Ordinances Targeting the Homeless: Constitutional or Cost-effective?
Ellen M. Marks, Ordinances Targeting the Homeless: Constitutional or Cost-ef ective?
Ordinances Targeting the Homeless: Constitutional or Cost-efec tive?
Ellen M. Marks 0
Local Government Law Commons 0
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Ordinances Targeting the Homeless:
Constitutional or Cost-effective?
Ellen M. Marks*
* J.D., 2014 Washington and Lee University School of Law, B.A., 2009 Loyola
Marymount University. I would like to thank Speedy Rice for advising me on this Note, and
on countless other matters; I would also like to thank my parents for their support.
Now in contiguous drops the flood comes down,
Threatening with deluge this devoted town….
Here various kinds, by various fortunes led,
Commence acquaintance underneath a shed.1
-Jonathan Swift, Description of a City Shower
Jonathan Swift’s Description of a City Shower demonstrates that
homelessness and poverty have been an issue in society since some of the
earliest writings in the English language.2 The homeless consistently
struggle to survive as society attempts to alleviate their troubles. They also
often face legal difficulties. California, which houses a substantial
homeless population, is representative of the United States’ management of
the homeless and their legal rights. This Note explores various California
ordinances and their legal effects on the homeless population. First, this
Note gives background information about homelessness historically and in
the United States today and discusses the homeless population’s legal
issues. Second, this Note discusses California statutes as they intertwine
the homeless population and the legal system. Finally, this Note proposes
two solutions to the homeless population’s legal issues: more housing for
the homeless as a preventive measure and committed lawyering as a
I. History and Issues of Homelessness
European countries have been coping with homelessness and poverty
since before the United States became a nation.3 In England, for example,
the Elizabethian Poor Law of 1601 imposed a tax on residents to support
provisions for the indigent who had lived in a community for at least three
years.4 Although there were taxes to support the homeless, there were also
laws requiring the expulsion of vagrants from communities that lacked
1. JONATHAN SWIFT, Description of a City Shower, in MISCELLANIES IN PROSE AND
VERSE 404 (1711) (describing a downpour in London in the 1700’s during which all classes
of wealth and political preference are forced to mingle in order to escape the rain).
2. See id. (commenting on class division and homelessness in the 1700’s).
3. See RUSSEL K. SCHUTT & STEPHEN M. GOLDFINGER, HOMELESSNESS, HOUSING AND
MENTAL ILLNESS 49 (2011) (codifying provisions for the poor in England’s Elizabethian
Poor Law of 1601).
4. See id. at 49 (“Many larger towns and cities used poorhouses to provide lodging to
paupers and to ensure some control over their circumstances.”).
housing for them.5 Communities often permitted members to register their
houses for lodging these vagrants and receive funds to support dependent
boarders.6 These provisions were adopted in the American colonies and
remained in force until the early nineteenth century.7
Despite the above, homelessness continues to be an issue today. The
plight of America’s homeless has only become worse as a result of the
Nation’s financial crisis and the rise of home foreclosures and evictions.8
Current statistics show that 5 percent of United States adults report an
episode of homelessness lasting a week or more.9 Each year between two
and three million people in the United States experience an episode of
homelessness,10 or a separate, distinct, and sustained stay on the streets
and/or in an emergency shelter.11
Administrative data now makes it possible to describe the
demographic character of the homeless.12 Each year, the U.S. Department
of Housing and Urban Development analyzes Homeless Management
Information System (HMIS) data provided by a nationally representative
sample of communities and produces a report to Congress called the
Annual Homeless Assessment Report (AHAR).13 The most recent data
5. See id. (“The 1662 Law of Settlement and Removal required expulsion of vagrants
from communities after forty days unless they paid ten pounds per year.”).
See id. (explaining the earliest provisions for the poor in England).
7. See id. (“Both poorhouses and station houses had been abandoned as lodging
options for indigent persons by the twentieth century.”).
8. See Crimes Against America’s Homeless: Is the violence growing?: Hearing
before the Subcommittee on Crime and Drugs on the Committee of the Judiciary, Serial No.
J–111–112, 9 (Sept. 29, 2010) (explaining that the plight of the homeless continues to be a
struggle for tireless advocates for the homeless).
9. ROBERT ROSENHECK, Service Models and Mental Health Problems:
CostEffectiveness and Policy Relevance, in HOW TO HOUSE THE HOMELESS 17
Ellen & Brendan O’Flaherty eds., 2010)
10. AMERICAN PSYCHOLOGY ASSOCIATION, Psychosocial Factors and Homelessness,
APA.ORG, http://www.apa.org/pi/ses/resources/publications/homelessness-factors.aspx (last
visited Oct. 16, 2012).
11. See Helping Families Save Their Homes Act of 2009, P.L. 111-22, 123 Stat 1632,
S. 896-38 (May 20, 2009) (“The term ‘chronically homeless’ means, with respect to an
individual or family, that the individual or family—(i) is homeless and lives or resides in a
place not meant for human habitation, a safe haven, or in an emergency shelter. . . . ”); see
generally U.S. DEP’T OF HOUS. AND URBAN DEV., http://portal.hud.gov/hudportal/HUD.
12. See JILL KHADDURI, Residential Subsidies: Reducing Homelessness, in HOW TO
HOUSE THE HOMELESS 61
(Ingrid Gould Ellen & Brendan O’Flaherty eds., 2010)
the recent developments and efficiencies in data collection on homeless).
13. See id. at 61 (“With some exceptions, administrative data do not describe people
who are homeless on the street. However, most people who live on the street come into
shows that 48 percent of those who use a homeless shelter at some time
during the course of a year are individual men, 18 percent are individual
women, and 32 percent are members of families.14 Generally, the majority
of the sheltered homeless are in principal cities.15 In many states, a large
proportion of the homeless people are in the state’s largest city.16 In
California for example, 44 percent of the homeless population are in the
county of Los Angeles.17 Skid Row, in Los Angeles, has one of the highest
concentrations of homeless people in the country.18
The homeless population suffers an abundance of problems. Because
shelter is their primary issue, there are various systems and residential
programs for the homeless in the United States. These programs include
emergency shelters, transitional housing programs, and permanent
supportive housing, sometimes called supported housing.19 According to
the Department of Housing and Urban Development’s latest report to
Congress, approximately 640,000 persons were homeless on any given
night in 2009, and roughly 1.5 million people, or one out of every 200
Americans, spent at least one night in a shelter during 2009.20 Regardless
of emergency shelters, transitional housing programs, and permanent
supportive housing, many homeless still spend their nights on the street.21
Along with their primary housing issues, many homeless suffer from
medical problems. Certain health problems are antecedents or even causes
of homelessness, such as schizophrenia or degenerative diseases that
accompany old age.22 Once homeless, a person is more likely to experience
a new assortment of health issues, such as malnutrition and trauma.23
Homelessness may also exacerbate or complicate the treatment of many
health problems.24 In this sense, homelessness has many causes, but also
many effects, making homelessness cyclical. In whatever setting studied,
alcoholism is the most frequent single disorder diagnosed. 25 Combined, the
total percentage of homeless suffering from mental illness or substance
abuse is 83 percent.26 Because the causal relationship between the
homeless and alcohol abuse is so complex, the homeless population’s
medical problems are difficult to solve.27
On top of housing obstacles and medical problems, the homeless are
poorly perceived in the community. Homeless persons are often the most
marginalized, disadvantaged, and disenfranchised in society.28 Social
isolation is particularly severe among persons with serious mental illness
who are homeless.29 There is a strong tendency for the public to link
homelessness to deviant status.30
With these community perceptions, abuse of the homeless has been
problematic. Whether abuse of the homeless is on the rise in the United
States is currently debated.31 The Senate’s Congressional Subcommittee on
See id. at 41 (describing health problems that are a result of homelessness).
24. See id. at 60 (mentioning that alcohol has historically been associated with
See id. (mentioning the causes and effects of homelessness on health).
See id. at 56 (tallying various statistical studies).
27. See id. at 62 (“[P]recise knowledge of [the causal relationships between problems
with alcohol and homelessness] may not be possible or even as… relevant as one might
29. See RUSSEL K. SCHUTT & STEPHEN M. GOLDFINGER, supra note 3, at 49 (describing
social relations among the homeless, particularly once they have withdrawn from others in
30. See Wes Daniels, Derelicts, Recurring Misfortune, Economic Hard Times and
Lifestyle Choices: Judicial Images of Homeless Litigants and Implications for Legal
Advocates, 45 BUFF. L. REV. 687, 717 (1997) (“A majority (53.5 percent) of people
surveyed . . . agreed with at least one of the following statements: homeless people are ‘more
dangerous than other people,’ are ‘more likely to commit violent crimes than other people,’
or ‘should be kept from congregating in public places for public safety.’”).
