Civil Rights of Homeless People In Santa Cruz, CA, USA by Becky
Tom Boland (wgcp@earthlink.net)
Thu, 25 Nov 1999 12:04:56 -0800 (PST)
FWD Thu, 18 Nov 1999 02:55:23 -0800
From: Robert Norse and Becky Johnson <wmnofstl@cruzio.com>
Subject: Santa Cruz paper on Homelessness
[California, USA]
[Homeless United for Friendship and Freedom]
HUFF Presentation Speech on the
CIVIL RIGHTS OF HOMELESS PEOPLE IN SANTA CRUZ
For the November 6, 1999 SCAN/TRUSC/P&F Forum
On Affordable Housing and Homelessness
By Becky Johnson
When I was a young mother, raising small children, I remember reading in
the paper about a man named Paul Lee who was opening a homeless shelter on
Cedar St. I felt a great sense of relief in that moment. After hearing
about the problems of homeless people on the radio, seeing it in the
papers and on TV, and observing a growing number of people in Santa Cruz
who were obviously on the streets, I felt a pressure inside of me, like
having a sick child, that something must be done.
Paul Lee and Page Smith opened their cold-and-rainy-night shelter on Cedar
St. in the winter of 1985. They did it without permits. They did it in
spite of zoning regulations. They did it because when people are cold, and
getting wet, and walking with crutches, or sick, or too depressed to carry
on, someone else must intervene. They were responding to the shamelessly
unmet human needs of those individuals. They also acted in response to a
33-day hunger strike by Jane Imler that resulted in her permanent kidney
damage "to save her life".
In 1989, their organization, Citizens Committee for the Homeless issued a
position statement on MC 6.36 the Camping Ordinance. Let me paraphrase
what they said: They said in a situation, in which there is not sufficient
shelter, it is unconscionable to not allow people to sleep or shelter
themselves from the elements.
Civil Rights are not human rights. Human rights are things like the right
to not starve and the right to not be tortured. Civil rights are something
else. They are the LAW.
Most civil rights fall under an area of the US Constitution known as the
Bill of Rights. Those first 10 amendments of the Constitution are our best
legal protections for homeless people. They protect their rights to be in
public spaces, which is a great concern to homeless people. Article 1,
Section 1 of the California State Constitution, which all of our 7 City
Councilmembers vowed with one hand on a bible before our City Clerk to
"uphold and protect" guarantees the right to "safety". I assure all of
you, that sleeping on the streets is not safe.
The San Francisco Coalition on Homelessness identified eight, Quality of
Life ordinances that are source of the vast majority of citations issued
against homeless people by police forces across the nation. Yes, that
includes liberal, progressive Santa Cruz, where we think we=92re so
different from the rest of the country. Well, we=92re not. When it comes to
civil rights violations, Santa Cruz has been a leader. Our Sit-ban law, a
descendant of a closely watched Seattle law, has had a remarkable social
cleansing effect on Pacific Ave. While it is not illegal to sit
everywhere, it does rate a $162 ticket if your coat is too shabby, or your
hair too uncombed. The law has been copied by Palo Alto and San Jose.
Some of these laws are special interest "merchant" laws which City Council
passed in 1994. Bookshop Santa Cruz owner Neal Coonerty was riding high.
Under his leadership Council passed the Downtown Ordinances, which brought
Seattle bigotry and cynicism to Santa Cruz. One of those ordinances --
dubbed the Coonerty Caf=E9 law by critics--allowed owners to pick and
choose, who could be on the sidewalk in front of their cafes. Sort of the
flip side of the special prohibitions he secured for his bookshop barring
other booksellers from locating in Gateway, the new Cooperhouse and Doug
Ley's Redtree Building (as well as the Town Center).
Another "Quality of Life" "crime" targeted by the Downtown Ordinances is
begging or panhandling - a survival skill used by homeless (and on a much
grander scale by big business charities and telemarketers). Panhandling is
defined by our local ordinance as asking for anything of value. That means
verbally, folks. Person to person. Remember the 1st Amendment - freedom of
speech? Our law says it is illegal to panhandle from a sitting position.
