By Paul Thomas Jackson
(Editor’s note: This is the third article of a four-part series on Fresno’s anti-camping ordinance.)
Litigation has been compared to the game of chess. The key is to anticipate the moves one’s opponent will make. In many constitutional lawsuits, litigants have perspectives that differ though each is legally valid. To anticipate opposing counsel’s strategy, we must change our perspective, at least while we do legal advocacy for homeless people. Courts resolve those suits by balancing competing interests.
The resolution we seek is vindication of the rights of every person, regardless of housing status. It might not be possible for a homeless person to fully enjoy every right, yet the basic guarantees of the constitution should protect every person, as every self-respecting conservative will agree.
If a person has a right to sleep in public, a city’s attempts to stop it risk violation of the person’s rights under the Fourth and Fourteenth amendments—but not so clearly the Eighth. That it was declared to have a basis on the Eighth is a misreading of case law for which the Ninth Circuit reversed its ruling in Jones v. City of L.A. And that the ruling still pertains to Los Angeles is a matter of due process.
In the “game” of litigation against the homeless, the City Council controls the center of the Eighth Amendment game board. And it would be quite a feat if legal activists here could revive the Ninth Circuit’s reasoning in Jones to make it a violation of the Eighth Amendment to punish a homeless person for sleeping in public in any area lacking enough shelter beds.1
Possibly, legal activists could prove the anti-camping ordinance discriminates against homeless people in violation of the Equal Protection Clause. SCOTUS’s decision in Robinson v. California2 offers some such hope. But it does appear unlikely the Eighth Amendment will bring relief to people living in the Ninth Circuit’s territory and outside Los Angeles. Now this is only one strategy: Like a chess master, every skilled litigator has developed more strategies to win the game.
Due process is the other clause of the Fourteenth Amendment of particular relevance to homeless advocacy. It has two components.
Every person has a right to “substantive due process”—a guarantee the government won’t take away certain things in our lives by whatever process. Objectively, these are things deeply rooted in our country’s tradition, say the courts. Things like a person’s right to choose beliefs or non-belief, to marry and to raise a family having his beliefs or non-belief. A woman’s right to choose, recognized by SCOTUS in Roe v. Wade, well regarded by most Community Alliance readers, is another such right. And it’s a right now under rather serious threat, incidentally.
The other component of due process is procedural: The government can take something away from you. But in virtually all cases but true public emergencies, the government can do so only after you’ve been told (notified) you are at risk of the government depriving you of the thing, and you’ve had an opportunity to be heard why the government shouldn’t do it. Procedural due process, then, means notice and an opportunity to be heard. And almost always, you have the right to be heard about your having something before you are deprived of it.
Equipped with these superior tools, how do we develop a strategy to outstrip the city’s inferior one? By anticipating our opponent’s moves, of course. We anticipate the city’s perspective is that its anti-camping ordinance is not an attempt to regulate the conduct of homeless persons, much less banish them from the city. We know that is its practical effect; it’s another “tool” to harass them, possibly increasing the risk of false arrest, a risk the constitution frowns on.
In the great majority of cases, even a lawful arrest of a homeless person is a governmental action that, wasting time and money, embraces pettiness and defies common sense. Yet a person is at far greater risk of arrest if homeless: Treated as though subhuman, he’s like a fish caught in a dragnet again and again without an aquatic sanctuary to swim to.
With a warrant haunting someone wherever he goes (and probably for failure to appear on a petty offense), he picks up his tent and leaves as soon as he sees a badge and hears the words “offering services” that we know fall short of the overall need in the area.
If this “other tool” can be called successful at anything, it’s the pretense of city officials pretending to angry, short-sighted constituents that the officials are taking action on homelessness. Furthermore, it’s the pretext of detaining people (“urban campers”) who might not otherwise create probable cause for their detention.
However honest, feasible or useful the goal of punishing “urban campers” might or might not be, a city official who vocally supports it thereby purports he has no animus toward the whole homeless population. Thus, he avoids exposure to personal liability in tort. It looks to us like a double whammy: A lie about the goal a city has set, coupled with another lie told by an official who has no disdain, but compassion toward homeless people.
We strategists—and that includes you, the reader—anticipate that the city regards the ordinance as a land-use regulation. Fresno’s policy bans the use of bedding, blankets and camping paraphernalia on all lands, public and private. We further anticipate that the city will allege its ordinance applies to all persons and so doesn’t violate equal protection. And so, what of the unequal treatment resulting from not enforcing the ban on a housed person?
