ACLU says Sacramento’s Measure O has “major loophole” in providing shelter. Supporters of the law disagree

Voters in the city of Sacramento will decide next week on Measure O, a controversial law that, if passed, would ban homeless camps on public property as long as the city offers available shelter space. 

But the ACLU Foundation of Northern California, a civil rights group opposing the measure, says there’s “a major loophole” that could allow the city to avoid offering available shelter space to encampments of four or more people. 

“Basically, if you're a group of four, it could be a misdemeanor for being outside and camping,” John Do, a senior attorney with the ACLU foundation, said in an interview, pointing to the measure’s section on unlawful encampments. “That provision has no requirement to provide shelter.”

Daniel Conway, the lead proponent of Measure O, rejected the ACLU’s analysis. “That’s not my reading of it,” he said. “Any attorney can interpret laws differently.” 

Critics say their concerns rest on how Measure O defines encampments, as “four or more unrelated persons camping together or within 50 feet of each other and without permitted electrical power, permitted running water, and permitted bathroom facilities.” The measure goes on to say that it is “unlawful and a public nuisance for any person” to occupy such a space. 

How the text is interpreted is important, as local governments across California are still required to offer shelter under a 2018 federal court ruling known as Martin v. City of Boise. It prevents public agencies from punishing people for sleeping outside on public property, unless the agency can offer shelter as an alternative. 

Conway, who served as chief-of-staff for former Sacramento Mayor Kevin Johnson, said the section on unlawful encampments was added to give the city tools to reduce the size of large camps that threaten “public health and safety.” But, he said, the federal court ruling already requires that people residing in those camps receive offers of services and shelter before enforcement. 

"At the end of the day, the city and the county are still subject to the Boise decision," Conway said. 

Tim Swanson, a city spokesperson, said in an email the encampment section “does not contain a sheltering obligation,” but that all enforcement must comply with the 2018 federal ruling. He also pointed to the city’s website, which outlines the city’s limitations under the ruling.

Homeless advocates and civil rights groups, including the ACLU, have also taken issue with Measure O’s definition of what can serve as “shelter space” if and when an offer is made. The measure would allow for partially enclosed outdoor locations with protection from the sun and rain, while the Boise ruling described shelter as “indoor spaces.” 

The Measure O definition could result in “a disastrous outdoor, detention-like setting,” the ACLU alleged in an email. 

Sacramento City Council member Katie Valenzuela, who has campaigned against Measure O, said the ACLU analysis “raises a lot of alarms.” She said any change to the Martin vs. Boise court ruling could leave people residing in camps without protection from enforcement. 

Asked about those concerns, Conway said the Sacramento City Council could “on any given night” pass its own ordinance to guarantee the offer of shelter.

“Measure O is not the end-all be-all of homelessness policy,” Conway explained. “It’s really meant to compel meaningful action.” 

The City Council voted in April to place Measure O on the ballot as a compromise after Conway’s business-backed coalition, Sacramentans for Safe and Clean Streets, vowed to gather signatures for a more aggressive initiative. A city staff report said the more aggressive measure would financially cripple the city, costing an additional $192 million in annual spending on shelter spaces beyond the upwards of $40 million the city spends now.

Homeless advocates filed a lawsuit in August to stop the measure from making the ballot, arguing it would violate the Boise decision by criminalizing unhoused people for living outdoors when there isn’t enough indoor shelter. A judge would later rule that the measure could be placed on the ballot.

Contact CapRadio reporter Chris Nichols at [email protected]