It is illegal to panhandle closer than 3 feet from a person. It is illegal
to panhandle in groups of TWO or more. Remember that part of the
constitution that guarantees the right of the people to peaceably
assemble?
It is illegal to panhandle after dark. That means, in the middle of
winter, when daylight is limited to about 10 hours, for a fourteen hour
period homeless people cannot ask for money, for food, or presumably for a
blanket on the coldest, darkest night of the year.
As if that weren't bad enough our local Hosts, stroll about Pacific Avenue
under the tutelage of Community Service Officer Malate forcing elderly men
and disabled women who are silently holding up signs to stand up or face
$162 panhandling tickets. Though the City Attorney dismissed citations
issued by Malate's tickets a year ago, he has resumed the practice. This
town gets ready for Christmas by sweeping the streets of the poor.
The Homeless Issues Task Force will soon be passing a resolution that asks
Mayor Beiers to restrain her police from their traditional practice of
driving homeless people away from alcoves and awnings on Pacific Avenue
into the rain. Homeless advocate Sheri Conable has documented that this
process and practice apparently swings into full gear around this time of
year to "protect" local profits.
City Attorney John Barisone will tell you the Downtown Ordinances simply
regulate the time, place, and manner of panhandlers and don=92t ban them
outright. A few days ago Barisone=92s ideological friends on the US Supreme
Court let stand a Ft. Lauderdale ban on peaceful panhandlers on the
beaches, again snipping away at the Constitution to benefit businesses.
But I ask you, how can our ordinance which allows a city to regulate the
TIME: of asking for food to not after dark, of sleeping to not a night,
the PLACE: you can sit to not less than 10 feet from a building, even if
that building is closed for the night, the street is empty, no one has
complained, even if the person has not been warned, even if that building
is vacant, even if it is pouring rain and you are sitting under an awning
to stay dry =96 and the MANNER: of prohibiting asking for food if you are
sitting down, or of sitting with your boyfriend for your protection, or of
standing only 2 =BD feet from someone when you tell them you are hungry, --
I ask you, what would be the motivation for a city to issue these kinds of
time, place, and manner restrictions unless its real purpose is to drive
people from public places. And that is not constitutional to do so. It is
completely illegal. Our city is violating the civil rights of homeless
people on a daily basis through a policy of daily illegal harassment by
the Hosts, the police, the courts, and the jails. BIG PAYROLLS here,
folks!
Loitering laws were struck down in the 60's as the courts ruled you can=92t
make a person a criminal for doing "nothing". Those loitering signs you
see around you. Ignore them. They have no meaning. They only serve to
trick the ignorant and the young. Loitering laws do still exist, but the
courts have ruled they must only be in conjunction with SOME OTHER CRIME.
Such as hanging around a bank to plan a robbery. Or serving as a lookout
while someone else is burglarizing a house.
Open container laws are greatly abused as are drunk in public laws. I
spoke with one homeless woman who was trying very hard to make something
of herself by taking classes at Cabrillo. She collected aluminum cans to
earn extra money. One Santa Cruz Police officer detained her, looked
through her bag of cans and found one beer can, already crushed. He turned
it over and a few drops of beer dripped out. "Open container." He said and
cited her with a $162 ticket. For a homeless person who dares to actually
drink a beer, there is no legal place for them to drink it. They usually
do not have permission to be on private property. They cannot be in a
vehicle. They cannot be in a park, on a sidewalk, in an alley, or on the
beach.
When was the last time you saw a Santa Cruz police officer go up to a
Yuppie picnic and sniff everyone's Pepsis and their Odwallas to see if
they might be spiked with vodka? Selective enforcement is illegal. If the
police are going to sniff a homeless person's Doctor Pepper, they also
need to sniff the coffee of a business executive on his way to a power
sales meeting. But they don't. And it's against the law.
Other local laws used to harass homeless people are ordinances against
"scavenging" and - remarkably - recycling. Two weeks ago, I heard a woman,
who works long hard hours recycling to buy medicine for her child, testify
before the Homeless Issues Task Force about the tickets she's received for
retrieving cans from blue bins "even with the permission of the owner of
those cans "under a new law passed by City Council in the summer of '98.
