TOBE v. CITY OF SANTA ANA

The United States Supreme Court has repeatedly rejected statutes designed to exclude the indigent. Thus in Edwards v. California (1941) 314 U.S. 160, 174, 62 S.Ct. 164, 167, 86 L.Ed. 119, the court struck down a California statute that prohibited the transportation of indigent nonresidents into California. The court explained that a community may not "gain a momentary respite from the pressure of events by the simple expedient of shutting its gates to the outside world." (Id. at p. 173, 62 S.Ct. at p. 167.) Similarly, in Shapiro v. Thompson, supra, 394 U.S. at p. 629, 89 S.Ct. at p. 1328-1329, the court held that the right to travel was triggered by any attempt to "fence out" indigents. (See also Memorial Hospital v. Maricopa County, supra, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 [indigents' right to travel and settle in Arizona was impermissibly penalized by durational residency requirements for nonemergency medical care for indigents at county expense].)

The right to travel includes the right to stay as well as the right to go. (See, e.g., Kent v. Dulles (1958) 357 U.S. 116, 126, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 ["Freedom of movement is basic in our scheme of values."]; Dunn v. Blumstein (1972) 405 U.S. 330, 338, 92 S.Ct. 995, 1001, 31 L.Ed.2d 274 [right to travel ensures "freedom to enter and abide " (italics added) ]; Attorney General of N.Y. v. Soto-Lopez, supra, 476 U.S. at p. 903, 106 S.Ct. at p. 2321 [right encompasses burdens on freedom to enter and abide in states]; Papachristou v. City of Jacksonville

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(1972) 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 [vagrancy ordinance offends freedom of movement].) Our courts, too, have recognized that the right to travel includes the "concomitant right not to travel." (In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 480, 9 Cal.Rptr.2d 182 [italics added], see also In re White, supra, 97 Cal.App.3d at pp. 148-149, 158 Cal.Rptr. 562 [banishment violates constitutional right to freedom of travel]; In re Babak S. (1993) 18 Cal.App.4th 1077, 1084-1086, 22 Cal.Rptr.2d 893 [same]; People v. Bauer (1989) 211 Cal.App.3d 937, 944, 260 Cal.Rptr. 62 [same].)

b. Intrastate Travel

This case involves intra state travel. In California we have expressly recognized that the constitutional right to freedom of movement necessarily embraces intrastate travel. "[T]he right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions." (In re White, supra, 97 Cal.App.3d at p. 148, 158 Cal.Rptr. 562; see also In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1581, 271 Cal.Rptr. 389 [court order requiring parent to relocate or lose custody violates right to intrastate travel]; People v. Bauer, supra, 211 Cal.App.3d at p. 944, 260 Cal.Rptr. 62 [requiring defendant to obtain official approval of choice of residence as a condition of probation impinges on right to intrastate travel].)

The right to intrastate travel in this state is protected without regard to federal decisions on the issue, because the rights guaranteed by the California Constitution " 'are not dependent upon those guaranteed by the United States Constitution.' " (In re White, supra, 97 Cal.App.3d at p. 148, 158 Cal.Rptr. 562.) Nonetheless, I would approve the holding in White, concluding that the United States Constitution ensures the right to intrastate, as well as interstate, travel.

Although the United States Supreme Court has not expressly addressed the right to intrastate travel, it has strongly suggested that such a broad reading of the right to travel is appropriate. Thus in Kolender v. Lawson (1983) 461 U.S. 352, 358, 103 S.Ct. 1855, 1859, 75 L.Ed.2d 903, the court emphasized that a law prohibiting wandering the streets at night without identification implicated "consideration of the constitutional right to freedom of movement." (See also Papachristou v. City of Jacksonville, supra, 405 U.S. at p. 164, 92 S.Ct. at p. 844 [" 'wandering or strolling' " are "historically part of the amenities of life as we have known them"].)

