At the Crackdown of Dawn: SA Police Bust Homeless in last 15 minutes of Occupy Protest

Occupy Santa Ana at Necessity Village

The evening before the bust, Occupy Santa Ana members celebrate a successful week of protest action.

Occupy Santa Ana’s “Necessity Village” protest action — designed to push the argument that people have biological needs to sleep and eliminate body waste and that the City should facilitate rather than penalize their doing so safely — ended today at 6:00 a.m.  Unfortunately for several homeless people joining activists in sleeping on the lawn, Santa Ana Police arrived at 5:45 a.m., as people were folding up blankets, and cited them for a violation of the Municipal Code.    As an organizer of Necessity Village recounted it to other participants (lightly edited here):

This Morning [Tuesday, April 17] at 5:45 am at least 3 homeless people were ticketed in the Civic Center walk of honor, and a warning was given in Necessity Village by police officer Esparza.  When questioned he explained that he had been on vacation for a week, and we were all in violation of the municipal code and would be ticketed for our activity.

When questioned by one Occupier as to the reason behind the sudden show of force on the last day of the Occupy Santa Ana action, one of the officers stated that he had been in the City Hall meeting attended by Occupiers the night before. At the meeting the members of City Hall had been asked point blank if “Necessity Village” (N.V) was a legal or illegal act, to which the Board members refused to respond.

The response came this morning as the homeless in “Necessity Village” were folding up their beds. Everyone at N.V. was given a warning this morning at 5:45 by two SAPD Officers. They proceeded to walk PAST the group folding up blankets in Necessity Village towards Broadway and handed out 3-4 camping tickets.

To Occupiers this ticketing by police seems to be an open retaliation after the week long action where Occupy Santa Ana, set up what has been called Necessity Village after the Armory—the only winter emergency shelter in Orange County closed putting hundreds of homeless back onto the city streets without anywhere else to go. Therefore beginning on April 10th, Occupy Santa Ana, in an effort to raise awareness and support within the City of Santa Ana, Orange County, and the community at large, demonstrating that sleeping is a fundamental human right were startled after a week of the Santa Ana Police Department turning a blind eye on the OSA action, then coming out in a show of force on day seven.

Occupy Santa Ana is calling an emergency GA TONIGHT to discuss our next move. Will there be a DAY 8 of N.V., in response to SAPD’s show up in force, will OSA engage in civil disobedience. We’ve gotten by for seven days because “they let us”. The inconsistency of the police in this case of enforcing the law shows that the practice is discriminatory.

[Another OSA participant] wrote: “Please. Several homeless people hugged me today, crying, and thanking all of us for what we have done for them: peace of mind. They were begging us to come back for another week or more. They are the reason we staged this action and we need to follow up the way through. Come to GA tonight and lets figure out our next step.”

The person who asked the City Council whether this action was illegal was me.  Here’s a video of the encounter.

Video streaming by Ustream

(Yes, I could stand to lose some weight.  Thanks for noticing!)

Here was my logic in asking the question.  There is real doubt over whether the city can enforce its ordinance against homeless people in the city — often sent there by other cities who use Santa Ana as the County’s “dumping ground” of the homeless, so I don’t necessarily assign the city of Santa Ana itself even the majority of blame here — because of what is known as the “Necessity Defense.”  If you have no alternative to an action such as a trespass, your engaging in that action may, under certain limited conditions, be tolerated.  (Note: this is NOT intended as legal advice for any individual reading this; do NOT assume that you could necessarily raise this defense successfully just because it makes sense to you that you should be able to.)

The fact that the City had been allowing a fairly high-profile protest to take place for six days, with at least one officer explaining that the reason for people there not being cited was that (as reported in the Register) they had been doing nothing illegal — certainly raises the reasonable inference that the City recognized the legitimacy of the Necessity Defense.  If that was true, then on behalf of the homeless in the area I certainly wanted to know.  After all, they would prefer to sleep in safety and security, in a group where they could be easily monitored, rather than hidden away individually where they might be easy prey for human predators.