Activist Bob Duran, a Free Radio Broadcaster, worker with 1994 Copwatch
and Food Not Bombs, was directed by a police officer not to retrieve the
letter that Duran had thrown in the post office trash a moment before or
be ticketed for "scavenging". The officer also threatened to place his
child with Child Protective Services because of that incident.
One of our own HUFF activists, Robert Norse, goes to trial this month for
sitting on the base of the Tom Scribner, the musical saw player, statute
in front of the Bookshop Santa Cruz. The City Attorney admitted he has
seen people do regularly, but when Norse asked him to dismiss the ticket,
Barisone said he wouldn't do so without the direction of the police force
or the City Council - so the case goes to court.
Our own Sleeping Ban (section 6.36.010a of the Camping Ordinance) is, in
my mind, the most blatant example of a civil rights abuse of homeless
people in the City of Santa Cruz. Our own City Council, led by Mayor
Beiers, has upheld it as recently as last March (with lowered fines: it
now costs only $54 for each ticket). The Sleeping Ban has never undergone
constitutional challenge at an upper court level. When local attorney,
Kate Wells, took three tickets Dan Hopkins had gotten at the City Hall
Sleepers Protest from 1996 and attempted to challenge this law's
constitutionality, Dan was convicted of sleeping at night in the court of
Judge Thomas Kelly. Kelly ruled the law was constitutional "Because
homeless people can sleep in the day." What Kelly never proved, and the
appeal that was denied never got to unfold, was the issue of why the city
takes an interest at all with whether a person sleeps at night or not. I
mean why not regulate whether a person gets his film developed at night?
Or whether he polishes his shoes at night? I mean, what is the harm if a
person sleeps at night? Just who exactly is harmed? The reason this law is
unconstitutional is both on its face and as it is enforced. On its face it
violates the right of the individual to travel. For inherent in the right
to travel is the right to stay in one place. And the right to stay in one
place, contains the right to sit, lie down, eat, and, yes, sleep. Any fine
for sleeping is an "excessive fine" prohibited by the constitution.
As enforced, it is unconstitutional because it is selectively enforced.
Shiny, new Winnebagos can park on West Cliff Dr. all night with no fear of
some officer beating dents into the back door if they don't answer quick
enough. By the way, at trial, officers use the lag time from when they
first start beating on a camper, van, or car with a suspected sleeper
inside, until they respond as "evidence" the person was sleeping. What
about the right of a person to be secure in their person or effects? What
about the persons right to exist? If you exist, you must, sooner or later,
sleep. This is a law which allows police to ban those they don't like from
Santa Cruz by banning a function vital to human survival and sanity.
The recent Eichorn Decision offers much hope for homeless people who are
criminalized for sleeping, covering up with blankets, or erecting
make-shift shelters. Eichorn, from a camping violation in Santa Ana,
California, provides that a homeless person may use the necessity defense
for a sleeping or camping citation. In other words, I had no other choice,
but to break the law, in order to prevent a greater harm. No other choice,
folks, is the completely inadequate shelter space we have in our fair
city. Eight months of the year, we house 5% of our homeless population.
Four months of the year we house 20%. As a city, we are far from the city
doing the most for its homeless (Ironically, I believe that is Salt Lake
City, Utah). We are better than cities that do nothing. And there are
plenty of cities that do nothing. But when it comes to providing shelter
for the homeless in Santa Cruz, we are as bad as the rest. Santa Cruz is
far from being Eichorn compliant. Our City Attorney has declined to issue
a letter to the Courts even acknowledging that Eichorn is currently
precedent.
The "shoulder tap" law, coming up at the afternoon session of Tuesday's
City Council meeting, poses civil rights concern for young people. As
usual, homeless youth are on the front line. With Police Chief Belcher's
1997 youth curfew law, they were told to "go home after 11 p.m." when they
had no home to go to. With Belcher's 1998 river curfew law, they were told
to "forget about sleeping under a bridge" - just being under a bridge
after dark was now criminal behavior. Now, even though getting an adult to
buy you liquor is a crime, possessing liquor for a minor is a crime, and
buying liquor as a minor is a crime, Chief Belcher wants just asking a
friend to buy a beer "even if the friend then takes no other action" to be
a crime.
