Lawyer Hired by City Cites Legality of Ban on Camping in Parks : Regulation: He contradicts the city attorney, who has called such restrictions on the homeless ‘oppressive.’

An attorney hired by Santa Monica has issued a sweeping rejection of City Atty. Robert M. Myers’ contention that a West Hollywood-style law prohibiting camping out in city parks is unconstitutional.

Not only is such a regulation legal, but it has been upheld by the U.S. Supreme Court in cases challenging a similarly written national parks regulation, wrote the attorney, Steven L. Dorsey, in an analysis of the issue.

To survive a legal challenge, Dorsey said, the wisest course would be to adopt a law based on the West Hollywood model. In an effort to match the wishes of the Santa Monica City Council, however, he has drafted a law with what he said is a narrower definition of camping in the parks.

The City Council will consider the measure Tuesday.

Dorsey was hired by the city after Myers in January refused to write what he dramatically dismissed as an “oppressive” measure he believed was unconstitutional.

The council has been attempting to define what constitutes using parks as living accommodations since an anti-encampment law was recommended last year by a citizens task force charged with forging a comprehensive plan to cope with homelessness in the city. The task force, like the council, was unable to reach a consensus on a definition of encampment.

“We want an ordinance that addressed itself to (keeping the parks) open for all people to use,” said Rhonda Meister, co-chair of the Task Force of Homelessness. “That’s what we’re really looking for.”

The perceived inability of residents to use the parks because they have been taken over by homeless people is a focus of widespread anger in Santa Monica. One group, Save Our City, is seeking to qualify an initiative for the November ballot so residents can vote on whether they wanted a West Hollywood-style law. The group is going ahead with the initiative effort in case the City Council fails to adopt a camping law or enacts one that members do not think is tough enough.

Four council seats will be contested at the same time. Three incumbents have indicated that they will seek reelection.

Christi Hogin, an attorney with Dorsey’s firm who will explain the proposed law to the council, said: “The West Hollywood ordinance is definitely an option that is available to Santa Monica. Santa Monica has to weigh its priorities and see which way to go.”

The proposed Santa Monica ordinance, Hogin said, defines camping much more narrowly than the West Hollywood law. To meet the definition, she said, a person would have to remain in the park “for prolonged intervals not normally associated with park use” and be accompanied by “personal belonging as well as other factors that could lead one to conclude they are living in the park.”

“If someone goes to the park, spreads out a blanket and takes a nap for the whole afternoon, it would not violate the ordinance,” Hogin explained.

The West Hollywood ordinance makes it easier to conclude that someone is living in the park by using the word or between lists of criteria.

Myers said last week that he remains opposed to the West Hollywood law and the one proposed for Santa Monica.

“We stand by our legal analysis,” he said. “The cases analyzing national parks regulations we don’t think are applicable. . . . We continue to believe the West Hollywood ordinance is unconstitutional.”

Myers contends that the West Hollywood law is vague and could be interpreted as prohibiting babies from sleeping in the park or families from having cookouts. Thus, he said, the law would be discriminatory if used to harass one class of people: the homeless.

In Myers’ view, the least society can do for homeless people is to allow them to occupy public spaces without using laws to roust them when they have nowhere else to go.

The stark differences between the advice of their city attorney and the word of the outside counsel puts the council majority in an unusual position. Five of the seven council members are aligned with the powerful tenants’ rights group that dominates city politics and are staunch supporters of Myers, who wrote the city’s tough rent-control law and whose legal acumen is widely credited with successfully defending it from legal attacks for more than a decade.

It is not yet clear if Tuesday’s meeting will be a public showdown or if the council will be able to avoid bloodletting on an issue that incites passions on all sides.

Councilman Herb Katz, a frequent critic of Myers, said it is evident to him that Myers gave the council an incomplete analysis of the law.

“It just goes to show that Myers was playing politics and giving his personal opinion,” Katz said. “The man should be fired.”

According to legal research by Dorsey, the key cases concerning whether government has the right to keep people from camping out in parks stem from a 1984 U.S. Supreme Court decision rejecting a claim that a National Park Service encampment law was unconstitutionally vague.

Since then, two other cases have been decided by District of Columbia courts along the same lines. The last one, a 1989 case, upheld the conviction of a man who spent just one night in a park. The court ruled that someone stretched out with bedding material and his belongings around him “asleep for at least two hours, appeared to be using the park for at least temporary living accommodations. Though he had broken no ground and started no fires, like an archetypal boy scout or backpacker, he appeared to be camping overnight.”

Myers has said those cases don’t apply to the city’s situation.

Closer to home, a state Court of Appeal panel recently issued an opinion that, although not a precedent, explores a court’s attempt to balance the interests of the community to use the parks with the rights of the homeless to have someplace to stay.

The case involved a challenge to a San Francisco law prohibiting camping in city parks. The court, in rejecting a temporary injunction, found that the city’s interest in preserving the parks for public use is paramount.

“The harm to the homeless from being deprived of camping space is tangible, but the harm to the city from ceding public parks to homeless campers would be just as real and would affect a greater number of people,” the court wrote.