Boyd Et Al V City of San Rafael Et Al Candce-23-04085 0152.0

Case 3:23-cv-04085-EMC Document 152 Filed 05/10/24 Page 1 of 20
1 G. SCOTT EMBLIDGE (SBN 121613)

GIANNA GEIL (SBN 339929)
2
MOSCONE EMBLIDGE & RUBENS LLP
3 220 Montgomery Street, Suite 2100
San Francisco, CA 94104
4 Telephone: (415) 362-3599
Facsimile: (415) 362-2006
5 [email protected]
6 [email protected]
7 ROBERT F. EPSTEIN (SBN 154373)

City Attorney
8 CITY OF SAN RAFAEL
1400 Fifth Avenue
9 San Rafael, CA 94901
10 Telephone: (415) 485-3080
Fax: (415) 485-3109
11 [email protected]
12 Attorneys for Defendant City of San Rafael

13
14 UNITED STATES DISTRICT COURT
15 NORTHERN DISTRICT OF CALIFORNIA
16 SAN FRANCISCO COURTHOUSE

17
18 SHALEETA BOYD, et al., Case No.: 3:23-cv-04085-EMC
19 Plaintiffs, NOTICE OF MOTION AND MOTION TO

DISMISS OR, IN THE ALTERNATIVE,
20 vs. TO DISSOLVE PRELIMINARY
INJUNCTION; MEMORANDUM OF
21
CITY OF SAN RAFAEL, et al., POINTS AND AUTHORITIES IN
22 SUPPORT OF MOTION
Defendants.
23 Date: June 20, 2024
Time: 1:30 p.m.
24 Location: Courtroom 5, 17th Floor
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MEMO OF POINTS AND AUTHORITIES IN Case No.: 3:23-cv-04085-EMC
SUPPORT OF MOTION TO DISMISS
1 TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………………………………………i
2
3 NOTICE OF MOTION……………………………………………………………………………1
4 MEMORANDUM OF POINTS AND AUTHORTIES................................................................1
5 INTRODUCTION ...........................................................................................................1
6 FACTUAL AND PROCEDURAL BACKGROUND ......................................................2

7 A. The Court Issues a Limited Preliminary Injunction. ..................................3
8 B. The City Attempts to Implement an Allocation and Registration Process. .5
9
C. The City Engages in an Interactive Process Relating to Individual Ada
10 Claims. .....................................................................................................6
11 D. Conditions at Encampments Continue to Present Public Health and

Safety Issues. ............................................................................................7
12
E. The City Amends Chapter 19.50. ..............................................................8
13
F. The City Agrees to Create a Secured Encampment Area. ..........................9
14
ARGUMENT ................................................................................................................11
15
16 I. THE CITY’S AMENDMENTS TO CHAPTER 19.50 RENDERS

PLAINTIFFS’ LAWSUIT MOOT. ....................................................................11
17
II. BECAUSE THE PROVISIONS OF CHAPTER 19.50 IDENTIFIED IN THE
18 PRELIMINARY INJUNCTION ORDER HAVE BEEN REPEALED OR
MODIFIED, THE INJUNCTION MUST BE DISSOLVED...............................12
19
A. There Has Been a Significant Change in the Facts. .................................13
20
21 B. The Change in Facts Warrants Dissolution of the Preliminary

Injunction. ..............................................................................................13
22
CONCLUSION .............................................................................................................16
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MEMO OF POINTS AND AUTHORITIES IN i 3:23-cv-04085-EMC
1 TABLE OF AUTHORITIES
2 Cases
3 Agostini v. Felton,
521 U.S. 203 (1997) ..............................................................................................................12
4
5 All. for the Wild Rockies v. Peña,

865 F.3d 1211 (9th Cir. 2017) ...............................................................................................13
6
Board of Trustees of Glazing Health and Welfare Trust v. Chambers,
7 941 F.3d 1195 (9th Cir. 2019) ...............................................................................................10
8 Horne v. Flores,
9 557 U.S. 433 (2009) ........................................................................................................ 12, 16
10 Karnoski v. Trump,
926 F.3d 1180 (9th Cir. 2019) ...............................................................................................12
11
Martin v. Boise,
12
902 F.3d 1031 (9th Cir. 2018) .................................................................................................2
13
Naretto v. City of Petaluma,
14 2022 WL 1539780 at *1 (N.D. Cal. 2022) .............................................................................12
15 Orantes-Hernandez v. Gonzales,
504 F.Supp.2d 825 (C.D. Cal. 2007)......................................................................................16
16
17 Ramos v. Nielsen,
--- F.Supp.3d ----, 2023 WL 9002731 (N.D Cal. 2023) ..........................................................11
18
Rufo v. Inmates of Suffolk County Jail,
19 502 U.S. 367 .........................................................................................................................16
20
Sharp v. Weston,
21 233 F.3d 1166 (9th Cir. 2000) ...............................................................................................12
22 Shell Offshore, Inc. v. Greenpeace, Inc.,

