Appellate Court Addresses Evidentiary Issue Impacting Burgeoning Field Of Child Abuse Litigation Against Public Entities

July 2019
Number 32

In D.Z v. Los Angeles Unified School District, the California Court of Appeal clarified that California laws governing the evidence offered at trial require that courts use a two-step inquiry for all such evidence: First, determine the relevance of the evidence, and second, determine whether the court should exercise its discretion to exclude such evidence. In D.Z., such inquiry was not applied by the trial court when it determined to exclude all evidence that did not involve physical touching regarding a high school teacher alleged to have sexually abused the student plaintiff.

Background

Appellant D.Z. filed a lawsuit alleging negligence by Los Angeles Unified School District, her alleged teacher abuser, and other district employees, as well as a claim against the district under the theory of respondeat superior (a doctrine which, generally speaking, permits employer liability for an employee’s negligent actions or omissions that occur within the scope of an employee’s employment). D.Z.’s negligence claims included the allegation that the district failed properly to train and supervise relevant employees related to a claim that one of her school teachers sexually abused her. D.Z. further alleged that the district knew or should have known of the danger posed by the teacher, and the district’s failure to respond appropriately to that knowledge resulted in harm to her.

As trial approached, there were numerous witnesses prepared to testify on behalf of D.Z. regarding past misconduct by the teacher and the district’s knowledge of such conduct. However, prior to trial, the trial court determined, relying on Evidence Code section 352, to exclude all evidence of the teacher’s alleged misconduct, other than evidence relating to touching of students. The trial court’s approach amounted to a bright line exclusion of all evidence of conduct other than physical touching, and excluded evidence that was relevant to appellant’s claim, including prior reports made to the school, statements made by the teacher offering female students a ride home, and other statements regarding the female anatomy made to and in front of other female students by the teacher. Also excluded were details regarding a Suspected Child Abuse Report prepared and investigated in response to the teacher’s comments.

At the close of trial, the jury found in favor of the district. D.Z. appealed.

The Appellate Court’s Decision

The Court of Appeal disagreed with the trial court and concluded that because the trial court drew a bright line in excluding all evidence of the teacher’s conduct other than physical touching, it arbitrarily excluded evidence that was relevant to D.Z.’s claims.

The Court of Appeal found that under Evidence Code section 352, evidence relevant to prove any element of the underlying cause of action could be admissible. The trial court incorrectly concluded that any evidence other than of physical touching was irrelevant. As a result, the trial court never made it to the second step of the analysis to analyze countervailing considerations of undue prejudice, confusion, or undue consumption of time in determining whether to exercise its discretion to exclude evidence.

The Court of Appeal also determined that the erroneous exclusion of relevant evidence prejudiced D.Z. The evidence excluded included a crude comment made by the teacher regarding the size of a student’s breasts, and the teacher’s inappropriate questions to students about their boyfriends and sexual experiences. Such comments were said to have been reported to the district prior to D.Z.’s first report to the school principal regarding the teacher’s conduct, and were seen as crucial to D.Z.’s argument that the district knew or should have known the risk that the teacher would commit sexual abuse of a student.

The Court of Appeal also determined that the exclusion of non-touching evidence impacted D.Z.’s ability to offer otherwise admissible evidence of prior complaints. This also led to confusion amongst witnesses when asked to discuss complaints of touching only, and to omit discussion of inappropriate comments.

Ultimately, the Court of Appeal reversed the judgment and remanded the matter for a new trial.

Takeaway

The Court of Appeal’s opinion is likely to be relied upon by plaintiffs’ attorneys to seek to introduce at trial a broader spectrum of evidence supporting claims of negligence brought against school districts in the child abuse context. Correspondingly, the action or inaction of a district in relation to an employee alleged to have abused a student may impact the relevant evidence potentially admissible at trial. This underscores the importance of school districts’ prompt and thorough handling of complaints received regarding their employees’ alleged inappropriate behavior. Upon receipt of such complaints, districts should not only document the complaint, but also the remediation and reasonable steps taken to protect students and ensure that the employee’s behavior cannot recur.

