By: Tim Houchen
September 14, 2018 —
On September 4, 2018, the 9th Circuit Court of Appeals affirmed that the state, county or cities may not “criminalize conduct that is an unavoidable consequence of being homeless – namely sitting, lying or sleeping on the streets” when there are more homeless persons than available shelter beds or in the absence of other adequate alternatives. Alternatives must be practically accessible to a given individual, taking into account disability, religious beliefs, or other restrictions. See the official court papers.
The 9th Circuit reasoned that sitting, lying down, and sleeping in public is unavoidable conduct that is inseparable from a homeless persons status when they have no other place to do these things. To punish that conduct is akin to punishing a person’s homeless status – a result that cannot be tolerated under the 8th Amendment. This rationale can be, and has been applied to laws ranging from camping bans to disorderly conduct laws.
This case makes it illegal for our County and our Cities to punish homeless people for sitting, lying down, or sleeping outside when they have no option to do so inside. This is what has caused a multitude of lawsuits to blow up around the issue of homelessness here in Orange County and elsewhere around the State of California.
Furthermore, Federal Judge David O. Carter, has threatened the County of Orange and all 34 Cities with issuing a Temporary Restraining Order on jurisdictions that continue to enforce anti-camping laws on homeless people when not enough shelter beds are available as an option for them. The TRO would prevent municipalities from enforcing local ordinances that make it unlawful to “camp” or sleep in public.
Judge Carter’s threat to impose sanctions on those non-compliant municipalities may not even be necessary today given the more recent 9th Circuit Court ruling that clearly defines the same laws that Judge Carter was trying to uphold. Even the Judge himself has quipped that the ruling makes, “Jones the law of the land.” The Judge was referring to a case in L.A. , Jones vs. Los Angeles, where homeless people were unlawfully cited for camping violations because they had nowhere else to go.
Homelessness has become perhaps the greatest challenge that our communities in Orange County are faced with today, but there are communities of homeless people that are in full crisis and struggling to survive from one day to the next. Most of us would like to believe that being faced with such a challenge and seeing such crises in our communities that we might come together and work for solutions that would address this problem. But, we have not done so thus far.
Is this not how a community should work? Sharing responsibility for each other and coming together to face our greatest challenges, coming to the aid of a neighbor in crisis. When people in our communities are experiencing poverty, homelessness or some type of economic crisis, they want and need the same that anyone would if they too were in crisis: to be met with support, respect and compassion.
Most of us can agree that it just doesn’t make sense to arrest people for being homeless, now we are seeing that it’s not even legal. I think we all can agree that we don’t want to see people sleeping in our streets and in our parks. But, up until this point, we have only invested in policies that are far too expensive and these policies have failed. We know this because the numbers of visibly homeless persons continues to grow exponentially. These failed policies have actually made things worse.
When a person experiencing homelessness faces criminal punishment for simply trying to survive on the streets, their resulting criminal records only make it more difficult for them to find work or even housing. Unfortunately, our communities are relying on law enforcement to handle all issues regarding homelessness big or small. Our cities create laws to frustrate homelessness and the police are called in every instance. If a real law has been broken, an arrest can be made. But, more often than not, the police will just make the homeless persons go somewhere else. Since they have nowhere to go they often end up back in the same place. It’s a very expensive short-term solution. See Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities.
There is a better way. We have seen it in city after city where laws were changed and policies were made that reduce the reliance on law enforcement and instead these cities have invested in affordable and supportive housing. It gets homeless people off of the streets and out of the parks more quickly and efficiently. We know that housing works when it comes to reducing homelessness because housing is a more stable place for homeless people to find work, address substance abuse, and improve physical and mental health and well-being. A chronically homeless person can be placed in housing at nearly half of the cost of leaving them on the street including the cost of the housing and supportive services and treatment. See the UCI Cost Study on Homelessness in Orange County.
