Genevieve Finn, Malibu Times / SMDP Staff Writer

The paradise of Malibu draws tourists, surfers, Realtors, hoteliers and, of course, those who are unhoused, many of whom claim local ties to the area.

For what seems like forever, those groups have clashed. Homeless individuals have assaulted housed Malibuites; homeless individuals have died in Malibu, many hit by vehicles on PCH. Last November, fires lit by people experiencing homelessness and trying to keep warm caused multiple close calls in Tuna Canyon, causing major safety concerns both for those living in tents there and those living in homes nearby. In the same fire season, in February, a person experiencing homelessness spotted an electrical fire flare up near Malibu Knolls in the darkness and biked to Fire Station 88 to alert firefighters to the blaze.

The city contracts with an outreach group called The People Concern to address issues surrounding homelessness in the community—a population numbering about 150 as of the latest count, with about half living in tents or on the street and half living in vehicles parked along PCH. At 11 a.m. on a Friday, outreach worker Scott Edens spotted a longtime local’s tent behind some foliage.

“Just checking in,” Edens told the man, Don, who greeted him like an old friend. “I know they did a sweep earlier this morning,” Edens said, referring to how officials had cleared the area of homeless people hours earlier. As an outreach worker, one of the ways Edens builds rapport with those he works with is by helping them transport their things if necessary.

Don thanked Edens and said he was doing just fine. The pair talked about the Malibu Library reopening — a key spot for locals experiencing homelessness to charge their phones, use the bathroom and find drinking water and respite from the elements. Edens offered to get Don some padlocks for his things. Don lamented other homeless individuals he had met who had not been as diligent as he had about picking up their trash. Behavior like that, plus smoking and drinking, always worries Don, who is homeless by choice and said he has lived in Malibu since 1977; sooner or later, it triggers a sweep and he’s forced to move along.

Malibu’s story with homelessness goes back just as far as Don’s, and over the years, Malibu has tried many tactics to deal with the issue, ranging from a “No Camping” ordinance to continual camp clearings. Discussions of building a shelter have floated around for several election cycles.

The notion of a shelter polarizes Malibu residents. There’s the question of how to pay for it, the question of whether or not it would actually be frequented (Edens guessed that Don would not go there, given his desire for solitude) and the question of where it should go.

Any conversation about homeless policy in Malibu must begin with a conversation about Martin v. Boise, a 2018 legal decision in Idaho that has shaken up the way governments handle homelessness issues all over the western U.S.

In between 2007 and 2009, six people who had experienced homelessness sued the City of Boise, the capital city of Idaho. They had each been cited by Boise police—and all but one had been jailed—for infractions such as sleeping in public. They argued that it was a cruel and unusual punishment to be cited for doing something they could not help but do as humans in public because of their lack of housing. In a landmark, controversial move, the judge ruled in their favor.

The ruling was specific, Pepperdine Law Professor Jeffrey R. Baker explained.

“It’s not that sleeping in public cannot be illegal, it’s that sleeping in public cannot be illegal if a city provides no alternatives for those people to sleep before first arresting them,” Baker said.

According to Malibu Public Safety Manager Susan Dueñas, the Martin ruling “really put cities’ feet to the fire.” It is one of many rulings that, taken together, constitute a broad movement within courts to decriminalize homelessness. The movement has been bolstered by advocacy groups such as the American Civil Liberties Union (ACLU), which has been aggressive about suing cities.

Baker put a finer point on it.

“What courts are struggling with is the response of criminal law to what is much more of a social and economic and public health problem.” No longer can “the blunt force of the law” enable cities to shuffle their homeless populations between one another.

In the past, the professor explained, lawyers for those experiencing homelessness utilized the notion of protecting private property to sue cities. For example, can the City of LA clear out Skid Row and throw peoples’ tents and possessions in the trash in the process?

But the Martin plaintiffs took a different tack, invoking the Eighth Amendment. Proponents argued that punishing people just for being homeless falls into the same category as chain gangs and solitary confinement: cruel and unusual.

That new legal argument means cities are at square one when it comes to passing ordinances addressing homelessness. Because the Idaho case was upheld by the Ninth Circuit Court of Appeals, it applies to the Western half of the United States, including Southern California, which Baker described as being in a “generational homelessness crisis.” According to the LA Times, last year, more than 1,300 homeless people died in Los Angeles County.

The Martin opinion said cities had to provide a “reasonable alternative” before arresting homeless people for violating “No Camping” and other similar ordinances.

“That’s where we get the phrase ‘alternative sleeping location,’” Dueñas said, referring to a phrase many Malibu officials now often use when talking about homelessness. Many have extrapolated that language to mean constructing a shelter, but that may not be the case.

The opinion was actually much more vague, Baker believed. A Harvard Law Review opinion said that the decision “left cities ample power to police and punish people experiencing homelessness, as well as regulate and restrict their access to public space.”

Cities are going to have to strike out in the legal unknown and try to pass ordinances—and maybe get sued. But, Baker said, sometimes cities bake the cost of a lawsuit into an ordinance to prove a point. Perhaps that cost could be worth finding a solution.

In late December of last year, Council Member Bruce Silverstein proposed an ordinance under which homeless individuals would need to have a city-issued permit in order to camp in any public park or on any public beach or street—that includes those who are sleeping in their cars—and those permits would only be given out to those who state they have nowhere else to go. Silverstein’s ordinance was mainly aimed at those who camp in RVs parked along PCH, who often park long-term, block view corridors and have dumped waste on beaches in the past.

