At Wednesday night’s Nevada City Council meeting, the city will consider:
*An ordinance to regulate camping, lodging and overnight stays in the city. Police Chief Jim Wickham had suggested this, along with a no smoking ordinance, which was adopted.
•Consideration of a parking program for business owners. One of the goals is provide the most desirable parking for business customers. Establish employee parking fee program at $25 per month, payable in six-month periods.
*The agenda also includes the latest sales tax report for Nevada City. “Receipts for Nevada City’s January through March sales were 15.4 percent higher than the same quarter one year ago. Actual sales activity was up 20.8 percent when reporting aberrations were factored out.
•Like Grass Valley, Nevada City is proceeding with plans to put a sales-tax hike initiative on the November ballot.
The agenda is here.
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Good – Maybe this will eliminate the “RV park” on High Street.
Not good – Sales tax increase. If both NC and GV sales tax increases pass I guess I will have to shop in Cedar Ridge!
Steve, the good folks at Art’s Cedar Ridge Gas and Auto Repair will be ecstatic!
A dozen years ago, a case in Southern California involving a homeless man named James Eichorn became a hot topic of conversation in cities and counties throughout California. I remember reading about it in publications and bulletins sent to me as a councilmember, and it was something I filed away in my memory bank in case someone approached me asking support for an anti-camping/sleeping ordinance.
The essence of the Eichorn decision was that if there were more homeless people than beds available for the homeless, sleeping or camping on public property might not be a crime. It’s called a “necessity defense.” In other words, if there is no room at the homeless shelter, then public property becomes an alternative of necessity.
(I would love to see John Vodonick weight in on this one. Perhaps he knows of subsequent court decisions that have reversed the 2000 ruling).
There is a ton of information Online for those interested in the case that made James Eichorn’s predicament important to cities and counties, but here’s the conclusion of a lengthy article published in the American University Law Review in October 2000. It might give one or more city councilmembers something to think about before the meeting?
CONCLUSION
Ordinances that prohibit sleeping and camping in public are imperfect responses to addressing the presence of homeless people in public places. Prior to In re Eichorn, social service providers and legislators primarily adopted and addressed the issue. Judicial responsibility was limited to construction and constitutional application of the ordinance. After Eichorn, courts will have to make room for individual trials on the justification for each homeless person’s violation of an ordinance. If courts begin hearing a large number of cases that contest anti-camping citations using the necessity defense, the utility of these ordinances will be limited. Furthermore, the In re Eichorn court’s recognition of the lack of shelter space and other resources that assist homeless and other low-income people may create more support for social service programs and assist other localities in opposing the use of the ordinances. Localities must begin to consider alternatives to such ordinances before burdening the judicial system.
And here’s an analysis of the case from the National Coalition for the Homeless
In re Eichorn, 81 Cal. Rptr. 2d 535 (Cal. App. Dep’t. Super. Ct. 2000). Police officers arrested James Eichorn for sleeping in a sleeping bag on the ground outside a county office building in the civic center. Eichorn was convicted of violating a City of Santa Ana, California ordinance that banned sleeping in certain public areas. Prior to Eichorn’s trial, the California Supreme Court found the ordinance to be facially neutral and therefore constitutional. At trial, Eichorn had to argue the necessity defense and he attempted to prove that on the night of his arrest, there were no shelter beds available. The court found Eichorn had not made a sufficient enough showing to allow a jury to consider the defense. After objecting to the judge’s ruling, Eichorn’s lawyer decided to go forward without a jury on the constitutionality of the ordinance. The trial judge convicted Eichorn of violating the city ordinance and Eichorn lost an appeal to the Appellate Department. Eichorn then filed a writ of habeas corpus. In the habeas decision, the Appeals Court found Eichorn was entitled to raise the necessity defense, granted the writ and remanded to the municipal court with instructions to set aside judgment of conviction. Ultimately, the municipal court set aside Eichorn’s misdemeanor conviction for illegal camping and his sentence of 40 hours of community service. The District Attorney also decided not to retry him.
