Guest Opinion - Elk Grove's 'Phantom' Homeless Ordinance May Violate 8th Amendment

By Steven M. Lee | Special to Elk Grove News |  Elk Grove recently passed an ordinance pertaining to unlawful camping within the city limit...

By Steven M. Lee | Special to Elk Grove News | 

Elk Grove recently passed an ordinance pertaining to unlawful camping within the city limits, directed specifically to deal with the city’s growing homelessness issues. The ordinance is supposedly filed in the city’s municipal code, section 9.38. A search today of the code online finds there is no section 9.38 listed. The code stops at 9.36, so a full review of the ordinance is unavailable for review. Section 9 of the code relates to Public Peace, Morals and Safety.

The EG Citizen’s reporter Lance Armstrong wrote an article detailing the ordinance, published in the June 17, 2022 edition of that newspaper. I’ll have to refer to his comments as to what the ordinance says, as it is not otherwise available. Mr. Armstrong said the ordinance was created at the behest of the city council, concerned over the local homeless issues. An ad hoc committee led by City Councilmembers Hume and Nguyen, along with city staff, prepared the document.

The ordinance evidently regulates against camping on public property within 500 feet of playgrounds and daycare, school and youth facilities and in an area exceeding 150 square feet.  Violators will be given information about temporary and permanent housing services in Elk Grove. (Not that there is actual housing available). Violators will be penalized after a 72-hour notice by a temporary seizure of their personal property, after which time the property will be held for 90 days then disposed of.  

These homeless people are having all of their personal property seized by the city, then held and disposed of? They don’t get it back? That’s EVERYTHING these people own and hold dear to them. Are you kidding? How cruel is that?

Is the city and our high-paid legal department aware of a recent 9th Circuit appellate decision, Martin v Boise, (920 F.3d 584, 2019) in which the court held that a city can’t enforce its anti-camping ordinance if they do not have enough homeless shelter beds available for their homeless? That court stated, “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

The decision is based on the 8th Amendment prohibition against cruel and unusual punishment. The US Supreme Court has refused to hear further appeal making the 9th circuit’s decision binding throughout the western United States, including California.

The Boise ordinance that was overturned essentially punished someone for sleeping outside when they have nowhere else to go. This decision related only to camping on public properties, not private property. This means in parks, near playgrounds, near public schools, and other public facilities, all in direct contradiction of the Elk Grove ordinance.

As such, the Elk Grove ordinance would seem to be in violation of the Martin v Boise decision and a violation of the 8th Amendment, especially when taking into consideration the city is allowing itself to take a person’s property, hold it against the owner’s will then dispose of it without a due process hearing. That is by any review of reasonableness, just wrong.

Keep in mind the city just Wednesday night denied a project that would have assisted 65 homeless people in getting off the street and into a screened and monitored environment. Despite the council’s heart-tugging comments of caring and compassion for the homeless, their acts show a callous disregard for the same. Actions speak louder than words. A class-action lawsuit will surely follow the earliest enforcements of this new ordinance. Who pays the legal fees when the city is sued? 

We all will.

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D.J. Blutarsky said...

Mr. Lee, your post is encouraging that while the heart and soul of the City Council was laid bare for all to see last Wednesday night, there might be the law they ultimately have to answer to.

When the unruly crowd starting booing and heckling the few citizens who spoke in favor of the homeless project, Mayor Bobbie sat on her throne and let those poor, brave speakers twist in the wind while the lynch mob seethed at them. Real leadership!

When egos, political aspirations, and photo-ops rule our city, I can only say one thing--unhoused residents, guard your possessions with all your strength until the law arrives!

Eye on Elk Grove said...

I am sure Elk Grove City Attorney Jon Hobbs is ready to take on the Supreme Court. Oh, never mind, atypical of Hobbs would most likely turn any lawsuit over to his old law firm Kronick Moskovitz Tiedemann & Girard. Elk Grove taxpayers will continue to fund their attorneys' deferred compensation accounts.

To date, millions of taxpayer dollars paid to Kronick over the years because Hobbs & Company (three or four high-paid attorneys at the city - Hobbs being the highest paid employee at the city of Elk Grove) can't seem to handle lawsuits themselves!

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