HomeMy WebLinkAbout2021-03-23; City Council; ; Legal Risks Associated with Removal of Illegal Encampments During COVID-19CA Review ___AF___
Meeting Date: March 23, 2021
To: Mayor and City Council
From: Celia Brewer, City Attorney
Scott Chadwick, City Manager
Staff Contact: Allegra Frost, Deputy City Attorney
allegra.frost@carlsbadca.gov, 760-434-2891
Matt Magro, Police Captain
matt.magro@carlsbadca.gov, 760-931-2157
Subject: Legal Risks Associated with Removal of Illegal Encampments During
COVID-19
District: All
Recommended Action
Receive this informational report, provide any desired direction to staff on this issue.
Executive Summary
During the City Council meeting on Feb. 23, 2021, the City Council approved a minute motion
requesting additional information regarding the clearing of encampments during COVID-19.
This staff report is intended to provide the City Council with an overview of the pertinent legal
and practical issues related to this issue. It includes a summary of Martin v. City of Boise, the
most significant recent legal ruling on this issue, the guidance the Centers for Disease Control
and Prevention has provided regarding unsheltered homelessness during the COVID-19
pandemic, two recent U.S. district court opinions regarding the CDC guidelines, and the current
status of encampment removals and camping citations in Carlsbad.
Discussion
Background
Carlsbad Municipal Code Section 8.36.030 prohibits camping on public property. Historically,
the City Attorney's Office has prosecuted repeat unlawful camping cases under CMC Section
1.08.010(B)(3), under which three or more of the same municipal code offenses within one year
constitute a misdemeanor. These cases have typically been resolved through plea agreements,
which generally include three years of probation, a stay-away order from the location of the
unlawful encampment, and often jail terms, either stayed sentences or actual time in custody.
The City Attorney's Office has also added, as a condition of probation, that defendants make a
certain number of contacts with resources available to help the homeless, such as Carlsbad's
Homeless Outreach Team.
March 23, 2021 Item #9 Page 1 of 6
Martin v. City of Boise
On April 1, 2019, the U.S. Court of Appeals for the Ninth Circuit issued its final decision in
Martin v. City of Boise, which limited the government’s ability to criminally prosecute
individuals for sleeping outside on public property when those people lack meaningful access to
shelter. The court found that an ordinance violates the cruel and unusual punishments clause of
the Eighth Amendment if “it imposes criminal sanctions against homeless individuals for
sleeping outdoors, on public property, when no alternative shelter is available to them.”
Just as a jurisdiction cannot “criminalize the state of being ‘homeless in public places,’ the
[jurisdiction] may not ‘criminalize conduct that is an unavoidable consequence of being
homeless — namely sitting, lying, or sleeping on the streets.’”
Elaborating, the court stated,
“… [S]o long as there is a greater number of homeless individuals in [a
jurisdiction] than the number of available beds [in shelters],” the
jurisdiction cannot prosecute homeless individuals for “involuntarily
sitting, lying, and sleeping in public.” That is, 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.
However, the court clarified that its ruling was narrow, and that cities do not need to “allow
anyone who wishes to sit, lie or sleep on the streets … at any time and at any place.”
Instead, the court explained:
Naturally, our holding does not cover individuals who do have access to
adequate temporary shelter, whether because they have the means to pay for it
or because it is realistically available to them for free, but who choose not to use
it. Nor do we suggest that a jurisdiction with insufficient shelter can never
criminalize the act of sleeping outside. Even where shelter is unavailable, an
ordinance prohibiting sitting, lying, or sleeping outside at particular times or in
particular locations might well be constitutionally permissible. … So, too, might
an ordinance barring the obstruction of public rights of way or the erection of
certain structures.
