[00:00:01] Speaker 04:
We're back on record for the final case on our oral argument calendar this week, Sacramento Homeless Union versus American Civil Liberties Union versus City of Sacramento.

[00:00:11] Speaker 04:
Case number 23-16123.

[00:00:12] Speaker 04:
Had to get that number out, counsel, but now we're ready to hear your argument.

[00:00:19] Speaker 03:
Good morning.

[00:00:20] Speaker 03:
May it please the court?

[00:00:20] Speaker 03:
Lee Roystacker for the City of Sacramento.

[00:00:24] Speaker 03:
And I'll reserve five minutes for rebuttal.

[00:00:27] Speaker 04:
Sure.

[00:00:28] Speaker ?:
Sure.

[00:00:30] Speaker 03:
Numbers are difficult to quantify exactly, but there are approximately 9,000 homeless in Sacramento County, about 5,000 approximately within the city of Sacramento, and approximately 400 homeless encampments sporadically throughout the city of Sacramento, in and around critical infrastructure and in various places.

[00:00:57] Speaker 03:
Now, my friends and I on the other side don't agree on a lot in this case, but one thing I think we can agree on is that homelessness is an epic problem.

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And the solutions to it are vexing, difficult, and are ongoing, and our municipalities are trying to create effective

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equally fair ways to do that.

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And we think the city of Sacramento does just that.

[00:01:25] Speaker 04:
Can I ask you a question right at the top?

[00:01:26] Speaker 04:
Sure.

[00:01:26] Speaker 04:
There's a protocol.

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We've read the protocol.

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My understanding is that they're not challenging the protocol.

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They're challenging the way the protocol is implemented.

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Is that your impression as well?

[00:01:41] Speaker 03:
Correct.

[00:01:42] Speaker 03:
There's no constitutional challenge to any of the ordinances.

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There's no constitutional challenge, I guess, to the protocol, which sort of dovetails into the Minnell claim.

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and that they're not challenging that policy as being unconstitutional.

[00:02:02] Speaker 04:
That's what I think, too.

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And they're going to correct me if I'm wrong.

[00:02:04] Speaker 04:
Yeah.

[00:02:04] Speaker 04:
But my understanding, because this is a very complicated problem.

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It's a big problem in a lot of cities within the Ninth Circuit.

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So you have our attention, for sure.

[00:02:15] Speaker 04:
Understanding that they're not challenging your protocol, it seems to me that their argument is, you can clear these camps according to the protocol, because they haven't said you can't do that.

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but that you should have to hit pause on that effort when the temperature gets to be excessive.

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And I'm not going to say whether it's 90 or 100 for purposes of this.

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I'll just say excessive.

[00:02:38] Speaker 04:
So what's wrong with that?

[00:02:40] Speaker 04:
Why shouldn't the city have to at least wait when the heat is extreme?

[00:02:45] Speaker 03:
OK, well, from a constitutional perspective, we don't think it falls within the state created danger doctrine.

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But from a practical problem,

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This is not a process that the city does.

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One day it says, let's go clear this encampment over here.

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Oh wait, it's 90 degrees.

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We shouldn't do that.

[00:03:08] Speaker 03:
These are long drawn out processes.

[00:03:10] Speaker 04:
I know I keep interrupting you, but that's another thing that's not really

[00:03:14] Speaker 04:
Spelled out in this record and I struggled probably because you all know it so well There's there's some gaps here in what we have I think so I'm envisioning this as a protocol a process and you've explained priority one camps priority two camps priority three camps are not Challenging those priorities and I'm envisioning a process.

[00:03:30] Speaker 04:
It's like painting the Golden Gate Bridge You're just doing this all the time.

[00:03:33] Speaker 04:
Is that wrong?

[00:03:36] Speaker 03:
I Would agree that I don't think the record is entirely

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clear on how it works.

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But there are some after action reports in the record that detail the clearing of three encampments starting in early 2023 and going in through the summer into July.

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And those sort of lay out the steps.

[00:04:03] Speaker 04:
Not the steps so much as I'm trying to figure out.

[00:04:06] Speaker 04:
I'm sure you're not just sort of clearing camps when it gets to be excessively hot.

[00:04:12] Speaker 03:
Oh, no, no.

[00:04:12] Speaker 04:
So my understanding is this is an ongoing effort because the encampments violate one of those three ordinances or there's too much crime or too much garbage or what have you.

[00:04:28] Speaker 03:
I would say that the city is constantly

[00:04:33] Speaker 03:
engaging in the steps in its protocol throughout the year.

[00:04:39] Speaker 04:
Right.

[00:04:40] Speaker 04:
And you've devoted a lot of your briefing to explaining why there's this other competing public safety concern.

[00:04:49] Speaker 03:
Yes.

[00:04:49] Speaker 04:
I'm not pushing back on that completely.

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Understand that.

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But it still gets us back to why

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Is it wrong that the city shouldn't have to hit pause when this heat gets to be excessive?

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So I still have that question.

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I think we're going to get back to it.

[00:05:07] Speaker 04:
You were explaining that you think that there isn't a cause of action here because you don't think the state created danger exception fits.

[00:05:15] Speaker 03:
Correct.

[00:05:16] Speaker 04:
You want to speak to that?

[00:05:17] Speaker 03:
I will in one second, but I'd like, this isn't an issue of

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whether it's politically right or politically wrong, or morally right or morally wrong.

[00:05:28] Speaker 04:
I agree.

[00:05:29] Speaker 03:
To clear what it's...

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extreme heat.

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And again, I don't know if that's very clear in the record what that means, 90 or 100.

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I guess for today, we can accept 90 degrees.

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That's sort of the temperature.

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The moral imperative that you're speaking of is not a nothing.

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It's just it's not our job.

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We're just a court of law.

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And so we're looking, hence, at the cause of action.

[00:05:48] Speaker 03:
Correct.

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So if you look at the state created danger doctrine, there are critics in this court about whether it should exist, but it does exist.

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I'm not here arguing that this court shouldn't even look at that doctrine as a constitutional theory of liability under the 14th Amendment.

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But what I am saying is that the court doesn't need to expand that doctrine beyond its breaking point.

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and into situations it's never been applied to.

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And I think applying it in this case does that.

[00:06:18] Speaker 04:
Their strongest argument is that it's not, according to me, and I'm only one of the voices up here, but it seems to me their strongest analogy is to the Munger case, where I think an intoxicated person was removed by police into the frigid cold in Montown.

[00:06:36] Speaker 03:
Right.

[00:06:36] Speaker 04:
OK.

[00:06:36] Speaker 04:
So you want to speak to that?

[00:06:37] Speaker 04:
Sure.

[00:06:38] Speaker 04:
Why would this be an expansion beyond Munger?

