Sherman R. Frederick
The homeless encampment in Lee Gerner Park — a COVID-19 homeless phenomenon that confounds Marin County — occupied much of the time at the last Novato City Council meeting. It was a 4-plus hour meeting with the bulk of it spent on what to do with the homeless who do not want to get into an organized government program or housing.
In the opening public comment period, Navatoans blasted the Council for allowing the homeless to take over the park during COVID-19.
A caller identified as Terry Graham summed up the angst when she said:” I believe Novato has allowed Urban blight to fester. We’ve now got dangerous ‘no go’ zones throughout the city.”
She then accused the city of failing to enforce city codes and called on elected leaders to establish one location for the homeless then clear public parks.
“One designated area. Not everywhere they want to be,” she said.
A caller identified as Lori told the council she’s afraid of the Lee Gerner encampment. “I’m terrified of the people in the park. They are dangerous people.”
Caller Tina claimed that there are enough beds for the homeless in Marin. “The people at Lee Gerner don’t want the beds. They want to stay in the park. They are dangerous. They defecate in the creek and they steal from our local businesses. I want my park back.”
Mayor Pat Eklund, who took withering criticism from some of the callers said “the city is committed to do what we can to reduce encampments” and encouraged callers interested in the topic to stick around for a discussion on new anti-camping laws.
The changes in the law, City Manager Adam McGill said, are designed to deal with people who “don’t want a program or housing. They want to live in tents outside society’s norms.”
He was tasked by the City Council to advance changes to city ordinances that will “balance the greater good and the overall safety of everyone in Novato”
The city is contemplating changes to its anti-camping ordinance that would ban camping in certain portions of public areas and fire risk areas. City Attorney Jeff Walter said under the contemplated changes “those who are homeless and entitled to camp under the Martin vs. Boise doctrine can do that” but must break camp during the day.
How that aim would jibe with the latest federal court rulings remains up in the air. After the Novato meeting, Federal Judge Edward Chen issued a ruling in the Sausalito homeless situation in which he said it was OK for the city to designate one location for the homeless, but that location must be a place for 24/7 tents. Sausalito had initially planned to make it only a nighttime place to sleep.
Mayor Eklund at the beginning of the meeting told those attending that “we need to do some temporary housing, just as Sonoma County has done.” She said she visited the sites there and was smitten by their approach.
Eklund was also critical of Marin County for failing to adopt the temporary housing idea.
“The county does not support the temporary housing concept. That’s very disappointing. We need to get temporary housing to get people out of encampments.”
In the background material provided during the meeting, the City attorney attempted to explain the current state of the law after the Marin v. Boise ruling. Here is that background:
“The United States Court of Appeals for the Ninth Circuit held in Robert Martin et al. v. City of Boise (2019) 920 F.3d 584 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.’
“The Ninth Circuit provided the following caveat in footnote 8 of Martin:
‘Our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the “universal and unavoidable consequences of being human” in the way the ordinance prescribes.”’
“In other words, Martin generally prohibits imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals, but allows cities to impose reasonable regulations on those acts. This includes prohibiting camping when individuals have access to adequate temporary shelter, or adopting geographically limited restrictions justified by public health or safety concerns. The proposed Ordinance meets that balance by adopting reasonable time and place restrictions on camping activities that do not broadly “punish a person for lacking the means to…’sleep in a private space.’”