Criminalizing Poverty in LA Is No Longer Politically Viable
By: Erin Wisti
Tags: Homelessness, Los Angeles, Analysis, La City Council, Poverty

Analysis

Criminalizing Poverty in LA Is No Longer Politically Viable

LA City Council chambers (Credit: LA City Clerk’s Office)

On November 20, the hashtag #HousekeysNotHandcuffs exploded on Twitter in response to an ongoing debate over Los Angeles’s Municipal Code 41.18. Often called the “sit-lie” law, 41.18 makes sleeping, sitting, or lying in public spaces a criminal offense. While a 2006 court case made 41.18 effectively unenforceable, there have been numerous attempts over the years to reinstate parts of the code. The most recent began this October.

On October 21, a motion was referred to the Homelessness and Poverty Committee that proposed amending Los Angeles’s municipal code to specify times and locations where it would be illegal to sit, lie, and sleep on public property. Perhaps concerned with the optics of criminalizing homelessness in the midst of a pandemic, City Council attempted to push the motion through quickly and without significant press attention. If not for the collective efforts of progressive grassroots organizations throughout LA, they may have succeeded.

The Twitter storm and ensuing backlash effectively nixed City Council’s efforts. This not only marks a massive victory for unhoused residents, it signifies a promising paradigm shift for Los Angeles. With the public developing a growing distaste for political opacity, City Councilmembers are now forced to take demands for a more compassionate city seriously.

Municipal Code 41.18: A Brief History

Municipal Code 41.18 is an ordinance banning people from a number of behaviors deemed a threat to public safety. The original language of 41.18 is incredibly broad and outlaws conduct such as standing in the sidewalk in “such a manner as to annoy or molest” pedestrians and loitering in “any tunnel, pedestrian subway, or on any bridge overpass.” Most nefarious is the aforementioned ban on sleeping in public, which opponents argue effectively outlaws homelessness.

In 2003, the ACLU of Southern California and the National Lawyers Guild filed a case on behalf of an unhoused man named Edward Jones. In 2006, Jones v. The City of Los Angeles came before the Ninth Circuit Court of Appeals. The court upheld a ruling that 41.18 was a violation of the Eighth Amendment, which prohibits cruel and unusual punishment. In the resulting settlement, Los Angeles agreed not to enforce 41.18 until they had provided 1,250 units of permanent public housing.

By 2018, Mayor Eric Garcetti claimed Los Angeles had surpassed that number, but around the same time another case came before the Ninth Circuit Court. Known as Martin v. City of Boise, the case dealt with Idaho laws similar to 41.18. The court once again ruled it was unconstitutional to prosecute unhoused people for sleeping in public spaces. The implications of this ruling made enforcing 41.18 in Los Angeles a legal risk, despite the city having allegedly met previously agreed-upon requirements.

The City of Los Angeles also enforces strict cleaning codes in areas around bridge housing (Credit: Street Watch LA)

In 2019, City Attorney Mike Feuer developed an ordinance to reform 41.18 so it complied with Martin v. Boise. CD13 Councilmember Mitch O’Farrell, chair of the Homelessness and Poverty Committee, brought the motion before the City Council on September 24. The proposal developed specific parameters for enforcing the municipal code, including a ban on street sleeping within 500 feet of parks, schools, and daycare centers. The proposal faced blowback at the time, both from the public at large and other City Council members. The ordinance was sent back to committee for revision, rendering 41.18 once again unenforceable.

Proposed 2020 Changes

In October of 2020, the debate over 41.18 resurfaced. Councilmembers Bob Blumenfield, Monica Rodriguez, Joe Buscaino, and Paul Krekorian introduced a motion that was seconded by Curren Price, Gilbert Cedillo, and John S. Lee. The motion was similar to Feuer’s suggested changes from 2019, proposing repealing the current version of 41.18 and replacing it with a code in compliance with Martin v. City of Boise.

The new code banned numerous behaviors, including:

Sitting or sleeping in public spaces in a manner that restricts passages as required by the Americans with Disabilities Act

Sitting, sleeping, or lying within 500 feet of any shelters opened after January 1, 2018 to provide housing, shelter, supportive services, safe parking, or storage to unhoused people

The storage of personal property in any area where sitting, lying, or sleeping is banned

The code was once again criticized for being too ambiguous, giving police a legal pass to make arrests for arbitrary or unintentional violations. Plus, with more people losing shelter due to COVID-19, supportive services are reaching capacity. In other words, simply being within 500 feet of a shelter does not guarantee access. The code would penalize unhoused individuals for sleeping on the street when alternative options are unavailable.