The Circuit Courts of Appeal have repeatedly concluded that the right encompasses intrastate travel. (See, e.g., Spencer v. Casavilla (2d Cir.1990) 903 F.2d 171, 174; Lutz v. City of York, PA. (3d Cir.1990) 899 F.2d 255, 268 ["the right to move freely about one's neighborhood or town ... is indeed 'implicit in the concept of ordered liberty' and 'deeply rooted in the Nation's history' "]; King v. New Rochelle Municipal Housing Authority (2d Cir.1971) 442 F.2d 646, 648-649 [right to travel includes intrastate travel].) As the Second Circuit recognized in King, "It would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not acknowledge a correlative constitutional right to travel within a state." (442 F.2d at p. 648, fn. omitted, italics added.)

c. Impact of the Ordinance

The majority conclude that the ordinance does not inevitably conflict with the right to travel because it "has no impact, incidental or otherwise, on the right to travel except insofar as a person, homeless or not, might be discouraged from traveling to Santa Ana because camping on public property is banned." (Maj. opn., ante, pp. 421-422 of 40 Cal.Rptr.2d, pp. 1164-1165 of 892 P.2d.) But homeless persons are not simply "discouraged" from traveling to Santa Ana. They are effectively prevented from doing so, because the ordinance forbids them to sleep or store their personal belongings in any public area in the City. By criminalizing their unavoidable but innocuous conduct of sleeping and storing their personal effects, the ordinance has an immediate impact on the right

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of the homeless to enter or remain in Santa Ana. [19]

I therefore disagree with the majority's assertion that the effect of the ordinance on the homeless is merely "incidental." Criminalizing the harmless act of sleeping in a public place--when the vast majority of homeless persons in Santa Ana have no legal alternative other than to "get out of town by sundown"--forbids a "necessity of life" and thereby effectively penalizes migration. (See Memorial Hospital v. Maricopa County, supra, 415 U.S. at pp. 258-259, 94 S.Ct. at pp. 1082-1083 [laws penalize travel when they deny a person a "necessity of life" such as nonemergency medical care for indigents at the county's expense].) Arresting or citing the homeless for sleeping in public also burdens their freedom of movement, because they must either forgo sleep or leave the City altogether to avoid criminal penalty. Moreover, as discussed above, the primary purpose for enforcing the ordinance against the homeless was to drive them out of public areas. [20]

The indirect effects of the ordinance may prove even more invidious. As one amicus curiae, a former mayor, points out, ordinances like Santa Ana's encourage an unhealthy and ultimately futile competition among cities to impose comparable restrictions in order to avoid becoming a refuge for homeless persons driven out by other cities. The case at bar provides a striking example of this domino effect: in response to the Santa Ana ordinance, surrounding communities quickly enacted similar measures to protect themselves from an influx of Santa Ana's homeless. [21] To carry this effect to its logical conclusion, if all communities followed suit the homeless could effectively be excluded from the entire State of California.

In striking down a California law that aimed to exclude the indigent of an earlier era, the Supreme Court observed: "in the words of Mr. Justice Cardozo: 'The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.' [Citation.] [P] ... [P] ... [I]n not inconsiderable measure the relief of the needy has become the common responsibility and concern of the whole nation." (Edwards v. State of California, supra, 314 U.S. at pp. 173-174, 62 S.Ct. at p. 167.) The same principle requires us to invalidate the Santa Ana ordinance.

d. Strict Scrutiny

Because the ordinance impairs the right to travel of plaintiffs and other homeless persons, it is subject to strict scrutiny. (See Dunn v. Blumstein, supra, 405 U.S. at pp.

[19 Even a provision that penalized travel "indirectly" would not be immune from strict constitutional scrutiny. As the Supreme Court stressed in Dunn v. Blumstein, supra, 405 U.S. at p. 341, 92 S.Ct. at p. 1002: " ' "Constitutional rights would be of little value if they could be ... indirectly denied." ' " In Dunn, the court invalidated a one-year residential requirement for voting in Tennessee, although there was no evidence that it in fact deterred--or was intended to deter--travel.]

[20 The majority's reliance on cases involving only incidental and nondiscriminatory zoning and taxing provisions is therefore misplaced. (See maj. opn., ante, p. 407 of 40 Cal.Rptr.2d, p. 1150 of 892 P.2d; R.H. Macy & Co. v. Contra Costa County (1990) 226 Cal.App.3d 352, 367-369, 276 Cal.Rptr. 530 [unequal taxation under Proposition 13 had an "inconsequential" effect on interstate mobility and did not result in invidious discrimination, either directly or indirectly]; Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 602- 603, 135 Cal.Rptr. 41, 557 P.2d 473 [zoning ordinance barring residential construction only incidentally burdened right to travel]; but see id. at p. 623, 135 Cal.Rptr. 41, 557 P.2d 473 (dis. opn. of Mosk, J.) ["total exclusion of people from a community is both immoral and illegal"].)]

