Agenda Item # 9.9 - Tristia Bauman | Received 06/19/2023
4 North Second Street, Suite 1300 | San Jose, CA 95113
Phone: 408-293-4790 | Fax: 408-293-0106 | lawfoundation.org | Tax ID 52-1014754
Advancing Justice
Housing | Health | Children & Youth
June 19, 2023
Gilroy City Hall
7351 Rosanna Street
Gilroy, CA 95020
Sent via email
Re: Opposition to adoption of ordinance adding Chapter 5 to the Gilroy City Code,
Sleeping Ban
Dear Mayor and City Council,
I write on behalf of the Law Foundation of Silicon Valley to urge you not to adopt the proposed
ordinance adding Chapter 5 to the Gilroy City Code banning the use of certain public rights-of-
way as sleeping or living accommodations (“Sleeping Ban”.) This misguided criminal law will
unjustly punish unhoused people for universal and unavoidable acts of survival in public spaces,
even when they lack practical access to housing or shelter alternatives. Unless and until the City
of Gilroy (“City”) can identify practically accessible and adequate housing or shelter options for
unhoused residents to safely live and store their belongings, this law must not be adopted or
enforced.
Who We Are
The Law Foundation of Silicon Valley is the largest provider of free legal services in Santa Clara
County, and we have represented low-income residents for over 40 years. Our team of 90
attorneys, community advocates, and organizers, together with pro bono attorneys, work to
protect the legal rights of people at risk of housing displacement and homelessness. As part of
our work, we advocate for sensible policies to address homelessness and litigate to protect
unhoused and at-risk people from illegal policies and practices.
Discussion
The Sleeping Ban risks violating the legal rights of unhoused people.
In Martin v. Boise, the Ninth Circuit ruled that punishing a person experiencing homelessness for
sleeping, sitting, or lying on public property in the absence of practically available alternatives
constitutes cruel and unusual punishment under the Eighth Amendment. Martin v. City of Boise,
920 F.3d 584, 587 (9th Cir. 2019). The Ninth Circuit reaffirmed the Martin ruling in Johnson v.
City of Grants Pass, 50 F.4th 787 (9th Cir. 2022) and upheld permanent injunctive relief to a class
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Law Foundation of Silicon Valley | 4 North Second Street, Suite 1300 | San Jose, CA 95113
of homeless plaintiffs who challenged an overlapping set of anti-camping ordinances that left no
realistic options for resting or taking rudimentary measures to stay warm and dry within Grants
Pass.
Under the Sleeping Ban, and as in Boise and Grants Pass, unhoused residents of Gilroy face
punishment for universal and unavoidable resting conduct even when they lack practical access
to emergency shelter alternatives. Indeed, the City Council acknowledged in the Sleeping Ban
proposal that the City lacks available “nightly shelter beds and housing” for its unhoused
residents, and that “it is currently unavoidable that some people will live or shelter for survival
outdoors until they are able to access affordable or free shelter or housing.” There has been no
expansion of shelter or safe parking options since the City Council voted to approve the Sleeping
Ban, and no immediate expansion of these critical services is currently underway. This means
that enforcement of the Sleeping Ban will likely be against individuals who lack practical access
to shelter, in violation of the 8th Amendment and in violation of the formula established in
Martin that the government cannot prosecute homeless people for sleeping in public if there is a
greater number of homeless individuals in a jurisdiction than the number of available shelter
spaces.
Despite its admission of lacking shelter alternatives, the City claims it may still enforce the
Sleeping Ban against unhoused residents because the Sleeping Ban allegedly covers only 24% of
the City, implying that the remainder of the City may be available for survival conduct protected
under Martin and Johnson. In support of its claim, the City provided an incomplete map showing
some, but not all, of the areas that would prohibited under the Sleeping Ban. The map also fails
to delineate areas that are not available for resting conduct because they are private property
and/or regulated by other laws. Without a clear determination of whether there are sufficient
areas within the City where people without access to housing or shelter may rest, and clear
communication of that information to people who are expected to comply with the Sleeping
Ban, the City cannot ensure that enforcement of the Sleeping Ban is consistent with the
U.S. Constitution.1
The Sleeping Ban runs counter to federal policy guidance.
The Sleeping Ban runs counter to guidance disseminated by federal agencies. The U.S.
Interagency Council on Homelessness (“USICH”) released guidance on June 15, 2022, that
includes principles for addressing unsheltered homelessness. The guidance specifically notes that
approaches that use law enforcement to criminalize homelessness “[r]esult in adverse health
outcomes, exacerbate racial disparities, and create stress, loss of identification and belongings,
1 In addition to rights under the 8th Amendment to the U.S. Constitution, the City risks violating other
rights of unhoused residents through enforcement of the Sleeping Ban. For example, the City may violate
residents’ Fourth and Fourteenth Amendment rights to the extent enforcement results in the unlawful
seizure and destruction of personal property. See Lavan v. City of Los Angeles, 693 F.3d 1022, 1027–30
(9th Cir. 2012).
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Law Foundation of Silicon Valley | 4 North Second Street, Suite 1300 | San Jose, CA 95113
and disconnection from much-needed services. While these efforts may have the short-term
effect of clearing an encampment from public view, without connection to adequate shelter,
housing, and supportive services, they will not succeed.” Id. The guidance urges communities to
engage encampment residents to develop solutions, conduct comprehensive and coordinated
outreach, address basic needs of unhoused people and provide storage for personal belongings,
ensure access to shelter, and develop pathways to permanent housing and supports. The City
should first implement these recommendations before adopting and enforcing the Sleeping
Ban.
We all wish to end homelessness in Gilroy, but penalizing people for lacking the means to rest in
private, indoor settings will only worsen the homelessness crisis, cause harm to unhoused
residents, and waste precious public resources in the process. We urge you not to adopt and/or
enforce the Sleeping Ban at least until the City can identify practically accessible and adequate
housing or shelter options for unhoused residents to safely live and store their belongings.
I welcome an opportunity to discuss these matters with you. You may reach me at my email
address tristia.bauman@lawfoundation.org.
Sincerely,
/s/
Tristia Bauman, Directing Attorney