BILL ANALYSIS                                                                                                                                                                                                    ”






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          AB 312 (Lowenthal)
          As Amended April 7, 2011
          Hearing Date: June 7, 2011
          Fiscal: Yes
          Urgency: No
          EDO
                    

                                        SUBJECT
                                           
                           Civil Rights:  Homeless Persons

                                      DESCRIPTION  

          Existing law, the Ralph Civil Rights Act, provides that all 
          persons have the right to be free from any violence because of 
          political affiliation or because of any characteristic listed in 
          the Unruh Civil Rights Act.  This bill would add homeless 
          persons to the list of individuals protected from violence and 
          intimidation under the Ralph Civil Rights Act, thereby providing 
          civil remedies to homeless persons who are injured as a result 
          of such violence. 

                                      BACKGROUND  

          In 2001, the California State Senate adopted SR 18 (Burton) in 
          response to growing concerns about the increase in violence 
          toward homeless persons. SR 18 requested the Attorney General to 
          assess the extent of crimes committed against homeless persons 
          and to develop a plan to improve prevention, reporting, 
          apprehension, and prosecution of these crimes.  The report, 
          "Crimes Committed Against Homeless Persons," was presented to 
          the Legislature in 2002. (See 
           http://ag.ca.gov/cjsc/publications/misc/SR18net/preface.pdf  .) 
          Data from the report demonstrated that violence against homeless 
          persons occurs at alarming rates.  Sixty-six percent of the 
          homeless participants in the report's survey said they were 
          victims of crime during the year, 31 percent said they were 
          victimized more than five times.  Seventy-five percent of the 
          victims said they were assaulted, including 23 percent who said 
          they were raped.  Of assault victims, 76 percent said it 
                                                                (more)



          AB 312 (Lowenthal)
          Page 2 of ?



          happened more than once. 

          In response to this report and other reports documenting the 
          rise in violence towards homeless individuals, there have been 
          legislative attempts to expand the existing scope of hate crimes 
          to also include those committed against the victim because they 
          were or were perceived to be homeless.  (See SB 122 (Steinberg) 
          of the 2007-2008 Legislative Session.)  However, these attempts 
          have been unsuccessful to date due in large part to the state's 
          severe prison and jail overcrowding crisis. 

          This bill is substantially similar to AB 2706 (Lowenthal, 2010) 
          which was vetoed by the Governor.  (See Comment 5 for the veto 
          message.)

                                CHANGES TO EXISTING LAW
           
           Existing law  , the Ralph Civil Rights Act, provides that all 
          persons within the jurisdiction of this state have the right to 
          be free from any violence, or intimidation by threat of 
          violence, committed against their persons or property because of 
          personal or other characteristics or statuses, such as political 
          affiliation, sex, race, color, religion, marital status, sexual 
          orientation, or position in a labor dispute.  (Civ. Code Sec. 
          51.7.)

           Existing law  provides that a person who violates the Ralph Civil 
          Rights Act or aids, incites, or conspires in that act, is liable 
          for actual damages suffered by any person denied that right, as 
          well as a civil penalty and attorney's fees.  (Civ. Code Sec. 
          52(b).)

           Existing law  provides that whenever there is reasonable cause to 
          believe that any person or group of persons is engaged in 
          conduct of resistance to the full enjoyment of any of the 
          foregoing rights the Attorney General, any district attorney or 
          city attorney, or any person aggrieved by the conduct may bring 
          a civil action.  (Civ. Code Sec. 52(c).)

           Existing law  provides that a person whose enjoyment of legal 
          rights has been interfered with, or attempted to be interfered 
          with, may bring a civil action for damages, including injunctive 
          relief, and other appropriate equitable relief.  (Civ. Code Sec. 
          52.1.)

           This bill  would provide that the protections and remedies of the 
                                                                      



          AB 312 (Lowenthal)
          Page 3 of ?



          Ralph Civil Rights Act include violence or intimidation by 
          threat of violence committed against a person or property 
          because the person is or is perceived to be homeless. 

           This bill  would define "homeless person" to mean: a person who 
          does not have a fixed, regular, and adequate nighttime 
          residence; or a person who has a nighttime residence that 
          constitutes any of the following: (1) a supervised, publicly or 
          privately operated shelter designated to provide temporary 
          living accommodations, including, but not limited to, welfare 
          hotels, congregate shelters, and transitional housing; (2) an 
          institution that provides a temporary residence for individuals 
          intended to be institutionalized; or (3) a public or private 
          building or designated area that is not ordinarily designed for, 
          or ordinarily used for, sleeping accommodations for persons.

           This bill  would not be construed to enlarge or diminish an 
          existing legal duty, if any, by an owner of residential property 
          to protect a homeless person from violence, or intimidation by 
          threats of violence, because the homeless person is physically 
          present on the owner's property or other property controlled by 
          the owner incidental to the ownership of the rental property. 
           This bill  would not be construed to prohibit or restrict a 
          public agency from the lawful enforcement of any law, and a 
          public agency shall not be subject to civil liability for that 
          lawful enforcement. 
          