31. See generally id.; see also Deborah A. Schmedemann, Thorns and Roses 107
(2010) (describing a homeless man’s experience being kicked, punched and knocked over by
Crime and Drugs recently convened to question whether legislative action
should be taken in order to prevent this abuse from continuing.32 The
Committee expressed concern about hatred against the homeless33 in the
United States.34 Overall, due to public perception of the homeless, along
with their housing struggles and medical misfortunes, there is great
potential for the abridgment of their rights. The homeless, as with any
party asserting a legal claim, need legal representation.
Homeless representation in the court system is a fairly recent
development. The age of litigation concerning the rights of homeless
individuals predates 197935 with Callahan v. Carey.36 Callahan marks the
beginning of an era in which lawyers consciously set out to use lawsuits to
improve the living conditions for homeless individuals.37 Callahan paved
the way to the expansion of emergency shelter options for the homeless.38
O’Connor v. Donaldson39 and Foucha v. Louisiana40 built upon the
beginning of this litigation and refined the recognition of homeless
population’s constitutional rights. Both cases examine the involuntary
confinement and subsequent deprivation of constitutional freedoms.41
32. See generally Crimes Against America’s Homeless: Is the violence growing?:
Hearing before the Subcomm. on Crime and Drugs on the Comm. on the Judiciary, Serial
No. J–111–112 (Sept. 29, 2010) (statement of Benjamin L. Cardin, Senator) (meeting and
debating whether there is a current escalation in abuse of the homeless).
33. See id. at 1 (statement of Senator Cardin) (“When I hear the horrific stories about
murders, assaults, and rapes committed against our Nation’s homeless, I ask myself: Is this
34. Statistics show that California and Florida are the states where homeless abuse
occurs most frequently. See id. at 163 (according to the National Health Service).
35. See Daniels, supra note 30, at 689 (explaining the age of homeless litigation as an
impetus in establishing the homeless population’s rights).
36. See Callahan v. Carey, No. 79-42582 (N.Y. Sup. Ct. Dec. 5, 1979) (holding that
consent decree required city to furnish plaintiffs’ counsel with copies of shelter termination
sanction notices when such notices were issued to residents of homeless shelters).
37. See Daniels supra note 30 at 689 (explaining that lawyers consciously used
lawsuits to improve living conditions for homeless individuals).
O’Connor deals with involuntary confinement of an individual that was
never mentally ill and never in need of mental treatment.42 Foucha
addresses the continued involuntary confinement of someone that needed
mental treatment at one time but had become mentally stable.43 Foucha led
to broader implications encompassing the right of due process before
deprivation of life, liberty, or property.44 These foundational cases are
often used to litigate against the imprisonment of the homeless.45 More
specific freedoms have been established and homeless citizens’ rights have
been tailored over time through cases. Nelson v. Board of Supervisors of
San Diego County, for example, struck the requirement of a permanent
address for a homeless person’s procurement of benefits.46 Similarly,
Eisenheim v. Board of Supervisors47 invalidated the requirement that
applicants provide a birth certificate or driver’s license before receiving
emergency shelter. Eisenheim also invalidated quota systems controlling
the number of persons receiving emergency shelter. 48
These cases, beginning in 1979, have made progress toward the
recognition of certain inevitable and inherent aspects of a homeless
person’s condition. Poverty and homelessness have been documented as a
proven struggle for centuries with the homeless today remaining an
underrepresented class whose constitutional rights are oftentimes
compromised. These cases recognize that our constitutional rights do not
Assist the Mentally Ill Homeless, 33 COLUM. J.L. & SOC. PROBS. 235, 247 (2000) (referring
to major precedent and decisions regarding homeless rights).
42. See O’Connor, 422 U.S. at 580 (“There can be no doubt that involuntary
commitment to a mental hospital, like involuntary confinement of an individual for any
reason, is a deprivation of liberty[,] which the State cannot accomplish without due process
43. See Foucha, 504 U.S. at 71 (“[T]he Louisiana statute violates the Due Process
Clause because it allows an insanity acquittee to be committed to a mental institution until
he is able to demonstrate that he is not dangerous to himself and others, even though he does
not suffer from any mental illness.”).
44. See id. at 72 (“[T]he Due Process Clause contains a substantive component that
bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the
procedures used to implement them.’”).
Brown, supra note 41, at 247.
46. See Nelson v. Bd. of Supervisors, 235 Cal. Rptr. 305 (Ct. App. 1987) (“The statute
does not exclude those indigent residents without addresses. In defining residence, section
17101 does not mention a dwelling address or otherwise exclude persons without
guarantee a right to housing, but they do guarantee the right of privacy,49
due process,50 and the right to move about freely.51
Because homelessness issues are prevalent in California, and because
the highest concentration of homeless persons in the United States’ is in
Los Angeles,52 California is an exemplar for the United States homelessness
issues. Other cities, such as New York, Chicago, and Dallas, have
ordinances similar to those in California, which target the homeless
population.53 These issues arise from municipal and statewide laws, with
the homeless raising claims at the municipal, as well as state, level.
Sometimes the homeless are dismissed from court whereas other times they
successfully assert their legal rights. This clash between homeless persons
and California laws should and can be prevented with permanent housing
options for the homeless. Once in the courtroom, their rights should be
asserted with effective legal counsel.
II. Homeless Problems in California
There are a variety of laws that target the homeless specifically, as is
apparent through an examination of California codes and ordinances.54
There are three areas of California law that tend to lock-in the homeless: the
Penal Code, the California Business and Professions Code, and various
49. See generally Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678 (1965)
(noting that the First Amendment has a penumbra the that protects individual privacy from
50. U.S. CONST. amend. XIV; U.S. CONST. amend. V (requiring that no person be
deprived of life, liberty or property without due process of law).
51. See Brown, supra note 41, at 235, n. 67 (2000) (“The law is well settled that there
is no federal constitutional right to receive treatment for mental illness at public expense.”).
52. See The Constitution on Skid Row, supra note 18 (mentioning that this is the site of
extended legal battles over the rights of individuals to live on the streets).
53. See Rania Khalek, 12 Most Absurd Laws Used to Stifle the Occupy Wall St.
Movement Around the Country, ALTERNET.ORG, Oct. 14, 2011, http://www.
ment_around_the_country?page=0%2C2 (“Although laws and municipal ordinances vary
from city to city, there is a consistency in the tactics being used to stifle the [Occupy]
54. See CAL. BUS. PROF’L CODE § 2435.2(a) (making it illegal to possess a shopping
A. The California Penal Code, Business & Professions Code, and
The California Penal Code makes it an offense for anyone to lodge “in
any building, structure, vehicle or place, whether public or private, without
the permission of the owner or person entitled to the possession or in
control of it.”55 The homeless and other squatters are the only persons
affected by such a statute. This law opens the door for legal charges of
disorderly conduct or misdemeanors for any homeless person at any given
time,56 operating as a legal basis for police questioning and searches that
often lead to arrest. California demonstrates a trend seen in other states.
New Jersey towns,57 for example, have enacted laws against sleeping in
public, and cities in Florida have decided to remove park benches to deter
the homeless from sleeping there.58
The California Business & Professions Code make it unlawful to
remove a shopping cart or laundry cart from the premises of the parking
area of a retail establishment with the intent to temporarily or permanently
deprive the owner or retailer of possession of the cart.59 Though this law
applies to the public generally, the homeless are targeted due to their
common use of shopping carts for work60 and for storage of their personal
belongings. Once again, California is not alone in its shopping cart theft
law. Other states have similar laws, including Maryland, which is
55. CAL. PENAL CODE § 647(e) (making an offender of anyone “[w]ho lodges in any
building, structure, vehicle or place, whether public or private, without the permission of the
owner or person entitled to the possession or in control of it.”).
56. See id. (“[E]very person who commits any of the following acts is guilty of
disorderly conduct, a misdemeanor.”).
57. See CBS New York, N.J. Town Outlaws Sleeping In Public, CBSLOCAL.COM
(Nov. 6, 2010) http://newyork.cbslocal.com/2010/11/16/nj-town-outlaws-sleeping-in-public/
(“‘This ordinance was amended to help assist the police in addressing the increasing
problem of homeless people sleeping on benches,’ [Police Chief Paul] Morrison said.”).