709 F.3d 1281 (9th Cir. 2013) ...............................................................................................13
23
24 Vanke v. Block,
77 Fed.Appx. 948 (9th Cir. 2003) ..........................................................................................11
25
Winter v. Natural Res. Def. Council, Inc.,
26 555 U.S. 7 (2008) ..................................................................................................................13
27
28
MEMO OF POINTS AND AUTHORITIES IN ii 3:23-cv-04085-EMC
1
Other Authorities
2
Chapter 19.50 of San Rafael’s Municipal Code .................................................................. passim
3
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MEMO OF POINTS AND AUTHORITIES IN iii 3:23-cv-04085-EMC
1 NOTICE OF MOTION
2 NOTICE IS HEREBY GIVEN THAT, on June 20, 2024, at 1:30 p.m., or as soon
3 thereafter as the matter may be heard by the above-entitled Court, located at 450 Golden Gate
4 Avenue, Courtroom 5, 17th Floor, San Francisco, California, Defendant City of San Rafael will,
5 and hereby does, move the Court to for an order dismissing Plaintiffs’ First Amended Complaint
6 or, in the alternative, for an order dissolving the preliminary injunction this Court issue on
7 October 19, 2023.
8 The motion will be made on the grounds that (1) Plaintiffs’ First Amended Complaint is
9 moot given the changes the City has made to the provisions of San Rafael Municipal Code
10 Chapter 19.50, and (2) there is no justification for keeping the Court’s preliminary injunction in
11 place because the changes to Chapter 19.50 address the issues that gave rise to the injunction.
12 This motion is based upon this Notice of Motion and Motion; the attached Memorandum
13 of Points and Authorities; the Declarations of Cristine Alilovich, Christopher Hess, Todd
14 Berringer, Don Jeppson, Robert Sinnott, Jay Ress, and Christine Miller; the prior pleadings and
15 orders in this action;, and such other material or argument as may be submitted in support of the
16 motion.
17 Dated: May 10, 2024 Respectfully Submitted,
18 MOSCONE EMBLIDGE & RUBENS LLP
19
20 By:
G. Scott Emblidge
21
Attorneys for Defendant City of San
22 Rafael
23
24 MEMORANDUM OF POINTS AND AUTHORTIES

25 INTRODUCTION
26 Plaintiffs’ original and First Amended Complaint attack Chapter 19.50 of San Rafael’s
27 Municipal Code which regulated camping on public property in the City. On October 19, 2023,
28 this Court issued a preliminary injunction (the “PI Order”) that limited the City’s ability to
MEMO OF POINTS AND AUTHORITIES IN 1 3:23-cv-04085-EMC
1 enforce Chapter 19.50 and identified specific aspects of Chapter 19.50 that caused the Court
2 concerns about its constitutionality and enforceability.
3 The City has amended Chapter 19.50 to address the Plaintiffs’ and the Court’s concerns.
4 The amended Chapter 19.50 substantially increases the size of permissible campsites,
5 dramatically decreases the required spacing between campsites, adds a requirement that only
6 knowing or willful violations of Chapter 19.50 will subject an individual to possible criminal
7 charges, and rewrites provisions that the Plaintiffs alleged were unconstitutionally vague.
8 Given these legislative changes, the City asks this Court to dismiss Plaintiffs’ lawsuit as
9 moot, because the lawsuit challenges provision of Chapter 19.50 that are no longer in effect. In
10 the alternative, the City asks the Court to dissolve its Preliminary Injunction because the
11 amended Chapter 19.50 addresses the concerns the Court identified in the PI Order such that
12 there is no basis for enjoining the City from enforcing the amended Chapter 19.50.
13 For the City to compassionately, but effectively, help its unhoused residents while
14 addressing public health and safety issues associated with some encampments or unhoused
15 individuals, the City needs relief from this Court’s PI Order.
16 FACTUAL AND PROCEDURAL BACKGROUND
17 The operative complaint is Plaintiffs’ First Amended Complaint filed on September 26,
18 2023 (“FAC”). The FAC seeks to enjoin enforcement of Chapter 19.50 and alleges seven causes
19 of action:
20 1. A violation of the Eighth Amendment based on (a) Martin v. Boise, 902 F.3d 1031
21 (9th Cir. 2018) for allegedly imposing criminal penalties on homeless individuals for
22 sleeping on public property when they cannot obtain shelter elsewhere, and (b)
23 allegedly punishing unhoused persons for consuming meals or possessing luggage on
24 public property which allegedly criminalizes the status of being homeless.
25 2. A violation of the Fourteenth Amendment on the grounds that Chapter 19.50 is
26 allegedly unconstitutionally vague based on (a) language that could be interpreted to
27 criminalize eating a meal or possessing a backpack on public property, and (b) the
28 lack of a mens rea or scienter requirement for criminal prosecution.

1 3. A violation of the First Amendment for allegedly punishing unhoused individuals
2 who might congregate to consume meals on public property.
3 4. A violation of the prohibition against Bills of Attainder by allegedly punishing only
4 unhoused individuals for activities such as eating on public property.
5 5. A violation of the Equal Protection Clause of the Fourteenth Amendment by allegedly
6 punishing only unhoused individuals for activities such as eating on public property.
7 6. A violation of the Americans with Disabilities Act by allegedly failing to
8 accommodate the disabilities of some unhoused individuals and allegedly failing to
9 engage in an interactive process to evaluate those individuals’ requests for

