[00:00:00] Speaker 00:
Good morning, everybody, and welcome to Seattle.

[00:00:04] Speaker 00:
I am Judge Desai.

[00:00:05] Speaker 00:
This is Judge D'Alba to my right, and the two of us are very happy to have Judge Chen sitting with us by designation from the Northern District of California this morning.

[00:00:14] Speaker 00:
We have one case that is scheduled for oral argument.

[00:00:19] Speaker 00:
That is Sabrina Baram versus City of Sedona.

[00:00:22] Speaker 00:
There are 15 minutes set aside for each side, so you'll keep your own time, and we're ready to begin.

[00:00:40] Speaker 02:
Good morning.

[00:00:42] Speaker 02:
May it please the court.

[00:00:43] Speaker 02:
I'm Pamela bridge and I am representing appellant Sabrina Barham.

[00:00:47] Speaker 02:
I would like to request three minutes for rebuttal.

[00:00:49] Speaker 00:
Okay, you'll just keep track of your own time.

[00:00:51] Speaker 00:
Thank you.

[00:00:53] Speaker 02:
Miss Barham lives with severe chronic obsessive compulsive anxiety disorder and her disorder is profoundly difficult.

[00:01:02] Speaker 02:
One of the manifestations of her disability is that up to three times a week, she is forced to sleep in her car because of her disability.

[00:01:11] Speaker 03:
And her disability is not really in dispute, as I understand the record.

[00:01:13] Speaker 02:
That is correct.

[00:01:15] Speaker 02:
That is correct.

[00:01:16] Speaker 02:
After the Supreme Court made the grants pass ruling, Ms.

[00:01:21] Speaker 02:
Barham has conceded that her Eighth Amendment claim is no longer viable.

[00:01:24] Speaker 02:
So we are just here today to ask that you find that she has ADA standing and remand to the district court.

[00:01:30] Speaker 02:
The district court used the wrong framework for ADA standing when, in its footnote, it said it was dismissing her ADA claim for the same reason it was dismissing her Eighth Amendment claim, in that she did not prove a genuine threat of imminent prosecution.

[00:01:49] Speaker 02:
However, a genuine threat of imminent prosecution is not required for establishing ADA standing.

[00:01:57] Speaker 02:
Ms.

[00:01:57] Speaker 02:
Barham has established

[00:01:59] Speaker 02:
and alleged injuries that establish her ADA standing.

[00:02:03] Speaker 03:
But anytime, whether it's an ADA case or a constitutional case, and you're seeking injunctive relief to stop enforcement of some law, you still have to show a credible threat of prosecution, don't you, whether it's an ADA or any other statute?

[00:02:16] Speaker 02:
Ms.

[00:02:17] Speaker 02:
Barham is requesting injunctive relief so that she is no longer harmed by the enforcements and the denials of a request of her reasonable accommodation.

[00:02:28] Speaker 02:
This court has said that the standard for ADA standing is the harm traceable to a written policy.

[00:02:37] Speaker 02:
Here, the written policy is the code, which makes it illegal to sleep in her car on public and private property, something that Ms.

[00:02:47] Speaker 02:
Barham must do up to three times a week, and it authorizes enforcement of that.

[00:02:51] Speaker 00:
I'm going to ask you about that because the city argues that subsection one of the code exempts

[00:02:57] Speaker 00:
Ms.

[00:02:58] Speaker 00:
Barron from its enforcement.

[00:03:00] Speaker 00:
Do you agree with that?

[00:03:01] Speaker 02:
No, Your Honor.

[00:03:02] Speaker 02:
On the plain language of the code, it's that it is illegal to sleep on private property even with the property owner's permission.

[00:03:13] Speaker 02:
If you look at B, it says that you cannot sleep, camp or lodge in a vehicle on private property.

[00:03:21] Speaker 02:
And then D says that a property owner may not allow anyone to violate this code on their property, on their property.

[00:03:29] Speaker 02:
So that is why when we get to I, the exception that you're looking at, that is merely about parking.

[00:03:36] Speaker 02:
If that otherwise D would not make sense.

[00:03:39] Speaker 00:
Would this make any difference if the city were to say that they are not going to, they're going to honor the landlord's agreement with Ms.

[00:03:47] Speaker 00:
Barham to allow her to sleep in

[00:03:50] Speaker 00:
the parking lot of her apartment.

[00:03:52] Speaker 00:
Would that make any difference if they actually were to expressly state that they don't intend to enforce section B or section D?

[00:04:03] Speaker 02:
The original request from Ms.

[00:04:04] Speaker 02:
Barham was to ask for a letter from the city to do that, to agree to not enforce it against her so that when she gets police officers in the middle of the night knock on the door that she could hand it to them and they said no.

[00:04:16] Speaker 00:
But they haven't in fact

[00:04:17] Speaker 00:
taken any steps to enforce under those provisions or to challenge the agreement that the landlord entered into with her, right?

