SAN DIEGO (CN) —A dozen people were arrested last weekend on misdemeanor charges of feeding homeless people: giving apples and bags of chips to people in the San Diego suburb of El Cajon. Attorneys say such laws are unconstitutional.
The City Council of El Cajon (pop. 104,000), 19 miles east of San Diego approved the law in October last year in response to an outbreak of hepatitis A that killed 20 people and infected hundreds. Hepatitis A is most often spread through contaminated food, but contact with an infected person and poor sanitation are believed to have contributed to the local outbreak.
El Cajon Mayor Bill Wells said the ordinance was passed to protect people from the disease. But San Diego County health officials did not recommend banning public “feeding” and have focused on vaccination and sanitation.
The ordinance is temporary and is to be lifted when the county removes the local state of emergency. Three hundred ninety-six people have been hospitalized with hepatitis A in the county, but the number of new cases has dropped significantly recently and the San Diego County Board of Supervisors is expected to withdraw the state of emergency by the end of January.
San Diego attorney Scott Dreher said in a telephone interview a dozen people were arrested over the weekend for sharing food with homeless people in an El Cajon park. Offenders were charged with two misdemeanors, but no one was taken into custody, Dreher said.
The attorney said Mayor Wells has made controversial public statements about homelessness in the county — statements that could be used in court to show that the food-sharing law is discriminatory.
“The ordinance states that charitable giving of food is illegal but not other types of food sharing,” Dreher said, citing a list of exemptions that includes birthday parties, family reunions and sports events.
“If what you want to do is protect the public health, why would you phrase it that way?” he asked.
Many cities across the country have enacted similar food-sharing bans, which often have been found unconstitutional.
Tristia Bauman, a senior attorney at the National Law Center on Homelessness & Poverty, told Courthouse News that of the 187 cities with laws that criminalize homelessness the law center is tracking, 6 percent have food-sharing bans.
“These types of bans are enacted with the intent to push visibly homeless people out of public spaces,” Bauman said.
“The reality is this law was not passed in response to a public health crisis; it’s not rationally related to solving the crisis. Pointing to a public health crisis is used as a pretext to support the law.”
Courts overturned laws against food sharing in Philadelphia, Dallas and elsewhere, after challenges from religious groups who said their members were following their beliefs.
Bauman said the legal argument for religious freedom shares elements with freedom of speech.
Break the Ban organizer Mark Lane said the group opposing El Cajon’s ordinance intends to do just that.
“My political speech tells me I should feed homeless people and they’re infringing that,” Lane said. “The government cannot and should not tell me who I can share my food with.”
Lane said the people charged with violating the ordinance will ask that the charges be dismissed and seek an injunction against enforcement of the law.
The San Diego and Imperial Counties chapter of the American Civil Liberties Union sent a letter to El Cajon in December, asking that it reconsider the ban.
“By prohibiting food sharing only when done for ‘charitable purposes,’ El Cajon is regulating food sharing because of its expressive content, punishing only those who share food to express their religious or political beliefs in ministry or charity but not those who share food for other purposes,” San Diego ACLU legal director David Loy said in a statement.
Break the Ban plans to hand out food in El Cajon again on Saturday, Jan. 27.
El Cajon, or the Big Box, is named for the city’s geography, in a big canyon.