[00:06:40] Speaker 03:
Well, Munger dealt with one person.

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And this case was brought and the injunction was issued against clearing any homeless encampment anywhere in the city.

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So... So your argument really rests on this fact that you don't think this is a discrete and identifiable population?

[00:07:03] Speaker 03:
Correct.

[00:07:03] Speaker 05:
Okay.

[00:07:04] Speaker 05:
I'm having a little trouble with that because it would seem to me

[00:07:08] Speaker 05:
We're not talking about the general public, so we're not talking about this pool.

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We're talking about people who are homeless and living in encampments.

[00:07:19] Speaker 05:
How more specific would you need to get?

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Would you need to go block by block or what?

[00:07:24] Speaker 03:
Well, I think that it is a broad swath of the public.

[00:07:29] Speaker 03:
Really?

[00:07:30] Speaker 05:
How many homeless are there?

[00:07:32] Speaker 03:
I think there's probably 5,000.

[00:07:34] Speaker 05:
And how many people live in the city?

[00:07:36] Speaker 03:
Way more than that.

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I will concede that point.

[00:07:37] Speaker 03:
Well, I mean like way, way more.

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Way more than that.

[00:07:39] Speaker 03:
I will concede that point.

[00:07:40] Speaker 03:
I'm going to look it up.

[00:07:46] Speaker 04:
But you were saying you think it's not an identifiable population.

[00:07:50] Speaker 03:
Well, it's not necessarily an identifiable population.

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And the conduct isn't really targeted at the people.

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It's more targeted at the encampment.

[00:08:00] Speaker 04:
But who's in the encampment?

[00:08:01] Speaker 05:
People.

[00:08:01] Speaker 03:
People that are in the encampment.

[00:08:03] Speaker 05:
If there were no people in the encampment, we probably wouldn't be here if they were just taking out tents or something.

[00:08:09] Speaker 03:
That's correct.

[00:08:10] Speaker 05:
So you've got to have people to make this thing

[00:08:13] Speaker 05:
to actually implement the injunctions.

[00:08:15] Speaker 03:
But if you look at this court's case laws, for example, it's either always been an individual or always an easily identifiable group.

[00:08:28] Speaker 03:
And the CHOP case, Sinclair, was the general public in terms of people going into that zone.

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And they said that was not a particularized danger.

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It was experienced by everybody going into that zone.

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Same here.

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Whatever danger there is, and I'm not conceding there's a danger greater than that exists in the encampment in and of itself, but that's felt by not a particular person, but rather all of the people that are in all of the camps.

[00:09:00] Speaker 03:
And this isn't a case where they targeted one person.

[00:09:02] Speaker 05:
So why isn't that particularized?

[00:09:04] Speaker 05:
I mean,

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It says here that there's like 2.1 million people in the metropolitan area and within the city itself, at least a half million.

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And now you've got this population that we've just talked about.

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And so it's not people who live in apartments near there, right?

[00:09:22] Speaker 05:
That's correct.

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And it's not people who just pass by and they say, oh my god, it's so hot out here in Sacramento.

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It's not those people.

[00:09:30] Speaker 05:
That's correct.

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So I'm having trouble understanding why it isn't a particularized group.

[00:09:35] Speaker 05:
I thought this seems fairly identifiable.

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I mean, it might change.

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That would be one argument.

[00:09:42] Speaker 05:
Well, they change from day to day.

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But there's still the people living in these encampments.

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And that's the only people we're talking about, right?

[00:09:49] Speaker 03:
And I think it comes down to maybe our disagreement is how we define particularized.

[00:09:55] Speaker 05:
OK.

[00:09:56] Speaker 03:
And Sinclair defined it really as applying to a particular person.

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They quoted the dictionary definition.

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And again, we're not talking about a

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the city of Sacramento's population is way more than in the encampment.

[00:10:18] Speaker 03:
But, you know, 5,000 people or 4,000 people, that's not a small number.

[00:10:23] Speaker 03:
That's not particularized to any specific person or even a dozen people or even 100 people or even people living in one particular encampment.

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This was a city-wide blanket injunction.

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And even the cases that have applied the state created danger doctrine

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to more than one person, and arguably that's the COVID case, Planco I think it was.

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It talked about a discrete identifiable group, and those people were all within one institution.

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But what's interesting about that case is it really was a single plaintiff case, because it really involved one guard that was required to transport sick people to and from doctor's appointments.

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And the risk to that person was definitely particularized.

[00:11:17] Speaker 05:
I want to go back to when you opened, you talked about the Menell liability, and you referenced that.

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But I don't think that that was raised in the district court

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until after the injunction was issued.

[00:11:33] Speaker 05:
Is that right?

[00:11:33] Speaker 03:
There wasn't a specific argument made by the city about Menell in the original papers.

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It's an issue that is a legal issue that I think this court can consider and should consider.

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The actual plaintiffs or the appellees didn't challenge the ability to raise it.

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They actually argued that

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that they addressed it and the court addressed it.

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So I don't think it should be waived.

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I think the court should consider it.

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And the issue is going to come back.

[00:12:07] Speaker 03:
It's going to repeat itself.

[00:12:09] Speaker 04:
On that point, could I ask?

[00:12:11] Speaker 04:
I find this record a little confusing.

[00:12:14] Speaker 04:
We always just get the tip of the iceberg on appeal.

[00:12:17] Speaker 04:
But there was an injunction entered in 2022, I think.

[00:12:21] Speaker 03:
A series of them.

[00:12:22] Speaker 04:
And then again in 2023.

[00:12:23] Speaker 04:
And nothing happened between those two?

[00:12:25] Speaker 04:
No trial setting conference?

[00:12:27] Speaker 03:
No.

[00:12:27] Speaker 03:
No.

[00:12:28] Speaker 03:
As far as I can tell, nothing.

[00:12:29] Speaker 04:
Why is that?

[00:12:30] Speaker 03:
I do not have the answer.

[00:12:33] Speaker 01:
You know, as part of the state created danger, was there ever any evidence adduced one way or the other as to whether actually being in a tent during these hot temperatures is going to be a benefit?

[00:12:48] Speaker 01:
I don't know.

[00:12:49] Speaker 01:
I mean, all I remember from my days as a military officer is that when it was hot outside, we tried to get out of the tent.

[00:12:57] Speaker 01:
The tent was worse than outside.

[00:13:00] Speaker 01:
But that may not be the case in Sacramento.

[00:13:02] Speaker 01:
I don't know.

[00:13:03] Speaker 03:
There is evidence in the record of that in one of the declarations of Ms.

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Sanchez, who went on to describe things like people melting on chairs.

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And these are in the encampments.

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The heat in the tents being over 110 degrees.