[00:04:25] Speaker 02:
Because they said no, the landlord is also at risk of enforcement on the code against her and has told her that if they or her are cited for it, that she will be evicted.

[00:04:41] Speaker 02:
And so actually, currently,

[00:04:44] Speaker 02:
The landlord, again, is once again afraid of enforcement as not allowing her to sleep in her own apartment complex parking lot.

[00:04:54] Speaker 02:
So we're once again back to 2021.

[00:04:55] Speaker 03:
Wait, is that in the record?

[00:04:56] Speaker 03:
Is that alleged that the landlord currently is now preventing her?

[00:05:00] Speaker 02:
No, your honor it is not this is the current status since April of 2025 consider that if it's not in the record in fact the contrary factuals sort of Circumstances are before us in the record correct, and I think we should look at it when we're looking at the The need for the injunctive relief, but even in the record it says that if she or the landlord are cited under the code and

[00:05:27] Speaker 02:
that she can be evicted.

[00:05:28] Speaker 02:
And the code authorizes Sedona to do this any single night.

[00:05:32] Speaker 02:
Just like in 14, there was a harm, there's a written policy, it happened to them once, and no matter how many times it happened again, this court has said that if there's a written policy that says it is authorized to occur, she has injunctive relief.

[00:05:49] Speaker 03:
The record currently shows no enforcement by the landlord since the stipulation and even the expiration of the stipulation.

[00:05:56] Speaker 03:
You say now that

[00:05:57] Speaker 03:
There's been, but we don't see anything.

[00:05:59] Speaker 03:
Is that correct that there's nothing?

[00:06:01] Speaker 02:
The agreement, again, with the landlord is that if she or he is cited for it, then she will be a victim.

[00:06:06] Speaker 03:
Right, but there's no record of the landlord being cited or threatened with citation.

[00:06:09] Speaker 01:
There is none.

[00:06:10] Speaker 01:
Counsel, I have a question for you.

[00:06:11] Speaker 01:
Walk me through the emotional and psychological harm that your client experiences.

[00:06:16] Speaker 02:
She alleges this in her second amended complaint, which did establish her ADA standing and the district court

[00:06:24] Speaker 02:
Air it is a matter of law and not granting that but she states that she has overwhelming psychological and Depression and emotional distress because Sedona Refused to agree to her emotion to her reasonable accommodation because they refused she has she talks about losing income and

[00:06:49] Speaker 02:
other career opportunities.

[00:06:52] Speaker 02:
She alleges there that this emotional distress is up and beyond indifferent than the normal distress that she has to deal with on an ongoing basis because of her disability.

[00:07:03] Speaker 01:
Now, is that distress triggered by just the knowledge that she may have a knock on her car window, or is it by the actual knocking on the car window?

[00:07:12] Speaker 02:
It is because she has been enforced against her twice now, where she's been woken up in the middle of the night, told that she has to move her car or face enforcement.

[00:07:20] Speaker 02:
And the fact that Sedona wouldn't agree to it means that every night she has to sleep in her car.

[00:07:25] Speaker 02:
She is at risk of this.

[00:07:27] Speaker 01:
And so if the city were to agree and say, we're going to give you an exemption, you and the property owner, you're not going to get in trouble.

[00:07:35] Speaker 01:
But, you know, they still wake her up because maybe not every single officer understands this is the car with the person who has the exemption.

[00:07:43] Speaker 01:
Is there damages there for her?

[00:07:45] Speaker 02:
If she had a letter that she could show to them that she that's what she originally quest to having a letter to show them.

[00:07:52] Speaker 02:
It's not just that she's being woken up.

[00:07:55] Speaker 02:
It's just that she's also being told you're going to face arrest or you have to move your car.

[00:08:00] Speaker 02:
Also, the Sedona could have decided to make designated places for her to sleep in violation of Vincent B. Thomas.

[00:08:07] Speaker 02:
They refused to engage in any type of interactive process, which is required even under Title II.

[00:08:13] Speaker 02:
So we could have found a compromise of what this would look like for her to minimize the damages.

[00:08:20] Speaker 02:
because they've said no, she's had four years of monetary now and psychological injuries.

[00:08:27] Speaker 02:
She does allege in that second amendment complaint, too, that she's had loss of income because they denied her reasonable accommodation.

[00:08:35] Speaker 02:
And that fact alone gives her ADA standing.

[00:08:39] Speaker 03:
Standing for retrospective relief, like damages, is different from standing to seek injunctive relief.

[00:08:45] Speaker 02:
Well, when we're looking under the ADA, we have to make sure that she's had injury, and that is one of the injuries that she has established.

[00:08:52] Speaker 03:
That gets her through the first door, but the second door of injunctive relief, if she's just seeking damages, yes.

[00:08:57] Speaker 03:
But injunctive relief, you still have to look at the threat.

[00:09:00] Speaker 03:
And you've argued that the fact that it's in writing, but that's not a per se test.

[00:09:05] Speaker 03:
That doesn't necessarily prove there's a credible threat, because you can always have a statute that's not enforced.

