The Court of Appeal erred in holding that the ordinance is
unconstitutionally vague. The terms which the Court of Appeal
considered vague are not so when the purpose clause of the
ordinance is considered and the terms are read in that context as
be. (Williams v. Garcetti, supra, 5
Cal.4th 561, 569, 20 Cal.Rptr.2d 341, 853 P.2d 507; see also,
Clark v. Community for Creative Non-Violence, supra, 468 U.S.
288, 290-291, 104 S.Ct. 3065, 3067-3068, 82 L.Ed.2d 221; United
States v. Musser (D.C.Cir.1989) 873 F.2d 1513; United States v.
Thomas (D.C.Cir.1988) 864 F.2d 188, 197-198; ACORN v. City of
Tulsa (10th Cir.1987) 835 F.2d 735, 744-745.) Contrary to the
suggestion of the Court of Appeal, we see no possibility that any
law enforcement agent would believe that a picnic in a public
park constituted "camping" within the meaning of the ordinance or
would believe that leaving a towel on a beach or an umbrella in a
library constituted storage of property in violation of the
The stated purpose of the ordinance is to make public streets and
other areas readily accessible to the public and to prevent use
of public property "for camping purposes or storage of personal
property" which "interferes with the rights of others to use the
areas for which they were intended." No reasonable person would
believe that a picnic in an area designated for picnics would
constitute camping in violation of the ordinance. The ordinance
defines camping as occupation of camp facilities, living
temporarily in a camp facility or outdoors, or using camp
paraphernalia. The Court of Appeal's strained interpretation of
"living," reasoning that we all use public facilities for
"living" since all of our activities are part of living, ignores
the context of the ordinance which prohibits not living in the
sense of existing, but dwelling or residing on public property.
Picnicking is not living on public property. It does not involve
occupation of "tents, huts, or temporary shelters" "pitched" on
public property or residing on public property.
Nor is the term "store" vague. Accumulating or putting aside
items, placing them for safekeeping, or leaving them in public
parks, on public streets, or in a public parking lot or
other public area is prohibited by the ordinance. When read in
light of the express purpose of the ordinance-- to avoid
interfering with use of those areas for the purposes for which
they are intended--it is clear that leaving a towel on a beach,
an umbrella in the public library, or a student backpack in a
school, or using picnic supplies in a park in which picnics are
permitted is not a violation of the ordinance.
Unlike the Court of Appeal, we do not believe that People v.
Mannon (1989) 217 Cal.App.3d Supp. 1, 265 Cal.Rptr. 616, and
People v. Davenport (1985) 176 Cal.App.3d Supp. 10, 222 Cal.Rptr.
736, which upheld application of similar ordinances, were wrongly
In Mannon the Appellate Department rejected a claim that the
defendants were not "camping" within the definition of a Santa
Barbara city ordinance. The court reasoned: "There is nothing
ambiguous about the meaning of the word 'camp.' The definition
is 'to pitch or occupy a camp ... to live temporarily in a camp
or outdoors.' (Webster's Third New Intern. Dict. (1965) p. 322.)
The illustrations of the word 'camp' utilized in the municipal
code do not vary the traditional meaning of that word, they
merely supplement it. The illustrations are consistent with the
ordinary meaning of the word, i.e., living temporarily in the
outdoors.... [A] reasonable person would understand 'camp' to
mean to temporarily live or occupy an area in the outdoors, and
would not be deceived or mislead by the undertaking of further
explanation in the municipal code." (217 Cal.App.3d at pp. Supp.
4-5, 265 Cal.Rptr. 616.)
The ordinance is not vague. It gives adequate notice of the
conduct it prohibits. It does not invite arbitrary or capricious
enforcement. The superior court properly rejected that basis of
the Tobe plaintiffs' challenge to the ordinance. The Court of
Appeal erred in reversing that judgment on that ground.
 The Court of Appeal reasoned that the ordinance was broader
than necessary since it banned camping on all public property.
There is no such limitation on the exercise of the police power,
however, unless an ordinance is vulnerable on equal protection
grounds or directly impinges on a fundamental constitutional
 If the overbreadth argument is a claim
that the ordinance exceeds the police power of that city, it must
also fail. There is no fundamental right to camp on public
property, persons who do so are not a suspect classification,
and neither of the petitions claims that the ordinance is
invidiously discriminatory on its face. The Legislature has
expressly recognized the power of a city "to regulate conduct
upon a street, sidewalk, or other public place or on or in a
place open to the public" (Pen.Code, § 647c) and has specifically
authorized local ordinances governing the use of municipal parks.
(Pub.Res.Code, § 5193.) Adoption of the ordinance was clearly
within the police power of the city which may "make and enforce
within its limits all local, police, sanitary, and other
ordinances and regulations not in conflict with general laws."
(Cal. Const., art. XI, § 7; Fisher v. City of Berkeley (1984) 37
Cal.3d 644, 676, 209 Cal.Rptr. 682, 693 P.2d 261; Birkenfeld v.
