Interpreting the law on unsheltered individuals
City manager defends camp removals
CHICO >> Several attorneys interpreting a landmark ruling against moving unsheltered individuals without adequate shelter say enforcement actions in Chico could be violating the ruling.
The city of Chico, however, and at least one local attorney say Chico’s actions are lawful.
Recent city enforcement actions at various locations in Chico, removing multiple campsites, have garnered both celebration and protest. But in practice, these enforcements and the directives from the Chico City Council have drawn increasing scrutiny for possibly violating constitutional amendments and the 2019 Martin v. City of Boise, Idaho ruling in the Ninth Circuit Court of Appeals — which Butte County falls under. The U.S. Supreme Court denied a petition against the April 2019 decision in the Ninth Circuit, that homeless persons cannot constitutionally be punished for sleeping outside on public property in the absence of “adequate alternatives,” making the Circuit’s decision binding.
Multiple advocate groups and both the Butte County Democratic Party and local political action committee Stand Up for Chico have denounced the city’s enforcement actions. Legal Services Northern California Supervising Attorney Cory Turner filed a cease and desist letter to City Attorney Andrew Jared — who was removed by the council in closed session Feb. 2 — requesting reconsidering the city’s park ordinance and increased punishments for prohibited camping and sleeping on public property.
Turner claimed enforcement of the city’s park ordinance would violate the prohibition against cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution, per cases such as Martin v. Boise. The Ninth Circuit Court of Appeals found in the 2019 case “‘so long as there is a greater number of homeless individuals in (a jurisdiction) than the number of available beds (in shelters), the jurisdiction cannot prosecute homeless individuals for ‘ involuntarily sitting, lying, and sleeping in public.”
But City Manager Mark Orme said Monday the city is following the opening in Martin v. Boise that he said “in no way dictate(s) to the city that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . ..at any time and at any place.”
“That statement must also be read with Footnote 8 which is critical to the understanding of the case, which clarifies that the court is not holding that a city can never criminalize the act of sleeping outside, that under certain circumstances such laws will be enforceable; that even in a jurisdiction with insufficient shelter opportunities, an ordinance prohibiting sitting, lying
or sleeping at particular times or in particular locations might well be constitutionally permissible,” Orme said.”
“The city is reading the entire opinion to interpret its very clearly stated policy position that sleeping outside in the city of Chico is unlawful; obviously, given the portion of the opinion in Martin v. Boise dealing with citywide enforcement of anti-camping ordinances in cities without adequate shelter, the city cannot enforce its citywide ban at this time. However, more narrowly constructed codes like the sit-lie ordinance and the parks rules and regulations focused on behavior occurring at particular times and particular locations, not citywide bans on such activity at issue under Martin v. Boise, are available for enforcement.”
Local attorney Rob Berry also said he thinks the city’s actions are lawful according to Footnote 8, and added, “The Martin v. Boise case dealt with a 24/7, city-wide ban on sleeping and resting. The same case makes it expressly clear that camping is not sleeping or resting.”
Mark Merin, a Sacramentobased civil rights attorney, has been working on cases involving homeless individuals for over a decade and was involved in a class action lawsuit in 2018 in Marysville which reached a compensation settlement for the seizure of people’s property. He said in his legal opinion under Martin v. Boise, despite the concessions Orme noted, “At a time when there is not adequate or existing shelter available, it is a violation of the Eighth Amendment to criminalize them ( people who are unsheltered).”
“Even if they are living outdoors, if there are laws which prohibit them from living outdoors … cities cannot use those laws and enforce them against homeless people when there’s no shelter available,” he added. “As a result, cities have found they cannot use anticamping ordinances and trespassing ordinances to move people from where they happen to be living. What they end up doing is essentially ignoring them or tolerating them and homeless people are becoming much more visible.”
Attorney Anthony Prince, who is general counsel and lead organizer for the California Homeless Union, has worked on multiple homeless rights cases in Berkeley. He said in his opinion Chico is “flat out violating Martin v. Boise” in part because while enforcements drive people from camp sites, the few shelter alternatives available are extremely low capacity, or only open to people with very specific conditions.
“They’re sweeping people and not giving them safe shelter they’re obligated to,” he said.
Prince acknowledged Martin v. Boise does not stop cities and counties from “finding other ways to clear encampments and chase homeless people from one part of town to another on the basis of ordinances and actions by city councils.”
But he said there are no real exceptions in the case that excuse cities from the responsibility to have shelter alternatives adequate for people in the city who are unsheltered.
“If they’re taking down an encampment and not providing indoor shelter as alternative, then that’s not in compliance with Martin v. Boise,” Prince said.
He added the alternative housing has to comply with the Constitution, and Martin v. Boise specifically addressed shelter types that are unconstitutional, including barriers like requiring people to be “clean and sober” as this further limits who can use sheltering resources.
Prince also agreed with Merin that city notices to people, stating their property “of reasonable value” is being seized and kept at the Chico Police Department evidence section to be picked up, are likely in violation of the Fourth Amendment — the right to be secure against unreasonable searches and seizures — and the 14th Amendment, which prohibits the seizure of property without proper notice and compensation. This is for a number of reasons, including that many homeless people cannot adequately prove they own their property or what the value of it is, and often subsequently struggle to get access to a lawyer.
“It’s still a deprivation or a seizure (of property). It’s a conversion, and it’s illegal under the Constitution and the penal code,” Prince said.
“The confiscation of that property is a violation of the 14th Amendment — even if they’re living outdoors illegally, and police come and take their stuff because they say we don’t want you here, the confiscation of their stuff is illegal,” Merin added.
“There can’t be any requirement for people to photograph it or that it be valued any certain amount. If it’s not trash or garbage and is not discarded, then it can’t be seized and thrown away without violating the 14th Amendment. Now how do people identify it? They can describe it. If they don’t get it back, they can submit a claim and sue. But homeless people don’t have the resources, the time, the energy, or necessarily can get access to attorneys.”
Of Berry’s claims, Merin said there is some truth to the fact that the city is “basically saying they can still enforce certain kinds of rules, like you can’t do it here” in order to keep public spaces free of tents.
“How they interpret the Ninth Circuit may vary from officer to officer, from agency to agency,” he added. “It’s about criminalization. It doesn’t mean they can sleep anywhere they want.”
However, Merin said “The city should be allocating spaces … where you can be.
“The problem is ongoing and it’s going to be a growing problem as people get evicted and this pandemic continues and people lose jobs. It’s a societal problem that should be addressed and not either ignored or addressed with police power.”
And, per the ongoing conditions of the pandemic, sweeping camp sites is also a public health risk, Prince added.
“Whatever you might say of encampment conditions, the risk of harm by way of scattering people and removing people from encampments, meaning they get separated from services, lose property — those are violations of Centers for Disease Control and Prevention guidelines,” Prince said.
He cited the Santa Cruz case he is involved in, Santa Cruz Homeless Union v. s. City of Santa Cruz which he said is finding the CDC’s guidelines are “more than just guidelines, they are standards by which cities and counties have to act.”
In that case, Magistrate Judge Susan van Keulen of the U. S. Northern District Court in San Jose has stated closing parks during the COVID-19 pandemic with full city homeless shelters “would leave the homeless persons camping in those locales more vulnerable to COVID-19 than if they were allowed to remain in the encampments.”
Prince added ultimately, housing people, not shelters, must be the goal, although he is aware Chico’s housing crisis has worsened. He said the city has to find alternatives using some property.
“Under the law, if they’re going to break up encampments, they have to have a rational basis … or they have to find available shelter for everybody,” he said.