If you would like more information about this case, or have any questions related to complaints and investigations, student safety, employee training, or employee discipline, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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Know Your Role, Know Your Risk

June 2019
Number 28

A Civic Center Act provision that allocates liability between a school district and the users of school facilities means what it says, according to a recent decision by the California Court of Appeal. In Grossman v. Santa Monica-Malibu Unified School District, the court found the district was not liable for injuries suffered by a parent-attendee at a carnival held by a booster group at one of the district’s schools. The court also highlighted the statute’s intent that school districts and users of school facilities bear their own costs in insuring against risk and liability resulting from use of those facilities.

Facilities Use and Liability Under the Civic Center Act

Education Code section 38130 et seq., also known as the Civic Center Act, requires school districts to allow community groups to use district-owned facilities under certain conditions and allocates liability between the school district and the user of those facilities. Under Education Code section 38134(i)(1), “an entity using school facilities or grounds . . . is liable for an injury resulting from the negligence of that entity during the use of the school facilities or grounds,” while a school district “is liable for an injury resulting from the negligence of the school district in the ownership and maintenance of the school facilities or grounds.” The same section also requires school districts and users to “each bear the cost of insuring against its respective risks,” as well as the cost of defense for “claims arising from those risks.”

A school district’s liability for “ownership and maintenance” of its facilities and grounds only arises when the district would be liable under Government Code section 835 for “a dangerous condition of public property.” That form of liability arises from (1) negligent acts of a school district employee, or (2) notice of the dangerous condition with time to mitigate the danger.

The Grossman Case

In Grossman, the school district approved a booster group’s plans for a carnival on school grounds, but did not otherwise involve itself in the planning, set up, or oversight of the carnival. At the event, the plaintiff, a carnival attendee, was injured when an inflatable slide collapsed and he fell over 20 feet onto the concrete below. Similar slides were used at prior carnivals without incident.

The plaintiff sued the district, the booster group, and party rental and event companies for negligence. The plaintiff alleged that the slide was improperly set up, and was not secured to the ground with stakes. The plaintiff further alleged that the district did not inspect the slide or make sure that the operators properly assembled the slide.

The court ruled that the negligent set-up and operation of the inflatable slide, rather than any dangerous condition of the district’s property, was the cause of the plaintiff’s injuries. The slide was not a condition of the school grounds because it was a temporary feature that was removed after the event. Moreover, the district did not have notice of any purported dangerous condition because similar slides had been used at the booster group’s carnival in prior years without incident, and no complaints were made about the slide being improperly set up before the incident. Because the plaintiff’s claim was based on negligent set-up and operation of the slide, and not on a dangerous condition of the property, the court held that the district could not be liable for negligence under the Civic Center Act.

In its ruling, the court discussed the legislative history of the Civic Center Act’s liability apportionment statute. In particular, the court noted objections by booster groups and similar organizations to substantial insurance coverage and indemnification obligations required by school districts for use of facilities under the Civic Center Act. The legislation provided that such costs were considered costs of maintenance and management that should be borne by the property owner, rather than the user, however, the legislative history underscored the Legislature’s intent that the Civic Center Act not broaden a school district’s liability beyond that narrow scope. The court emphasizes that the liability apportionment statute requires each party bear its own costs associated with protecting against liability.

Takeaways

The Grossman case serves as a good reminder that liability is apportioned based on a school district or user’s respective role, as are the costs to protect against that liability, and while a school district cannot shift its statutory liability to facility users, it also cannot be held liable for injuries resulting from the user’s negligence, even if the incident occurred on school grounds.

For additional information regarding the Civic Center Act or facilities use and liability, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Claudia P. Weaver

Partner

Wesley L. Carlson

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Letter Saves City From Potential Brown Act Violations

June 2019
Number 27

Sometimes public entities stumble despite their best efforts to dutifully comply with the Brown Act. Fortunately, the Brown Act allows these entities to fix certain violations by identifying the problem and promising never to do it again.

