June 7, 2023

Sent via email to:

Council President Tyler Maxwell

District4@fresno.gov
Vice President Annalisa Perea
District1@fresno.gov
Councilmember Mike Karbassi
District2@fresno.gov
Councilmember Miguel Arias
District3@fresno.gov
Councilmember Luis Chavez
District5@fresno.gov
Councilmember Garry Bredefeld
District6@fresno.gov
Councilmember Nelson Esparza
District7@fresno.gov

RE: Proposed Bill B-16

Item 1.-U, Consent Calendar, June 8, 2023 City Council Meeting

Dear Fresno City Council:

We write to express our serious concerns regarding Bill B-16 (the Ordinance), which is
listed as Item 1.-U on the Consent Calendar of the Council’s June 8, 2023 meeting. The
Ordinance, which would add Articles 21 and 22 to Chapter 10 of the Fresno Municipal Code,
adds an extensive array of new restrictions on the existence of unhoused persons, in addition to
those that already exist under Article 17 of Chapter 10 of the Code. It would further criminalize
homelessness, in violation of numerous provisions of the U.S. and California Constitutions, and
would do nothing to alleviate the conditions that have resulted in far too many residents of
Fresno being forced to live without permanent shelter.

I. BACKGROUND

Fresno has an increasingly severe housing crisis and a long history of mistreating its
unhoused community. 1 Growing economic inequality and lack of affordable housing make

1
Dani Anguiano, Homelessness in California: Fresno, The Guardian (April 17, 2022),
https://www.theguardian.com/us-news/2022/apr/17/homelessness-california-
fresno#:~:text=Fresno%2C%20the%20state's%20fifth%2Dlargest,acknowledge%20is%20likely%20an%
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June 7, 2023
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finding safe, secure shelter unattainable for many Fresno residents. Despite desperate need,
Fresno has not provided sufficient affordable housing options, permanent supportive housing,
space in transitional facilities, or temporary beds in shelters. The Fresno City Council has instead
set its sights on criminalizing visible homelessness and punishing unsheltered individuals who
have no other option but to find refuge and store their belongings on public property. Similar
ordinances passed in Los Angeles and Sacramento have had no clear impact on the housing or
homelessness crises. 2 Fresno’s proposed ordinances would be similarly futile and disruptive to
the unhoused community.

Article 21 of the proposed Ordinance creates an entirely new method for the
criminalization of homelessness by penalizing the status of merely existing in a variety of public
spaces regardless of the unavailability of alternative shelter, in violation of Martin v. City of
Boise, 920 F.3d 584 (9th Cir. 2019) and numerous protections afforded by the U.S. and
California Constitutions. Sections 10-2101(a) and (b) prohibit “obstructing” a “public right-of-
way” in numerous locations. Sections 10-2101(c) and (d) permit the City, by subsequent decree
and the posting of signage, to designate a virtually unlimited array of additional spaces in which
existence is prohibited. Any person refuses a “request” for compliance with any of these
restrictions can be charged with a misdemeanor. §§ 10-2101(f).

Article 22 makes it nearly impossible for a person to reside in any public area.
Specifically, section 10-2203(a) would make it unlawful to leave unattended any personal
property anywhere, and section 10-2203(b) would make it unlawful to even possess, in any
public space, personal property greater than what can fit in a backpack. These provisions alone
criminalize one’s existence, since it is impossible to meet the daily necessities of living without
access to items beyond the permitted quantities.

While the Ordinance purports to balance the needs of residents to “access clean and
sanitary public areas” with the needs of “individuals, who have no other alternatives for the
storage of personal property,” no such balance is achieved. This Ordinance serves only to push
unhoused individuals farther from the city center, where there is less access to service providers
and safe shelter options. 3 Increased sweeps and restrictions also increase death and overdose
rates. 4 While unhoused individuals also undeniably wish to access clean and sanitary public