59. CAL. BUS. PROF’L CODE § 2435.2(a); see also Cal. Bus. Prof. Codes § 22435(a)
(“‘Shopping cart’ means a basket which is mounted on wheels or a similar device generally
used in a retail establishment by a customer and for the purpose of transporting goods of any
60. See Points and Authorities In Support of Continuing and Modifying Probation,
State v. Smith, No. M076149
(Super. Ct. of Cal. filed June 29, 2011)
(on file with
Washington & Lee Journal of Civil Rights and Social Justice) (describing one man’s work
routine as involving the transportation of recyclables from public trashcans to the local
grocery store where he would be paid for them).
considering raising the penalty from a $25 fine to a $100 fine for shopping
Similar to the California Penal Code provision on intoxication, the
California Business Professions Code makes it illegal to be in possession of
“any can, bottle, or other receptacle containing any alcoholic beverage that
has been opened, or a seal broken, or the contents of which have been
partially removed, in any city, county, or city and county owned park or
other city, county, or city and county owned public place.”62 This provision
does not apply when an individual is in possession of an alcoholic container
for the purpose of recycling or other related activity.63 As is the issue with
the penal code intoxication provision, many homeless with alcoholism have
no other location to drink. Their addiction does not stop simply because
they are outside. Many other states have an ordinance similar to
California’s. “Every state has an outright ban on open containers except for
Georgia, Louisiana, Missouri, Montana, Nevada, and Pennsylvania.”64
Along with these statewide codes, municipal codes target or
disproportionately affect the homeless in various cities and counties in
California. The San Diego Municipal Code includes provisions that mainly
affect the homeless.65 Open alcoholic beverages at posted premises are
prohibited.66 The code also makes it illegal to camp or sleep overnight on
any beach or in a park unless specifically authorized by the city.67 Such a
provision affects homeless more than any other class of persons. Because
of fiscal, health, or shelter concerns, many homeless have no other option
but to sleep on the streets.
61. See Hannah Andrson, Maryland Lawmakers Question Outdated Shopping Cart
Theft Law, TIMES-NEWS.COM (Jan. 31, 2013), http://times-news.com/local/x964891674/
Maryland-lawmakers-question-outdated-shopping-cart-theft-law (“The bill would increase
the fine from $25 to $100.”).
62. CAL. BUS. PROF’L CODE § 25620(a).
63. Id. at § 25620(c).
64. OPEN CONTAINER LAWS, http://www.opencontainerlaws.com (last visited Sept. 1,
65. See generally SAN DIEGO MUN. CODE § 56.55, § 55.56, and § 63.20.11.
66. See SAN DIEGO MUN. CODE §55.56 (defining premises as any residence or other
private property, place, or premises, including any commercial or business premises).
67. See id. at § 63.20.11 (“Unless specifically authorized by license or lease from the
City, it is unlawful for any person to remain overnight, or to erect, maintain, use, or occupy
any tent, lodge, shelter, or structure on any public beach in this City, unless the tent, lodge,
shelter, or structure has two sides open and there is an unobstructed view of the interior from
the outside on at least two sides.”).
The Los Angeles Municipal Code prohibits anyone from leaving
baggage or personal property on any sidewalk.68 Though this provision
may apply to shopkeepers or retail businesses, it is directed at a homeless
person’s belongings on public sidewalks. Similarly, the Laguna Beach
Municipal Code prohibits unlawful sleeping or camping in public.69 Again,
this municipal ordinance targets the homeless as it is unlikely that anyone
would choose to sleep on the streets.
The Penal Code, the California Business Profession Codes, and the
Municipal Codes are enforced in various ways. One common mechanism is
a Stay Away Order.70 Stay Away Orders temporarily ban homeless persons
from the area where the misdemeanor occurred.71 Other enforcement
mechanisms include temporary probation and imprisonment.72 Because
these laws target the homeless population, Stay Away Orders, temporary
probation, and imprisonment are common to many homeless people in
California, and in turn, throughout the United States.
B. California Laws Impose Heavy Burdens on Homeless Persons
These state and municipal laws play out daily in many peoples’ lives
around California. A few specific cases demonstrate the clash between
these distinctly tailored laws and homeless people. Some homeless
persons’ claims are successful in fighting these laws whereas other legal
claims only demonstrate a continuing fight to assert constitutional rights.
i. Mr. Smith in San Diego
Mr. Smith is a 67-year-old homeless man in San Diego.73 He was
issued a Stay Away Order for violating California Penal Code 647(e)74
when he was sleeping in public.75 This Stay Away Order led to multiple
criminal causes of action with the city.76
Mr. Smith works in the business of recycling cans.77 His route begins
at one end of the boardwalk. As he walks, he collects cans throughout his
day.78 He then makes his way to the closest can collection location and
uses his earnings at the cheapest nearby grocery store.79 He takes the most
direct route, which involves passing a park in order to cross the bridge that
leads him to the cheapest grocery store in the area. In his usual route, Mr.
Smith violated his Stay Away Order by crossing one of the parks on his
way to the grocery store. He argued that the Stay Away Order was too
broad and prevented him from carrying on his job.80 He relied on In re
White,81 which held that there is an overall requirement of reasonableness in
relation to the seriousness of the offense for which a defendant is
73. See Points and Authorities In Support of Continuing and Modifying Probation,
State v. Smith, No. M076149 at 8
(Super. Ct. of Cal. June 29, 2011)
(on file with
Washington & Lee Journal of Civil Rights and Social Justice) (“[Mr. Smith] is sixty-seven
years old and his health is frail and failing.”).
See CAL. PENAL CODE § 647(e), supra note 55.
75. See generally Defendant’s Statement in Mitigation, State v. Smith, No. M**
(Super. Ct. of Cal. 2012)
; Motion for Judgment of Acquittal; Argument in Support Thereof,
State v. Smith, No. M**
(Super. Ct. of Cal. Aug. 2011)
(on file with Washington & Lee
Journal of Civil Rights and Social Justice).
76. See id. (“A man walked across a street when he should have crossed the exact
same street two blocks to the north…. This is the lowest level of crime….Furthermore,
though Mr. Smith was in violation of a court order, he carried no weapons, he was pleasant
and respectful to the police officer, even giving a gracious nod to the officer during his
incourt testimony….He complied with all commands, but the one ordering him to cross a
street further to the north.”).
77. See Points and Authorities In Support of Continuing and Modifying Probation,
State v. Smith, No. M076149
(Super. Ct. of Cal. June 29, 2011)
(on file with Washington &
Lee Journal of Civil Rights and Social Justice) (arguing that the Stay Away Order was
See id. (describing Mr. Smith’s daily routine).
79. See id. (explaining that Mr. Smith must take this route because it is offers the best
80. See id (mentioning Mr. Smith cannot survive without his daily income from
81. See In Re White 97 Cal. App. 3d 141, 141 (holding that probation for a woman
convicted of soliciting an act of prostitution was unreasonable, unduly harsh and oppressive
for conduct that was not criminal).
convicted.82 A conviction is invalid if it: (1) has no relationship to the
crime of which the offender was convicted; (2) relates to conduct which is
not in itself criminal; and (3) requires or forbids conduct which is not
reasonably related to future criminality.83 Mr. Smith’s presence around the
public park where his Stay Away Order was issued did not relate to future
criminality. It was merely on his daily route to earn money. Here, the city
imposed a punishment on Mr. Smith that affects him more severely than
necessary, resulting in a jail sentence. Because he violated his Stay Away
Order, Mr. Smith is subject to further punishment.
Mr. Smith was later arrested for using a restroom that he was not
permitted to use due to this overbroad Stay Away Order.84 His punishment
was 35 days in jail, but the prosecution sought an additional 225 days.85
The use of a Stay Away Order in this case prevented a homeless man, who
most needs the use of a public restroom, from using it. The result of an
overly-broad Stay Away Order, given because Mr. Smith violated a law
geared at homeless persons, led to Mr. Smith’s incarceration. In response
to the violation of a broad Stay Away Order, Mr. Smith argued that
incarceration does not solve the problem. After incarceration, Mr. Smith
will return to the streets, only to be cited and released again and again, in
A narrowly tailored Stay Away Order could have kept Mr. Smith from
sleeping in a park while still allowing him access to the public restroom.
Overly-broad Stay Away Orders can lead to inevitable jail time and
eventual release. The cycle simply repeats itself once Mr. Smith, or any
other homeless person served with a Stay Away Order, is released from
confinement and once again attempts to earn a living.
82. See id. (“No case has been called to our attention upholding such a broad condition
which completely prohibits mere presence in a geographical area at all times as contrasted
with the prohibition of entry into selected and particularized places . . . with reasonable
restrictions as to time.”).
83. See generally People v. Lent, 15 Cal.3d 481, 486 (1975) (“The Legislature has
placed in trial judges a broad discretion in the sentencing process, including the
determination as to whether probation is appropriate and, if so, the conditions thereof.”).
84. See Statement in Mitigation, State v. Smith, No. M**
(Super. Ct. of Cal. 2012)
(“The public restroom is within a roughly ten block area where [Mr. Smith] is not permitted
85. See id. (responding to the prosecution’s argument for the 225-day extension).
86. See id. (mentioning this as a possible chain effect of the San Diego Municipal
Code and its implementation).
The root of Mr. Smith’s jail time is the Stay Away Order for Sleeping
In Public.87 This law targets homeless persons more than anyone else.
Though the state may not criminalize one for their state of being or punish a
person independent of anything he has done,88 charging a homeless person
for sleeping in public does criminalize a person for their status, independent
of anything he or she has done.