10 accommodation.
11 7. A violation of the Fourteenth Amendment by allegedly increasing dangers to
12 unhoused individuals based on Chapter 19.50’s requirement that campsites be
13 separated by 200 feet.
14 A. The Court Issues a Limited Preliminary Injunction.
15 In the PI Order, the Court addressed virtually every aspect of the FAC. As to the Eighth
16 Amendment claim, the Court stated: “The City has since submitted a map identifying areas
17 where camping remains lawful in San Rafael, which abates much concern regarding a simple
18 violation of Martin.” (PI Order at 3:12-14.)
19 But the Court expressed substantial concerns that Chapter 19.50 did not “permit Plaintiffs
20 to maintain some semblance of community.” (Id. at 4:7-10.) The Court stated that the
21 distancing requirements in Chapter 19.50 potentially created “isolation” thus raising “at least
22 serious questions on the merits of this due process claim [based on a state-created danger] at this
23 preliminary juncture.” (Id. at 37:19-22.) Similarly, the Court found that Plaintiffs “raised a
24 serious question as to whether their rights under the ADA would be violated in the absence of at
25 least narrow preliminary injunctive relief requiring that unhoused individuals be allowed to camp
26 in a cluster of up to four people within 100 feet of other encampments and requiring the City
27 engage in the interactive process before enforcing the Ordinance against Plaintiffs.” (Id. at
28 41:20-24.) Finally, the Court held that Plaintiffs “have raised at least ‘serious questions’ as to
1 the merits of their claims that the Ordinance violates constitutional principles of due process,” in
2 part because Chapter 19.50 had no mens rea requirement and thus, potentially, imposed criminal
3 liability against an unhoused individual who unwittingly violates the ordinance’s distancing
4 requirements. (Id. at 42:5-10 and 43:15-16.)
5 The Court concluded as follows:
6 “[T]he Court finds that the City may, during the pendency of the litigation or until further
7 ordered, enforce SMC Section 19.50 with the following modifications and conditions. For
8 individual Plaintiffs in this action that have established standing and members of the San Rafael
9 Homeless Union that reside at the Mahon Creek Path encampment, the City must:
10 • Allow 400 square feet campsites (instead of 200 square feet) housing up to four
11 people.
12 • Campsites may be separated by 100 feet (rather than a 200-foot) buffer.
13 • To the extent Plaintiffs identified above do not have tents and bedding that can fit
14 within the space compliant with the Ordinance, the City must provide replacements.
15 • The City must provide assistance to campers who need to move to a designated space.
16 • The City must designate the permissible campsites which complies with the
17 Ordinance as modified by this preliminary injunction on street level maps. The map
18 shall identify each allowable campsite by size and number of allowed occupants. The
19 City shall also visibly designate at each site, the boundaries of each permissible
20 campsite so that campers will have clear notice in order to comply with the
21 Ordinance.
22 • The City must establish some kind of allocation and registration process so that there
23 is an orderly process by which campers can find permitted campsites.
24 • The City shall not evict or prosecute any Plaintiff who has submitted a request for
25 reasonable accommodation based on disability unless and until it completes an
26 interactive process (including administrative appeals) with that Plaintiff to address the
27 need for reasonable accommodation.” (Id. at 48:24-49:16.)
28
B. The City Attempts to Implement an Allocation and Registration Process.