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People basically not dying, but falling and passing out from heat exhaustion.

[00:13:27] Speaker 03:
These are in the camps.

[00:13:29] Speaker 03:
So Your Honor, your point's well taken.

[00:13:31] Speaker 04:
In the camps, in the shade?

[00:13:32] Speaker 01:
No, in the tent, he's saying.

[00:13:34] Speaker 03:
The tent.

[00:13:35] Speaker 03:
I don't know.

[00:13:36] Speaker 04:
But the tents, my understanding is the existing encampments are in the shade, and the problem is moving people out of the shade.

[00:13:41] Speaker 04:
So am I misunderstanding you?

[00:13:42] Speaker 03:
I don't think there's anything in the record that establishes all these encampments are in the shade.

[00:13:48] Speaker 03:
I don't believe that's in there.

[00:13:49] Speaker 01:
I didn't.

[00:13:50] Speaker 01:
I don't remember seeing.

[00:13:51] Speaker 01:
I remember some reference to shade, which is, I think, what Judge Christian is speaking of.

[00:13:56] Speaker 01:
But I don't remember that all of them were.

[00:13:58] Speaker 01:
And these things are all over the place.

[00:13:59] Speaker 01:
Correct.

[00:14:00] Speaker 03:
The argument made by my friends on the other side was that people do congregate in areas where they can escape heat.

[00:14:12] Speaker 03:
That was the argument.

[00:14:13] Speaker 03:
And then there's some sporadic evidence about

[00:14:17] Speaker 04:
My understanding is the theory is that the state created danger, because Sacramento didn't create the 110 degree weather or whatever it is, that the theory of the state to create a danger is removing people from, well, twofold, removing people encampments that are in the shade, and when temperatures are extreme, requiring people to pack up and move, because that's heavy work in very strenuous conditions.

[00:14:40] Speaker 04:
Correct.

[00:14:40] Speaker 04:
Hence, my understanding in opposing counsel, I can completely

[00:14:43] Speaker 04:
hopefully clear this up, because it's another thing that's not quite clear in the record to me.

[00:14:47] Speaker 04:
But my understanding is that the problem and the theory is premised upon encampments being moved out of the shade.

[00:14:56] Speaker 03:
I don't think there's anything in the record talking about encampments in the shade.

[00:14:59] Speaker 04:
The injunction is not limited to encampments in the shade.

[00:15:03] Speaker 03:
It is not.

[00:15:04] Speaker 03:
But it is limited to any encampment anywhere in the city.

[00:15:09] Speaker 03:
So unlimited, you mean?

[00:15:11] Speaker 04:
It covers any encampment in the city.

[00:15:13] Speaker 03:
Correct.

[00:15:13] Speaker 03:
It is unlimited.

[00:15:13] Speaker 03:
It applies to any encampment anywhere in the city.

[00:15:17] Speaker 03:
And so we don't know whether there are encampments in the shade.

[00:15:24] Speaker 03:
Maybe you can assume some, but certainly not all.

[00:15:27] Speaker 03:
And I think that for the state created danger, you actually have to increase the danger, obviously.

[00:15:33] Speaker 04:
I want to say five minutes.

[00:15:35] Speaker 03:
Oh, wow.

[00:15:35] Speaker 03:
Yeah.

[00:15:36] Speaker 03:
Thank you.

[00:15:37] Speaker 04:
You bet.

[00:15:39] Speaker 04:
We'll hear from opposing counsel, please.

[00:15:58] Speaker 02:
Good morning, Your Honors.

[00:16:00] Speaker 02:
May it please the Court, I'm Anthony Prince.

[00:16:02] Speaker 02:
I'm the attorney for the Sacramento Homeless Union.

[00:16:05] Speaker 02:
I wanted to

[00:16:07] Speaker 02:
I wanted to introduce my co-counsel Catherine Rogers.

[00:16:11] Speaker 02:
She's going to be addressing primarily some of the Monell issues since that issue has been raised, and she's going to kind of broaden and amplify a little bit on state-created danger, in particular, deliberate indifference.

[00:16:23] Speaker 02:
I'm going to get into that as well.

[00:16:25] Speaker 04:
That's fine.

[00:16:26] Speaker 02:
Thank you.

[00:16:27] Speaker 02:
First of all,

[00:16:29] Speaker 02:
I think that what we have to recognize here... Can I just verify?

[00:16:33] Speaker 04:
You're not challenging the protocol, right?

[00:16:35] Speaker 04:
Yes?

[00:16:35] Speaker 02:
Well, let me explain.

[00:16:36] Speaker 04:
Just the way it's implemented?

[00:16:38] Speaker 02:
This lawsuit is not about challenging the practice, policy, whatever you want to call it, of clearing encampments.

[00:16:46] Speaker 02:
It was referenced made to the three different levels.

[00:16:49] Speaker 04:
So just tell me what it is challenging, please.

[00:16:51] Speaker 02:
What we are challenging is the custom and practice

[00:16:55] Speaker 02:
of the city of Sacramento to move people out of areas where they had protection from the intense heat and sun into areas where they were more exposed.

[00:17:06] Speaker 02:
As you indicated, also the exertion, the tremendous exertion in that record heat of having to move from one place to another.

[00:17:15] Speaker 02:
OK.

[00:17:15] Speaker 04:
So you're challenging, and under your state created danger doctrine, the danger that you think that the city is increasing

[00:17:23] Speaker 04:
is exposing people to direct sunlight who were otherwise sheltered out in shade.

[00:17:28] Speaker 04:
But also, it sounds like it's any homeless person, whether they're in shade or not, because it includes the exertion of moving on a very hot day.

[00:17:37] Speaker 04:
Is that fair?

[00:17:37] Speaker 02:
That's correct, Your Honor.

[00:17:38] Speaker 04:
All right, thank you.

[00:17:39] Speaker 02:
I mean, obviously, the shade, one of the reasons that the court recognized that the scope and breadth of the order needed to be citywide was because shade itself is a transitory phenomenon.

[00:17:49] Speaker 04:
I appreciate that, but your time is ticking.

[00:17:50] Speaker 04:
So could you go to the state created danger doctrine and tell us, opposing counsel thinks this would be an expansion?

[00:17:57] Speaker 04:
And can you explain to us your view of why that is a good fit here?

[00:18:01] Speaker 02:
Yes, Your Honor.

[00:18:02] Speaker 02:
We do not believe this would be an expansion.

[00:18:04] Speaker 02:
In fact, it's well within the parameters of Mongor versus Glasgow and within the parameters of other cases here in the Ninth Circuit, which have observed that there was an existing hazard and there was an enhancement of the risk by pushing people or situating people in making them more vulnerable to that existing hazard.

[00:18:24] Speaker 02:
That's exactly what happened with Mongor.