Whether Mr. Smith’s jail sentence for violating a broad Stay Away
Order is an appropriate punishment can be answered by exploring the
general objectives of sentencing as codified by California statute.89 These
include: (1) the protection of society; (2) the punishment for an unlawful
action; (3) the encouragement of a criminal defendant to lead a law-abiding
life in the future; (4) the deterrence of others from similar criminal conduct
by demonstrating the consequences of a certain set of actions; (5) the
prevention of the criminal defendant from committing new crimes by
quarantining him for a period of time; and (6) the achievement of
uniformity in sentencing.90
Sentencing Mr. Smith to jail does not fulfill these objectives. Society
is not safer as a result. Neither Mr. Smith nor others are deterred from
criminal conduct, because Mr. Smith did not act with criminal intent
deserving of such consequences. Similarly, sentencing Mr. Smith to jail
advances neither governmental nor societal interests. Mr. Smith is targeted
because of his lifestyle and state of being. While collecting cans, walking
to the grocery store, and using a public restroom, Mr. Smith violated
California laws, at both the municipal and the state level. His incarceration
does not serve general objectives of sentencing because society was never
endangered by his acts. Mr. Smith’s predicament, caught between being a
law-abiding citizen and being homeless, is not uncommon.
Mr. Smith’s case presents legal issues that he faces in his daily routine.
Many homeless persons’ lives on the street are interrupted by jail time as a
result of laws that target them. Aside from their rotation between the street
and jail, homeless persons also encounter procedural issues in the
courtroom. Procedural roadblocks often prevent recovery, or even
advancement, of a claim. With the help of counsel, homeless persons can
scale these procedural obstacles and win in court.
ii. Porto v. City of Laguna Beach91
In Porto v. City of Laguna Beach,92 a homeless plaintiff argued that
citation of the homeless for sleeping in public violated his constitutional
rights. The Plaintiff was charged with violating section 8.30.03093 of the
municipal code, which prohibits sleeping in public. He proceeded pro se94
to assert his constitutional rights.95 Additionally, he claimed that his
citations under section 8.30.030 and section 647(e) are used only against
homeless persons sleeping in public. He maintained they were used to
“harass [the homeless] and encourage them to leave Laguna Beach.”96 His
claim was based on the notion that there are no legitimate government
interests at stake. He slept “in constant fear and anxiety of being
awakened… by the police.”97 His argument was based on the notion that
the ordinance targeted him as a homeless person, based on his social status.
The Plaintiff sought “injunctive relief preventing defendants from
enforcing the anti-camping ordinance against homeless persons,”98 but
admitted he had not yet been personally harassed.99 The court dismissed his
claim. This claim alone demonstrates one homeless man’s voice against
laws that discriminate against him as a person, solely because of his social
The last facet of his complaint is equally telling. Porto contended that
the city failed to train its police officers in proper treatment of homeless
persons and that this lack of training resulted in the deprivation of
constitutional rights. Plaintiff’s claim was based on an improper custom in
the police workplace. In dismissing his claim, the court relied on its finding
that he did not prove there was a custom among the police. “A custom may
be inferred from evidence of repeated constitutional violations for which
the errant municipal officers were not discharged or reprimanded.”100
Federal Rule of Civil Procedure 8(a),101 requires “a ‘showing’ that the
plaintiff is entitled to relief, rather than a blank assertion of entitlement to
relief.”102 Rule 8 does not require “detailed factual allegations,” but it
nevertheless “demands more than an unadorned, ‘the
The court found that the plaintiff’s complaint did not identify any
underlying claim and that he did not suffer “injury by being shut out of
court.”104 The court seemed comfortable using procedural safeguards in the
Federal Rules of Civil Procedure. Though Plaintiff’s claim was dismissed,
his attempted lawsuit shows an unheard voice in the system. A single
allegation of improper treatment by police officers should be sufficient to
permit a pro se complaint to proceed. It is clear that the law affects the
plaintiff’s constitutional rights, and likely those of many other homeless
persons in Laguna Beach.
iii. Stewart v. St. Vincent de Paul105
As in Porto, the Plaintiff in Stewart proceeded pro se, alleging that his
constitutional rights were violated when he was prohibited from assembling
on the sidewalk with others.106 He further alleged that the defendants used
“threats, calls to police, denial of restroom access and free food and shelter
to residents”107 solely for congregating on the sidewalk outside St. Vincent
de Paul, a shelter aimed at breaking the cycle of homelessness in San
Diego.108 The court held that Stewart lacked jurisdiction absent a showing
of a colorful constitutional claim because he failed to show that the
representations of St. Vincent de Paul constituted government action.109
Procedural safeguards again barred the plaintiff from any recovery, because
the defendants were not proven to be “government actors acting under state
law”110 they were not required to abide by the Constitution. It is notable
that he filed pro se, making it likely that he was unaware of the
requirements for filing a proper claim.111 If the plaintiff had legal
representation, his claim may not have been dismissed. Once again, a
homeless voice is heard through a complaint, but stifled from a public
hearing and public scrutiny due to procedural roadblocks.
iv. The Sipprelle Agreement112
Not all claims by homeless persons are dismissed for procedural
insufficiencies. The discord between homeless persons and the legal
system is shown in the Sipprelle Settlement. The Sipprelle Settlement arose
from a lawsuit seeking an injunction to prevent the city of Laguna Beach
and other defendants from enforcing the city’s ordinance that prohibits
sleeping in public.113 On December 23, 2008, plaintiffs, on behalf of five
chronically homeless individuals, filed a complaint against The City of
Laguna Beach and its police force in United States District Court. The
complaint alleged, among other things, that the enforcement of Laguna
Beach Municipal Code section 18.04.020,114 disallowing the use of tents or
covering over six feet high in public, violated the Eighth Amendment’s ban
on cruel and unusual punishment by criminalizing the involuntary condition
of homelessness. The complaint also sought to prevent the enforcement of
Section 647(e)115 of the California Penal Code, which makes it illegal to
lodge in any building, structure or place without the permission of the
owner. The litigation eventually ended in a settlement, with many of the
details remaining confidential. From what was released, the settlement
required plaintiffs’ dismissal of the action in return for two years banning
the use of Section 647(e),116 unless prior notice was given by the City of
The Sipprelle Settlement shows that some cases brought by the
homeless do result in relief. The fact that the Sipprelle claims were settled
hints that there are facts that the City of Laguna Beach did not want
publically released. The cruel and unusual punishment claim leads to
further speculation as to what actually occurred between the City of Laguna
Beach and the homeless. Overall, the Sipprelle Settlement demonstrates
that the homeless deserve and can be afforded relief from these
discriminatory laws. Though settlement agreements do not necessarily
indicate guilt, the modification of the city ordinances and temporary
discontinuation of these ordinances suggests that there was some
constitutional abridgment. The settlement represents a huge success for the
homeless in Laguna Beach. Such a success would not have been achieved
without effective legal advocacy.
114. See LAGUNA BEACH MUN. CODE 18.04.020 (“No person shall install, erect or
maintain any canopy, awning, umbrella, tent or cover over six feet in height or wider than
six feet square on or in any public beach, park, street, alley or passageway.”).
115. See generally CAL. PENAL CODE § 647(e), supra note 55.
116. See Sipprelle Agreement at 2 (“Except as otherwise provided below, and for a
period of two (2) years following the Effective date of this Agreement, Defendants agree to
furnish Plaintiffs’ counsel with written notice at least thirty days (30) prior to the City’s
resumption of enforcement of . . . §647(e).”).
117. “Prior to such time as Defendants may determine to resume enforcement of
California Penal Code section 647(e), Defendants (including their officers, employees and
agents), except as otherwise provided below, shall not rely on a violation of California Penal
Code §647(e) with respect to lodging in any City public building, structure or place without
the permission of the City for the purpose of establishing probable cause to believe that a
person is engaged in or is about to engage in criminal activity.”
v. Lavan v. City of Los Angeles118
Despite procedural hindrances, the homeless prevailed in the published
opinion of Lavan v. City of Los Angeles. Nine homeless individuals living
in the Skid Row district of Los Angeles charged that the City of Los
Angeles violated their Fourth and Fourteenth amendment rights by seizing
and immediately destroying their unabandoned personal possessions that
were left on public sidewalks. The city seized the property while appellees
attended to necessary tasks, such as eating, showering and using restrooms.
Everyone Deserves a Roof, an organization in Los Angeles, gave
appellees mobile containers (EDARs) to store their documentation, birth
certificates, medications, family memorabilia, toiletries, cell phones,
sleeping bags, and blankets.119 City employees seized and destroyed
appellees EDARs and carts without notice, thereby permanently depriving
appellees of possessions and personal identification. The city did not have
a good-faith belief that appellees’ possessions were abandoned when it
destroyed them.120 If the city had considered the property abandoned, their
destruction would not be unconstitutional.
