No vacancy: addressing homeless camps in California

The Los Angeles City Council passed an ordinance on July 28 outlawing camping around parks, libraries and other public buildings and areas. In light of public pressure to act on the ever growing homelessness issue within the city, Mayor Eric Garcetti signed the ordinance, which officially went into effect on Sept. 3.

As the state continues to move towards normalcy in the wake of the pandemic, business owners, community groups and residents are demanding solutions to reduced access to sidewalks, parks and other public spaces. With outreach teams offering shelter and services before enforcement takes place, proponents are characterizing the ordinance as a more humane way to clear encampments. Critics say the ordinance penalizes people for being homeless and argue that the city should provide more affordable housing.

Los Angeles Municipal Code 41.18 prohibits sitting, sleeping or storing items on public property near "sensitive" uses -- libraries, parks, daycare centers and schools. The council would have to pass a resolution that names each specific area, posts signage and give notice of the date when the encampment would be cleared out before enforcement can take place.

Critics claim the ordinance is too bureaucratic, arguing that the council is essentially required to vote on each encampment before anything can be done. Could this mean that enforcement of the ordinance will vary depending on which part of the city is at issue and the political leanings of each council member?

The ordinance attempts to address this issue by carving out some exemptions when a vote is not necessary, such as when a tent or other objects are found to be within two feet of a fire hydrant or when people are sitting, sleeping or storing property within five feet of a building's usable entrance or within 10 feet of a driveway.

What Case Law Tells Us

Regardless of how people feel about the ordinance, all cities throughout the state must take into consideration the controlling 9th U.S. Circuit Court of Appeals case: Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019). Martin involved a camping ordinance that the city of Boise had passed to address its homelessness problem by criminalizing sleeping outside which was ultimately struck down for violating the Eighth Amendment. That case held that, "an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them."

This means that any city attempting to address homelessness cannot enact a blanket ban on sleeping anywhere outside or in a "public place" without considering available alternative shelter. The court in Martin made clear, however, that in no way was it dictating "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." This implies that a city could enact limited or narrowly tailored ordinances that preclude the homeless population from sleeping, loitering, sitting, or even soliciting in certain places, during certain times, and in certain ways.

Several cases illustrate the limits of Martin's holding, explaining what is permissible for a city to generally enact. Le Van Hung v. Schaaf, 19-CV-01436-CRB (N.D. Cal. Apr. 23, 2019), involved four plaintiffs living at an encampment in Union Point Park's Eastern/Southern parking lot in the city of Oakland for varying numbers of months. The city determined that the encampment posed a hazard to both the park users and encampment residents, and therefore further decided to give notice of and enforce an encampment closure. Plaintiffs sought an injunction against the encampment closure. However, the court held that "while Martin limits localities' ability to arrest their homeless residents for the act of living in the streets when there is nowhere else for them to go, it does not create a right for homeless residents to occupy indefinitely any public space of their choosing."

Another similar case is Winslow v. City of Oakland, 20-CV-01510-CRB (N.D. Cal. Mar. 3, 2020). There, the court held again that individuals that are not threatened with arrests or criminal punishment do not have a Martin claim. Further, that court reiterated that Martin does not establish a constitutional right to occupy public property indefinitely. The city in Winslow was entitled to clear an encampment area, so long as criminal penalties were not levied against the homeless. The Eighth Amendment claim was dismissed there as well.

Both of these cases cite Miralle v. City of Oakland, 18-CV-06823-HSG (N.D. Cal. Nov. 28, 2018). It is noteworthy to mention one particular part of the holding in light of what is permissible under Martin: "Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the 'universal and unavoidable consequences of being human' in the way the ordinance prescribes." See also Young v. City of Los Angeles (C.D. Cal. Feb. 10, 2020), citing Martin ("an ordinance that prohibits tenting or loitering at particular times or particular locations may be permissible"); Shipp v. Schaaf, 379 F. Supp. 3d 1033 (N.D. Cal. 2019) (temporarily requiring individuals to vacate their encampment is permissible and remaining at a particular encampment on public property is not conduct protected by Martin and may be citable/prosecutable).

In other words, a city ordinance may prohibit sitting, lying or sleeping outside at particular times or in particular locations. It stands to reason that the preferable method for a city to address homelessness without violating the holding in Martin is through time, place and manner restrictions.

How Cities Have Responded

Los Angeles has taken painstaking efforts to draft an ordinance that complies with the Martin holding. The city has narrowed the application of its ordinance to specific categories of buildings, places and times of day to ensure that a broad ban on homelessness generally is not being enforced. The city provided various procedures for notifying homeless individuals before an encampment will be cleared, giving them an opportunity to collect their belongings before they are ultimately seized and removed from the area. The notice period is 14 days long and is accompanied by a "street engagement strategy," where social workers provide resources to members of the encampment for a period that could last up to four months.

Once an area is cleared, outreach workers would return over a period of three months to see if homeless people return. If they come back, additional outreach would be conducted to promote "voluntary compliance." Violations of the ordinance would be treated as infractions and could result in the issuing of citations. Those who are found to have willfully resisted enforcement could be subject to a misdemeanor, said City Attorney Mike Feuer.

Further south in Orange County, the Santa Ana River Trail was shut down for several months in 2018 due to an overwhelming presence of homeless encampments. In March of that year, the Orange County Public Works Department said that 404 tons of debris, 13,950 needles and 5,279 pounds of waste were removed from the homeless encampment where more than 700 people lived. A lawsuit resulted in a settlement agreement between advocates for the homeless and municipal officials where the homeless were removed from the riverbed and then given 30-day motel vouchers while the county looked for more permanent solutions. What resulted was growing tension between Santa Ana and surrounding cities that Santa Ana officials felt were not sharing the load in providing alternate locations for the homeless population. The problem continues to persist throughout Orange County and the Inland Empire where there simply are not enough resources to house all of the individuals living on the streets of the cities.

This Santa Ana issue occurred before the ruling in Martin, so we know now that the government has no duty to provide shelter to the homeless, but instead must ensure that homeless individuals have some area to call their own and be allowed to sleep. It is clear that something needs to be done to address this problem and cities are doing their best to be cognizant of the surrounding constitutional and human implications of scattering encampments. For the time being, cities like Los Angeles are trying to make moving around the city more commuter friendly. Where it goes from here remains to be seen.