Aside from the City Council, the City Attorney and City Manager — himself the former Police Chief — were present at the meeting.  It seemed like a good place to get answers.  The Council had interacted with two speakers earlier in the Public Comment period, so it did not seem that asking them such a question would set a bad precedent.

For those who think that asking the Council whether or not an action was legal, here’s a thought experiment.  Imagine that I had asked them whether it was legal for Occupy to spray-paint graffiti on public buildings.  Do you really believe that they would simply have sat their quietly, with no member of Council self-righteously standing up to say that such a practice would not be tolerated?  (I have some wilder examples of questions about legality that I might have asked, but to hear them you’ll have to show up to the General Assembly mentioned by the OSA writer above.)

I think that a reasonable person would infer that no one on the Council wanted to “set me straight” about the law, even as I asked for “fair warning” regarding our actions in light of police acceptance of them, because they did not know the answer.  And if they didn’t know the answer, then it’s hard to believe that the activists and homeless taking part in the action themselves should know the answer.

The idea that, shortly before a seventh night of political action would begin, I should set up seven different private meetings with individual Council members to get their private opinions is, I think, odd.  I was looking for a public statement because I wanted other people to hear it themselves, not mediated by my coming out of a meeting and saying “Claudia Alvarez says that it’s OK!”  Nor, as some seem to think, was I lobbying people on Council to take any particular action.  I simply wanted a statement of the Council members’ understanding of the law.  That seemed pretty straightforward.

I was informed that this was the new City Attorney’s first day on the job at a Council meeting; if so, I’m disturbed at the first foot put forward.  The “Brown Act” — a very important transparency law, the Council’s reliance on which is somewhat ironic given the Council’s cool reception to a transparency proposal later on the meeting — is designed to prevent a majority council members (directly or through “cut-outs” or messengers) from talking about current or potential agenda items outside of public view.  There was no agenda item addressing the factual question of whether Necessity Village violated the law; nor do I think that there could be an agenda item on this factual — rather than policy — question.

What did the City Attorney imagine that the Council was going to do — vote on whether their own current understanding is that this proposed seventh day of protest was illegal?  They can vote on whether to make it illegal; they can vote on whether to make it legal; they can’t vote on whether it is currently legal.  That’s not a matter of policy, but a matter of fact — something to which citizens and residents have a right to be informed about before taking an action that the City Council, City Staff, and City Police knew that they were going to be taking, and that at least one officer had said or implied was legal.

(As it happens, there was a possible Brown Act violation during the “Public Comment” portion of the meeting, but I’m not yet going to discuss that here.  I’ll add, just to stick the digressions together, that while Sgt. Esparza claimed to have been on “vacation” — which is why no one from the SAPD had thought to notify Occupy Santa Ana of the illegal nature of Necessity Village — at least one Occupier reports having seen him at Necessity Village previously in the week.  I’d love to know the truth about that.)

Note that the comments in the Register were not that the police would be using their discretion not to enforce a law that they felt was in effect; that, while raising its own questions, would make some sense.  It is the statement that the protesters and homeless were not breaking any law, combined with the later last-minute show of force to send the message that they were breaking the law, that raises serious questions about any prosecution related to actions taken at Necessity Village (and beyond.)

Getting a punch in on an opponent when the bell has rung and the opponent is walking away is considered to be bad form.  What the police did with their last-moment sweep — targeted only at the homeless, not at the Occupiers who had organized and promoted the action but might have more resources and sympathy to fight against wrongful police action — was a bit like that sort of late punch.  Luckily for Occupy Santa Ana, if it wants to pursue legal options, the silence of the City Council followed by the reappearance of Sgt. Esparza after his “vacation” could give it an excellent opportunity to do so.

[Disclosures: aside from the interests noted in the story itself and the usual ones about my being a candidate for State Senate and Civic Liaison for Occupy Orange County, I should note that I have met and been in contact with Occupy Santa Ana before, during, and now after the Necessity Village action.  I don’t think that I would be considered a “member” of Occupy Santa Ana, though, and I do not speak for that group (or for Occupy Orange County) here and did not speak for them at the Council Meeting.]

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)