Homeless people do not have a constitutional right to camp on city-owned property, judge rules

A group of homeless people do not have the constitutional right to camp on a vacant piece of fenced-off land owned by the city, an Oakland federal judge ruled Wednesday.

U.S. District Judge Haywood Gilliam Jr. said there is no Eighth Amendment violation if city officials evict those in the camp because they face no threat of arrest.

"Plaintiffs are not faced with punishment for acts inherent to their unhoused status that they cannot control," Gilliam wrote. "Nor are plaintiffs unable to obtain shelter outside" the encampment.

The city must, however, provide the camp's 13 original camp dwellers with shelter beds and 72-hour advance notice of the eviction.

The case is one of the first to test a 9th U.S. Circuit Court of Appeals opinion issued in September, which found penalties on the homeless for violating camping and disorderly conduct ordinances when no shelters are available amount to cruel and unusual punishment in violation of the Eighth Amendment. Martin v. City of Boise, 2018 DJDAR 8871 (9th Cir., filed Sept. 4, 2018).

The saga began when a group of homeless people established an encampment, calling it the Housing and Dignity Village, in October. They were promptly served an eviction notice. Miralle v. City of Oakland, 18-CV06823 (N.D. Cal, filed Nov. 9, 2018).

Oakland Deputy City Attorney Jamilah Jefferson argued the 9th Circuit opinion is not applicable in this case because the city is not threatening to arrest those in the camp.

"The Eighth Amendment does not limit the government for criminalizing 'avoidable' criminal conduct," Jefferson wrote in response to the plaintiffs' motion for injunctive relief.

Jefferson did not respond to request for comment on the ruling.

Gilliam concluded the plaintiffs' theory would require the court to extend the camping rights described in Martin "well beyond the parameters set by the Ninth Circuit."

"Martin does not establish a constitutional right to occupy public property indefinitely at plaintiffs' option," he wrote.

But plaintiffs' attorney Joshua Piovia-Scott of Hadsell Stormer & Renick LLP claimed the city's written ordinances are drastically different than its practices.

Piovia-Scott said the city regularly violates the Eighth and 14th Amendment rights of the homeless by threatening arrest if they do not move while destroying their personal property in the process.

"We submitted a significant amount of evidence that the city does not do what it says it does in its policies," he said. "The reality on the ground and in the real world of how Oakland treats its unhoused residents is significantly different than the policies they presented to the court."

Piovia-Scott also said the city only offered to provide shelter beds for the 13 residents once they sued and had to "explain themselves in court."