District Attorney Summer Stephan recently submitted a brief of amicus curiae in support of the city of Grants Pass, Oregon, in its appeal to the U.S. Supreme Court of the ruling that it could not cite a homeless resident for illegal camping.
Stephan is not alone. The Grants Pass ruling by a lower court and then upheld by the Ninth Circuit Court of Appeals has provoked a significant backlash. It was an extension of the 2018 ruling in Martin v. the City of Boise that prohibited cities from enforcing anti-camping provisions on homeless individuals if no suitable shelter was available for them. With Martin, cities could not even issue them civil citations. To do so, they ruled, would be a violation of the 8th Amendment’s ban on cruel and unusual punishment.
This outraged Gov. Gavin Newsom, who is no stranger to criticizing judges, mostly about rulings on firearms restrictions. He blasted the judges involved calling the rulings “perverse interpretations” of the law.
“Imagine being an elected official where folks say ‘Clean ‘em up!’ and you say, ‘I can’t do it,’ and they say, ‘ah, he’s just blaming the court,” Newsom told Politico in a rare interview on stage.
Now, Newsom, Stephan and a bevy of other elected leaders, including, the City Council and mayor of San Diego, have all put out these amicus brief’s in support of Grants Pass. (The city of San Diego recently signed on to Seattle’s.)
“Cities must be able to address the significant public health and safety dangers posed by the unsafe and unsanitary encampments,” wrote Mayor Todd Gloria in a statement after the City Council agreed with him to support Grants Pass and the appeal to the conservative Supreme Court.
But if you read Stephan’s brief, it’s not easy to tell exactly what consequences for which she blames the ruling. It’s a long list of societal woes created by the encampments: the drugs, the deaths, the violence and the public health menace that they cultivate. But there’s nothing that specifically outlines what exactly the ruling prevents cities from doing. It’s only the very last line that gets somewhere close to it.
“Although San Diego County has already begun efforts to improve outcomes for people in our communities who are grappling with mental health issues and homelessness while being mindful of the health and safety of both the homeless population and that of the greater community, many issues still must be resolved by this Court to clarify what other efforts may be made within the bounds of the law,” Stephan wrote.
Clarification. That comes up a lot.
Attorney General Rob Bonta made a similar point at Politifest.
“I think Martin v. Boise needs clarification. I think some people think that it means that, until you have a plan for every single homeless person in a jurisdiction, San Francisco, let’s say, you can’t move one of them off the street. I think that’s wrong,” he said.
But then he tripped up where everyone trips up: What exactly is the threshold for suitable shelter available that gives cities the freedom to clean up what a lot of people want to see cleaned up?
“I mean, we could go down this rabbit hole where we’re talking about 10,000 different requirements, and then it becomes impractical. We need to be practical — we need common sense. At some point, the offer will have to be enough, even though it’s not everything under the sky that’s being asked for,” he said.
He wants clarification. So does the DA. So does City Councilman Kent Lee, the only councilmember who both opposed the city’s new camping ban but unexpectedly supported the city’s decision to support Grants Pass in its appeal to the Supreme Court.
Many of them were no doubt rattled when a federal court judge halted San Francisco’s enforcement of its own encampment ban. Homeless plaintiffs are arguing there the city cannot go forward without putting up thousands more shelter beds.
The rulings clearly have constrained the city of San Diego too. The city is bracing for a challenge to its new camping ban even though it carefully tried to craft the law as prohibiting camping in sensitive areas all the time while only prohibiting it in the other public spaces when there was shelter available.
John Brady, the executive director of Lived Experience Advisors, who was homeless himself, tried to appeal to the City Council to stop them from supporting Grants Pass. He pointed out that most dreadful of real facts: The city does not have the shelter space it needs for even the people who may want it now, let alone the people who could be forced into it.
“So if you’re a senior that ends up on our streets, you get to be tortured by the city of San Diego until you effing die,” he said. “Martin vs Boise is the only thing holding anybody back from going even more ballistic.”
But how much is it holding back? It’s still not at all clear whether the city of San Diego has found the line or whether the federal judge who stopped San Francisco’s enforcement is right. Must the city have enough beds to shelter everyone before you push anyone off the street? Even if not a legal requirement, it seems morally unambiguous that a city should offer shelter before punishing or prosecuting someone who has no home. (If not having a home is illegal, enforcement of that law is probably going to hurt the people who don’t have homes the most.)
Maybe the Supreme Court will indeed read everything and craft a ruling that guides all future rulings and hands cities a manual for exactly what they must have by way of shelter before demanding people on the street make use of it or face punishment.
Likelier outcomes, however, could be the conservative court deciding either to ignore it, leaving the confusion in place but permanently. Or the court could throw the whole thing out leaving no baseline protections against the criminalization of homelessness.
That would be a hell of an outcome for all those seeking clarification like Bonta, Gloria, Lee and Stephan. What exactly would they do with that power? Pass a camping ban?
Correction: The original version of this post incorrectly implied that the city of San Diego would be soon filing its own amicus brief support the city of Grants Pass’ appeal to the Supreme Court. The city, in fact, signed on to the city of Seattle’s brief.
A Side Note
While researching this, I watched the City Council meeting of Sept. 18. I had seen the various press releases about how the city could not tolerate hate and racial slurs at public comment periods at City Council meetings. All of them were somewhat cryptic about what had happened. I was super busy and overwhelmed with some other tasks. I decided that whatever had happened did not deserve any dignity I may provide it by looking into it.
But then I heard the public comments people called in to that meeting. I have heard public comments for 20 years and they’ve always been disturbing and weird. But this was a new level of hate, explicit racism and conspiratorial antisemitism. It was sustained and violent and it repeated some of the exact talking points the terrorist who attacked a synagogue in Poway killing one and injuring others in 2019 spouted.
I’m not sure what I can or should do. I just wanted to say I’m sorry I looked away.
That Full Cent Sales Tax
Behind the scenes, an effort to put forward a sales-tax increase of 1 percent to voters in the city of San Diego sponsored by City Councilman Raul Campillo and Mayor Todd Gloria is slowing moving forward.
The City Council would put the measure on the ballot for a general tax increase meaning it would not specify where the money would go. That would also mean, however, it would only need a bare majority support from voters to pass.
New this week: The San Diego County Taxpayers Association, which hasn’t been weighing in on everyday city political dilemmas like it used to, seems ready to give it a try again. This week, it sent an open letter to Campillo and Gloria asking for some clarification, specifically whether the measure would have a sunset clause ensuring the tax is set to expire. That way, the city would have to justify extending it in the future.
“We do wish to note that the Association will OPPOSE a measure that does not have a sunset clause,” the letter states.
And SANDAG: You remember the coalition of labor unions and others sponsoring a half-cent countywide sales tax increase to support SANDAG’s transit and roads plans. I checked in with Gretchen Newsom, the political coordinator for the Ninth District of the International Brotherhood of Electrical Workers.
Would this tax be too much of a conflict?
“We don’t see it as a problem,” she said. She is focused on qualifying the measure with enough signatures next month.
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