Transcript of Bobby Warren, et al., in opposition to Metropolis of Chico, et al.; ‘It’s about what the legislation is’ – Chico Enterprise-File

Following is the complete transcript of Friday’s hearing in the federal Eastern District Court of California in the case involving the City of Chico and local homeless encampments.

The Enterprise-Record obtained this transcript from the court Monday, and is printing it unedited.

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

BOBBY WARREN, ET AL.,

Plaintiffs,

Sacramento, California

vs.

CITY OF CHICO, ET AL.,

Defendants.

_________________________/ 7

No. 2:21-CV-00640-MCE-DMC Friday, April 23, 2021 10:04 a.m.

TRANSCRIPT OF PROCEEDINGS

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

BEFORE THE HONORABLE MORRISON C. ENGLAND, JR., DISTRICT JUDGE

(Proceedings held via videoconference.)

—oOo—

APPEARANCES:

For the Plaintiffs: LEGAL SERVICES OF NORTHERN CALIFORNIA

517 12th Street

Sacramento, CA 95814

By: SARAH J. STEINHEIMER

Attorney at Law

LEGAL SERVICES OF NORTHERN

CALIFORNIA

541 Normal Avenue

Chico, CA 95928

By: CORY ALBERT TURNER

Attorney at Law

LAW OFFICES OF STEPHEN E.GOLDBERG

Yolo County Law Office

2700 Stonecreek Drive,

Suite 171

Sacramento, CA 95833

By: STEPHEN E. GOLDBERG

Attorney at Law

(Appearances continued on following page)

Proceedings recorded by mechanical stenography, transcript produced by computer-aided transcription

THRESHA SPENCER, OFFICIAL COURT REPORTER, USDC

APPEARANCES CONTINUED

For the Defendants: ALVAREZ-GLASMAN & COLVIN 13181 Crossroads Parkway

North

City of Industry, CA 91746

By: VINCENT CARLTON EWING

ERIC GOLAS SALBERT

Attorneys at Law

Official Court Reporter: Thresha Spencer, CSR, RPR 7

501 I Street

Sacramento, CA 95814

SACRAMENTO, CALIFORNIA, Friday, April 23, 2021, 10:04 AM

(In open court.)

THE CLERK: Calling civil case 21-CV-640, Bobby

Warren, et al., v. City of Chico, et al., on for plaintiff’s 6 motion for preliminary injunction, your Honor.

THE COURT: Thank you. May I have your appearances, please, the plaintiffs first.

MS. STEINHEIMER: Good morning. This is Sarah Steinheimer for all plaintiffs.

THE COURT: Thank you.

MR. GOLDBERG: Stephen Goldberg for all plaintiffs.

THE COURT: Thank you.

MR. TURNER: And Cory Turner for all plaintiffs.

THE COURT: Thank you.

And for the defendants?

MR. EWING: Good morning, your Honor. Vincent Ewing for the defendants.

THE COURT: Thank you.

MR. SALBERT: Good morning, your Honor. Eric Salbert for the defendants.

THE COURT: Thank you. Mr. Colvin, is he present?

MR. EWING: Good morning, your Honor, Vincent Ewing. Mr. Colvin will not be appearing for the defendants. It will be myself and Mr. Salbert.

THE COURT: Thank you. All right. This matter is on today for a preliminary injunction, but before I get started I think there needs to be some things that the Court needs to put on the record, especially in light of the fact that I believe there’s a number of people who are on the public line who need to hear what I’m going to say. And I’m going to say it because of the numerous amount of emails, phone calls, social media comments and posts that have been forwarded to me or sent to me directly, and I think that there needs to be a little bit of a civics lesson here before we get started.

First of all, we’re in a federal court; we’re not in the state superior court at all. I’m an Article III judge appointed by President George W. Bush in 2002, and before that I was a Superior Court judge appointed by Governor Pete Wilson, secured.

I, as an Article III judge, am not beholden to anyone for anything. My appointment is for life, and no one can remove me from this position or this case. So I’m telling you that I’m going to be on this case for the duration.

