By Matt Tinoco
January 2, 2020 —
When the Supreme Court declined to review a 9th U.S. Circuit Court of Appeals decision that said levying criminal penalties on homeless people for sleeping on public property amounted to cruel and unusual punishment, it left politicians up and down California unsure of what legal options they still have to address growing homeless camps in their cities.
But some 18 cities, mostly in Orange County — plus the county itself — have already agreed to build more and better shelter options for people living on the streets, and will retain legal authority to enforce anti-camping laws in compliance with the 9th Circuit’s ruling.
Those cities and Orange County have signed on to a judicial consent decree overseen by U.S. District Court Judge David O. Carter. Consent decrees are voluntary settlement agreements where a judge supervises ongoing progress made towards the terms of the settlement.
It’s the product of multiple settlements to a lawsuit first filed by advocates for the homeless after an enormous homeless camp with hundreds of residents was ousted from alongside the Santa Ana River near Angel Stadium.
Though advocates initially sued just three cities and Orange County, more than a dozen cities have since opted to voluntarily join the settlement agreement. By settling with advocates and agreeing to judicial supervision, the cities could avoid future litigation while moving the needle on homelessness in their jurisdiction.
Under the settlement, cities must expand their local homeless shelter systems by hundreds of beds, and try to get homeless people appropriate shelter and health care before enforcing anti-camping and other so-called “public nuisance” laws.
The settlements vary jurisdiction to jurisdiction, but they all include a dispute resolution process subject to the discretion of the federal court. They also include provisions to eventually expand the shelter systems beyond the initial requirements.
‘WE CAN RESOLVE THE ISSUE IN FIVE MINUTES’
In September, Bellflower became the first city outside of Orange County to voluntarily enter the consent decree.
At a recent dinner sponsored by the United Way of Orange County and the Illumination Foundation, Carter lauded the agreement. He said it’s a crucial first step that lays the foundation for a legally binding mandate to address homelessness in Southern California.”Any problem that occurs, you come to see the nice federal judge, and we can resolve the issue in five minutes,” Carter said in his speech, (see video above) “Law enforcement couldn’t be happier, the community couldn’t be happier, and the end result is the homeless couldn’t be happier, also, because they’re getting shelter now.”
Besides the 18 cities that have already signed on, Carter said at least 12 other cities in three Southern California counties were in talks about potentially joining the consent decree.
The Supreme Court’s silence on Martin v. Boise, the case the 9th Circuit had ruled on, means the longstanding practice of using police to enforce anti-camping laws is no longer legal in most jurisdictions, said Brooke Weitzman, one of the lawyers for homeless plaintiffs in the Orange County case. She argued the decision means cities finally have to “do something” on the issue of homelessness.
“Cities are really in a position now where they need to choose between working on these collaborative solutions, coming together with their region and joining settlements like ours, or looking down a long, long road of litigation,” Weitzman said.
BOISE RULING A VAGUE, ‘DANGEROUS’ PRECEDENT, CITIES SAY
Dozens of California cities had asked the U.S. Supreme Court to take up the Martin v. Boise case, at least to clarify language in the ruling that seems to bar cities from using police to clear homeless camps from parks, sidewalks and other public areas. They claimed the decision was vague, and set a “dangerous” precedent that would cause conditions to deteriorate in cities across the west.
While the 9th Circuit ruling in the Boise case explicitly banned citywide anti-camping ordinances, it left open the possibility that rules “prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible.”
But the appellate court was silent on what those replacement rules might look like. That left many cities in the position of having to repeal their existing anti-camping ordinances, but without clear guidance as to what kinds of rules would be legal under the Boise decision.
In the city of Los Angeles, city councilmembers proposed repealing and replacing L.A.’s ordinance that prohibits sleeping on public property. The proposed new law would instead restrict sleeping within 500 feet of parks and schools, near driveways and several other locations; it remains pending in committee.
Like many other local officials, Bellflower Mayor Juan Garza closely watched whether the Supreme Court would hear the Boise case. He hoped the high court would clarify its “grey areas.”
In the meantime, Garza said joining the Orange County consent decree gives his city cover to address homelessness without fear of getting sued, either by Bellflower residents who don’t want a shelter to open nearby, or by homeless advocates who say the city is violating homeless people’s civil rights.
‘WE’RE AT THE TIP OF THE SPEAR’
Garza conceded that local government’s longstanding practice of criminalizing homeless residents is not effective, and does little to address the underlying problems that force people onto the street.
Meanwhile, Bellflower residents are becoming more alarmed about the increasing number of people living on the city’s streets. A 2018 survey found that 81% of Bellflower’s residents considered homelessness a “serious issue.”
Garza is optimistic the consent decree will actually make a difference where previous policy has failed.
“The fact that we have a federal judge who has blessed our agreement, which outlines a lot of the guiding principles for us as a city, is very reassuring,” Garza said as he walked through an empty warehouse that will soon become the city’s new homeless shelter.
“We all feel that it’s better to spend resources on addressing the issue rather than legal costs,” he said.
Bellflower aims to open the 50-bed shelter in February.
At that point, Garza said, the city will resume enforcing its anti-camping laws, while following the outreach protocols outlined in the settlement agreement.
“We’re at the tip of the spear. With that comes a lot of weight and a lot of pressure,” he said. “But I think the mandate of our residents to fix this problem weighs on us even heavier than trying to figure out what the rules are. We just cannot wait for that.”