A Lack of Transparency

The speed at which the revised motion was introduced and put through for a vote was highly atypical.

Usually, when legislation is introduced to City Council, it is moved to the appropriate committee for review. In the case of 41.18, that would be the Homelessness and Poverty Committee, of which Mitch O’Farrell remains chair. However, on October 21, a staffer for Joe Busciano emailed Mitch O’Farrell’s legislative director and requested O’Farrell waive the motion through committee. In just 15 minutes, O’Farrell’s team complied.

On Friday, October 23, City Council President Nury Martinez’s Chief Legislative Director emailed clerk staff Erica Pulst and asked her to prep the motion for a special agenda on October 28. Special agendas are often released early, so the motion could have easily been made public on the 23. However, Pulst replied she would prep the motion first thing Monday morning.

While she presumably followed through on this promise, the Wednesday agenda was not posted until Tuesday. This gave unhoused advocates and concerned citizens only 24 hours notice regarding the October 28 vote — the least amount of time possible to prepare a response. This would undoubtedly help City Council avoid the backlash they faced when introducing similar legislation in 2019.

Despite the short notice, City Council did face harsh public comments on the October 28 meeting. As a result, they delayed voting until November 24.

The Tweet Storm that Stopped the Vote

Despite stopping the vote on the 28, opponents of 41.18 feared that victory would be short-lived. Martinez appeared to have the votes she needed considering seven City Council members had already signed off. However — despite attempts to keep the news under wraps — collective backlash raised widespread public outrage.

Groups like Ktown4All, Street Watch LA, NOlympicsLA, and others (many of whom are members of the Services Not Sweeps coalition) came together to orchestrate a massive Twitter campaign on Friday, November 20. The tweets aimed to educate the public on the history of 41.18 and provide information on submitting written comments and making public comments during the November 24 meeting.

Opponents of 41.18 encouraged residents to demand that City Council either repeal the municipal code outright or adopt a substitute motion introduced by Councilmembers Mike Bonin and David Ryu. While not ideal, the Bonin-Ryu motion offered less Draconian solutions to the homelessness crisis such as identifying tangible housing resources and creating a real-time database of available housing services.

On November 20, Martinez announced on Twitter that City Council would not be voting on the motion on the 24 but rather continuing to discuss the homelessness crisis in the city. That discussion proved contentious, with several former proponents withdrawing or softening their support. Even O’Farrell called the motion “hastily drafted,” despite having allowed it to bypass committee and supporting a nearly identical policy in 2019.

In the end, Martinez announced the motion would be sent to the Homelessness and Poverty Committee for review. Where does the motion stand now? So far, that’s not entirely clear, but there is a good chance it will not go before City Council again until 2021. At that point, a more progressive City Council could kill the motion entirely.

A Positive Sign for the Future

So. Why did City Council reverse course so suddenly?

While we can only speculate, the fact this happened so soon after the November election is telling. The unseating of incumbent David Ryu by progressive candidate Nithya Raman signaled a shift in Los Angeles’s political consciousness. The fact Ryu — one of the most well-known and well-funded City Councilmembers —was defeated by a progressive candidate sent a message. City Councilmembers may be worried about the security of their own positions if they disregard the growing leftist movement. Now, keeping your seat could be contingent on embracing progressive policy. It is particularly surprising O’Farrell, known for his law-and-order rhetoric, flipped.

The clandestine fashion in which the motion was pushed through the system indicates City Council underestimated the current level of political engagement. Martinez rescheduled the vote to a few weeks after the November election, a time when political activism typically tapers off. However, the massive success of the #HousekeysNotHandcuffs campaign made it clear to Martinez and her allies that the people of Los Angeles are indeed paying attention.

The debate over 41.18 is likely not over. However, recent events mean we have every reason to be optimistic about the future. This victory is an indicator that what Los Angeles sees as expedient, electable behavior is changing fast. City Council is now well aware that the left in Los Angeles has been activated, and is not backing down.

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