TOBE v. CITY OF SANTA ANA

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Court of Appeal, Fourth District, Division 3, California.

Archie TOBE et al., Plaintiffs and Appellants, v. CITY OF SANTA ANA et al., Defendants and Respondents.

Dawn ZUCKERNICK et al., Petitioners, v. The MUNICIPAL COURT FOR THE CENTRAL ORANGE COUNTY JUDICIAL DISTRICT OF ORANGE COUNTY, Respondent; The PEOPLE, Real Party in Interest.

Nos. G014257, G014536.

Decided: February 02, 1994

Robert Cohen, Crystal Sims, William Wise, Harry Simon, Santa Ana, Kim Savage, Gill Deford, Los Angeles, Lloyd Charton, Tustin, Ivette Pena, San Francisco, Richard Rothschild, Santa Monica, John Huerta, Robin Toma, Los Angeles, Cathy Jensen, Anaheim, Paul Hoffman, Los Angeles, and Christopher Mears, Irvine, for plaintiffs and appellants. Edward J. Cooper, City Atty. and Robert J. Wheeler, Asst. City Atty., for defendants and respondents. Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Kevin J. Phillips, Deputy Public Defenders, for petitioners. O'Melveny & Myers, Phillip R. Kaplan, Brett J. Williamson, John C. Hueston, and Linda A. Bagley, Newport Beach, amici curiae on behalf of petitioners. No appearance by respondent Orange County Mun. Court, Cent. Judicial Dist. Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., Wallace J. Wade, Asst. Dist. Atty., Kathleen M. Harper and E. Thomas Dunn, Jr., Deputy Dist. Attys., for real party in interest.

OPINION

This appeal arises from a superior court judgment on a petition for writ of mandate in which petitioners, three homeless residents of the City of Santa Ana, challenged on constitutional grounds a municipal ordinance adopted in 1992 and euphemistically yclept the “camping ordinance.”  (Santa Ana Mun.Code, ch. 10, art. VIII, § 10–400 et seq. (see fn. 3).)   We consolidated the appeal with a writ petition from a number of defendants charged in the municipal court with violating the ordinance.1

As will appear, the camping ordinance is constitutionally repugnant on three different grounds.   Accordingly, we reverse the judgment of the superior court insofar as it rejected the petition and direct that court to issue a writ restraining enforcement of the ordinance in its entirety and issue our own writ directing the municipal court to sustain demurrers in the pending prosecutions to counts alleged under the ordinance.

I

It is important to note at the outset that all the evidence in the superior court was presented by petitioners without legal objection or factual challenge from the city;  indeed, much of it was from Santa Ana's own files.   It may be generally grouped in three categories:  (1) Declarations by the Executive Director of the Orange County Rescue Mission (located in Santa Ana) concerning the operation of area shelters;  an expert on the dynamics of homelessness;  and ten homeless persons, who both amplified their plights and provided insight into Santa Ana's enforcement practices under the camping ordinance;  (2) a series of municipal memoranda chronicling Santa Ana's crusade against the homeless;  and (3) transcripts and records from Santa Ana's earlier litigation efforts to expel the homeless.   The proper analysis of the several constitutional issues requires a somewhat lengthy recitation of the evidence.

The housing element of the city's own 1989 general plan noted, “The average daily count of homeless persons in Santa Ana is estimated at approximately 3,000 persons.”   There was shelter for but 332 of them.

The municipal memoranda can only be characterized as astonishing.   The first in evidence, titled “VAGRANTS,” is dated June 16, 1988.   It was authored by the city's Executive Director of the Recreation and Community Services Agency, Allen E. Doby, and sent to Park Superintendent Garry Ott.   The memo stated, “This is a follow-up to a meeting with Jan Perkins today regarding the vagrant problem within the City of Santa Ana.   A task force has been formed in an effort to deal with the vagrants.   City Council has developed a policy that the vagrants are no longer welcome in the City of Santa Ana.  [¶] The task force will comprise staff from Recreation and Parks, the Police Department, and the Public Works Agency.   In essence, the mission of this program will be to move all vagrants and their paraphernalia out of Santa Ana by continually removing them from the places that they are frequenting in the City, such as Civic Center, Center Park, the mission, the Hospitality House on the east side of town, and other City facilities which offer refuge to them.  [¶] There will be a task force meeting for staff and the Police Department on Monday, time to be announced.  [¶] We are submitting a proposal to Jan Perkins for additional funding to assist us in this effort.   It will probably be a six-month effort with all agencies cooperating to the fullest extent.”  (Italics added.)