1
Following this Court’s issuance of the PI Order, the City attempted to implement an
2
allocation/reservation system consistent with what the Court required. The City identified 56
3
numbered spaces and worked with some Plaintiffs and their identified leadership to begin an
4
allocation process. The City agreed to provide gift cards and camping equipment as incentives to
5
unhoused individuals to participate in the allocation process. (Hess Dec., ¶ 10.)
6
The City found such an allocation process was impossible to implement for several
7
reasons, including the following (Hess Dec., ¶ 11):
8
• Some campsites appeared to be occupied but no occupants could be identified
9
despite numerous visits to the encampment. The City could not remove
10
abandoned campsites promptly due to the PI Order.
11
• Some individuals residing in the encampment did not wish to sign up for spaces
12
created a cascading effect by which the physical space needed for designating
13
spaces was encumbered by those located and uninterested in relocating, thereby
14
further limiting available campsites.
15
• Only eight individuals actually relocated to assigned spaces under the program,
16
and the City assisted them in relocating, but none of these eight observed the
17
boundaries of the spaces the City had drawn. The City could not promptly post
18
and remove abandoned property due to the PI Order.
19
• Some individuals moved to an allocated space and then wished to change their
20
spaces because of interpersonal difficulties between neighbors.
21
• While City staff is aware of many individuals camping in one spot for a long
22
period, a substantial portion of the population in the encampment remains mobile
23
between locations within the encampment, and in some cases between
24
encampments in other neighborhoods and cities. Without a program structure
25
providing significant dedicated staffing, it is impossible to track where highly
26
mobile individuals are staying, or even to know exactly whom certain tents
27
belong to.
28
1 In the opinion of the City’s trained and experienced staff, an allocation system can only
2 succeed with cooperation of campers and it is not possible to gain cooperation of a sufficient
3 number of individuals through voluntary incentives alone. The City found that many of the
4 campers refused to cooperate, despite the City-provided incentives, because they found their
5 existing, unlawful campsites to be preferable. To have success in enforcing an allocation system
6 or any type of organization of this camping, a city would need to deploy around-the-clock
7 staffing and site access control and enforce rules in a program agreement. The City lacks the
8 tremendous resources that would be necessary to deploy a City-wide allocation system. The City
9 is unaware of any city attempting to create an orderly camping scheme with large groups of
10 unhoused individuals camping at various locations throughout a city. (Hess Dec., ¶ 12.)
11 Moreover, in light of the changes to Chapter 19.50’s setback requirements resulting in an
12 overabundance of potential campsites in the City relative to the number of unhoused individuals,
13 the fact that an individual can easily determine visually whether they are in compliance with the
14 10-foot setback requirements, and the City’s willingness to physically mark the allowed
15 dimensions of a campsite to assist a person to comply, a City-wide allocation system is
16 unnecessary even if one could reasonably be implemented. In sum, the City believes a City-wide
17 allocation scheme is fundamentally untenable in San Rafael, despite the best efforts of staff.
18 (Hess Dec., ¶ 12-13.)
19 C. The City Engages in an Interactive Process Relating to Individual ADA
Claims.
20
The City has received 13 requests for accommodation under the ADA from individuals
21
residing within or near the encampment at the Mahon Creek Path requesting accommodations
22
concerning the City’s enforcement of Chapter 19.50. The City offered to meet with each
23
individual. Ten accepted the City’s invitation to meet. (Jeppson Dec., ¶ 3.)
24
The City’s ADA Coordinator listened to their requests for accommodation and the
25
underlying reasons they provided for their requests. He then issued initial determination letters
26
to each of the 10 individuals. (Id.)
27
28
1 Five individuals filed appeals to the City Manager. Four of those appeals were based on
2 provisions of the prior now-amended Chapter 19.50 (or impacts of those provisions) relating to
3 the size of campsites, the distance between the campsites, and other time, place, and manner
4 restrictions of the prior Chapter 19.50. Because the City has amended those provisions of the
5 ordinance, the City Manager wrote to three of those individuals informing them that their appeals
6 are moot. The fourth individual moved into housing since filing an appeal, so his appeal was
7 closed because he is now in housing. (Alilovich Dec., ¶ 5.)
8 As to the fifth individual who appealed, City staff have met twice with this individual
9 about his ADA claim and his appeal to that claim, in an interactive process, with the individual’s
10 advocates present in both meetings. (Alilovich Dec., ¶ 6; Hess Dec., ¶ 16.) The City offered to
11 resolve his claim by letting him have a 400-square-foot campsite, marked this space with spray
12 paint at the individual’s preferred location, and he agreed to these restrictions. More than two
13 weeks since his compliance deadline has passed, he has not complied with the restrictions and
14 his “campsite” continues to grow. (Hess Dec., ¶ 16.)
15 D. Conditions at Encampments Continue to Present Public Health and Safety
Issues.
16
17 During the pendency of the preliminary injunction, the public health and safety issues
18 associated with the Mahon Creek Path encampment have only gotten worse. For example, since
19 October 2023, there have been 131 calls for service and police response incidents at or in the
20 vicinity of the Mahon Creek Path encampment. (Berringer Dec., ¶¶ 2-8.) Of those, one involved
21 attempted murder, two involved armed robbery or theft, two involved assault with a deadly
22 weapon, four involved a fire or arson in progress, and one involved a suicidal suspect. (Id.)
23 Also, earlier this week, the San Rafael Fire Department responded to two fires in a
24 homeless encampment on Andersen Drive in the vicinity of the Mahon Creek Path encampment.
25 The main fire impacted the rear of the building located at 757-767 Lincoln Avenue, causing fire
26 and radiant heat damage to the building, because the encampment was set up against the building
27 wall. The main fire appeared to destroy an encampment as well as vegetation in the immediate
28
1 area and a second fire, involving burning rubbish, was approximately 50 feet away. (Sinnott
2 Dec., ¶ 2-3 and Ex. A.)
3 In addition, since January 1, 2024, the City and its contractors have conducted 29
4 cleanups of garbage (only) at the Mahon Creek path. These are not camp clearances; the
5 cleanups were only removing garbage that was voluntarily discarded by the Mahon Creek Path
6 encampment occupants. In total, an estimated 222,000 pounds of refuse/discards have been
7 removed from the Mahon Creek Path through these efforts. This averages out to approximately
8 7,655 pounds per cleanup. The cost to the City of this service has exceeded $25,000 per month,
9 because of the number of workers and time required and the extra fees associated with hazardous
10 material and unusual items. (Hess Dec., ¶ 18.)
11 Finally, the encampment has had a serious negative impact on the owners, employees,
12 and customers of adjacent businesses. (Miller Dec., ¶¶ 2-8; Ress Dec., ¶¶ 2-6.)
13 E. The City Amends Chapter 19.50.
14 On April 15, 2024, the San Rafael City Council voted to amend Chapter 19.50 to address
15 issues raised by this Court in its October 19, PI Order. The Council adopted the amended
16 Chapter 19.50 on May 6, 2024. It will take effect as of June 5, 2024. (Hess Dec., ¶ 3 and
17 Ex. D.) Among the significant changes to Chapter 19.50 are the following:
18 • Campsite size. Chapter 19.50 previously limited campsites to 100 square feet for
19 one person or 200 square feet for two or more people. This Court’s PI Order did
20 not require a change in size for a single camper but required that 400 square feet
21 be provided for campsites with up to four people. The amended Chapter 19.50
22 allows campsites of 200 square feet for one person and 400 square feet for up to
23 four persons.
24 • Distance between campsites. Chapter 19.50 previously did not allow campsites to
25 be within 200 feet of any other campsite. This Court’s Preliminary Injunction
26 Order required a reduction of that buffer to 100 feet. The amended Chapter 19.50
27 removes this distancing requirement and instead imposes setbacks.
28
1 • Setbacks. The amended Chapter 19.50 requires that campsites be set back only
2 10 feet from other campsites, public utilities, or private real property.
3 • Mens Rea. The amended Chapter 19.50 adds language that no person may be
4 charged with a crime for violation of the camping regulations “unless their
5 unlawful conduct is knowing or willful.” Also, each person found in violation of
6 the camping restrictions will receive a written warning notice prior to
7 enforcement.
8 • Definitional Issues. The amended Chapter 19.50 removes the language Plaintiffs
9 objected to in the FAC that included “consuming meals” in the definition of