I don't want to spoil the Chief's Christmas. I know he's expecting yet
another shiny addition to his big box of "move 'em along" tools, in a
measure clearly designed to support merchants who want to disperse youth
loiterers. Threatening youth with criminal records for simply asking for a
beer is a bad idea. Please call City Council and ask them to see past this
supposed "youth protection" supposed "anti-alcohol" measure, which
criminalizes free speech, is a license for selective enforcement, and sets
the stage for stay-away orders, which are now a favorite tool of the
police in banning homeless people from downtown.
In many ways things have gotten worse not better. Youth advocate Jerry
Henry languishes in jail this weekend on $100,000 bail out at the Ranch
Del Mar Shopping Center for a non-violent presence outside the Aptos
Gottschalks. His real crime: informing Aptos young people that, homeless
or not, they have civil rights and don=92t have to simply "follow orders"
from the merchants, their private First Alarm security guards, and the
Deputy Sheriffs.
But one ray of light I want to share with you is a very interesting case
right here in Santa Cruz. It is the case of Dennis Rehm. He is a
vehicularly housed man who was cited for sleeping in his vehicle a year
ago September when an officer claimed he heard him snoring in his camper
parked over in the Industrially zoned Harvey West area of Santa Cruz.
Dennis was convicted of sleeping. He went to court and told the judge that
he could not pay his fine because, being homeless, he had insufficient
income. Yet, even if he had the money he would refuse as a matter of
principle. And as to the so-called reasonable alternative of community
service, Dennis told the judge he was not volunteering. Dennis was using a
defense pioneered by homeless activists Robert Flory, Linda Edwards, and
David "Won Ton" Jacobs. These Sleeping Ban activists researched case law
to find that it is illegal for the courts to use misdemeanor punishment:
Jail on non-vehicular infractions such as the sleeping ban. You see when
you are charged with a misdemeanor, you face a possible $1000 fine and/or
6 months in jail. You have the right to a jury trial and a public
defender. With an infraction, you may only be fined, will be tried by a
judge only, and have no legal right to an attorney. Dennis' non-payment of
his sleeping ban fine would result in a Failure to Pay warrant issued for
his arrest. That means being taken into custody, handcuffed, your vehicle
impounded, your dog in the pound, booked, finger-printed, and held in
jail. And it is illegal for the courts to jail a person for a
non-vehicular infraction.
Well now, the Santa Cruz County judges are slow learners. Dennis has had
to go to 13 court appearances with three judges. At his last court
appearance in late October, Judge Arthur Danner considered Assistant City
Attorney Anthony Condotti's arguments as to why Danner should not quash
the warrant for Dennis Rehm=92s arrest since it was for an unpaid sleeping
ticket, a non-vehicular infraction. Dennis=92 attorney, Peter Leeming
reminded Judge Danner that the city has recourse. It can sue Rehm in civil
court, attach his property, and garnish his wages. Danner, hearing no
compelling argument from the city, promised at that Friday hearing to give
his ruling in writing on Tuesday. Unfortunately for Rehm, he didn=92t say
which Tuesday. We=92re still waiting. Quashing Rehm's warrant means all
homeless people who will be charged with non-vehicular infractions - like
sleeping, sitting, sparechanging in groups of two, or after dark, sitting
on a planter, having an open container of alcohol, may all still get
convicted, and still have a criminal record. But they won't be going to
jail anymore. And the feasibility of the city successfully suing a
homeless person who, practically by definition, has no income to garnish,
and no assets to attach is laughable.
Perhaps in the end, we can still be proud to live here in Santa Cruz. Yes
it is home to the infamous sleeping ban, the hideous sit-ban, and the
horrid begging ban. But it is also the place where Lee, Smith, Imler,
Flory, Edwards, Jacobs, Norse, Hopkins, Wells, Conable, Duran and Henry,
and many others, who have waged valiant struggles to take on the Goliath
of hypocritical, self-serving, anti-homeless bureaucracy: our own city
government. And maybe one of these days we will win.
(c) Copyright 1999 by Becky Johnson
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