Judge denies SLO’s motion to dismiss houseless lawsuit. Here’s why
A lawsuit filed by five unhoused people and a nonprofit organization against the city of San Luis Obispo will move forward after a judge ruled against a motion to dismiss the case.
SLO’s attorneys filed a motion to dismiss on Dec. 8, contending the city has a right to enforce health, safety and environmental protection ordinances. They denied that SLO has criminalized homelessness, as alleged in the lawsuit.
But the houseless plaintiffs, including Hope’s Village of SLO, say that unsheltered individuals are being treated unlawfully for living outdoors or in their vehicles.
The city has issued dozens of fines and repeatedly conducted sweeps that have removed homeless individuals from camping spots in public areas.
U.S. District Judge Cormac J. Carney’s written ruling noted that “(the city) may not, consistent with the Eighth Amendment, criminalize resting outside on public property when there is insufficient sleeping space practically available in any shelter” and that “plaintiffs plausibly allege that (the city) has done so.”
Carney added that “the court’s best interpretation of (SLO’s) argument is that the ordinances are constitutional because they do not prohibit sitting, lying, or sleeping on public property during the daytime.”
“In other words, (the city) argues it does not criminalize homelessness so long as the homeless are nocturnal,” Cormac wrote. “The court is unpersuaded.”
Carney’s ruling doesn’t mean the houseless advocates have won the case, only that it may proceed toward trial.
The city’s contracted attorneys, Joshua George and Michelle Gearhart, however, defended SLO’s measures to enforce “time, place, and manner regulations that govern where, when, and how homeless individuals may occupy public property,” they wrote in their argument to dismiss.
They cited health and safety laws designed to protect public property and provide sanitary conditions.
“Nothing in (federal law) prohibits the enforcement of laws governing the use of public spaces like the ones challenged here,” they argued.
Comments on ruling
The lawsuit was filed on behalf of Hope’s Village SLO and Pamela Langley, Renee Askew, Aaron Stinnet, Edward Marquez and Christina Malmen.
“Instead of trying to resolve plaintiffs’ claims, the city expended wasteful resources trying to fight the case, filing a motion to dismiss, asking the court to dismiss all of the plaintiffs’ claims, and alleging that Hope’s Village did not have standing to bring a lawsuit,” said Frank Kopcinski and Lauren Hansen, the plaintiffs’ lawyers, in a news release.
Kopcinski, directing attorney of the nonprofit California Rural Legal Assistance, added: “We believe this is a positive ruling. We are excited to continue to move forward in litigation and fight for the rights of our clients and the unhoused community in SLO.”
Hope’s Village Director Becky Jorgeson said in a news release, “We have tried for 10 years to get more help for our homeless people who have little or no income or chance of getting housing. We have tried to persuade the city to follow the law. Someone has to break the chain. Let it be us.”
Marquez added, “I hope that this will result in good things happening and more awareness of homelessness issues in the city, and more understanding that what has been happening has been wrong and things have to change.”
SLO officials said in a statement: “The city of San Luis Obispo’s goal is to prevent homelessness and reduce chronic homelessness. To do that, we all need to work together as a community.”
The city hoped the dismissal would allow it to be “fully dedicated to delivering solutions, rather than defending our community against legal action,” noting it remains confident the facts will support compliance with the law and demonstrate “ongoing commitment to assisting individuals who are willing and ready to take an active role in accessing shelter and other critical services.”
This lawsuit “doesn’t represent everyone experiencing homelessness within our city and is especially disheartening because the city is doing more now than ever before to prevent and reduce chronic homelessness,” city officials wrote.
“Through the continued outreach of our Community Action Team in coordination with our Continuum of Care partners, we are actively helping many local unsheltered community members enroll in benefits programs, seek case management, and access shelter or housing,” they said.
Points of debate
The Eighth Amendment prohibits “cruel and unusual punishments” and under the precedent case of Martin v. City of Boise, criminal penalties are prohibited against homeless individuals sitting, sleeping or lying outside on public property when they cannot obtain shelter.