So if there’s any issues about that, you need to look to the United States Constitution, which is what we’re going to be doing today. This is not an issue about Chico’s ordinances or about the State of California, this is about the United States Constitution and the laws of the Ninth Circuit — of this — circuit.

First of all, just to make it very clear, Chico is located in Butte County. Butte County is one of 58 counties located within the State of California. The State of California is located within the Ninth Circuit, so the precedent that must be followed is the Ninth Circuit, okay?

You’re in federal court now, so any other thoughts, issues, or information that’s been given is irrelevant and incorrect if it doesn’t look directly to the Ninth Circuit and what’s been previously held. And that’s what this Court is going to be looking at for today’s hearing — nothing else.

The desires, wishes, et cetera, of individuals, while they may have some bearing, are not relevant to a Court that looks solely to what the law is and only to what the law is. And whether I agree with the law or not, it’s not my place, I will follow the law regardless.

Now, why are we here today? A request for a temporary restraining order was filed on 11:39 p.m. on Saturday, April 10th, by the plaintiffs. The next morning the judge who was assigned to recuse — and it was thereafter referred or reassigned to this Court on Sunday afternoon. The acts which were being requested to be restrained were going to begin at 8 o’clock the following morning.

That gives zero time, basically, for this Court to prepare to listen to an argument regarding what they’re requesting, and understanding that the Court granted what’s called a temporary restraining order. It only lasts for 14 days at the maximum. Today we’re at day 12, all right? So we are within that time period, and this is not — there’s been no final judgment, and apparently people have the understanding that this Court’s issued a ruling with respect to Chico and its ordinances, but that is not the case. It is simply to maintain status quo until the Court can allow everyone an opportunity to be heard and the Court to research everything. The TRO is an extremely temporarily order, and that is all it is. It does not mean that the merits have been reached or that this Court has made a decision on anything at this time.

At this point — once the temporary restraining order has been issued — the next step is for a preliminary injunction. Again, another temporary order that allows the Court to preserve the status quo for an additional period of time so that the parties can have this case heard on the merits completely heard on the merits. If necessary, witnesses, declarations, other things that could come in.

If there is a preliminary injunction issued today, and I say “if,” all it would do is prohibit the city in enforcing the ordinances until the case could be resolved through additional motions, such as a motion for summary judgment or an actual trial, which could take some months to do, but nothing would be permanent as of today.

The Court’s job at this time today is to determine whether the plaintiffs have shown they’re likely to succeed on the merits. That’s the legal term that we’re looking at, likely to succeed on the merits of their claim against the city’s ordinances, which they allege violates the Eighth Amendment as set forth in the case of Martin v. The City of Boise. That case is going to be heard quite a bit today because that is the prevailing case from the Ninth Circuit, which is controlling to this district, this Court, and to all the parties in this case at this time.

Martin held that as long as there is no option of sleeping indoors, the government cannot criminalize indigent homeless people for sitting, lying, or sleeping outdoors on public property on the false premise that they had an actual choice in the matter. Whether you agree with the Court’s decision or not — which is therefore binding upon all —

THE REPORTER: Sorry. Judge, Judge, can you back up just a little bit? With the paper shuffling, I lost you.

THE COURT: It is the law within a certain period. That’s enough. Martin is the law, and regardless of what the people believe about the law, it is the law and what the Court must follow. In looking now to see whether there has been a showing of the appropriate standard for obtaining a preliminary injunction, the Court will look to a very close factual undertaking to make some determinations as to whether or not it complies with Martin v. Boise.

Again, it’s not about anyone’s feelings about the law; it’s about what the law is and what must be followed. At this point I want to ask the plaintiffs, it appears from the documents that you filed that there are spaces available for the plaintiffs, but the plaintiffs have elected not to utilize those spaces because of the restrictions that have been placed upon them such as no pets, children under a certain age, no drugs, no alcohol, et cetera. Is that the case?

