Homelessness isn’t a crime.

It’s a common refrain among advocates and even the Department of Justice, which said so in an Idaho case last year.

“Our society, our Constitution doesn’t allow for people to be arbitrarily told what to do and where to go,” said Eric Tars, senior attorney for the D.C.-based National Law Center on Homelessness and Poverty.

Yet we hear about homeless San Diegans receiving tickets, getting caught up in encampment sweeps and being ordered to move along though they seemingly have nowhere else to go.

I talked to attorneys, police officers, experts and activists about what the law allows – and doesn’t allow – and how those laws work in practice on San Diego streets.

Their message was clear: Homeless people have the same constitutional rights as anyone else, and that means working with them to get off the street is the best way to get them off the streets.

We Stand Up for You. Will You Stand Up for Us?

When Camping Becomes a Crime

Homelessness itself may not be a crime, but common elements of it can be.

Homeless people can be cited for encroachment, which means a person has set her belongings on a sidewalk, alley or other public property.

San Diego Police Lt. Wes Morris, who oversees the Central Division’s Quality of Life Team, said it can apply to a homeless person in a tent, vendors who set up tables or any person who’s left items on the sidewalk.

Police have another enforcement tool that comes with a higher bar. That’s known as illegal lodging, which bans settling somewhere without permission.

There are more rules tied to illegal lodging enforcement downtown. A legal settlement requires that police must be able to offer an open bed to a person they encounter on the street between 9 p.m. and 5:30 a.m. before they can cite or arrest someone for illegal lodging. In other words, police can’t write these tickets if shelters are full. The city has access to 50 beds at St. Vincent de Paul Village, and relationships with other providers to ensure it can offer shelter.

Morris said those issues rarely present roadblocks. Most enforcement happens during the day and the city usually has beds to offer up at night if there’s an issue, he said.

Still, he said police rarely enforce this law at night unless there’s a complaint. Morris said complaints also drive most enforcement during the day, which is why police may not descend on a sidewalk lined with tents but instead confront a single person in front of  a nearby business.

Morris said there’s another reason police tend to cite people for encroachment more often than illegal lodging. Police have the discretion to recommend an encroachment violation similar to a traffic infraction in terms of severity; illegal lodging requires a misdemeanor citation.

“Our whole thing is to get compliance,” Morris said. “We take the lowest level necessary to get compliance.”

He said police realize criminal charges and fines aren’t going to end someone’s homelessness. They can actually complicate their ability to do so.

“We’re not gonna arrest our way out of this issue,” Morris said. “That’s not our goal.”

Yet advocates are suspicious of what they say is a rise in citations.

Scott Dreher, an attorney who’s represented homeless folks in lawsuits against the city, including the one that resulted in the settlement that dictates how police can enforce illegal lodging, believes police are seeking out ways to crack down on homeless people.

Indeed, the city attorney’s office says the maximum penalty for first-time illegal lodging or encroachment violations, if filed as misdemeanors, are six months in jail and a $1,000 fine.

“It’s not as if the city is saying, ‘Oh, we have this big problem of encroachment. Let’s go enforce this,’” Dreher said. “The city is saying we need to get this shit off the sidewalk. How do we justify it?”

Which brings us to our next topic.

Those Notorious Sweeps

Encampment sweeps have been all over the news in recent weeks. The city’s doing these clean-ups more often downtown, and homeless advocates say they’re stepping them up in preparation for the July 12 All-Star Game in hopes of pushing homeless people out of the area.

The city says that’s not true.

“The Environmental Services Department is not doing anything specifically for the All-Star Game,” said José Ysea, a spokesman for that department, which conducts the sweeps.

Instead, Ysea said, the department began sweeping certain city sidewalks weekly this spring due to an increase in complaints about abandoned trash and property.

But complaints have been the city’s justification before, even when documents later showed the actions were driven by other priorities. Another city spokesman said complaints from Sherman Heights residents inspired the installation of homeless-deterring rocks underneath an Imperial Avenue underpass earlier this year. Yet emails obtained by Voice of San Diego showed the All-Star Game, not the complaints, drove the project.

