Court Rules to Protect Sleeping in Public

Santa Barbara City Parks Subject of Ongoing Debate

A recent court decision protects people sleeping in public, like this man and his dog in Plaza de Vera Cruz.

Paul Wellman

A recent court decision protects people sleeping in public, like this man and his dog in Plaza de Vera Cruz.

If it’s not part of a well-orchestrated campaign, it may as well be. For the second time in the past three weeks, the public comment portion of Santa Barbara’s City Council meeting was dominated by individuals complaining that city parks have been overrun by individuals engaging in public defecation, masturbation, and inebriation, among other offenses.

This week it was Anna Marie Gott, perhaps the council’s most relentless critic, detailing how a toddler crawling through the grass at Alice Keck Park Memorial Garden had to be taken to the emergency room after coming into contact with an unspecified cannabis product. As a result, Gott charged, the child’s parents have become the subject of a child welfare investigation. Two weeks before, it was onetime mayoral candidate and longtime council scold Wayne Scoles — famous for the blistering heat of his tirades — complaining that city police have abdicated their enforcement responsibilities when it comes to transgressions by street people. Speaking in vivid scatological detail, Scoles excoriated the council for failing the public. “You’re elected to do a job, not kiss butt,” he stormed. “We need enforcement; we do not need excuses.”

In both instances, Councilmember Jason Dominguez jumped in after public comment, challenging high-ranking city administrators to do more and rejecting their explanations. Both times, Mayor Cathy Murillo tried to rein in Dominguez, noting that council protocol does not allow councilmembers to discuss the issues raised during public comment period because they’ve not been agendized. “I wish you were more concerned about the people than public comment,” Dominguez shot back. This sparked Councilmember Randy Rowse to exclaim, “It’s public comment, not your comment.” Dominguez would later reply, “Why are you afraid of the truth, Mr. Rowse?” Dominguez will soon be facing re-election and is widely rumored to be considering a mayoral run against Murillo, with whom he has frequently locked horns.

Aside from the dysfunctional theatrics that increasingly typify council deliberations, the exchange highlights a gathering legal and political storm over the enforcement of certain laws in the wake of a recent court ruling that protects the rights of homeless people to sleep in public. That ruling — issued by the Ninth Circuit Court of Appeals on September 4 — decreed that any ordinance that bans so biologically necessary a bodily function as sleep qualified as cruel and unusual punishment. Only if there were as many shelters as there were homeless, the court ruled, could a local government enforce such restrictions.

In the wake of what’s known as “the Boise decision,” Santa Barbara city police found themselves scratching their heads over what they could and could not issue citations for. When homeless people erected 14 tents along East Beach, cops initially held off, fearing they lacked legal authority to take action. City Attorney Ariel Calonne would eventually conclude that tents exceeded the protections afforded by the Boise decision. Cops were dispatched to East Beach; tent dwellers were asked to leave. Those who didn’t were cited. Some had their gear confiscated. According to Calonne, people in sleeping bags — so long as they’re on public property — cannot be cited; people in tents, however, can be.

For beat cops, it can be a tricky line to walk. What about people sleeping on sidewalks in front of a private business? What about people sleeping in public parks after closing hours? The answer to many of these questions, according to police spokesperson Anthony Wagner, must be determined on a case-by-case basis. Some cops avail themselves to new strategies, like enforcing the city’s new smoking ordinance instead.

Calonne sought to explain the complexities posed by the Boise ruling after Scoles delivered his scorched-earth diatribe over lack of enforcement two weeks ago. Councilmember Dominguez wasn’t buying it. He’d talked to other city attorneys of other cities, he told Calonne, and they were enforcing where Santa Barbara wasn’t. “We’re not moving fast enough,” he scolded.

For members of the council, there’s no legally safe ground. As Calonne told it, if city police violated the Boise ruling, City Hall could be on the hook for up to millions of dollars in legal penalties. Peter Marin, a longtime homeless advocate who has sued City Hall multiple times, agreed. “If they write the wrong tickets, we and the ACLU will go after them,” he said. The Los Angeles office of the ACLU recently put City Hall on notice that they’re paying attention, filing a public records act request on how city cops are enforcing against handicapped individuals who are homeless.

On the flip side, Calonne and the council are bracing for a lawsuit filed by legal barracuda Barry Cappello on behalf of a 4-year old boy who recently pricked himself with a used syringe while playing at the playground at Vera Cruz Park — nicknamed “Needle Park” — a well-known as a haunt for intoxicated street people. Cappello demanded he be placed on a council agenda and allowed 10 minutes to speak. “Not only does the transient population threaten tourism and State Street business,” he wrote, “it is now clear it also threatens the sanctity of our parks and safety of our own children.”

While Cappello insisted he wasn’t threatening a lawsuit, he all but promised one if the council did not comply with his demand. Calonne responded by agreeing to meet with Cappello and inviting the former city attorney to speak at the public comment portion of a council meeting. Cappello’s reaction: “Forget it.”

Marin stated that until new shelter beds are somehow produced, the warring factions will remain stalemated. The good news is that $9.3 million in state money will soon be available to Santa Barbara County to create new housing and services for the homeless. As much as $6 million of that will go City Hall, which will work in conjunction with Cottage Hospital and an array of nonprofits. “Until there’s a day center for homeless people to go to,” Marin predicted, “this situation isn’t going to get any better.”