MS. STEINHEIMER: Yes, your Honor. We do believe that there are 35 shelter beds available in the City of Chico; however, those beds — that’s not nearly sufficient for the number of people facing enforcement action from the city, and none of our clients can access those shelter beds because of issues with the shelter or disabilities that our clients have.

THE COURT: When you say “issues with the shelter, what type of issues are you talking about?

MS. STEINHEIMER: So the shelter does not allow dogs, does not allow pets. A number of our clients have pets, either for safety. Furthering, one of our clients is a single woman, she has — two of our clients who are single women have dogs for safety for living outside, and then some of our clients have dogs to help with mental health disabilities. And so we don’t — the shelter has a rule against no pets. And the —

THE COURT: Is that — is that within the Martin case?

MS. STEINHEIMER: So the Martin case discusses that a shelter — when looking at whether there’s available shelter in the community, it is not a matter of simply how many beds. In fact, the Martin case had — the Martin — in Martin, Ada County had over 350 beds, unlike here where there’s only 120 total, and only 35 are open. And so what Martin says is that it’s not just looking at if a bed is available, you must look at whether a person will be denied access to that bed. And, if so, that does not count as available.

Martin discussed a number of different rules that the shelters there had. One — at least one of the shelters had obligations if you wanted to stay past a certain amount of time to participate in a religious program, and the Court said, you know, you can’t compel someone who doesn’t believe in those religious programs to participate.

THE COURT: That’s different because that’s violating the Constitution. You can’t make someone involve themselves in a religious activity that is not their own; whereas, if a person makes a voluntary election not to go because I have a dog or a pet or some other type of situation, it would seem that that’s distinguishable from Martin.

MS. STEINHEIMER: So in Martin one of the rules that the Court held would deny someone was if they left — one of the shelters had a rule that if they’d left during their 17- or 30-day stay, the shelter wouldn’t let them come back. So that — and Martin discussed that that would be a barrier. And so if somebody left, and then the shelter wouldn’t — they were basically violating the rules of the shelter. And so I think that is comparable here to if the shelter has rules which our clients cannot comply with or don’t comply with, as is the case in Martin, then that is a denial. I think, also, a number of our clients have mental health disabilities, your Honor, that prevent them from living in the type of environment that a shelter is.

Congregate shelters are, of course, a very important resource in communities, but as is discussed in two of our declarations, one by a woman whose job is to help people find housing and shelter and one from the Housing Authority director. What they talk about is the shelter — the only shelter that’s open right now is a large — there’s one room for men and there’s one room for women. Everybody sleeps in the same room. There’s — I’m not sure it’s bunk beds now. Pre-COVID it was bunk beds, some people — so that does not work for some people who have posttraumatic stress syndrome or other types of mental health disabilities where they require a level of privacy and lack of noise.

THE COURT: Explain to me how do they have privacy on the streets in open public?

MS. STEINHEIMER: So in the streets they have the ability to walk away, they have the ability to distance themselves —

THE CLERK: Your Honor, I’m sorry to interrupt, but there is an issue with the public line. So if we could just take a very quick break, IT is on trying to figure it out just to make sure that there is public access. We’ve tested it four times.

THE COURT: We want to make sure it is public, so —

THE CLERK: Yes, absolutely. So if everyone could just go dark and turn your mics off, we’ll get this figured out and we can resume. I’m sorry, your Honor.

(Recess.)

THE COURT: We are all back on; we had to take a break. So, Counsel, I was asking you about the issue of people being on the streets and not having, I guess, for lack of a better term, privacy. And you said, “Well, they can get up and walk away,” and that still doesn’t answer my question, though, because the issue is are there available beds located in the shelters within Chico?

MS. STEINHEIMER: Your Honor, I think under Martin the issue is, are there beds that the people who face enforcement can access, and I think forcing someone into a shelter in which they cannot live without having severe symptoms of their disabilities is akin to saying —

THE COURT: Where in Martin does it say that?