Martin was not a dramatic change in the law. Other federal courts had previously concluded
that cities cannot criminalize “camping” in public when there are not enough shelter beds
available in the city for the entire homeless population. (See, for example, Jones v. City of Los
Angeles, U.S. Ninth Circuit Court of Appeals; Anderson v. City of Portland, U.S. District Court,
Oregon; and Cobine v. City of Eureka, U.S. District Court, Northern California.) Otherwise, the
cities were essentially criminalizing sleeping in public, which is unavoidable for individuals
without housing when there are not enough shelter beds available.
In summary, the Martin v. Boise ruling requires officers to verify that shelter is available to an
individual before issuing the person a citation for illegal camping on public property. If no
shelter beds are available to the individual, the officer should not issue the citation. However,
Martin left open the possibility that cities could enact or enforce ordinances barring the
March 23, 2021 Item #9 Page 2 of 6
obstruction of public rights of way or the erection of certain structures, provided the ordinance
does not punish “a person for lacking the means to live out the ‘universal and unavoidable
consequences of being human.’”
Pre-COVID-19 procedures for camping citations and encampment abatement
In response to Martin, the Carlsbad Police Department directed officers not to ticket or arrest
anyone for unlawful camping anywhere in the city between the hours of 9 p.m. and 6 a.m.
under Carlsbad Municipal Code sections 8.36.030 or 11.32.030 subsection 15. In addition, the
Police Department directed officers not to ticket or arrest anyone for camping in city parks, not
including beaches, between the hours of 8 a.m. and 10 p.m. (Carlsbad Police Department
Training Bulletin #2019-01; dated Jan. 10, 2019.) The only exception was that officers could cite
someone for unlawful camping if the person indicated that they had realistic access to
adequate temporary shelter, but they chose not to use it.1 However, officers could issue
citations under CMC 11.32.030 subsections 8 and 9, for entering a public park that was closed
or for being in a park after hours.
Unattended personal property located on public property and belonging to an individual
experiencing homelessness, including encampments, was addressed in accordance with
department Policy No. 464.4 - Personal Property. When police encountered an unoccupied
encampment or found unattended personal property that reasonably appeared to belong to an
unsheltered person, the homeless liaison officer was notified and the Homeless Outreach Team
would post a 48-hour notice that the property must be removed. Officers on the team would
return at the time indicated on the 48 hour-notice to collect any remaining personal property
for storage and Urban Corps or Public Works staff would remove trash and unsanitary or soiled
items. During the clean-up, the officers would post a notice providing information about where
and how the property could be reclaimed. All personal property was stored for 60 days, again in
keeping with the department policy.
CDC and State COVID-19 guidance for addressing homelessness
The U.S. Centers for Disease Control and Prevention issued interim guidance for homeless
service providers and local officials regarding homelessness and COVID-19 on May 10, 2020. 2
The CDC advised that:
In the context of COVID-19 spread and transmission, the risks associated with
sleeping outdoors or in an encampment setting are different than from staying
indoors in a congregate setting such as an emergency shelter or other
congregate living facility. Outdoor settings may allow people to increase physical
distance between themselves and others. However, sleeping outdoors often
does not provide protection from the environment, adequate access to hygiene
and sanitation facilities, or connection to services and healthcare. The balance of
1 Due to the limited number of shelter beds available in the North County region and the eligibility restrictions
imposed by those facilities, it is challenging for officers to establish that a person has access to adequate
temporary shelter and chose not to use it.
2 https://www.cdc.gov/coronavirus/2019-ncov/community/homeless-shelters/unsheltered-
homelessness.html#prevention.
March 23, 2021 Item #9 Page 3 of 6
risks should be considered for each individual experiencing unsheltered
homelessness.
The CDC recommended that people who are living unsheltered or in encampments be allowed
to remain where they are if individual housing options are not available. That’s because clearing
encampments can cause people to disperse throughout the community and break connections
with service providers, increasing the potential for the spread of infectious disease. The CDC’s
guidance did not distinguish between public or private property.