[00:18:26] Speaker 02:
There was a snowstorm.

[00:18:27] Speaker 02:
It was an existing hazard.

[00:18:28] Speaker 04:
So here's a different problem I have with Mongor.

[00:18:30] Speaker 04:
In Munger, there wasn't these, I think, very significant competing need for the city to apply, forgive me, supply health and safety measures to make sure that the critical infrastructure stayed clear.

[00:18:45] Speaker 04:
Everything they put on the other side of the equation in this briefing, and they spent a great deal of time on it, so I know you know what I'm talking about.

[00:18:50] Speaker 00:
I do.

[00:18:50] Speaker 04:
And in Munger, it was police officers who needed to remove an intoxicated person who was disruptive in a bar

[00:18:55] Speaker 04:
and move him outside into extreme cold rather than extreme heat.

[00:18:59] Speaker 04:
But Mongre didn't have this competing concern.

[00:19:03] Speaker 02:
Right.

[00:19:03] Speaker 02:
I agree, Your Honor, but I would respond by saying that the order that's being challenged, the order of August 16, 2023, is a modified order.

[00:19:14] Speaker 02:
It's, on the one hand, a continuum of the orders that we got in 2022, but it's also a distinct and different kind of order.

[00:19:22] Speaker 02:
And the first element of the four points in the order, the August 16 order, is the city is expressly enabled, expressly

[00:19:32] Speaker 02:
entitled to and may conduct management of camps, abatement of debris, vector, and safety hazards.

[00:19:41] Speaker 05:
So what is the status of that order since it went to August of 2023?

[00:19:47] Speaker 02:
When the heat abated... No, no.

[00:19:51] Speaker 05:
The legal status.

[00:19:52] Speaker 05:
I'm sorry?

[00:19:53] Speaker 05:
Not what the temperature was.

[00:19:55] Speaker 05:
The question I have is what's the legal status now of that order?

[00:20:00] Speaker 02:
That order is not in place because of the weather conditions.

[00:20:03] Speaker 02:
The judge was able to look at the forecast and determine that weren't sufficient numbers.

[00:20:09] Speaker 02:
of the excessive heat days.

[00:20:10] Speaker 02:
In fact, that's one of the points we want to raise.

[00:20:13] Speaker 02:
It was a reasonable order.

[00:20:14] Speaker 02:
It balanced the interests of the city, and at the same time, protected this most vulnerable population.

[00:20:21] Speaker 02:
And as soon as that specific exigency abated, the judge said, I'm not going to extend it further.

[00:20:28] Speaker 02:
And so I think that goes.

[00:20:29] Speaker 05:
That's out, right?

[00:20:31] Speaker 02:
Pardon me?

[00:20:31] Speaker 05:
I mean, I'm really trying to understand what's on appeal in your view.

[00:20:38] Speaker 02:
What is under appeal, and as the city put in its opening brief, is the order of August 16, 2023.

[00:20:46] Speaker 02:
That's correct.

[00:20:47] Speaker 04:
Which has expired.

[00:20:48] Speaker 04:
Which has expired.

[00:20:50] Speaker 04:
But the party's position is that that's capable of reputation?

[00:20:54] Speaker 02:
Well, we feel that it's quite possible that we might have a similar circumstance this summer.

[00:21:01] Speaker 02:
We don't know.

[00:21:02] Speaker 05:
But would that order apply?

[00:21:03] Speaker 02:
Pardon me?

[00:21:04] Speaker 02:
That order would not apply under the current situation.

[00:21:08] Speaker 02:
We would have to come back into court and see about getting a new order.

[00:21:11] Speaker 05:
So why should we spend our time on an order that's expired in a situation that may or may not happen?

[00:21:19] Speaker 02:
Well, you know, I think that on the one hand, the situation, and we agreed with the city's position with regard to jurisdiction, that it's both a federal question and capable of repetition evading review.

[00:21:33] Speaker 05:
But why is that?

[00:21:35] Speaker 05:
The situation could come up again, but we don't know that that same order is going to be issued.

[00:21:40] Speaker 05:
So to me, I'm trying to figure out, OK, number one, you cite the class action rule in your complaint, but there is no class here.

[00:21:51] Speaker 05:
It's never been certified.

[00:21:53] Speaker 05:
And then we now have an order that's expired.

[00:21:56] Speaker 05:
And so what are we ruling on?

[00:22:02] Speaker 02:
Well, I think the city has taken the position that Judge Dunley's order, that particular order, was an abuse of discretion.

[00:22:12] Speaker 02:
We disagree, of course.

[00:22:13] Speaker 02:
We think it was well within the judge's discretion.

[00:22:15] Speaker 04:
But whether it was or not, it seems to me that we might be issuing an advisory opinion, because the circumstances may change.

[00:22:21] Speaker 04:
So one of the things in his order

[00:22:23] Speaker 04:
And he was just working with what was in front of him as well.

[00:22:26] Speaker 04:
The city had informed him that the city council, I believe, had authorized additional funding for more camps or improvements perhaps to the existing camp.

[00:22:34] Speaker 04:
And he said somewhere in this record, I think it's in his order, that he didn't know whether or not that new situation would be improved and would provide for shade.

[00:22:46] Speaker 04:
If it does, it seems to me this equation changes dramatically.

[00:22:50] Speaker 02:
Well, you know, I'm not going to disagree.

[00:22:52] Speaker 02:
I would be surprised if they were able to take steps to meet the expected situation that we have during particular days of the summer.

[00:23:02] Speaker 02:
However, having said that, you know, I think that if the court is looking at, well, what's before us?

[00:23:08] Speaker 02:
And is it moot?

[00:23:09] Speaker 02:
Because that order is not in effect.

[00:23:11] Speaker 02:
And we don't know for certain that a similar circumstance will compel the union to come back into court and seek similar relief.

[00:23:21] Speaker 02:
I can see that perspective.

[00:23:23] Speaker 02:
I think the issue of capable repetition is that circumstances could repeat.

[00:23:30] Speaker 02:
But I would agree that the exact situation that gave rise to the August 16th order, which as I say, Your Honor, already has everything in it to enable the city to

[00:23:41] Speaker 02:
to exercise its police powers, abate hazards, clean the encampments.

[00:23:45] Speaker 02:
The only thing it restricts is the physical demolition, dismantling of the camp, and the forced exile of the people there who were in a more protected area into a less protected area.

[00:23:55] Speaker 05:
We say it's moot.

[00:23:57] Speaker 05:
The order says the plaintiffs can come back to reinstate.

[00:24:02] Speaker 05:
if you can meet all of the factors.

[00:24:04] Speaker 02:
That's correct.