These homeless, with the help of their lawyers, sought a narrow
injunction to stop the city from seizing property on Skid Row121 absent an
objectively reasonable belief that the property was abandoned, presented an
immediate threat to public health or safety, or was reasonable evidence of a
crime or contraband.122 The claim sought a requirement that the City of Los
Angeles hold the property in a secure location for 90 days if it was
confiscated.123 In its defense, the City relied on Los Angeles Municipal
Code Section 56.11, which provides that “no person shall leave or permit to
remain any merchandise, baggage or any article of personal property upon
any parkway or sidewalk.”124 Despite this ordinance, the seizing of
property while these people used the restroom, showered, and shaved seems
to reach far beyond the municipal code’s intent. There are other modes the
city could have used to deal with this. Temporary restraining orders are
used to serve the public interest by allowing the City to “lawfully seize and
detain property, as opposed to unlawfully seizing and immediately
destroying property.”125 Rather than taking a lawful approach, the city
claimed that the appellees had no legitimate expectation of privacy in
property that they left unattended on a public sidewalk in violation of the
municipal code.126 Such a defense undermines the fundamental right to
The court held that the city meaningfully interfered with appellees’
possessory interests.128 This Ninth Circuit poignantly states: “government
may not take property like a thief in the night; rather, it must announce its
intentions and give the property owner a chance to argue against the
taking.”129 “The city demonstrate[d] that it completely misunderst[ood] the
role of due process by its contrary suggestion that homeless persons
instantly and permanently lose any protected property interest in their
possessions by leaving them momentarily unattended in violation of a
123. See id. (“The narrow injunction bars the City from: . . . Absent an immediate threat
to public health or safety, destruction of said seized property without maintaining it in a
secure location for a period of less than 90 days.”).
124. L.A. MUN. CODE § 56.11.
125. Lavan v. Los Angeles, 11-56253, 2012 WL 3834659, 1026 (9th Cir. Sept. 5,
126. See id. at 1031 (describing the City’s claim that there is no law establishing an
individual’s constitutionally protected property interest in unattended persona property left
illegally on the public sidewalk).
127. This has been recognized by some of the United States’ greatest patriots: John Jay,
“No power on earth has a right to take our property from us without our consent.”; Calvin
Coolidge, “Ultimately property rights and personal rights are the same thing.”; Arthur Lee,
“The Right of property is the guardian of every other Right, and to deprive the people of
this, is in fact to deprive them of their Liberty.”
128. See Lavan, at 1028 (explaining the breadth of possessory interests).
129. See The Constitution on Skid Row, supra note 18 (“The city seized identification
papers, family photographs and other personal belongings of homeless people, when they
left their things momentarily as they stepped away to eat, shower, use a bathroom or tend to
some other need.”).
municipal ordinance.”130 Even if the city assumes that appellees violate
§56.11 by momentarily leaving their unabandoned property on Skid Row
sidewalks, the seizure and destruction of appellee’s property remains
subject to the Fourteenth amendment’s reasonableness requirement.131
This deprivation of property is especially troubling considering the
vulnerability of Skid Row’s homeless residents.132 The City was directed
“to leave notice in a prominent place for any property taken on belief that it
is abandoned, including advising where the property is being kept and when
it may be claimed by the rightful owner.”133
There is discrimination in the California Penal Code, multiple
municipal Codes, and the California Business & Profession Code because
they apply almost exclusively to homeless people. When these codes
intersect with the homeless population, the legislation’s shadowed target
becomes more apparent. Despite the fact that many homeless persons’
claims are dismissed through procedural safeguards, there is abuse being
vi. The Constitution: from Mr. Smith to Sipprelle
Cases such as Lavan v. Los Angeles and Porto v. Laguna Beach are the
first step in recognizing flaws in our legal system. From Mr. Smith’s
pleadings in San Diego to the Sipprelle Settlement in Laguna Beach, the
homeless throughout California have brought a variety of challenges to
violations of their constitutional rights. The Constitution applies to all
citizens, and oftentimes noncitizens, in the United States, regardless of their
financial or housing position. The claims asserted by many of California’s
homeless population include the right to equal protection under the law, the
right to remain free from cruel and unusual punishment, and the right to
Mr. Smith’s case presents an equal protection problem. The
Fourteenth Amendment commands that no person be denied equal
protection of the law by any state.134 The Equal Protection Clause
130. Lavan, at 1032.
131. See id. at 1036 (explaining the reasonableness requirement weighs in favor of the
132. See id. at 1032 (emphasizing the upsetting details of the case).
133. Id. at 1026.
134. U.S. CONST. amend XIV (“[N]or shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.
Ed. 60 (1803) (“[i]t cannot be presumed that any clause in the Constitution is intended to be
introduces the requirement that individuals who are similar to each other
must be treated similarly.135 This means that absent criminal or threatening
behavior, the right to go about one’s routine, free of government
interference, is to be enjoyed by all. Because his stay away order was
overly broad, Mr. Smith’s right to go about his daily business without
government interference was forfeited. Under the Equal Protection Clause,
Mr. Smith should be treated the same as all other residents and visitors in
San Diego; he should be permitted to walk freely through the City of San
Plaintiffs in the Sipprelle Agreement advanced their claim under the
Eighth Amendment’s136 ban on cruel and unusual punishment. The
standards for what constitutes cruel and unusual under the Constitution are
determined by our ever-evolving society.137 Because cruel and unusual
punishment is defined by society, the question becomes whether an average
member of society may find it cruel or unusual to be awoken in the night
and imprisoned for sleeping on the street out of necessity. The notion of
punishing a homeless person merely for sleeping on the street when they
have no home seems inherently cruel. It is likely that this argument was
fundamental in Sipprelle.
Plaintiffs in Lavan were successful in asserting their right to property
when city employees deprived them of property without due process.138
Though the definition of property can oftentimes be an issue in Fourteenth
Amendment claims, it is unquestionable that the EDAR containers,
plaintiffs’ birth certificates, medications, and family memorabilia constitute
without effect. . . . ”).
135. See Cleyburne v. Cleburne Living Center, 105 S.Ct. 3249, 3254 (“[A]ll persons
similarly situatied should be treated alike.”); see also Giovonna Shay, Similarly Situated, 18
GEO. MASON L. REV. 581, 583 (“The words ‘similarly situated’ appeared in equal protection
doctrine long before the advent of the modern, “tiered” form of equal protection analysis,
which employs varying levels of scrutiny based on the protected class.”).
136. U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”).
137. See Juliet L. Ream, Capital Punishment for Mentally Retarded Offenders: Is It
Morally and Constitutionally Impermissible?, 19 SW. U. L. REV. 89, 132 (1990) (“What is
cruel and unusual punishment does not change. It is the yardstick that is used to measure
what is cruel and unusual punishment that changes. . . . ”); see also Trop v. Dulles, 356 U.S.
86 (1958) (“The [Eighth] Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society.”).
138. U.S. CONST. amend. XIV (“[N]or shall any State . . . deny to any person within its
jurisdiction the equal protection of the laws.”).
Because the plaintiffs in Lavan were deprived of property, the
government must prove that they were afforded due process. “The point is
straightforward: the Due Process Clause provides that certain substantive
rights—life, liberty, and property—cannot be deprived except pursuant to
constitutionally adequate procedures.”139 There are different elements of
the adversary process that may be required as a part of the “due process”
that the government must afford an individual when it deprives him or life,
liberty, or property.140 Giving notice is one of the primary steps required
before the government may deprive individuals of a constitutionally
protected right.141 The facts in Lavan show that the city failed to give
notice to the homeless persons on Skid Row before the deprivation and
destruction of their property.
Equal protection, freedom from cruel and unusual punishment, and the
right to possess property find harmony in personal autonomy. When
considered more broadly, the Constitution is the means for rectifying a wide
range of injustices.142 In promoting the ratification of the Constitution, the
Federalist Papers143 concentrated on the Constitution’s fundamental goal of
justice; “[j]ustice….ever has been and ever will be pursued until it be
obtained, or until liberty be lost in the pursuit.”144
The California homeless population is entitled to the justice
guaranteed under the Constitution. The abridgment of their constitutional
rights can be rectified with both preventive measures and remedial
measures. These constitutional claims may be prevented with more
housing options and available legal counsel. Once in the courtroom,
devoted legal counsel can work to remedy these injustices with zealous
advancement of a homeless person’s rights.
III. Addressing Legal Issues of the Homeless
Ending this conflict between the homeless and local ordinances
requires a two-pronged approach. First, housing the homeless is a simple,
preventive solution.145 Second, the justice system may need to take a more
active role in remedying the issues faced by many homeless in California
and throughout the United States.
A. Policy i. Providing Housing to the Homeless
Providing housing to the homeless is a viable solution. Research and
experience over the past twenty years have shown that there is a
costeffective solution to homelessness known as “permanent supportive
housing.”146 In practice, providing permanent supportive housing to people
experiencing homelessness saves taxpayers money.147 Homeless people
spend an average of four days longer per hospital visit than comparable
non-homeless people, and they are likely to spend more time in jail or
prison. These costs add up for municipalities.148
The permanent supportive housing theory has been tested recently in
Los Angeles. Providing permanent supportive housing for the homeless in
Los Angeles could save taxpayers thousands of dollars.149 According to a
145. See National Alliance to End Homelessness, Chronic Homelessness: Policy
Solutions (2010), http://b.3cdn.net/naeh/cf8a1ad949f1053993_4bm6iic9r.pdf (“Reductions
in chronic homelessness are largely the result of coordinated and focused efforts by
communities to provide permanent supportive housing for chronically homeless
146. See id. (“Communities across the country that have instituted that approach have
reported a decline in the number of people living on the streets and in shelters.”).
