The upcoming June 7 election and proposed settlement involving Municipal Code 41.18 could set the course on criminalization for years to come.
In the City of Los Angeles, politicians have made a steady stream of promises to end the homelessness crisis, touting more services and new housing units, but by far the City’s most consistent policy response has been criminalization. Now, LA is at a crossroads where it could either turn away from criminalization or redouble these efforts. And the LA City Attorney will choose which path our city takes.
Over the past decade, the number of people in LA experiencing homelessness has nearly doubled to over 41,000. But the City has spent the vast majority of funds allocated for homelessness on policing, while only 1,524 of the promised 10,000 permanent supportive housing units are in service six years after voters passed a $1 billion housing bond, Proposition HHH, in 2016. Thus, perversely, the City’s actual agenda, in practice, is to punish people experiencing homelessness for the City’s own failure to provide adequate housing options.
The courts have provided the only check against this criminalization agenda, rigorously protecting individuals experiencing homelessness violations of their constitutional rights. In 2006, the U.S. Court of Appeals for the Ninth Circuit struck down the first version of LA’s criminalization ordinance, Municipal Code 41.18, as “cruel and unusual punishment;” the code had prohibited sitting, sleeping, or lying in all public streets or sidewalks at all times and in all places within city limits.
In 2014, the Ninth Circuit struck down another criminalization ordinance, holding that LA’s ordinance prohibiting people from living in their vehicles was unconstitutionally vague. In 2019, as the LA City Council was working to resurrect 41.18, the Ninth Circuit released an unmistakably clear warning that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”
Now, however, the City may have its path to enforcement authority. Last month, the City Council approved a settlement proposal in a case brought by business interests seeking to facilitate enforcement of the new version of Municipal Code 41.18, which allows councilmembers to designate public spaces where sitting, sleeping, or lying in public will be prohibited.
The pending settlement nominally requires the City to prioritize shelter before it begins enforcing the new 41.18, but the exceptions are so broad they swallow the rule. The pending settlement would allow the City to impose criminal penalties for sitting, sleeping, or lying in public once the City has provided sufficient shelter or relocation opportunities for 60% of “shelter appropriate” people experiencing homelessness. The settlement defines “shelter appropriate” people so as not to include people who are “chronically homeless” (38% of the homeless population), have a “substance use disorder” (28% of the homeless population), struggle with “serious mental illness” (25% of the homeless population) or have a “chronic physical illness or disability” (19% of the homeless population).
With all of these exceptions, the number of “shelter appropriate” people will be a small fraction of the unsheltered population, allowing the City to quickly meet the settlement prerequisites and resume enforcement. When enforcement resumes, the people left out of the settlement will be the most vulnerable.
This means that the decision on whether or not to criminalize homelessness will be in the hands of one person: the LA city attorney. The city attorney has the sole authority to enforce LA Municipal Code 41.18 and has the latitude to enforce vigorously, not at all, or somewhere in between.
The purpose of prosecutorial discretion, ideally, is to provide a check against over-criminalization and over-incarceration, particularly to protect people’s constitutional rights. That is why prosecutors have vowed not to enforce, for example, criminal abortion bans and federal marijuana charges in states that have legalized. The LA city attorney has a particularly strong basis not to enforce 41.18 given that the Ninth Circuit has called it “cruel and unusual punishment,” and thus unconstitutional.
Thus, this year’s election of a new city attorney is the most significant choice on the ballot for the homelessness crisis. Compassion and justice demand that we elect a city attorney who firmly commits to non-enforcement of 41.18.
So far, of the seven candidates running for city attorney, only two, Faisal Gill and Sherri Onica Valle Cole, have made this unequivocal commitment. If we care about protecting our most vulnerable — and pushing the City to seek real solutions — we need that commitment from all our candidates.
Correction: An earlier version of this article stated that Faisal Gill is the only city attorney candidate to have committed to non-prosecution of Municipal Code 41.18. City attorney candidate Sherri Onica Valle Cole has also committed to not enforcing 41.18. The article has been updated to correct our error.
Marissa Roy is a staff attorney with the Public Rights Project, a nonprofit that supports local government law offices protecting civil rights and advancing economic justice; a former Deputy City Attorney in the Affirmative Litigation Division of the LA City Attorney’s Office; and a member of the Los Angeles City Attorney Coalition.