MS. STEINHEIMER: Martin does not say that, your Honor. Your Honor, Martin —

THE COURT: That’s my point. There’s nothing in Martin that says that. And so what you’re doing is you’re coming up with a new theory about what Martin says. And Martin is very specific, and it says that, “The Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter,” period. That’s the end of it. It doesn’t say the shelter that they prefer, it doesn’t say the shelter that they would like. It says that they are “unable to obtain shelter.” And I know I’m reading this very narrowly, but every Court that seems to have used this case in the past has read it very narrowly as well. So I’m going to deal with this when I get to the defense side, but I’m trying to keep you narrowed in on what does Martin say. And if there are spots in Chico for people who are homeless to go to, how is Martin implicated?

MS. STEINHEIMER: So Martin is implicated for two reasons regarding the shelter issue. So one, the rule in Martin, which is citing to Jones, of course, said — is really a ratio. How many people are living outside and how many available beds are there? So under that very simple formula, there are not — you know, there’s some discrepancy in the record as to how many people are living outside in Chico right now, but the minimum number in which the city itself has said multiple times is 200 people on the streets. The 2009 Point-In-Time study — survey, sorry, suggests that there’s as many as over 500 people on the streets. There’s only 120 beds within the City of Chico that currently offer temporary emergency housing, and most of those are filled. So, based on just a simple formula that is laid out in the Jones and Martin cases, the city cannot enforce.

In just one of its enforcement actions, Comanche Creek, which it gave notices on April 8th — as of the time that we filed the TRO, there were over 100 people just at that one location. So the enforcement that is targeted toward that one location is not permitted under Martin because there’s just not enough beds for those — for those people.

And then the second reason it’s implicated is I do not think the reasons that Martin lists as to why somebody might be denied shelter are exhaustive. I think Martin stands for the idea that if somebody can’t access shelter, it cannot be considered available to them. And Martin provided a discussion of the facts of that particular set of shelters. And here the facts are different.

THE COURT: Hold on. It says they cannot access it, and I’m going to keep focusing you back to the fact that when you say “cannot access it,” I’m saying, and I want to know is, are you saying that they voluntarily or made a decision not to access it?

MS. STEINHEIMER: So our clients who have dogs, I believe that if they went to the Torres Shelter, they would be denied. That is a denial of a shelter bed. Our clients that have — one of our clients in her declaration discusses how she was in a shelter setting, and she could not stay there because of her disabilities, and she left because of the environment. And so, you know, I mean, we don’t discuss —

THE COURT: The problem is, you said she left, and that was her decision to leave. So to — when you’re looking at getting an extraordinary remedy, such as at this point a preliminary injunction, you’ve got to meet the criteria and say that there’s nothing left, and this is what’s going on. And it appears to the Court at this point that there are available spaces, that people have made decisions — whether you call it voluntary or choices or whatever to not stay there — which would not seem to implicate the very strict ruling of Martin.

MS. STEINHEIMER: Your Honor, if I may regarding the disabilities. You know, I would like to analogize it to the concept of housing. So if somebody is not able to access rental housing because of a disability, you know, they are, in California law, they are protected under the Fair Employment and Housing Act, and it’s considered, you know, somebody’s disabilities may make it difficult for them to access housing. That’s really considered the equivalent of a denial, and so they have protections under the law.

THE COURT: But where does homeless shelter come into play with housing under the State of California? I’ve never seen that case, and I’m asking you if I have it, would you please tell me what that case is? It says that the same rights and responsibilities that are given to housing are given to those that go to homeless shelters.

MS. STEINHEIMER: So I do need to check, your Honor, and so I do — I don’t want to say this with certainty, but I do believe that the California’s Fair Employment and Housing Act does apply to emergency shelters. But, like I said, I will need to check and find a citation for you.

THE COURT: You may be getting into ADA.

MS. STEINHEIMER: Well, right. I mean, the city, of course, has its obligations under ADA and — as well as providing public accommodations.

THE COURT: All right. Do you have anything else?