[00:24:06] Speaker 05:
And assuming, I don't know if it's even legitimate to rely on findings from a couple years ago, if it's now 2024 and you came back this coming summer.

[00:24:18] Speaker 02:
Well, the judge did say- We didn't really get to the question yet.

[00:24:22] Speaker 05:
I'm sorry.

[00:24:23] Speaker 05:
So is it legitimate to rely on previous findings?

[00:24:28] Speaker 05:
And second, if I take your position, you're saying,

[00:24:33] Speaker 05:
We'll just take our chances and we'll come back and we'll refile if circumstances really mandated or suggested.

[00:24:43] Speaker 02:
Well, to answer your first question, Judge, I think it is, I think Judge Nunley correctly did in part make a distinct order, the one that's actually being challenged, the only one that's being challenged.

[00:24:53] Speaker 00:
Right.

[00:24:53] Speaker 02:
But at the same time, he did carry over and expressly incorporate into this challenged order the factual findings and the legal reasoning of the previous orders in 2022 and the first order in 2023.

[00:25:07] Speaker 02:
So that's the answer to that one.

[00:25:09] Speaker 02:
as far as taking our chances.

[00:25:11] Speaker 02:
I mean, the way we're looking at it is on the one hand the judge said, well, if you need to have further relief come back.

[00:25:17] Speaker 02:
He said that after the first initial orders in both years, and we did come back after the city was unwilling to make just an agreement with us to extend it, given the fact that the hot days were still there.

[00:25:29] Speaker 02:
But what we're looking at is we have to protect our members.

[00:25:34] Speaker 02:
We have 2,800 members in the union.

[00:25:37] Speaker 02:
in Sacramento.

[00:25:39] Speaker 02:
That's a big number of the homeless.

[00:25:41] Speaker 05:
Can I ask one last question on standing?

[00:25:44] Speaker 05:
Are you here as an organization that has these members or are we really here under a class that has yet to be certified?

[00:25:54] Speaker 02:
I believe, Your Honor, that we're here.

[00:25:56] Speaker 02:
The union has associational standing.

[00:25:58] Speaker 02:
It's an organizational plaintiff in the case.

[00:26:00] Speaker 02:
We have thousands of members in the Sacramento area.

[00:26:03] Speaker 02:
We are able to file suit.

[00:26:05] Speaker 02:
On behalf of our members, we believe we've met all the qualifications for associational standing with regard to bringing this.

[00:26:11] Speaker 02:
It's not a class action lawsuit.

[00:26:13] Speaker 02:
We haven't looked at the question of certification of a class.

[00:26:17] Speaker 02:
We're going on the basis that we represent those 2,700 homeless, which are 2 thirds or half or 2 thirds almost now.

[00:26:25] Speaker 04:
I think we got your answer.

[00:26:26] Speaker 04:
Is there one more question?

[00:26:27] Speaker 01:
Well, I can ask the second counsel, give her a chance to get up there.

[00:26:33] Speaker 04:
All right, I just have, for whoever wants to answer it, I have one question that I'd like to just get out.

[00:26:37] Speaker 04:
And that is, if next summer, during a period of extreme heat, the city were to move, and if you want to do this as a hypothetical, that's fine.

[00:26:44] Speaker 04:
I'm trying to test your theory of the state created danger and its applicability.

[00:26:49] Speaker 04:
If the city moved homeless people to a place that had shade, would you have a claim?

[00:26:56] Speaker 02:
If the city was not making it worse, in other words, that they were actually facilitating people to be in the same equally safe or at least relatively safer area than the one that they find the men, well, then there's no state created danger.

[00:27:10] Speaker 04:
All right.

[00:27:11] Speaker 04:
Thank you.

[00:27:12] Speaker 02:
Thank you, Your Honors.

[00:27:34] Speaker 00:
Good morning, Your Honors.

[00:27:35] Speaker 00:
May it please the court?

[00:27:36] Speaker 00:
Kath Rogers here on behalf of Amici, the ACLU at all.

[00:27:39] Speaker 01:
Counsel, can I ask you a quick question?

[00:27:43] Speaker 01:
We focused on heat.

[00:27:46] Speaker 01:
Your opposing council has suggested this is a year-round program.

[00:27:50] Speaker 01:
I've sat in Sacramento by designation both in the summer and in the winter.

[00:27:56] Speaker 01:
The winter time can be brutal in Sacramento.

[00:27:59] Speaker 01:
People die from cold.

[00:28:01] Speaker 01:
Does this problem arise in the winter?

[00:28:05] Speaker 01:
Have there been any injunctions involving winter moves?

[00:28:10] Speaker 00:
Yes, Your Honor, the state created danger doctrine would apply.

[00:28:13] Speaker 01:
I'm not asking whether it would apply.

[00:28:15] Speaker 01:
I'm asking has it applied?

[00:28:17] Speaker 01:
Has anybody ever sought an injunction that they've tried to move people in the wintertime?

[00:28:23] Speaker 00:
Yes, Your Honor.

[00:28:25] Speaker 00:
In the lower court cases in Jeremiah and Langley, which were in the ACLU's amicus brief.

[00:28:30] Speaker 01:
I thought I saw something about winter.

[00:28:32] Speaker 01:
That's why I asked.

[00:28:33] Speaker 00:
Yes.

[00:28:34] Speaker 00:
Yes, Your Honor.

[00:28:35] Speaker 00:
It would apply to that.

[00:28:36] Speaker 01:
You know, you get ice and snow and even snow sometimes in Sacramento, not often, but occasionally.

[00:28:41] Speaker 04:
Well, how does that work, counsel?

[00:28:43] Speaker 04:
Because I think it is uncontested.

[00:28:44] Speaker 04:
But I haven't heard your team's response to opposing counsel's repeated reminder that there isn't a constitutional right to shelter.

[00:28:53] Speaker 00:
Yes, Your Honor.

[00:28:57] Speaker 00:
The constitutional right to shelter is certainly not at issue here.

[00:28:59] Speaker 00:
What's at issue are the elements of the state created danger doctrine, which are affirmative conduct, particularized harm, and deliberate indifference, which I'm happy to get into.

[00:29:07] Speaker 00:
There was a briefing in the lower court about whether the Eighth Amendment was applicable here, and Judge Nunley in the lower court found that it was not.

[00:29:17] Speaker 04:
I think the slope is a little slipperier, because it seems to me that you're

[00:29:21] Speaker 04:
to play devil's advocate that your clients may be contending that they have a constitutional right to shade.

[00:29:28] Speaker 04:
That's shelter in one way of sort of imagining it.

[00:29:32] Speaker 04:
So I wanted to give you a chance to respond.

[00:29:35] Speaker 00:
That is not our contention, Your Honor.