The State of California also issued guidance for responding to individuals experiencing
homelessness during the COVID-19 pandemic and advised communities to not clear
encampments.3 The state’s guidance directs that, “[U]nless individual housing units are
available, do not clear encampments during community spread of COVID-19. Clearing
encampments can cause people to disperse throughout the community and break connections
with service providers. This increases the potential for infectious disease spread.”
Although the CDC and state guidance are not legally binding, at least two courts have relied on
the guidance to conclude that cities may not continue their pre-COVID-19 practice of removing
and cleaning up encampments.
Santa Cruz Homeless Union decision
The City of Santa Cruz issued an executive order Dec. 17, 2020, temporarily closing a city park
because of nuisance conditions created by a large encampment. (Santa Cruz Homeless Union v.
Bernal, U.S District Court, Northern California.) Prior to the city’s decision to close the park, the
city was providing trash and hygiene resources and encouraging persons living in the
encampment to implement a socially distanced encampment layout.4 Eventually, conditions in
the park deteriorated to the extent the city felt it necessary to close the park. The city provided
the occupants of the park with advance written notice of the closure and attempted to locate
available shelter resources.
As a result, a homeless union filed a lawsuit against the City of Santa Cruz requesting an
emergency temporary restraining order and a preliminary injunction halting the park’s closure
on the ground that closing the park at the height of the COVID-19 pandemic without providing
alternate safe housing placed them in danger, in violation of the Fourteenth Amendment to the
U.S. Constitution.
The court granted both the emergency temporary restraining order and the preliminary
injunction, concluding that the closure of the park while “the COVID-19 pandemic is surging and
the City's homeless shelters are full, would leave the homeless persons camping in those locales
more vulnerable to COVID-19 than if they were allowed to remain in the encampments.” In
reaching its conclusion, the court weighed whether closing the park would in fact put the
homeless persons living in the park at greater risk of contracting COVID-19. The court relied on
the CDC’s interim guidance regarding unsheltered homeless persons during COVID-19 and the
3 See https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/Protocols-
Homeless-Pop.pdf. See also,
https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/flowchart-COVID19-
homelessness.pdf.
4 https://www.cityofsantacruz.com/home/showpublisheddocument?id=82590.
March 23, 2021 Item #9 Page 4 of 6
state’s Regional Stay at Home Order, which states that individuals shall stay at home or at their
place of residence, in concluding that closing the park would put the homeless at greater risk of
contracting COVID-19.
However, the court explained that the preliminary injunction was based on the dire state of the
pandemic that existed in Santa Cruz as of Jan. 20, 2021. The court went on to explain that, “(A)s
vaccines roll out and the pandemic eases, dispersal of homeless persons from the
encampments may no longer put them at greater risk for COVID-19, and re-evaluation of the
injunction will be necessary,” and, “As the COVID-19 crises [sic] recedes, the preliminary
injunction will need to be revisited.” A status conference in the case is scheduled for March 30,
2021, to review the conditions at the park and the people residing in the encampment to
determine whether the preliminary injunction should remain in place.
Sausalito/Marin County decision
On March 1, 2021, a U.S. district court in Northern California reached a similar conclusion as the
court in the Santa Cruz Homeless Union case. In Sausalito/Marin County Chapter of the
California Homeless Union v. City of Sausalito, the City of Sausalito planned to remove an
encampment from a local park, move the occupants to another site and imposed a ban on
camping during the day.
The court granted a preliminary injunction prohibiting the city from enforcing the day camping
prohibition and closing or clearing the encampment. The court noted that the injunction against
the day camping prohibition would need to be revisited as the COVID-19 pandemic recedes.
The court also allowed the city to return to court with evidence that the new proposed location
for the encampment is safe and that the move could be safely accomplished in order to have
the injunction prohibiting the city from clearing the park encampment rescinded or modified.5
Current COVID-19 procedures for camping citations and encampment abatement
Because of the COVID-19 pandemic and the CDC and state guidance, the Carlsbad Police
Department has not been and is not currently issuing citations to unsheltered persons for
camping on public or city-owned property that is open to the public, such as city parks, trails
and sidewalks. The Police Department does not enforce city ordinances against camping on
individuals trespassing on publicly owned property that is not open to the public, such as closed
city facilities. The Police Department also enforces North County Transit District ordinances
applicable on NCTD property, including no smoking or loitering. For privately owned property,
the city continues to utilize trespass authorization agreements with property owners to help
officers enforce trespass laws.