In a June 20, 1988 memorandum to Santa Ana Deputy City Manager Jan Perkins (“Subject:  Vagrancy Task Force Update”), Doby described a meeting with two police lieutenants.   The plan that emerged contained six points:  (1) coordination between the two agencies;  (2) primary enforcement at the Civic Center;  Salvation Army;  Hospitality House;  and Center, Santa Anita, Birch, and Flower Street Parks;  (3) concentrated enforcement against the “vagrants,” beginning July 8–13;  (4) posting of closing times for parks (9 or 9:30 p.m.);  (5) coordination “to get rid of sleeping bags and accessories that are found in the parks”;  and (6) combined effort “to confiscate abandoned shopping carts around the Civic Center area.”

Doby's memo went on to make the usual bureaucratic plea for an increase in budget and staff to carry out the plan.   It concluded in part, “This proposed budget is the minimum necessary to meet the City's objective of cleaning up its neighborhoods and forcing out the vagrant population.”  (Italics added.)

On June 17, 1988, Perkins sent a memorandum to the vagrancy task force outlining “a preliminary plan of action for dealing with the problems resulting from the vagrants loitering in the neighborhoods surrounding the Orange County Rescue Mission and the Salvation Army.”   Among the elements of the plan were the following (with timing of their implementation in parentheses):  “Develop ordinance ․ to monitor activities of free food providers in residential neighborhoods” (July 11);  “Contact food providers and explain their negative impact” (June 13);  “Strictly enforce” closing time at Center Park (immediate);  “Turn on sprinklers in Center Park frequently to recover the grass” (immediate);  “Increase pick-up of sleeping bags on weekends and during the week” (July 5);  and “Strictly enforce Code Enforcement violations by businesses and social service agencies in the area of Center Park” (June 20).

Per the plan, the confiscation and destruction of personal property of the impoverished commenced;  but these actions were quickly assailed in court.   In April 1990, the city, without admitting liability, settled with attorneys provided to represent the homeless by the ACLU Foundation of Southern California, the Legal Aid Society of Orange County, and the Western Center on Law and Poverty.   It agreed to a storage and retrieval policy for property confiscated in the future.

The city had just begun to fight, however.   On August 15, 1990, Santa Ana police avenged the legal setback by descending on the homeless in the Civic Center.   Sergeant Kevin Brown told of the operation in a memorandum to Chief Paul Walters.   After listing crimes from rape to blocking “various passageways” allegedly committed in the Civic Center in the past and citing “health concerns,” Brown reported as follows:  “Eddie West Field [an open-air football stadium adjacent to the Civic Center] was used as the command post because it supplied a secured area where we could house multiple arrestees.   In addition, it also allowed access to restroom facilities and water for the persons arrested.   Four Police Service Officers were assigned to the command post to process all arrestees.   This included photographing, fingerprinting, documentation and running record and warrant checks.   Two officers were also assigned to the command post for care and custody of the arrestees.   Five two-man observer teams were assigned throughout the plaza area looking for criminal activity.   Each of the five two-man teams was completely concealed and was able to observe the violations from a safe and secure location.   Five two-man arrest teams were called into the plaza area by the observers and the arrest teams took the violators into custody.   The violators were then transported to the command post at Eddie West Field where they were processed.”   There were 28 arrests for littering, 2 for drinking in public, 7 for urinating in public, 18 for jaywalking, 2 for destroying vegetation, 2 for riding bicycles on a sidewalk, 1 for glue sniffing, 1 for removing trash from a bin, and 2 for an obscure violation of the city's fire code.

The harassment sweep turned up 19 undocumented aliens, 7 persons with outstanding warrants, and 2 who gave false names.   Twenty-seven of the arrestees had previous arrests for serious offenses.   How many were convicted, if any, the memo does not say.   Subtraction reveals that 36 (four-sevenths) of those apprehended had no serious criminal arrest history.

The homeless asserted they were victims of discriminatory enforcement (see Murgia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44)—and won.   Municipal Court Judge B. Tam Nomoto, after a seven-day hearing, held the homeless were a cognizable class who had indeed been singled out for arrest for offenses that rarely, if ever, even drew citations in Santa Ana.   Only the homeless were targeted;  two arrestees who had homes were released.2  The officers used “cheat sheets” to recall little known offenses.

The homeless were handcuffed, transported to an athletic field for booking, chained to benches, marked with numbers, and held for as long as six hours before being released at another location, some for crimes such as dropping a match, a leaf, or a piece of paper or jaywalking.   Judge Nomoto concluded, “In short, this [c]ourt finds that the Santa Ana Police Department deliberately and intentionally implemented a program which targeted those persons living in the Civic Center, the homeless.”   Presumably, the prosecution did not appeal.