20undercount. See also Order Granting Plaintiffs’ Motion for a Preliminary Injunction, Martinez v. City
of Fresno, No. 1:22-cv-00307-DAB-SAB (E.D. Cal. May 24, 2022), ECF No. 25 at 16-21.
2
Editorial: Is L.A.’s anti-camping law getting homeless people of sidewalks and into housing? Let’s find
out, Los Angeles Times (February 23, 2023), https://www.latimes.com/opinion/story/2023-02-23/los-
angeles-anti-camping-law-homeless-people-sidewalks.
3
Preliminary analysis shows that a significant percentage of the city is potentially subject to the
restrictions contained in the Ordinance.
https://ucdavishub.maps.arcgis.com/apps/mapviewer/index.html?webmap=8a86b31c1d024c9fbd9279871
782e82d.
4
Study Shows Involuntary Displacement of People Experiencing Homelessness May Cause Significant
Spikes in Mortality, Overdoses, and Hospitalizations, National Health Care for the Homeless Council
(NHCHC) (April 10, 2023), https://nhchc.org/media/press-releases/study-shows-involuntary-
displacement-of-people-experiencing-homelessness-may-cause-significant-spikes-in-mortality-overdoses-
and-hospitalizations/.
Fresno City Council
June 7, 2023
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areas, banning them from areas close to schools, daycare centers, libraries and parks only
furthers the stigmatization of unhoused people as unsanitary and dangerous, while making the
conditions of their lives less secure and subject to greater threat of crime. It is evident from the
Ordinance’s stated goals that Fresno prioritizes hiding and penalizing homelessness over
working to secure a solution for unhoused individuals in crisis.

II. POTENTIAL LEGAL CLAIMS

There are numerous reasons why the Ordinance is unlawful, and why a legal attack on it
would be successful.

A. Eighth Amendment Claim under Punishment Clause

In Martin, the Ninth Circuit ruled that the Eighth Amendment’s ban on “cruel and
unusual punishment” prohibits the imposition of criminal penalties for sitting, sleeping, and lying
outside on public property for individuals who could not otherwise obtain shelter. The court held
that “as long as there is no option of sleeping indoors, the government cannot criminalize
indigent, homeless people for sleeping outdoors, on public property, on the false premise they
had a choice in the matter.” Id. at 594; see also, Johnson v. City of Grants Pass, 50 F.4th 787
(9th Cir. 2022); Jones v. City of Los Angeles, 444 F.3d 1118, 1136 (9th Cir. 2007) (vacated based
on settlement). The fact that a violation of the Ordinance can result in immediate misdemeanor
or infraction penalties without reference to the availability of shelter options leaves no doubt that
the Ordinance is subject to facial attack under Martin.

B. Eighth Amendment Claim under Fines Clause

Targeting and driving out a minority group is the kind of abuse the Eighth Amendment
Fines Clause was intended to protect against. As the Supreme Court has recognized, excessive
fines have often been used to punish status or a disfavored group. They were used to
“harass…political foes, and indefinitely detain those unable to pay” in seventeenth-century
England, and after the Civil War to “subjugate newly freed slaves and maintain the prewar racial
hierarchy” through the Black Codes’ “broad proscriptions on ‘vagrancy’ and other dubious
offenses.” Timbs, 139 S.Ct. at 688–689. But “[t]his right to be free from excessive governmental
fines is not a relic relegated to the period of parchments and parliaments.” Pimentel v. City of Los
Angeles, 974 F.3d 917, 925 (9th Cir. 2020). Instead, “it remains a crucial bulwark against
government abuse.” Id. Here, any fine would be grossly disproportionate to the seriousness of
the “offense” of simply existing in a variety of public spaces with personal property. United
States v. Bajakajian, 524 U.S. 321, 336 (1998).

C. 14th Amendment “State Created Danger” Claim

Under the Fourteenth Amendment, the state deprives a person of a substantive due
process right if it “affirmatively place[s] the plaintiffs in a position of danger.” Wood v.
Ostrander, 875 F.2d 578, 589 (9th Cir. 1989). The state may be constitutionally required to
protect a plaintiff that it “affirmatively places … in danger by acting with ‘deliberate
indifference’ to a ‘known or obvious danger.’” Patel v. Kent Sch. Dist., 648 F.3d 965, 971-72
Fresno City Council
June 7, 2023
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(9th Cir, 2011) (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). Here, the Ordinances
amount to a substantial ban on unhoused people simply existing on public property with personal
belongings required to meet the daily necessities of life. The Ordinance would push unhoused
people to the outskirts of the city, where resource access is limited and the threat of crime is
greater. Potential plaintiffs would have no difficulty alleging the immediacy and severity of the
potential harm to them, namely the loss of their possessions, access to resource providers, and
safe shelter options.