[00:29:38] Speaker 00:
The state created date doctrine does not create an affirmative obligation on the government to provide shade or to provide shelter or any kind of affirmative protection.

[00:29:50] Speaker 00:
You're saying that this, OK.

[00:29:51] Speaker 00:
This is a prohibition on affirmative harm by the government.

[00:29:55] Speaker 00:
But you see the problem.

[00:29:56] Speaker 04:
I think you're contending.

[00:29:57] Speaker 04:
You're not challenging the protocol.

[00:29:59] Speaker 04:
Correct.

[00:29:59] Speaker 04:
So you're agreeing that your clients can be moved, yes?

[00:30:04] Speaker 04:
But they can't be moved to a place where there isn't shade.

[00:30:08] Speaker 00:
Yes, Your Honor.

[00:30:08] Speaker 04:
So that would increase the danger under your theory.

[00:30:11] Speaker 04:
His problem is he does have a competing, the city does have a competing need to keep the other services functioning, as you know, I'm just telling you what you already know, but because of this critical infrastructure.

[00:30:21] Speaker 04:
So these seem to be tough to reconcile.

[00:30:26] Speaker 00:
Well, Your Honor, in terms of the competing interests at play, those would not play out in the elements of state created danger itself, but in the PI elements.

[00:30:34] Speaker 00:
And winter factors.

[00:30:35] Speaker 00:
Yes, winter factors.

[00:30:36] Speaker 00:
And those were analyzed at length by the lower court.

[00:30:40] Speaker 00:
Let me ask you this.

[00:30:42] Speaker 04:
I think what you're really saying, just to sort of maybe move this along to the place where it seems to me the rubber hits the road, is that you're not challenging the protocol.

[00:30:51] Speaker 04:
You agree that your clients can be moved.

[00:30:54] Speaker 04:
Your contention is that the city should have to hit pause on its protocol when the heat gets to be excessive, is that right?

[00:31:03] Speaker 04:
So what happens if it's not a two week period, but what if it becomes a three month period?

[00:31:12] Speaker 00:
Well, Your Honor, the state created danger case law is very clear that governments, when enforcing their laws, cannot do so in a way that creates the risk of serious illness or death.

[00:31:23] Speaker 00:
First of all, the city's own protocol does call for consideration of extreme heat, and our argument is why would it call for consideration if it didn't recognize the extreme danger there?

[00:31:36] Speaker 00:
And so it's incumbent on the city to protect the health and safety of the people in the enforcement of its laws.

[00:31:44] Speaker 04:
Well, am I right that if it lasted three months, and this is all hypothetical, but if it were the type of injunction that Judge Nunley entered in this case, the city would be allowed to go in and clean the trash and maintain the camps.

[00:31:56] Speaker 04:
Is that right?

[00:31:56] Speaker 04:
They just couldn't move the camps.

[00:31:59] Speaker 00:
Yes.

[00:31:59] Speaker 00:
Is there anything else they couldn't do?

[00:32:02] Speaker 00:
Well, yes.

[00:32:04] Speaker 00:
We would definitely direct the court to the order itself and the specific exemptions listed.

[00:32:11] Speaker 04:
But your exemptions are another problem, because it seems like Judge Nunley recognized there was this compelling need to keep the infrastructure cleared, the critical infrastructure cleared.

[00:32:21] Speaker 04:
And I understand there was an opportunity to work out what that was going to include, and it only wound up including schools.

[00:32:29] Speaker 00:
We would direct your honors both to the lower court briefing where this is what the parties prioritize.

[00:32:37] Speaker 00:
This is the critical infrastructure that was prioritized by the city.

[00:32:40] Speaker 00:
And there was a factual dispute in terms of the critical infrastructure issue.

[00:32:48] Speaker 00:
Both sides were heard.

[00:32:49] Speaker 00:
The court considered all of these arguments.

[00:32:52] Speaker 00:
Essentially, the lower court found that the city's definition of critical infrastructure would swallow the rule and make the temporary injunction... But it surely has to be broader than schools.

[00:33:03] Speaker 04:
It surely has to be broader than schools.

[00:33:05] Speaker 00:
Well, and the actual exemptions are much broader, allowing for trash and debris cleanup and safety issues, which is a very broad exemption that arguably could be applied in many of the critical infrastructure situations that the city is citing.

[00:33:18] Speaker 00:
And many of the city's cited reasons for believing that the orders overbroad are actually already addressed by the terms of the exemptions themselves.

[00:33:28] Speaker 00:
They cite to vector, they cite to trash, debris, feces, things like that, all of which are

[00:33:33] Speaker 00:
explicitly exempted in the order.

[00:33:36] Speaker 00:
So these are the exemptions that were prioritized by the city and the order is explicit on that saying that at this time the parties do not agree or prioritize further exemptions.

[00:33:51] Speaker 00:
So the city did get most of what it was asking for in terms of the exemptions and the explicit terms of the order are broad when you consider the safety issues exemption itself.

[00:34:05] Speaker 00:
Unless, Your Honors, have any other questions, I'll turn back to the elements of state-created danger.

[00:34:10] Speaker 04:
My only other question, whichever order you want to do it in, is if you could follow up, or maybe you're not the right person to follow up on the mootness question that Judge McKeown was asking.

[00:34:18] Speaker 04:
And Manil.

[00:34:19] Speaker 00:
Sure, I can follow up on both of those issues.

[00:34:23] Speaker 00:
Yes, Your Honors, Amiki did not explicitly brief the mootness issue.

[00:34:28] Speaker 00:
We would defer to Your Honors on that and recognize it's the city's burden to establish that the narrow exemption for capable of repetition yeti baiting review applies to this expired order.

[00:34:40] Speaker 04:
Broadly, it's capable of review.

[00:34:41] Speaker 04:
But what do we do about the fact that I don't need to know if it's going to be 97 degrees or 101 degrees?

[00:34:45] Speaker 04:
It's not that kind of specificity I'm looking for.

[00:34:48] Speaker 04:
What I'm looking for and concerned about

[00:34:49] Speaker 04:
But the city is apparently, council has authorized improvements to wherever it is they want to move people.

[00:34:55] Speaker 04:
And without knowing whether that area is going to continue to be hazardous, I'm not sure how we can assess whether there is a state created danger.

[00:35:08] Speaker 04:
Whether we can really decide whether or not there would be likelihood of success on the merits of the city would be increasing danger.

[00:35:13] Speaker 00:
Yes, Your Honor, it's a fact-specific challenge.

[00:35:15] Speaker 00:
As this case has shown, it's a voluminous record that the court considered, and each subsequent injunction would have to meet the same elements on the state created danger standards as well as the winter elements.

[00:35:26] Speaker 04:
I think that we don't have these rolling over year to year with injunctive relief and no trial, no advancing.