Public entities faced with allegations of Brown Act violations can look to TransparentGov Novato v. City of Novato as a guide to avoid ensuing litigation.

TransparentGov Novato v. City of Novato

In TransparentGov Novato, a group of city residents filed a lawsuit against the City of Novato. Before filing suit, the group had sent a letter to the City alleging a Brown Act violation after councilmembers discussed a controversial project which was not on the agenda, and subsequently voted to establish a subcommittee to consider the project at a future meeting. In a responding letter, the City promised that going forward it would only create subcommittees if the item is on an agenda. The City also amended its own policy manual requiring all requests for future agenda items to be in writing. TransparentGov Novato filed suit after the City issued the letter and amended its policy.

In affirming the trial court’s decision in favor of the City, the Court of Appeal found that the underlying basis for the lawsuit had been resolved because the City had amended its policy and “provided an ‘unconditional commitment to cease, desist from, and not repeat the [allegedly wrongful] past action.'” The court was persuaded by the unequivocal nature of the City’s new policy to support its conclusion that there was “no reasonable basis to believe that [the] past action would be repeated.” The court acknowledged that while policy changes do not automatically invalidate pending Brown Act litigation, the policy change in this case was adopted before TransparentGov Novato filed suit. The timing of the adoption convinced the court that it was less likely that the City would repeat the alleged violation. The court affirmed the trial court’s judgment and awarded the City of Novato its costs on appeal.

Takeaways

The TransparentGov Novato case emphasizes the fact that the Brown Act requires courts to dismiss lawsuits alleging Brown Act violations when public entities provide an “unconditional commitment” to stop and not repeat the allegedly wrongful past action. (Gov. Code, § 54960.2, subds. (c)(1) & (3).) A letter by itself does not necessarily guarantee that a court will determine that the public entity provided an “unconditional commitment.” Actions speak louder than words, and courts will take the public entity’s other actions into consideration before making a determination.

Public entities already facing viable allegations of Brown Act violations may want to consider adopting or changing their policies in a manner that unequivocally negates the prospect that the alleged violation will reoccur. If the public entity determines that a particular allegation is viable and decides to amend or adopt its policy, it should do so before a lawsuit is filed, if possible.

If you have any questions about TransparentGov Novato v. City of Novato, or the Brown Act in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Manuel F. Martinez

Partner

Tina C. Mirzazadeh

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Schools And Public Agencies Face A Rise In Digital Copyright Infringement Claims For Use Of Protected Photos

April 2019
Number 19

Cease and desist letters alleging copyright infringement for the unauthorized use of digital photos-along with demands for settlement payments ranging from hundreds to tens of thousands of dollars-are being sent to public agencies. This trend seems to be on the rise, whether it is a journalism student’s use of a photo for the online student newspaper, or a social media manager’s use of a graphic for the agency’s Facebook feed. Although the initial demands can be quite high, including threats of hundreds of thousands of dollars in statutory damages if the copyright owner has to litigate the claims, sometimes the license fees can be negotiated down depending on the number or nature of infringing uses.

A contributing problem is the ease with which digital photos can be copied online. Additionally, it is increasingly simple to detect unauthorized online use. Advanced algorithms used in today’s Internet search engines make it easy to identify every unauthorized use of a photo online anywhere. Digital photos can also be copied from anywhere on the Internet using a snipping tool or by taking a screenshot and are quite tempting to those who want the perfect photo, but may not have given consideration to the intellectual property rights of the photo’s owner.

A number of law firms seem to be at the forefront of pursuing these claims. These attorneys identify the sites where unauthorized photos appear, the registrants for those sites, and the addresses where the demand letters can be sent. If you receive one of these letters, the first step in addressing the claim is to secure proof of copyright ownership and the lawyer’s authority to act on behalf of the copyright holder.