MS. STEINHEIMER: No, your Honor. I just would like to emphasize that the scope of this issue in Chico is that these beds just opened up. They are filling. They were — there was no — nobody was entering these beds for a number of time because of COVID. There’s a number of practices that are outlined in Marin Hambley’s declaration that could explain why they’re filling slowly. There’s an intake process for certain people that you can only get during the week, you have to come during a certain amount of time.

So this idea that everybody who is outside in Chico does not want shelter, I don’t think it is supported by the declarations the city provided, and I don’t think it’s supported by the numbers of what people are accessing when they are provided opportunities for shelter.

THE COURT: All right. Let me go to the defendants now. The first thing I’m going to ask you is, this Court issued an order on Wednesday ordering you to come up with a list of places where people could go in Chico by 4 p.m. yesterday, but you apparently ignored that. Why?

MR. EWING: Thank you, your Honor. We did not ignore it, we —

THE COURT: Because I have not received anything yet. I got an objection, a bunch of boilerplate that went on and on and on and didn’t do anything, it wasn’t timely. And I should strike it because it does nothing for anything, but I can give it the weight that I think it deserves. But I want to know directly, why didn’t you follow this Court’s order?

MR. EWING: We could not follow the Court’s order, your Honor, because we could not provide the information that you requested. We analyzed the ordinances —

THE COURT: Why? Why? Why? Why can’t you do it? I mean, I’ve spent two weeks with my staff, four attorneys, working on this case alone. Why is it that you couldn’t do what I asked to try to make this a more streamlined hearing today?

And it seems to me, just like you didn’t follow Martin, your city council, and wherever your city attorney is, you didn’t follow Martin, you don’t follow this Court’s orders. What’s the problem with Chico and not following Court’s orders?

MR. EWING: I am the city attorney, your Honor, and we couldn’t submit a document to you yesterday. We could have filed something to you timely, but we couldn’t submit something that consisted of information we didn’t have. So it was — it was our decision to not file that document because the information you requested did not exist.

THE COURT: Okay. That means you don’t have any places that they could go to? Okay. That’s what you’re telling me. But it seems to me the common courtesy when it says to the Court, “I’m sorry, but we can’t get this information and comply with the order.” That would have been very simple. But you’re also now telling me that you don’t have any places for them to go?

MR. EWING: Well, first and foremost, my apologies as the city attorney and on behalf of the City of Chico for not letting the Court know that we could not comply with that order. So please accept our sincere apologies for that. We made a strategic decision, we just didn’t want to provide false information. You’re absolutely correct, there are no places you can go.

THE COURT: I appreciate that, but the thing is when I’m looking at your ordinances, the anti-camping ordinance, 9.20.030; personal property ordinance, 9.20.050; and sit/lie ordinance, 9.44.015. First of all, they seem to be circular, they’re overbroad, and they make it so that no one could comply with any of these ordinances, and you would — and your city would be in violation of Martin v. Boise. And I’m trying to figure out how did you draft these ordinances? I mean, you’re the city attorney now, I don’t think you were at the time — or were you at the time when these were drafted?

MR. EWING: I was. I was the city attorney — I’ve been city attorney since 2014. There was a pause for several months, and then — but I’ve been in the seat.

THE COURT: And you know what Martin v. Boise stands for?

MR. EWING: I do. I believe at the time that —

THE COURT: If you repeat these ordinances together, a person could never sit, sleep, lie on any property or else they would — or obtain shelter or else they would be criminally prosecuted according to these ordinances when you read them, unless the person walked 24 hours a day and had no personal property.

MR. EWING: I don’t disagree with you.

THE COURT: Okay. So that means that you’re violating the Martin v. Boise case which is precedent in this circuit. I mean, that’s what the City of Chico is — and don’t get me wrong here, you know, homelessness is everywhere in California. It’s rampant in Sacramento. I have to go by and I see people defecating on the sidewalk, urinating in the gutters, doing everything. I don’t like it personally.