Another person I’d like to see offer some input on how/if the Eichorn decision might affect the proposed ordinance, is my good friend Stephen Greenberg — a huge advocate of the homeless and also a huge advocate for insisting that cities create ordinances consistent with the Constitution.
Absolutely. Mr. Greenberg has been a long-time advocate of civil rights in Nevada County, this is his bailiwick.
I don’t suppose it’s a coincidence that as Nevada City debates making it a crime to sleep in a public place, the AP releases a story entitled “US poverty on track to rise to highest since 1960s.” We’ve given up on creating jobs, housing, and communities; it’s easier to — by default — create unemployment, homelessness, and cells.
Thanks for the quotations and reminder of the Eichorn case, Steve. Yes, it’s still good law. So if — when, I imagine — this ordinance gets approved, and homeless folks are cited for violating it, they’ll each be able to present a necessity defense to a jury. Of course, that doesn’t protect them from being harassed out of sight in the first place. And it’s an enormously wasteful use of limited judicial resources, as the law review conclusion points out.
Pretty discouraging stuff, from where I sit. I’ll speak out against the ordinance on Wednesday, as I already did when it came up in April. But — as Chris Hedges told Bill Moyers on the Journal this evening — I do this out of faith and belief in what’s right, not in anticipation of actually making a difference. (A few months ago, when Marianna and I spoke against a Planning-Commission- and Police-Chief-endorsed proposal to close Pioneer Park at sunset, it felt like we did make a difference, and that proposal seems to have disappeared. For now, anyway. Of course, that proposal had a much more obvious potential to impact all of us directly, including council members. But the camping issue is likely to be perceived as affecting only Others.)
As usual, I wish you were still back here, serving on the Council!
Right on Stephen Greenberg,
I didn’t know the ordinance was still an issue. Maybe I will take a break from my Hospitality House booth at the market and come join you at the council meeting.
Stephen:
After my comments were posted here, I received an e-mail claiming I was nuts to suggest that the proposed ordinance is illegal. I had to remind my “correspondent” that I didn’t claim it was illegal –– only that a necessity defense can be used to fight citations. And in a town where available beds for the homeless can be counted on one hand, it might prove to be a very effective defense?
I can’t fault the new police chief for trying to respond to public concerns the best he can –– that’s part of his job. But the proposed ordinance will have little effect when the people cited use the defense of necessity in a town with a scarcity of available beds for the homeless.
As you noted, it’s an “enormously wasteful use of limited judicial resources” to cite the homeless for sleeping/camping on public property knowing that the necessity defense can be used to point out the dearth of available homeless options in Nevada City.
It has the potential to become another “feel-good” ordinance with little teeth except for the ability of police to cite people and remove them from the public property upon which they are sleeping/camping. But that is a temporary fix, because they will likely find a spot on another piece of public property the next night, and law enforcement resources will be called in again to issue another citation that can be challenged in court with a necessity defense.
Last night, I re-read some of the language of Eichorn’s case, and was struck by the court’s observation that every human is entitled to a period of sleep each night. For most of us, that’s not a problem, but for some it can be a big challenge.
Hope you and Marianna keep up the good fight.
On the post itself, has anyone connected the dots of how we are continuously having our taxes and regulations increased at the bottom while the top seems to get a pass?
Nice dot-connection, Ben; I hope you’ll be able to make it to the meeting! And re your earlier post (noting your work at the HH booth)… this proposed ordinance seems *so* targeted at the homeless — who else will violate it? — that it’d be nice to see them, and the homeless services community, represented at the meeting, too. I know, very short notice. Not to mention there’ll be absolutely no parking in NC before and during the meeting, because of Summer Nights. Still, ideally the Council will hear from folks who’ll actually be affected by the ordinance, and not just the police chief and city attorney who wrote it, supplemented by a few concerned citizens.