147. See National Alliance to End Homelessness, Cost of Homelessness,
ENDHOMELESSNESS.ORG, available at http://www.endhomelessness.org/pages/
cost_of_homelessness, (last visited Nov. 10, 2012) (citing statistics that hospitalization,
medical treatment, jail time, and emergency shelter are costing cities more than permanent
supportive housing would).
148. See id. (referring to studies showing admissions of homeless people add $4 million
to hospital costs in Hawaii, and each homeless person costs the state of Texas $14,480 per
year primarily for overnight jail).
149. See Nancy Martinez, Study reveals cost of homelessness in LA,
DAILYTROJAN.COM, (Oct. 22, 2009), available at
http://dailytrojan.com/2009/10/22/studyreveals-cost-of-homelessness-in-la/; see also United Way, Homeless Cost Study (Oct. 2009),
http://www.unitedwayla.org/wp-content/uploads/2012/02/Homeless-CostStudy.pdf [hereinafter United Way Homelessness Cost Study] (finding total public service
costs at over $187,000 before and dropping to just over $107,000 after placement in
study conducted by the University of Southern California and the United
Way of Greater Los Angeles,150 taxpayers are spending about $20,000 more
in a two-year period for a person on the street than one in permanent
housing.151 Taxpayers would save 43 percent of costs associated with
homeless persons if the latter were offered a place to live.152 “After being
placed in permanent housing, there was a decrease in their visits to the
hospital, substance abuse, and jail time,”153 said Michael Cousineau, an
associate professor of preventive medicine research at Keck School of
Medicine and the principal investigator for the report. On average, the total
cost to serve one homeless person per month is $2,897, whereas the cost to
directly house a homeless person is reduced to $605 per month.154 These
studies reflect similar findings in other parts of the country.155
Other areas in California have begun to implement the results toward
improving the status of their homeless population.156 San Francisco found
that people in supportive housing have lower service costs, with a 57
percent reduction in emergency room visits and a 45 percent reduction in
inpatient admissions.157 The city has since initiated a five-year plan to
combat homelessness and its costs.158 One of the first steps San Francisco
considers is “increas[ing] the supply of permanent housing that is
subsidized as required to be affordable to people who are experiencing
150. See generally UNITED WAY OF GREATER LOS ANGELES, http://www.united
wayla.org/ (last visited Jan. 8, 2013).
151. United Way Homelessness Cost Study, supra note 149.
154. See LA Homelessness Examiner, Housing Homeless People Reduces the Cost for
Los Angeles Taxpayers (Feb. 4, 2010),
http://www.povertyinsights.org/2010/02/04/import1435/ (“[T]he public is paying nearly $869 million per year.”).
155. See United Way, Homeless Cost Study (Oct. 2009), supra note 149, (“Other
studies have shown that nights in psychiatric hospital or a night in jail are actually more
costly than a night in permanent supportive housing.”).
156. See id. (“Many cities like San Francisco have done a lot like turning four
crumbling hotels into permanent housing for homeless.”).
157. See San Francisco Local Homeless Coordinating Board: Toward Ending
Homelessness in San Francisco 2008-2013, at 13 (2008), http://www.sfgov3
San Francisco Local Homeless Coordinating Board] (“Permanent supportive housing is a
nationally-recognized practice that has been shown to be effective. . . . ”).
158. See id. at 3 (describing a plan with six priorities: to increase permanent housing,
support transitions, provide interim housing, improve access points, increase economic
stability, and ensure coordinated Citywide action).
homelessness, that is accessible and that offers services to achieve housing
Requiring treatment or sobriety as a condition for housing keeps that
housing away from people who need it most and considerably reduces
housing retention rates.160 Though alcoholism is an issue for the homeless
population, their foremost concern is housing. Because of this, treatment
and sobriety requirements should be abandoned in housing the homeless.
Other necessary steps include providing interim housing in shelters to
support access to permanent housing until it is available, and increasing
economic stability through employment services, mainstream financial
entitlements, and education.161 The anticipated outcomes of the permanent
housing plans include homelessness prevention and reduction, and an
overall drop in costs attributable to homelessness.162
San Diego reports similarly high costs in supporting the homeless due
to frequent ambulance rides, hospital visits, and police encounters.163 San
Diego has implemented Project 25, which provides housing, case
management and social services for the most vulnerable among San
Diego’s homeless population.164 The project will track taxpayer savings
achieved by housing the homeless on a quarterly basis and will
fundamentally change the way homeless services work.165
California, a paradigm for dealing with homelessness issues, is not the
only state that can save money with housing options. In Texas, a single
homeless person can cost taxpayers up to $14,480 a year, primarily for
overnight stays in jail.166 Washington has found that homeless with medical
and mental health issues cost $2,449 less per month when staying in
permanent supportive housing.167 Five studies were conducted to measure
the costs of services used by homeless persons both before and after they
entered supportive housing programs. The results were dramatic. In
Oregon, the cost dropped from $42,075 a year to $17,199 a year.168
Massachusetts had similarly drastic results, with a drop from $28,436 to
$6,056.169 Maine, Rhode Island, and Colorado also experienced decreased
spending between $8,000 and $14,000 per year.170
Providing housing for the homeless is one option for preventing their
legal and life dilemmas. Research shows that providing housing the
homeless is not only effective in California, but in the United States as a
whole. U.S. Department of Housing and Urban Development Secretary
Shaun Donovan has stated “[I]t’s actually, not only better for people, but
cheaper to solve homelessness… [b]ecause, at the end of the day…between
shelters and emergency rooms and jails, it costs about $40,000 a year for a
homeless person to be on the streets.”171 With 150,000 homeless persons
living in the United States, the cost is approximately $10.95 billion
annually.172 If these individuals were all permanently housed, the cost
would drop to $7.88 billion.173 The government could easily invest in
homeless shelters, putting both an end to homelessness and all the legal
battles that accompany it.174
ii. Counsel and Representation
Concurrent with the provision of housing options, it is important for
lawyers to take an active part in changing injustices in our legal system.
Before the homeless assert their rights, they need the assistance of counsel.
As is demonstrated by the failed pro se claims in Porto and Stewart, “[t]he
deck is stacked if you don’t have a lawyer, but if you can get access to
representation, it makes it a fair fight, it makes all the difference in the
world.”175 Had these plaintiffs had legal representation, their constitutional
and statutory rights would have been asserted. Legal representation levels
the playing field, giving the homeless a chance.176
B. Effective Legal Strategy & Advocacy
Once an individual has legal representation, there are various theories
on how lawyering can be truly effective for changing social policy.177
Though there are many techniques to lawyering, this Note will explore two
very different approaches. The first, “rebellious lawyering,” takes a
reformist approach. The second requires established lawyers to pool their
resources in representing the underrepresented in pro bono work.
The first approach, “rebellious lawyering” or “regnant lawyering”
requires that legal work be “anchored in the world… to help change.”178
Rebellious lawyering includes work with women, racial and sexual
minorities, the poor, and the elderly.179 It builds on an obligation to
empower clients through mobilization, organization and
deprofessionalization.180 Rebellious lawyering seeks to change the inefficacy of
intrasystemic remedies to achieve meaningful change in the lives of poor
clients.181 This work must be grounded in the communities of the
subordinated themselves.182 Progressive lawyers who care about social
justice practice rebellious lawyering.183 Their work often includes
cooperation and collaboration with a network of professionals and
The concept of rebellious lawyering was helpful with Mr. Smith’s
various claims. Mr. Smith is an archetype for homeless persons around
California, and even more generally, the United States. Fortunately, Mr.
Smith had a lawyer to help him file his claims and defend himself against
an overly broad stay away order. In his filings, Mr. Smith’s lawyer argued
against the use of overly broad Stay Away Orders and the targeting of
homeless persons. By aiming not only to help Mr. Smith, but to improve
the lives of many homeless persons in San Diego as well, Mr. Smith’s
lawyer practiced rebellious lawyering.
The second legal approach toward changing social policy works from
within the outlines of the established legal system. The leader of the
Sipprelle litigation, Andra Greene from Irell & Manella LLP, took this
approach. Greene represented the homeless persons in Sipprelle185 pro
bono and secured a major victory on behalf of the homeless community in
Laguna Beach, California.186
This approach toward helping the homeless is not rebellious
lawyering. Greene, as a lawyer, is considered part of the establishment.
She works for a large firm in Laguna Beach, renowned for its litigation and
transactional work. Greene’s daily work does not seek to change the lives
of the subordinated themselves, as a rebellious lawyer’s work would.
