know there was only one homeless shelter in laguna beach and mr porto whose home was at the time was denied access to it based on its locals preference this left him with no option but to sleep outside or in his car for which he received a warning ticket both policies the local spy planes and the sleeping ordinance were created by laguna beach to fence out and get rid of homeless people i mean i ask you this council if i understand the record correctly  mr porto declined to sign any time the registration and rules for which included the waiver of liability is that correct yes your honor however the liability waiver actually highlights the error that the district court made here it highlights the factual issue that was presented to the court at summary judgment and shows why some a judge was actually improper in this case the idea that he would say that your honor refers to was first presented to mr prado in october of two thousand and ten and by then mr porter was already injured he had been at the shelter every day with respect were in a federal court in order to have come to be here just to have standing you can't have standing if you had no legal right to be in the facility if you was unwilling to sign the registration rules form neither he nor anybody else unwilling to sign could be there under the circumstances how does existence of the waiver he went to the shelter we see in the record on page two eighty five which is mr porter's deposition testimony and if i could for your honor to access you mean to come into the facility or you mean to sleep there sleeping access your honor ok but he couldn't schlep there in any event unless he signed the registration rules form right nobody could well that they were local or anywhere else not before the registration form existed your honor he went to the local shelter and the district court found mr prado became homeless in january of two thousand and ten he was imprisoned at the way for until october of two thousand and ten and the record at page four fifty nine mr porto testifies into a declaration that the first time he went to the shelter staff told him that sleeping there was not an option because he was not a local so before the registration form even existed before he was even handed the registration form he was denied access and i get that as his injury would were on the record for fifty nine it makes it clear that he there anything from the city that confirms that i understood that this was a form that had been there from the beginning my wrong you're out of the city has not disputed the fact that mr porter was not presented the waiver until october of two thousand and ten well ok let's say argue endlessly that's true it's his declaration but if it had such a form and everyone was required to sign it before he or she spent the night in the facility don't you have a standing problem to because he was injured before he was handed the waiver but you can't be injured unless you can sleep there and he couldn't sleep there because he didn't run before that's not true your honor he was he was not granted he was denied access to the shelter in i'm so sorry your honor off the top of my head i don't have the date there but at page four fifty nine he does say it was the first time he went to the shelter and he did become homeless in early of two thousand and ten so that's something that's with the statue limitations or know there is no statute of limitations problem here because this is an as applied challenge to mr prado files his case in a timely fashion because it was within two years but looking briefly at page two eighty five of the record which is mr prose deposition testimony he says that he was denied access to the shelter by staff based on the local residency requirement at the top of that page he says he was asked on how many occasions he was told sleeping there was not an option and says just about every time at the door and he's asked how many times that was and he says he doesn't know sometimes he will go two or three times a day for food or showers and the city clarifies not about showers we're talking to stay overnight and he says well i've always known everybody's always known staying there overnight was not an option because i was not a resident and further down the city at seventeen did anyone ever specifically tell you that the local the residency requirement was the policy  requirement and he says quote every single shelter employee says that so that page of the record shows that there is admissible testimony that that he was injured prior to being presented the disbelieve mr porto's testimony and adopting almost verbatim the city's argument summary judgment and that was error because there is a disputed fact related to this and that testimony highlights that so moving people and the supreme court has said that fencing out undesirables is more indigent is impermissible i don't i don't quite understand that they don't tense out there i thought it was there for indigence and for homeless people it's just that the homeless shelter was essentially a one two punch it created the shelter with a local preference that had limited access and then take it to people who couldn't get into the shelter under the sleeping ordinance so looking at this holes this entire scheme and particularly the record page is one twenty nine zero one twelve where we see city council minutes when the city council members are saying things like we think we're at capacity we want to say enough we're fall and we don't want to become a magnet for homeless people and in fact actually at one giant conspiracy in what is a serious problem for the entire state is it your position that if the city you are going to beach did not take an indefinite number of