City of Berkeley, supra, 17 Cal.3d 129, 159-160, 130 Cal.Rptr.
465, 550 P.2d 1001.) As the more than 90 cities and the
California State Association of Counties that have filed an
amicus curiae brief in this court have observed, a city not only
has the power to keep its streets and other public property open
and available for the purpose to which they are dedicated, it has
a duty to do so. (San Francisco Street Artists Guild v. Scott
(1974) 37 Cal.App.3d 667, 674, 112 Cal.Rptr. 502.)
 The Court of Appeal also failed to recognize that facial
challenge to a law on grounds that it is overbroad and vague is
an assertion that the law is invalid in all respects and cannot
have any valid application (Village of Hoffman Estates v.
Flipside, Hoffman Estates (1982) 455 U.S. 489, 494, fn. 5, 102
S.Ct. 1186, 1191, fn. 5, 71 L.Ed.2d 362) or a claim that the law
sweeps in a substantial amount of constitutionally protected
conduct. The concepts of vagueness and overbreadth are related,
in the sense that if a law threatens the exercise of a
constitutionally protected right a more stringent vagueness test
applies. (Id. at p. 499, 102 S.Ct. at p. 1194; Kolender v.
Lawson, supra, 461 U.S. 352, 358-359, fn. 8, 103 S.Ct. 1855,
1858-1859, fn. 8., 75 L.Ed.2d 903.)
Neither the Tobe plaintiffs nor the Zuckernick petitioners have
identified a constitutionally protected right that is
impermissibly restricted by application or threatened application
of the ordinance. There is no impermissible restriction on the
right to travel. There is no right to use of public property for
living accommodations or for storage of personal possessions
except insofar as the government permits such use by ordinance or
regulation. Therefore, the ordinance is not overbroad, and is
not facially invalid in that respect. It is capable of
Since the ordinance is not unconstitutionally overbroad, and the
facial vagueness challenge must fail, the Court of Appeal erred
in ordering dismissal of the complaints in the Zuckernick
prosecution and enjoining enforcement of the ordinance.
The judgment of the Court of Appeal is reversed.
LUCAS, C.J., and KENNARD, ARABIAN, and GEORGE, JJ., concur.
KENNARD, Associate Justice, concurring.
I join in the majority opinion. I write separately to clarify a
The concurring opinion of Justice Werdegar states that the
majority "evidently reject[s] on its merits, the claim that a
homeless person may not constitutionally be punished for publicly
engaging in harmless activities necessary to life, such as
sleeping." (Conc. opn. of Werdegar, J., post, at p. 427 of 40
Cal.Rptr.2d, p. 1170 of 892 P.2d.) Because that issue is not
properly before us in this facial challenge to the ordinance, the
majority does not address it, and it expressly says so: "[T]he
Court of Appeal did not distinguish between involuntarily being
homeless, and involuntarily engaging in conduct that violated the
ordinance. The court assumed that an involuntarily homeless
person who involuntarily camps on public property may be
convicted or punished under the ordinance. That question, which
of Appeal and the dissent address, and
which might be raised in an 'as applied' challenge to the
ordinance, is not before us because plaintiffs offered no
evidence that the ordinance was being applied in that manner. We
express no opinion on the proper construction of the ordinance,
in particular on whether the conduct it prohibits must be
'willful,' or on whether or in what circumstances a necessity
defense is available." (Maj. opn., ante, at p. 423, fn. 19 of 40
Cal.Rptr.2d, p. 1166, fn. 19 of 892 P.2d.)
Thus, the majority does not decide whether a person who by reason
of necessity falls asleep in a public park may constitutionally
be successfully prosecuted. Moreover, the majority does not
address, much less reject on its merits, a claim that there are
no constitutional limits on punishing conduct regardless of the
circumstances. Nor does it determine whether or not homelessness
is a "status" as that term is described in Robinson v. California
(1962) 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, and in Powell
v. Texas (1968) 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254.
What the majority does decide is the issue before it: that the
challenged camping ordinance does not on its face constitute
prohibited punishment based on status. (Maj. opn., ante, at pp.
422-424 of 40 Cal.Rptr.2d, pp. 1165-1167 of 892 P.2d.)
WERDEGAR, Associate Justice, concurring.
I concur in the result and much of the reasoning of the majority.
Specifically, I agree the procedural history of both cases
(Tobe and Zuckernick) dictates they be treated as purely facial
challenges to the ordinance, and that the ordinance survives such
a challenge. I write separately because in the process of
rejecting plaintiffs' attack on the ordinance as cruel or unusual
punishment, the majority enters into the merits of an as applied
attack, an issue not properly before us. I would leave the
question to another day, when we are presented with a case that
requires its resolution.