Rather, she learned of the issue in Laguna Beach from a client of hers who
devotes much of his energy to helping the homeless.187 Upon learning of
the issue, she first tried to negotiate with the City to change the ordinance
that she viewed unconstitutional.188 The City was stubborn, so she
partnered with the American Civil Liberties Union (ACLU) and Dean
Erwin Chemerenski of the University of California at Irvine Law School to
bring suit in federal court.
Their success was due in part to the power of pooling their resources.
Working at a large law firm has great advantages and the coalition of Irell
in an instrumental way; it seeks to improve the lot of the disadvantaged by increasing their
access to rights and to institutionally defined remedies.”).
184. See Lopez, supra note 178, at 412 (1992) (clarifying the definition of regnant
185. See generally Sipprelle Agreement, supra note 79.
186. Irell & Manella LLP, Irell Receives Social Justice Award, IRELL & MANELLA LLP
(June 2010), http://www.irell.com/news-item-80.html.
187. See Telephone Interview with Andra Greene, supra note 175.
& Manella, the ACLU, and Dean Chemerenski was very tough for the city
to beat. Though Greene is not a rebellious lawyer by definition, she
believes lawyers have a responsibility to the profession to do pro bono
work and that this pro bono work can take many different forms. A large,
established law firm is a great vehicle for successful pro bono advocacy.189
The Sipprelle lawyers not only provided exemplary counsel in a
complex case, but also “organized the homeless community, developed
strong relationships with many of its members, educated them about their
rights, and engaged city leaders to promote humane efforts to end
homelessness.”190 As a result of such successful and empowering
advocacy, Greene was awarded the 2010 Social Justice Award from the
American Civil Liberties Union Foundation of Southern California.191
“The ACLU has a long history of defending and preserving civil rights
and liberties” 192 and they continued to defend these rights in Sipprelle.
Similar to rebellious lawyering, the ACLU focused on long-term strategies
to end homelessness, rather than short-term quick fixes to keep the
homeless out of sight.193 Such a strategy, aiming for a long-term remedy
that benefits all the homeless persons in Laguna Beach, coupled with
gaining instant relief for all the parties, is successful for particular plaintiffs
in the short-term and for the homeless population in Laguna Beach
Remedial measures for homeless persons’ rights require more
representation. In order to assert their rights, or even to file a claim
properly, the homeless need legal counsel. Once the homeless have
counsel, there are various theories on how to successfully inspire social
change. From full-time rebellious lawyering to established pro bono work
when the opportunity presents itself, a victory for one homeless person can
be considered a victory for homeless persons throughout the state of
California, or throughout the United States as a whole.
190. See Irell & Manella LLP, Irell Receives Social Justice Award, supra note 195
(quoting Ramona Ripston, ACLU’s executive director).
192. See id. (quoting Andra Greene).
193. Am. Civil Liberties Union, Beach City Agrees to Settlement of Lawsuit over
Treatment of Chronically Homeless People, ACLU-SC.ORG (June 25, 2009),
http://www.aclusc.org/beach-city-agrees-to-settlement-of-lawsuit-over-treatmentof-chronically-homelesspeople/ (“We hope . . . [for] a long-term solution to chronic homelessness by providing
shelters and supportive services. This will not only take people off the street but, as has been
shown time and time again in communities across the country, provide taxpayers with a
more cost-effective and humane way to treat homeless. . . . ”).
I. History and Issues of Homelessness ............................................438 II . Homeless Problems in California.................................................444 A. The California Penal Code , Business & Professions Code , and Municipal Codes............................................................. 445 B. California Laws Impose Heavy Burdens on Homeless Persons..................................................................447 i. Mr. Smith in San Diego . ................................................. 448 ii . Porto v. City of Laguna Beach........................................ 451 iii . Stewart v. St . Vincent de Paul ........................................ 452 iv. The Sipprelle Agreement ................................................ 453 v . Lavan v. City of Los Angeles . ........................................ 455 vi. The Constitution: from Mr . Smith to Sipprelle...............457 III. Addressing Legal Issues of the Homeless....................................460 A. Policy..................................................................................... 460 i. Providing Housing to the Homeless ............................... 460 ii . Counsel and Representation............................................ 463 B. Effective Legal Strategy & Advocacy...................................464 IV. Conclusion....................................................................................467
14. Id . at 62.
15. See id. (“More than three-quarters of sheltered homeless people are in principal cities of metropolitan regions .”).
16. Id . (noting that 41 percent of all homeless people in Illinois are in Chicago and that 82 percent of all homeless people in New York state are in New York City).
17. Id . (basing this data on one-night counts).
18. See Editorial , The Constitution on Skid Row, N.Y. TIMES , Sept. 8 , 2012 , at SR12, available at http://www.nytimes.com/ 2012 /09/09/opinion/sunday/the-constitution -on-skidrow.html?_r=0 (mentioning that this is the site of extended legal battles over the rights of individuals to live on the streets) .
19. Id . at 63 (“ People are still considered homeless during their stays in emergency shelters and transitional housing .”).
20. See generally Crimes Against America's Homeless: Is the violence growing?: Hearing before the Subcommittee on Crime and Drugs on the Committee of the Judiciary, Serial No . J-111-112 (Sept. 29 , 2010 ) (statement of Benjamin L. Cardin, Senator) (presenting various perspectives and statistical analysis on treatment of the homeless ).
21. See EDGAR O. OLSEN , Fundamental Housing Policy Reforms to End Homelessness, in HOW TO HOUSE THE HOMELESS 89 (Ingrid Gould Ellen & Brendan O'Flaherty eds. , 2010 ) (“The failure to offer assistance to all who become homeless is a major defect of the current system of low-income housing assistance .”).
22. See AM . INST. OF MED ., Homelessness Health and Human Needs , 39 - 40 ( 1988 ) (listing various illnesses that lead to homelessness).
28. See Philip Lynch, Critique and Comment: Understanding and Responding to Begging, 29 Melb. U. L. Rev. 518 , 522 ( 2005 ) (describing the demographic profile of people who beg and the causes and consequences of begging).
38. See id. (describing Callahan v . Carey, No. 79 - 42582 (N. Y. Sup . Ct. Dec. 5 , 1979 ) and its effects).
39. See O ' Connor v . Donaldson , 422 U.S. 563 ( 1975 ) (vacating a judgment and remanding to determine damages for an unconstitutional 15-year involuntary confinement of a mentally stable man since he is capable of surviving safely in freedom).
40. See Foucha v. Louisiana , 504 U.S. 71 ( 1992 ) (reversing a judgment that permitted the State to perpetuate confinement if it is proven that someone is not dangerous to himself or others).
41. See Latisha R. Brown , The McKinney Act: Revamping Programs Designed to
47. See Eisenheim v. Board of Supervisors No. C- 27953 (Cal. App. Dep't Super . Ct. Dec . 19 , 1983 ) (challenging identification requirements for emergency housing benefits).
48. See id. (continuing to establish homeless person's rights) . 58 . See J. David McSwane , To Chill Homeless, Sarasota Pulls Park Benches, HERALD-TRIBUNE . COM (May 17 , 2011 ), http://www.heraldtribune.com/article/ 20110517/ARTICLE/110519529.
68. See L.A. MUN . CODE § 56 . 11 (“No person shall leave or permit to remain any merchandise, baggage or any article of personal property upon any parkway or sidewalk .”).
69. See LAGUNA BEACH MUN . CODE § 8.30.030(b) ( 1) (“It is unlawful for any person to sleep in the following public areas: In any public park or beach during the period from onehalf hour after sunset to five a.m. of the following day .”).
70. See BLACK'S LAW DICTIONARY 1548 (9th ed. 2009 ) (“Stay away orders are most often issued in criminal cases .”).
71. See Points and Authorities In Support of Continuing and Modifying Probation, State v . Smith , No. M076149 (Super. Ct. of Cal. June 29 , 2011 ) ( on file with Washington & Lee Journal of Civil Rights and Social Justice) (involving a Stay Away Order from a city park); see also Defendant's Statement in Mitigation, State v . Smith , No. M** (Super . Ct. of Cal. 2012 ) (arguing the Stay Away Order prevented the defendant from using a public restroom and was unreasonable).
72. See Defendant's Statement in Mitigation, State v . Smith , No. M** (Super . Ct. of Cal. 2012 ) (stating that a 90-day probation sentence is overly punitive and that the costs of imprisonment do not outweigh the benefit ).
87. See Motion for Judgment of Acquittal; Argument in Support Thereof, State v . Smith , No. M** (Super . Ct. of Cal. Aug. 2011 ) (on file with Washington & Lee Journal of Civil Rights and Social Justice).
88. See Claire Finkelstein, Positivism and the Notion of an Offense , 88 CAL. L. REV. 335 , 394 ( 2000 ) (citing Robinson v . California , 370 U.S. 660 ( 1962 )) (“[T]he court struck down legislation criminalizing defendant's condition .”).
