Does proposed Fresno law protect accessibility for disabled or criminalize homeless?

The city of Fresno is considering imposing stricter limitations on where the homeless can set up camp — arguing that the measures are necessary to promote public safety and comply with federal disability rights laws.

But disability rights advocates, homeless advocates and unhoused residents say the proposed rule would criminalize homelessness. They say if the city is concerned about disability rights, it could take more substantive measures to improve access for disabled Fresno residents.

Introduced by Councilmembers Garry Bredefeld of District 6 and Miguel Arias of District 3, the proposed ordinance would prohibit impeding sidewalks, streets or other public-right-of-way within 500 feet of sensitive areas such as schools, childcare facilities, public parks and public libraries, as well as the city’s warming centers, cooling centers, and city-permitted shelters for the unhoused. While there are no explicit fines or penalties associated with the ordinance, city leaders and staff have discretion to enforce the rule.

The first reading of the ordinance passed in an initial 6-1 vote last Thursday. Council Vice President Annalisa Perea, who cast the sold no vote, said the ordinance was just “moving a problem” without “actually offering anyone a solution.”

City council members support the ordinance for different reasons. Bredefeld said the ordinance is about “making our streets and community safe,” while Arias said that the ordinance is meant to “protect children and the areas where they visit most of the time when accompanied,” such as libraries, school sites and childcare facilities. He also said it would also help unhoused individuals that are disabled when they try to access the city’s warming centers, cooling centers, and shelters.

“Approximately half of the unhoused that we serve have some level of disability: some of them have physical disabilities, they use walkers, wheelchairs,” Arias said. “We want to make sure that these paths to these facilities could remain clear of any encampments or anyone obstructing that access.”

City Attorney Andrew Janz offered another reason for the proposal. He said last Thursday that Fresno is “trying to be forward-thinking in limiting liability to the city by making sure that these sidewalks are ADA (Americans with Disability Act) accessible.”

Originally passed in 1990, the federal ADA protects people with disabilities from discrimination. Title II of the ADA requires state and local governments to ensure that people with disabilities have access to the pedestrian routes in the public right of way.

Janz pointed to recent lawsuits against other cities across the state and country during last Thursday’s city council discussion. In February, two disabled residents sued the county and city of Sacramento, arguing that homeless camps that have taken over wide swaths of city sidewalks make it impossible for them to navigate the area and put their safety at risk.

Meanwhile, the city of Portland recently reached a tentative settlement agreement in a lawsuit that claimed the city is violating the ADA by failing to prevent homeless camping along its sidewalks. If the settlement is approved, the city will be required to remove at least 500 sidewalk camps per year as well as allocate $3 million annually toward removals, KGW8 reported.

Janz told The Bee in a text message last Friday that the city has not received any formal ADA complaints regarding people having their possessions on the sidewalks. But Arias told The Bee on Tuesday that he has received verbal ADA compliance complaints from the general public about accessibility to shelters, community centers, and sidewalks.

Does law aim to make Fresno streets more ADA compliant?

But critics say this ordinance doesn’t help disabled people in a meaningful way.

Addressing city council from a wheelchair last Thursday, Rain Chamberlain — a formerly homeless individual who leads the nonprofit organization Navigating Structures — said they have spent years working on sidewalk accessibility issues in the city of Fresno. The things that limit accessibility, Chamberlain said, is the city not building enough sidewalks, the lack of maintenance on sidewalks with tree roots growing under them, and car dealerships parking their cars for sale on the sidewalks.

“How dare you all use ADA (and use me) as an excuse to sit there and penalize people that are trying to survive,” they said.

Greg Cramer, a senior legislative advocate with Disability Rights California, a nonprofit with over 40 years defending the rights and opportunities of people with disabilities, said Fresno’s ordinance is “troubling” and “cruel.”

“Obviously encampments pose certain accessibility and mobility issues for users of sidewalks,” he said. “However, I think it’s just a convenient scapegoat for local governments and state governments and other elected officials to move forward with sweeping encampments and displacing folks from where they’re at.”

According to the National Law Center on Homelessness and Poverty, 1 in 85 adults with disabilities experienced sheltered homelessness compared to 1 in 344 adults without disabilities.

While there’s some “merit” to the ordinance’s logic, Cramer said the ordinance’s restrictions and framing “pit(s) the disability community against itself.”

Cramer also said that the Sacramento lawsuit was filed by two private individuals, and doesn’t necessarily represent the voice of the entire disability rights community. “That’s their prerogative,” he said, “but it wasn’t something that was coordinated by us.”

Bredefeld and Arias said they agreed the city should invest in sidewalk infrastructure, but they don’t see the two issues as mutually exclusive.

“We certainly need greater infrastructure and improved infrastructure,” Bredefeld said, “but that’s a separate issue than not allowing people to sleep on a sidewalk or camp out on a sidewalk or impede everyone else’s right to access schools and libraries and cooling centers and childcare centers.”

Investing in ADA-friendly sidewalks and enacting this ordinance is “not an either or,” Arias said. “It’s an and.”

“This ordinance seeks to make sure that ADA-accessible infrastructure that we have built or reconstructed is clear for people to actually use,” he said.

Does proposal limiting encampments criminalize homelessness?

During last Thursday’s council meeting, Councilmember Luis Chavez asked the city attorney if the ordinance would withstand any potential litigation — especially in light of Martin v. City of Boise, a 2019 ruling that says cities cannot punish homeless people for sleeping outside on public property in the absence of adequate alternatives.

“I don’t want to open ourselves up to (a lawsuit),” Chavez said.

Janz said the city was “very intentional” in the ordinance’s language and that it doesn’t have any provisions in the ordinance that imposes any type of fee or tax or fines. “The intention,” he said, “is to give city employees just another tool in their belt to to clear up sidewalks.”

Eric Tars, legal director of the National Homelessness Law Center, said he understands that people are frustrated with encampments, but said elected officials should respond by investing in more affordable housing.

“Unfortunately, too many communities, including apparently Fresno, still try and keep coming back to the criminalization approach,” he said in an interview with The Bee on Wednesday.

Rather than seeing Martin v. Boise as a “limitation,” Tars said elected officials could use the ruling as an opportunity to embrace more “creative solutions” to address homelessness, such as permanent affordable housing, motel conversions, and safe camps.

In response, Arias said he agrees with the Boise ruling, while Bredefeld said the city has “led the efforts” to get people off the streets.

Still, Tars said cities tend to see Martin v. Boise as “something that they have to get around to continue doing what they’ve been doing,” which “hasn’t ended homelessness yet.”

The ordinance will return to the city council for a final vote on June 8.

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