In addition to assisting public agencies with resolving the pending infringement claims, Lozano Smith is also working with clients to implement “best practices” to avoid future claims of copyright infringement. These best practices include, but are not limited to:

  • Do not use any pictures that are “copied and pasted” from other Internet sites.
  • Consider using only photos that are taken by someone associated with or hired by the agency department responsible for publication of the pictures.
  • If you find that the picture you want to use is “subject to copyright,” contact the copyright holder in advance and get permission or a license to use it.
  • Train staff, or in the case of school districts, students as well, regarding these issues. Focus training particularly on web designers, public information officers and journalism teachers.
  • Use the threat of copyright infringement as a “teaching opportunity” for students and staff to understand what is required to navigate the digital universe.

For more information about the legal requirements for use of copyrighted works or how to implement these and other best practices to avoid such claims, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app

Written by:

Harold M. Freiman

Partner

Lee Burdick

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Lay Opinions May Trigger The Need For An Environmental Impact Report

February 2019
Number 12

A California appellate court has ruled that lay public opinions on nontechnical issues concerning a project’s size and general appearance can provide substantial evidence of environmental impact, triggering the need to prepare an environmental impact report (EIR) under the California Environmental Quality Act (CEQA).

The California Environmental Quality Act

CEQA generally requires public agencies to identify potentially significant impacts of projects they carry out or approve, and mitigate those impacts where feasible. Unless a project is exempt from CEQA, the public agency must prepare one of three types of documents. A negative declaration (ND) can be prepared where there is no substantial evidence that the project may have a significant effect on the environment, and a mitigated negative declaration (MND) can be prepared where the project has potentially significant environmental effects, but these effects will be reduced to insignificance by mitigation measures. An EIR, however, is required whenever substantial evidence in the record supports a “fair argument” that the project may produce significant impacts or effects. An EIR generally involves more time and often more cost than an ND or MND.

Georgetown Preservation Society v. County of El Dorado

The Third District Court of Appeal filed its decision inGeorgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App5th 358, on December 17, 2018, affirming the trial court’s writ setting aside El Dorado County’s (County) approval of a project based on an MND. The County had prepared an initial study to analyze the environmental impacts of a proposed Dollar General chain discount store (Project) and found that there was no basis to require an EIR. Local residents acting through plaintiff Georgetown Preservation Society (Society) objected, claiming that the Project would impair the aesthetic character of their town. The Project was located in a historic center and several lay opinions were submitted by the local community, which commented that the Project was
too big and too boxy and would damage the look and feel of the town, and would therefore have significant and negative effects related to aesthetics. The County slightly modified the project and ultimately adopted the MND. In part, it found that the project complied with local zoning because the area was zoned for commercial retail, that the Project’s design, architectural treatments, and associated improvements substantially conform to the County’s Historic Design Guide and, that the Project would not substantially detract from the town’s historic commercial district.

The Society filed a lawsuit seeking to require the County to prepare an EIR. The trial court applied prior case law and found that the Society’s evidence supported a fair argument that the Project may have a significant aesthetic effect on the environment. Accordingly, the trial court issued a writ of mandate compelling the County to prepare an EIR.

On appeal, the County relied on the fact that it had applied its Historical Design Guide principles when it found the project met aesthetic standards. In the County’s view, the ensuing finding of compliance with its Historical Design Guide principles could not be disputed by lay opinion evidence. A key issue addressed by the Court of Appeal was whether non-expert factual evidence or lay opinion evidence proffered by area residents can support a “fair argument” that the Project may have a significant aesthetic impact on the environment. In reaching its decision, the Court of Appeal followed the rationale in Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, and held that (1) consistency with local design guidelines could not be used to insulate a project from CEQA review; (2) lay opinions can provide substantial evidence to support a “fair argument” that a project may have a significant aesthetic impact on the environment, triggering the need to prepare an EIR; and (3) since the County made no credibility determinations, it could not categorically disregard the
public’s comments.

Takeaways

Georgetown Preservation Society serves as a reminder of the impact public opinion may have on projects approved or carried out by public agencies, and that lead agencies should not disregard public opinion in non-technical areas like aesthetics. Previous court decisions have also considered lay opinions in other impact areas such as noise, traffic safety, and parking. Therefore, lead agencies should not solely rely on its industry experts when evaluating the environmental impacts of a project. If the community members’ opinions on these issues are not properly taken into consideration, project delays and increases costs can result.