[21 Fullerton, Long Beach, and Orange, for example, have passed anti- camping ordinances. The City Attorney of Fullerton explained: "We're trying to protect ourselves so that when Santa Ana throws out their 1,300, they don't all come over here." (Schaffer, Tent Cities: Laws Aim to Break Camp, Orange County Register (June 7, 1992) pp. 1, 8.) Another amicus curiae, a former mayor of Laguna Beach, similarly observed in a letter to this court: "To the extent that Santa Ana officials 'succeed' [in excluding the homeless], the homeless poor migrate to other nearby cities in search of streets and other public places where they can sleep. Laguna Beach, already 'home' to many poor and homeless individuals, may have to take on yet more of a social support burden."]

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339-342, 92 S.Ct. at pp. 1001-1003; Shapiro v. Thompson, supra, 394 U.S. at p. 634, 89 S.Ct. at p. 1331; Serrano v. Priest, supra, 18 Cal.3d at p. 761, 135 Cal.Rptr. 345, 557 P.2d 929; Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 276, fn. 22, 172 Cal.Rptr. 866, 625 P.2d 779.) The applicable test, therefore, is whether the ordinance is narrowly tailored to meet a compelling governmental interest. (See Plyler v. Doe (1982) 457 U.S. 202, 216-217, 102 S.Ct. 2382, 2394-2395, 72 L.Ed.2d 786.)

The ordinance does not survive under that standard. As stated above, its true underlying purpose--to drive the homeless out of Santa Ana--is not a legitimate governmental interest. But even the more benign, if euphemistic, purpose expressed on the face of the ordinance fails under strict scrutiny.

The ordinance provides: "The public streets and areas within the City [of Santa Ana] should be readily accessible and available to residents and the public at large. The use of these areas for camping purposes or storage of personal property interferes with the rights of others to use the areas for which they were intended [sic ]. The purpose of this Article is to maintain public streets and areas within the City [of Santa Ana] in a clean and accessible condition." (Ord., § 10-400.)

The interests advanced by the City are, in essence, improving the aesthetic appearance of its public areas and maintaining facilities for general public use. These concerns are legitimate and, indeed, "substantial." (See Clark v. Community for Creative Non-Violence (1984) 468 U.S. 288, 296, 104 S.Ct. 3065, 3070, 82 L.Ed.2d 221 [governmental interest in maintaining park was "substantial"].) But they are certainly not compelling.

Even if the City's asserted purposes were deemed compelling, moreover, the ordinance would nonetheless fail because it is not narrowly tailored to accomplish its objectives. Santa Ana could certainly maintain public areas in "a clean and accessible condition" through less restrictive means than citing and arresting homeless persons--under a provision that includes a penalty of six months in jail--for sleeping or storing their personal belongings in public.

As a federal court explained in holding a similar ordinance unconstitutional: "Provision of alternative shelter and services would be the ideal means of accomplishing the same goals. However, in the absence of available shelter space or funds for services, the parks and streets could be cleaned and maintained without arresting the homeless. For example, the City could ask homeless individuals to relocate temporarily to another public area while maintenance crews work on a particular site. It could also establish regular times for each park to be cleaned so that homeless individuals would know not to be in a certain park on a particular day. Instead of arresting homeless individuals for being in the park after hours, the City could allow them to stay in a designated area in exchange for maintaining that area.

Similarly, promotion of tourism and business and the development of the downtown area could be accomplished without arresting the homeless for inoffensive conduct." (Pottinger v. City of Miami, supra, 810 F.Supp. at p. 1582; see also Clark v. Community for Creative Non-Violence, supra, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 [ban on sleeping in Lafayette Park, across the street from the White House, was a reasonable time, place, and manner restriction on expression]; Joyce v. City & County of San Francisco, supra, 846 F.Supp. 843 [prohibition against sleeping in certain public places at certain times].)

