Stay Away Ordinance Casts Long Shadow

The decision by the 9th Circuit Court of Appeal in Martin v. Boise (formerly Bell v. Boise) held that the Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter. The panel also held that, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors on public property on the false premise they had a choice in the matter. That ruling specifically addressed so-called “camping” violations as well as those offenses generally classified as “disorderly conduct”. But, many homeless activists fear that law enforcement will turn to other inaptly named "quality of life" violations as means to prevent the unsheltered from sleeping in public. While statistics have not emerged that clearly support this suspicion, it is well to remember that the City of Santa Cruz continues to carry the onerous “stay away” ordinance on its books and the punitive provisions of that ordinance remain in full force and effect. The ordinance applies to any property maintained by the City's Parks and Recreation Department and provides that:

"Any person who receives a citation or is arrested on city park or beach property or any property maintained by the parks and recreation department for a violation of the Santa Cruz Municipal Code or state law may be ordered by the citing/arresting city officer at the time of the citation/arrest to vacate that park or beach property and not to re-enter said property again for the period of time specified below. Any such order shall apply to both the park or beach property at which the citation/arrest occurs and to any other park or beach property at which such an order was issued within the previous year. Any person who violates such an order from a city officer shall be guilty of a misdemeanor".

Passed in October 2014, Santa Cruz Municipal Code Section 13.08.100, even viewed in retrospect, continues to represent retrogressive lawmaking aimed at our homeless community. The law is an extension of the ordinance approved June 2014 which provided for the issuance of 24-hour “stay away” orders to people who posed some arguable “public health or safety concern” within the city’s parks and open spaces. The ordinance continues to raise serious concerns about the constitutionally guaranteed right to peaceably assemble in traditional public spaces, the right to due process of law and the collective right of people experiencing homelessness to simply exist. A statement issued by the ACLU of Northern California Santa Cruz County Chapter at the time of the amendment’s passage called the ordinance vague and ripe for abuse and urged council to find a different approach to community policing.

Leaving aside for the moment the fact that the stay away ordinance targets people experiencing homelessness almost exclusively, the practical reality is that the ordinance is nothing more than a not so thinly veiled extension of the policy to drive undesirables, i.e., people experiencing homelessness, out of our community. Even more troubling than the broad discretionary power this ordinance cedes to law enforcement and park rangers is the fact that a violation of an Order of Court as provided by this ordinance may be prosecuted as a misdemeanor and could result in a jail term of up to one year and/or a substantial fine. Even the casual observer must concede that the law is overbroad and poorly drafted and may be legally inform on several grounds.

To cite a few examples, the ordinance creates a high risk of “erroneous deprivation of rights” in that (1) the orders will be issued based on vague and overbroad protocols; (2) there is no clear or stated procedure to contest the issuance of any such order and; (3) individuals will have no meaningful access to due process of law before they are judged to be in violation.

But perhaps more troubling still is the specter of the stay away ordinance being used in conjunction with the Camping Services and Standards Ordinance (CSSO) just passed by the City Council. At a time when the natural proliferation of tent camping in response to the continued paucity of adequate shelter exposes houseless residents to undue and unavoidable scrutiny in public spaces, this potential linkage carries with it the clear and present danger of selective enforcement and police overreach. Unsheltered people could be selectively banned by court order from any or all of the safe sleeping spaces being considered by Council; a banishment absent any meaningful due process or opportunity to respond based upon the receipt of "quality of life" citations issued at the virtually unfettered discretion of law enforcement. So do we continue to stand idly by as our homeless residents are facing the ongoing specter of banishment from traditional public spaces or do we, as we once did, appeal to the courts for relief?

Some may recall that in March 2015, the Homeless Persons Legal Assistance Project (HPLAP) sued the City of Santa Cruz on behalf of its homeless residents asking that the court enjoin the enforcement of the stay away ordinance and find it unconstitutional. That lawsuit was dismissed on the grounds that HPLAP lacked the legal standing to sue on behalf of homeless residents. You may also recall that the original lawsuit in Bell v. Boise was also dismissed for lack of standing and yet they persevered and the suit was subsequently revived resulting in the landmark decision to decriminalize sleep. Dare we hope for a similar result here? We lack only the political will and the commitment of resources that our comrades in Boise so admirably displayed.

Many will say, and perhaps rightly, that the courts are poor places for the pronouncement of public policy. I say that courts are not merely constituted to prosecute the guilty but are more properly employed to protect the innocent or, in this case, the disenfranchised and powerless. But like anything else, it is not the system that determines our rights; it is how we use that system. I believe that we can use it to our advantage. It is time for our local courts to weigh in and it is our responsibility to place these issues of due process and equal rights under the law before the court on behalf of both our homeless community and ourselves. It is a time-honored maxim of law that “justice delayed is justice denied.” In my view, justice for our homeless community has been delayed much too long and we can no longer allow it to be denied. Following in the bold footsteps of Bell and Martin may be the way forward.