“A city is not required to provide sufficient shelter for all homeless people in it, but ‘so long as there is a greater number of homeless individuals in (a city) than the number of available beds (in shelters),’ the city may not prosecute homeless people for ‘involuntarily sitting, lying and sleeping’ outdoors on public property,” Carney wrote. “Plaintiffs have sufficiently alleged an Eighth Amendment violation.”
The nonprofit 40 Prado Homeless Services Center, operated by Community Action Partnership of San Luis Obispo (CAPSLO), has capacity for 124 people.
The 2019 point-in-time homeless census counted 482 unsheltered in SLO, accounting for the latest data with a planned update this month.
“But (the city) does not explain where a homeless person may lawfully sit, lie or sleep at night without violating the ordinances,” Carney wrote.
Between May 2018 and June 2021, the city issued more than 300 criminal and administrative citations punishing people for violating ordinances, according to the claim presented.
SLO has enforced rules around overnight use of parks, creek and trail areas, and fines against plaintiffs have ranged between $130 and $861.
“The commonplace regulations at issue include the city’s closure of public parks at night and its prohibition on off-trail travel that can result in flood and habitat hazards to people, erosion problems and natural resource damage,” the city’s attorney’s wrote in a Feb. 14 filing.
City attorneys have argued that unhoused plaintiffs have chosen not to use shelter, disputing claims of lack of availability.
“Plaintiffs have pled that shelter was in fact available to them, but they have chosen not to utilize it for various personal reasons,” the city’s motion noted.
The shelter’s chore and residency policies, as well as plaintiffs’ health concerns, have been cited as reasons people don’t use 40 Prado, the city’s attorneys noted.
“It is not an act of compassion to enable unsafe living conditions outdoors in public spaces in a community where services and shelter are available,” SLO officials stated Thursday. “We look forward to resolving this distracting lawsuit and remain fully open to working with any and all willing partners toward solutions.”
City Attorney Christine Dietrick said: “The facts and the law support the city’s position, and the ruling doesn’t address the fundamental piece of Boise in the footnote of the (Boise) ruling (related to enforcing regulations). The ruling also doesn’t address that we sought and tried to find shelter for unhoused individuals.”
Dietrick said the city is “always willing to explore constructive alternatives to people who want help.”
Arguments on both sides
The homeless and advocacy group argue the city’s behavior has been “particularly cruel during the pandemic, as the constant moving of people contributes to heightened risk of the spread of COVID-19.”
In Spring 2020, Centers for Disease Control guidelines urged local governments not to clear encampments during the pandemic unless individual housing options are available.
“Nevertheless, the city has continued to clear homeless encampments during the pandemic, with the city’s police captain explaining that the CDC’s statements are only ‘recommendations,’ not ‘laws,’” the judge wrote.
Additionally, Carney wrote that sufficient allegations were presented “that the city’s sweeps and property seizures discriminate against people with with mental and physical disabilities because such people are likely to suffer aggravated effects from the city’s sweeps and property seizures, and because the city fails to provide reasonable accommodations based on disabilities.”
George and Gearhart, however, argued in the city’s motion-to-dismiss argument that the plaintiffs haven’t “exhausted all ‘feasible’ alternatives to violating the ordinances at issue in this case.”
The city denies that it has violated CDC guidelines on encampments amid the pandemic, contending that “none of (the unhoused) accepted temporary shelter following encampment cleanups.”
The city notes that it has spent “millions of dollars in support of a comprehensive homeless services center, safe parking sites connected to supportive services, a Community Action Team social worker, and the expansion of city services to add its mobile crisis unit to perform homeless outreach, to name just a few of its measures.”
“But even assuming that the city could plausibly be held liable for moving individuals from encampments into shelters — or even from one outdoor location within the city to another — plaintiffs do not allege that they have been exposed to the danger of an elevated risk of COVID-19 transmission, let alone that they contracted COVID-19 as a result of the city’s actions,” SLO attorneys wrote.
The attorneys argued that CDC guidance doesn’t compel the city to “allow squalor at encampment sites to proliferate unabated, or to rent COVID-19 motel rooms, or to purchase COVID-19 supplies for homeless individuals.”
Carney wrote that the city’s deadline to file a legal answer to the lawsuit complaint is due Feb. 22.
This story was originally published February 10, 2022 at 1:15 PM.
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