To succeed, a facial attack on the anti-camping ordinance as
cruel and unusual punishment (U.S. Const., 8th Amend.) or as
cruel or unusual punishment (Cal. Const., art. I, § 17) would
require showing punishment under the ordinance, in all its
possible applications, is cruel, unusual or both. Plaintiffs have
not seriously advanced that proposition, and it could be rejected
in few words. Clearly, some acts of camping in public places--
pitching a tent in the middle of a street, for example--may
constitutionally be punished.
The majority unnecessarily goes far beyond that reasoning,
however, to consider, and evidently reject on its merits, the
claim a homeless person may not constitutionally be punished for
publicly engaging in harmless activities necessary to life, such
as sleeping. Apparently the majority would reject this claim for
two reasons: first, because, in its view, conduct may always be
constitutionally punished no matter how inseparable it is,
causally or logically, from a person's status or condition (maj.
opn., ante, at pp. 423- 424 of 40 Cal.Rptr.2d, pp. 1166-1167 of
892 P.2d); and second, because it questions whether homelessness
is a "status" at all within the meaning of the United States
Supreme Court's decision in Robinson v. California (1962) 370
U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (maj. opn., ante, at pp.
423-424 of 40 Cal.Rptr.2d, pp. 1166-1167 of 892 P.2d.)
Not surprisingly, since it has disavowed the intent to consider
the merits of an as applied challenge, the majority treats these
issues cursorily. In so doing, it fails to consider the legal
arguments actually made, or the authorities cited, by petitioners
and their allied amici curiae. This portion of the majority
opinion is pure dictum and should be read as such.
MOSK, Associate Justice, dissenting.
By addressing only the facial challenges to the Santa Ana
ordinance now before us and looking only to its neutral language,
the majority sidestep the pressing and difficult issues raised in
this case. In the process, they erect new procedural barriers
that will make future as applied challenges to the ordinance
costly and protracted, while shielding the ordinance from
meaningful review. Unlike
the majority, I decline
to ignore the purpose and effect of the ordinance, whether it is
assessed on its face or as applied.
The City of Santa Ana (hereafter the City or Santa Ana)
enacted the challenged ordinance as the latest offensive in its
five-year campaign to banish the homeless. Under its broad
provisions, a person who "camps" in any public area or "stores"
any personal property in any public area is subject to citation
and arrest for a criminal offense punishable by six months in
jail. (Santa Ana Ord. No. NS-2160, adding art. VIII, § 10-400 et
seq. to Santa Ana Mun.Code (hereafter the ordinance), §§ 10-402,
10-403.) It has been enforced against homeless persons whose
sole "crime" was to cover themselves with a blanket and rest in a
public area. Homeless persons with no alternative but to
temporarily leave their personal belongings in public places are
also subject to repeated citation and arrest for violation of the
ordinance's prohibition against "storing" property.
The City has conceded that the purpose of the ordinance is to
address the "problem" of the homeless living in its parks and
other public areas. The ordinance has, moreover, been enforced
in a manner that specifically targets the homeless.
For those reasons, I conclude that the ordinance is
unconstitutional both on its face and as applied to the homeless
residents of Santa Ana. Although a city may reasonably control
the use of its parks and other public areas, it cannot
constitutionally enact and enforce an ordinance so sweeping that
it literally prevents indigent homeless citizens from residing
within its boundaries if they are unable to afford housing and
unable to find a space in the limited shelters made available to
them. The City cannot solve its "homeless problem" simply by
exiling large numbers of its homeless citizens to neighboring
Although not unconstitutionally vague, the ordinance fails under
our decision in Parr v. Municipal Court (1971) 3 Cal.3d 861, 92
Cal.Rptr. 153, 479 P.2d 353 (hereafter Parr ), because it
violates the guaranty of equal protection under both the United
States Constitution (14th Amend.) and the California Constitution
(art. I, § 7, subd. (a)). It also impermissibly impairs the
fundamental right of the homeless, under both the United States
and California Constitutions, to travel freely within the state. 
[1 Because I believe the ordinance is invalid on these grounds,
I find it unnecessary to reach the issue whether the ordinance
also punishes the homeless on the basis of their status in
violation of the Eighth Amendment or article I, section 17, of
the California Constitution. (But see Robinson v. California
(1962) 370 U.S. 660, 665-667, 82 S.Ct. 1417, 1419-1421, 8 L.Ed.2d
758; Powell v. Texas (1968) 392 U.S. 514, 551, 88 S.Ct. 2145,
2164, 20 L.Ed.2d 1254 (conc. opn. of White, J.); id. at pp. 567,
570, 88 S.Ct. at pp. 2171, 2173 (dis. opn. of Fortas, J.);
Pottinger v. City of Miami (S.D.Fla.1992) 810 F.Supp. 1551,
1561-1565 [city's practice of arresting homeless persons for such
activities as sleeping, standing, and congregating in public
places violated the Eighth Amendment].)]
Case Listing --- Proposition One ---- Peace Park