On October 19, 1990, six months after the settlement stemming from the aborted plan to confiscate and destroy personal property belonging to the homeless, the city settled a new civil action for injunctive relief arising out of the Civic Center sweep.   The city agreed “it shall be [ ] the policy of [the City of Santa Ana] to refrain from discriminating against individuals on the basis of their homelessness” and not to “take individual or concerted action to drive homeless individuals from Santa Ana.”   The city also agreed to refrain from a repeat of the sweep night events:  no more mass arrests, football field bookings, arrests for trivial offenses, marking of arrestees' bodies, and a raft of other lesser indignities allegedly inflicted on the homeless from time to time.   The stipulation was made an order of the court, but no judgment has been entered.   The case is to be dismissed in 1995.

Within two years of executing the stipulation to end the war on the homeless, in October 1992, the city went on another offensive with the passage and enforcement of the camping ordinance under review today.  (Santa Ana Mun.Code, ch. 10, art. VIII, § 10–400 et seq.) 3  At that time the city was apparently still operating under the conditions detailed in the 1989 housing element—an average daily count of some 3,000 homeless persons and shelter for only about 330 of them.

The executive director of the Orange County Rescue Mission (located in Santa Ana) stated in a declaration the mission has operated at full capacity since the city began enforcing the camping ordinance and has turned away hundreds of men and women every night.   Countywide in 1993 there were 10,000 to 12,000 homeless with only about 975 permanent beds for their use.

During the coldest weather months, additional beds are provided at national guard armories.   This is insufficient, though, according to the director of the armory programs in Santa Ana and Fullerton:  “Most nights are filled to capacity which, at the Santa Ana facility, is about 125 people.   The total average nightly homeless population that we house at both armories is 250.   When the [Santa Ana armory] is filled, the homeless have nowhere to go and some return to the Civic Center area where [under the camping ordinance] they are subject to arrest merely for wrapping themselves in a blanket to protect themselves against the cold.”   He also noted the armory programs only operate December 1 through March 15, and sometimes not then when the guard is drilling.   Churches shelter some of the homeless when able.

According to Dr. Paul Koegel, co-director of a large study of homelessness and an expert from the Rand Corporation, “Structural, personal and situational barriers prevent homeless persons from securing housing.   In Orange County, the high cost of housing, lack of affordable housing, competition for what low cost housing does exist, absence of federally subsidized housing and an insufficient number of shelter beds make it extremely difficult for homeless persons to find housing and escape homelessness.”

Dr. Koegel explained “situational barriers” as follows:  “Once homeless, it becomes more difficult to get housing.   A homeless person who has no shelter and no place to store his belongings has a complex existence which prevents him from securing housing, retaining that housing and taking advantage of what services might be available in the community.   For example, a homeless person who must stand in line to apply for public benefits has no place to store his possessions and may miss a free meal available from a community service.   If a homeless person does have public assistance, the low benefit rate likely means he has to choose between spending what little money he has on food and clothing or shelter.   A homeless person may choose not to spend all of his money on single room occupancy ․ housing which is dangerous or uninhabitable.”   Other problems include the lack of a place to bathe, resources to wash or purchase clothing, and a way to receive mail and telephone calls.

Ten denizens of the Civic Center submitted declarations describing their living conditions and enforcement practices under the camping ordinance.   They are summarized in the following paragraphs.

Wilfred J. is a 58 year old who has lived in Santa Ana for seven years and became homeless when the truck he used for hauling jobs was stolen.   Mr. J. receives no “general relief” or social security and is looking for work.   He lives alongside railroad tracks.   Sometimes when it rains, he is unable to board the bus for the armory because of overcrowding.   It was full on January 14, 1993, when he was ticketed for “camping” near a building opposite the police station even though he obeyed police orders to move on.   City officials witnessed this event and “seemed to be in good spirits about the whole thing.”   Mr. J. has also been cited for loitering on a private vacant lot.   He now sleeps on “God's Land,” a ramp at a Methodist Church.

Mildred B. declared she is a 35–year–old homeless person who has lived in Santa Ana for several years.   She is schizophrenic and from a suicidal family.   She elected to stay in the Santa Ana Civic Center Plaza (Civic Center) area to be near the police station for her safety.   In bad weather she sleeps in a “tunnel” (apparently a public parking garage).   On the night of January 15, 1993, she was at that location, “soaking wet,” with a blanket over her legs as she read “a Bible tract.”   Some ten policemen and two men in civilian clothes appeared and cited her under the camping ordinance.   She was told one of the men was a councilman or city attorney.   After they left she “decided to stay there.   It was pourin' down rain.   I didn't have anywhere to go.”