Similarly to Baker, Silverstein believed the Martin decision did not necessarily mandate the construction of a shelter. Martin v. Boise said a city cannot fine people who have nowhere else to go—and, in Silverstein’s view, people who live in cars have the means to go somewhere else simply by driving. In a Facebook post, Silverstein said that Captain Chuck Becerra of the Malibu/Lost Hills Sheriff’s Station had told him he could count on the station’s “full support” regarding the ordinance. Several attempts were made to confirm the statement with Becerra, but he did not reply to repeated phone calls.

Lieutenant Jim Braden of the same sheriff’s department (he ranks beneath Becerra) was much more critical. “No homeless person is coming to City Hall to get a permit,” he said during a council meeting earlier this year.

Right now, homeless people cannot be arrested or moved from public property because the LA County District Attorney’s Office won’t file the arrests, Braden said during a phone interview with The Malibu Times. “In the past, they had a camping ordinance in Malibu that was around for years. We were allowed to write citations for people for sleeping out in public areas,” Braden said. Now, “people want to call us and want us to take legal action with someone. Well, we have to have legal standing to take that action, that’s all.”

In Braden’s simplest terms: “We’re not allowed to make an illegal arrest. We can’t just lock people up.”

“[Malibu] contracts with the sheriff[‘s department],” Dueñas explained. “The district attorney told them not to cite homeless people. We can have any laws we want, but if the DA is not going to file the case, there’s no enforcement.”

“The deputies can do a citation,” she later added, “but if the DA’s not going to prosecute it or do anything with it, they just throw it out. It’s a waste of time; there’s really no point.”

In his proposal, Silverstein wrote that Malibu had “given up on seeking to enforce [the no camping ordinance] in dereliction of the city’s overriding responsibility to protect the health, safety, and welfare of the residents.”

Silverstein’s new ordinance needs to be vetted by the DA—George Gascón—to be effective, Dueñas said. “Otherwise, it will just be unenforceable like our current camping ordinance.”

Alex Bastian, a Special Advisor to the DA’s Office, told The Malibu Times that his office takes “significant” guidance from the constitution and the courts on making decisions about enforcing homelessness.

“What the Boise case indicates is that homelessness is not a crime, nor should it be,” he said. He was unaware of Silverstein’s proposal at the time of speaking, though that did not necessarily mean his office had not received it.

Even if the DA vets it, Malibu could still get sued by advocacy groups like the ACLU. Baker estimated a court case takes 18 months at the minimum, involving staff time and tying up city money. But, the professor reiterated, getting sued doesn’t automatically mean Malibu would lose—just that it would have to fight.

While getting sued is a concern, Dueñas and Baker both emphasized finding a solution to the problem.

“Our biggest concern is protecting the safety of the residents while also assisting the homeless population,” Dueñas said. “The safety of our residents is the number one [priority].”

“It’s a housing problem, a mental health problem, a public health problem. These compounding traumas are so complex and so thoroughly embedded into our systems that to try to respond with the blunt force of criminal [law] is just not enough,” Baker said. “Whatever our public responses have to be, they have to be all of the above.

“If there’s a lesson from the Boise case, it’s that cities, counties, governments have to figure out ways to address homelessness that don’t rely exclusively on criminalizing someone,” he continued. “The question becomes, ‘How are you going to do that in a way that isn’t making someone criminal when they have nowhere else to go?’ That, to me, is a question of imagination and policy and the humanitarian response of a community.”

Back on Edens’ shift last Friday, members of the Malibu homeless community were materializing for lunch, lining up for groceries given out by Malibu Community Assistance Resource Team (CART), a local volunteer group. Edens waved to multiple people he knew well, including a man gliding past on a bike—the man, he said, who had ridden to alert firefighters of that electrical fire in February. Edens unloaded bags, promised to help one man get his medication, asked if another needed a sleeping bag. While most individuals survived on government assistance, Edens said, many still needed help getting medical help or filling other needs. On that day, a team of doctors set up a small COVID testing station.

Several attendees stopped and shared a few words, telling stories of how they ended up in Malibu.

The location of the free meals changes every few months, volunteers said, due to pushback from those living nearby. Edens understands. He has confronted all sorts of emergencies, but even when they’ve escalated—he’s had knives pulled on him before—he doesn’t take it personally.

“On that day, for whatever reason, I represented to that person something from their past that they were struggling with,” Edens said, suggesting perhaps the person had a bad experience with another outreach worker or was a victim of domestic violence from a man. Because of that, Edens added, it is helpful to work alongside his female colleague, Tiffany Stewart.

Similarly, Edens knows that Malibu residents who want the meals moved may have had negative encounters with homeless people in the past.

Don said he had noticed that police had been kinder to him in recent years. Edens postulated that this might have had something to do with the Martin v. Boise court decision, but Don chalked it up to his age and diligence in attending court for any outstanding warrants (for violating “No Camping” ordinances and other similar laws).

“When I was young, it was like the cop had a second sense for if I had a warrant,” he said—officers would stop him often. Now, he described some deputies as “jolly, jolly, jolly” to him.

Don was not present at the lunch, so Edens stopped back to check in on him later in the afternoon. He was still in his tent, hidden away, happy to be solo.

This story was published as part of a partnership between the Malibu Times and SMDP