A class action filed this weekend urges the city to stop issuing violations against homeless residents using a city code intended to target trash dumpsters. It represents the latest legal move to force the city to overhaul its dealings with its homeless population.

Attorneys Kath Rogers and Scott Dreher filed suit in U.S. District Court on behalf of homeless San Diegans who’ve been affected by the policy arguing the city should stop using its encroachment code to police homeless people. They allege the city’s current tack violates homeless San Diegans’ civil and constitutional rights.

Dreher, who’s previously negotiated legal settlements that reshaped city homelessness policies, is hoping the lawsuit forces a new round of negotiations rather than a court battle.

“We would love to work on something that’s a win-win,” Dreher said.

A spokesman for the city attorney’s office said Monday that city lawyers will review the case and consult with city officials. He said the city is open to discussions with the attorneys.

Dreher and Rogers’ lawsuit argues the city’s use of its encroachment code, which was meant to force the removal of waste or trash bins from sidewalks, to force homeless folks to move elsewhere amounts to cruel and unusual punishment and violates due process and equal protection rights, among other violations.


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They claim the city’s encroachment code is vague and that the city is using it to unfairly punish homeless people who lack a place to store their belongings.

The result, the attorneys argue, is that homeless people can end up in jail or with stay-away orders that bar them from large areas, including those where homeless-serving nonprofits are concentrated, while homeowners who violate the code get courtesy notices.

Police have said they offer services and warn homeless people before citing or arresting them, and that they tend to use the city’s encroachment code because it can be pursued as a lower-level offense with lesser fines and punishment. They also say they’re trying to balance increasing community complaints about homeless people blocking sidewalks or settling in front of condos and businesses with homeless San Diegans’ rights and needs.

“Our whole thing is to get compliance,” San Diego police Capt. Wes Morris told Voice of San Diego last year. “We take the lowest level necessary to get compliance.”

Dreher wants to talk to city officials about the potential for safe zones where homeless folks could go without fear of arrests or citations. Dreher said he sees the lawsuit as a tool to force a conversation he said city officials have largely avoided.

“The city attorney has been willing to sit down and talk but the rest of the city, all they do is talk about talking about it,” Dreher said.

The new lawsuit comes amid rampant concerns about both rising street homelessness and police interactions with those living on the streets.

Encroachment citations and arrests have spiked dramatically following a settlement Dreher helped ink in 2007 that aimed to discourage the criminalization of homelessness.

EncroachmentChart

The 2007 deal is one of two agreements Dreher negotiated with the city over the last decade.

The 2007 settlement followed a class action filed by Dreher and attorney Tim Cohelan over the city’s enforcement of illegal lodging. Illegal lodging requires police to prove that a person has settled somewhere without permission. The deal Dreher helped negotiate mandates that police offer a shelter bed to a homeless person they encounter on the streets downtown between 9 p.m. and 5:30 a.m. before they can cite or arrest someone. Dreher argues the city’s increased use of its encroachment code is an attempt to get around that settlement. Police say that’s not the case.

Dreher teamed with the San Diego ACLU on another lawsuit that accused the city and the Downtown San Diego Partnership of unlawfully seizing and discarding homeless people’s property. That case led to a 2011 settlement requiring the city to provide at least three days’ notice before sweeps of homeless encampments and to set up a city-funded storage facility where unattended property can be held after clean-ups.

Now Dreher, Rogers and 10 plaintiffs are hoping the latest lawsuit will again force changes.

One of those plaintiffs is Sheri Pasanen, the former director of Catholic Charities’ day center and night shelter for homeless women. She ended up homeless herself a few years ago and is now eager to push the city to change its approach.

“I just want them to assist the homeless instead of putting barriers in front of them,” Pasanen said.

Pasanen said an encroachment citation she received in November 2014 did more to frustrate and overwhelm her than get her off the street.

She recalled receiving that ticket for setting a small stove she used to make coffee on a sidewalk near Chicano Park. An officer flagged her down as he drove by, spotting her tent just steps away.

Pasanen said police helped her get into the now-shuttered Alpha Project winter tent for a time.

When it came time to resolve her citation, she took multiple buses to traffic court in Kearny Mesa. There, she learned she’d need to return to court if she wanted to challenge the citation. Pasanen said a bout with pneumonia kept her from making it to her next court appearance. By the time she had recovered six months later, Pasanen said she’d given up dealing with the ticket.