The majority urge that the City has no affirmative constitutional obligation to provide accommodations for the "transient homeless" on or in public property. [22] That does not mean, however, that if the City declines to provide shelters for the homeless it may effectively banish them from all public areas. As long as the homeless have no other place where they may legally sleep and store their personal property in Santa Ana,

[22 In referring generically to the "transient homeless," the majority overlook the fact that plaintiffs include long-term residents of Santa Ana who have lost their residences and jobs. In any event, as discussed above, the right to travel applies both to homeless residents of the City who wish to remain and to "transient" homeless persons who wish to enter and abide in the City.]

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the City cannot constitutionally prevent them from doing so in public places.

The majority cite with approval a recent district court decision denying preliminary injunctive relief against implementation of the Matrix Program, a San Francisco ordinance addressing the "homeless problem." (Joyce v. City & County of San Francisco, supra, 846 F.Supp. 843.) Their reliance on Joyce is misplaced because the ordinances are crucially dissimilar.

Unlike Santa Ana's ordinance, the Matrix Program did not involve a total ban on sleeping or storing property in public areas. Indeed, San Francisco police officers were instructed that " '[t]he mere lying or sleeping on or in a bedroll in and of itself does not constitute a violation'...." (Joyce v. City & County of San Francisco, supra, 846 F.Supp. at p. 861.) Nor did San Francisco attempt to drive the homeless from the city; instead, it provided counseling and referral to local social service programs and attempted to provide temporary housing for the homeless. (Id. at pp. 847-848.) [23] The history of Santa Ana's efforts in dealing with the homeless, in sharp contrast, included an official policy of actively discouraging existing charitable services for the homeless, including the Salvation Army food program, and a task force directed to drive "vagrants" out of town. In enforcing the ordinance, Santa Ana police officers applied an official policy of citing individuals who were sleeping under blankets. [24]

The City is not required, of course, to open all its public spaces at all hours to the homeless or to tolerate dangerous or unhealthful conduct. For example, it may enforce existing ordinances against such "camping" behavior as the erection of semi-permanent structures, outdoor cooking, and public defecation and urination. It may also enforce existing laws against public drunkenness, drug use, vandalism, assault, theft, and similar misconduct. It may not, however, penalize individuals who have committed only the offense of being without shelter. Sleeping outdoors under a blanket is neither dangerous nor unhealthful to anyone other than the homeless persons who do so as a matter of necessity. Similarly, if the City does not choose to provide storage places for the personal property of the homeless, it may not criminalize their discreet "storage" of personal belongings in public areas.

As the Court of Appeal aptly concluded, "The camping ordinance is a butcher knife where a scalpel is required.... The city may preclude the erection of structures in public places and it might ban 'camping' in select locations with a properly drafted ordinance, but it may not preclude people who have no place to go from simply living in Santa Ana. And that is what this ordinance is all about."

For all these reasons I would affirm the judgment of the Court of Appeal.

[23 Thus under the Matrix Program social workers were dispersed throughout the city in order to contact homeless persons and a "Night Shelter Referral Program ... [was] designed to offer the option of shelter accommodations to those homeless individuals in violation of code sections pertaining to lodging, camping in public parks and sleeping in public parks during prohibited hours." (Joyce v. City & County of San Francisco, supra, 846 F.Supp. at p. 848.) San Francisco also estimated that in 1993- 1994 it would spend $46.4 million for services to the homeless, of which over $8 million was specifically earmarked to provide housing. (Ibid.)]

[24 The majority also approve People v. Scott (1993) 20 Cal.App.4th Supp. 5, 13, 26 Cal.Rptr.2d 179, in which the Appellate Department of the Los Angeles Superior Court upheld a West Hollywood anti-camping ordinance against a claim that it violated the right to travel of homeless residents. Scott offered no case authority to support its conclusory analysis. In any event it is factually distinguishable: there was no claim that the ordinance prohibited sleeping in any public area in West Hollywood and "no evidence [was] presented in this case to support the inference that West Hollywood has used this ordinance to interfere with a person's right to travel or even that it is being enforced in such a way as to drive homeless people out of its community." (Ibid.) Nonetheless, I would disapprove Scott to the extent that it could be construed to suggest that an ordinance like Santa Ana's, which is intended to "drive homeless people out of its community," does not impair the right to travel.]

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