If you have any questions about the appellate court’s decision in Georgetown Preservation Society and its impact on CEQA compliance, or about the CEQA in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Kelly M. Rem

Partner

Jose Montoya

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Reaffirms Governing Board’s Ability to Impose Reasonable Limits on Public Comment

September 2018
Number 51

A California appellate court recently reaffirmed the limitations a governing board of a public entity can impose on public comments during a board meeting (Ribakoff v. City of Long Beach).

Background

As was his frequent practice, Joe Ribakoff attended a Long Beach Public Transportation Company (LBTC) board meeting as an interested citizen. LBTC’s lone shareholder is the City of Long Beach, and LBTC operates as a public entity. During the public comment period, Ribakoff spoke for the three minutes that an LBTC board ordinance grants members of the public to address the board. When Ribakoff attempted to speak a second time, after the close of public comment, he was denied the opportunity to speak further and his microphone was cut off. An LBTC representative testified that Ribakoff became argumentative and appeared to approach the dais where the board was seated. A police officer was summoned and told Ribakoff that if he disrupted the meeting again, he would be arrested for violation of a city ordinance prohibiting disturbance or interruption of a board meeting.

Ribakoff sued the board, arguing that the board meeting disturbance ordinance violates the First Amendment, and that its three-minute speaking limit violates the Brown Act and the First Amendment.

To support his argument that the ordinance’s prohibition on disturbance or interruption of a board meeting violated the First Amendment, Ribakoff pointed to precedent that says an ordinance is unconstitutional if interpreted to allow an arrest based on the content of the disruption. However, that precedent also found that an ordinance is constitutional if it is construed to be a content-neutral “time and place” restriction. The court construed the challenged ordinance to be a legitimate “time and place” regulation that only penalized speech based on whether it was disrupting the meeting, not on what was being said.

The Brown Act permits a public agency’s governing board to adopt reasonable time limitations to ensure adequate opportunity for public comment, but prohibits the board from censoring public criticism of it. Ribakoff argued that the three minute limit is not reasonable because the board used it for a purpose other than time limitation-it allowed the board to censor his criticism. However, the court found no evidence to support this argument. The board did not stop Ribakoff from speaking during his initial three minutes, despite his critical statements. It was only when he attempted to speak after his three minutes had expired that he was restrained from speaking further.

Ribakoff also claimed that the time limit is unreasonable because the three-minute limitation applies only to public comment and not the board or its invited speakers. The court disagreed, pointing out the difference in purpose between public comments and board or invited presenter speech. When the board or its invited presenters speak, it is for the benefit of the public. The board regulates the number and length of these presentations, and ensures that they do not take more time than necessary. Conversely, public comment is potentially unlimited depending on how many members of the public are at the meeting, so a reasonable time limitation is justified.

The court recognized that board meetings are open to the public, yet are still governmental processes with an agenda and a purpose. Therefore, limitations for the purposes of keeping the board meeting on schedule and on topic are justified.

Takeaways

  • Boards are generally not permitted to adopt rules that limit public comment based on the content of the comment. But it is not a free speech violation to limit comments to the topic at hand.
  • Cities or other entities with police power may adopt ordinances that authorize penalties for members of the public when their behavior-and not the content of their expression-impairs the conduct of the meeting.
  • Boards may adopt reasonable time limitations on public comment.
  • Boards may have different time limitations for public comment versus board members or invited speakers.

For questions regarding the Ribakoff decision or about public comment or board meetings in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Harold M. Freiman

Partner

Jordan R. Fong

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Limits Enforcement of Public Sleeping Ordinances

September 2018
Number 50

A federal appeals court has held that a city could not enforce local ordinances that prohibit homeless persons from sleeping outside when shelter is not available. Municipalities with similar ordinances may be affected by the Ninth Circuit Court of Appeals’ decision in Martin v. City of Boise.