[00:35:32] Speaker 04:
And no new findings.

[00:35:34] Speaker 04:
Very peculiar.

[00:35:35] Speaker 04:
Can you shed any light on why we have a couple of annual injunctions, but no other progress in the interim?

[00:35:41] Speaker 00:
Well, Your Honors, there is a motion pending, I believe, before the lower court.

[00:35:47] Speaker 00:
What's the motion?

[00:35:50] Speaker 00:
Motion.

[00:35:51] Speaker 00:
What was that?

[00:35:51] Speaker 00:
What's pending?

[00:35:52] Speaker 00:
Yeah, the motion to dismiss.

[00:35:53] Speaker 02:
No, no, no.

[00:35:54] Speaker 02:
Actually, the city filed a motion for a judgment on the pleadings on our state claim around Article 1, Section 1 of the California Constitution.

[00:36:04] Speaker 00:
Okay, speaking of following rules, go ahead.

[00:36:11] Speaker 00:
And I'll briefly address the Monal issue and then I'll close out.

[00:36:14] Speaker 00:
I see my time is ending.

[00:36:16] Speaker 00:
Yes, the Monal issue was never raised below.

[00:36:18] Speaker 00:
The city only raised it after this order had already expired and after filing the notice of this appeal.

[00:36:25] Speaker 00:
There is a voluminous record showing a pattern or practice sufficient for Monal liability.

[00:36:30] Speaker 00:
This is clearly not a case of one tortfeasor.

[00:36:34] Speaker 00:
This is a systematic pattern or practice that's been alleged by

[00:36:37] Speaker 00:
um, at least 11 eyewitnesses to very similar accounts, uh, which is... Not pausing the, the, the...

[00:36:44] Speaker 04:
implementation of the protocol during excessive heat.

[00:36:46] Speaker 04:
Is that your... Exactly.

[00:36:47] Speaker 00:
Okay.

[00:36:47] Speaker 00:
Clearing encampments during periods of extreme heat.

[00:36:51] Speaker 00:
And one thing I'd like to add before I close is there are three ways in which this practice leaves people in a worse position.

[00:37:00] Speaker 00:
As your honors have noted, the removal of shade, whether that's through property destruction or by removing natural shading like trees to separating people from life-saving supplies, including water,

[00:37:12] Speaker 00:
and other types of resources that they have in these existing encampments.

[00:37:17] Speaker 00:
And three, the physical exertion, the very strenuous physical exertion and declarants talk about people collapsing during this exertion.

[00:37:25] Speaker 00:
In closing, I'd just like to go back to the principle of do no harm, which is the essence of the state created danger doctrine.

[00:37:31] Speaker 00:
This case stands for the ability of the court to intervene to protect the most vulnerable members of our societies from active government harm, which is why over 31 organizations have signed on as amici here.

[00:37:44] Speaker 00:
The city has extreme arguments asking the court to roll back established civil rights and reverse due process, and we ask that you affirm in this case.

[00:37:53] Speaker 00:
Council, I have one last question.

[00:37:55] Speaker 04:
I think the Ninth Circuit is the only circuit that has

[00:37:58] Speaker 04:
announce a state created danger doctrine that doesn't include a showing of shocking the conscience.

[00:38:05] Speaker 04:
I'm pretty sure about that.

[00:38:06] Speaker 04:
I just checked.

[00:38:08] Speaker 04:
If we were to decide that we needed to reach that threshold, is this a case that qualifies?

[00:38:15] Speaker 00:
Your Honor, I believe that the, you know, that that was addressed in the Merguia case that this circuit explicitly rejected the shocks, the conscience doctrine.

[00:38:25] Speaker 00:
And where are the standard?

[00:38:26] Speaker 00:
It's a different question that I'm asking.

[00:38:29] Speaker 00:
Well, Your Honor, I believe that here we clearly have deliberate indifference supported by the record through what would be consistent.

[00:38:37] Speaker 04:
That's a different standard too.

[00:38:40] Speaker 04:
I'm asking whether this case would qualify as one that shocks the conscience.

[00:38:43] Speaker 00:
Certainly, Your Honor, I believe this does shock the conscience, because similarly to what other Ninth Circuit state created danger cases, including Munger, a lay person can see physical stress from heat exhaustion, people collapsing.

[00:39:00] Speaker 00:
There's declarants who talk about people who've died during extreme heat in encampments following these types of encampment removal.

[00:39:06] Speaker 00:
So certainly, I think it shocks the conscience, Your Honor.

[00:39:08] Speaker 00:
Thank you for your patience with my question.

[00:39:10] Speaker 00:
Thank you, Your Honor.

[00:39:18] Speaker 03:
How do you address, excuse me, anything particular the court wants me to address?

[00:39:22] Speaker 05:
Well, the main thing I would like to address is why we are here.

[00:39:27] Speaker 05:
Because this order has expired.

[00:39:28] Speaker 05:
Correct.

[00:39:29] Speaker 05:
OK.

[00:39:30] Speaker 05:
Now, they can come back and ask for it to be reinstated.

[00:39:35] Speaker 05:
But if they did that, it may or may not be on the same terms, because we've had a passage of time.

[00:39:39] Speaker 05:
We've had the city's policies.

[00:39:42] Speaker 05:
So why should we make a ruling on something that's over, over and done with?

[00:39:47] Speaker 03:
Well, the principle legal issue of the state created that danger doctrine applying to clearing and homeless encampments.

[00:39:56] Speaker 03:
It is not over.

[00:39:57] Speaker 03:
It's still live in the case.

[00:39:59] Speaker 05:
Well, it's really not live, but should we address it on a preliminary injunction that has expired?

[00:40:05] Speaker 05:
Now it may be alive in the case, but it would be like an advisory opinion.

[00:40:11] Speaker 05:
Hello, the injunction is over, but we also would like to talk about state created danger.

[00:40:15] Speaker 05:
I mean, what would the opinion say or the order?

[00:40:18] Speaker 03:
Well, if I were writing the opinion.

[00:40:20] Speaker 03:
OK.

[00:40:20] Speaker 05:
I would love to hear that.

[00:40:23] Speaker 03:
I would say the state created danger doctrine cannot apply to clearing homeless encampments when the purpose of that is to remedy the real health and safety impacts to the broader community.

[00:40:40] Speaker 01:
But you have council, you have to apply it to specific facts and the facts will change and have changed.

[00:40:51] Speaker 01:
And so the problem is each side kind of wants this ruling because you want something that you can point to that will apply in the future.

[00:41:02] Speaker 01:
And the other side wants something that will apply in the future.

[00:41:06] Speaker 01:
That's the reason I asked about the winter situation, where shade is not really the issue.