[00:09:11] Speaker 02:
But we know that this has been enforced twice against her now.

[00:09:14] Speaker 02:
And the fact that they refuse to grant her reasonable accommodation means that this still can happen to her every single night up to three times a week.

[00:09:23] Speaker 02:
So if they had agreed to it, she wouldn't be having this threat.

[00:09:28] Speaker 02:
But the action of the denial of the reasonable accommodation also adds to the threat that this can happen to her any time during the week.

[00:09:38] Speaker 03:
Is there a definition of what credible threat

[00:09:41] Speaker 03:
I mean, what's the quantum?

[00:09:42] Speaker 03:
Does it have to be some likelihood?

[00:09:44] Speaker 03:
Does it have to be a certainty?

[00:09:46] Speaker 03:
Does it have to be more likely than not?

[00:09:47] Speaker 03:
What does credible threat mean?

[00:09:49] Speaker 02:
In 14, it says that there needs to be a sufficient likelihood that the harm would occur again.

[00:09:54] Speaker 02:
Again, in that case, it just happened to them once.

[00:09:57] Speaker 02:
And because there was a written policy that said it could happen, they went back to the movie theater several times.

[00:10:04] Speaker 02:
It never happened again.

[00:10:05] Speaker 02:
But the court said,

[00:10:06] Speaker 02:
The fact there is a written policy that says this could happen gives them sufficient likelihood of repeat harm.

[00:10:16] Speaker 03:
And does the injunction you're seeking cover both public space as well as the private space?

[00:10:21] Speaker 03:
What is the scope of the injunction you're seeking at this point?

[00:10:23] Speaker 02:
The last request that she asked was to be on just at her, after they said no the first time, she asked that it just be at her own apartment complex parking lot.

[00:10:35] Speaker 02:
And they said no we they we explained to Sedona that the landlord needs this accommodation so that they feel that they won't be cited also and Sedona completely Refused was that this to answer judge Chen's question.

[00:10:50] Speaker 00:
Yes Is that the scope of the injunction that you're seeking is to just?

[00:10:54] Speaker 00:
Allow the accommodation for the private parking lot of the apartment complex in which she lives that is correct your honor because I think the complaint may have been

[00:11:02] Speaker 03:
more broadly sculpted, but I just want to make sure that's.

[00:11:05] Speaker 02:
That is correct.

[00:11:06] Speaker 02:
It is the last request that she has made from Sedona that they denied, but it is just to be able to, they agreed not to enforce at her own apartment complex.

[00:11:20] Speaker 03:
Well, Sedona suggests there's a traceability causation issue here that it's really the landlord's decision

[00:11:27] Speaker 03:
to enforce or not enforce.

[00:11:29] Speaker 03:
In other words, if the city said, we don't care, landlord, but the landlord said, I don't want you in the private land, you can't blame the city for that.

[00:11:35] Speaker 03:
It's not traceable to the city.

[00:11:36] Speaker 02:
The landlord can always have trespass or their own landlord tenant rules against her.

[00:11:40] Speaker 02:
I mean, that she must agree to.

[00:11:42] Speaker 02:
However, only Sedona can agree to enforce or not enforce their own code.

[00:11:48] Speaker 02:
They don't need to get the landlord's permission to agree to do that.

[00:11:52] Speaker 02:
The reason that she wanted the accommodation in the first place was to assure the landlord that neither she nor he were going to be cited for this, because under D, the landlord can be cited for this also.

[00:12:02] Speaker 00:
And did you say earlier that even though it's not in the record, there is currently no agreement in place between Ms.

[00:12:08] Speaker 00:
Barham and the landlord?

[00:12:10] Speaker 00:
That is correct.

[00:12:13] Speaker 00:
So even if you were to get assurances from the city or obtain an injunction that wouldn't allow the city to enforce or allow the reasonable accommodation in the private parking lot, why wouldn't that still create some level of uncertainty for your client based on your remarks just now that there are other reasons why?

[00:12:37] Speaker 02:
Because the landlord, the reason that they are not allowing her to sleep there now is their own fear of being sighted under D. So that if she has a reasonable accommodation and says that it's not going to be enforced while I sleep here, that means that the landlord too knows that they're not violating the code by allowing her to sleep on the property.

[00:12:54] Speaker 02:
The only concern for the landlord that we understand is the code.

[00:12:58] Speaker 03:
How do we know that?

[00:12:58] Speaker 03:
What's in the record that shows that that's the landlord?

[00:13:00] Speaker 03:
That's a driving force for the landlord.

[00:13:02] Speaker 02:
It is in the... I see that my time is over.

[00:13:06] Speaker 02:
May I just respond?

[00:13:09] Speaker 02:
The landlord in the second amended complaint says that we've alleged, that is our understanding, that that is the landlord's fear, and in the third amended complaint, that the landlord worries about the enforcement against the code against them.

[00:13:29] Speaker 00:
Do you have any other questions?

