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Indybay Feature
Santa Cruz City Council Delays Second Reading of Stay Away Ordinance
by ACLU Santa Cruz County
Tuesday Oct 28th, 2014 3:37 PM
ACLU Continues to Urge Reconsideration of Stay Away Ordinance
The Santa Cruz Chapter of the ACLU received notice shortly before the October 28th City Council session that the second reading of Santa Cruz Municipal Code Section 13.08.100 Pertaining to Orders to Vacate Park Property had been pulled from the meeting agenda. ACLU SC has voiced strong opposition to the ordinance and called into question the constitutional sufficiency of the amendment. Members of the Board of Directors were prepared to read into the record an additional statement of concern had the ordinance come up for the second reading as scheduled. That statement is as follows:

"We are speaking formally for the Santa Cruz Chapter of the American Civil Liberties Union or ACLU. We only recently got information about the proposal you are considering here today and may not have fully accurate information about it, but we are responding to what we think is being considered.

We recognize that, no doubt, there are some individuals that the City and its citizens would not like to have in the parks or in some particular park. The ACLU has no objection to citing, or, when necessary, arresting individuals who are breaking valid laws. If the City feels that the current laws do not adequately cover some anti-social behavior that is specific and not unconstitutionally vague, we have no objection to the Council passing new or amending old City ordinances to address such matters. We also appreciate that the City does not have infinite resources and there may be insufficient City personnel to respond adequately to problems in the parks.

However, the Santa Cruz Chapter of the American Civil Liberties Union is shocked that the City Council is considering a resolution of this problem that involves banning individuals from a park or parks in general, for as long as a year, without any due process or procedure for a fair hearing in front of an impartial judge as to whether they actually committed the acts with which they are being charged or whether the punishment is appropriate for whatever transgression(s) they are cited for committing. This proposal is Constitutionally vague, lacks adequate due process protections, and is ripe for abuse. We sympathize with your need to address problem behavior in the parks and don't doubt that there is a problem that needs to be addressed, but we seriously hope you will find a different approach to addressing it."

ACLU SC will continue to be engaged on this and other civil liberties issues as they arise in or community.

Comments  (Hide Comments)

Dear City Council members

By now you have received many letters and communication offering passionate pleas and rational arguments as to why not to pass this

And by now you have probably received at least one, perhaps 2 notices from groups warning of legal action if this ordinance is passed. That is because not only the Northern section of the ACLU seems to be interested in seeking judicial relief but another prominent national civil rights group is currently investigating the possibility of using the amended ordinance as a test case.

Question: since you know or should have been informed as to the critical deficiencies in this law, are city council members seriously interested in wasting taxpayer dollars on several potentially expensive litigation cases? Wouldn't it make more sense to re-examine the law and see if there is a better less invasive non criminal form of relief to resolve this situation? Because quite frankly any court that takes this Constitutional matter seriously is going to ask the question as to whether this is a permissible use of governmental and police powers using a test that is stricter than City Council seems to be applying.

Secondly, note that the judicial relief that will be sought as a result of passage of this ordinance may not be limited to the 2 groups referenced
above. You should understand that in Santa Cruz City ordinances already enacted but passage of this ordinance will additionally violate,are
this country’s treaty obligations under the International Covenant on Civil and Political Rights (ICCPR) as well as Convention Against Torture (CAT). Taking in whole final adoption of this ordinance along with existing ordinances as well as current State Parks as well as SCPD practices, are arguably in violation of Articles 2, 7, 9, 17, 21 and 26 of the ICCPR. If the City Attorney has not considered this, or has not informed City Council or
the City Manager of this prospect, or needs more time to research this possibility, it might be a good idea for Santa Cruz city council members along with the Honorable Mayor to reconsider immediate passage of this law until a later time whereby a better alternative approach can be fully explored and then implemented.

You should have received written communication from Raven Davis which offered a breakdown of citations issued by both Park Rangers and SCPD. Overwhelmingly these citations were issued to homeless people who were simply engaged in activities that are part of the human condition (sleeping, seeking/creating shelter, defecation/urination) and yet due to their condition of being homeless, lacked any other options for relief due to the city lacking sufficient facilities for them to do otherwise. Please note that in addition to the ICCPR, the United States is a signatory to the Habitat Agenda, a product of the 1996 Second United Nations Conference on Human Settlements, which affirms that “homeless people should not be penalized for their status.” The United Nations Conference on Human Settlements, Istanbul, June 3-4, 1996, section 61(b), U.N. Doc. A/CONF.165/14 (1996).

The U.N. Human Rights Council, Report of the U.N. Special Rapporteur on Extreme Poverty and Human Rights, Magdalena
Sepúlveda Carmona, section 36, U.N. Doc. A/66/265 (2011), the Special Rapporteur noted US law has begun to recognize similar (to the international) understanding regarding criminalization of homeless status.“[t]he argument that the punishment of homeless people for behaviours that they have no choice but to perform in public may amount to cruel and inhuman treatment has been accepted in a number of United States jurisdictions. See, e.g. Johnson v. City of Dallas, 61 F.3d 442 (5th Cir. 1995) id at n. 19., Pottinger v. City of Miami, 76 F.3d 1154 (11th Cir. 1996)
Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006). (and note that 2 of these cases stated that homelessness as a status cannot be used to justify discrimination and criminalization of homeless persons. )

In conclusion, it seems that a reasonable City Council would take a cautious approach by simply not adopting of the proposed ordinance. You have been warned about various problems regarding due process (there is none) as well as other Constitutional violations. In addition you are being informed of potential international violations.

If the arguments appealing to City Council members good conscience and compassion are irrelevant then the potential financial and public relations cost might strike a resonant chord. Not only would the City face potential legal challenges on multiple fronts requiring city resources to defend this law but negative publicity regarding city actions would accrue as well. Santa Cruz likes to hold itself out as a progressive, liberal city with international influences and connections. Our small town has 6 sister cities with which we like to exchange cultural and governmental practices. How embarrassing will it be to our city's reputation to have to defend itself on an international level and body about the cruel and dehumanizing practices our community is committing in our legislative war against those without homes?

Unless you amend this ordinance to 1) include due process into the process by only having stay away orders as the result of a judicial and not a law enforcement decree AND 2) to exclude those violations that are the result of the status of being homeless from being considered as applying to any judicial stay away order, then you are urged to vote NO on final adoption of this ordinance.

by G
Wednesday Oct 29th, 2014 11:42 AM
Do tell!

"sister cities"

Is it too early to contact those sister cities?
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