10 “camping,” and included “luggage” and “backpacks” in the definition of “camp
11 paraphernalia.”
12 Because the amended Chapter 19.50 replaces the 200-foot distancing requirement with a
13 10-foot setback, there are far more available camping spaces under the amended Chapter 19.50
14 compared to the prior Chapter 19.50. The City estimates that over 1,000 spaces are available,
15 which is almost four times the estimate of the number of unhoused individuals in the City and
16 eight times the estimate of the number of individuals camping on public property. (Hess Dec.,
17 ¶ 4-5 and Ex. E.) The City does not intend to revert back to the original Chapter 19.50 if the
18 Court dismisses Plaintiffs’ case or dissolve the Preliminary Injunction. (Alilovich Dec., ¶ 3.)
19 F. The City Agrees to Create a Secured Encampment Area.
20 In addition to amending Chapter 19.50, the City is creating a secured encampment area
21 where unhoused individuals can reside, funded in large part from $6 million the City just secured
22 from the State of California. (Hess Dec., ¶¶ 6-9.)
23 The City intends to enhance the support to the encampment to address individual and
24 community safety and sanitation concerns. These enhancements include the County providing
25 four full-time case management and outreach staff dedicated exclusively to this secure
26 encampment area. Mobile bathrooms and showers will be regularly available, with the potential
27 for additional laundry services available pending the purchase of a new mobile shower/laundry
28 vehicle. The City will also hire a professional nonprofit operator and security contractor trained
1 in de-escalation and harm reduction for the protection of unhoused individuals and their personal
2 property. This operator will provide 24/7/365 staffing at the site and will assist individuals in the
3 governing of the site via a co-created program agreement and Code of Conduct established to
4 protect the safety of participants and staff. These contractors will also provide a fire watch,
5 working to limit or eliminate ignition sources to mitigate fire risks. The secure camp area will
6 provide unhoused individuals with convenient access to case managers and other service
7 providers, while providing a service team with capacity to navigate every individual in the
8 current encampment on their housing pathway, and transition assistance such as security
9 deposits, subsidies, and furniture assistance. (Hess Dec., ¶ 7.)

10 The City estimates that the secure encampment area will have space for approximately 40
11 individuals. Based on conversations and outreach with individuals residing at the Mahon Creek
12 Path encampment, the City believes this safe, secure area will be attractive to many of the
13 Plaintiffs and other unhoused individuals. The City is optimistic that the secure encampment
14 area will improve the lives of those who utilize it and increase the chances of their successful
15 transition to permanent housing solutions. The City sponsored a “Service Support Area”
16 between July 2021 and July 2022 in the City which provided a secure sleeping area to 47
17 individuals; at last count 35 of these 47 (74%) are housed through the support provided and have
18 not returned to homelessness. (Hess Dec., ¶ 8.)
19 Individuals camping in the Mahon Creek Path area at the time of the funding application
20 will be preferentially offered both space at the secure camping area and the services provided
21 through the grant funding. Their participation in the camping area and support services will be
22 voluntary, using a trauma-informed harm reduction approach, as required in State policy and
23 described in the City’s and County’s joint grant application. (Hess Dec., ¶ 9.)
24
25
26
27
28
ARGUMENT
1
I. THE CITY’S AMENDMENTS TO CHAPTER 19.50 RENDERS PLAINTIFFS’
2 LAWSUIT MOOT.
3 The repeal, amendment, or expiration of challenged legislation is generally enough to
4 render a case moot and appropriate for dismissal. Board of Trustees of Glazing Health and
5 Welfare Trust v. Chambers, 941 F.3d 1195, 1198 (9th Cir. 2019). This rule applies even when a
6 public entity amends legislation in response to a court ruling. 941 F.3d at 1199. The public
7 entity is presumed to have acted in good faith in amending the legislation and, to rebut a
8 mootness argument, the party challenging that presumption must show that there is a reasonable
9 expectation that the public entity will reenact the former legislation. Id.
10 In Chambers, the Nevada legislature passed a law that the district court found was
11 preempted by ERISA in several respects. In response, the legislature replaced the statute with a
12 new statute that addressed the district court’s concerns. Id. at 1197. The Ninth Circuit held that
13 the legislature’s action rendered the case moot and ordered the district court to dismiss the
14 complaint. Id. at 1200; see also, Vanke v. Block, 77 Fed.Appx. 948, 949 (9th Cir. 2003)
15 (adoption of new policy that complies with the terms of preliminary injunction renders
16 underlying claim moot); Ramos v. Nielsen, --- F.Supp.3d ----, 2023 WL 9002731 (N.D Cal.
17 2023) (policy change by Department of Homeland Security rendered case moot).
18 Here, the amended Chapter 19.50 addresses virtually every issue raised in the FAC. It
19 maintains language stating that camping on certain public property will be permitted when there
20 is no alternative shelter available to the person camping, it increases the size of campsites for
21 individuals and groups of up to four campers, and its 10-foot setback requirement allows for over
22 1,000 campsites on public property, approximately four times the number of unhoused
23 individuals in San Rafael. (Hess Dec., ¶ 4.) Thus, Plaintiffs’ Eighth Amendment challenge to
24 the original Chapter 19.50 is moot.
25 The amended Chapter 19.50 removes the language the FAC claims to be
26 unconstitutionally vague because it allegedly could be interpreted to criminalize eating a meal or
27 possessing a backpack on public property. The amended Chapter 19.50 also adds language that
28 no person may be charged with a crime for violation of the camping regulations “unless their
1 unlawful conduct is knowing or willful,” addressing Plaintiffs’ complaint about the absence of a
2 mens rea requirement. Thus, Plaintiffs’ Fourteenth Amendment, First Amendment, Bill of
3 Attainder, and Equal Protection claims are moot.
4 The amended Chapter 19.50 removes the prior 200-foot distancing requirement and
5 allows for 400-square-foot campsites for groups of up to four individuals. In addition, the City
6 has now completed the interactive process relating to individual Plaintiffs’ ADA complaints.
7 (Jeppson Dec., ¶ 3; Alilovich Dec., ¶¶ 5-6.) Thus, the Plaintiffs’ ADA claims are moot.
8 Similarly, these changes to Chapter 19.50 eliminate what Plaintiffs alleged to be a Fourteenth
9 Amendment, state-created-danger problem because individuals will be able to camp closer