Chico is not the only city where homelessness is occurring. Every city is doing it; has this issue. But if you’ve noticed, there’s been no one to be able to figure this out and make it work from a constitutional — United States Constitutional basis. And you can’t just make up these ordinances that are violating the United States Constitution. Whether you like it or not, it is — the Eighth Amendment comes into play. And at some point, you know, the due process comes into play as well when it comes to the personal property.

So I’m trying to figure out what in the world did you come up with these ordinances that, to me — and I’ll say it, I have four extremely proficient law clerks who’ve worked on this for a week trying to figure out how to get this reconciled, and none of us can figure this out. How do you justify that?

MR. EWING: So — well, first, your Honor, I personally had the same experience as you walking to City Hall just this week in terms of walking by a pile of fresh excrement. It’s what I experience day to day. What we attempted to do with the ordinances was provide time restrictions — time-based restrictions as they read for certain areas. You have the commercial downtown area, you have the sidewalks, and then primarily you have the parks, and then more recently the riparian areas. So for certain periods of time persons are not able to be in those areas. Our position as the city was you’re not allowed to sit, lie, camp, and so forth 24 hours because for the commercial business you can’t have a tent in front of the business, you can’t have a tent in front of City Hall.

THE COURT: I understand that. I totally, and I have no — you know, I totally understand that. But I’m still looking at the law, and you have — you said they’re campgrounds. Where are the campgrounds?

MR. EWING: Well, we have a park — park ordinances that we’re enforcing that tell people — they’ll tell people in the community, “You can’t camp in the park,” right? So you can be in the park for a certain period of time, but after a certain period of time you’ve got to leave, so that prevents —

THE COURT: But you all have — in your papers you keep referring to “campgrounds.” I want to know where they are, what their name is, and what the address is. And apparently from what you said from yesterday, you couldn’t come up with any. I just want to confirm the fact, you don’t have the campgrounds, do you?

MR. EWING: Right. And I think, just to clarify, I think it is semantical difference. We don’t, and that’s why we didn’t file the papers in response to your order. The semantical difference is we’re referring to campgrounds as places that were made campgrounds by the unsheltered person, such as Comanche Creek.

So that wasn’t something that the city offered, that’s something that just evolved or it just happened. And there’s several areas throughout the city that have become effectively campgrounds, and the city — and they’re the riparian waterways, we have the parks, these are places where the plaintiffs and several other folks have pitched their tents and created communities, and we’re attempting to enforce our ordinances.

THE COURT: But the bottom line is, it seems to me you’re trying to enforce ordinances to make the public feel good. You’re not trying to follow and enforce — or draft ordinances and enforce ordinances that follow the law, which is what I’m here to deal with. And maybe I’m wrong, and I’ll let you tell me that that’s not what the city council and you did when you drafted these ordinances and just said, “Do you know what, this is going to make the public feel good, and then we’ll let the Court figure it out and be the bad guy.”

I don’t have a problem with doing that, but that’s what it seems like. This is not my first rodeo on this, okay? I have dealt with this before, and I have been on the city side, on the police two occasions in Sacramento, and so I understand what happens and how it’s done. But these ordinances, as broad as they are on their face and the way they’re wrapped up and you’re saying we can’t do this, it’s like you’re flaunting the Martin case, you’re flaunting the Court’s authority, and you’re flaunting what the people’s beliefs are, and they don’t know. They don’t know what reality is except what they possibly read in the paper or on social media, which is incorrect.

And it seems to me that the city council and/or you, if you could, should be advising the public of what the situation is, and it’s not just Chico. I mean, you know, things that I’ve heard that have been called in to me about this case are unbelievable. And it’s because they don’t know. And you’re putting the onus on this Court to make the decision for you. That’s —

MR. EWING: Might I respond, your Honor?

THE COURT: That’s what it comes down to, Counsel. And I know that there are a lot of people listening to this and there’s going to be a lot of probably publicity up in your area about it, but so be it. I mean, that’s what it is, and that’s why I said earlier I’m Article III, and I don’t have to worry about it. You can’t recall me, you can’t get rid of me, I’m going to be here. Just so everybody knows, regardless of what happens today, this case is not over. It’s going to go on whether it goes to summary judgment or to a trial. It’s not over.

