City's dispute with ACLU reactivated after consequential Supreme Court decision

Justices ruled 6-3 that criminalizing public camping cannot be banned on the grounds that it is cruel and unusual punishment.

Sebastopol has a “temporary moratorium” on their enforcement of an ordinance which sought to limit the harm done by those living in RVs around town. (Photo by Ezra Wallach)

On Friday morning, the Supreme Court released their decision on the City of Grants Pass v. Johnson case. It was a case whose impending verdict had, for the past year, been stalling negotiations between Sebastopol and the American Civil Liberties Union of Northern California (ACLUNC) regarding the enactment of the city’s 2021 RV camping ordinance.

Those negotiations began over a year ago after the ACLUNC sued the city with 14 claims that their ordinance violated the California and U.S. Constitutions. (For more background, read our article on the subject from May.)

One of the ACLUNC’s claims was that Sebastopol’s ordinance violated the Eighth Amendment of the U.S. Constitution by imposing “criminal penalties on indigent persons for sitting, sleeping, or lying outside on public property” when they “do not have access to shelter.”

Since the Grants Pass case dealt with a similar claim and circumstance, until a decision was released in that case, the ACLUNC agreed not to move forward so long as Sebastopol agreed to a “temporary moratorium” on enforcing their ordinance. Both sides suspected that the Supreme Court’s 6-3 conservative majority would rule in favor of Grants Pass—and both sides were right.

The court’s majority opinion, authored by Justice Neil Gorsuch, stated that the penalties Grant Pass seeks to impose upon its homeless, which are similar to Sebastopol’s, do not qualify as “cruel and unusual” under the Eighth Amendment.

“Under the city’s ordinances, an initial offense may trigger a civil fine,” writes Gorsuch. “Repeat offenses may trigger an order temporarily barring an individual from camping in a public park. Only those who later violate an order like that may face a criminal punishment of up to 30 days in jail and a larger fine…None of the city’s sanctions qualifies as cruel because none is designed to superadd terror, pain, or disgrace.”

An added twist in the story is that, in City Attorney Larry McLaughlin’s estimation, the court’s decision suggests that cities have the right to create their own laws when it comes to complicated policy matters like dealing with the homeless. This leaves Sebastopol with hope that they can challenge all of the ACLUNC’s 14 claims.

“What I found most interesting is the court focused not on the sleeping or camping aspects of the case, but on the actions of those unhoused persons, or, in our case, persons living in their RVs who are otherwise homeless,” McLaughlin said. “That's exactly what motivated our city to pass the parking ordinance in the first place—the actions of those who, were at that time, camped in their RVs over on Morris Street, were creating a considerable amount of disruption.”

Here’s the final passage of Gorsuch’s opinion. It’s worth a careful read:

Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not. Almost 200 years ago, [Alexis de Tocqueville] remarked upon the “extreme skill with which the inhabitants of the United States succeed in proposing a common object to the exertions of a great many men, and in getting them voluntarily to pursue it.” If the multitude of amicus briefs before us proves one thing, it is that the American people are still at it. Through their voluntary associations and charities, their elected representatives and appointed officials, their police officers and mental health professionals, they display that same energy and skill today in their efforts to address the complexities of the homelessness challenge facing the most vulnerable among us.

Yes, people will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others. But in our democracy, that is their right. Nor can a handful of federal judges begin to “match” the collective wisdom the American people possess in deciding “how best to handle” a pressing social question like homelessness. The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.

Moreover, the city believes the enforcement of its RV ordinance is warranted given the specific circumstances that Sebastopol must contend with—circumstances the elected officials of Sebastopol know better than anyone.

But, since the Eighth Amendment claim is still only one among a dozen others alleged against Sebastopol, ACLUNC Senior Counsel Bill Freeman is not too worried about the influence Gorsuch’s prose may have on the opinion of a lower court.

“Among the many reasons the ordinance is invalid is that it is unconstitutionally vague,” Freeman said. “Its terms are so confusing that a reasonable person trying to find a place to park cannot know what conduct will be prohibited. Also, the ordinance discriminates against an unpopular group—that group being people who are forced to live in their vehicles. The Constitution prohibits that kind of discrimination under the Equal Protection Clause. It also permits the unlawful seizure of people's property, and not just their property, but their homes in a way that the Constitution prohibits because there is no law enforcement justification for those seizures. So, bottom line, we disagree with the Supreme Court's decision. It's unfortunate given the makeup of this court. It was not unexpected, but it will not stop this lawsuit, and, in fact, it will have very little effect on it.”

The ACLUNC’s suit was filed on behalf of five plaintiffs that are homeless Sebastopol residents, some of whom have since been kicked out of what was once Horizon Shine Village. It is yet to be seen if there will be spots for them in Gravenstein or Elderberry Commons. As it stands, there are no active homeless shelters or Permanent Supportive Housing sites within Sebastopol city limits. Regardless, Freeman notes his clients remain “remarkably strong and brave and committed.”

“The city made it very clear that its intention was to enforce this ordinance against unhoused people, selectively, and the ordinance as written gives it the opportunity to do that, which is one of its many problems,” he said. “There's nothing about what the Supreme Court did today that will deter them or deter us.”

In spite of Freeman’s desire to help Sebastopol’s most vulnerable population, McLaughlin says he is frustrated that lawyers living in other parts of the Bay Area have chosen to challenge the way one city, which happens to be in great financial distress, goes about its business.

“I don't think they truly understand the impacts this has on a small city like Sebastopol,” he said. “We only had one street that could possibly accommodate any RVs. Morris Street is next to a very important dining and shopping development that brings a lot of money to the city. We supplied porta-potties and washing stations, etc.—all public expense. They were not utilized. In fact, one was set on fire and burnt down. People continued to do their business, so to speak, in the gutter, or they did it in their RV and then drained it into the gutter even though we had a spot for them to go drain their RVs. They packed all their possessions across the sidewalk. They also were openly engaging in drug dealing activities. Citizens complained that, especially in the nighttime hours, they were afraid to walk down the public sidewalk because of these activities. It was impacting a gym that was in business, it was impacting people's ability to use the Laguna Park, it was impacting the community center. I could go on and on. We were very careful at the time that we were preparing that ordinance to create a voluminous public record of the impacts that led to its introduction.”

With that record, McLaughlin said the city is ready for a fight. So is the ACLUNC.

“We remain confident that Sebastopol’s RV ordinance is unlawful and that it should be blocked by the court,” said Freeman. “We will soon file a motion with the court asking it to do just that.”

McLaughlin, who is retiring on June 30, won’t be around to take part in this epic battle. The city, which is still interviewing law firms to replace him, has retained outside counsel to defend Sebastopol against the ACLUNC lawsuit.