D. 14th Amendment Equal Protection Claim

In Cleburne v. Cleburne Living Center, 473 U.S. 432 (1975), the Supreme Court
invalidated a zoning ordinance that required a special use permit for the location of a group home
for persons with intellectual disabilities, holding that even if the such persons did not constitute a
“suspect class,” the government’s action was invalid because it was based on “antipathy or
prejudice” and therefore did not meet the relaxed standard of being “rationally related to a
legitimate governmental purpose.” Id. at 446. The language of the Ordinance and Fresno’s
history demonstrate that the Ordinance is based on animus toward unhoused people, and
therefore denies unhoused people equal protection under the law.

E. Fourth Amendment Claim for Unreasonable Seizure

Various provisions of § 10-2203 would permit the City, without notice, to summarily seize and
impound, and potentially destroy, the personal property of unhoused persons. The Fourth
Amendment protects individuals from unreasonable government seizures of their property, even
when that property is stored in public areas Garcia v. City of Los Angeles, 11 F.4th 1113, 1118
(9th Cir. 2021). And because unhoused people’s possessions are “property” within the meaning
of the Fourteenth Amendment, the City must comport with the requirements of the Fourteenth
Amendment's due process clause if it wishes to take and destroy them. Lavan v. City of Los
Angeles, 693 F.3d 1022, 1032 (9th Cir. 2012). This includes individualized notice. Id. the City
can compel daytime storage without reasonable notice, even in cases where a taking is only
temporary. Lavan, 693 F.3d at 1027 (a “seizure” occurs when there is some meaningful
interference with an individual's possessory interests in that property”); Grimm v. City of
Portland, 971 F.3d 1060, 1064 (9th Cir. 2020) (rejecting the argument that “providing pre-
[deprivation] notice solely through a published law is constitutionally permissible”).

F. Void for Vagueness

To satisfy due process, “a penal statute [must] define the criminal offense [1] with
sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in
a manner that does not encourage arbitrary and discriminatory enforcement. See Kolender v.
Lawson, 461 U.S. 352, 357 (1983). The void-for-vagueness doctrine embraces these
requirements.” Skilling v. United States, 561 U.S. 358, 402-03 (2010).

In Desertrain v. City of Los Angeles, 754 F.3d 1147 (9th Cir. 2014), the Ninth Circuit
invalidated for vagueness a municipal ordinance that stated that “[n]o person shall use a vehicle
parked or standing upon any City street, or upon any parking lot owned [or under control of] the
Fresno City Council
June 7, 2023
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City of Los Angeles … as living quarters either overnight, day-by-day, or otherwise.” The court
held that the ordinance “offers no guidance as to what conduct it prohibits, inducing …
speculation and uncertainty.” Id. at 1155. Plaintiffs could not tell what acts might constitute
“using a vehicle as living quarters” and were left with no means of complying other than
“discarding all of their possessions or their vehicles, or leaving Los Angeles entirely.” Id. at
1156. Moreover, the ordinance’s vagueness invited arbitrary or discriminatory enforcement,
enabling police officers to target only unhoused people.

The Ordinance is invalid for precisely the reasons the Ninth Circuit cited in Desertrain.
For instance, Section 10-2101(a)(2) makes unclear whether simply sitting, lying, sleeping, or
storing personal property within 10 feet of any driveway constitutes obstruction of the public
right-of-way, or if some greater impediment to the right-of-way is required to trigger
enforcement. The same vague language is present in Section 10-2101(a)(3)-(4). The term
“obstruct” is undefined throughout this entire portion of the Ordinance and fails to offer
sufficient guidance as to what behavior is prohibited. Enforcement of these vague provisions
invites arbitrary and discriminatory behavior.

G. 14th Amendment “Right to Free Movement” Claim

The ordinance violates unhoused people’s fundamental right of free movement because it
seeks to banish existing residents, deter potential new residents, and restrict the freedom of
movement of persons within the City. The “freedom to travel throughout the United States has
long been recognized as a basic right under the constitution.” United States v. Guest, 383 U.S.
745, 758 (1966). “In all the states, from the beginning down to the adoption of the Articles of
Confederation, the citizens thereof possessed the fundamental right, inherent in citizens of all
free governments, [to] peacefully to dwell within the limits of their respective states, to move at
will from place to place therein, and to have free ingress thereto and egress therefrom, with a
consequent authority in the states to forbid and punish violations of this fundamental right.”
United States v. Wheeler, 254 U.S. 281, 293 (1920).

