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