Since the start of the pandemic and in accordance with CDC guidance, the city has not removed
or abated active encampments. For abandoned encampments, the city continues to post 48-
hour notices before cleaning up and removing encampments following the procedures
described above, which include storing personal property. The city does not abate
encampments located on private property.
5 The plaintiffs alleged that the location where the city wanted to move the encampment was unsafe because it
was located adjacent to a boat-crushing operation. Because of the short timeframe in which to obtain a
preliminary injunction, the record was unclear regarding the relative safety or danger of living next to the boat
crushing operation.
March 23, 2021 Item #9 Page 5 of 6
In light of these two district court decisions allowing people to continue camping in public parks
during the COVID-19 pandemic, staff recommends a cautious approach to removing
encampments. The Carlsbad Police Department’s current COVID-19 enforcement and
encampment clean-up procedures align with the recommendations described in this report. If
the City Council would like to consider removing or cleaning any encampments, the Police
Department will need to work with the City Attorney’s Office to evaluate each situation on a
case-by-case basis to assess the risks. The city prosecutor will exercise impartial judgment and
objectivity to determine whether to prosecute a case.
Next Steps
Staff awaits the City Council’s direction on this matter, if any action is desired.
Fiscal Analysis
This is an informational report with no financial impact.
Environmental Evaluation
This action does not constitute a “project” within the meaning of the California Environmental
Quality Act under Public Resources Code section 21065 in that it has no potential to cause
either a direct physical change in the environment or a reasonably foreseeable indirect physical
change in the environment and therefore does not require environmental review.
Public Notification and Outreach
Public notice of this item was posted in keeping with the state's Ralph M. Brown Act and it was
available for public viewing and review at least 72 hours before the scheduled meeting date.
Exhibits
None
March 23, 2021 Item #9 Page 6 of 6
Tammy Cloud-McMinn
From:
Sent:
To:
Subject:
Jean Walker <JeanWalker1@roadrunner.com>
Monday, March 22, 2021 1 :57 PM
All Receive -Agenda Item#.!]_
For the Information of the:
J ITY COUNCIL
Date.. ¥3/;; I CA :a;c --
M~tthew Hall; Cori Schumacher; Keith Blackburn; Priya Bhat-Patel; Teresa Acosta;
Attorney; Manager Internet Email; City Clerk; Holly Nelson; Gary Marshall
. City Council Agenda items #9 and 10
https:ljpatch.com/california/santacruz/santa-cruz-homeless-camping-law-passes-changes-are-coming
Hi. My name is Jean Walker. I am a 16 year resident of Carlsbad. I am very interested in the homeless
situation in Carlsbad and have specific issues with agenda items #9 and 10 on Tuesday, March 23 's agenda.
Agenda item #9 provides a background regarding the legal issues surrounding homeless encampments. It is
unclear to me why this update does not include anything the City of Santa Cruz did after the initial lawsuit in
December 2020. A quick "google" search brought up the article above regarding Santa Cruz passing an
ordinance that complies with both the Boise and Santa Cruz decisions. I would encourage all of you to read
through the article and contact the Santa Cruz City Council, City Attorney and City Manager regarding what
they did to address this issue il;i a legal manner. This ordinance in Santa Cruz was considered the week of
March 10, 2021.