The right to free movement includes intrastate travel and prohibits restrictions on
movement that target transient or impoverished populations. See Papachristou, 405 U.S. at 156
(invalidating for vagueness under the Due Process Clause of the Fourteenth Amendment a local
anti-vagrancy statute that criminalized “wandering or strolling around from place to place
without any lawful purpose or object ….”); Nunez by Nunez v. City of San Diego, 114 F.3d 935
(9th Cir. 1997) (striking down nighttime curfew on minors because it interfered with the
“fundamental right of free movement”); King v. New Rochelle Mun. Housing Auth., 442 F.2d
646, 648 (2d Cir. 1971).

H. State Claim under the California Constitution, Art. I, §§ 7(a) and 24

The California Constitution explicitly protects the right to intrastate and inter-municipal
travel. See Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 1101 (1995); In re White, 97 Cal.App.3d
141, 149 (1979). This right was recently reaffirmed by the First District Court of Appeal: “The
right to intrastate travel is based on its necessity for daily life.” People v. Padilla-Martel, 78 Cal.
App. 5th 139, 155 (2022).
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I. Claims under the Americans with Disabilities Act and Analogous State Laws

Title II of the Americans with Disabilities Act prohibits public entities from
discriminating against people with disabilities and demands that they not be “excluded from
participation in or be denied the benefits of the services, programs, or activities” of public
entities. 42 U.S.C. § 12132. For over two decades, the Ninth Circuit has held that Title II’s
prohibition against discrimination “brings within its scope ‘anything a public entity does.’” Lee
v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) (emphasis added) (quoting Yeskey v.
Pa. Dep't of Corrs., 118 F.3d 168, 171 & n. 5 (3d Cir.1997), aff'd 524 U.S. 206 (1998)). A public
entity’s duty not to discriminate includes a duty to make “reasonable modifications in policies,
practices, or procedures” when “necessary to avoid discrimination on the basis of disability,
unless the public entity can demonstrate that the modifications would fundamentally alter 5 the
nature of the service, program, or activity” in question. 28 C.F.R. § 35.130(b)(7)(i). “Even
facially neutral government actions that apply equally to disabled and nondisabled persons may
violate Title II if the public entity has failed to make reasonable accommodations to avoid
unduly burdening disabled persons.” Cohen v. Culver City, 754 F.3d 690, 700 (9th Cir. 2014).

The Ninth Circuit has expressly found that Title II of the ADA applies to a public entity’s
enforcement activities—holding, for example, that the law can require reasonable modification
of a facially-neutral administrative regulation whose “enforcement burdens” people with
disabilities “in a manner different and greater than it burdens others,” and that “municipal code
enforcement can constitute a benefit of the services, programs, or activities of a public entity
under Title II.” McGary v. City of Portland, 386 F.3d 1259, 1269 (9th Cir. 2004).

People with a variety of disabilities have a disability-related need to sit, lie, or sleep in
proximity to various locations throughout the City, such as near public amenities and places of
recreation, doctors’ offices, stores, and other sources of support. People with a variety of
disabilities may also be physically unable to relocate to different locations across the city to
adhere to the Ordinance or carry their belongings on their person at all times. By broadly
banning unhoused people’s ability to exist across a wide swath of locations with their personal
belongings, the City imposes undue burden on people with disability-related needs, and
effectively excludes them from an array of City services, programs, and activities. See e.g.,
Crowder v. Kitagawa, 81 F.3d 1480, 1482 (9th Cir. 1996) (finding that application of quarantine
requirement to guide dogs “severely restricted” ability of blind plaintiffs to use a variety of state
services, including public streets and transportation systems).

In addition to violating the ADA, the City’s ordinance violates analogous state laws. For
example, the California Disabled Persons Act (“CDPA”) incorporates the ADA and states that “a
violation of the right of an individual under the Americans with Disabilities Act … constitutes a
violation of the CDPA. Cal. Civ. Code § 54.1(d). Thus, by violating the ADA, the City is also
violating the CDPA. Similarly, Government Code § 11135 prohibits the City from discriminating

5
Whether a necessary modification would fundamentally alter the nature of a service, program, or
activity “is an affirmative defense,” on which public entity defendants bear the burden of proof. Lentini v.
Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 845 (9th Cir. 2004); see also 28 C.F.R. § 35.130(b)(7)(i).
Fresno City Council
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on the basis of disability in connection with any program or activity that receives financial
assistance from the state—as its law enforcement activities undoubtedly do.

III. CONCLUSION

We urge the City Council to protect the rights and dignity of its unhoused population by
rejecting the Ordinance. We would welcome the opportunity to discuss these matters with City
representatives as an alternative to legal action.

Sincerely,

William S. Freeman
Senior Counsel
ACLU Foundation of Northern California