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Q&A: Attorney On Legal Threats Over Sweeps Of Chico Homeless Encampments

Cory Doctorow
Flickr Creative Commons



City of Chico officials on Tuesday began clearing out homeless encampments near the entrance to lower Bidwell Park, according to media reports.


In an interview with NSPR in late December, attorney Cory Turner with Legal Services of Northern California shared his reasons for sending a letter to the city demanding they halt enforcement of park rules against camping. Turner represents Joel Castle, a homeless man in Chico, and threatened the city with legal action if it moved forward with sweeps of the park.


This interview has been lightly edited for clarity.


ANDRE BYIK: I'd like to start with the demand letter that was sent to the city of Chico – the city attorney of Chico, Andrew Jared – and dated I believe, December 20. Can you explain what actually is being demanded of the city? 


CORY TURNER: Well, we want the city to stop punishing people who are unsheltered and who are outside when there is not enough available shelter, and nowhere that they can legally be sleeping outside in the city. The reason that we're concerned about that is when the new City Council passed an ordinance elevating the punishment for multiple offenses in public parks, but specifically, the ones that were concerned about, are the ordinances regarding involuntary camping, and also the ordinance involving the hours of operations for the parks.


Those were punishable by fines previously as regulations.And the city had not been enforcing it as the city per COVID guidelines had not been enforcing any of the city-wide prohibitions against camping and sleeping on public property. Because that was the right decision for the health of the public in the city of Chico. Once the new City Council, or at least, the City Council with newly elected membersmade this a top priority to elevate it from just a fine up to a misdemeanor and declared their intention to begin enforcing it, it became clearthat what they were planning to do would not be – it became clear to our firm – that what they were planning to do would not be legal under the 9th Circuit Court of Appeals decision. That is the controlling law in multiple Western states and territories, including California, and the city of Chico.


We sent them the letter to inform them that the city has a web of ordinances that criminalize or otherwise punish the status of being unsheltered and sleeping on public property. And that right now, there is nowhere for those folks who are unsheltered to go. There are not enough shelter beds. Even if our only emergency shelter, the Torres Shelter, was open and at full capacity, it still would not be enough, because the point-in-time census, back in 2019, found that there were 389 individuals on that one day – on that one limited count – who were unsheltered at the time in the city of Chico. And that point in time countadmitted, as is the case with nearly all point-in-time counts, that this is more than likely an undercount. The reason that this matters is because the 9th Circuit Court of Appeals made a decision in Martin v. the city of Boise in 2018, a decision that was appealed and then sent up to the Supreme Court and the Supreme Court declined to hear, which means that as I said before, it's the controlling law here in the state of California and the city of Chico. That 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 that they had a choice in the matter. As long as there is not enough indoor shelter available for everyone. And there is nowhere to be in the city – outdoors, sleeping, camping – legally, then you cannot punish them. We punish conduct. We punish choices that people make. Behaviors that are dangerous or illegal. Sleeping outside when you have nowhere else to go is not a choice. And that's why that decision specifically uses the phrase, “The false premise they had a choice in the matter.”


BYIK: Your letter demands that the city cease and desist any current enforcement or plans to enforce the ordinances that you referenced that were recently passed, or recently approved, by the new City Council. What is your understanding of the stance from city enforcement offices regarding how theseordinances are being enforced, currently.


TURNER: Our understanding at this point is what was expressed in the City Council meetings at the beginning of December, that there was a clear intent to beginremoving people who are camping under the ordinance against camping in the parks. That this was something that was going to happen soon. We saw news reports just like everyone else, that it could happen in as soon as a week, which back then would have been around mid-month.


And so, because of that, we felt the need to act quickly and do our best to prevent what we feel would have been a grave error on the city's part.And something that would have caused great pain for the folks who are unsheltered. But in addition to that would have been very dangerous for the entire community. 


Because the whole reason why these were not being previously enforced, was because of the danger of the COVID-19 pandemic. And the CDC specifically saying that breaking up encampments and moving people prevents them from sheltering in place, disperses them and increases the risk of trend of greater transmission of the COVID-19 virus. And now we are, by all accounts at a peak point in the pandemic. We are all bracing. Unfortunately, I believe I saw an article yesterday or the day before, that said it appears January could be even worse, because of this holiday season that we're in now. And you add to that the fact that the people who are unsheltered themselves, if they are removed from their from their campsites, again, as long as they're there and not bothering people or violating other rules that are based on behavior and where they have a choice in the matter.


But if those folks are minding their own business and otherwise not harming anyone,if we send them out of the park, there's nowhere legal in the city of Chico for them to go. They can't lay down safely on the sidewalks, they will have no way to protect themselves from what is becoming an increasingly cold winter, as we all know, which is why the city set up warming sites. But of course, that those sites can’t accommodate everyone either. It's in addition to being unconstitutional, there are myriad of reasons why this is bad policy. And I haven't even begun to talk about how criminalization itself does not solve the problem. That would be pushing people into the criminal justice system, who are going to have the hardest time of anyone to make their court dates, who are not going to have the money to pay any fines that attend to this. And we are going to be paying for them to be going through the system.All on the taxpayers’ dime.


That has been shown, and there are many other voices in the community and nationally who can speak to why that is bad policy.But it's just another reason why we hope the city does not pursue this action, and that they instead focus on what appears to be the consensus of the service community. That is housing first, evidence-based approaches that actually will get people into stability faster, make all of us more safe, make our parks more clean, make all of our public spaces great places to be much, much faster than putting people through the revolving door of getting cited over and over and over again for city fines for criminal infractions, misdemeanors. It does not solve the problem to give people bills, in effect, these fines, that would go along with either a civil process or with a criminal process. Burying them in more debt is not going to help people get out of homeless and is not going to make our community safer.


BYIK: You raise a very important point regarding the enforcement aspect of this on the city's part. Is the city opening itself up to exposure to liability, should it move forward with enforcing the ordinances as they approved them in early December?


TURNER: So, there was a recent decision out of the federal court regarding the city ofGrants Pass, Oregon. This is not the 9th Circuit Court of Appeals – the court that made the decision and in Martin v. Boise that set the that set the law in this area for our state. And for the Western states, as I said previously.


In July of this year, the federal court in Oregon found that the city of Grants Pass could not enforce multiple ordinances that they had that combined to create a citywide prohibition against involuntary camping and sleeping. And that was punishable only by civil fines. In Martin v. Boise, it was punishable by criminal penalties up to a misdemeanor, just as the laws that we have here. But even under the under the prior park rules, where it was punishable only by civil fines, that still would match up to the case, which is called Blake v. City of Grants Pass.


Just like in Chico, there was a citywide prohibition against camping and sleeping on public property. And there was also a prohibition against camping in public parks. And just like in Chico, the city of Grants Pass did not have sufficient available shelter – indoor shelter beds – for all the people who are unsheltered in their community.


Now, that sounds awfully similar to the situation here. The city of Grants Pass was prohibited by the court, under the rule established in Martin v. Boise, they were prohibited from enforcing their prohibitions against citywide camping and sleeping and camping in the parks. They were stopped from enforcing any of them.


It sounds very similar. I can't say what's going to happen in the future, because every case is different. And the circumstances are as different between the plaintiffs as the circumstances between you and me.Butthat looks awfully similar to what's happening here. And just as in Martin, we have a citywide prohibition against camping,and sleeping,punishable up to a misdemeanor. So, the situation looks much the same. And it's hard to imagine that the result would be much different.