Obama administration says local sleeping bans are illegal
Every Tuesday evening for more than a month, a band of activists and homeless Santa Cruz residents has shown up at Santa Cruz City Hall, trickling in with their sleeping bags, tarps, pads, and other camping equipment.
The Freedom Sleepers, as this loose consortium calls itself, attempts to sleep through the night on the expansive lawn in front of city council chambers. Invariably, the police are called in to disperse the group members, whose ranks have varied from about 20 to about 60 throughout the summer. The sleepers disperse, only to return to sleep until morning, awakening at dawn to a breakfast prepared by Food Not Bombs.
“We do this every Tuesday, and we are not stopping until we get some response from local government,” says Steve Pleich, a member of the Freedom Sleepers. The overnight ritual was initiated in July after news broke that the Homeless Services Center would be temporarily shuttering its emergency shelter and other services due to a $600,000 budget shortfall.
But this summer, the activists got an unlikely boost from the federal government. The U.S. Department of Justice filed a statement of intent on Aug. 6 in an obscure case in Boise, Idaho, regarding its anti-camping ordinance. In the court filing, DOJ lawyers argue that “criminalizing sleeping in public when no shelter is available violates the Eighth Amendment” of the U.S. Constitution. The Eighth Amendment prohibits excessive fines, excessive bail and cruel and unusual punishment. In the past, courts have affirmed that the punishment of status, as opposed to conduct, constitutes cruel and unusual punishment.
In a prior court case in Los Angeles, a federal judge ruled that because lying, resting, sitting or sleeping are “unavoidable consequences of being human,” municipalities must either provide shelter or refrain from issuing criminal fines. Otherwise, cities are effectively punishing people for who they are, rather than what they do. The judge’s ruling was eventually vacated due to a settlement in the case, but the DOJ is arguing that his legal rationale is correct.
Scott Collins, assistant to the Santa Cruz city manager, says that while the feds do have their opportunity to weigh in on homeless issues, their position currently has no legal standing.
“The city will be watching to see how the Boise case proceeds,” Collins says via email. “In the interim, the city will continue to work on the larger issues of homelessness in our community.”
Collins further notes that the city contributes nearly $300,000 toward local shelters and nonprofits that provide direct services.
The county of Santa Cruz, which contributes the largest share to homeless services, does not have a camping ban in its code; nor does Scotts Valley. Watsonville and Capitola maintain camping bans similar in language to that of the city of Santa Cruz.
Alan Schlosser, senior counsel for the American Civil Liberties Union of Northern California, says the DOJ’s filing is much bigger than a strict legal analysis of a Boise ordinance, and that it could affect camping ordinances throughout the nation.
“This brief says that criminalizing homelessness is bad public policy,” Schlosser says. “It pushes them into the criminal justice system, into the jails, it uses up public defender resources and it throws homeless people into more social disarray. It exaggerates their problems and at huge cost to the public.”
Santa Cruz Mayor Don Lane says he agrees with the statement of intent, to the extent that he believes any approach relying solely on the criminal justice system falls short of addressing the complexities of homelessness in Santa Cruz and other jurisdictions. However, both Collins and Lane say enforcement of the camping ordinance remains a tool for the city.
In the meantime, with the city’s emergency shelter closed, several hundred of the estimated 2,000 men, women and children without an address in Santa Cruz County are saddled with less access to resources. The Homeless Services Center has transitioned away from an emergency shelter and toward a housing facility, meaning the homeless in Santa Cruz have little to no recourse to emergency overnight housing.
Recently, two women went into the public bathroom on Soquel Avenue, only to find a woman attempting to sleep on a toilet seat, says Rabbi Phil Posner, a founder of the Freedom Sleepers. “The situation we have in Santa Cruz is immoral, chaotic and illegal,” says Posner, whose son Micah is on the Santa Cruz City Council.
Schlosser says that even without a precedent-establishing court decision, the statement of intent alone could encourage attorneys to bring lawsuits similar to the one in Boise challenging the unconstitutionality of anti-sleeping ordinances. “In cities where they do not have enough beds, they do have a problem,” Schlosser says.
According to Santa Cruz’s 2015 homeless census, 69 percent of homeless people are unsheltered, down from 82 percent two years ago. This number is likely to spike now that most emergency shelter beds in the city are no longer available.
Mayor Lane, a longtime supporter of the homeless, points out that the city has partnered with Scotts Valley, Capitola and Watsonville, and the county government has partnered with United Way and other organizations to create a countywide plan to end homelessness. As part of that plan, the County Board of Supervisors approved funding for the position to manage a community-wide approach in June.
Lane believes that programs providing a pathway to housing are the best way to address homelessness in Santa Cruz. He adds that the Freedom Sleepers’ ongoing protest, for better or for worse, encapsulates Santa Cruz’s housing problem.
“They represent the dilemma we face,” Lane says. “They properly demonstrate the problem that the city does not have sufficient shelters. But they also demonstrate, just by the amount of trash that is left over after people have been sleeping there, and some of the negative behavior that is disruptive to city employees, that just letting people camp out doesn’t work. It’s never worked. There is too much history of informal campgrounds in the city and you have trash, drug use and a lot of other problems.”
THE REST OF THE STORY Steve Pleich, member of the Freedom Sleepers, has been camping out at Santa Cruz City Hall with other activists on Tuesday nights. PHOTO: CHIP SCHEUER
