ACLU Attorney Discusses Illegal Camping Ordinances

May 5, 2017

The emergency homeless shelter in Ukiah recently closed, forcing many homeless individuals in Mendocino county to wander the streets and sleep outside at night. The closure puts them at greater risk of being ticketed by police for illegal camping.  

 

The city of Ukiah adopted an illegal camping ordinance in 2014, essentially criminalizing camping and homelessness. 

  

  Alan Schlosser, Senior counsel of the ACLU in Northern California wrote a letter to the city when the ordinance was on the city council meeting agenda in 2014.

 

* Copy of ACLU letter sent to city of Ukiah, October 1, 2014:

 

Via Electronic Mail 

Kristine Lawler, City Clerk 300 Seminary Avenue Ukiah, CA 95482 

klawler@cityofukiah.com 

Re: City Council Agenda for 10/1/14 Meeting: Items 12a and 12b (Camping Ordinance) 

Dear Ms. Lawler: 

The proposed revisions to the Ukiah’s camping ordinances have just come to the attention of the American Civil Liberties Union of Northern California (“ACLU”). They are on tonight’s agenda for the City Council (Items 12a and 12b). I would very much appreciate it if you would make this letter available to the members of the City Council and the City Attorney. 

Although I am not familiar with the facts on the ground in Ukiah with respect to this problem, and I am aware that many cities have adopted “anti-camping” laws, it is the view of the ACLU that these ordinances raise both significant legal and public policy questions. In our view, the ordinances are excessively expansive and overbroad in their sweep, and they seem particularly mean-spirited in their approach. 

First, this ordinance is clearly targeting homeless people. It is not unique in that regard. However, what is striking (at least in the documents on the agenda), is the absence in the legislative findings of any recognition of what the City has done or is doing to address the shelter needs of homeless people who choose to live in Ukiah. In fact, the message to homeless people seems very clear: “Go Live Somewhere Else.” 

Second, while I am aware that many other cities have enacted laws or taken enforcement actions against homeless encampments, this ordinance sweeps much more broadly. It criminalizes sleeping overnight in the open air on any public or private property (without the owner’s consent), regardless of whether one has set up an encampment or a structure or even has camping equipment or utensils. This goes far beyond camping ordinances with which I am familiar. Apparently homeless people are expected to do all their sleeping during the daylight hours in Ukiah. Kristine Lawler, City Clerk October 1, 2014 Page 2 

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 

Third, there is a legal principle involved here the City may be ignoring. The Eight Amendment to the United States Constitution prohibits imposing criminal punishment for a person’s mere status. In Jones v. City of Los Angeles, the Ninth Circuit addressed this issue and held that in the absence of available shelter space, enforcement against homeless people of the City's ordinance which criminalized sitting, lying, or sleeping on public streets and sidewalks violated the Eighth Amendment's prohibition against cruel and unusual punishment. 444 F.3d 1118, 1131-1137 (9th Cir. 2006).1 Notably, the court concluded, "whether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being." Id. at 1136. 

1 Jones was vacated by Jones v. City of Los Angeles, 505 F.3d 1006 (9th Cir. 2007) because the parties to the lawsuit settled the case. Although Jones was vacated, it is still persuasive authority in the Ninth Circuit. 

Fourth, I used the words “mean-spirited” advisedly. Reducing the notice time that the City will give before a property seizure from three days to one day, and allowing city employees to destroy property even when there is reasonable doubt as to whether it has been abandoned reflect an animus towards this segment of the population. And converting all of these offenses to misdemeanors because it “has been difficult” to process the infractions in the criminal justice system is something that I have never seen, and takes “criminalization of homelessness” to a new draconian level. For a group of people who are not going to be able to pay a fine, this is either a prescription for adding to the jail population or another way of letting homeless people know that Ukiah does not welcome their presence. 

While the Ukiah ordinances may have complied with the letter of the Ninth Circuit’s decision in Desertrain v. Los Angeles, 754 F.3d 1147 (9th Cir.), they hardly comply with the spirit of Judge Pregerson’s opinion, where he concluded by noting that “[t]he City of Los Angeles has many options at its disposal to alleviate the plight and suffering of its homeless citizens.” Id. at 1158. Whether the City of Ukiah has explored all its options about how to deal with these problems without turning the entire city into an overnight no-sleep zone for people who lack shelter is a question that should be addressed by the City Council at its meeting. 

Thank you for your cooperation. 

Very truly yours, 

Alan L. Schlosser 

Legal Director