homeless people from wherever they were in constitutional violation so let's say there are one hundred thousand from san francisco and they pull into town say hey you got a great shelter let's go and they don't have the room does that mean they're in violation just because they decided they are going to provide some shelter for a certain number of people nobody can afford to do it for everybody in the city so sounds like you're making what at least arguably was a beneficial act into constitutionally create a way of ensuring that homeless people who are sort of bona fide residents of the city could access the shelter first but do it without this fixed date residency requirement the may two thousand and ten version of the policy what would you do you're the head of the shelter right now how would you work that how would you segregate giving priority to people who have been in the city for many years you don't want to use date so what would you use where you are the supreme court in said that that it is irrational to dole out benefits based on length of residency m so a bonafide residency requirement wouldn't be based on length of residency but rather on the fact that this person or the individual is actually a resident and intends to reside in and with maine in the city and that would be something i simple as for example m case he was a fixture at the shelter we see on page two eighty five he was there two or three times a day for things that didn't involve sleeping the people at the shelter knew that he was a resident and so how do you define a resident somebody that comes there in the middle of the day looking for phrase from the case on the transients someone who was simply passing through or coming just for however long he was someone who moved there and wanted to stay there for a profit but what was the address on the beach with intent to stay there he intended to create a life for himself there and that means that he was a resident if we're going to be huge and one of the of as much of a right to the shelter as anyone else who had been living there for any amount of time or in the record do we find his of critical importance and in direct contradiction of the statements he made to both this court and the district court appellant revealed in recently filed decorations that he was placed in housing in december of two thousand and twelve in addition notwithstanding his argument over the years that the locals criteria prevented him from staying overnight at the s l appellant and since described in decoration the prospect of staying at the a s l as intolerable and unbearable stated that there are multiple reasons he never entered the lottery to obtain a spot at the a cell and stated that he preferred sleeping in his vehicle to staying at the cell not only do these revelations alter the nature of the case and make a parent's request for declaratory relief and injunctive relief mo she indicated that mr pardo came to the shelter and was never offered or asked to sign any registration and waiver form for some period of time what's your response to that so you're on it it may in fact be the case that it's initially when the shelter opened there was not this form and later on the form was developed so i don't necessarily dispute that however misreport never went through the process of determining whether or not he was a local to begin with the friendship shelter the only station that runs the alternative sleeping location they would essentially evaluate whether or not a person is a local or not to make that determination all we're hearing from this report on is decoration is some employee told him he's not allowed to stay there because he's a local but he never went to the process and we know that because we have a decoration from richard scott who was the supervisor or employee at the friendship shelter he's the one who noted that the friendship shelter has a list of those that are locals and those who have applied to be a local but were found not to be a local mr portal wasn't on this list and we we provided that decoration or record page two ninety one it's a declaration from mr scott that of how he's filed in support of the motion for summary judgment so the issue of standing on the locals criteria came up at summary judgment we provided th decoration for mr scott who was a supervisory employee this report zero provided i believe his own decoration but never provided any sort of evidence from any employees at the a s l to indicate that they did in fact say the things that he said at that magistrate judge who reviewed all these issues reviewed them in depth and found that these were just conclusory allegations from mr porto related to a now the other issue that came up as well you're going saying that he hasn't shown that he was denied permission to sleep there because he was not alone correct so why are you saying he was he hasn't shown he was never denied permission to sleep there period  that's that's not necessarily the argument but i would i would say that he has never shown that he went through the process or determine if he was a local or not it's process it's entirely possible that the shelter was acca passive the and it was turning away people but i don't know what the occasion was for misreport of the term to be the reason the district court dismissed was the reason that this report dismissed was because he had not gone through the process of being determined to be a local and also failed to sign the registration of the rules form which was undisputed he stated at deposition he would never sign the registration it'll form and during this appeal while it's reference in their opening brief and reply brief  actually challenge the liability waiver that's part of the registration