The federal government has invested millions of dollars into Orange County over the years to help us end homelessness, about $300 Million since 1996. With all of that money and the increases in the public policy of creating and enforcing laws to frustrate homelessness, just take a look around and see where it has taken us. The federal government knows that criminalizing homelessness is detrimental to achieving their goal of ending homelessness. They know that criminalizing homelessness can never end the problem, it only perpetuates a cycle of homelessness. So, they are now for the first time offering monetary incentives to cities that back away from criminalizing homelessness. See Scoring Points: How Ending the Criminalization of Homelessness Can Increase HUD Funding to Your Community
Homelessness has grown into a much more complex issue over the years. Much too complex to be handled by the policies of one department in our cities. More and more we are asking our police chiefs to take on more and more of a problem that they are not fully equipped for handling and our public safety resources are being spread much too thin. Remember that law enforcement is very expensive.
If housing is the answer for reducing our homeless problems, then would it not make sense that we have another department sharing that responsibility? I know that I would prefer that police officers in my city acted as agents of the law, not as agents of real estate. Our police do a great job now, but asking them to do more is not the solution especially when doing more means assigning them duties that are not within the police officers job description.
A city must have a much more balanced approach to addressing issues of homelessness today than in the past. A public policy on homelessness is fine for creating a response for when homelessness shows up, but heck let’s face it, homelessness is running all over us now. What is needed is a good plan for getting rid of it. The courts are not going to allow us to enforce our way out of the problem any longer and that’s a good thing. It costs too much and there is no proof that law enforcement alone has ever worked in the past anyway.
Every city needs a good plan for addressing homelessness. Our County had a 10 Year Plan To End Homelessness, but they decided to scrap it. The problem was that they never told anyone when they did decide to scrap it and that’s the mess that we are stuck with today. A plan for any city might involve multiple departments working towards common goals. The good news is that our cities already have the structure in place to facilitate local homeless plans.
Community Development, Community Services and Planning departments work together in most city governments to provide housing and services for low-income households and for elderly and disabled residents already. Many cities have added personnel to their staffs with expertise in managing homeless services and housing. By spreading the responsibilities across multiple departments the role of the police department is slightly diminished, but our Cops will no longer be tasked with being the caretakers of the homeless. Police will go back to catching the bad guys and our cities will save a little money too in the process.
A good plan for addressing homelessness in a city should be comprehensive and might be incorporated into the city’s General Plan. State law requires every city to have a General Plan. A General Plan represents the community’s view of its future and is often referred to as a blueprint for growth and development. A General Plan is composed of seven elements, one is the Housing Element. By law, every city and county in California must adopt a Housing Element as part of its General Plan. The purpose of the Housing Element is to ensure that local governments adequately plan to meet the housing needs of all people within the community regardless of their income.
Our cities have all of the necessary moving parts to facilitate an effective plan for addressing homelessness. One thing that Judge Carter has insisted that our County and Cities do is work together more collaboratively. It is extremely necessary that our cities collaborate and form partnerships with other entities that are also actively involved with ending or reducing homelessness. Collaborative partners would include nonprofit organizations, other regional stakeholders and other layers of government like neighboring cities, the county, state and federal governments. See Home, Together: The Federal Strategic Plan To Prevent And End Homelessness.
Our cities can reduce homelessness and they must in order to preserve the quality-of-life that we have grown to expect in the communities where we live and do business. A city-wide plan for addressing homelessness localizes the effort, gives communities greater local control over outcomes and engages members of the community to take an active role in creating solutions to one of the greatest challenges that our cities face today. When we work together within our communities and collaboratively with other regional entities and other layers of government, we can build partnerships that can provide support and increase accessibility to additional funding and resources that are necessary for success.
Meeting the challenges of ending homelessness today is a step in the right direction for building stronger communities tomorrow. Let’s start by taking back our streets and neighborhoods and making them healthier, happier and safer places to live. Let us once again be responsible for and care for one another with compassion and respect. If a neighbor struggles with a financial crisis, let’s find ways to help and support them before they become homeless.
If only we were more indifferent to the condition of homelessness than we are to those who are experiencing it, we might find the solution that makes life better for all of us.
Stop criminalizing people for being homeless.