Why Homeless Encampments Are Growing out of Control in California | Bruce Silverstein

And I think the reason we're seeing people in public now is because they understand that nothing's going to be done about it. It all started with a court decision in 2018, Martin v. Boise, which boils down to a simple question, whether it's legal or illegal to camp on the street. A lot of people have misconstrued this decision to hold that if you have a homeless population, there's just nothing you can do about it. The decision was believed to tie the hands of the authorities. As a result of not having any restrictions, the problem gets worse and worse. The residents get up in arms. My guest today is Bruce Silverstein, Mayor Pro Tempore with the city of Malibu, who has practiced as an attorney in various federal courts, including the United States Supreme Court. Today, he talks about what Martin v. Boise is and why he believes the court decision contributed to California's homeless encampment growth. If every municipality in the Ninth Circuit took the court at its word, you wouldn't see the issues you see today with the encampments in Venice and on the streets in Los Angeles. I'm Siamank Kourami. Welcome to California Insider. Thank you. It's good to be here. We want to talk to you about homeless encampments across California and in other parts of the country, but mainly in California. We have seen a lot of homeless encampments coming about in the last few years. What are your thoughts on this? Where do you think they have come from? I think they've come from a confluence of various things, but mainly you can identify two. One is that in 2018 or 19, the Ninth Circuit Court of Appeals decided a case called Martin v. Boise, which a lot of people have misconstrued to hold that you can't do anything about people living on the streets if you live in the Ninth Circuit. California's living in the Ninth Circuit. You combine that with the fact that California has one of the most livable outdoor climates in the country. Together, those two things are a recipe for people living outdoors in California if they can't afford to live anywhere else or even if they just don't want to live somewhere else. So California is a destination place, and thanks to the Ninth Circuit, it's widely believed that you can't do anything about people living unhoused in California. They based that on some decisions from years ago that held that you can't make it illegal to be an alcoholic or you can't make it illegal to be a drug addict because theory has it if you're a drug addict or an alcoholic, that's not something you choose to do, and you can't therefore make it illegal to be something. Interestingly, however, think about it. If someone's an alcoholic and they get tanked up and they get in a car, it is illegal to be driving the car. That's driving under the influence. It doesn't matter that they had no choice but to be under the influence according to the court decisions, but it's still illegal to be driving under the influence. I would contend it's the same thing with homelessness. Yes, people have to live, and if people have no place to live, they're outside on the street, but you're not making it unlawful to live. You're making it unlawful to stay in one place at the expense of others. I don't know if you're following me on that. There are some decisions subsequent to that that have held actually the law enforcement or the city can actually approach people that are living outdoors and say, you need to move on. You can't stay in this place, and that's been challenged, and the courts that have looked at that, lower courts, have said, yeah, that's not punishing somebody. First of all, you're not arresting them, and you're not making it so that they can't sit or lie somewhere. You're just saying that there comes a time when this is not your home. You can't make this your home. It's not homesteading, so you must move on. But basically, a lot of people have misconstrued this decision to hold that if you have a homeless population, there's just nothing you can do about it, and as a result of that, the homelessness has gotten more obvious. I don't know that it's become more, but it's become more obvious. So people have been camping in places because there's no laws. The laws are there, but nobody's enforcing laws to actually... Right. So I can speak for... I don't know what's happening in Oregon or Washington or even Northern California, but in Los Angeles County, Los Angeles County is the largest county in the country, 10 million plus people. The Los Angeles County Board of Supervisors and their legal counsel have come to the conclusion, I think wrongly, but they came to the conclusion that enforcing no camping laws, which is what was at stake in Oregon in the Martin case. Enforcing those laws, they've concluded is unconstitutional. I think they're wrong, but they've concluded based on that decision that it's unconstitutional, and they have given direction to the LA Sheriff's Department not to enforce anti-camping laws against homeless people. So you got the largest county in the country with the people who are running that county declaring basically, we're open for business. You want to come live here on the street, you're welcome to live here on the street because as far as we're concerned, there's nothing we can do about it. Whether that meets the political agenda of some of the supervisors or others that are at high levels, or whether they genuinely believe, I think misguidedly, that that's where we are, I can't say. Now you guys in your city of Malibu, you guys have faced challenges with people coming and camping, right? You've had... That's right. It's the same issue. Malibu is a small town, we have a population of 10 to 12,000 people, the city of Los Angeles, which is right next door, has a population of 6 million, 7 million people. I don't know that we have a larger percentage of people living homeless or living unhoused in Malibu than Los Angeles does. They obviously have a much larger number of people, I think it's 60, 80,000 I've heard. We probably have 200. 