Breaking the Legal Paralysis: Combatting California's Homelessness Crisis After Martin v. City of Boise

• Publication year: 2021
• Author: Billy Cole, Theane Evangelis, and Bradley J. Hamburger

Breaking the Legal Paralysis: Combatting California's Homelessness Crisis After Martin v. City of Boise1

Billy Cole, Theane Evangelis, and Bradley J. Hamburger

William F. Cole currently serves as an Assistant Solicitor General for the State of Texas, where he represents the State, its agencies, and its officers in complex and high-profile appellate matters. Mr. Cole was previously an associate in the Los Angeles office of Gibson, Dunn & Crutcher LLP, where he practiced in the Appellate & Constitutional Law and Class Actions practice groups. He graduated from the University of Pennsylvania Law School in 2015, and served as a law clerk to the Honorable Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit.

Theane Evangelis is a partner in the Los Angeles office of Gibson, Dunn & Crutcher LLP. She serves as Co-Chair of the firm's global Litigation Practice Group and previously served as Co-Chair of the firm's Class Action Practice Group. Ms. Evangelis is also a member of the Appellate, Labor and Employment, Media, Entertainment, and Technology, and Crisis Management Practice Groups. She joined Gibson Dunn after serving as a law clerk to Justice Sandra Day O'Connor during October Term 2004. Ms. Evangelis has served as lead counsel in a wide range of bet-the-company appellate, constitutional, class action, labor and employment, media and entertainment, and crisis management matters in trial and appellate courts across the country.

Bradley J. Hamburger is a partner in the Los Angeles office of Gibson, Dunn & Crutcher. He practices in the firm's Class Actions, Appellate and Constitutional Law, and Labor and Employment practice groups, and focuses on complex litigation and class actions in both trial courts and on appeal. Mr. Hamburger has defended clients in class actions and appeals across numerous substantive areas of law, including employment, consumer fraud, anti-trust, and products liability. Mr. Hamburger graduated from Harvard Law School in 2009, and served as a law clerk to the Honorable James V. Selna in the U.S. District Court for the Central District of California.

I. INTRODUCTION

Despite billions of dollars in allocated resources, the construction of brand new shelters, and relaxed enforcement of "quality-of-life" ordinances, the crisis of homelessness gripping the State of California has only grown more acute in recent years. More than a thousand persons experiencing homelessness died in 2020 in Los Angeles alone. And a proliferation of dangerous encampments throughout cities has contributed to a sharp uptick in crime affecting homeowners, business owners, and persons experiencing homelessness alike.

What has contributed to the rapid deterioration of conditions on the streets of the Golden State? In this article, we argue that for years municipalities have pursued a failed litigation strategy—consisting of entering into broad, sweeping settlements following setbacks in the course of litigation—that has resulted in entrenching the ever-worsening conditions playing out daily in our cities, and in Los Angeles in particular. That litigation strategy, and the concomitant retreat from enforcement of decades-old, ordinary, municipal laws, reached its apotheosis in the wake of the Ninth Circuit's decision in Martin v. City of Boise, which held that municipalities could not issue criminal citations to persons sleeping in public spaces if that jurisdiction has fewer shelter beds available than persons experiencing homelessness.

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Following Martin, what can be done in cities that currently lack enough space in shelters to house their entire population of persons experiencing homelessness, but that still wish to ensure that public spaces remain safe and sanitary for all residents? We propose that such cities simply take the courts at their word with respect to the limited scope of the Martin decision, mount a defense to their laws regulating public health and safety, and refuse to capitulate during the course of litigation. Even under Martin, the vast majority of ordinances regulating the public's use of city streets, sidewalks, and other public areas remain fully constitutional and enforceable—particularly those imposing time, manner, and place restrictions—and cities should not retreat from their defense. Furthermore, Martin has no effect on laws prohibiting drug dealing, violent criminal activity, and conduct that poses environmental and health hazards. Enforcement of municipal law remains an important tool for cities to use in combatting the multi-dimensional problem of homelessness and thereby wresting back their city streets from the scourge of crime, violence, and disease, thus making those cities safer for all citizens—especially those experiencing homelessness. While Martin does create a significant hurdle to curbing the homelessness crisis, it does not mean that municipalities must give up in the face of an increasing threat to public safety. As shown below, elected officials can find no refuge in the Martin decision to justify further inaction in addressing the homelessness crisis, which has torn the social contract asunder.