The city has potential liability here. I think you all know that if things continue on the way they are, there could be potential liability for the city. So if you want to go on and keep doing that, that’s fine, that’s your business, that’s the city’s business. But, you know, we’re going to have to deal with this one way or another. I’m not going to play the game. I’m going to do what the law says regardless of what everybody else thinks about it, and we’ll go from there. That’s the oath I took, and that’s what I promised President Bush, and that’s what I’m going to do period.

And I’m just disappointed that these ordinances that, on their face, are just — they’re invalid. You can’t do what you’re doing on its face. But, you know — and then you’ve got law enforcement enforcing it, so you’re criminalizing people, which is a direct violation of Martin because they don’t have a place to live.

But, on the other hand — and I’ve got to say, I’ll go back to the plaintiffs, they can’t say that they’re being turned away because there is no place to go, they’ve made decisions not to go there.

MS. STEINHEIMER: If I may, your Honor, I was able to find the cites that I was alluding to earlier regarding disability in shelters. May I provide those to you?

THE COURT: Go ahead.

MS. STEINHEIMER: So under California’s Fair Employment and Housing Act there is a set of regulations, and those regulations do explicitly include shelters and emergency shelters, domestic violence shelters as housing accommodations, and that is at the California — I’m sorry, I only have part of the cite in front of me, I apologize. It’s the California Code of Regulations — I don’t have the section — 12005.

THE COURT: You’re citing this to me in federal court?

MS. STEINHEIMER: Well, I’m citing it to you, your Honor, for the idea that the Torres Shelter is denying — is — people —

THE COURT: Do you know what I’m saying? You’re citing state law to me —

MS. STEINHEIMER: Yes.

THE COURT: — in a federal court action that was brought by the Legal Services of Northern California. Why am I going to listen to what the State of California says?

MS. STEINHEIMER: So the reason I’m citing it, your Honor, is because the Torres Shelter — or any shelter in the City of Chico — does have — it is blocking access, it is denying people with disabilities under California law if they are not able to accommodate somebody’s disability. So that is 1a type of denial under the law. That is why I’m citing it to you.

THE COURT: Okay.

MS. STEINHEIMER: And Torres must still follow it. It’s not binding on you, your Honor, but Torres — it is binding on Torres — on the shelters in Chico.

THE COURT: Okay. All right. Let me go back to the city again. I just want to confirm, once again from the city, that there are no specific campgrounds, other than the ones that the homeless have made up on their own at some location, which is what I don’t know where they are because I haven’t gotten any names or addresses, but those are the ones that the law enforcement is using these ordinances to move them out of; is that correct?

MR. EWING: That’s correct, your Honor, and that’s why we couldn’t respond to your order. And again, I’ve explained the circumstances surrounding that, and if I could briefly just address the comments about the ordinance and complying with Boise. It is not our intent not to follow the law. We looked at our beds, we tried to — we tried to strike a balance considering the problem and — I shouldn’t say — considering the circumstances we were faced with at the time that we were drafting — and I would remind the Court that the drafting of those ordinances didn’t just happen yesterday, this happened over a period of years ago.

And now here we are in 2021, I think that we started drafting maybe around ’17, ’18. So we, too, are trying to strike the balance, your Honor. And we have argued in our papers, as you’ve read, we have beds available. The plaintiffs are not accessing those beds. We — you know, we rely upon the narrow interpretation of Boise with respect to those beds, and we are aware that this is a challenge for many communities, and we are — we’re willing to work on this challenge, and this is a point that I wanted to make clear to the Court today, that’s where we are. We’re willing to work on this challenge.

We didn’t have anything responsive to your specific request, but it is our intent as the city to work on this challenge, whether ordered by you or through our cooperative effort with the plaintiffs to achieve some sort of solution to the issue that we’re facing today.