It’s a response homeless folks and those who advocate for them say is common given the grind of life on the streets.

“I couldn’t afford to pay it so I just kind of put it away,” Pasanen said.

At most, she might have faced a $280 fine.

But Pasanen’s unpaid ticket didn’t disappear. Pasanen, who’s since moved into an apartment, later learned she had a warrant. A collection agency got involved.

When Pasanen later tried to get off the street, she said one landlord told her not to bother filling out a rental application when she described the situation.

Plaintiffs in the lawsuit who remain homeless describe other roadblocks.

Debra Smith, who ended up on downtown streets last March, said she hasn’t gone to court to address the four citations she’s received since then. She’s a plaintiff too.

“My backpack got stolen one month. That had two tickets in it. Then my purse got stolen the next month and it had the other two tickets in it,” Smith said.

In the process, Smith lost the prescriptions she has for chronic pain and other ailments as well as the information she needed to go to court.

Plaintiff Robert Kelsey, who’s received several encroachment citations since 2013, said he was forced to go without crucial anti-viral medication he takes for HIV during the three days he spent in jail after a March arrest.

In some cases, encroachment citations can also lead to agreements with authorities that result in stay-away orders barring homeless people from areas where the agencies trying to help them are concentrated.

Alexis Leftridge, 22, moved into a room at Father Joe’s Villages with her three-month-old son earlier this year after spending nearly three years on downtown streets. Yet she still worries that the stay-away order she received after repeated citations and arrests could lead to more jail time if an officer spots her around the nonprofit’s East Village campus.

After all, her stay-away order covers that area.

Now she’s a plaintiff in Dreher and Rogers’ lawsuit. She said she is hopeful the suit will give city leaders a window into the challenges of life on the street and inspire policy changes.

“It’s not right for them to just arrest us instead of helping us,” Leftridge said.

    This article relates to: Government, Homelessness, Must Reads

    Written by Lisa Halverstadt

    Lisa writes about San Diego city and county governments. She welcomes story tips and questions. Contact her directly at lisa@vosd.org or 619.325.0528.

    14 comments
    Daniel Smiechowski
    Daniel Smiechowski subscriber

    I am a candidate for SD CC D2.  I have made SD my home for 50 years all in D2.  My view is that it is time for some tough love. Enough is enough, already! I agree with the comment by Al Allen. It's just common sense! We must begin to enforce our laws with a kindness of heart in getting these folks off of our streets. I will work to that end! Please support my campaign! Danny D2 858 220 4613 cell  

    Al Allen
    Al Allen

    INMO the city should survey the homeless. Those with a verified history connecting them to San Diego, living, working, grew up here go to the front of the line, get all the services available.


    Those with no connection to San Diego, just arrived from another city to take advantage of our benefits and climate are told they will be at the back of the line. Will not receive any assistance until all San Diegans taken care of first. Meaning the wait could be years. Instead of waiting, non city residents can ask for and receive a free bus ticket back home.


    There is only so much money available, can't keep adding to the problem with new homeless constantly coming in.


    Sorry for the hard line but as I've said, there is only so much money, so many homes for homeless to live in. City residents must come first.

    Glenn Younger
    Glenn Younger subscribermember

    Thanks for keeping up the coverage Lisa.  I take issue with one persistent inference;

    That beds and programs are unavailable. 

    The problem seems to be that many of the urban campers do not want or need a “bed”, nor will they be able to take advantage of the available housing options, because they cannot, or will not comply with the rules regarding both of these options.   


    What our urban camper advocates seem to want is a place, for those currently camping on sidewalks,  to gather, is not governed by the rule of law, and has no requirements that they must abide.   Sort of a lawless wild wild west, lord of the flies, type community.  

    It is really time to de-bunk the concept that our urban campers have not been offered help.  They have been, and they continue to be offered help, and they refuse.  Drugs, drinking, the desire to keep their “stuff” with them, all are impediments to getting help.  Until we focus on that reality we will not get to the root of the problem  and our health crisis will continue.  

