Despite Concerns it is Unconstitutional, City Council Passes Ban on Street Dwelling 6–1
Councilman Steve Brandau (R) opened the Aug. 17 Fresno City Council meeting by saying that unlike he usually does, he would not be “winging it.” He said that in this case, his staff had advised him to read the presentation for his Unhealthy and Hazardous Camping Act proposal from a prepared statement. Many in attendance that night expressed their preference that more time had been spent on preparation of the proposal itself.
Brandau insisted that his constituents and those of his City Council colleagues have been calling them constantly to complain about the homelessness problem in Fresno. He claimed that this ordinance aims to “stop enabling negative behaviors, give a firm push to change these behaviors and be a tough love approach to ending homelessness. I consider it a win-win-win for business, residents and the homeless.”
The ordinance would make it a criminal offense to live on the street in a tent, a cardboard enclosure or any other temporary structure. Those who violate this act would be charged $1,000 or taken to jail. Many advocates say this criminalizes homelessness as anyone who has $1,000 in Fresno would have somewhere to stay. Editor’s Note: The average monthly rent for a studio apartment in Fresno is $621.
“A small group of people have been holding the city hostage,” Brandau said. “I want to help the small group, but I have to help the whole.” These supposed hostage takers are the percentage of people without housing who Brandau claims choose to live on the street. He set that number at 600. Those who work with the homeless in Fresno, like Shawn Jenkins, say this is around the same number of beds lacked at shelters.
Brandau also claimed that 44% of the nation’s homeless live in California although, according to a Senate Transportation and Housing report, California’s homeless made up only 20% of homelessness in the United States in 2014.
He went on to say that California is a magnet for people experiencing homelessness because of the state’s mild climate. There were a few snickers from the audience as people derided the idea of Fresno being desirable for its weather, particularly given the hundred-plus degree heat we regularly have in the summer.
Reaction from the public in attendance was mixed, but most of the comments regarding the proposed ban were negative, most vehemently so. Those who supported it were primarily business owners and residents who have experienced property damage by people living on the street or had clients complain of feeling afraid when encountering homeless people in and around their businesses. Advocates acknowledged that these problems are a concern but said they speak to the need for more mental health treatment and other resources. Supporters of the ban often dismissed the homeless as addicts who make no effort to get clean, while those who work in drug treatment site a lack of enough such assistance in Fresno.
Current and formerly homeless people spoke poignantly about their experiences and called on the city and the public to emphasize compassion. Some, like a woman who had worked for the IRS, had had good jobs all their adult lives until the recession. Zoyer Zyndel and Jordan Fitzpatrick of Trans-E-Motion discussed the challenges LGBTQ people face with homelessness as some of the most vulnerable people in society. Transgender people especially are often turned away from treatment centers and shelters.
Cesar Villaseñor, who works with youth, said that this ordinance “is not tough love; it is just toughness. With all due respect Councilman, you cannot be winging it.” Villaseñor said many of his kids are foster youth that are victims of the system. He says that local agencies serving the homeless are overwhelmed and under-resourced and that funding them should be the focus of the City Council.
Natalie Robinson, a case manager with Reading and Beyond, works with people “to attain Cal Fresh (also known as food stamps) and overcome barriers to employment.” She said that she had also spent time at MAP Point with a client who did not qualify, like many others of whom she was aware.
According to the Poverello House Web site, “MAP (Multi-Agency Access Program) is an integrated intake process that connects individuals facing housing, substance abuse, physical health and/or mental health challenges to supportive services. MAP Point at Poverello House is a physical intake location for the community homeless population. If a family or individual needs other immediate services, they will be referred to the appropriate agency partner. Partners include Fresno Housing Authority, WestCare, Community Conversations, and the City and County of Fresno.”
Brandau and Fresno Police Chief Jerry Dyer made remarks praising this system and saying that Brandau’s proposal would connect those homeless wanting help with MAP Point. The problem, according to people experiencing homelessness and homeless advocates, is that this system has not increased the number of spaces available and desperately needed at shelters and other programs for the homeless.
