Santa Ana Law on Camping to Be Argued

The United States attorney general, a trio of retired state Supreme Court justices and some of the country’s most prestigious constitutional law professors are throwing their weight behind the homeless.

But more than 90 city attorneys from throughout California, plus several conservative legal foundations, are standing firmly behind the city of Santa Ana in a showdown that comes Thursday. The state Supreme Court will then begin its review of a city ordinance that would prohibit camping or the storing of belongings on public property.

The law, which critics say effectively expels the homeless from Santa Ana, was enacted in 1992 but overturned by a state appellate court that sharply derided it as an unconstitutional “punishment for poverty.”

Now, the attention of cities throughout California and the nation is riveted on the Santa Ana case, which legal experts say could help resolve the issue of anti-homeless ordinances once and for all, possibly in front of the U.S. Supreme Court.

“There’s no doubt that whether or not the regulations on the books in many cities will be allowed is going to depend on this case, and if this is allowed, there’s no doubt that many cities are going to adopt similar ones,” said Erwin Chemerinsky, a constitutional law professor at the USC School of Law.

Increasingly frustrated by growing homeless populations and the crime, public health hazards and eyesores that can accompany life on the street, more and more cities are passing laws to push the homeless off public property.

In recent years, Miami, Dallas, Baltimore, San Francisco and Seattle have all passed ordinances directed at the homeless that have landed in the courts.

Santa Ana’s case marks the first time the United States has filed a brief on behalf of the homeless, homeless advocates said. But the government filed the brief only last week, and it remains unclear whether the application will be accepted or denied, a clerk of the court said Friday.

Proponents of the law say the appellate court decision on Santa Ana’s ordinance ties cities’ hands in their efforts to govern and wrongly creates a constitutional right to live on public property.

“If homeless people are given a constitutional right to camp, what does it do to the quality of life in our cities? What does it do to our liability?” asked Santa Ana Assistant City Atty. Robert Wheeler, who will argue the city’s case in front of the state’s highest court Thursday.

Orange County Deputy Dist. Atty. E. Thomas Dunn Jr., who will also ask the court Thursday to overturn the appellate ruling, said the city “ought to have a right to keep (public areas) clean for the rest of us. There’s no reason why there ought to be a Republic of the Homeless, like an abdication of a piece of territory to those who are above the law.”

But those arguing on behalf of the homeless say there are many ways cities can keep public areas clean, including passing less restrictive laws banning camping in parks or forbidding people to erect shelters or tents, both unchallenged laws already on Santa Ana’s books.

“By making it a crime to use sleeping bags and blankets in every public area of the city at a time when the city has a substantial population of people who have no place to house themselves, Santa Ana is essentially making it a crime to be homeless in the city,” said Harry Simon, an attorney with the Legal Aid Society of Orange County who will argue the case for the homeless with two other attorneys.

“We’re not claiming that the homeless are some sort of protected class. What we’re saying is that this is a pretty transparent attempt to drive the homeless from the city,” Simon said. “They can’t drive anyone from the city. They couldn’t decide they wanted to drive blue-eyed people from the city.”

If the court upholds the law, homeless advocates warn, cities will scramble to enact similar ordinances for fear of becoming the enclave into which other cities force their poor.

Orange and Fullerton enacted similar laws following Santa Ana’s but have not enforced them under threat of litigation, and at least four other Orange County cities were poised to do so when the state court put Santa Ana’s ordinance on hold.

In Southern California alone, five other cities passed anti-homeless ordinances in the same 18-month period, said Maria Foscarinis, executive director of the National Law Center on Homelessness and Poverty in Washington. Those cities are West Hollywood, Long Beach, Santa Monica, Beverly Hills and Santa Barbara.

“If Santa Ana is pushing out its homeless population, those people will have to go somewhere, and the fear is they’ll go into the neighboring cities,” Foscarinis said. “Nationally, as municipality after municipality adopts this kind of ordinance, our fear is that homeless people will be banished and not permitted to remain anywhere.”

Advocates for the homeless contend that Santa Ana’s law violates the state and federal constitutions by punishing people because of their “status” of homelessness and restricting their right to travel. It also is unconstitutionally vague and overly broad, they say.

