Lawsuit Against Homeless Camping Ordinance in Sacramento Raises Important Questions about Private Property Rights

A recent article in the Sacramento Bee addresses a fascinating and important issue: Should homeless people have a right to camp on public or private property (with the consent of the owner) in the city of Sacramento? As the article explains, in 2009, Mark Merin, an attorney and homeless rights advocate, began allowing homeless people to camp on a “vacant lot” that he owned. This led to the creation of what some called a small “tent city” on the property. Soon after, “police raided the encampment, seizing tents, sleeping bags and other property, and detaining and citing homeless people.”

The police were acting pursuant to a Sacramento city ordinance that prohibits “unlawful camping.” The anti-camping ordinance is codified at Chapter 12.52 (“Camping”) of the Sacramento City Code—specifically, Sac. City Code §§ 12.52.010 0 to 12.52.080. Sac. City Code § 12.52.010 sets forth the purpose of the ordinance:

The streets and public areas within the city should be readily accessible and available to residents and the public at large. The use of these areas for camping purposes or storage of personal property interferes with the rights of others to use the areas for which they were intended. Such activity can constitute a public health and safety hazard which adversely impacts neighborhoods and commercial areas. Camping on private property without the consent of the owner, proper sanitary measures and for other than a minimal duration adversely affects private property rights as well as public health, safety, and welfare of the city.

Although the above section states that the purpose of the ordinance is to prevent disruption of public property and of private property without the consent of the owner, Sac. City Code § 12.52.030 (“Unlawful Camping”), the heart of the ordinance, goes further. That section provides in relevant part as follows:

It is unlawful and a public nuisance for any person to camp, occupy camp facilities, or use camp paraphernalia in the following areas

A. Any public property; or

B. Any private property.

  1. It is not intended by this section to prohibit overnight camping on private residential property by friends or family of the property owner, so long as the owner consents and the overnight camping is limited to not more than one consecutive night.

(Emphasis added.) This prohibition of camping on consecutive nights is the key aspect of the ordinance that applies to homeless people and prohibits them from setting up long-term camps on private property such as the lot owned by attorney Mark Merin, even though Merin consents to these people camping on his property for as long as they like.

The ordinance defines “camp” as “to place, pitch or occupy camp facilities; to live temporarily in a camp facility or outdoors; to use camp paraphernalia.” Sac. City Code § 12.52.020. The ordinance also covers sleeping in vehicles, since “camp facilities” are defined as facilities that “include, but are not limited to, tents, huts, vehicles, vehicle camping outfits or temporary shelter.” Id. “Camp paraphernalia” “includes, but is not limited to, bedrolls, tarpaulins, cots, beds, sleeping bags, hammocks or cooking facilities and similar equipment.” Id. A violation of the ordinance is a misdemeanor, punishable by the same remedies as those set forth in Cal. Penal Code § 370, the criminal statute that prohibits “public nuisances.” In addition, “the city attorney may institute civil actions to abate a public nuisance” under the ordinance. Id.

In a separate section, Sac. City Code § 12.52.040, the ordinance also addresses storage of personal property on public and private property. This section makes it “unlawful and a public nuisance for any person to store personal property, including camp paraphernalia, in the following areas, except as otherwise provided by resolution of the city council: A. Any public property; or B. Any private property without the written consent of the owner.” (Paragraphing omitted.) As with the aforementioned “unlawful camping” section, a violation of the anti-storage provision is a misdemeanor punishable by the same remedies as those set forth in Cal. Penal Code § 370, and the city attorney may institute civil actions to abate violations of the section. Id.

An interesting aspect of the section on unlawful storage of property is that, unlike the main section that prohibits unlawful camping, the section prohibiting storage of property contains no “more than one consecutive night” limit. So, a fair reading of the ordinance is that even though it prohibits a homeless person from camping on private property on consecutive nights (even with the permission of the owner), the ordinance would not prohibit anyone from storing personal belongings on the property on consecutive nights as long as that person had the written consent of the property owner. Nevertheless, as the Sacramento Bee article points out, police have “seiz[ed] tents, sleeping bags and other property” belonging to the homeless people whom they cited and detained for camping on Mark Merin’s private property. This may be the basis for another class action suit filed by Merin in 2012 on behalf of homeless people “for reimbursement for bicycles, tents and other items seized by city police during raids of illegal campsites in recent years.”

In fairness to the police, it is possible that in some cases they were acting pursuant to the general public nuisance statute, Cal. Pen. Code § 370, which defines a public nuisance as “[a]nything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway….”

Nevertheless, as the Bee article reports, at least some of the homeless people on Merin’s property were cited under the anti-camping ordinance, and this led Merin to file a complaint challenging the ordinance in Sacramento Superior Court. In February of 2010, a Sacramento Superior Court judge dismissed that complaint. In response, “advocates” filed an appeal challenging the constitutionality of the ordinance. The Bee reports that the California Court of Appeal heard arguments in the case on January 20, 2015, and a ruling is expected 60 days from that date.

Although few people would question a law that prohibits homeless people from blocking access to or otherwise disrupting public property, or from occupying private property against the owner’s wishes, this case is notable in that the ordinance prohibits people from long-term camping on private property even if they have the owner’s permission. The libertarian view is that a person should be able to allow anyone on his or her private property as long as that person’s behavior does not disrupt the rights of others, including nearby property owners.

The anti-camping ordinance goes beyond this free-use principle, however, by simply defining long-term camping on private property, even with the consent of the owner, as a public nuisance and criminalizing such conduct, whether or not the camper has done anything that constitutes a public nuisance under Cal. Penal Code § 370 or any other nuisance statute. It is this feature of the ordinance that makes the case so pivotal and so interesting from the standpoint of private property rights. As the Bee notes, the outcome of the case “could set a precedent for others waging similar battles over the rights of homeless people to sleep outdoors without police interference.”

Needless to say, as soon as the Court of Appeal issues its opinion, you can find further analysis and commentary on this blog.

In a related matter, we are still following the status of California AB 5, the “Homeless Bill of Rights” bill that I blogged about back in January of 2014. As I noted back then, this bill would extend a laundry list of rights to homeless people when they are in a “public space,” such as the right to solicit donations, to “move freely”; to “eat, share, accept, or give food or water”; to not be harassed by police or private security people; to “engage in lawful self-employment (such as recycling and “junk removal”); to pray, meditate, or practice religion; to “decline admittance to a public or private shelter; and to sleep in one’s vehicle, provided it is “legally parked on public property.” As of this blog posting, according to the bill’s legislative history page, it “[d]ied pursuant to Art. IV, Sec. 10(c) of the Constitution” on January 1, 2014″ and then was “[f]iled with the Chief Clerk pursuant to Joint Rule 56” on February 3, 2014.

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