10 together than even the PI Order mandated.
11 For all these reasons, the Court should dismiss Plaintiffs’ lawsuit as moot.
12 II. BECAUSE THE PROVISIONS OF CHAPTER 19.50 IDENTIFIED IN THE
PRELIMINARY INJUNCTION ORDER HAVE BEEN REPEALED OR
13 MODIFIED, THE INJUNCTION MUST BE DISSOLVED.
14 Even if the Court believes this case is not moot, it should still dissolve the Preliminary
15 Injunction because that FAC and the Plaintiffs’ motion for an injunction sought to enjoin – and
16 the PI Order did enjoin – enforcement of the now superseded version of Chapter 19.50. Given
17 that the provisions of Chapter 19.50 that Plaintiffs’ motion and the PI Order addressed have been
18 repealed, there is no legal basis for maintaining the preliminary injunction.
19 “A party seeking modification or dissolution of an injunction bears the burden of
20 establishing that a significant change in facts or law warrants revision or dissolution of the
21 injunction.” Sharp v. Weston, 233 F.3d 1166, 70 (9th Cir. 2000). Once a party carries this
22 burden, a court abuses its discretion ‘when it refuses to modify an injunction or consent decree in
23 light of such changes.’” Horne v. Flores, 557 U.S. 433, 447 (2009) (citation omitted)
24 (quoting Agostini v. Felton, 521 U.S. 203, 215, (1997)).
25 This Court has previously summarized the appropriate analysis for a motion to dissolve
26 or modify a preliminary injunction:
27 The inquiry under Sharp has two parts. The court must first address whether
28 the party seeking dissolution of the injunction has established “a significant
change in facts or law.” Sharp, 233 F.3d at 1170. If this showing has been
1 made, the court must then address whether this change “warrants... dissolution
2 of the injunction.” See id. “This latter inquiry should be guided by the same
criteria that govern the issuance of a preliminary injunction.” Karnoski v.
3 Trump, 926 F.3d 1180, 1198 (9th Cir. 2019).
4 Naretto v. City of Petaluma, 2022 WL 1539780 at *1 (N.D. Cal. 2022)
5 A. There Has Been a Significant Change in the Facts.
6 Here, the City easily satisfies its burden to show that facts have changed and that the
7 preliminary injunction is no longer warranted. The enactment of the amended Chapter 19.50
8 addresses almost all the issues the Court identified in the PI Order as justifying an injunction.
9 For example, the amended Chapter 19.50 implements the PI Order by allowing for 400 square
10 foot campsites (instead of 200 square feet) for up to four people. It goes beyond the PI Order by
11 increasing the size of individual campsites from 100 square feet to 200 square feet. The PI Order
12 required the City to reduce the separation between campsites from 200 feet to 100 feet, but the
13 amended Chapter 19.50 goes beyond that, removing the distancing requirement and replacing it
14 with just a 10-foot setback requirement between campsites. The PI Order required the City to
15 provide replacement tents that fit within the campsite dimensions, and the City does this as a
16 regular practice. (Hess Dec., ¶ 15.) As the PI Order requires, the City will provide assistance to
17 campers who need help to move to permissible campsite. (Id.) And, the City has developed a
18 map showing all the permissible areas where camping is permitted under the amended Chapter
19 19.50. (Id., at Ex. E.) Finally, the City has not, and will not, evict or prosecute anyone who has
20 submitted a request for reasonable accommodation based on disability unless and until the City
21 completes an interactive process (including administrative appeals) with that person to address
22 the need for reasonable accommodation. (Jeppson Dec., ¶ 5; Hess Dec., ¶ 14-15.)
23 B. The Change in Facts Warrants Dissolution of the Preliminary Injunction.
24 In deciding whether a preliminary injunction is warranted, the Court explained as follows
25 in the PI Order:
26 The traditional Winter standard requires the movant to show that (1) it “is
likely to succeed on the merits;” (2) it “is likely to suffer irreparable harm in
27
the absence of preliminary relief;” (3) “the balance of equities tips in [its]
28 favor;” and (4) “an injunction is in the public interest.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). Under the “sliding scale” variant of
1 the same standard, “if a plaintiff can only show that there are ‘serious
2 questions going to the merits’—a lesser showing than likelihood of success on
the merits—then a preliminary injunction may still issue if the ‘balance of
3 hardships tips sharply in the plaintiff’s favor,’ and the other two Winter
factors are satisfied.” All. for the Wild Rockies v. Peña, 865 F.3d 1211, 1217
4 (9th Cir. 2017) (emphasis in original) (quoting Shell Offshore, Inc. v.
Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)).
5
(PI Order at 22:9-20.)
6
Given the changes made by the amended Chapter 19.50, there is no legal basis for
7
maintaining the Preliminary Injunction. Plaintiffs are not likely to succeed on the merits because
8
the City has addressed almost every aspect of Chapter 19.50 that the Court identified as legally
9
troubling. Plaintiffs will not suffer irreparable harm without injunctive relief because the City is
10
providing for more campsites than there are unhoused individuals, authorizing larger campsites,
11
and greatly reducing the distance between campsites.
12
The only directive in the PI Order that the City has not been able to implement is the
13
“establish[ment of] some kind of allocation and registration process so that there is an orderly
14
process by which campers can find permitted campsites.” The City attempted to implement such
15
a process but, as explained in more detail above, it proved completely unworkable. Despite the
16
City offering gift cards and camping equipment as incentives to unhoused individuals to
17
participate in the allocation process, very few individuals agreed to participate. (Hess Dec.,
18
¶ 10.) In addition, some campsites appeared to be occupied but no occupants could be identified
19
despite numerous visits to the encampment, some individuals residing in the encampment would
20
not sign up for spaces and their refusal meant the City could not allocate spaces in these
21
locations, some individuals moved to an allocated space and then wished to change their spaces
22
because of interpersonal difficulties between neighbors, and while many individuals camp in one
23
spot for a long period, a substantial portion of the population in the encampment remains mobile
24
between locations within the encampment, and in some cases between encampments in other
25
neighborhoods and cities. (Hess Dec., ¶ 11):
26
In the opinion of the City’s trained and experienced staff, to have success in enforcing an
27
allocation system, a city would need to deploy tremendous resources which the City currently
28
1 lacks. The City is unaware of any city attempting to create an orderly camping scheme with
2 large groups of unhoused individuals camping at various locations throughout a city. (Hess Dec.,
3 ¶ 12.)
4 Moreover, in light of the changes to Chapter 19.50’s setback requirements resulting in an
5 overabundance of potential campsites in the City relative to the number of unhoused individuals,
6 the fact that an individual can easily determine visually whether they are in compliance with the
7 10-foot setback requirements, and the City’s willingness to physically mark the allowed
8 dimensions of a campsite to assist a person to comply, a City-wide allocation scheme is
9 unnecessary even if one could reasonably be implemented. (Hess Dec., ¶ 12-13.)

