ECLECTIC RANT: Homeless encampments may be here to stay until adequate shelters for all are provided

Ralph E. Stone
Friday August 19, 2016 - 01:16:00 PM

Homeless encampments are springing up in Berkeley, Oakland, San Francisco, and elsewhere in the Bay Area because local governments are unable to provide shelter, let alone permanent housing, to their homeless. The homeless are, therefore, forced to find their own self-help shelter in tents, under bridges, in doorways, and in our parks.

Courts and the federal government have said it's illegal to criminalize someone's status rather than their conduct, and therefore enforcing a no-camping ordinance when homeless people don't have viable alternatives is criminalizing their state in life. A shelter is a basic human right and efforts to remove the homeless self-help shelters are likely to run afoul of the law. Without shelter, the homeless are exposed to the dangerous condition of living on the streets.  

In April, eleven homeless people facing eviction from city-owned property filed suit against the city of Eureka, California. In Cobine v. City of Eureka, Oakland U.S. federal District Judge Jeffrey White opined: 

"Getting injunctive relief in a federal court is no easy task. To do so, plaintiffs much show three things: that their case has merits and a likelihood of success at trial; that without a temporary restraining order, they would suffer irreparable harm; and that a temporary restraining order would be in the public interest." Judge White decided that all factors tipped in the plaintiff's favor. 

The Court found that the Fourth and Fourteenth Amendments to the Constitution protected plaintiffs from seizure of their possessions and their "homeless retreats regardless how ramshackle." 

The Court also found that laws criminalizing an individual's status, rather than specific conduct, are violations of the Eighth Amendment. Further, the Court found, the Eighth Amendment protections against cruel and unusual punishment are irreparable,while the city's potential harm are monetary.  

The Court issued a restraining order prohibiting the eviction of the eleven plaintiffs until Eureka identifies housing for the eleven and provides assurances that the homeless plaintiffs' possessions will be stored and accounted for. 

While this case applies to only eleven homeless in Eureka, Judge White's reasoning is compelling.  

That does not mean, of course, that cities cannot enact restrictions on homeless encampments to maintain hygiene, safety, and lawful conditions. As homeless encampments are here to stay at least for the foreseeable future, local governments may have to provide portable toilets, trash bins, trash, trash removal, other amenities to make the encampments more livable, and enforce laws preventing blocking of streets, sidewalks, and entrances to businesses.  

Until adequate shelters are provided to all the homeless, homeless encampment are now part of the urban environment.