Background

At a time when homelessness is an issue that cities and counties are increasingly called to address, a common trend is to prohibit sleeping and camping on the sidewalk, in parks, and in other public places. The City of Boise enacted ordinances to do just that. The ordinances prohibit the use of “any of the streets, sidewalks, parks, or public places as a camping place at any time” where “camping” is defined as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence” and “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private” without permission.

Several homeless residents challenged enforcement of the Boise ordinances. The factual basis for their claim was fairly straightforward: Plaintiffs are homeless; there is not enough room at the homeless shelters for all of the city’s homeless; plaintiffs and other homeless persons have no choice but to sleep outside and in public when the shelters are full; therefore, plaintiffs and other homeless persons are forced to violate the city’s ordinances. Their claim rested on the Eighth Amendment’s prohibition against cruel and unusual punishment. Specifically, the Amendment’s “substantive limits on what the government may criminalize” was at issue.

The court examined prior U.S. Supreme Court cases concerning narcotics addiction and public drunkenness, as well as the since-vacated Ninth Circuit decision in Jones v. City of Los Angeles that restrained enforcement of an ordinance that prohibited sitting, lying, and sleeping in public. The court adopted the reasoning of its prior ruling inJones, finding Boise’s ordinances effectively criminalize the status of being homeless, as opposed to undesirable conduct that can be prohibited.

The Martin court concluded that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” “[A]s long as there is no option of sleeping indoors,” the court ruled, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

Takeaways

Despite the ruling, there is likely a future for sleeping and camping ordinances. The court declared that “[its] holding is a narrow one” and made some important qualifications regarding its ruling. Some clues are also found in the text of the decision. For example, the court’s regular reference to “public property” suggests that sleeping and camping ordinances may still be enforced when the conduct occurs on private property, regardless of shelter space.

The court further made clear, albeit in a footnote, that the ruling “does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it.” Moreover, it did not say a city can never prohibit sleeping in public when there is insufficient shelter space. Without making an express decision on this point, the court said that “an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible,” and, “an ordinance barring the obstruction of public rights of way or the erection of certain structures” may be acceptable. This may mean that permitting outdoor sleeping in designated places and times will permit widespread enforcement of such an ordinance elsewhere.

Throughout Martin, the court focused on the natural and necessary act of sleeping, stating that “the two ordinances criminalize the simple act of sleeping outside on public property.” This raises an interesting point about camping ordinances. The court was critical of the city’s enforcement of the camping ordinance against homeless persons “with some elementary bedding,” sleeping “with blankets,” or when other indicators of “camping” are absent. It appears that the problem did not lie with the camping prohibition itself, which would prevent the act of constructing a camp or other shelter, but with sleeping and taking basic precautions in order to sleep outside.

The court stated that its ruling does not require cities to provide homeless shelters. But, when there are more homeless people than available shelter beds, the ordinances will be unenforceable. Practical unavailability of shelter beds may also impact enforcement. During the litigation, Boise instituted a “no space, no enforcement” protocol where the shelters would self-report if they were full so the ordinances would not be enforced that night. However, one shelter had a policy of not turning away anyone seeking shelter and never reported that it was full. As a result, the exception was never actually triggered. There was also evidence of limits on the number of consecutive days someone could stay at one shelter before a mandatory stay-away period. Additionally, due to the time of day that beds were assigned and preferences given to returning guests, a shelter with available room might stop making assignments for the night before prospective guests learn they are unable to get a bed at the other shelter, leaving them with no place to go.

The city reportedly will appeal the panel decision to the full Ninth Circuit. Until new decisions are issued, this ruling applies and municipalities that prohibit sleeping or camping in public places should review their ordinances and consult legal counsel concerning continued enforcement.

If you would like more information about the Martin decision or have any questions regarding municipal sleeping or camping ordinances, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook orTwitter or download our Client News Brief App.

Written by:

Jennel Van Bindsbergen

Partner

Wesley L. Carlson

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.