Should ‘aiding’ or ‘abetting’ a homeless camp be illegal? It might soon be a reality in this city

As communities up and down California ban homeless encampments, one Bay Area city is trying to go a step further.

The East Bay city of Fremont is set to vote on a new ordinance that would make it illegal to camp on any street or sidewalk, in any park or on any other public property. But, in an apparent California first, it also would make anyone “causing, permitting, aiding, abetting or concealing” an illegal encampment guilty of a misdemeanor – and possibly subject to a $1,000 fine and six months in jail.

That unusual prohibition — the latest in a series of crackdowns by communities following a Supreme Court decision last summer — has alarmed activists who worry it could be used against aid workers who provide services to people living in encampments. While Fremont Mayor Raj Salwan told CalMatters that police won’t target outreach workers handing out food and clothing, the ordinance doesn’t specify what qualifies as “aiding, abetting or concealing.”

Experts say the city could enforce the same ordinance against ordinary citizens in contact with what the ordinance defines as an illegal homeless encampment.

The broad language has left Vivian Wan, CEO of Abode Services, “very fearful,” she said. As the city’s primary nonprofit homeless services provider, Abode regularly sends outreach workers into encampments to help people sign up for housing and shelter, pass out information about food pantries and other services, hand out coats during cold spells, and more.

“The job’s hard enough,” Wan said. “I can’t imagine doing the hard work that’s both physically and emotionally draining and then also have to be worried about your own legal liability. It’s incredibly frustrating.”

Fremont’s proposed ordinance, which passed an initial city council vote 4-2 and is set for a final vote on Feb. 11, is part of a recent statewide trend toward more punitive anti-homelessness measures. Last June, the U.S. Supreme Court in Grants Pass v. Johnson ruled cities can ban camping on all public property, even if they have no shelter beds available. Since then, more than two dozen California cities and counties have passed new measures banning camps or limiting where people can camp, brought back previously unenforced ordinances, or updated existing camping ordinances to make them more punitive.

In December, during the first meeting of Fremont’s newly elected City Council, more than a dozen people spoke out against the proposed camping ban during a lengthy public comment period, saying it would be immoral to criminalize people for having no home. Just three people spoke in favor of the ordinance, urging council members to take residents’ safety into consideration and respect the rights of taxpayers who expect to be able to use the public spaces they pay for.

Councilmember Raymond Liu expressed a similar opinion before voting in favor of the ordinance.

“I’ve had a lot of people come up to me and tell me that they don’t feel safe using our parks or our libraries because of the amount of encampments nearby,” he said.

In some parts of California, enforcement is going beyond the people who live within an encampment. In September, local journalist Yesica Prado was arrested in Oakland while documenting the city’s removal of a homeless encampment. The year before, Oakland made it a misdemeanor for someone to fail to leave a designated “ safe work zone,” which can include the area around an encampment cleanup.

Civil rights watchdogs – and even the feds – have pushed back when they’ve felt cities have gone too far.

Los Angeles’ ordinance banning the storage of private property in a public area, which is often used to cite unhoused people, also makes it a misdemeanor to “willfully resist, delay or obstruct” a city employee from taking down a tent or removing other property. Last fall, the American Civil Liberties Union of Southern California sent a letter to the Los Angeles Police Department accusing their officers of wrongfully threatening L.A. Taco reporter Lexis-Olivier Ray with arrest under that ordinance as he documented encampment removals.

The religious organization Micah’s Way sued in 2023 after the city of Santa Ana banned it from serving food to unhoused people. The federal Justice Department weighed in on behalf of Micah’s Way, saying distributing food could be a protected religious exercise under federal civil rights laws. The case then settled, and the city agreed to allow Micah’s Way to continue serving food.

Would the aiding-and-abetting clause in Fremont’s ordinance stand up in court?

“It’s really going to depend on how it’s applied,” said David Loy, legal director of the First Amendment Coalition. The First Amendment right to freedom of expression doesn’t guarantee someone a right to camp in a public place, nor does it guarantee a person a right to “aid and abet” an illegal camp. But it all comes down to how the police decide what qualifies as aiding and abetting, Loy said.

Mayor Salwan told CalMatters that the city would use the aiding-and-abetting clause against people who help build illegal structures at encampments.

“Some individuals come kind of like vigilanties,” he said. “They want to start building these structures for the unhoused that are unsafe. Then this provision would come in.”

Police wouldn’t arrest someone under the new ordinance merely for giving an unhoused person a tent, Salwan said.

But what if that activist helps that person pitch the tent?

“That’s a good question,” Salwan said. “I think we may have to seek clarification from the city attorney.”

CalMatters posed that question to the city attorney’s office. The office responded, via spokesperson Justin Berton, that a person who helps someone set up a tent could be subject to enforcement.

To Wan and other activists, Salwan’s words are hardly reassuring. They fear that no matter what the mayor says, the language in the ordinance is so broad that it will give police the ability to come down on activists and aid workers at their discretion.

The legal definition of aiding and abetting is far-reaching, and can apply to anyone who knowingly helps facilitate a crime. That means it will be up to Fremont police to decide whether an individual outreach worker at a camp should be cited or arrested, said Andrea Henson, an attorney who serves as executive director and legal counsel for Berkeley nonprofit Where do we Go?

Henson and other experts interviewed by CalMatters had never before come across an aiding-and-abetting clause in a California ordinance regulating or banning homeless encampments.

“I think a lot of attorneys who assist and defend the unhoused are watching this,” Henson said. “No one’s seen this.”

Salwan said he’s open to making the proposed aiding-and-abetting clause more specific.

“I’m willing to consider tweaks in our language to make sure we address the concerns,” he said.

Among Wan’s biggest concerns is that police will use the proposed ordinance to try to pressure her outreach workers into disclosing where encampments are located. The last thing her team wants to do is help police displace, cite or arrest their clients, Wan said. But if their clients believe that’s a possibility, they may stop trusting them and accepting their help, she said.

“Absolutely not,” Salwan said when asked if that could happen. “We’ve had a great relationship with all of our nonprofits. We’re not trying to get into all that.”

If the ordinance passes, Wan hopes to form an agreement with the city that exempts her staff from the aiding-and-abetting clause.

If they can’t, she would consider cutting back on outreach. Wan also worries the ordinance would make it harder to recruit new outreach workers – something Abode and other nonprofits throughout the state already struggle with, thanks to the low pay and the grueling and often frustrating work.

Eve Garrow, a senior policy analyst and advocate for the ACLU of Southern California, worries the aiding-and-abetting clause will make it even harder for unhoused people to get help.

“I think it will, if it passes, put a chill on any type of humanitarian aid or help that local residents would otherwise be providing to people who are unhoused and unsheltered,” said Garrow, who was alarmed when she heard about the proposed ordinance from a Fremont resident.

Sister Elaine Sanchez of the Fremont-based Sisters of the Holy Family is adamant that the proposed ordinance won’t stop her from helping her homeless neighbors.

“I figure if I’m going to be arrested for something,” she said, “it’s going to be for doing something that I feel is helping people in need.”

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This story was originally published by CalMatters and distributed through a partnership with The Associated Press.