THE COURT: You know, I guess I’m kind of stunned at where we are right now, because, like I said, I’ve worked on these cases in Sacramento, and I have generally held in favor of the city, but they had — they were more tightly written and were willing to work on getting something done and where we are now. And I’m — it’s — and maybe it’s based upon all the comments that I’ve received and the things that I’ve read and the phone calls that maybe it’s different in Chico. Okay, maybe that’s the way it is and you have to work with your constituency.

Well, I think the constituency needs to be educated about what the law is, and what you may want and what you think should happen is one thing. I think certain things should happen, but I can’t order it. I totally agree. I mean, and where you’re saying to me right now, it sounds like you understand and agree that there needs to be work done on this. Yes? You’re shaking your head. Is that yes?

MR. EWING: I agree, there needs to be — there needs to be work done on this, and we’re willing to do the work on this.

THE COURT: So — I mean, what are you saying to me right now? I mean, are you saying that the plaintiffs should have an injunction?

MR. EWING: I’m — I’m not. I’ve argued against that, I’ll let the papers speak for themselves, but I would ask if the Court is contemplating an order in these circumstances, I would suggest and offer to the plaintiff an opportunity and a period of time to work out this issue — the issue that is before the Court today, to try to achieve a solution that both sides can agree upon.

THE COURT: Okay. The plaintiffs, are you willing to do that?

MS. STEINHEIMER: Yes, we are willing to speak with them, of course.

THE COURT: All right. I need to take a look at some things, and I’m going to break out for about ten minutes. Madam Clerk, would you put me into the breakout, please.

THE CLERK: Yes, your Honor. Actually, I’m going to put all the non-staff into the waiting room. Just one second.

THE COURT: Just do it.

THE CLERK: So, Counsel, I’m going to put you back into the waiting room until the case is resumed.

(Recess.)

THE CLERK: Recalling case 21, 640, Bobby Warren, et 19 al. v. City of Chico, et al., on for plaintiff’s motion for 20 preliminary injunction, your Honor.

THE COURT: All right, Counsel. I’ve given this a good deal of thought, and I think that under the circumstances rather than issuing a preliminary injunction or not issuing a preliminary injunction is not going to be something that’s going to be helpful as this case progresses along.

Because, as I’ve said, this case is not over — not going to be over today no matter what. This is going to move on, and the best thing that can happen, I believe at this time, is for the parties to try to come to a resolution on their own that the Court can sign off on so that we don’t have to go through this.

Like I said, this is not my first time going through this with ordinances and cities, and it doesn’t always work out well for either party. And I think that we’re still — that would be a good thing. Counsel, are you all willing to work on this for a period of time? I’m looking at three weeks at this time.

MS. STEINHEIMER: Your Honor, may I ask, are you saying that you would extend the temporary restraining order for that time for us to talk?

THE COURT: Yes.

MS. STEINHEIMER: Okay. We are willing to do that — the plaintiffs are willing to do that —

MR. EWING: Yes.

MS. STEINHEIMER: — with the order extended?

MR. EWING: Yes for the defendants.

THE COURT: All right, fine.

Madam Clerk, what’s the date again?

THE CLERK: I was muted. The continuance date, your Honor, will be Friday, May 14th, 2021, at 10 a.m. and conducted by Zoom video.

THE COURT: All right. And, Counsel, I would appreciate a courtesy, that a week before that I get at least a paragraph. I’m not asking for a brief, but a paragraph on where the discussions are headed so that I have an idea of which way to go on this. Because, honestly, right now I think both sides have issues. Both sides have issues that need to be dealt with, and if, you know — I don’t think anyone would be happy with what I came up with today based upon what I’ve heard.

So I think this is the best thing for you to do, and I appreciate it. And the reasons and grounds for granting the temporary restraining order initially will remain in full force and effect and will go until that particular date, and we will have that hearing at that point in time. All right? If there’s nothing else, Counsel, court will be adjourned. Thank you very much.

MS. STEINHEIMER: Thank you.

(Proceedings adjourned: 11:11 a.m.)