Friday, September 30, 2011

GUEST BLOG: DWIGHT SMITH - Civic Center Camping Ordinance

To: Ms. Lara
Public Law Center
Santa Ana, California

From: Dwight Smith
OC Catholic Worker

Dear Ms. Lara,

The City of Santa Ana has for the last fifteen years knowingly engaged in a deliberate and cancerous falsehood unbecoming any City in this nation. I'm speaking about the our Camping Ordinance and it's non-existent permits.

Copying a U.S. Forest Service law reasonably intended to ration access to our National Parks, our City Council enacted a pair of "camping ordinances" the first of which required a permit to camp on any public land within the City, and a similar law whose scope was limited to the area immediately adjacent to the multi-jurisdictional government plaza known as the Civic Center.

Two years ago, through the offices of Matthew Fletcher of Fletcher, Connor, Blake, I requested such a permit, asking Mr. Fletcher to make sure through his good relationship with our City Attorney that my request was not ignored on First Amendment grounds: "I want a permit to camp about camping, and not about the right to camp. Sort of a camping celebration of camping, only." Mr. Fletcher did as I asked, and Deputy City Attorney Sandoval made it clear to Mr. Fletcher that the City had never intended to issue permits for camping and would not.

In a recent blog post attached below, I outline my religious argument:

I'm currently soliciting counsel to sue the City of Santa Ana on behalf of all the persons arrested under the camping ordinance. I maintain that they have been illegally detained, prosecuted and imprisoned in a process in which both City Attorneys and County Prosecutors made material mis-representations to the Court in that the permits upon which the law depends were in fact, callously and fraudulently withheld from those persons who would gladly have paid for the permit to avoid conviction. The County and City's fraudulent misrepresentation of the availability of permits and their subsequent mis-representation, through illegal prosecution and imprisonment of the homeless, that such permits were, in fact and in law, possible to obtain, was a material fact denied the Defense as a mitigating factor in these persons' innocence.

(As an aside, a permit to camp at Yellowstone throughout the same era would have averaged $7 per night. I just purchased 100 $7 money orders to facilitate the homeless' acquisition of California ID's. We'd have gladly done the same to obtain camping permits for the Civic Center. From the defense perspective, we could argue that permits would have been made available, at least for some of those convicted, had they been made available at a price derived from appropriate campground marketing practices.)

Cities and Counties cannot be allowed to invent lawful and yet impossible ways to control human behavior, and then deny such impossibilities in later prosecutions. This is carnage, not justice.

If the State of California had made it imperative that every patient in an emergency room obtain a patient permit, and then failed to make such permits available, as a way of circumventing federal Hill-Burton ER regulations, we'd never hear the end of it.

Recently, I contacted the County Auditor and filed a fraud charge against Julia Bidwell, who is in charge of counting the Emergency Shelter Bed Inventory in Orange County, attached. She had invited me to the 2020 Planning Committee Meeting which would "develop guidelines" for disclosing to the public the number and kind of Emergency Shelter Beds available in Orange County. I insisted that it was fraudulent for her to assign (one of her) duties as Director of Homelessness to an as yet unformed and unfunded public-private partnership. I insisted that her own employees had already publicly advised first responders and the hospital ER community that there were, in effect, no County emergency shelter beds at all in the OC, and that the "trial census" she had gifted me, showing a total of over 500 such beds being available, was yet another fraud.

A year ago April, I received an open records response from Kelly Lupro showing that no County funds had been allocated for "low-threshold, non sub-population restricted emergency shelter beds like those at the Armory" anywhere in the County. Privately, the Salvation Army provides 56 such beds, my wife and I about twice that many. Since we provide more Emergency Shelter Beds than everyone else in the OC, we are deeply involved in a religious commitment of long duration to confront this duplicity.

Orange County provides not a single Emergency Shelter Bed of the type discussed in Jones v. Los Angeles.

The Director of Homelessness is disseminating xls. spreadsheets and other data that would incline a City PD to believe that such beds do exist.

The City of Santa Ana is arresting people for camping on public property without a permit that is impossible to obtain, based upon the availability of the beds the County pretends to exist.

If we assume, however, that America belongs first to the people, and then to the landlords who stole it from likewise illegitimate predecessors (all they way back to us Franciscans, who like Israelites, got the State from God) it begs the question "Why can't the public repose upon the commons when necessary?" Even the misdirection involved in falsely pretending the City is a campground harkens back to this ancient right. Were the city to declare "No sleeping on public property" every drowsy judge in the Courthouse would rise up with a constitutional challenge, and if the American Campground Association discovered that there are no public restrooms between 8PM and 8AM in our "campground" we'd be closed on order of the Public Health Department as a menace to the health of the public.

(I have long cautioned against obtaining coffee anywhere near the Civic Center. A fair number of the homeless, who are forced to use leaves and bushes, carry fecal contamination bearing the Hepatitis C virus, contaminating the cups, lids and stirrers in every shop in town.)

Were it not for unobtainable permits, the City would have to arrest people for sleeping or loitering, both of which are constitutionally permitted. It seems that, in Santa Ana, complying with the law depends upon the performance of a deliberate impossibility, and as such, makes the enforcement of such a law "unconstitutional as applied." The law has already been deemed facially constitutional.

I am just an orthodox Catholic who knows that many homeless people lie and cheat. What is surprising is how many City Attorneys and County D.A.'s prosecuting "camping" do exactly the same, and by so doing, avoid a similar fate. Is that all justice for the poor means?

Kristen, In Eichorn v. Santa Ana and Tobe v. Santa Ana, the Court decided that the Camping Ordinance was facially constitutional, but might be unconstitutional as applied. Is it possible that the deliberate witholding of permits makes compliance with the law impossible, and therefore unconstitutional? I daresay that permits are the only thing that make the Civic Center a "campground." If they're never issued, by intention, then the intention of the Camping Ordinance is to deny the citizens their constitutional right to sleep upon public land when necessary through the deceit of permits.

Please help us.


Dwight Smith,
OC Catholic Worker