200 seems like a lot when you're in a small town, but I think percentage-wise it's pretty much the same as it is most other places. Do you think there's anything wrong with that if people just are living in the streets, camping when they don't have the housing? Do you think there's any issues with that? Well, let's separate the people who don't have a choice from the people who do have a choice. I think there's absolutely something wrong with people who have means, choosing instead to live in public on other people's dollars, so to speak. If I want to be lawless, I can live anywhere I want, but I can't live anywhere I want. I had to work hard and I could live where I can afford to live. I don't get to choose to go move into some multi-million dollar condominium in New York City because I want to, and I'm not suggesting living on the street is the equivalent of that. I have to live where I can afford to live, and if I can't afford to live where I want to live, I live somewhere where I don't want to live, where I can afford to live. So people who are choosing to live on the street, and there are a number of them, to me that's wrong. People that can't take care of themselves, mentally ill people, people on drugs, in a sense it's wrong because they're abjuring assistance. They can get help. There is help available, but because of their illness, they actually aren't capable of accepting the help. So it's a very circular type problem, but it does seem to me that it's wrong to inflict your problems on other people simply because you don't feel like doing something different. But we're not allowed to hospitalize people unless they're proven to be a physical danger to themselves or others, and the vast majority of mentally ill people aren't at that level. Same thing with people who are on drugs and alcohol. For the most part, they're not violent criminals. If they were, then they would be arrested. So it's a very difficult subject matter. Is there something wrong with it? Maybe there's something wrong with society that allows it to happen and doesn't take care of these people, even against their will, but we are where we are. Now these laws, the way this law was interpreted, so you have to offer housing for the people, and if you don't offer them housing, if they don't accept it, they can stay on the street. How does it work? Well, that's another one of these misconceptions of what the law is. Again, the only thing that the law says right now, first of all, we're not talking about a statute or something that lawmakers decided. We're talking about a court, a minority of a court. Three judges on a panel of 15 or so in the Ninth Circuit, they sit in panels of three. So one three-member panel made this decision, and now we're stuck with it. All they said was that it violates the Eighth Amendment prohibition against cruel and unusual punishment to arrest somebody or otherwise subject them to criminal penalty for the mere act of sitting, lying, or sleeping in public, full stop. They said you can have reasonable regulations and restrictions on where, when, and how that could be done. They said this doesn't apply to someone who has access to shelter, either because they can afford it or because it's offered to them, and that's where it starts getting fuzzy. So some people have construed that to mean before you can do anything about people living on the street, you must offer them housing. It's not what the case says. The case says you can't arrest somebody merely for sitting, lying, or sleeping unless they have access to housing. So one way to have access to housing, obviously, is to give them access to housing. That's I think what you're referring to. But let's say there is no access to housing. Let's say you acknowledge we have no shelters. We're not going to create any shelters. It's not our responsibility to create shelters. What can you do? You can still prevent people from erecting encampments, putting up tents, putting up aluminum little buildings. You can stop them from using fire. You can stop them from putting trash on the ground. That's a standard rule in the first place. So if you enforce all the normal laws, other than a law against sitting, lying, or sleeping, you're going to find you're not going to have a lot of people sitting, lying, and sleeping in your municipality because it's not real comfortable to be there if all you're allowed to do is occasionally sit down or lie down and go to sleep. If you can't cover yourself with some kind of a shelter that you've made, which the law doesn't say you are entitled to, and you can't stay in one place, let's say, for more than eight hours, you can't just declare this to be your home. You've got to constantly be moving around. I want to make something clear. I'm not advocating that it ought to be that way, that people ought to be that strict. I'm just talking about, first of all, you've got to identify what can be done before you can figure out what should be done. So there's a lot of misunderstanding about what can be done, and that's kind of what I'm focused on. And then, as far as a legislator, my view is it's up to the community to decide once they know what can be done, what they think ought to be