All but the homeless among us make daily use of a bed and blanket. That we continue to use them, despite the anti-camping ordinance, is a right protected by the federal constitution. Our said nonconforming use rightfully continues under due process of law.3
But homeless people, who lack the means to lawfully stay anywhere in Fresno overnight, don’t enjoy that same due process right as we housed people do. Unless they rotate from one residence to the next every third night, the ordinance effectively denies unsheltered people an opportunity to sleep, though its letter doesn’t say so. Again, it purportedly bans every person from using camping paraphernalia on all land in Fresno.
Municipalities do have wide latitude in their determination how the policing power is to be used. The Fresno City Council, as any legislative body, can make just about anything unlawful that isn’t protected by substantive due process. Beyond the body’s power is the creation of social or economic legislation that is arbitrary and that lacks a rational relationship to a permissible governmental objective. Promotion of safety and avoidance of hazards are objectives the constitution permits, but does the Unhealthy and Hazardous Camping Act 2017 bear a rational relationship to these objectives?
The City of Fresno prohibits hiking boots (qua other “camping paraphernalia”) as “unhealthy and hazardous.” But in fact, they’re actually one of the safest kinds of footwear. This prohibition would appear an instance of this kind of unconstitutional excess by a legislative body of its lawful power.
Generally speaking, bedding and blankets are not, per se, “unhealthy” or “dangerous” when used by able-bodied adults. If either is used by an infant or an adult who due to age, disease or incapacity is too feeble to safely use it alone, proper supervision by a parent, guardian or nurse might take place under a roof. So the only real danger that either item could possibly pose occurs in the case of a sheltered or housed person who’s incapacitated and without necessary supervision.
So, banning their use in public places results in an absurdity: That one’s use of a blanket to keep oneself warm and healthy in cooler weather is somehow “unhealthy.” A court presumes legislation is constitutional.
But if the court must create absurdities to interpret and apply it to a case, the court will strike it down. As we’ve discussed, the ordinance is unreasonable and absurd. And it bears no rational relationship to safety, which a city like Fresno could pursue by other, reasonable legislation. The ordinance, however, violates equal protection and so is unconstitutional.
To preserve the constitution, a court strikes down such legislation. Dallas Blanchard spoke publicly of his fervent intention to challenge the constitutionality of the anti-camping ordinance. Unless we succumbed to City Council Member Clint Olivier’s crocodile tears, the city’s show of eagerness to settle Blanchard’s case might be the only apology we’ll ever receive for the ordinance’s absurdities because this settlement means the homeless advocate’s intention was thwarted. The settlement also means the City avoided the unpleasantness that would come about through a court’s scrutiny of the ordinance and the absurdities it creates.
Not only the socially conscious readership of this newspaper, but every country-loving, government-fearing conservative as well ought to be alarmed whenever a governmental agency arrogates such an absurd exercise of power. It’s high time Fresnans from across the political spectrum come together to oppose the City’s desperate resorts to violate the constitution in response to the local crisis of homelessness, and to begin dialoguing across divisions in the community toward proactive solutions to this awful crisis.
Paul Thomas Jackson prepared the claims that paved the way for the homeless lawsuit that in 2008 settled for $2.35 million. He is now the secretary of the Fresno Homeless Advocates (FHA). He is 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.
- See Lehr v. City of Sacramento (2009) 624 F.Supp.2d 1218. See also Ashbauer v. City of Arcata (N.D. Cal. 2010) 2010 WL 11211481 (holding “the Eighth Amendment does not extend protection to involuntary conduct, such as camping overnight on public grounds, attributable to Plaintiffs’ homeless status”). Although not binding on the district court, the Eighth Amendment–based reasoning in Jones appears to have some persuasive value for three other district courts (Cobine v. City of Eureka (N.D. Cal. 2017) 250 F.Supp. 3d 423, Kohr v. City of Houston (S.D. Tex. 2017) and Pottinger v. City of Miami (S.D. Fla. 1992) 810 F.Supp. 1551), as well as one U.S. Circuit Court (Joel v. City of Orlando (11th Cir. 2000) 232 F.3d 1353, 1362). All four courts are outside of the Ninth Circuit and so not bound by the Jones holding (even assuming it wasn’t vacated).
- Robinson v. California (1962) 370 U.S. 660.
- See 8A McQuillin Mun. Corp., §25.180.20 at 9-10 (3rd ed.1994); 4 E.C. Yokley, Zoning Law and Practice § 22-3 (4th ed.1979); and 1 Kenneth H. Young, Anderson’s American Law of Zoning §6.06 (4th ed. 1996).