[00:41:13] Speaker 01:
Cold is the issue.

[00:41:14] Speaker 01:
Dampness is the issue.

[00:41:16] Speaker 01:
And things change.

[00:41:17] Speaker 01:
And I'm also puzzled as to why, in this case, there hasn't been some trial on the merits somewhere.

[00:41:27] Speaker 01:
I mean, after all these years, it just keeps going through these injunctions.

[00:41:32] Speaker 01:
never gets to a final resolution, and people just kind of say, oh, well, kind of walk away.

[00:41:37] Speaker 01:
Does the case just stay alive?

[00:41:42] Speaker 03:
Well, I don't represent the city in the district court.

[00:41:46] Speaker 03:
I wasn't involved in those proceedings.

[00:41:47] Speaker 01:
Well, no, but you know what the case status is.

[00:41:49] Speaker 03:
The case status is.

[00:41:51] Speaker 03:
Same case forever, right?

[00:41:54] Speaker 03:
I don't disagree with that.

[00:41:55] Speaker 03:
I mean, it's just incredible.

[00:41:57] Speaker 03:
But if I could talk about the mootness issue,

[00:42:01] Speaker 04:
Can I just close this off?

[00:42:03] Speaker 04:
So you would want us, if you were writing, Judge McEwen issued this invitation, and I'm curious as well.

[00:42:09] Speaker 04:
So you would want us to rule that no matter what the scenario, the factual scenario that the state created danger doctrine does not apply to clearing camps.

[00:42:20] Speaker 03:
With some nuances, yes.

[00:42:22] Speaker 04:
Well, this is your time to tell me what those nuances are.

[00:42:24] Speaker 03:
Well, what's not going to change is the concept of clearing people from an encampment.

[00:42:29] Speaker 04:
I appreciate that.

[00:42:31] Speaker 04:
So that is the blanket ruling you're looking for, as a matter of law, you think.

[00:42:34] Speaker 04:
So hence, we wouldn't need to wait to hear more about what the circumstances are going to be next summer.

[00:42:40] Speaker 01:
Correct.

[00:42:41] Speaker 04:
All right.

[00:42:41] Speaker 01:
And when you were posing- Well, it's already clear that cities have the right to clear encampments under certain circumstances.

[00:42:50] Speaker 05:
In fact, this injunction allows them to do so.

[00:42:51] Speaker 05:
And you have a protocol that's not being challenged, as I understand it.

[00:42:55] Speaker 05:
They're not challenging the clearing.

[00:42:57] Speaker 05:
They're not challenging the fact that you can, under the protocols, do certain things.

[00:43:04] Speaker 03:
I think I got a couple questions.

[00:43:06] Speaker 03:
Yeah, well, I don't even know.

[00:43:07] Speaker 05:
But even with that, you sort of say, well, what's the beef sort of thing?

[00:43:13] Speaker 03:
Well, the beef is the theory, I think.

[00:43:18] Speaker 03:
Again, it's a difficult issue.

[00:43:21] Speaker 03:
But in our view, it's a political and legislative issue.

[00:43:24] Speaker 03:
It's not a constitutional issue.

[00:43:27] Speaker 03:
And even in the Grants Pass case, not applicable with respect to the law, but there's some important things that were said in that.

[00:43:36] Speaker 03:
And one of the most significant, I think, is when the court said, jurisdictions remain free to address the complex policy issues regarding homelessness in a way that those jurisdictions deem fit.

[00:43:50] Speaker 03:
That's what the city of Sacramento is trying to do.

[00:43:53] Speaker 03:
They can't be put on pause.

[00:43:55] Speaker 03:
Government obligations to all its citizens shouldn't constitutionally be put on pause.

[00:44:01] Speaker 05:
Well, what the big, I think the beef is that you can't move them out of places where they had protection to places where they have no protection.

[00:44:11] Speaker 03:
That's correct.

[00:44:12] Speaker 05:
So I think about, and also, I would say, you know, if I could be a queen for a day,

[00:44:17] Speaker 05:
I'd say, well, go duke that out with the mediator or somebody else in the city and figure out how to meet protocols and not create a danger, whether it's a state-created danger.

[00:44:29] Speaker 05:
If that's the narrow issue that we're looking at here, and it's not on the table because the order expired, it seems to me the parties ought to go back and try to resolve what looks like a narrow issue.

[00:44:44] Speaker 03:
So one point I want to make.

[00:44:47] Speaker 03:
sort of implicit, I think, in your comment is that don't move them out from a place where they're protected unless you move them to someplace where they are protected.

[00:44:59] Speaker 05:
Well, it's not implicit.

[00:45:00] Speaker 05:
It may be that that's not practical and that the city has other concerns and that you then figure out how to accommodate this issue between the two of them.

[00:45:08] Speaker 03:
So that's backdooring a constitutional requirement to provide shelter.

[00:45:13] Speaker 03:
If it violates the Constitution to remove them,

[00:45:16] Speaker 03:
from place A unless you put them in an equivalent.

[00:45:20] Speaker 05:
Well, I haven't said it violates the Constitution.

[00:45:22] Speaker 03:
I'm saying that.

[00:45:23] Speaker 04:
I understand that.

[00:45:25] Speaker 04:
And what I want to know since you're now seriously over time is whether or not there's been any effort to try to mediate this case.

[00:45:30] Speaker 03:
I don't know, formal mediations.

[00:45:32] Speaker 03:
I know that during that year pause, I think there were discussions between the sides.

[00:45:36] Speaker 04:
Wouldn't this be a really good time to have that conversation before 90 degrees in Sacramento?

[00:45:40] Speaker 04:
Before summer.

[00:45:42] Speaker 03:
I don't, mediation's always good.

[00:45:44] Speaker 04:
Okay.

[00:45:44] Speaker 04:
All right.

[00:45:45] Speaker 04:
Thank you.

[00:45:45] Speaker 04:
That's what we like to hear.

[00:45:46] Speaker 04:
Thank you.

[00:45:47] Speaker 04:
Thank you all.

[00:45:48] Speaker 04:
We appreciate your arguments and advocacy very much.

[00:45:51] Speaker 04:
We're going to stand in recess for a minute.

[00:45:52] Speaker 04:
There's quite a number of law students here.

[00:45:54] Speaker 04:
You're very welcome.

[00:45:55] Speaker 04:
And while we're conferencing, I think we have some law clerks who are going to talk to you.

[00:45:59] Speaker 04:
And then I'm not sure if all three of us will be able to return to the courtroom to talk to the law students, but at least there'll be at least two judges in the courtroom if you're still here.

[00:46:08] Speaker 05:
Some of us have planes to catch, so we're glad you're here, but you will hear from some judges.

[00:46:12] Speaker ?:
Thank you.