By Cari Hachmann
U.S. District Court Judge Percy Anderson has denied homeless advocacy lawyers’ motion for a temporary restraining order to close down the six-week-old homeless encampment at 380 Avenida Pico in San Clemente.
The court laid out its reasons for denying the TRO application in a ruling made on July 5.
The city of San Clemente is currently in litigation with three homeless advocacy groups, who on behalf of three homeless people filed a lawsuit in February against San Clemente, the County of Orange and the four South County cities of Dana Point, San Juan Capistrano, Aliso Viejo and Irvine.
On June 30, homeless advocacy lawyers filed a motion for a temporary restraining order requesting that the Pico encampment be shuttered, citing unsanitary conditions and alleged Americans with Disability Act violations.
The request alleged that the site, located on a near half-acre city storage lot, has been deemed unfit for human habitation; is not disability-accessible; has no shade, potable water or electricity; and lacks adequate sanitation and servicing of its portable toilets, among other complaints.
A day later, on July 1, the city of San Clemente’s lawyers responded in opposition, calling the groups’ request “substantively groundless” and “borders on frivolous.”
City attorneys declared that the city provides 24/7 security, ADA-compliant restrooms and outreach services at the site. In addition, they said homeless campers are free to seek shade elsewhere during the day, and that the city has no duty to provide campers with drinking water or electricity.
The city of San Clemente asked the federal court to not only deny the Plaintiff’s request for a temporary restraining order, but further, the city filed a motion to dismiss the entire case outright for the cities of San Clemente, Aliso Viejo and San Juan Capistrano.
“In my mind, there’s no basis for this lawsuit,” said Dan Bane, San Clemente’s Mayor Pro Tem.
Judge Anderson is now overseeing the case after U.S. District Judge David O. Carter was recused from it in mid-June amidst multiple cities’ complaints that Carter was biased due to his previous involvement in 2018 homeless-related settlements in north and central Orange County.
The lawsuit argues that the city’s anti-camping ordinances and other laws violate homeless civil rights.
The three cities intend to dismiss the case in part under federal rule of civil procedure due to lack of standing and in part due to failure to state a claim.
“Plaintiffs’ claims for injunctive relief against the City must be dismissed for a simple reason: Since March 19, 2019, the City’s official ordinances have made clear that homeless individuals are not forbidden to sleep anywhere in public. Those ordinances fully comply with the Constitution and the Ninth Circuit’s decision in Martin. There is therefore neither a need nor a basis to enjoin the City,” the court document states.
Bane said the city is working toward a regional solution as fast as they can.
“We think the burden should be on the county to take a lead,” he said. “No litigation can force any city or county to build a shelter, because neither state nor federal law requires the city or county to affirmatively build a shelter,” Bane said.
The lawsuit, initially filed in February, wasn’t served on San Clemente until May 24.
Prior to the city being served, Bane said San Clemente adopted its own ordinance in March, saying the city would not enforce its anti-camping ordinance unless and until it complies with the law, as cited in the Martin v. Boise case.
The law states that cities and counties cannot enforce anti-camping ordinances if there is no place designated for the homeless to sleep.
As the situation worsened in North Beach, on May 21, the city took action due to health, safety and welfare concerns and passed an urgency ordinance to designate the only place where camping would be allowed.
Bane said he thinks the homeless advocacy groups are trying to leverage the city to force it into building and operating a shelter, despite the city trying to work toward a regional shelter solution with neighboring cities and the county.
“No individual city of San Clemente’s size and limited resources can afford a $2.2 million-per-year shelter on a long-term basis,” said Bane. “There is an area of San Clemente already zoned for emergency shelters if any private entity wishes to operate an emergency shelter.”
Court documents state that San Clemente has expressed willingness to work with the homeless advocates on at least some of the concerns raised in the TRO application regarding conditions at the temporary campground. A hearing will take place on August 5 regarding the case dismissal.
Bane’s comments reflect the position Hamm, Ward, and Schwarz supported all along– San Clemente, indeed any city, can afford to shelter, triage, and provide long term care for today’s “homeless” population. Because homelessness is not the problem, it’s a symptom of long term mental illness stemming from addiction, PTSD, bipolar disorder, and a number of other social and mental issues. It is the State of California which shut down its state hospitals. It is the State of California that has the money– our money!– that should have been treating this growing problem for decades, but hasn’t been. Why aren’t the OC Supervisors, our Congressmembers, and God help us even John and Ken railing against Sacramento? How long are we going to pretend that cities and counties can afford to fix this 50 year old travesty?
Correction: San Clemente CANNOT afford to shelter, triage…. etc. My apologies for my lack of proofreading before submitting in haste.