[00:13:31] Speaker 00:
Okay, you have a little over two minutes left on the clock, which will give you two and a half minutes when you come back up for rebuttal.

[00:13:36] Speaker 00:
Thank you.

[00:13:53] Speaker 04:
Good morning, your honors, and may it please the court.

[00:13:55] Speaker 04:
I'm impressed with that.

[00:13:56] Speaker 04:
I've never seen it rising.

[00:13:57] Speaker 04:
That's really cool.

[00:13:58] Speaker 04:
We've got to get one of those.

[00:13:59] Speaker 00:
I think you know how to do that is more impressive.

[00:14:02] Speaker 04:
My name is Kirk Christensen.

[00:14:03] Speaker 04:
I represent the city of Sedona.

[00:14:05] Speaker 04:
This case remains in a failed attempt to create a case of controversy where none exists.

[00:14:10] Speaker 04:
The district court correctly dismissed this case for lack of standing, and that dismissal should be upheld if it is correct for any reason.

[00:14:17] Speaker 00:
Why isn't the denial of a reasonable accommodation in and of itself injury in fact?

[00:14:22] Speaker 04:
The denial alone is not because in order to establish Article 3 standing, there has to be the whole subject of a whole range of injury in fact, which is concrete, particularized, and imminent or actual injury.

[00:14:36] Speaker 04:
And in this case, Ms.

[00:14:37] Speaker 04:
Barham fails to establish any of those elements of injury in fact.

[00:14:41] Speaker 03:
But it's pretty concrete.

[00:14:42] Speaker 03:
I mean, the law specifically says if one has a disability and they seek a reasonable accommodation, they may or may not get it, may or may not fundamentally alter the program, et cetera, et cetera.

[00:14:52] Speaker 03:
Why isn't that a very concrete injury?

[00:14:55] Speaker 03:
You don't dispute her disability and her OCD and those issues, right?

[00:14:58] Speaker 04:
Correct.

[00:14:59] Speaker 04:
For the purposes of the motion to dismiss, the city does not dispute if she has a disability.

[00:15:02] Speaker 03:
So why, to follow up on Judge Desai's question, why isn't that a per se injury given that the ADA applies, given her disability, and there is at least an alleged violation of the law?

[00:15:17] Speaker 03:
If there is a violation of the law, which we have to presume for purposes of

[00:15:21] Speaker 03:
you know, standing.

[00:15:23] Speaker 03:
Why isn't that an injury?

[00:15:24] Speaker 04:
For two reasons, Your Honor.

[00:15:26] Speaker 04:
First, because there still has to be, just the denial alone does not establish Article 3.

[00:15:31] Speaker 04:
There has to be something more, something that's actual, something that's particular to her, some individualized injury, not a generalized grievance.

[00:15:38] Speaker 04:
If all it was was a denial any time someone violated the law, then every criminal... Well, but it is specific.

[00:15:43] Speaker 03:
She's asking for a specific accommodation given her specific disability.

[00:15:47] Speaker 03:
She's presenting a concrete case about her.

[00:15:50] Speaker 03:
She's not talking about everybody in the world, or she's talking about her case, and she's been denied that request for reasonable accommodation.

[00:15:57] Speaker 03:
If it happens to be wrong, and that may not be determined later on, why is that an injury for standing purposes?

[00:16:05] Speaker 04:
I don't believe it's a personalized injury.

[00:16:07] Speaker 04:
In this case, hundreds of people come to Sedona, want a car camp, and they all suffer the same type of injury.

[00:16:16] Speaker 04:
They simply being told by a police officer that you cannot do what everyone else cannot do and then have to move your car.

[00:16:25] Speaker 04:
Let me come at this a different way.

[00:16:27] Speaker 00:
The scenario, the hypothetical that you're articulating right now, it's just not the facts of this case.

[00:16:32] Speaker 00:
So here we have a person who has come to the city and said, I'm not asking to be exempt from this ordinance all the time in every place.

[00:16:43] Speaker 00:
But I'm asking for the reasonable accommodation of being permitted to sleep in my car, specifically, I think I heard your friend on the other side just say, for the specific location of her apartment complex where, in fact, the landlord had agreed, at least at some point, to enter into an agreement to allow her to sleep in her car periodically when necessary.

[00:17:05] Speaker 00:
And she comes to the city and she says, this is the reasonable accommodation that I'm requesting to be exempt from

[00:17:11] Speaker 00:
this ordinance for this very limited purpose.

[00:17:15] Speaker 04:
So first, the premise of that is incorrect.

[00:17:17] Speaker 04:
Ms.

[00:17:17] Speaker 04:
Barron, a request was to be exempted from a reasonably applied ordinance universally across the city, anytime, anywhere.

[00:17:25] Speaker 04:
Her briefing and her complaints still allege that.

[00:17:28] Speaker 04:
This is the first time we've heard that she would be fine only sleeping at her apartment complex.

[00:17:31] Speaker 04:
Certainly, at one point, she said she reduced back to, OK, well, how about just at the apartment complex?