rules for him and in addition we have this new testimony from this report oh in these two decorations in which he states essentially he would never stay at the a s l to begin with he found the conditions there to be intolerable and he said there were multiple reasons why he never wanted to stay at the cell and that he preferred to sleep sleeping in his vehicle over staying at the cell so there's no injury here to begin with he never would have stayed at the even if he had been given the opportunity to do so is it your position that comes oh wasn't given was it actually prosecuted for sleeping in this car or that he doesn't have any injury credible threat of enforcement because he had been homeless apparently for over two years in laguna beach could only attest to four instances in which the laguna beach police department contacted them and no no one occasion had he actually been fined arrested there had been no any type of prosecution imposed upon him and then we also have the revelation that what your response to porto citation spurgeon post versus massacres ninety nine circuit case decided in two thousand and fourteen each year and that's for the basis for a credible threat of enforcement i believe and again i would say i would say that he did not face a credible threat of enforcement in particular because in two thousand and twelve he had only been here only interacted with the police four times was only warned once during that period of time the city well there's actually no evidence of what the city's enforcement was during that time he alludes to some citations that occurred in two thousand and eleven by the city but most of these citations were actually for violations of different laws not for this particular ordinance and then we know in december of two thousand and twelve a mere couple months after the city filed that second motion to dismiss he was placed in housing and the second motion to dismiss was actually only later granted in may of two thousand and thirteen which is six months filed these two decorations in a separate matter of the glover matter which is a district court matter in that matter mr porto testified that he had become housed in december of two thousand and twelve at that point we were actually through our first round of briefing before this injunctive relief and then it really shows that a lot of these other issues i think are painted in favor of the city as well if he  what he alleges occurred and he got the housing afterwards but there was a period of time when he did him that does that mood what happened before he got house since i gather injunctive relief or mood and that's fairly clear from the case law in reply pellant doesn't even contest that however on the issue of the damages related to both the locals criteria and for some of the ordinance there's no standing to begin with there's no concrete injury and you know with regard to the locals criteria again his declarations make it clear he never would have stayed there to begin with so even if you was denied for a reason other than his failure to sign the registration and rules form he would not have stayed there he has said that he never wanted to stay there it was intolerable where it would have been that's where in the record does that statement appear that's in the record the most repr goes paragraph thirty one he describes the prospect of sleeping inside the a s l as intolerable and then he also states that the conditions at the as cell were quote all reasons why i never enter the watery to try to get a of the local criteria we have your honor at summary judgment we made the argument regarding the basis the reasons for it however i don't believe that it's if the court find judgment so you don't want to just to reach the question of whether this is irrational or not knowing roger i don't i don't believe that the court would want to and given it's a novel issue related to the right of intrastate travel which hasn't been decided by the ninth circuit or by the supreme court i don't see a reason why the court would need to entertain that issue can i change a little bit to back to the incident where he was awakened and given those citations admittedly was not going to be prosecuted but i would think that would be quite upsetting to have somebody shine a light year and give you a citation he indicated i think that he felt you know just and he was upset he was nervous is that going for any kind of standing i think your honor it's getting him closer to standing but i don't believe that that is enough to get to standing i think whenever you have an interaction with the police it's possible that people will feel worried upset threatened by it but there needs to be some level of objectivity that gets that person over the threshold to get to a concrete injury and there are cases here that within the ninth circuit that talk about arrest fines property loss so it doesn't actually have to be conviction it doesn't actually have to be prosecution it could be something lower than that but it can't be as low as what mr porter was talking what your best case for going is close to his factual circumstances plus the best case for that would probably be live the city of sacramento anderson the city of portland which talk about when you actually do meet that threshold before getting prosecuted but you know as a relates to cases that talk about generally the issue of standing cases like that he hasn't shown he received that threat as a result of not being able to get into the shelter yeah yes or i think that that would be our position as well but the issue as well was just that there was no credibility behind that type of threat even if it's not concrete injury they could still satisfy standing through concrete