Judge Declines Emergency Block of San Clemente’s Anti-Camping Law

U.S. District Court filing by Maura Mikulec

San Clemente's official homeless campsite soon after it opened in May 2019, as seen in a photo filed in federal court. About 36 people sleep there on any given night, according to city officials.

San Clemente can continue to make it illegal for homeless people to camp outside the city’s designated campground, after a judge rejected an emergency request by lawyers for homeless people to block the law.

At the same time, U.S. District Judge Percy Anderson called on the defendants – five south OC cities and the county – to work with homeless people’s lawyers “in a cooperative manner” to address concerns about an alleged shortage of adequate homeless shelter and conditions at San Clemente’s official homeless campground.

“The Court takes this opportunity to note that it would be a shame if the decisions and conduct of the parties resulted in protracted and expensive litigation. Should that happen, it could cause Defendants to direct their limited resources to a team of attorneys rather than to the social services that could benefit the entire community,” Anderson wrote in his ruling Friday, July 5, which was released publicly on Monday.

“The Court therefore hopes that the parties will take steps to resolve their disputes in a cooperative manner. San Clemente has, encouragingly, expressed a willingness to work with Plaintiffs to address at least some of the concerns raised in the [emergency request] regarding the conditions at the temporary campground.”

The judge made an exception to the normal court rules, and ordered all sides to meet in person ahead of time to “discuss thoroughly, preferably in person” all requests for court orders and how to resolve them.

“To support this more collaborative approach, the Court orders all of the parties in this action to meet and confer prior to the filing of all applications and motions,” Anderson wrote.

It was Anderson’s first ruling in a closely-watched civil rights lawsuit against south OC cities. The case was filed by attorneys Carol Sobel and Brooke Weitzman and originally was overseen by Judge David O. Carter until he was removed last month.

The overall lawsuit asks the court to block five south county cities from enforcing their anti-camping laws against homeless people until adequate shelter is offered as an alternative to sleeping in public.

The case is based largely on the U.S. 9th Circuit Court of Appeals’ ruling last year in Martin v. City of Boise, which found it’s unconstitutional to punish homeless people for camping outside unless adequate shelter is available as an alternative.

Anderson has not yet ruled on the lawsuit’s overall claims, nor whether the cities are in violation of Martin v. Boise.

His July 5 ruling was about a narrower request by Sobel and Weitzman for an emergency court order invalidating an “urgency ordinance” San Clemente adopted in May.

That law made it a crime for homeless people to camp anywhere in the city except a designated vacant lot measuring 0.31 acres. Weitzman and Sobel argued the official campground isn’t a realistic option because it’s had overflowing sewage and is difficult for people with disabilities to access, while city officials disputed those claims and argued the conditions were sufficient and sanitary.

In his ruling, Anderson said Weitzman and Sobel hadn’t met the legal standard for an emergency court order, and that they had not made the constitutional arguments that have been successful in other cases.

“Although Plaintiffs have supported their [restraining order request] with photographs of the [official campground’s] portable toilets that show overflowing sewage and extremely unsanitary conditions, the City states that it has arranged for a contractor to service the portable toilets every two days and the contractor has not informed the City that they should increase the frequency of that service,” the ruling states.

Regarding accessibility concerns, Anderson wrote, “The City provides transportation to the temporary campground for those requiring assistance.”

He noted the emergency request did not rely on the Boise case argument Weitzman and Sobel made in their overall lawsuit: that anti-camping enforcement without adequate shelter violates the Eight Amendment ban on cruel and unusual punishment.

“While the plaintiffs who successfully obtained [a court order] in Judge Carter’s case and the Ninth Circuit panel in City of Boise both grounded their analyses on the Eighth Amendment, Plaintiffs here have not sought an injunction on that basis,” Anderson wrote.

“In City of Boise, the Ninth Circuit concluded that ‘the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter,’ ” Anderson continued.

Another ruling could come as soon as next month.

Three of the south county cities want to be dismissed from the overall lawsuit, and Anderson has scheduled an Aug. 5 hearing on the request by San Clemente, San Juan Capistrano, and Aliso Viejo. It likely will be held in the federal courthouse in Downtown Los Angeles.

Starting early last year, Carter has been presiding over a series of federal lawsuits alleging city and county officials are unconstitutionally enforcing anti-camping laws against homeless people who say they have no realistic alternative place to sleep.

Carter sought to have officials and homeless advocates work together on solutions, arguing that traditional adversarial lawsuits. Cities in north county largely worked with this informal approach, agreeing to create hundreds of new shelter beds in north OC.

South county city officials took a different approach, declining to commit to new shelter in their cities and privately vowing to fight the lawsuit.

They told the court they wanted a traditional approach to the case, and asked to have Carter removed.

The removal decision went before another federal judge, James V. Selna, who removed Carter from the south county case in a ruling last month.

Carter’s goal had been “to broker a collaborative, county-wide solution to the homeless problem.” But with south county now wanting traditional litigation, Selna said Carter earlier created problems for himself to preside over the south county case when he warned all regions of the county to “step up” with more shelter or face consequences.

The south county case was reassigned to Anderson, who is based in Los Angeles.

Anderson, in his first ruling July 5 , urged south county cities to learn from the collaborative approach undertaken by Carter and city officials in the north county cases.

“This Court would like to take a moment to recognize the extraordinary efforts and dogged determination of Judge Carter in fostering the conditions in which many communities and stakeholders have achieved a mutually-beneficial negotiated settlement that appears to provide far greater benefits to all sides than are usually achieved through protracted litigation,” Anderson wrote.

“The entire Central District of California, and all of its Judges, owe an enormous debt of gratitude to Judge Carter for his tireless efforts. If this litigation takes a different path, nobody should view any such differences as a rejection of Judge Carter’s approach or legal analysis. This action involves different parties and facts than those pending before Judge Carter,” the ruling continued.

“While trials can sometimes declare winners and losers, litigation frequently does a poor job of resolving complex societal problems. This Court hopes that the parties before it [in the south county case] can learn and benefit from the example set by Judge Carter and the parties appearing before him.”

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.