Harassment, Stalking, Misconduct Homeless in Tents: Violation of California Penal Code 647e?

[duty01]

In Venice, CA, law officers are currently citing homeless individuals who pitch small tents on sidewalks, which do not block the sidewalk from use by pedestrians in any way, as violating California Penal Code 647e.

Here is a copy:

647. Except as provided in subdivision (l), every person who
commits any of the following acts is guilty of disorderly conduct, a
misdemeanor:

(e) Who 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.

--------------------

So is this in violation? They are only targeting individuals sleeping in tents with this. If this is in violation, how does it apply to only tents and not the homeless sleeping in the open on the same sidewalks?

 

[duty01]

The officer told me 647(e), but perhaps he was referring to:

647c. Every person who willfully and maliciously obstructs the free
movement of any person on any street, sidewalk, or other public
place or on or in any place open to the public is guilty of a
misdemeanor.

Nothing in this section affects the power of a county or a city to
regulate conduct upon a street, sidewalk, or other public place or
on or in a place open to the public.

 

[mightymoose]

If it is 647(e) they likely consider the ones with tents to be "lodging". Setting up a tent indicates an intent to stick around awhile, and the citations likely are intended to encourage them to move along to another location.
Whether or not it is a legitimate violation is something to be determined in court. In the mean time it is in their best interest to move along rather than risk an arrest and losing everything.

 

[duty01]

I know this is probably an issue for court, but I've done enough research today to see this kind of argument a lot:

Isn't this a vague law, violating the California State Constitution's protection from vague laws, if the police in LA are interpreting it as applying to only people with tents, while in San Francisco they apply it to anyone sleeping on public property? How is it that Venice police interpret it this way, but downtown they don't harass anyone for tents?

Idk, something about this doesn't seem right. Homeless must have a right to find protection and safety from the elements, and from the eyes of thieves...at least in my mind.

 

[Betty3]

Each county/city probably enforce/interpret the law as they see fit or some counties/cities may have their own "laws"/regulations.

As mightymoose noted, it would be up to a judge/court to determine if an actual violation occurred. No one here knows how any individual judge/court would rule on a specific "violation."

 

[guestpost]

Thank you both for your replies. It's frustrating to have to fight for the most amenities of life, especially when the consequences are so uncertain. There's definitely no clear answer through all my research...anyone wishing to challenge the LAPD's practices of denying homeless peoples' attempts at basic self care would be taking a risk.

 

[duty01]

Thank you both for your replies. This whole issue is quite frustrating, and my research has turned up utter inconclusiveness. Luckily in LA, "homeless" is considered a legal class (a common frustration else ware when the homeless seek TROs against the city), so there seems to be an abundance of arguments about how this anti-loitering statute is constitutionally invalid.

But I'm not a lawyer, only a rhetorician and so I appreciate at least the confirmation that the law is not clear-cut here.

 

[mightymoose]

Personally, I think it is pretty clear and would be applied valid in this situation.
Your frustration seems to be about police discretion. Just because police in some locations might choose to not enforce a particular law does not mean they can't do so. Different jurisdictions make different decisions, but all of them within the same scope outlined in the law.

 

[guestpost]

So the court would be unlikely to hear the argument that this law is a violation of homeless peoples' ninth amendment rights to shelter themselves from the elements, obtain privacy (which is enumerated in the state constitution anyways), and obtain some measure of safety from thieves, given that they have no other options?

Thank you again for your replies, this is actually quite helpful to me, as I am debating whether to find a lawyer to help me bring this suit up.

 

[duty01]

But a challenge to the law itself on constitutional grounds (given that the plaintiffs would have standing to bring it forth) would still hold a chance, right?

How likely would the court be to hear the argument that this law is a violation of homeless peoples' ninth amendment rights to shelter themselves from the elements, obtain or even pursue privacy (which are both enumerated in the state constitution anyways), and obtain some measure of safety from thieves, given that they have no other options?

Thank you again for your replies, this is actually quite helpful to me, as I am debating whether to find a lawyer to help me bring this suit up.

 

[Betty3]

Possibly - depends on state/city/county & the court where case tried. per reference National Housing Institute - some examples:

Survey of 50 largest cities - found that 86 percent of the cities surveyed had laws that prohibited or restricted begging, while 73 percent prohibited or restricted sleeping and/or camping. Over one-third of the cities surveyed have initiated crackdowns on homeless people, according to the survey respondents, and almost half of the cities have engaged in police "sweeps."

In Pottinger v. Miami, a federal court held that punishing people for sleeping in public when they had no alternative place to sleep violated their right to be free from cruel and unusual punishment under the Eighth Amendment and violated their right to travel. As a result, homeless people in Miami cannot be arrested for sleeping in public places if they have no alternative.

Seattle, Washington, enacted an ordinance that forbids lying or sitting down on a public sidewalk, or upon a blanket, chair, stool, or other object between 7 a.m. and 9 p.m. in certain areas of the city. Homeless residents of Seattle alleged due process and First Amendment violations, but the Ninth Circuit upheld the sidewalk ordinance, finding that sitting and lying are not integral to, or commonly associated with, expression. Today, any person lying or sitting on the sidewalk in violation of this ordinance can be fined $50 or be instructed to perform community service. In Cincinnati, Ohio, however, an ordinance that prohibited sitting was found to infringe on a person's freedom of speech and thus was held unconstitutional by the District Court.


In Cleveland, four homeless individuals and an advocacy organization challenged the police practice of removing homeless people from the city by transporting them to remote locations outside of the city and abandoning them. As part of the settlement, the city issued a directive to the police forbidding them from picking up and transporting homeless people against their will.


There were more examples but just to give you an idea I posted the above.

 

[Betty3]

I found some info re Ca. - Santa Ana, California-an ordinance that prohibits sleeping and camping in designated public places was found to be constitutional. However, the California State Court of Appeals reversed the conviction of a homeless man because he was not allowed to present a necessity defense at trial. He wasn't given the opportunity to show that he was involuntarily homeless and that there were no available shelter beds on the night of his arrest.

You can probably do a google search or go to a law library & search for court cases. A lot seems to depend on, as I noted previously, the state/city/county & specific court.

 

[mightymoose]

But a challenge to the law itself on constitutional grounds (given that the plaintiffs would have standing to bring it forth) would still hold a chance, right?

I don't believe the complaint would go very far at all, at least not on those grounds.

 

[Betty3]

duty01 - links might be of interest to you.

L.A. Violated Constitutional Rights of Homeless, Court Finds - http://venice.patch.com/articles/l-a-violated-constitutional-rights-of-homeless-court-finds

Venice Council Narrowly Votes in Favor of Beach Storage for Homeless - http://venicedispatch.info/2013/01/...votes-in-favor-of-beach-storage-for-homeless/

Venice Homeless Encampment Questions Answered - http://la.curbed.com/archives/2012/05/venice_homeless_encampment_questions_answered_1.php

(Just for your interest since it seems you're interested in/concerned about the homeless)