[00:17:36] Speaker 04:
Well, the city reached out to the apartment complex, and the landlord was unable, which is why both the city and the landlord

[00:17:41] Speaker 04:
Was was the landlord was unable or unwilling so the is a city's position that it would entertain A reasonable accommodation to allow miss Barham to sleep in the parking lot of her apartment complex The city's position is that it's not required to that's not a reasonable accommodation under the ADA But that the facts of this case show that accommodation has been made by the landlord

[00:18:05] Speaker 04:
The landlord, Ms.

[00:18:06] Speaker 04:
Barron's been living in the city for over five years, sleeping in her car at least, the council is now saying up to, but the pleadings say at least three times a week, which is 800 times.

[00:18:17] Speaker 04:
And her preferred place to sleep is at her apartment complex, and the landlord allows that.

[00:18:22] Speaker 04:
And the city has never contacted her.

[00:18:23] Speaker 03:
If she were to now allege in a six-amendment complaint, or whatever number we're at, that the landlord is not willing to accommodate her now,

[00:18:31] Speaker 03:
post stipulation because of its fear, his or her fear of subsection D or whatever it is that the city is going to enforce under D that says, you know, landlords, you can't do this.

[00:18:45] Speaker 03:
You can't permit even on private property.

[00:18:48] Speaker 03:
If that were in the record, if that were in the allegations, would you concede then that there would be standing?

[00:18:54] Speaker 04:
Yes, likely, Your Honor.

[00:18:55] Speaker 04:
But in this case, the landlord

[00:18:58] Speaker 04:
The city the record show in the excerpts of records page 122 123 that the city reached out to the landlord and the landlord refused to make that accommodation which is then when both parties end up being sued the landlord then quickly settled with the defendant.

[00:19:14] Speaker 04:
uh... there were additional conversations had between the plaintiff and the and the city uh... that's shown in the in the uh... pleadings well because they had to take out the part where said there'd been no further conversations there were uh... but uh... no no reasonable accommodation or or settlement was able to have to be able to have between the plaintiff the city and and that matter but the fact that the landlord in his in his settlement agreement and keep saying he has enough to use her it uh... uh...

[00:19:43] Speaker 03:
In the settlement, in the stipulation, settling that lawsuit had a condition that is if the city comes after me, this deal is off.

[00:19:51] Speaker 03:
So this shows that the landlord was concerned about what the city might do.

[00:19:54] Speaker 04:
So there's two parts to that.

[00:19:56] Speaker 04:
Subsection E of the camping ordinance requires a warning from the property owner.

[00:20:03] Speaker 04:
And the city has to be aware of that and know that the city has not been made aware of a warning from the landlord about her not about not allowing Ms.

[00:20:11] Speaker 04:
Param to sleep at the property.

[00:20:12] Speaker 04:
And then subsection I allows for camping, these are both exceptions to the A and B and C, the beginning parts of the ordinance, allows for a person to camp for up to 24 hours with permission of the property owner.

[00:20:25] Speaker 03:
Although it says park, that's one of the differences between, it says park, not camp.

[00:20:30] Speaker 04:
Yeah, so the whole ordinance is about camping.

[00:20:33] Speaker 04:
There are other sections of the code that deal with vehicular parking and the zoning ordinance.

[00:20:38] Speaker 04:
This isn't what's used to enforce parking.

[00:20:41] Speaker 04:
This is what's used.

[00:20:42] Speaker 00:
This ordinance is used to enforce camping It seems to me that much of what we're talking about here could easily be resolved if the city would just agree to not enforce and and frankly I think that that might go a long way also towards your argument on this sort of standing front if the if the city were to say we are actually not going to enforce this ordinance with respect to this individual in this location

[00:21:08] Speaker 00:
which she's been granted accommodation by us and her landlord to sleep in her car.

[00:21:13] Speaker 00:
It would it would resolve the claims that that Ms.

[00:21:17] Speaker 00:
Burns brings.

[00:21:18] Speaker 00:
I don't understand why the city will not agree to a reasonable accommodation.

[00:21:24] Speaker 00:
or even entertain a discussion with the plaintiff on this.

[00:21:28] Speaker 04:
So yes, Your Honor, that would resolve the issue and likely make this move.

[00:21:32] Speaker 04:
But the city's position is that it's not required to grant a reasonable accommodation to a universally applicable general law like the camping ordinance.

[00:21:43] Speaker 04:
This is not any, no one wants to be part of a criminal law because there's no benefit to the criminal law.

[00:21:48] Speaker 04:
And Ms.

[00:21:49] Speaker 04:
Barham has failed to allege or show what benefits she's missing out on by having the criminal law enforced against her.

[00:21:54] Speaker 00:
So your argument really is that our holding in McGarry shouldn't extend to a criminal ordinance.

[00:22:00] Speaker 00:
So your argument is that the ADA does not apply in this context because this ordinance is a criminal ordinance as opposed to the holdings.

