Dick Spotswood: Judge needs to allow San Rafael to make homeless camps safer

The San Rafael City Council and its staff have taken bold and proper steps to deal with out-of-control tent camps occupied by those with untreated mental illness and substance abuse.

Prompted by increased violence and drug use, the city has already cleared tent slums near the Falkirk Cultural Center, at the adjacent Menzies parking lot and partially along Mahon Creek path near Albert Park.

Those actions have been placed on hold.

Don’t blame your elected officials who are striving to clean up the mess. The decision was made by Judge Trina L. Thompson, a federal trial court judge who issued a temporary restraining order prohibiting the city from enforcing its efforts to deal with an out-of-control situation.

Thompson, a past Alameda County Superior Court judge and Alameda County public defender, didn’t overturn the ordinance, but stayed its enforcement until Sept. 6 when she’ll conduct a full hearing.

Objections to the law were raised by progressive activists who essentially believe that those with untreated mental illness shouldn’t be forced to make living decisions against their will, no matter who else is impacted.

The opposing view is that this supposedly civil libertarian ideology has resulted in a “cruel and unusual situation” where sick people are allowed to die and suffer on our streets, in public parks, open spaces and even adjacent to children’s playgrounds. The later reality was specifically addressed in San Rafael’s ordinance.

Judge Thompson’s holding was pursuant to Martin v. Boise, a Ninth Circuit Court of Appeals decision. It holds that municipalities may restrict camping in public spaces only if they provide appropriate shelter for those to be dislodged. She suggested San Rafael failed to do so.

A parallel case will be heard this week by the Ninth Circuit appealing an injunction issued by the U.S. Magistrate preventing the city and county of San Francisco from enforcing clearance of homeless encampments.

If the Ninth Circuit upholds that injunction, it’s time that Martin v. Bosie be appealed to the full U.S. Supreme Court.

Current judicial rulings are ambiguous as to what type of replacement “shelter” courts will permit to enable removal of camps for the untreated mentally ill. Must it be supportive housing costing close to $1 million per unit? Is a paved space for tent encampments complete with water, sewage and trash removal acceptable? What actions may governments take regarding the “service resistant” chronically homeless who prefer to live in someone’s doorway?

The price of courts failing to definitively answer these questions is the American public’s increased disillusionment that government at any branch works.

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Recently, I called for transparency surrounding the investigation into an altercation and arrest incurred by a man openly drinking beer in San Rafael’s predominantly lower-income Latino Canal neighborhood. Readers expressed surprise when I pointed out that it’s unlawful to drink wine or beer at public parks while sitting on the grass, a bench or a picnic table.

California Business and Professions Code section 25620 reads, “Any person possessing any can, bottle, or other receptacle containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed, in any city, county, or city and county owned park or other city, county, or city and county owned public place … shall be guilty of an infraction.”
Few readers know of their acquaintances being cited for breaking this rule after attending events at parks where wine or beer was consumed at a family or church picnic. It’s a law ripe for selective enforcement based on a person’s appearance, race or class.

The conundrum is that while the law’s purpose is essential, the status quo is an invitation for selective enforcement which is fuel for winning lawsuits.