simply sitting, lying, or sleeping in the streets. 444 F.3d at 1123-24. Jones made clear that such laws were permissible because they did not "criminaliz[e] the status of homelessness." Id. at 1123. The decision below, however, contains no such assurances. One category of laws falling within the Jones safe harbor are "time, place, and manner" laws—e.g., ordinances that apply only during limited hours, or prohibit sleeping "in clearly defined and limited zones," or prohibit `gobstruct[ing] pedestrian or vehicular traffic." Id. at 1123. The opinion below, by contrast, says only that such statutes "might well be constitutionally permissible." Pet.App. 63a n.8 (emphasis added). That is hardly reassuring. Indeed, as noted above, the opinion below could be read as suggesting that cities must provide indoor shelter before enforcing their ordinances. Under that logic, would an ordinance restricting public sleeping in certain designated areas be construed as an attempt to, in effect, turn the rest of the city into an inadequate U. outdoor shelter? If so, then Judge Smith was right to say that the decision "effectively allows homeless individuals to sleep and live wherever they wish on most public property." Pet.App. 18a-19a (M. Smith, J., dissenting from denial of rehearing en bane). B. Another category of laws that Jones viewed as clearly permissible were ordinances against camping (as opposed to merely sleeping) in public. 444 F.3d at 1123. And yet one of the Boise ordinances at issue in the decision below was a camping ordinance. Pet.App. 64a-65a. The opinion made clear that this ordinance fell within the scope of its rule, because the ordinance could be "enforced against homeless individuals who take even the most rudimentary precautions to protect themselves from the elements." Pet.App. 65a. One cannot help but wonder what else the Ninth Circuit will regard as constitutionally protected "rudimentary precautions ... from the elements." For example, it is easy to imagine an argument that the decision below creates an Eighth Amendment right to light fires (necessary for cooking) or even erect structures (necessary to ensure shade from the sun and protection from the rain) on public property. More generally, the panel's insistence that only voluntary conduct can be criminalized leads naturally to the conclusion that a wide range of other laws — such as laws against public urination, defecation, and drug use —may also be unconstitutional in many cases. See Pet.App. 17a-20a (M. Smith, J., dissenting from denial of rehearing en Banc). As one pro -Jones commentator acknowledged: It is unclear ... why the line should be drawn [at public sleeping ordinances]. Both sleeping 19 and eating are human necessities. If criminalization of sleeping on the streets violates the Eighth Amendment when there is no alternative shelter, then surely criminalization of panhandling would face the same charge when there is no alternative source of money to purchase food. Sarah Gerry, Note, Jones u. City of Los Angeles: A Moral Response to One City's Attempt to Criminalize, Rather than Confront, Its Homelessness Crisis, 42 Harv. C.R.-C.L. L. Rev. 239, 248-49 (2007). In sum, it is clear that, unless it is checked, the logic of the decision below will expand widely, posing a profound threat to the protection of even the most basic health and safety standards within the Ninth Circuit. Unsurprisingly, a number of plaintiffs have already filed lawsuits relying on the panel opinion, and undoubtedly there are more to come.12 The issue, then, is not whether States within the Ninth Circuit will be able to "criminalize homelessness"; the issue is whether those States will be able to exercise their fundamental regulatory prerogatives. In addition, review of this decision 12 See, e.g., Shipp o. Schaaf, No. 19-cv-01709-JST, 2019 WL 1644401 (N.D. Cal. Apr. 16, 2019); Hung a. Schaaf, No. 19-cv- 01436-CRB, 2019 WL 1779584 (N.D. Cal. Apr. 23, 2019); Quintero o. City of Santa Cruz, No. 5:19-cv-01898-EJD, 2019 WL 1924990 (N.D. Cal. Apr. 30, 2019); Aitken o. City of Aberdeen, No. 3:19-cv- 05322-RBL, 2019 WL 2764423 (W.D. Wash. July 2, 2019); Complaint, Rios et al, o. Cty. of Sacramento et al., No. 2:19-cv- 00922-KJM-DB (E.D. Cal. May 22, 2019); see also, e.g., Blake et al. u. City of Grants Pass, No. 1:18-cv-01823-CL, 2019 WL 3717800 (D. Or. Aug. 7, 2019) (certifying class of homeless people in a challenge to city's sleeping and camping ordinances). 20 would provide much -needed clarity in other circuits, given that courts of appeals have now taken three different positions on the constitutionality of criminalizing purportedly involuntary conduct. Pet. 20-25; see, e.g., Manning u. Caldwell, 930 F.3d 264, 281-85 (4th Cir. 2019) (en bane). As the many problems discussed above illustrate, the decision below is profoundly misconceived from a procedural standpoint. It simply makes no sense for courts to attempt to resolve these complex issues with broad pre -enforcement injunctions. If a particular homeless person cannot comply with a particular ordinance, that issue should be addressed in that person's criminal trial —perhaps via the traditional necessity defense, recognized under California law. See In re Eichorn, 81 Cal. Rptr. 2d 535, 539-40 (1998). That approach would properly allow individual circumstances to be taken into account. By contrast, the blunderbuss approach adopted by the panel will severely undermine the ability of local governments to address difficult social problems. This Court should step in and prevent these grave practical consequences from coming to pass. 