[00:22:09] Speaker 04:
McGarry, yes, was a civil.

[00:22:11] Speaker 04:
Also, McGarry was just asking for a reasonable accommodation, meaning just a little bit more time to comply while he was in the hospital.

[00:22:17] Speaker 04:
Whereas here, Ms.

[00:22:18] Speaker 04:
Barham, in her pleading and her briefs, has continued to request a complete exemption from the city anywhere because sometimes she can't find suitable parking at her apartment complex.

[00:22:26] Speaker 00:
So let's take these two issues one at a time.

[00:22:28] Speaker 00:
So the civil versus criminal.

[00:22:30] Speaker 00:
I'd like you to walk us through how we can draw the distinction or draw a line between sort of what we said

[00:22:39] Speaker 00:
In McGarry, the ADA did apply in this context, civil versus criminal, and then to talk about the second issue that you raised, which is the difference between requesting some extension of time in McGarry and here a complete exemption from why there should be a line drawn.

[00:22:57] Speaker 00:
with respect to the applicability of that

[00:23:16] Speaker 04:
It's up to the legislature, and in this case, city council determine what should and shouldn't be a crime.

[00:23:22] Speaker 04:
And in this case, they decided that it's the best interest of the public to regulate car camping as a criminal offense.

[00:23:30] Speaker 03:
The city had an interest in McGarry as well.

[00:23:34] Speaker 03:
You know, make sure yards are cleaned up and that sort of thing.

[00:23:36] Speaker 03:
They have an interest.

[00:23:37] Speaker 03:
Why couldn't the city decide for itself?

[00:23:40] Speaker 03:
You've got to do it in a certain amount of time.

[00:23:41] Speaker 03:
It's important.

[00:23:41] Speaker 03:
You can't let it linger.

[00:23:43] Speaker 04:
So in that case, the court found that McGarry was establishing

[00:23:46] Speaker 04:
or the city had a yard maintenance program.

[00:23:51] Speaker 04:
But in a criminal law, there is no program policy.

[00:23:55] Speaker 04:
There is no activity or service that's being prohibited.

[00:23:57] Speaker 04:
A criminal law is a non-program, a non-service, a non-activity.

[00:24:00] Speaker 04:
It's not something anyone's seeking to be a part of.

[00:24:02] Speaker 00:
So if this ordinance just issued a fine to individuals who were sleeping in their car, camping in their car, versus having the criminal component to it, if it was similar to

[00:24:15] Speaker 00:
McGarry in the sense that it was a civil fine or penalty would you say that then we would be in a completely different circumstance and Based on the precedent in McGarry.

[00:24:25] Speaker 04:
Yes, if it was a civil offense, I think it'd be different But courts are free as recently stated in the United States Supreme Court the interest of the city are exactly the same whether they are issuing a sort of civil penalty versus a

[00:24:38] Speaker 04:
The penalty might be the exact same, but the program or activity is different.

[00:24:44] Speaker 04:
A criminal law is a universally applicable prohibition.

[00:24:49] Speaker 04:
In McGarry, it was a yard maintenance program that they said that he was being in.

[00:24:53] Speaker 03:
What if in McGarry, Portland had a criminal sanction attached to it, a criminal fine?

[00:24:59] Speaker 03:
If you don't clean it up in a certain number of days, it's just a civil thing, but at some point, it becomes a misdemeanor or it becomes a criminal infraction.

[00:25:07] Speaker 03:
Suddenly, the ADA doesn't apply?

[00:25:09] Speaker 04:
So yes, at some point the line has to be drawn where the ADA does not apply and the ADA does not apply and no case cited by Ms.

[00:25:15] Speaker 04:
Barham ever stands for the proposition that the ADA protects criminal conduct.

[00:25:20] Speaker 03:
So even if the city's interests were the same, the conduct were the same, everything else is the same, the applicable standards, the fact that there's a potential criminal sanction would suddenly make

[00:25:29] Speaker 03:
The ADA sort of eviscerate if everything was the same but again in McGarry.

[00:25:33] Speaker 04:
There's this yard maintenance program here.

[00:25:36] Speaker 04:
There's a camping prohibition That is not has no benefits.

[00:25:40] Speaker 04:
There's nothing that anyone wants to be a part of people seek to avoid it Which is underscored by Miss Barham who wants out of this completely from the beginning She's not asking for a reasonable accommodation here She wants a complete exemption because at times she can't find suitable parking and let me go the reasonableness and

[00:25:55] Speaker 04:
let me go to the results of the combination i don't know if it goes to whether the eighty eight even applies so uh... so i i i don't think it does uh... united states versus grand pass uh... recently ruled uh... that uh... camping ordinance does not discriminate based on person status

[00:26:13] Speaker 04:
and rather just prohibits conduct regardless of a person's status, including involuntariness.

[00:26:19] Speaker 04:
What Ms.

[00:26:19] Speaker 04:
Barham is arguing here is, in fact, the dissents in PAL and Grants Pass, that she's exempt from a criminal law because she has something she's powerless to change.