There continues to be a massive shortage of places for the homeless seeking housing in Fresno, which no one in the room disputed. Brandau himself pointed to the fact that homelessness has been going up in Fresno. According to his numbers, in 2016 there were 1,319 people considered homeless, whereas in 2017 there are 1,572. How that compares to the population increase for 2016–2017 was not discussed, but given the massive housing price increases in the Bay Area, there has been some migration since the Great Recession from these more expensive cities to the Central Valley.
Fresno Mayor Lee Brand (R) acknowledged that much of the problem is the lack of affordable housing throughout California. Although housing is cheaper in the Valley, wages are lower. He claimed that the cost to build 1,000 units would be $250 million. Some countered that it could be done at a lower cost. In a strange disconnect, Brandau advocated a “housing first” approach although this ordinance is the antithesis of that.
Chief Dyer also assured the City Council and the public that enacting this ordinance would not lead to a “sweep” of people experiencing homelessness. He spoke of the 26,000 calls the Fresno Police Department receives about homelessness, averaging 90 calls a day. “The №1 issue is complaints from businesses about intimidation, altercations and the six murders this year where the victim and/or the suspect is homeless… I cannot and do not want to arrest our way out of this.”
Abre’ Connor, a staff attorney with the ACLU of Northern California Fresno office, cited a 2009 class-action lawsuit for $2.35 million where a similar ban proposed before the City Council was found to be in violation of the rights of the homeless. “Here we are several years later with this ordinance and no lessons were learned. It makes it illegal to live outside…where are people to go? The ordinance provides no resources.” She also demanded to know why the police were determined to be the best agency to decide what is best for the homeless. She said there were serious legal concerns considering there is no due process before sending people to jail.
When the City Council moved to vote, Council Member Luis Chavez (D) said he would not sign off on the legislation because it provided no opportunity for the unhoused to get help. He proposed an amendment that would add a step before taking people to jail. In lieu of the $1,000 fine or jail time, if a homeless person is picked up and requests services, the police could bring them to a treatment facility. This amendment was voted through and added to the ordinance. Chief Dyer agreed to this amendment and said that he was willing to have any charges expunged so that the person would have no criminal record, similar, he said, to the stipulations made for prostitution. Police would still have the discretion to arrest and no solution was included for lack of space at treatment facilities.
Every City Council member voted for the ordinance except Council Member Esmeralda Soria (D). She requested more time to work on the issue before voting this ordinance through. “I believe that we can do better.” That idea was rejected by the rest of the City Council.
Mayor Brand claimed that the Poverello House is expanding, but Shawn Jenkins, the WestCare senior vice president for California, said that they still do not have the resources to meet Fresno’s needs. Responding to calls for increased resources, Brand argued throwing money at the problem would not solve it.
He said the City of Los Angeles passed a large bond to address homelessness and it increased, whereas the City of San Francisco spent $241 million on homelessness and still has 7,000 people experiencing homelessness. Of course, neither has passed a law making it illegal to live outside. In fact, Los Angeles allows people to house the homeless on their property.
Although two City Council members, Oliver Baines (D) and Paul Caprioglio (D), were absent from the initial vote on Aug. 17, they were present for a second vote a few days later. They both voted yes on the ban. They are both Democrats.
In 2015, the Justice Department filed a brief stating that it is unconstitutional to ban the homeless from sleeping outside when there is insufficient housing in their communities. Given that civil rights groups argue that this ban, and others like it that have been enacted in other cities, violates the Eighth Amendment rights of homeless individuals against excessive bail, legal action is expected.
Hannah Brandt is the editor of the Community Alliance newspaper. Follow her on Twitter and Instagram at @HannahBP2. Follow the paper on Facebook at Community Alliance Newspaper and on Twitter and Instagram @fresnoalliance.
This article was originally published in Community Alliance newspaper: https://fresnoalliance.com/despite-concerns-unconstitutional-city-council-passes-6-1-ban-street-dwelling/