                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            There are an estimated 157,000 homeless people in California, 
            perhaps the most vulnerable population in the state.  They are 
            more likely to suffer from mental and physical illness, and 
            less likely to receive comprehensive medical treatment.  Even 
            worse, they are the population most likely to be the target of 
            violent attacks.  In the last year alone, homeless people have 
            been set on fire, stabbed, shot, and beaten with baseball 
            bats.  California has the second-highest rate of violence 
            against the homeless in the nation. 

            Young adults, primarily in their teens, are the most common 
            perpetrators of violence against the homeless: 43% are between 
            the ages of 13 and 19 and nearly 3 out of 4 of the attackers 
                                                                      



          AB 312 (Lowenthal)
          Page 4 of ?



            are under 25.  While the motives for these attacks are not 
            always clear, it is obvious that many were committed because 
            the victim was homeless or because the homeless were more 
            vulnerable. 

            The perpetrators may perceive the homeless as easy defenseless 
            targets.  They may see the homeless as second-class citizens, 
            unworthy of respect or mercy.  These criminals may prey on the 
            homeless because they know the likelihood of suffering legal 
            consequences from their actions is not as high as it would be 
            if they assaulted another member of the community.  Many 
            cities and states have done something to address this issue.  
            California has attempted to add "homeless status" to the hate 
            crimes list in the past.  Unfortunately, due to the 
            overcrowding of prisons this issue has failed. 

          The United States Veterans Initiative (U.S. VETS) writes in 
          support of this bill, "Of California's roughly 157,000 homeless 
          people, nearly 30,000 are veterans.  These men and women endure 
          the second-highest rate of violence against the homeless in the 
          United States . . . These attacks are motivated not only by the 
          vulnerability of the victims, but also by the perpetrators' 
          disdain and disrespect for the simple fact of their 
          homelessness. . . There is no question that the homeless 
          population is particularly vulnerable to violent crimes.  It is 
          encouraging that ›this bill] enshrines in state law the fact 
          that homeless people have the same right as anyone else to live 
          a life free of violence."

          In support of this bill, the California Peace Officers' 
          Association (CPOA) writes, "If enacted, this legislation will 
          serve as a significant deterrent to violent criminal activity 
          against the homeless, a distinctly vulnerable population.  Fewer 
          attacks on homeless persons will ultimately result in improved 
          resourcing for California's law enforcement agencies.   CPOA 
          reflects the breadth of the public safety community, as it has 
          more than 3,000 members of all ranks from municipal, county, 
          state, and federal law enforcement agencies from throughout the 
          ›S]tate of California."

          Also in support, the Consumer Attorneys of California writes, 
          "›This bill] serves to amplify protections afforded to the 
          homeless by granting this particularly vulnerable segment of our 
          community enhanced civil protections.  Specifically, ›this bill] 
          specifies that homeless persons, as defined, are entitled to the 
          personal rights set forth under existing California Civil Code.  
                                                                      



          AB 312 (Lowenthal)
          Page 5 of ?



          By granting the homeless the right to seek civil recovery if 
          they suffer an act of violence that was perpetrated against them 
          because of their status as a homeless individual, this bill 
          serves to protect the rights of a group of persons that has been 
          subjected to an alarmingly high rate of violence within this 
          state."

          2.  Civil remedies for homeless individuals under the Ralph Civil 
            Rights Act  

          The Ralph Civil Rights Act of 1976 currently provides that all 
          persons have the right to be free from violence and intimidation 
          by threat of violence based on, among other things, race, 
          religion, ancestry, national origin, and gender.  (Civ. Code 
          Sec. 51.7.)  These rights may be enforced by a private right of 
          action for damages and equitable relief as well as criminal 
          sanctions for violations.  (Civ. Code Sec. 52.1.)  In addition, 
          an individual whose legal rights have been interfered with, or 
          attempted to be interfered with, may bring an action for 
          injunctive relief.  (Civ. Code Sec. 52.1.)  The Attorney 
          General, or any district attorney, or city attorney may also 
          bring a civil action for injunctive relief or other equitable 
          relief, and recover civil penalties against the violator.  (Civ. 
          Code Sec. 52.1.)  By establishing these rights and providing 
          access to the courts for their vindication, the Ralph Civil 
          Rights Act was designed to provide important protection for the 
          classes of people covered by the statute, as well as meaningful 
          enforcement of these rights.  In light of the evident increase 
          in violence directed at individuals because they are homeless, 
          as discussed below, this bill would explicitly provide all these 
          legal rights and remedies to this vulnerable population.  

          This bill would also define "homeless person" to mirror the 
          general definition for a homeless person found in federal law 
          (See 42 U.S.C. Sec. 11302). The bill defines a "homeless person" 
          as a person who does not have a fixed, regular, and adequate 
          nighttime residence or a person who has a nighttime residence 
          that is any of the following: (1) a supervised, publicly or 
          privately operated shelter designated to provide temporary 
          living accommodations, including, but not limited to, welfare 
          hotels, congregate shelters, and transitional housing; (2) an 
          institution that provides a temporary residence for individuals 
          intended to be institutionalized; or (3) a public or private 
          building or designated area that is not ordinarily designed for, 
          or ordinarily used for, sleeping accommodations for persons.