21 CONCLUSION For the foregoing reasons, the Court should grant the petition for a writ of certiorari. September 25, 2019 JOHNA. VOGT JONES DAY 3161 Michelson Drive Suite 800 Irvine, CA 92612 Respectfully submitted, YAAKov M. ROTH Counsel of Record ALEX POTAPOv BENJAMIN J. CASSADY JONES DAY 51 Louisiana Ave., N.W. Washington, DC 20001 (202) 879-3939 yroth@jonesday.com Counsel for Amici Curiae Salas, Diana From: Elizabeth Perez <brujarox@yahoo.com> Sent: Tuesday, December 17, 2019 12:17 PM To: eComment Subject: Closed Session Agenda Item(s) 1A & 1 B Greetings. This email is in reference to the agenda items above regarding the homeless issue. As with the majority of citizens of our city, I am concerned that we are not following up on the law suit against the county & southern county cities to assist in housing their own homeless. Santa Ana should not be the homeless pit to house ALL homeless throughout the county. Attempting to put a price tag on each city to pay Santa Ana to house the homeless is not possible as there will be many unforeseen circumstances that always occur after the fact & the financial burden will fall onto Santa Ana & not the county or the other cities. We must refuse accepting the other cities' homeless & demand that they house their own. Our city is suffering many issues, especially high volume of crime due to the majority of these homeless. Very few of the homeless actually attempt to receive assistance where most prefer to do drugs & leave needles within the reach of our children, within our neighborhoods & parks. This has to stop. We should NOT be the pit for the homeless. We need to clean our cities & have it as nice as other cities in south county. We need to enforce limitations, not house their homeless. I am also against additional low income housing. Bringing in more low income housing brings in more trouble as we do not have any way of filtering out those that do not deserve it or work to improve their lives after. Thank you for your time. Elizabeth Cruz 1313 N. Eastwood Ave. Santa Ana, CA 92701 Orozco, Norma From: Sent: To: Cc: Subject: Attachments: CLOSED SESSION ITEM la AND lb Mayor and City Council members, Chris S <chris714oc@gmail.com> Tuesday, December 17, 2019 3:41 PM eComment Pulido, Miguel; Sarmiento, Vicente; Penaloza, David; Solorio, Jose; Bacerra, Phil; Villegas, Juan; Iglesias, Cecilia; Ridge, Kristine; Carvalho, Sonia R.; Jennifer Peat; Nunez, Alvaro; Glen Dromgoole; Ken@lrvinePipe.com Fwd: What the..? image0jpeg;IMG_4031jpg Below is an email I received this morning with 2 attached pics from a Property Manager, Jennifer Peat, who manages the business park at Main and Dyer in Santa Ana. This business park is located right next to the Union Pacific railroad tracks at Main and Goetz, and has been negatively impacted by all the encampments on Union Pacific property. Over the last several years, this section of South Main St has been severely impacted by homeless encampments in full public view from individuals who receive services at MHA during the day and sleep in the public right of way or businesses at night. In the attached pics, you see 2 vehicles (white SUV with a County of Orange sticker and a dark colored van) parked in the parking lot of this private business and several County workers giving medical treatment to a male sitting in the back of one of the vehicles. In the second pic, you can see all the medical waste left behind on private property by the County staff instead of properly disposing of the medical waste. I am glad to see this person receiving medical treatment, but how are County staff allowed to give medical treatment on private property without the property owner's permission? Would this expose the property owner to any potential legal liabilities if the individual/s did not receive proper medical treatment from County staff on private property? This was obviously not a medical emergency or else 911 would have been called and OC Fire Authority would have responded to provide medical treatment. This person should have been transported by County staff to a proper medical facility to receive treatment instead of using the parking lot of a private business. Previously, the same Property Manager also had to send a cease and desist letter to a private individual who was repeatedly parking their vehicle in this same parking lot, and then walking over to the railroad tracks to talk with homeless individuals. The owner of the vehicle would bring homeless individuals back to the parking lot and hand out medical supplies for IV drug injections from the back of her vehicle. I remember seeing this same individual in the Civic Center passing out needles with the needle exchange operators. I would greatly appreciate if you would identify all possible legal options to prevent this happening again in our city, and ensure the County of Orange and its staff are not trespassing onto private property to provide medical treatment and leaving medical waste behind for people to come in contact with. Kind regards, Chris Schmidt ---------- Forwarded message --------- From: Jennifer Peat <jennifergpeatco.net> Date: Tue, Dec 17, 2019 at 9:08 AM Subject: What the..? To: Chris S <chris714ockgmail.com>, Chris - can you look at this photo and tell me what's going on in my parking lot? The guy with the blue jacket and clipboard was driving the county vehicle on the right. There's a nurse (?) providing medical care to a transient with an open wound on his leg - all on our private property? There was also medical trash left in the parking lot! 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