10 Even if the Court is not persuaded that an allocation system is unworkable, the absence of
11 an allocation system does not violate the Eighth Amendment, nor does it increase any danger to
12 campers, nor does it violate the ADA. Thus, the absence of an allocation system cannot support
13 maintenance of the preliminary injunction.
14 Importantly, while Plaintiffs will suffer no harm if the preliminary injunction is dissolved
15 given the changes to Chapter 19.50, if the Court does not dissolve the Preliminary Injunction, the
16 City and public will continue to suffer substantial harm. The Court in the PI Order
17 acknowledged that “the City has identified substantial health and safety problems with the
18 current encampment as large as it is, and which appears to be growing.” (PI Order at 13:25-26.)
19 With the injunction in place, the problems have only gotten worse.
20 For example, since October 2023, there have been 131 calls for service and police
21 response incidents at or in the vicinity of the Mahon Creek Path encampment, including calls
22 relating to attempted murder, armed robbery, theft, arson, and assault with a deadly weapon.
23 (Berringer Dec., ¶¶ 2-8.) There have been multiple fires in the vicinity of the encampment,
24 including a significant fire earlier this week that damaged a building next to an encampment.
25 (Sinnott Dec., ¶ 2 and Ex. A.) Also, just since January 1, 2024, the encampment has generated
26 an estimated 222,000 pounds of refuse. The massive amount of refuse has generated many
27 public complaints, including by individuals experiencing homelessness in the vicinity concerned
28 with blight, rats, and fire risks. (Hess Dec., ¶ 16, 18.) Finally, the encampment has had a serious
1 negative impact on the owners, employees, and customers of adjacent businesses. (Miller Dec.,
2 ¶¶ 2-8; Ress Dec., ¶¶ 2-6.)
3 In light of the changes to Chapter 19.50, Plaintiffs are not likely to succeed on the merits
4 of their claims, Plaintiffs are unlikely to suffer irreparable harm if the preliminary injunction is
5 dissolved, but the public interest will be irreparably harmed if the City’s hands remained tied by
6 the preliminary injunction. Just as is true in the context of consent decrees, a federal court in the
7 context of lawsuits requesting injunctions against enforcement of local laws, should seek “to
8 return control to state and local officials as soon as a violation of federal law has been remedied.”
9 Horne v. Flores, 557 U.S. at 450-51; see Orantes-Hernandez v. Gonzales, 504 F.Supp.2d 825,
10 831 (C.D. Cal. 2007) (“Where a problem has been resolved or mooted by changed
11 circumstances, then equity and the public’s interest in the “sound and efficient operation of its
12 institutions” demands the injunction’s dissolution”), quoting Rufo v. Inmates of Suffolk County
13 Jail, 502 U.S. 367, 381. If the Court declines to dismiss Plaintiffs’ lawsuit as moot, it must
14 dissolve the preliminary injunction under these changed circumstances.
15 CONCLUSION
16 For all the foregoing reasons, the City requests that the Court dismiss Plaintiffs’ lawsuit
17 as moot. In the alternative, the City requests that the Court dissolve the preliminary injunction
18 given the changes to Chapter 19.50.
19 Dated: May 10, 2024 Respectfully Submitted,
20 MOSCONE EMBLIDGE & RUBENS LLP
21
22 By:
G. Scott Emblidge
23
Attorneys for Defendant City of San
24 Rafael
25
26
27
28

