Loading...
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