done. It's not my judgment that matters. It's what the people that elected me matter. I understand what you're saying in terms of the law, like the way that it needs to be, the way it's interpreted. But let's say it comes down to housing and the city, we're offering these people housing, and the individual refuses the housing. What's there then? What is that? Well, the way the law used to work was it was illegal, full stop, to be living on the street. You just aren't allowed to. They call it camping, but you can't be living on the street. When I say street, I mean a sidewalk or in a park. If you don't have the Martin versus Bousey decision, what happens, for better or worse, is the person gets arrested. They have a choice of moving on or being arrested because they are violating the law. That doesn't happen in California for other reasons as well, because we don't incarcerate people for misdemeanors. But it's a misdemeanor. Some places do. That was what was happening in Boise, for example. So the answer is, if you have housing available, even now, so now if you offer housing or you can establish there is housing available, and the person says, I'd rather be on this park bench, the answer to that is, well, you don't get to make that choice. You have housing available. You can choose the housing. Your other two choices are move on or we're going to arrest you. Is that happening in L.A. or no? Infrequently. My belief is that the person has to pretty much be doing something other than refusing to budge before they're going to be arrested. If they become violent with the police officer, then they'll arrest them. But they're really not arresting anybody simply for refusing housing and staying in one place. Now I've heard sheriffs, deputies say, well, you know, when we're there in our tactical gear and we've made an offer of housing available and they've turned it down and we tell them they've got to leave, they're not really fighting with us. So they don't get to the point of having to decide whether to arrest someone or not because it's pretty intimidating to have a sheriff's deputy telling you you're violating the law and you can't stay here and do that. Now the city of L.A. has been trying to clean up the encampments. They're banning camping on the sidewalk. They finally got around to that, yes. And we've done that in Malibu as well. Again, my view is that decision doesn't really hold what people say it holds. I also think there's a lot of reasons why it doesn't apply in Malibu in contrast to Boise, Idaho. I'm not going to get into them right now. We adopted the same kind of law that L.A. has now. You can't have an encampment. Encampment is different than just an individual lying in place somewhere. So we've prohibited encampments anywhere in Malibu. And what we've been able to do is we said, well, Malibu is designated as a very high fire hazard zone by Cal Fire. You just have to look back to the Woolsey Fire to understand why. So encampments pose a particular fire danger, different than an individual who's just being in public. Encampments tend to be where people cook and warm themselves and do other things. But what Los Angeles did and Malibu did on top of that is said, no, I take that back. Los Angeles has limited it to encampments is my understanding. Malibu, what we said, was separate and apart from encampments. We're going to have a new regime with no camping. We're going to accept the misinterpretation of Martin v. Boise that says we cannot completely outlaw living in public. But what we can do under Martin v. Boise is we can regulate the time, place, and manner. And we also don't have to make that available to people who aren't truly homeless. So what that does now is we've said you can't be within, when you're doing this, you can't be within X number of feet of someone's house. If you think of PCH, there's a lot of houses on PCH, then there's also a lot of areas PCH where there are no homes. You can't decide that the sidewalk in front of someone's home along PCH is where you're going to make your home. That's too close to a private residence. We've said you can't be within 1,500 feet of a school because children are more susceptible to danger than adults are. And these are pretty common types of restrictions for various other things as well. But what we said is as long as you don't decide to camp, in essence, in one of these restricted areas, then we're not going to do anything about it. But we're also not allowing you to have fire. We're not allowing you to put your garbage anywhere other than a proper receptacle. You can't defecate and urinate in public. So you have to live with all the other laws that people have to live with. And if you're in a safe zone where the law doesn't say you can't be there, but you're also violating some other law, we're going to do something about it. And it seems to be working. I think that there seem to be less... I'm hearing less from the members of the public about people being a problem near the supermarket, near the library. I'm not saying it's not happening, but I think it's happening a little less. I think the sheriff's deputies are doing a decent job of trying to help keep those areas clear. But we're still hearing a lot about encampments, though, in the woods, in dry areas off the side of the beach, in the hills. And some people find people camping there. Most people don't even see them because they're kind of hiding in plain sight. And that's a fire danger. And we are hoping the L.A. Sheriff's Department will do something about it. But they're following this protocol, I think, that you identified, which is they have to offer housing. They