Defenders of the ordinance say it legally punishes the conduct of living in public places, not the status of being homeless, and that many people choose to sleep outside. Anyone who can prove they did everything they could to find other options would not be prosecuted, Dunn said.

The Santa Ana ordinance prohibits camping, use of camping equipment, including sleeping bags or blankets, or storage of any personal belongings on any public property.

By the time the city adopted the sweeping ordinance in 1992, hundreds of people had set up camp in the Civic Center area, erecting tents and shelters. Some relieved themselves, had sex, and used and sold drugs in view of government employees, said Wheeler, whose City Hall office borders the plaza.

“I can’t tell you how many times I had to step around pools of feces and pools of urine,” he said. “There were rats out there.”

By the city’s estimate, there are 3,000 homeless people in Santa Ana, which has only 330 shelter beds.

Enactment of the law followed years of increasingly hostile actions against the homeless by the city staff.

A 1988 city memo details instructions to a city “Vagrancy Task Force” to confiscate property and sleeping bags stored by homeless people. And in August, 1990, Santa Ana police arrested 64 homeless people in the Civic Center area, took them to a nearby stadium where they were marked with numbers, then chained them to bleachers. Those who were homeless were cited for offenses ranging from littering to jaywalking.

City officials argue that none of the actions taken by city workers were part of a formal city policy. The anti-camping ordinance does not discriminate against the homeless, Wheeler said, and applies equally to Boy Scouts and business people.

But challengers say the chain of events leading to the law, and the way it was enforced, indicate that city officials created it specifically to force homeless people from the city.

“It could be applied to judges and lawyers and businessmen, but the fact of the matter is people aren’t sleeping in the Santa Ana Civic Center because they think it’s a neat place to camp,” Simon said. “This law is pretty obviously aimed at the homeless, particularly in light of the city’s long history of attempts to rid itself of homeless.”

The criminal cases of about a dozen homeless people cited under the law were stayed when the Orange County public defender’s office challenged the constitutionality of the ordinance. That case has been consolidated with the civil matter and will also be argued in front of the state Supreme Court by Dunn and Deputy Public Defender Kevin Phillips.

If the law is upheld, the Orange County district attorney’s office will be free to proceed with the prosecution of those cases plus at least a dozen others involving homeless people arrested under the ordinance in early 1993, Phillips said.

Ninety California city attorneys endorsing Santa Ana’s position joined in a friend-of-the-court brief drafted by San Francisco Deputy City Atty. Michael E. Olsen.

Several conservative legal groups are also siding with Santa Ana, including the Sacramento-based Pacific Legal Foundation and Criminal Justice Legal Foundation, and the Washington-based American Alliance for Rights and Responsibilities.

“If you accept the basic premise from the Court of Appeal, then where do you draw the line? On a bad weather night, I suppose you’d have to make the argument that you have to open your public buildings to the homeless,” said Anthony Caso of the Pacific Legal Foundation, which predominantly defends the rights of property owners. “Simply because an individual has a need, that’s not converted into a right to be fulfilled at public expense.”

The stakes are high enough that the U.S. government argued in a 24-page brief filed with the court last week that the Santa Ana ordinance violates the Eighth Amendment by “criminalizing homeless persons’ sleeping in public even when no shelter is available.”

The federal government has “a clear responsibility . . . to engender respect for the human dignity of the homeless,” said the brief, filed by Deval L. Patrick, assistant U.S. attorney general for civil rights.

Also filing briefs on behalf of the homeless were Foscarinis’ organization, a group of 40 of the nation’s top constitutional law experts, three retired state justices, the American Civil Liberties Union and a dozen youth and religious organizations.

“There’s a responsibility that a government has--a country, a state, a city--to take care of its own and not to say, ‘The way we’re going to solve this is to force these people to leave our jurisdiction,’ ” said retired state Supreme Court Justice Cruz Reynoso, now a law professor at UCLA who joined in one of the briefs.

“If the Supreme Court of California rules that they can’t do this, then it’s going to force the cities to put pressure on Washington, to start trying to resolve the issues of the homeless in a more global way. . . . The issues are very important social, economic and political issues, and as happens so often it has landed in the lap of a court, and the court will have to struggle with it.”