As allowed under both the Boise and Santa Cruz decisions, the Santa Cruz City Council banned camping in
public places such as beaches, public parking lots, their downtown area, and limited camping hours to
nighttime. The ordinance allows camping only from 8 a.m. until 8 p.m. Some areas of Santa Cruz were
specifically prohibited from all camping due to cleaning, health and safety, maintenance and envfroruriental
concerns. These areas including prohibiting camping at neighborhood and community parks, city owned
oceanfront areas and beaches, downtown Santa Cruz, specific lagoon and canyon areas, areas within 75 feet of
trails in open space areas, bike and pedestrian paths along a river area, areas that contain city equipment, areas
that pose a safety hazard or accessibility issue for first responders, endangered species areas, and other areas, as
necessary.
Campers are prohibited from starting fires, must keep belongings within a 12xl2 foot space per person, abide
by trash limitations, are prohibited from leaving out needles, car tires, bike parts and gas or generators. Those
who ignore the orders are subject to misdemeanor violations.
The City of Santa Cruz reserves the right to sweep encampments, with storage provided for displaced homeless
campers. These restrictions all also comply with CDC guidelines. ·
There are many, easy actions that Carlsbad could take to deal with the homeless in our community. First, work
with the Carlsbad Geneological Society to find relatives of the homeless. Often, a distant family member will
be willing to house a homeless relative, if the person is only made aware of the homeless person's
situation. Similarly, many people are very willing to pay for a rehab bed for a family member who is
experiencing homelessness, if they only knew about the situation. There is software currently being used to
match foster youth with "long lost" relatives. Use that same technology to find "long lost" relatives of
homeless people.
The City could pay for additional resources to patrol the lagoon trails and work with the existing hiking groups
in the area regarding reporting of homeless camping in that area. Regular maintenance of the vegetation in the
lagoon area is a natural deterent to camping.
1
The City of Carlsbad currently contracts with a vendor to provide landscape maintenance throughout the ·
City. Work with those landscapers to thin out vegetation in areas known to attract homeless camping. This not
only is a natural deterrent to homeless encampments, it creates healthier vegetation that requires less water and
is therefore more environmentally friendly. Additionally, as regular maintenance of vegetation deters homeless
camping, it also creates a much safer work environment for landscapers, who do not have to be concerned about
mentally ill or drug addicted people who may be in the brush.
Many cities, including Carlsbad, have for years deterred homeless from living in RV's on our
streets. Currently, Carlsbad prohibits overnight street RV parking without a permit There are other things
Carlsbad could do to deter camping including replacing full size bus benches with ones that have a divider in
the middle, which makes these benches uncomfortable for sleeping. Improved lighting, particularly in areas
known to attract homeless camps is another natural deterrent.
The City could contract with surrounding cities' homeless bed resources in order to comply with some of the
restrictions under Boise. Father Joe's has beds for contract, as do many other organizations. It is my
understanding that a legal analysis of what IS allowed has not been adequately provided to the HOT Team
members. For example, a HOT Team member may identify a bed in Escondido for a Carlsbad homeless
person, but the homeless person says they will only go to a bed in Carlsbad. Does that mean that the bed in
Escondido is now considered "unavailable" under Boise. It would be good for the City to request a legal
opinion from the Attorney General's officer regarding this specific issue ..
Agenda item #9 provides an update of the legal issues via the Boise and Santa Cruz decisions, but it does not
give a full picture of the liability created by allowing homelessness in the city. Recently, a homeless person set
fire to the hillside on Park Drive. If someone's house burned down and the City was aware of fires being
started illegally in the area by this same person, the City could potentially be sued by homeowners. Illegal fires
are regularly reported in the lagoon area. If one of those fires gets out of control and bums down houses, the
City very well could be found liable for not clearing out the homeless encampments where those fires are
happening.
The City should work with local business owners to improve lighting at local businesses where camping is
happening. Koko Beach restaurant went out of business several months ago. There is a regular tent on the
porch entry of that restaurant. The owner could improve lighting and take other action to deter homeless from
camping there. Several years ago, there was a murder at the old Stag and Lion property. The property owner
could easily have been held financially responsible for that death because it happened on their property, which
they knew was hosting a homeless encampment. They lucked out and no relatives came forward to sue, but the
liability was still there. The City of Carlsbad also has no interest in increasing the numbers of homeless
murders in our crime statistics, so why not work with these private property owners to make camping
unattractive?
