By Paul Thomas Jackson
(Editor’s note: This is the second article of a four-part series on Fresno’s anti-camping ordinance.)
Fresno’s Unhealthy and Hazardous Camping Act 2017 is unique among cities’ ordinances affecting the lives of homeless people. Popularly called “quality of life” ordinances, such ordinances adversely affect homeless people’s lives—further alienating them from the housed community and driving them deeper into homelessness, as studies have shown. But Fresno’s ordinance stands apart in the ostensible or apparent enforcement design: It purports to improve the quality, not only of city dwellers’ lives generally but also specifically of the life of the homeless camper him/herself.
That it fails to connect the camper with housing, mental health and/or substance abuse services has been reported in at least two other local and mainstream print media. This fact is no reflection of the faithful, even earnest attempt of a Fresno police officer who offers the camper those services. Nor does the ordinance’s failure to connect a homeless camper needing mental health services mean the mental health professionals wouldn’t serve him well if afforded a less austere setting than what appears to the overwhelming—1,345 of 1,447—majority of campers who refuse all services so offered.
Its inefficacy to connect people to services was echoed in a healthy tributary by Norman M. Lambert, who exhorts the city to use its scant resources more wisely¾something that should make every fiscal conservative perk up.
“In all, 941 encampments were cleared. Of course, only to be set up in another place the next day,” Mr. Lambert writes. Under the ordinance, the presence of officers, however well-meaning and well-mannered, instilled fear in campers that their outstanding warrants would catch up with them. And so it is that Fresno City Council Member Steve Brandau, the ordinance’s sponsor, could proclaim it is “working” inasmuch as “the word is out” that one’s belongings will be taken if used anywhere in city territory, both public and private land. And so it is “another tool” in the government’s arsenal that threatens a person’s right to lawfully own, use and protect his property.
The ordinance in question most closely resembles those of two other California cities, Modesto and South Lake Tahoe, as well as that of Boise, Idaho. The resemblance is as to the prohibition of certain conduct—the use of camping paraphernalia on all lands, both private and public, within the limits of the respective city.
Of the many cases brought by the ACLU to challenge anti-camping ordinances, only about half have proven successful. In 2011, the ACLU unsuccessfully challenged Boise’s anti-camping ordinance. In 2012, Idaho Legal Aid Services also brought an unsuccessful challenge to Boise’s. That string of failures prompted Brandau’s decision to sponsor the Fresno ordinance.
(Since 2006, homeless advocates far and wide have regarded Jones v. City of L.A. with hope and awe. Jones was published by the Ninth Circuit that year and was vacated by the same court in 2007 according to a memo that apparently didn’t reach a good many homeless advocates who still clamor for a court to recognize a homeless person’s right to rest or sleep. Legislative advocacy for recognition of that right is a fine thing to do. Litigation or legal advocacy for that cause is ambitious and probably overly so. This topic will be addressed in our next article.)
Again, the ordinance merely purports to improve the life of the homeless camper himself. In so doing, the ordinance quarrels with the state’s Declaration of Rights, providing in part:
“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
“A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.” (Cal. Const., Art. I, § 1 and § 7(a).)
Can a Fresno police officer be so empowered as to engage and entertain a conscious, actual choice by an individual in a setting where choice has little meaning, though its exercise is constitutionally guaranteed?
In this setting, possession of nearly all the things the person has chosen to possess is at stake, and choosing to comply with the ordinance means losing possession of them, whose acquisition, ownership and protection are constitutionally guaranteed. Only to the extent the exercise of one’s right infringes upon another’s can the guarantee end. By definition, the guarantee doesn’t vanish simply because it doesn’t readily appear the person (the owner of personal property) can’t maintain his exercise of the right.
Just as housed people help one another through life’s hurdles, so do homeless people help one another. And in getting through those hurdles, a process that is fair to all affected parties, and in which all are equal before the law, is essential to doing justice. On the other hand, if—because of brevity—there’s no fairness in the opportunity for the homeless camper to choose either to receive a service or loss of his belongings, there’s no fairness in the process. And a process that’s basically unfair violates due process.
Even assuming camping gear is “unhealthy and hazardous,” every member of the community—both the housed and homeless—has an interest in justice being done. Everyone should care about a confiscatory procedure being fair. A fiscal conservative cares deeply about this.
Conservatives need to respect the constitutional status of the person rather than discount it as a “special interest” offensive to their political disposition. Rediscovering their respect for the constitution, conservatives might find they, too, oppose the anti-camping ordinance for sound constitutional reasons.
Under the constitution, a “person” who becomes homeless could endure practical limitations on his ownership of personal property and so lose most of it on his way to the most extreme form of poverty in this part of the world. But the person remains a “person” under the constitution and so has a right to own, enjoy and protect what he has. If the law has any meaning at all, it must apply to every person.
All members of the Fresno Homeless Advocates, while oriented to justice, view the anti-camping ordinance with suspicion and doubt its soundness, and we’re especially concerned with what the City of Fresno might do under the constitution. Assuming it’s constitutional, we’d have to contend with this tool in the arsenal of the government, which will keep brandishing it and, ironically, scare more homeless people away from housing and other services as they become available in the future.
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Paul Thomas Jackson prepared the claims that paved the way for the homeless lawsuit that in 2008 settled for $2.35 million. Paul is now the secretary of the Fresno Homeless Advocates (FHA). He’s also its acting social media director, playing a key role in its Facebook group of more than 500 members. The FHA regularly meets at 6 p.m. on the third Sunday of the month. Notice is posted on the wall of the Facebook group.