II. A CRISIS OF MONUMENTAL PROPORTIONS

The crisis of homelessness gripping the State of California is monumental. The most recent count, conducted in 2019, revealed that the number of unhoused Californians is in excess of 150,000 persons, which represents more than a quarter of the entire country's homeless population—double what one would expect in a State that contains roughly twelve percent of the country's population.² Over 66,000 of those individuals reside in Los Angeles County alone.³ And the coronavirus pandemic with its attendant economic downturn promises to make this crisis more acute still. By one estimate, the effects of the pandemic-driven downturn will cause "chronic homelessness" to increase by 68% in California and by 86% in Los Angeles County over the next four years.⁴

The most troubling aspect of this crisis is the fact that persons experiencing homelessness are at particular risk of death, injury, and disease. In Los Angeles County, deaths among persons experiencing homelessness have been on the rise every year since 2014, skyrocketing from 630 in 2014 to 1,267 in 2019.⁵ Preliminary estimates for last year predict another grim milestone for Los Angeles County, with deaths among persons experiencing homelessness up over 26% through July 2020.⁶ Orange County has been on a similar trajectory, with 330 persons experiencing homelessness dying in 2020, up from just over 200 the year before.⁷ And in San Francisco, deaths among persons experiencing homelessness jumped by 123% in 2020, from 91 persons between January and September 2019 to 203 persons between January through September 2020.⁸

For those living on the streets, trapped in encampments, violence and anarchy reign supreme. In San Francisco's Tenderloin District, violent crime is up 24% with the number of tents packing the streets rising from 173 on March 13, 2020, to 416 in early June 2020.⁹ Drug dealing and use continues unabated to such a degree that there have been reports of "line[s] of people stretch[ing] down" the streets of San Francisco in what looks "like a soup kitchen line," but which in reality is a line to acquire narcotics.¹⁰ Indeed, "[i]n the Tenderloin, SOMA, and Mid-Market neighborhoods, the homeless congregate in open-air drug markets; dealers wear gloves and masks and sell heroin, fentanyl, and methamphetamine in broad daylight."¹¹Residential neighborhoods have not been spared: "longtime residents describe the environment as 'apocalyptic,' with encampments, trash, and drug havens in every corner."¹²

Los Angeles is no different. In the Skid Row neighborhood of downtown Los Angeles "street gangs from South Los Angeles . . . control the markets for meth, heroin, prostitution, cigarettes, and stolen goods."¹³ This is lucrative business: "the sales of meth, heroin, and cocaine on Skid Row add up to a $200 million annual enterprise, fueling a massive black market in everything from stolen bicycle parts to human organs."¹⁴ As a consequence of this criminal activity, crimes against persons experiencing homelessness in Los Angeles increased by 24% in 2019, with a 19% increase in serious violent crime, including homicide, rape, robbery, aggravated assault, burglary, motor vehicle theft, larceny-theft, and arson.¹⁵ In Los Angeles in 2020, "fires related to homeless [we]re up 82% over the last year," with many of the fires attributable to arson being committed by one person experiencing homelessness against the tent of another, often due to disputes over money and drugs.¹⁶

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The encampments in which many unhoused persons reside have also contributed to a burgeoning public-health crisis, serving as incubators for diseases such as typhus, typhoid fever, and tuberculosis.¹⁷ In Los Angeles, mountains of trash, rotting food, and human waste around encampments have contributed to a rodent infestation that, in turn, has precipitated a sharp rise in flea-borne typhus—up from eighteen cases in 2009 to 174 in 2018.¹⁸ These problems have only gotten more severe in recent months, as the Los Angeles City Sanitation Department has reportedly ceased conducting regular cleanups of encampments due to the coronavirus pandemic, and "[t]he result is that some city streets are littered with months of uncollected trash that's not only attracting rodents and fleas—a longstanding problem—but now maggots are covering some sidewalks and entering buildings."¹⁹

These public-health problems are not unique to Los Angeles. In Orange County, a February 2018 clean-up of a two mile-long encampment along the Santa Ana River that hosted more than 700 people uncovered "404 tons of debris, 13,950 needles, and 5,279 pounds of waste," including human waste, propane, and pesticides.²⁰ And in San Francisco, hundreds of thousands of used needles litter the city's streets—"164,264 needles [were recovered] in August [2018] alone."²¹...