have to give them so much time to make a decision or to be aware that they're going to be asked to leave. And if it is a fire danger, it's a fire danger today. It doesn't matter that they're going to leave in 30 days. They could start a fire today, tomorrow, next week. And a lot of residents are very concerned about that. So do you think if Martin v. Boise, that decision hadn't happened, the situation would be a lot better in L.A. with homelessness? Yeah, I'll answer that this way. There's no way of knowing what would have happened had something that did happen not happened. Just like there's no way of knowing what would have happened if something that didn't happen did happen. You can only speculate. I have every reason to believe that the decision contributed to the problem getting worse. The decision didn't have anything to do with whether people are homeless or not. That's the economy, that's COVID, that's all kinds of things. Although there actually probably is a small portion of the unhoused population who, understanding that in California they weren't going to be precluded from living in public, decided to make California a destination to go live in public. So it did have some contribution to the magnitude of how many people we have unhoused in California and certainly in Southern California. But the decision was believed to tie the hands of the authorities. So whereas in the past they would arrest people, and I don't know, I tend to believe living in prison is probably a lot worse than living on the street. I mean, living on the street has problems, but living in prison is probably a lot worse. But there are a lot of people that don't care about that. So people were getting arrested. And also, having been arrested a few times, they would then move on to somewhere else. So it was less obvious. But at the end of the day, the decision probably just advanced the recognition that these people are living on the street, that we have a problem in this country, we have a problem in the world with people that can't afford to take care of themselves, whether it's because of mental illness or drug addiction, or genuinely just cannot take care of themselves despite how hard they're trying. And something needs to be done about that. And that's above my pay grade. I think that has to be solved in Washington or at the UN, what have you. That can't be solved at any city, because let's say, hypothetically, even the city of Malibu decided it found a million dollars somewhere, which it doesn't have, and devoted a million dollars to trying to help the 200 people that are living on the street in Malibu. And let's say they successfully did that, you can get another 400 people immediately who learned that this is available. So unless you've got a solution that is available throughout the country, having a solution available in any one place isn't a solution. It's just an attraction. We have talked to some of the people that live in these encampments, and some of them have told us, we're not hurting anybody, and we're just living here, and they don't see anything wrong with that. What are your thoughts on that? Well, because they're probably not, the people you spoke to, I'll take their word for it, that when they say they're not hurting anybody, they're not injuring anybody. But they're usurping public space. I mean, as I said before, I don't get to live anywhere I want to live. I get to live where I can afford to live. It's the same, that's the rule that applies to everybody. So is somebody who's decided to, well, actually, I want to backtrack for a moment and say, again, I'll accept the word of these people. We did have an incident about a month ago in Malibu on the beach where a family was there to go fishing at the beach, and two men who were living at that spot and had determined it was theirs, that that beach was theirs. One of them attacked the father with a machete, and the man ended up in the hospital. And that was because of a belief that having decided to live on the beach, the beach where he was living on was his home, and no one else was even allowed to be there at that point. That was his home. That's not what's going on for the most part, but if you think about it, a public park is for the public at large. It's for families to take their kids. It's a place of recreation and enjoyment. It's not a place for people who choose to live there as opposed to getting help or taking a shelter or getting a job if they're capable of getting a job. You don't get to just choose to make the park your home any more than I get to choose to make my neighbor's house my house. It doesn't belong to me, the park, but it belongs to the people of the city. Use Malibu as an example. It belongs to the people of Malibu. It's actually the property of the city of Malibu. It's not the property of anyone who wants to make it their home. The city could, if it wished to, adopt a law that said, people are welcome to live here. We didn't adopt such a law. I doubt there's very many places in this country that are going to adopt such a law. But if you adopt such a law, then fine, people are welcome to follow that law. But right now the law is, you can't live here, so are you harming anybody? Well, are you harming anybody when you don't stop at a stop sign at 2 in the morning? No. Are you harming anybody when you drive 70 miles an hour on an otherwise empty road? No. But you're breaking the law, and we are a nation of laws, and laws can be changed, but until the laws are changed, people have to live with them. That's my view. Do you think this law, Martin v. Boise, would ever get overturned? It's not a law, it's