89. See CAL R. OF CT. 410 .
90. See id.
91. See Porto v. Laguna Beach, SACV 12-00501-DOC , 2012 WL 3810475, at 8-9 (C.D. Cal . Aug. 7 , 2012 ) (report and recommendation adopted , SACV 12-00501-DOC , 2012 WL 3810982) (C.D. Cal . Sept. 4 , 2012 ) (holding that a homeless plaintiff failed to state a claim because he did not show he was personally harassed by the police in Laguna Beach) .
92. See id., at 1 (discussing whether police citations of homeless persons for sleeping in public violates their constitutional and the Sipprelle agreement ).
93. See LAGUNA BEACH MUN . CODE § 8 . 30 . 030 (prohibiting camping in any public area, sleeping in any public park or beach at night, or sleeping on any public street or in any public building at any time).
94. See BLACK'S LAW DICTIONARY 1548 (9th ed. 2009 ) (defining pro se: “one proceeding for himself and on their own behalf , in person”).
95 See Porto , 2012 WL 3810475, at 1 (“Plaintiff claims that Defendants' practice of citing homeless persons for sleeping in public violates both his constitutional rights and the Sipprelle Agreement .”).
96. Id . at 2.
97. Id .
98. Id . at 6.
99. See id. at 2 (“[H] e alleges that on two occasions he was warned by . . . [an] officer that he would be cited if he were found sleeping in his vehicle .”).
100. Id . at 8.
101. FED. R. CIV . P. 8(a) (“A pleading that states a claim for relief must contain: . . . short and plain statement of the claim showing that the pleader is entitled to relief . . . . ”).
102. Porto at 2 (citing Bell At . Corp. v. Twombly, 550 U.S. 544 , 556 ( 2007 )).
103. Id . (quoting Ashcroft v . Iqbal , 129 S. Ct . 1937 , 1949 ( 2009 )).
104. Id . at 6 (citing Chirstopher v . Harbury , 536 U.S. 403 , 415 ( 2002 )).
105. See Stewart v . St . Vincent de Paul, Inc., 12 -CV-642 BEN KSC , 2012 WL 3205576, 1 ( S.D. Cal . Aug. 6 , 2012 ) (holding that Plaintiff failed to prove that St . Vincent de Paul fulfilled the role of government actors).
106. See id., at 1 (“ Plaintiff alleges that Defendants have violated his constitutional rights by prohibiting him and others from assembling on the sidewalk in front of their properties .”).
107. Id .
108. See SAINT VINCENT DE PAUL VILLAGE , http://www.svdpv. org/ (last visited Jan. 8 , 2013 ) ( describing its mission as geared at breaking the cycle of homelessness).
109. See Stewart , 2012 WL 3205576, at 2 (“[T] here are flaws on the face of Plaintiff's Complaint. They are not so serious, however, as to deprive the Court of jurisdiction to hear this case .”).
110. See id. at 3 (explaining that private conduct has different standard of review than government acts).
111. See id. at 1 (liberally construing the Plaintiff's pro se complaint).
112. See Sipprelle v. Laguna Beach, Settlement Agreement (May 19 , 2009 ), available at http://lagunabeachcity.net/civica/filebank/blobdload.asp?BlobID=5479 [hereinafter Sipprelle Agreement] (on file with Washington and Lee Journal of Civil Rights and Social Justice) (settling a claim by homeless persons against police officers for harassment charges ).
113. See id. (explaining the basis for the action ).
118. See Lavan v. Los Angeles, 11 - 56253 , 2012 WL 3834659 , 1023 - 24 (9th Cir. Sept. 5 , 2012 ) (holding the Los Angeles violated the homeless persons Constitutional rights ).
119. See id. at n. 4 (“EDARs are small, collapsible mobile shelters provided to homeless persons by Everyone Deserves a Roof, a nonprofit organization .”).
120. See id. at 1025 (“[O] n a number of the occasions when the City seized Appellees' possessions, Appellees and other persons were present, explained to City employees that the property was not abandoned, and implored the City not to destroy it .”).
121. See Steve Lopez, Now Comes the Heavy Lifting, L.A. TIMES , Oct. 23 , 2005 , http://www.latimes.com/news/local/la-me-lopez23oct23- 2005 , 0 ,7335318.column (“ No official count is available, but it's safe to say thousands sleep on skid row. Some readers have challenged my reference to 10,000 street dwellers, but we know that roughly 3,000 are in shelters, with another several thousand in and out of single-room occupancy hotels and flophouses .”).
122. See Lavan, at 1024 (“ The City [is] able to lawfully seize and detain property, as well as remove hazardous debris and other trash; issuance of the injunction ... merely prevent[s the City] from unlawfully seizing and destroying personal property that is not abandoned .”).
139. Cleveland Bd. of Educ. v. Loudermill 105 S. Ct . 1487 , 1493 n. 3 ( 1985 ).
140. See id. at 1493 n.3 (“The categories of substance and procedure [of the due process inquiry] are distinct .”).
141. See Mullane v. Central Hanover Bank & Trust Co . 70 S. Ct . 652 , 657 (“ The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it .”).
142. See Mortimer Adler, Robert Bork: The Lessons to be Learned, 84 NW. U. L. REV. 1121 , 1133 ( 1190 ) (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. “) (citing U.S. CONST. amend . IX).
143. J. Michael Martinez & William D. Richardson , The Federalist Papers and Legal Interpretation , 45 S.D. L. REV. 307 , 312 ( 2000 ) (“Thomas Jefferson, a states' rights champion and hardly a proponent of a large, powerful, centralized government, proclaimed The Federalist Papers as, “the best commentary on the principles of government which ever was written .”).
144. THE FEDERALIST NO. 51 ( James Madison).
159. Id .
160. INGRID GOULD ELLEN & BRENDAN O'FLAHERTY, HOW TO HOUSE THE HOMELESS 3 ( 2010 ).
161. See San Francisco Local Homeless Coordinating Board, supra n. 164 , at 3 (explaining steps to alleviate homelessness issues in San Francisco).
162. Id . at 17.
163. Dylan Mann , Homelessness: We Can't Afford to Ignore It, VOICEOFSAN DIEGO. ORG (July 5 , 2011 ), http://www.voiceofsandiego.org/peoplespost/healthysan diego/article_ a32d1446 -a1ab - 11e0 - b45e-001cc4c002e0.html.
164. Id . ; see also HOME AGAIN: ENDING CHRONIC HOMELESSNESS IN SAN DIEGO, http://homeagainsd.org/ (last visited Jan. 9 , 2013 ).
165. Home Again , Ending Chronic Homelessness in San Diego: Project 25, available at http://homeagainsd.org/our-progress/project-25 (last visited Nov . 11 , 2012 ) (describing the Project 25 plan) .
166. See National Alliance to End Homelessness, supra note 147 (according to a University of Texas two-year survey of homeless individuals).
167. Id .
168. Jann Swanson , Homelessness Rife with Hidden Taxpayer Costs, MORTGAGENEWSDAILY . COM (Jul. 13 , 2010 ), http://www.mortgagenewsdaily.com/ 07132010_homelessness_costs.asp.
169. Id .
170. Id .
171. HUD Secretary Says A Homeless Person Costs Taxpayers $ 40 , 000 a Year, POLITIFACT . COM (Mar. 5 , 2012 ) http://www.politifact.com/truth-o-meter/statements/ 2012/mar/12/shaun-donovan/ hud-secretary-says-homeless-person-costs-taxpayers/.
172. Cutting the Cost of Homelessness in the U.S., FORBES .COM, Aug. 28 , 2006 , http://www.forbes.com/ 2006 /08/25/us-homeless -aid-cx_np_0828oxford .html.
173. Id .
174. See Martinez supra note 149 (“The costs of government would go down with the reduction of services .”).
175. Telephone Interview with Andra Greene , Partner, Irell & Manella LLP (Feb. 12 , 2013 ) ( on file with the Washington and Lee Journal of Civil Rights and Social Justice) .
176. See id. describing the first step in helping the homeless) (on file with the Washington and Lee Journal of Civil Rights and Social Justice) .
177. See Paul R. Tremblay , Rebellious Lawyering, Regnant Lawyering , And StreetLevel Bureaucracy, HASTINGS L.J. 43 , 947 , 948 ( 1992 ) (“Different models have been offered in an effort both to outline the implementation of progressive practice and to craft theoretical bases for such practice . One significant school of thought urges a “rebellious” approach to lawyering for the subordinated .”).
178. Gerald P. Lopez , Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice , 412 ( 1992 ) (explaining legal approaches for changing social policy).
179. Id . (defining rebellious lawyering).
180. See Tremblay, supra note 177 , at 948 ( describing rebellious lawyering generally).
181. See id. at 953 ( “[Rebellious lawyering] first proposes a restructuring of the attorney-client relationship .”).
182. See Lopez, supra note 178 , at 412 (establishing the roots of progressive, rebellious lawyering ).
183. See Tremblay, supra note 177 , at 953 (“ Regnant lawyering is client-centered, but