Mildred B. also stated, “You can't leave your belongings even to eat, and you've got to eat.   The police will take them the minute you leave them.   I've seen them do that to other people numerous [ ] times.”

Jack K. is 52, has been in Santa Ana for five years, and has been homeless most of that time.   He has lived in the Civic Center for the past two years.   The only public assistance he receives is food stamps.   The last time he attempted to stay at the armory, he was turned away.

On the evening of January 14, 1993, Jack K. was reading a book in his sleeping bag in the doorway of a public building.   He chose that location for lack of any other place to go and for reasons of personal safety.   Six officers approached and cited him under the camping ordinance.

James E. declared he is 45 and a 10–year resident of Santa Ana.   He lost his job a year ago and has been on the streets since.   He stays in the Civic Center because “it is convenient to food sources, and there's safety in numbers.”   He was cited under the camping ordinance while in his sleeping bag listening to his radio.

Deborah S. is 32 and has been homeless since her mother forced her to leave home.   On January 15, 1993, she missed the bus for the armory and was cited for violation of the camping ordinance in the early evening.   She was in a parking garage during a rainstorm at the time.   She has no public benefits and scavenges for discarded cans to earn money.

Romaldo C. generally works as a gardener or in construction, but becomes homeless when he is out of a job.   He missed the bus for the armory on January 14, 1993, while looking for work and was cited while attempting to sleep in the Civic Center.

Kenneth S. is 63 and came to Santa Ana in 1982 to search for a job.   He has been homeless since 1983 and has no income.   He was in a bed of pasteboard padding and blankets in the garage beneath the state building in the Civic Center when he was cited for “camping” on January 15, 1993.   It was raining at the time.

Jose T.A. is 47 and has been in the United States for 19 years.   He has been homeless for 18 months, has no income, and depends on charity.   Shelters are a problem because “they are so noisy and overcrowded that I am unable to sleep and gain rest there.   That is why I have continued to sleep out-of-doors.”   He was attempting to sleep under blankets in the doorway of a public building in the Civic Center on January 14, 1993, when during “a short break in the rain” he was cited for “camping.”   He was cited again on January 25 under similar circumstances.

Patrick E. is 32 and homeless since the Santa Ana YMCA closed several years ago.   He sleeps in the Civic Center because he knows of no other place to stay and be fed.   He tried the armory once, but found “[t]oo much noise and arguing;  too much push and shove.   Too many negatives.”   He was awakened and cited on the night of January 25, 1993, for “camping” in the Civic Center.

II

We now turn to an examination of the camping ordinance (pertinent portions of the text appear in the margin), its purpose fully apparent,4 and consider three constitutional challenges to the ordinance based on:  (1) the right to travel, (2) cruel and unusual punishment, and (3) vagueness and overbreadth.   All have merit.   Defendants' and amici's sundry attacks on the Penal Code section disorderly conduct charges added to the municipal court prosecutions by the district attorney are premature, and we reserve judgment as to the viability of them.5

A

 The right to travel has long been held to be a fundamental constitutional right.  (Shapiro v. Thompson (1969) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600.)   Arrests for such offenses as loitering or roving public streets without identification impinge on the right to travel (Kolender v. Lawson (1983) 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903;  Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110), for intrastate travel is a necessary corollary to the right to travel between the states.  (In re White (1979) 97 Cal.App.3d 141, 148, 158 Cal.Rptr. 562;  Lutz v. City of York, P.A. (3d Cir.1990) 899 F.2d 255, 268;  Ades, The Unconstitutionality of “Antihomeless” Laws:  Ordinances Prohibiting Sleeping in Outdoor Public Areas as a Violation of the Right to Travel (1989) 77 Cal.L.Rev. 595, 609–613 (1989).)   The city asserts there is no violation to the right to travel because petitioners are free to enter and leave Santa Ana and go to and fro within it.   They can enjoy use of all public property, except for “camping” purposes.

