On December 6th, the Fortuna City Council passed an ordinance that would criminalize camping throughout most of the city. Officials say it’s a much-needed remedy to problems caused by unhoused residents, but the American Civil Liberties Union of Northern California says the proposed regulations are both illegal and cruel. 

The ordinance would make it a misdemeanor for any person to camp, occupy camp facilities, or use “camp paraphernalia” in residential and commercial zones that cover the majority of the city’s jurisdiction. It would criminalize camping in any public place between the hours of 6 a.m. and 10 p.m. — plus the hours between 10 p.m. and 6 a.m. “unless there are no sleeping spaces practically available in any shelter or if there does not exist any viable alternative to sleeping in a public place.” 

At the December 6 council meeting, city councilmembers Mike Johnson and Jeremy Stanfield said they hope the ordinance has “teeth” to deal with people who’ve been sleeping in front of businesses and in other public places. Councilmember Mike Losey agreed, saying, “I think our citizens are just going to relish being able to call in and report some of these violations and then see action taken to stop some of this.”  

The Fortuna City Council conducted a second reading of the proposed ordinance and again voted unanimously to implement it. The new anti-camping laws will take effect on Jan. 19th.

As first reported by the Times-Standard, City Attorney Ryan Plotz crafted the ordinance, with input from Fortuna Police Chief Casey Day, to address complaints about the local homeless population while attempting to navigate the terms of the landmark 2018 Martin v. Boise ruling in the U.S. Court of Appeals for the Ninth District.

In that case, the Ninth Circuit panel found that it’s unconstitutional to charge criminal penalties “for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” The Eighth Amendment bars punishing a person “for lacking the means to live out the ‘universal and unavoidable consequences of being human,’” the court found.

Day said his department’s approach will begin with a “soft launch” of the ordinance, offering education and literature to the city’s unhoused offenders while working with partner organizations. Even with habitual offenders — those who refuse to adhere to the city’s ordinance and refuse help — the department plans to issue some kind of “warning citation” before charging them with a crime.

City Councilmember Mike Losey asked whether his officers will “make some effort to determine whether there are beds available in Eureka, say, at the homeless shelter.” Day said it would be their “overarching goal to provide that type of assistance.” In the event that they find someone “open minded” and seeking help, he said “we really do try to facilitate that by making those phone calls and/or even, in past practice, arranging transportation to those facilities.”

The City of Fortuna does not have any homeless shelters, however in interviews with the Outpost, City Manager Merritt Perry and Plotz said police officers have offered to drive people to shelters in Eureka and Arcata. 

The decision has caused many cities across the western United States, including Eureka, to redraft their own anti-camping ordinances. It’s also left a good deal of confusion in its wake as cities grapple with the lack of specifics in the ruling. Plotz said courts have struggled to interpret the language in the Boise decision for not being specific enough to provide real guidance. Fortuna’s ordinance bans camp paraphernalia, which it says “includes, but is not limited to, tents or tent-like structures, cots, hammocks, personal cooking facilities and similar equipment.” The definition explicitly excludes blankets, sleeping bags or bedrolls. A lot will be left up to individual officers’ discretion, he said.

The Boise decision “doesn’t specify a distance in terms of what’s considered available or not,” Plotz said in a phone interview. “It’s one of the areas that Boise has received some criticism from the League of California Cities for not providing that type of detailed guidance.”

Perry told the Outpost that Fortuna approaches the issue of homelessness regionally. When Fortuna recently received $400,000 in CARES Act funding to address homelessness, it wound up giving the money away. They made an agreement with the City of Eureka to put half of that towards their UPLIFT Program, and put the other half towards Arcata House [Partnership].  “So we’ll find a way to get people to where there is shelter” — assuming they’re willing to go, he added.

At the Dec. 6 meeting, Plotz told the council that the Fortuna Police Department has largely stopped criminal enforcement of its anti-camping regulations as a result of the Boise case, and residents have noticed an uptick in the number of people building temporary shelters and lying in front of businesses on Main Street. 

“[…] the aim of the Martin v. Boise case was to prevent cities from criminalizing sitting, sleeping or lying on public property,” says Plotz. “It does not speak to the larger issue of camping and the things that that comes with, including the erection of temporary shelters.”

The ACLU of Northern California disagrees with Plotz’s assessment. In a statement sent to the Outpost last week the organization says:

“The Fortuna City Attorney’s claim that focusing on ‘camping’ rather than “sleeping” makes their ordinance legal is false and misrepresents Martin v. Boise…It covers “the unavoidable consequences of being human,” which includes the need for shelter, cooking, and having some personal possessions available.”

Additionally, the suggestion from one councilman that residents of Fortuna will “relish” calling in to report unhoused people attempting to survive outdoors suggests a concerning lack of empathy for the plight of unhoused people […]”

Day said this ordinance represents a needed update to regulations in “The Friendly City.”  At the public meeting two weeks ago he stated, “I really feel strongly that for the public morale and health and safety of the community, that this revision to the municipal code is exactly what our community needs.”