Boyd Et Al V City of San Rafael Et Al Candce-23-04085 0152.0

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Case 3:23-cv-04085-EMC Document 152 Filed 05/10/24 Page 1 of 20

1 G. SCOTT EMBLIDGE (SBN 121613)

7 ROBERT F. EPSTEIN (SBN 154373)

12 Attorneys for Defendant City of San Rafael

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA

16 SAN FRANCISCO COURTHOUSE

18 SHALEETA BOYD, et al., Case No.: 3:23-cv-04085-EMC

19 Plaintiffs, NOTICE OF MOTION AND MOTION TO

4 MEMORANDUM OF POINTS AND AUTHORTIES................................................................1

6 FACTUAL AND PROCEDURAL BACKGROUND ......................................................2

11 D. Conditions at Encampments Continue to Present Public Health and

16 I. THE CITY’S AMENDMENTS TO CHAPTER 19.50 RENDERS

21 B. The Change in Facts Warrants Dissolution of the Preliminary

5 All. for the Wild Rockies v. Peña,

22 Shell Offshore, Inc. v. Greenpeace, Inc.,

7 October 19, 2023.

24 MEMORANDUM OF POINTS AND AUTHORTIES

2 concerns about its constitutionality and enforceability.

23 allegedly punishing unhoused persons for consuming meals or possessing luggage on

24 public property which allegedly criminalizes the status of being homeless.

25 2. A violation of the Fourteenth Amendment on the grounds that Chapter 19.50 is

26 allegedly unconstitutionally vague based on (a) language that could be interpreted to

28 lack of a mens rea or scienter requirement for criminal prosecution.

1 3. A violation of the First Amendment for allegedly punishing unhoused individuals

2 who might congregate to consume meals on public property.

3 4. A violation of the prohibition against Bills of Attainder by allegedly punishing only

4 unhoused individuals for activities such as eating on public property.

5 5. A violation of the Equal Protection Clause of the Fourteenth Amendment by allegedly

7 6. A violation of the Americans with Disabilities Act by allegedly failing to

8 accommodate the disabilities of some unhoused individuals and allegedly failing to

9 engage in an interactive process to evaluate those individuals’ requests for

18 violation of Martin.” (PI Order at 3:12-14.)

4 requirements. (Id. at 42:5-10 and 43:15-16.)

5 The Court concluded as follows:

23 is an orderly process by which campers can find permitted campsites.

25 reasonable accommodation based on disability unless and until it completes an

27 need for reasonable accommodation.” (Id. at 48:24-49:16.)

B. The City Attempts to Implement an Allocation and Registration Process.

5 existing, unlawful campsites to be preferable. To have success in enforcing an allocation system

7 closed because he is now in housing. (Alilovich Dec., ¶ 5.)

2 Dec., ¶ 2-3 and Ex. A.)

6 encampment occupants. In total, an estimated 222,000 pounds of refuse/discards have been

27 removes this distancing requirement and instead imposes setbacks.

2 10 feet from other campsites, public utilities, or private real property.

5 unlawful conduct is knowing or willful.” Also, each person found in violation of

6 the camping restrictions will receive a written warning notice prior to

9 objected to in the FAC that included “consuming meals” in the definition of

22 from the State of California. (Hess Dec., ¶¶ 6-9.)

9 deposits, subsidies, and furniture assistance. (Hess Dec., ¶ 7.)

24 the original Chapter 19.50 is moot.

26 unconstitutionally vague because it allegedly could be interpreted to criminalize eating a meal or

3 Attainder, and Equal Protection claims are moot.

9 Amendment, state-created-danger problem because individuals will be able to camp closer

24 (quoting Agostini v. Felton, 521 U.S. 203, 215, (1997)).

26 or modify a preliminary injunction:

4 Naretto v. City of Petaluma, 2022 WL 1539780 at *1 (N.D. Cal. 2022)

5 A. There Has Been a Significant Change in the Facts.

23 B. The Change in Facts Warrants Dissolution of the Preliminary Injunction.

24 In deciding whether a preliminary injunction is warranted, the Court explained as follows

4 Moreover, in light of the changes to Chapter 19.50’s setback requirements resulting in an

8 dimensions of a campsite to assist a person to comply, a City-wide allocation scheme is

9 unnecessary even if one could reasonably be implemented. (Hess Dec., ¶ 12-13.)