                                                                      



          AB 312 (Lowenthal)
          Page 6 of ?



          According to the 2010 National Coalition of the Homeless report 
          "Hate Crimes Against the Homeless," in 2009, California had the 
          highest incidences of attacks on homeless people with a total of 
          27 attacks.  Florida, the state with the next highest incidents, 
          had 16 in 2009.  The report also indicates that there was a 
          slight decrease in attacks on the homeless in 2008 nationwide, 
          after a steady increase, with the highest increase of incidences 
          of violence against the homeless in 2007.  However, 2009 saw 
          another spike in violence against the homeless.   As a result of 
          this increased violence, the Florida State Legislature added the 
          homeless to its hate crime law.   
          (  http://www.nationalhomeless.org/publications/hatecrimes/hatecrim
          es2009.pdf  .) 

          In support of this bill, the City of Long Beach writes, "In 
          municipalities across the state, homeless people are often the 
          target of violent attacks because they are perceived to be 
          defenseless targets, and second-class citizens unworthy of 
          respect or mercy.  ›This bill] provides homeless individuals the 
          opportunity to seek justice if an act of violence was committed 
          against them because of their status as a homeless individual."  


          While a victim of a violent crime has a general right to bring 
          an action against his or her perpetrator, by including "homeless 
          persons" under the Ralph Civil Rights Act, there is recognition 
          that this particular type of violence should have a separate 
          right of action.  The National Alliance on Mental Illness (NAMI) 
          California also writes in support of this bill stating "many 
          people with mental illness suffer homelessness, through lack of 
          treatment and our society's lack of commitment to treatment and 
          shelter for all.  People do not choose serious mental illness 
          and many who experience it cannot avoid homelessness."

          3.  This bill would not increase or diminish property owners' duty 
            to protect
           
          This bill would provide that the increased protections for 
          homeless individuals under the Ralph Civil Rights Act shall not 
          be interpreted as enlarging or diminishing the existing legal 
          duties, if any, of the owner of a residential rental or 
          commercial property to protect a homeless person physically 
          present on their property from violence.  Thus, a residential or 
          commercial property owner's duties with respect to homeless 
          individuals on their property would be no greater or less than 
          they are under existing law. 
                                                                      



          AB 312 (Lowenthal)
          Page 7 of ?




          4.  This bill would exempt a public agency from civil liability 
            for lawfully enforcing any law  

          Existing law allows public agencies, specifically law 
          enforcement agencies, to lawfully enforce state and municipal 
          laws.  This bill would exempt public agencies from civil 
          liability for lawfully enforcing the laws.   Both the City and 
          Police Department of Long Beach writes, "›we] would like to 
          thank you for working with the City to adopt a crucial amendment 
          that will exempt municipalities from this legislation as it may 
          relate to municipal duties currently authorized by law." 

          5.  AB 2706 veto message  

          The current version of this bill is nearly identical to the 
          enrolled version of AB 2706. In vetoing AB 2706, the Governor 
          stated:

            While this bill is well-intentioned, it is unclear whether the 
            homeless are targeted for violence because they are homeless, 
            or because they possess a characteristic already protected by 
            the California's hate crime statute, such as mental or 
            physical disability.  Furthermore, poverty unlike race, 
            gender, national origin and disability, is not a suspect 
            classification.  Because of the incongruence between the 
            recognized classifications listed in Civil Code section 51.7 
            and homelessness, this bill could result in legal challenges 
            and increased court costs.


           Support  :  American Veterans (AMVETS); California Communities 
          United Institute; California National Organization of Women; 
          California Peace Officers Association; California State Sheriffs 
          Association; Consumer Attorneys of California; City of Long 
          Beach; Gramercy Housing Group; Housing California; Long Beach 
          Police Department; Los Angeles County Sheriff's Department; 
          Mayor Antonio R. Villaraigosa, City of Los Angeles; Mental 
          Health America of Los Angeles; National Association of Social 
          Workers; NAMI California; People Assisting The Homeless (PATH); 
          PATH Ventures; Peace Officers Research Association of 
          California; Regional Task Force on the Homeless, San Diego 
          County; Sacramento Housing Alliance; Swords to Plowshares; The 
          Arc in California; United Cerebral Palsy in California; United 
          States Veterans Initiative (U.S. Vets).  

                                                                      



          AB 312 (Lowenthal)
          Page 8 of ?



           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 2706 (Lowenthal, 2010) (See Background and Comment 5.)

          SB 122 (Steinberg, 2007) would have added "homeless status" to 
          the list of actual or perceived characteristics qualifying as a 
          hate crime.  This bill was held in the Senate Committee on 
          Public Safety.  (See also Background.)





           Prior Vote  :

          Assembly Floor (Ayes 52, Noes 24)
          Assembly Committee on Appropriations (Ayes 12, Noes 3)
          Assembly Committee on Judiciary (Ayes 7, Noes 3)

                                   **************