threat of enforcement but they don't get there either based on the fact that the city wasn't going incidents in which he had interacted with the police department and only one of which involved an actual warning for a violation so i don't believe that we get there your honor when you look at the locals criteria doesn't  difficult to know exactly your honor of the homeless population we're going to be to fluctuates at times it could be greater than forty five there certainly were occasions when more than forty five people tried to get into the a s l and some were turned away but there are other fluctuates the population and that evidence is and that's before the court here but but during certain months more homeless individuals are present within laguna beach than others there are armory shelters that open up in the winter months in portions of orange county and some of the homeless population goes there and now we have additional homeless shelters in orange county and santa ana and so some again some of the homeless population goes there it's a difficult number to to pinpoint but the since the time when he was initially injured put away for anything he has said since then does not undo that injury so once he was injured his statements at the shelter or about the shelter about distaste for the shelter irrelevant to the injury that he suffered that first day he went there but if if i understand correctly what was stated it sounded like he never intended to stay there at any point did i misunderstand that city's contention that's what the writing says the right yes but mr prado did go to the shelter he presented himself there to sleep he was told you are not allowed to sleep here because you're not a local so and that was the injury that he suffered in early two thousand and ten and so his statements in recent years about this case for the shelter don't bear on the fact that he was injured in two thousand and ten and he may have developed this opinion later but he did go to the shelter to seek shelter and was turned away because of the local smoking so the district court you're in what improperly weighing evidence in favor of the moving party at somebody's judgment making this determination at the summary judgment stage was improper the determination that was improper was what was that mr porto's statements in his in his deposition were borrowed and uncorroborated point where he would be denied admission and i think that the district court at that in mind my interest in correct your own to the district court was incorrect mr porter so the city does argue that mr porter didn't pursue the process because he didn't sign the waiver but his deposition testimony and in fact the policy itself says that he was evaluated he was evaluated at the door he was told by staff multiple times that he could not stay there and the policy itself give staff the ability to make these evaluations at the door and so he was evaluated he doesn't need a piece of paper to tell him what he already knew how does he maintain that he would sign the waiver i'm sorry does he say that he would sign a waiver he does not  but he was handed the waiver after months of discrimination after months of being told that he would couldn't sleep there because he was in a local so why would he sign a waiver if he knew and if he knew that once he did sign it he would get an equal benefit after you agree that he did not otherwise participate in the process to determine whether he was alone whether he meant the criteria to be a local i do not your honor he did he the policy says the policy encourages staff at the shelter to make these determinations out the door and to shoo non locals away we say page two forty nine to fifty of the record the may two thousand and ten version of the policy where the s l staff agree is to make no representations to non locals that they can stay there for more than the non local maximum of one night and to tell people and to not tell anybody that they could stay there to make any determining perhaps the crew fully what i'm trying to understand is did he declined to participate with the staff in determining whether he was a local not what they did with respect and locals if i understood the ordinance correctly he had an opportunity to show that he was in fact  local there was a time period you could show that you understand correctly from what your opponent said that he refused to participate in that process your honor the city is painting the waver itself as with the water to the side for a moment i want to of course has this answer this question did your client agree and participate in the process to determine whether he qualified as a local yes because he went to the shelter seeking the opportunity to sleep there and he did he answer any questions about when he got there is it or is it there's nothing in the record that shows what that process would be or that he participate in that process because nothing in the policy itself other says that there is a process outside of simply the policy saying if to stay here overnight you need to meet these requirements that's correct and was a judge heard right because the city said your client never participate in this process declined to do so your client didn't say anything one way or another according to what you just said george uncontroverted never i'm sorry i don't know if if i made if i sounded like i said that what i what i am saying is the record doesn't reflect that he was asked any questions however he was told according to his declarations that he could not sleep there because he was not a local so we know based on not that there was something that happened at the shelter that day that made multiple staff or those multiple days that he went there