 But how can petitioners satisfy the essential human need for sleep under the camping ordinance?   The right to travel includes the right to live or stay where one will (see Dunn v. Blumstein (1972) 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 [durational residence requirement for voter registration burdened right to travel];  Simon, Towns Without Pity:  A Constitutional and Historical Analysis of Official Efforts to Drive Homeless Person from American Cities (1992) 66 Tulane L.Rev. 631, 653), and petitioners wish to remain in Santa Ana.   Statutes designed to discourage migration to a city also infringe on the right to travel.  (Edwards v. California (1941) 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 [attempt to outlaw importation of paupers unconstitutional];  Construction Ind. Assn., Sonoma Cty. v. City of Petaluma (N.D.Cal.1974) 375 F.Supp. 574, reversed on other grounds, Construction Industry Association v. City of Petaluma (9th Cir.1975) 522 F.2d 897.)   But, under this ordinance, given the regular progression of unpaid misdemeanor fines turning to warrants, petitioners will ultimately be leaving Santa Ana or living in jail.6  Most will have no other alternative.

The city speciously claims denying petitioners the use of sleeping bags and blankets outdoors does not outlaw necessities of life because the homeless can sleep somewhere else.   Where?  Some of the homeless declarants did prefer the outdoors to an overcrowded armory, but none expressed a preference to living as a way of life in a Civic Center parking structure or doorway during the cold, rainy January evenings when they were cited.7  They had no better place to go than some public location.

As the court stated in Pottinger v. City of Miami, supra, 810 F.Supp. 1551, “the City's enforcement of laws that prevent homeless individuals who have no place to go from sleeping, lying down, eating and performing other harmless life-sustaining activities burdens their right to travel.”  (Id. at p. 1580.)   The court also noted, “In addition to depriving homeless individuals of certain life necessities, arresting them for such harmless conduct also acts as a deterrent to their movement.”  (Ibid.)  The camping ordinance leaves persons “no place where they can be without facing the threat of arrest.   Given the vast number of homeless individuals and the disproportionate lack of shelter space, the [homeless] truly have no place to go.” 8  (Ibid.)   Simply put, as in some vintage oater, petitioners are to clear out of town by sunset;  and that, of course, is what this ordinance is all about, a blatant and unconstitutional infringement on the right to travel.9  (See Parr v. Municipal Court (1971) 3 Cal.3d 861, 865, 92 Cal.Rptr. 153, 479 P.2d 353 [facially neutral ordinance was intended to drive “group of unsanitary transients” from the city].)

B

 The ordinance also violates the constitutional prohibition against cruel and unusual punishment because it criminalizes involuntary status, that of being homeless.   Such laws are constitutionally impermissible.   (Pottinger v. City of Miami, supra, 810 F.Supp. at p. 1565.)

 It was once a crime to be a drug addict in California, but that statute was held unconstitutional by the United States Supreme Court because it punished an individual based on status or condition, not conduct.  (Robinson v. California (1962) 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.)   In passing, the court remarked, “It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease.”  (Id. at p. 666, 82 S.Ct. at p. 1420.)   Unlikely maybe, but that is what Santa Ana has done.   Many of the homeless are mentally ill.   They may not be punished for that or their homeless condition.   Homelessness, like illness and addiction, is a status not subject to the reach of the criminal law;  and that is true even if it involves conduct of an involuntary or necessary nature, e.g., sleeping.10  (Id. at p. 667, 82 S.Ct. at pp. 1420–21;  see also Powell v. Texas (1968) 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 [prosecution of alcoholic for public drunkenness].)

In short, “[i]t simply is not a crime to be unemployed, without funds and in a public place.   To punish the unfortunate for this circumstance debases society.   The comment of Justice Douglas is [still] relevant:  ‘How can we hold our heads high and still confuse with crime the need for welfare or the need for work?’ ”  (Parker v. Municipal Judge of City of Las Vegas (1967) 83 Nev. 214 [427 P.2d 642, 644], quoting Douglas, Vagrancy and Arrest on Suspicion (1960) 70 Yale L.J. 1, 12;  Pottinger v. City of Miami, supra, 810 F.Supp. at pp. 1561–1565;  Alegata v. Commonwealth (1967) 353 Mass. 287, 231 N.E.2d 201, 207.)   Dr. Johnson wrote to Boswell, “Poverty is a great enemy to human happiness;  it certainly destroys liberty, and it makes some virtues impracticable and others extremely difficult.”  (Boswell, Life of Johnson (letter of Dec. 7, 1782).)   The camping ordinance, if allowed to stand, would turn the county jail into a poorhouse and, thus, just as Dr. Johnson wrote, destroy liberty.   Punishment for poverty—which the camping ordinance surely is—is cruel and unusual punishment.