Further, there is no reason to use funding for a homeless hotel voucher program. San Francisco tried a similar
program and it led to an inordinate amount of overdose deaths. Hotel voucher programs do not provide the
services and family connections needed by homeless people. All it does it shut the door on the
problem. Additionally, it puts low income hotel housekeepers in danger, as they have to go clean those rooms
after mentally ill and/or drug addicted people have used them. Further, many hotels that do accept vouchers in
Carlsbad are located near schools, churches and other areas that many homeless people are legally prohibited
from residing. People criminally convicted of sex crimes and required to register as sex offenders often become
homeless because it is difficult to find housing. Without background checking every hotel voucher recipient,
there is no way to tell if they are even allowed to be housed in hotels near sensitive uses such as schools,
· churches and day cares.
2
Santa Cruz allowed their homeless situation to become out of control before taking these necessary
actions. Carlsbad should take note of what Santa Cruz has been doing in the last several weeks, get our
homeless connected with the services and family resources they need to get on their feet and break their cycle of
homelessness. Allowing people to live unhoused is dangerous for the whole community, including the
homeless individuals. After Covid is over, and Carlsbad tries to return to it's tourist economy, the homeless
situation will NOT assist in those efforts. Now is the time to act and put a plan in place to assist the homeless,
but also keep our community safe.
Jean Walker
en attachments or click on links unless nize the sender and know the content i
3
Encampment Removal During
COVID-19
Deputy City Attorney Allegra Frost
Police Captain Matt Magro
March 23, 2021
Minute Motion
•February 23, 2021: City Council requested
additional information regarding clearing of
encampments during COVID-19
2
Background
•CMC 8.36.030: Prohibits camping on public
property
•3 or more offenses within a year constitute a
misdemeanor
3
Martin v. City of Boise
•Limits ability to prosecute individuals for
sleeping outside on public property when
those people lack meaningful access to
shelter
•Shelter must be available to an individual in
order to cite a person for illegally camping
on public property
4
Pre COVID-19 Camping Citation Procedures
•In Response to Martin:
–9 p.m. to 6 a.m.: no camping cites city-wide
–8 a.m. to 10 p.m.: no camping cites in parks
–Unless, individual has realistic access to
adequate temporary shelter, but chose not
to use it
5
Pre COVID-19 Encampment Clean-up
Procedures
•Encampment on Public Property
–48-hour notice
–Remaining property stored for 60 days
–Urban Corps/Public Works removed trash
and unsanitary items
6
CDC’s COVID-19 Guidance
•People living unsheltered or in
encampments should be allowed to remain
where they are if individual housing options
are not available
7
Encampment Removal During COVID-19
•Santa Cruz Homeless Union v. Bernal
•Sausalito/Marin County Homeless Union v.
City of Sausalito
8
Santa Cruz Homeless Union v. Bernal
•Santa Cruz executive order temporarily
closing a city park due to nuisance created
by a large encampment
•Court issued TRO preventing city from
closing the park due to COVID-19 and full
shelters
9
Santa Cruz Homeless Union v. Bernal
•TRO is still in place
•Next hearing date is March 30th
•Santa Cruz is requesting to be allowed to
move the encampments to another portion
of the park
10
Sausalito/Marin County Homeless Union v.
City of Sausalito
•City of Sausalito planned to remove an
encampment from a local park, move the
occupants to another site, and impose a ban
on camping during the day
•Court issued preliminary injunction
prohibiting enforcement of the day camping
prohibition and clearing the encampment
11
Current Camping Citation Status
•Public property: no camping citations
–non-camping related citations continue to
be utilized
•Private property: trespass authorization
agreements or presence of property owner
12
Encampment Removal During
COVID-19
Deputy City Attorney Allegra Frost
Police Captain Matt Magro
March 23, 2021