actually a ruling, right? It's a judge-made law, is what they call it. It's common law. It's a decision by a court. Well, there was an effort to have that specific decision overturned by the U.S. Supreme Court, but the U.S. Supreme Court chose not to hear it. They're not required to take appeals. They get to decide whether to take them, and they typically don't take an appeal just because one court of appeals makes a decision that might even be wrong. They wait until the issue has been addressed by more parts of the country, and then if everyone's going the same way, and it seems wrong, they might take it to say, stop doing this this way, but more often than not, courts in different parts of the country come to different decisions, which is interesting because they're all applying the same law. They're saying the U.S. Constitution requires this, and one judge over here is saying it requires this, another judge over here is saying, no, it doesn't, it requires that, and that's what the U.S. Supreme Court is there for, to break the tie, or to break the conflict. So Martin, we're stuck with, because once a decision becomes final and unappealable, it stays the law. The similar issues will bubble up, so to speak, to the higher courts again. So as I mentioned earlier, there's a number of lower courts that have held, all right, even if you can't arrest somebody for this, you can still stop them from doing it. That's not violating that decision. Well, at some point, that type of ruling is going to get up to the Ninth Circuit again, and the same court that decided Martin, and the Ninth Circuit's going to have to decide, well, do we want to expand our ruling and say, yeah, you can't do that either, state cities, or do we want to agree with that? And there's an opportunity when you're up on appeal to say, you know, that decision you made before, you ought to reconsider that too. That was bad. It takes a lot of time, usually, and a lot of lower court decisions before you get to that point. But for now, we're stuck with it. And so our approach, Himalbu, my approach is, we're stuck with it. So let's read it as narrowly as possible. The decision itself says it's a narrow decision, so let's read it as narrowly as possible, meaning the only thing it says you can't do is arrest somebody for sitting, lying, or sleeping in public. It doesn't say you can't stop them. It doesn't, you know, forcibly evict them. It doesn't say you can't, again, regulate the time, place, and manner by which they do it so that it's very uncomfortable living in public. There are all kinds of things you still can do under Martin, and then the way the common law works is there'll be a lawsuit challenging each one of those restrictions or all of them, and courts will say either that restriction's okay under this decision or that restriction's not okay. And then again, as I said, you go up to appeal, and eventually the court that decided before what you can't do has to now decide another issue. And that's how the common law develops. And in the meantime, these cities, because this looks like it'll take a long time, so you think the cities now, with all the complaints that the residents have, they're at the point where they're going to try this? Well, you know, think of Los Angeles as the example. You said, you know, for three years, the city of Los Angeles has been saying there's nothing we can do about it, our hands are tied, and now all of a sudden they've got a statute that says you can't have encampments on sidewalks. Well, they could have had that rule three years ago, they just didn't, I don't believe they didn't understand they could have that rule. They didn't want to have that rule. I don't know why they didn't want to have that rule, but they didn't want to have that rule, because if they wanted to have the rule, and it's a rule they can have, they could have had it. So the majority of the politicians that make the decision didn't want to have the rule, so the rule didn't get made. As a result of not having any restrictions, the problem gets worse and worse. The residents get up in arms, and now the politicians need to do something, whether they want to or not, because their constituents are not going to re-elect them, and that's the name of the game in politics, right? Getting elected. So I ran on a platform of we need to do something, because that was what I was hearing from my neighbors and other people in my community. So I didn't have to change my view. That was my view. You mentioned Martin v. Boise, this law that got passed. Can you explain to us what it is and what the impacts have been? Yeah, what it is and what it isn't, I think is a good way to think of it. As I said, the case got to the Ninth Circuit Court of Appeals, one of the many courts that are above the trial-level courts in the federal system and below the U.S. Supreme Court. In that case, it was argued it violated people's due process rights. There were anti-discrimination arguments made, but what the court ultimately decided in that case was that the Eighth Amendment, which we're all familiar with, prohibits cruel and unusual punishment. So it's the kind of thing that is usually argued against a death penalty, that death is cruel and unusual. Mr. Martin was a homeless person, and he or somebody on his behalf sued the city of Boise, and the result was his arrest was unconstitutional. But the court said two things, aside from that our decision is a narrow one that are very important. The court said, we're not saying that you can't regulate the time, place, and manner by which people can live on your street. They didn't even say live, by which people can