C

 We also agree the ordinance is vague and overbroad.11  The definitions of “camp paraphernalia” and “camp facilities” are based on non-exclusive lists of items (“similar equipment”).   The ordinance makes no attempt at a definition beyond that.   As petitioners correctly argue, relevant dictionary definitions are so broad as to afford no guidance concerning the scope of the ordinance.  (See Citizens for Responsible Behavior v. Superior Court (1991) 1 Cal.App.4th 1013, 1031–1032, 2 Cal.Rptr.2d 648.)   The definitions are an invitation to arbitrary and selective enforcement because they provide no distinction between picnicking and “camping” or students' backpacks and “camp paraphernalia” and leave enforcement to the virtually unfettered discretion of the police.12  This offends the due process clauses of both the state and federal Constitutions.  (Papachristou v. City of Jacksonville, supra, 405 U.S. at p. 170, 92 S.Ct. at p. 847;  Gregory v. Chicago (1969) 394 U.S. 111, 120, 89 S.Ct. 946, 951, 22 L.Ed.2d 134 (conc. opn. of Black, J.;  Pryor v. Municipal Court (1979) 25 Cal.3d 238, 252, 158 Cal.Rptr. 330, 599 P.2d 636;  People v. Soto (1985) 171 Cal.App.3d 1158, 217 Cal.Rptr. 795.)

Although the Appellate Department of the Santa Barbara Superior Court found a similar contention 13 unpersuasive in People v. Mannon (1989) 217 Cal.App.3d.Supp. 1, 265 Cal.Rptr. 616, petitioners aptly observe that one of the definitions of camping proposed in Mannon is itself unconstitutionally vague:  “to live temporarily ․ outdoors.”  (Id. at p. Supp. 5, 265 Cal.Rptr. 616.)   Most of us do that every day because all our activities are part of living.   Indeed, the superior court in this case reached the same conclusion and invalidated that portion of the ordinance banning living outdoors in Santa Ana;  and the city has not appealed the ruling.

The definition of the verb “store” in the ordinance is overbroad.   As petitioners put it, “the only logical reading of the [o]rdinance's prohibition on placing or leaving property in public spaces is that the [o]rdinance makes it unlawful for any person to leave any personal property unattended in any public place for any purpose for any length of time.”   The city may have been aiming at shopping carts and bedrolls;  but it has hit bicycles, automobiles, delivery vehicles of every description, beach towels at public pools, and wet umbrellas in library foyers as well—to name just a few obvious examples.14

III

 Santa Ana defends the ordinance as a proper exercise of its police powers.   We agree the city has a substantial interest in preserving the appearance, and facilitating the use, of public facilities by its citizens and visitors.   But a minority may not be entirely suppressed in the name of otherwise laudable public purposes.  (See, e.g., Williams v. Rhodes (1968) 393 U.S. 23, 31–34, 89 S.Ct. 5, 10–12, 21 L.Ed.2d 24 [right to vote].)   Impingements on the right to travel are strictly scrutinized and must be narrowly tailored.  (Dunn v. Blumstein, supra, 405 U.S. at pp. 338–339, 92 S.Ct. at p. 1001.)   The camping ordinance is a butcher knife where a scalpel is required.   It is a transparent manifestation of Santa Ana's policy, adopted five years ago, to expel the homeless.   The city may preclude the erection of structures in public places and it might ban “camping” in select locations with a properly drafted ordinance, but it may not preclude people who have no place to go from simply living in Santa Ana.   And that is what this ordinance is about.15

The judgment of the superior court denying the petition for writ of mandate in part is reversed with directions to issue the writ as prayed.   Appellants shall have their costs.   Let a peremptory writ of mandate issue directing the municipal court to sustain the demurrers to the counts pleading violations of the Santa Ana camping ordinance.16  The alternative writ is discharged.   All previously issued stays are dissolved upon return of the remittiturs.

I concur in the result and in the holdings that the ordinance is unconstitutionally vague and violates the prohibition against cruel and unusual punishment.

I have difficulty with the majority's opinion that the ordinance violates the right to travel.   Preliminarily, I cannot with any certainty ascertain whether the majority is holding the ordinance is facially unconstitutional for all the reasons stated or facially unconstitutional as to some and unconstitutional in their enforcement as to others.   As to the right to travel, for example, the majority says the ordinance is a “blatant and unconstitutional infringement on the right to travel.”  (Maj. opn., p. 393.)   This appears to say it is facially unconstitutional.   As to vagueness, however, the majority says the ordinance is “an invitation to arbitrary and selective enforcement.”  (Maj. opn., p. 394.)   In my view, vagueness makes the ordinance facially unconstitutional.

I do not believe the ordinance is facially invalid because it violates the right to travel.   In the first place, if the ordinance is so vague as to make it unconstitutional, how would you know if it violates the right to travel?   Vagueness means that members of the public would not fairly know what was prohibited and what was not.