[00:26:29] Speaker 04:
But that idea that involuntariness excludes you from prosecution was rejected both by PAL and Grants Pass.

[00:26:36] Speaker 00:
So your argument is that

[00:26:37] Speaker 00:
There is an additional reason here that the ADA doesn't extend in this context, and that's because she's seeking this exemption as opposed to an extension of time, like we had in McGarry.

[00:26:47] Speaker 00:
What if she were not to be seeking an entire exemption from prosecution under this ordinance, but instead a limited accommodation of being able to sleep in her car

[00:26:59] Speaker 00:
at her apartment complex.

[00:27:01] Speaker 04:
So in that case, the record shows that the city was willing to look into that.

[00:27:05] Speaker 04:
It contacted the apartment complex.

[00:27:07] Speaker 04:
The landlord said they were unwilling to have her sleep in her car at that time.

[00:27:10] Speaker 04:
And so at that point, the city's hands are tied.

[00:27:12] Speaker 04:
It can't grant her permission to sleep on private property when the private property owner says they don't want her sleeping there.

[00:27:19] Speaker 04:
And so at that point was when Ms.

[00:27:21] Speaker 04:
Barron commenced the lawsuit against both parties.

[00:27:24] Speaker 03:
What is the record?

[00:27:26] Speaker 03:
Maybe help me out just a threshold question.

[00:27:27] Speaker 03:
What is the record we're supposed to consider

[00:27:29] Speaker 03:
I guess this is both a 12B1 and a 12B6 motion for lax standing.

[00:27:34] Speaker 03:
Are we only to look at the allegations of the complaint or do we look at affidavits and documents?

[00:27:43] Speaker 04:
In this case, I believe everything in the excerpts of record and the supplemental excerpt of record is appropriate for the court to look at.

[00:27:49] Speaker 03:
And you think that is appropriate under 12B, whether it's one or six in this context?

[00:27:52] Speaker 04:
Yes, there are public records and the court

[00:27:55] Speaker 04:
but any disputed issues have to be resolved in favor of the non-moving party you know there are any disputed issues uh... besides the two new issues that the the plaintiff brought up today uh... one that the landlords now no longer you know allowing her to to be at the property uh... or maybe not allowing her to sleep at the property and then uh... the other one that they're now back to just seeking an accommodation at the apartment complex because that's not what the complaints or the pleading her opening or answering brief

[00:28:23] Speaker 01:
Council, I just need some clarification.

[00:28:25] Speaker 01:
If the property manager says, okay, it's fine, you can stay here, you can sleep in the car, in the parking lot, would that property manager be in violation of subsection D?

[00:28:38] Speaker 04:
No, so subsection E allows for persons to sleep on the property with permission of the property owner.

[00:28:48] Speaker 04:
So for up to 24 hours.

[00:28:49] Speaker 01:
So what does D do then?

[00:28:51] Speaker 04:
D would be if that exception, subsection E did not apply the exception there.

[00:28:56] Speaker 04:
So if it was without permission or in subsection I, if it was more than 24 hours, then the property owner could be cited.

[00:29:05] Speaker 00:
So let me just clarify your answer to Judge DeAlba.

[00:29:07] Speaker 00:
So as a preliminary matter, the city's position is subsection I, even though it refers to parking, is really talking about camping, sleeping,

[00:29:17] Speaker 00:
It's broader than just parking.

[00:29:18] Speaker 04:
That's what you do in your vehicle, in your camper or your recreational vehicle.

[00:29:22] Speaker 00:
Okay.

[00:29:22] Speaker 00:
So if you're parking in a car or a recreational vehicle under subsection I, that includes sleeping in that vehicle as well.

[00:29:30] Speaker 00:
Okay.

[00:29:31] Speaker 00:
And then separate and apart from that, I mean, that alone, that concession alone, I think from the city would allow Ms.

[00:29:40] Speaker 00:
Barham to sleep in her vehicle for up to 24 hours.

[00:29:46] Speaker 04:
And she has done so for 800 times.

[00:29:48] Speaker 00:
With or without the permission of her landlord, as I read subsection I. Subsection I requires permission of the property owner.

[00:30:03] Speaker 00:
I see.

[00:30:03] Speaker 00:
OK.

[00:30:03] Speaker 00:
With the consent expressed or implied of the respective government property owner, manager, renter, lessee.

[00:30:08] Speaker 00:
OK.

[00:30:08] Speaker 00:
And then your second response to Judge Alba's question is that it wouldn't

[00:30:15] Speaker 00:
The city wouldn't enforce subsection D with respect to the private property owner if the consent had been given under subsection I. Correct.

[00:30:26] Speaker 03:
Helping with subsection I, it refers to parking of any vehicle with the consent of the respective government property owner, manager, renter, lessee or agent thereof.

[00:30:39] Speaker 03:
Where does it apply to private?

[00:30:41] Speaker 04:
So in the second part of that section, it also talks about responsible for such property or the property owner, manager, renter, lessee, or agent thereof.