sit, lie, or sleep on the street. And our decision doesn't apply to people who have access to shelter, whether it's because it's provided to them for free, or whether they can afford it, or a relative is offering it. So what the decision really means is, if someone is truly homeless in the sense that there are no shelters around, nobody's willing to take them in, they don't have benefits. I'm not saying that they ought to be using them for this, but if you've got money that you can use for housing, then this decision doesn't really say that you have the right to be living on the street. So it says, it only applies to people who are truly homeless. That's not their words, that's just kind of a generalized way to say it. And it doesn't mean that you can just do anything you want. You can't erect barriers, shelters, you can't use fire, I think I said that before. So all it says is you can't sit, lie, or sleep, you can't be arrested for the mere act of sitting, lying, or sleeping in public. If every municipality in the Ninth Circuit took the court at its word and applied only that rule, you wouldn't see the issues you see today with the encampments in Venice and on the streets in Los Angeles, and to a lesser degree, but it really is existing in Malibu, which is where I'm familiar, because I'm a city council person there. But you'd still have the people that are homeless. So maybe if it was harder to live on the street, more would be accepting shelter. Maybe more would accept help. I don't know that, because we haven't tried it. What we do know is it was less apparent before the opinion. Now, was it less apparent because people knew better than to defy the law and sit, lie, and sleep in public, or was it better because there were less homeless people? I don't know. The economy's gotten worse since then. We had the COVID pandemic. So we could have a much larger population of people who don't have homes. We could just have the same population, for the most part, who now know that it's okay to come out and live more obviously, because nothing's going to be done about it, at least not in California and other cities in the Ninth Circuit. I tend to believe it is the latter. I don't believe that the homeless population has skyrocketed. It's clearly gotten bigger as the economy has gotten worse, but I don't think it's gotten as many times bigger as it appears to have gotten. I think the reason we're seeing people in public now is because they understand that nothing's going to be done about it. Because even before the pandemic, you could see, with the economy being in its best shape, you could still see encampments growing. Well, you know, you had Skid Row in Los Angeles. That's probably like the poster child for homelessness in the United States. That's what everyone shows when they talk about homelessness in the United States. But you didn't have a couple hundred people living in Malibu. Venice Beach did not have the population of people living outdoors that it has grown to. You're talking two, three years ago. Most recently, I was in Woodland Hills. I went to get some Chinese takeout, and there were tents and other shelters erected along the sidewalks. This is a suburban community that I'd never seen people homeless before there. Now, is it because a number of people in Woodland Hills are now homeless? Or is it because it's a decent place to live? There's a lot of shops. There's people from whom you can panhandle. There's dumpsters from which you can get food. And you're allowed to do it there, because no one's doing anything about it, because it's part of the city of Los Angeles. I don't think it has its own government. I think it's the latter. I don't think all of a sudden there's a large portion of Woodland Hills that's lost their homes. You know, in Malibu, we talked about before, Malibu doesn't really have homeless people. I defy anyone to find more than two or three people that lived in Malibu, grew up in Malibu, or moved to Malibu and had a home in Malibu, and something happened to them. So they lost their home, and now they're living on the street in Malibu. That's a common thing in Los Angeles. It's a common thing in New York City. It was common in Boise. Malibu is a destination for people that don't have a place to live. If you're living on the street in Los Angeles, why not go live on the street in Malibu? It's a much nicer place. And by the way, I think that's a reason why that Martin decision may not even apply in the first instance in Malibu. Because the decision came out of a city where people, they were residents of that city. They lost their homes. Now they were being arrested for basically having lost their home. Malibu, people aren't merely, remember again, this decision says you can't arrest somebody for merely sitting, lying, or sleeping in public. They came there to sit, lie, and sleep in public. They're not just merely living there. They moved there. They moved there without a place to live. I don't know of any decision that affirmatively says you're allowed to move somewhere with no place to live and make that public place your home. It's one thing when you were living in an apartment four blocks away from a park, you lost your job, or you became mentally ill, you went off your meds, and you now can't live in the apartment. So you walk down the street and, hey, there's a park there, so I'll live in the park. It's more inviting than whatever. But there's no case that I'm aware of that says you have the right to go 50 miles away from there just because you like some other place better and take advantage of that place. 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