The Fremont City Council gave final approval this week to an ordinance that bans camping throughout the entire city, while also making anyone “aiding, abetting or concealing” a homeless encampment guilty of a misdemeanor.

The aiding and abetting clause has sparked alarm from local outreach workers who worry they could be targeted for helping people living in camps, and experts in homelessness law who say they’ve never seen anything quite like it in California. Council members considered changing that part of the ordinance Tuesday night, but ultimately passed it as-is 6-1.

“Our public spaces belong to the entire community and it’s really not compassionate at all to cede our public spaces to a select few individuals at the expense of everyone else in the general public,” said Councilmember Raymond Liu, who voted in favor. “Families should be able to take their children to the parks, to the libraries, without fear, and all residents should be able to use our public spaces without encountering any unsafe conditions.”

Council members discussed the camping ban at length in a five-hour meeting Tuesday, where nearly 200 people lined up to speak for and against the measure during public comment. It was an unusual amount of fanfare for an ordinance that the city council already passed once earlier this month – Tuesday’s vote was a “second reading,” which typically is just a formality that warrants no discussion.

But the controversy surrounding the ban, which prohibits camping on all sidewalks, streets and parks in Fremont and makes anyone who aids or abets such a camp subject to a $1,000 fine or six months in jail, prompted the City Council to reevaluate the ordinance.

Three council members, plus the mayor, expressed interest either in removing the aiding and abetting clause or adding language to specify that it wouldn’t be used to punish people for handing out food, water and other essentials in homeless camps.

That change seemed likely to go through until minutes before the final vote. But after City Attorney Rafael Alvarado said multiple times that the aiding and abetting clause would target people who help unhoused people set up illegal camps, not people who give out food, council members changed course. Ultimately, they passed the measure as-is.

Changing the language would have forced council members to re-introduce the ordinance, meaning they’d have to go through two more votes. By the time the City Council voted Tuesday, it was almost midnight.

The text of the ordinance doesn’t specify what qualifies as aiding, abetting or concealing a homeless encampment. That leaves some uncertainty as to how the ordinance will be enforced, despite Alvarado’s assurances, UC Berkeley Law professor Laura Riley told CalMatters.

“That might be their stance at the time of adoption,” she said, “but there’s nothing in the language of the ordinance itself that prevents targeting people from doing things as humane as giving unhoused people tarps when it’s raining.”

In practice, local police often determine how they will enforce an ordinance, Riley said. How the Fremont aiding and abetting clause is interpreted could change when the city’s leadership changes, she said.

The city attorney’s statements were small comfort to Vivian Wan, CEO of Abode Services, which provides food, tents, clothing and other services to unhoused people living in camps.

“We worry about the ‘concealing’ portion, as PD/City staff in Fremont have been known to pressure us to share confidential information, including where a participant is staying,” she said in an email to CalMatters. “I think this ordinance may be used to compel such information, breaking the trust with folks that often takes years to build.”

The measure also puts the city of Fremont at odds with the American Civil Liberties Union of Northern and Southern California, which, in a letter to council members signed by several other aid and human rights groups, said the aiding and abetting clause is “patently unreasonable and will expose the City to legal liability.”

More than two-dozen California cities and counties have either passed new ordinances or beefed up old ordinances banning camping in recent months, after the U.S. Supreme Court gave them more freedom to do so. But none of those bans appear to include specific language that makes it a crime to aid or abet a camp.

In a statement to CalMatters, the Fremont city attorney’s office said the aiding and abetting language is nothing new – it’s already illegal in Fremont, as in many cities, to aid or abet any crime. When asked about that by council members during Tuesday’s meeting, Alvarado said even if the new camping ban didn’t have that specific clause, “in theory,” someone could still be penalized for aiding and abetting a homeless encampment.

But Riley said it’s significant that the new camping ban explicitly makes it a crime to aid and abet an encampment – language she’s never seen in any other active camping ban in California.

“This does seem to be going further,” she said. “Because by making it explicitly tied to this section of the code, to me, it signals that there is intent to prosecute under this section.”

Legal experts CalMatters spoke with said this is extremely unusual. No other city, to the best of CalMatters’ knowledge, has attempted to use general municipal code in the fashion this ordinance would.

More than two-dozen California cities passed, strengthened or are considering ordinances that penalize people for sleeping outside, after the U.S. Supreme Court allowed cities to crack down.

###

CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.