[00:30:53] Speaker 04:
So it does not just apply to government property owners.

[00:30:57] Speaker 04:
The purpose of this section was to, when it was adopted in 1999, the legislative history shows that the city council wanted people to build a camp for 4th of July weekends, and at the bashes, people were still camping there at the time.

[00:31:09] Speaker 00:
And would this subsection apply to a regular vehicle or car that's not a vehicle camper or an RV?

[00:31:17] Speaker 04:
Yeah, so the subsection likely has a Scrivener's error there.

[00:31:20] Speaker 04:
After vehicle, it should be a camper.

[00:31:21] Speaker 04:
It should be any vehicle, comma, camper, or recreational vehicle.

[00:31:24] Speaker 04:
The next two uses of that same phrase has a comma, vehicle, camper, or recreational vehicle.

[00:31:30] Speaker 04:
And then the last line, vehicle, comma, camper, recreational vehicle.

[00:31:33] Speaker 04:
So it's just missing a comma there.

[00:31:40] Speaker 04:
There's no further questions.

[00:31:41] Speaker 04:
Thank you.

[00:31:42] Speaker 00:
Thank you.

[00:31:48] Speaker 02:
Thank you.

[00:31:49] Speaker 02:
Just a couple of points.

[00:31:51] Speaker 02:
First, in her complaint, she did request her, she did it alleged she asked for a second reasonable accommodation to just be at her parking lot.

[00:31:59] Speaker 00:
Can you point?

[00:32:00] Speaker 00:
Yeah, sorry.

[00:32:01] Speaker 02:
That is on ER 95 paragraph 29 in this

[00:32:07] Speaker 02:
To be clear, there's nowhere in the record that the landlord, that Sedona asked the landlord for permission or talked to the landlord.

[00:32:17] Speaker 02:
The only thing in the record is that Ms.

[00:32:21] Speaker 02:
Barham's attorneys talked to the landlord and said, and they said we need the reasonable accommodation in order to allow her to sleep here.

[00:32:31] Speaker 02:
There's nowhere in the record where it says Sedona

[00:32:34] Speaker 02:
the landlord told Sedona no.

[00:32:36] Speaker 02:
And to be clear, the plain language of the way that we're reading the code makes sense when we look at what happened because Sedona said no to her when she asked for the reasonable accommodation to sleep at her apartment complex.

[00:32:50] Speaker 02:
They didn't say, by the way, if you get the landlord's permission, you're good under I. No.

[00:32:55] Speaker 02:
It says parking.

[00:32:56] Speaker 02:
They denied her at that time.

[00:32:59] Speaker 02:
If we could have had an interactive process, which they denied, which they refused to do, that could have been resolved.

[00:33:05] Speaker 03:
But the traceability of the harm that you're citing now is due to the fact that the landlord is only saying no because of the city concerned about subsection D, even though there's an argument that under D there is no coercion because the landlord has the ability under I just to say okay.

[00:33:27] Speaker 02:
We believe that the I is just about parking.

[00:33:31] Speaker 02:
that they are clear that it spells out sleeping, camping, lodging everywhere else they intend it to be.

[00:33:36] Speaker 02:
And so it clearly says just eye on parking.

[00:33:40] Speaker 02:
And again, based on Sedona's behavior, we think that that is how they interpreted it back then, too.

[00:33:46] Speaker 00:
I think that I heard your friend on the other side say that their behavior is that they, for some over 800 times, your client has been sleeping in her car in the apartment complex, and they have not engaged in any enforcement activity or gone after the landlord

[00:34:00] Speaker 00:
or given her a warning in that context, which sounds consistent to me with their statement here in court today that they interpret subsection I to refer to camping, parking and camping and sleeping in either a vehicle, a camper or an RV.

[00:34:17] Speaker 02:
I see that my time is over.

[00:34:18] Speaker 02:
May I respond to that question?

[00:34:20] Speaker 02:
Again, if you look at their denial of her request to sleep in her car, if that's the way they interpreted it, they said no to her when she asked if she could have the exception for them not to enforce at her apartment complex.

[00:34:35] Speaker 02:
Again, they didn't say go get the landlord's permission and we're good and we'll give you the letter.

[00:34:41] Speaker 02:
We can accommodate you or you don't need this accommodation.

[00:34:44] Speaker 02:
All of that could have been resolved with the interactive process, but they didn't do that.

[00:34:48] Speaker 02:
They just turned her down, which caused her all of her monetary and concrete injuries that she's had now for four years.

[00:34:57] Speaker 02:
And that's why she has ADA standing, and we ask that you remand back to the district court.

[00:35:02] Speaker 00:
Do we have any other questions?

[00:35:05] Speaker 00:
Thank you very much.

[00:35:06] Speaker 00:
Thank you, counsel, for your very helpful argument today.

[00:35:08] Speaker 00:
Thank you.

[00:35:09] Speaker 00:
With that, we will stand in recess.