In the second place, in this case, the only way a restriction on the right to travel could be determined would be on a case-by-case basis.   Support for my position is demonstrated by the nine pages of evidence recited by the majority including the references to ten specific cases.   Accordingly, I dissent from those portions of the majority opinion finding the ordinance to be facially invalid because a right to travel has been violated.

FOOTNOTES

1.   The municipal court defendants' demurrers to charges based on the ordinance and Penal Code section 647, subdivision (i), a disorderly conduct statute, were overruled.   Our decision will require dismissal of the charges involving the camping ordinance;  but for reasons set out in the last footnote to this opinion, we will be unable to resolve the issues concerning section 647, subdivision (i).References to “petitioners” are to the three petitioners appealing from the superior court judgment denying most of the writ relief sought.   The municipal court defendants, although styled “petitioners” in our caption, will be referred to as defendants throughout.

2.   Santa Ana, of course, claims that it does not engage in discriminatory enforcement.

3.   “ARTICLE VIII.  CAMPING AND STORAGE OF PERSONAL PROPERTY“Section 10–400.  Purpose.“The public streets and areas within the City of Santa Ana 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.   The purpose of this Article is to maintain public streets and areas within the City of Santa Ana in a clean and accessible condition.“Section 10–401.  Definitions.“Unless the particular provisions or the context otherwise requires, the definitions contained in this section shall govern the construction, meaning and application of words and phrases used in this Article.“(a) Camp means to pitch or occupy camp facilities;  to live temporarily in a camp facility or outdoors;  to use camp paraphernalia.“(b) Camp facilities include, but are not limited to, tents, huts, or temporary shelters.“(c) Camp paraphernalia includes, but is not limited to, tarpaulins, cots, beds, sleeping bags, hammocks or non-city designated cooking facilities and similar equipment.“(d) Park means the same as defined in section 31–1 of this Code.“(e) Store means to put aside or accumulate for use when needed, to put for safekeeping, to place or leave in a location.“(f) Street means the same as defined in section 1–2 of this Code.“Section 10–402.  Unlawful Camping.“It shall be unlawful for any person to camp, occupy camp facilities or use camp paraphernalia in the following areas, except as otherwise provided:“(a) any street;“(b) any public parking lot or public area, improved or unimproved.“Section 10–403.  Storage of Personal Property in Public Places.“It shall be unlawful for any person to store personal property, including camp facilities and camp paraphernalia, in the following areas, except as otherwise provided by resolution of the City Council:“(a) any park;“(b) any street;“(c) any public parking lot or public area, improved or unimproved.”

4.   Because there are no new smoking-gun memos, minutes of the city council, or statements by public officials indicating the camping ordinance was designed to drive the homeless out of Santa Ana, the city claims petitioners have not so demonstrated.   We agree with petitioners that the obvious reason is this:  After five years of litigation, the city has learned one lesson well:  Do not document an intention to displace the homeless.   Also, openly resuming the campaign against the homeless would be an easy to prove violation of the 1990 stipulated order.Instead, the city apparently thinks it can enact ordinances one might expect to find among regulations of the National Park Service for certain specific locations, not the entire county seat of a sprawling urban area of several million residents, and the courts will unquestioningly discern naught but a benign motive.   Against the history of the city's war on its own weakest citizens, that is asking a lot.   As the court stated in Pottinger v. City of Miami (S.D.Fla.1992) 810 F.Supp. 1551, 1581, “various internal memoranda admitted into evidence ․ indicate that, at least in the past, the primary purpose behind enforcing the challenged ordinances against homeless persons was to drive them from public areas.   [Citation.]  This purpose was also evidenced by the arrest records showing the shift to other ordinances for arresting homeless individuals after the City stopped enforcing the ordinance against sleeping in public and by the internal memoranda revealing the City's active search for laws to replace the anti-sleeping ordinance.”

5.   Penal Code section 647, subdivision (i) provides in relevant part that it is a misdemeanor 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 thereof.”   (Italics added;  see also fn. 1.)

6.   Reasonable time, place, and manner restrictions may be imposed for aesthetic purposes provided they allow an outlet for expression or utilization of constitutional rights.  (Clark v. Citizens for Creative Non–Violence (1984) 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221;  Lutz v. City of York, P.A., supra, 899 F.2d at p. 269.)   This is obviously not such an ordinance.

7.   The argument is a makeweight in any event.   The city admits it is shy about 2,668 shelter beds on any given night.

8.   The city vainly attempts to distinguish Pottinger on procedural niceties.   We are unpersuaded.   The facts were virtually the same and so was the legal outcome, a finding that the city impinged the constitutional rights of the homeless.