    Joan Lockwood
    Joan Lockwood

    This is a very nice piece Lisa.  Listen I spoke personally with Sherri Lightner then Council President on this very matter at the Woman and Girls of CA  meeting.  She was very interested- there seems to be some "block" politically for the council yo get some good ideas and pass measures.  Are we waiting for Mayor Falconer?  I really don't know.  But the criminalization of homelessness was presented to Ms Lightner way back. The problem is dramatically larger but exactly the same as in 2013.


    I'd like to understand who the players are.  Why do  we come to a halt at every attempt to intercede- money? Or providers. who are not ready to change their infrastructure?  Or both?


    We may consider that all free meals and services are downtown and may need to be moved closer to the tent city location.  Or somehow develop services to the area.  The libraries include a/c and computers- not that this is a necessity but this is available on foot downtown, Father Joes and Salvation Army provide services and food with God. (and 12 step programs)


    Not that any of these conveniences are rights but it will drastically change the dynamic of services and service providers.  These operations are big money. I'm sure police will enjoy having "homelessness herding" removed from their job.  The firemen and metro ambulances will lose a big percentage of their budget.


    If the average San Diegan knew  how much of the city budget goes towards marshalling the homeless they'd develop compassion fatigue on the spot.  All things that have been presented to Ms Lightner who conceivably had more pressing matters and considerably less homeless on the streets. Really homeless is big business to service providers.


    Pete DeMaster
    Pete DeMaster

    When was it exactly that we replaced the term "junkie" with "homeless"? 


    Seriously, these people are mostly on drugs.  I have compassion for mental illness, but a junkie does not deserve to camp on our sidewalks in a tent to shoot heroin and smoke meth.  Stop kidding yourself if you think these people are down on their luck.  It's a drug problem mostly. 


    When I was a kid, I was deathly afraid of getting a public intoxication ticket because it was $200 that I wanted to spend elsewhere.  Seems like those tickets don't exist anymore unless you have money to burn in PB.  If your homeless on the west side of Balboa Park, just shoot up and join the nightly zombie march without being hassled. 

    joe coneglio
    joe coneglio

    I just listened to Rogers on KPBS. Seriously lady, You make it sound as if these people are getting hassled over a toothbrush and a comb. This situation is out of control, myself and my neighbors are infuriated with the amount of rubbish, defecation in our yards, the theft, general unsightliness that this population has brought to our city. These people need to be moved into camps where there is water, showers, security and services for the few that would actually use them. Where are the rights of the people who work, pay taxes and own homes? The only way to rid our city of this plague is to enforce the laws fully and quickly. Creating homeless camps outside of our city and its neighborhoods would greatly increase the quality of life to our citizens. If the street folks don't like it I suggest they try somewhere else.

    Bit-watcher
    Bit-watcher subscriber

    Since when has blocking a sidewalk been a right?  Interfering with a public right-of-way?  It's one thing when folks are camped out for a new tech product or a new movie, but day-in/day-out camping in a right of way?  Nope. 

    Attorneys looking at a deep-pocket (city) lawsuit.  

    Joan Lockwood
    Joan Lockwood

    Can you say "Special Interests"?  Can you say "Corruption" in existing programs? Ok then you got the problem..Now fix the fixers!

    George in BayHo
    George in BayHo subscriber

    My wife and I walked from Seaport Village to Santa Fe Station on Saturday evening.  Surprised that we had to walk through blocks-long rows or these urban campers.  

    The January census of homelessness counted fewer than 10,000 people.  The mayor has committed to throw another $40million at the problem.  Add this to the existing governmental and charitable programs ... tens of thousands of dollars per year per homeless person.  Obviously money is not the issue.

    Joan Lockwood
    Joan Lockwood

    @George in BayHo   The issue is "political will".  San Diego doesn't have the political will to end homelessness...What nonsense!

    George in BayHo
    George in BayHo subscriber

    @Joan Lockwood @George in BayHo There is no constitutional or moral right to camp on the public sidewalks.  Standing in intersections with a cardboard sign is dangerous to all; not a guaranteed right.  I thought I was a humanist; why am I suffering from compassion fatigue.

    craig Nelson
    craig Nelson

    They should be given a hot cup of coffee and a free ride to camp in front of the homes of the greedy lawyers Dreher & Rogers. I don't see them offering up their lavish conference room as a soup kitchen.