On Nov. 17, the Eureka City Council voted to repeal and replace its existing camping ordinance, approving new language that prohibits camping in the city's business districts and trails, anywhere in the city during daylight hours and anywhere on public property where said camping would be considered "obstructive conduct." Discussion stretched nearly two hours, with several councilmembers seeking to assuage public concern that the new ordinance would further criminalize homelessness. The ordinance was amended to change the recommended criminal charge for camping from a misdemeanor to an infraction and then passed with a 4-1 vote, with Councilmember Leslie Castellano dissenting.
According to City Attorney Robert Black, the new language was drafted to replace an existing ordinance rendered moot by a 2019 Ninth Circuit Court of Appeals decision, Martin vs. The City of Boise. In that case, the court found Boise's camping ordinance unconstitutional on the grounds that it violated the Eighth Amendment by criminalizing "necessary human behavior; specifically, sleeping, sitting and lying on public property when homelessness and lack of available shelter gives individuals no alternative."
"The city has been involved in litigation stemming from the Palco Marsh abatement," Black told the council in his opening comments. "One step in the direction of resolving that litigation is to revise our camping ordinance and bring it into compliance with federal law. [Martin v. City of Boise] basically said that houseless, homeless people by virtue of their status cannot be criminalized through total prohibition of camping in public spaces. We now have an ordinance that essentially contains such a total prohibition. This is an attempt to try to establish a set of values on the use of public property but, at the same time, allow large areas of public space within the city of Eureka to be available to people for whom there is no available shelter space."
In the new ordinance, this conduct is referred to as "involuntary camping," and is prohibited in Old Town, the Northern Gateway District, all of the Waterfront Trail and the Henderson Center business district.
Councilmember Austin Allison opened discussion with two questions: "Will ordinances like this put houseless people in jail? Will it take people off the streets?"
Black responded that "for all practical purposes, the answer is no," adding that there was a "theoretical legal construct" in which violators could be charged with a misdemeanor but in practice it would be an opportunity for police officers to contact those violating the ordinance and try to convince them to seek services.
Eureka Police Capt. Brian Stephens confirmed that EPD currently has a practice of not rousting people who are camping overnight except in complaint-driven circumstances, and said the ordinance would give officers the authority to contact individuals and connect them with services, with the "ultimate goal being able to get them off the street."
"The ordinance gives us the ability to legally maintain order and address overall community needs and, hopefully, encourage these community members to seek out services and sheltered spaces," Stephens wrote in a follow up email. "Those that do have a change of heart about accepting assistance often do so because of the multiple contacts and the relationships that are built between members of our CSET and UPLIFT team and the community member. There are times and areas that the behavior is not acceptable and there needs to be balance and the ability for all our community members to freely utilize our public spaces."
The city has been on a circuitous journey with its relationship to its homeless residents since 2013, when a lawsuit brought by a homeless advocate who broke her shoulder while visiting people in the Palco Marsh sparked a series of events culminating in abatement of that encampment, which at one time consisted of several hundred people living behind the Bayshore Mall. City staff attempted an array of different tactics to disband the Palco Marsh camps, including straightforward eviction notices, regular visits by clean-up crews and resource fairs before the camp was finally forcefully dispersed May 2, 2016.
The city's ongoing exposure to litigation, as referenced by Black at the top of the meeting, informed much of Nov. 17 discussion. The case, which Black said is largely inactive, arose from that 2016 eviction. Eleven litigants represented by Eureka attorney Shelley Mack filed a restraining order against the city just prior to the clear-out of the encampment. A judge at the time ruled that the city would have to provide alternative shelter for the plaintiffs. The ruling resulted in a series of "sanctioned camps" set up at different places in the city, but they were discontinued in November of 2016, with city staff citing complaints from neighboring business owners about theft and vandalism.
In the four years since the events of 2016, the city has diversified its approach to homelessness, with departments changing in a variety of ways to meet the challenge. The city's Community Services Department (formerly Parks and Recreation) helped establish UPLIFT Eureka, which matches participants with community volunteers to help guide them through services. EPD modified and expanded its homeless outreach services. The city also supported several transitional and permanent housing projects through the Betty Kwan Chinn Foundation and the state's Project Homekey initiative.
But the question of where people without homes can legally be, especially with winter bearing down, limited local shelter capacity and the continuing spectre of a pandemic.
Castellano asked if the maps created by counsel were counter-intuitive: "If someone was camping somewhere and told they couldn't stay, and they ask where they could go, what would happen — would we show them a map of where they could go?"
Black said questions like that "get worked out in practice," in the field by EPD officers, and that there is a general reluctance to sanction any particular area for camping, saying it could lead to a "concentrated zone or area." Stephens, in an email, acknowledged this concern, saying there is "a risk with telling a community member that they can camp in a particular place."
Although public comment leaned largely against approving the new language, with one opponent saying it sounded like "just pushing people around," a council majority supported the change. Several councilmembers cited complaints from business owners about homeless camping in doorways and entryways and having to clean up messes before opening up to customers.
"It's really important to learn from your past," said Councilmember Kim Bergel, referring to instances when the city allowed camps to become entrenched. "We've experienced this with Palco Marsh ... if you remember what a nightmare that was."
Castellano, who cast the lone dissenting vote, wrote in a follow-up email that she had several concerns with the new ordinance.
"The legal territory of when and where a person can sleep in public is quickly changing," she wrote. "I think that it is better to take our time in developing a replacement ordinance, if that is indeed the best tactic, in order to create something that will not be subject to continued legal challenge."
She expressed concerns that continued litigation would ultimately be costly for the citizens of Eureka and felt some of the language in the ordinance has too much room for interpretation and it is unclear how enforcement would work in practice.
"I also have concerns about encouraging people to seek a shelter during a pandemic," she added. "I know that the people who manage shelters in Eureka are doing tremendous work and abiding by good health protocol, but there are many unknowns during this time and the numbers of people who have COVID-19 are on the rise."
"I know we need some better systems to support our local business owners who are facing many challenges and do not also want to be confronted by having to clean up after someone or manage a situation that may feel unsafe to them, and I am committed to figuring out what the best policies may be for that, but I think that we are not fully there yet," she wrote.
Linda Stansberry (she/her) is a freelance journalist. She lives in Eureka.
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