9.   The right to travel is not absolute, but the city makes no effort to argue a compelling interest in violating anyone's right to travel.   Advisedly so:  “The City has a legitimate interest in having aesthetically pleasing parks and streets and in maintaining facilities in public areas.   However, this interest is not compelling, especially in light of the necessity of homeless persons to be in some public place when no shelter is available.   The Supreme Court has recognized the governmental interest in park maintenance as being only ‘substantial,’ which does not satisfy the ‘compelling governmental interest’ standard.”   (Pottinger v. City of Miami, supra, 810 F.Supp. at p. 1581, fn. omitted.)

10.   The district attorney makes much of defendants' failure to prove they were involuntarily homeless, or even homeless at all, at the time of their arrests, a seemingly impossible procedural task at the demurrer stage of a misdemeanor prosecution, but a somewhat frivolous lawyer's gambit we thought Anatole France had long since put to rest anyway:  “The majestic egalitarianism of the law [ ] forbids rich and poor alike to sleep under bridges, to beg in the streets, or to steal bread.”   (France, Le Lys Rouge (1894), ch. 7.)   We must admit, however, that the municipal court judge in overruling the demurrers found there was no discrimination against the homeless in the prosecutions before him because the law applied to him too.

11.   The district attorney claims overbreadth is only an issue in First Amendment cases.   Not so:  “[A] law may be overbroad, even if it is clear and precise, if it reaches conduct that is constitutionally protected, Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972), or conduct that is beyond the reach of the state's police power.  Fenster v. Leary, 20 N.Y.2d 309, 282 N.Y.S.2d 739, 742, 229 N.E.2d 426, 428 (1967).”  (Pottinger v. City of Miami, supra, 810 F.Supp. at p. 1575 [ordinance prohibiting sleeping and other essential functions in public overbroad].)   The camping ordinance offends both prongs of the overbreadth test.

12.   For example, police apparently decided reposing on top of a blanket did not constitute camping, but crawling underneath did.   The ordinance suggests no such distinction, however.   People who picnic on a blanket in a park would go unpunished under this arbitrary interpretation, while those without an alternative (other than to leave town) would be prosecuted for simply bundling against the cold of night.

13.   No constitutional issues were presented in Mannon, merely a dispute as to whether defendants' conduct (sleeping) violated the City of Santa Barbara's camping ordinance.   Insofar as it is inconsistent with this opinion, we disapprove of Mannon.Another opinion from the same appellate department, People v. Davenport (1985) 176 Cal.App.3d Supp. 10, 222 Cal.Rptr. 736, did reach constitutional issues in a similar situation.   It too was wrongfully decided.

14.   The discussion in this portion of the opinion is the only basis for our direction to the municipal court to dismiss the charges involving the camping ordinance.   The statute is vague and overbroad as applied to anyone, be they homeless, picnickers, or scouts engaged in field exercise.No one has claimed the ordinance restricts the right to travel or constitutes cruel and unusual punishment for people who are not homeless.   Defense counsel in the criminal cases pending in the municipal court appear to assume it is a given that their clients are homeless.   There was no proof of that at the demurrer stage, however, nor do the complaints contain any such allegation.   Defendants are represented by the public defender, but indigency is not synonymous with homelessness (although it helps).

15.   We decline the city's belated request to take judicial notice of the conditions existing with respect to the homeless in the Civic Center.   That is simply not a matter of common knowledge appropriate for judicial notice.  (See In re Marriage of Russo (1971) 21 Cal.App.3d 72, 89, 98 Cal.Rptr. 501.)   The record on appeal tells us enough in any event.To view homeless people in our midst is deeply disturbing in a country of such vast wealth, and the city is rightfully distressed about the image this presents.   But homelessness is a national phenomenon, and it is not the first time it has appeared as an important social problem in this century.   The attack must be on the cause, not the victims;  for they in the main are no more content with their circumstances than anyone else is.

16.   We will not consider amici curiae's attack on Penal Code section 647, subdivision (i) based on an interpretation of the statute limiting its application to structures because it is impossible to tell from the complaints subject to the municipal court demurrer whether the accused were cited in structures or open areas.   To be sure, section 647, subdivision (i) may be vulnerable to the claim that it constitutes cruel and unusual punishment when applied against a homeless person sleeping on public grounds, the only argument raised against it by the municipal court defendants;  but that claim, too, lacks the factual predicate noted in footnote 10.

CROSBY, Associate Justice.

SONENSHINE, J., concurs.

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