The city is adamant complaints are prompting the sidewalk clean-ups and says it can conduct them because there’s a city code on the books that declares waste “public nuisances that adversely affect the public health, safety and general welfare.”

When the city decides to clean up an area where homeless people have settled, another past legal settlement kicks in. City workers have to put up signs warning urban campers they’ll need to move within 72 hours.

Before clean-up efforts starts, officers from the Police Department’s Homeless Outreach Team remind those settled in the area of the coming sweep and request that they move. They also offer shelter and other services.

Morris said those who refuse to move once the sweep begins are likely to receive an encroachment or illegal lodging citation. He said most folks willingly move on.

When there are arrests, police say it’s more often due to an outstanding warrant or other violation.

A couple attorneys and activists said those warrants can often be related to past illegal lodging or encroachment citations, which are related to their homelessness.

One of them is Steve Binder, a deputy county public defender and co-founder of San Diego’s homeless court program.

“When the homeless individual fails to appear and doesn’t follow through on the court hearing they will often get, depending on the offense, a civil assessment that continues to burden them economically and messes up their credit record, which is already for crap,” Binder said. “It’s just one more kick of sand in somebody’s face when they’re already down.”

Several homeless folks have told me the increased frequency and scope of the sweeps can make them feel unwelcome in gentrifying East Village – and that they’re not sure where to go to avoid them.

A few have also told me they know others who’ve lost property when workers discard items that are meaningful to them despite rules that require the city to store property it picks up during the sweeps.

Mayor Kevin Faulconer and City Councilman Todd Gloria, who represents downtown neighborhoods, defended the operations back in March.

Gloria said they’re an example of the city’s effort to balance the needs of homeless people with those who live around them.

“We’re the city and we’re responsible to all of our citizens, homeless or not, and we do get a great deal of complaints from folks who are witnessing these encampments and they raise concerns that do end up becoming public health issues that we have to go out there and control for,” Gloria said.

Two Criminal Justice System Approaches

San Diego’s got two programs that encourage homeless folks dealing with chronic criminal offenses to get off the streets but they only apply to people caught in repeated drug or alcohol offenses.

One is the Serial Inebriate Program, a county, city and nonprofit cooperative available after a person is taken to a sobering center six times for public drunkenness. Police say these folks are often homeless.

After a person is booked in jail and arraigned on those charges, they’re asked whether they’d like to enroll in a program run by the nonprofit Mental Health Systems and avoid jail time.

If they agree, they’re transported from jail directly to a treatment program that often lasts several months and given temporary housing while they’re enrolled.

Officer John Liening, who helped create the program, has said the program’s changed many lives.

More recently, City Attorney Jan Goldsmith has introduced a new intervention that aims to pair chronic misdemeanor drug offenders with case managers and housing for up to two years. Once they’re offered the option, offenders can avoid jail time if they agree to sign up.

“Rather than put them through the revolving door one more time, we will offer them a spot in an intensive drug treatment program and a tailored housing placement – all overseen by a case manager who will keep on top of their situation and keep them on a track to success,” Goldsmith said in May.

Goldsmith wants to secure at least 28 beds to support the program.

Court-Ordered Moves

Courts hold more power to force homeless people to change their behavior than police.

As part of a plea agreement or sentencing, folks who’ve been charged with illegal lodging, encroachment or another offense are sometimes asked if they’d be willing to stay away from an area. Sometimes they’re asked to do that in exchange for avoiding fines or jail time.

Binder said these stay-away orders are common in San Diego and can cover large areas.

Dreher said he’s encountered cases where the stay-away orders included areas where the homeless might want to access services.

And showing up in those areas can come with consequences.

“Once you agree to them and you violate it, it becomes a crime,” Dreher said.

Binder and Dreher both said stay-away orders don’t help end a person’s homelessness or even effectively move a homeless person out of a neighborhood.

“It’s a like a leaf-blower justice,” Binder said. “You are essentially moving the problem homelessness represents from one block to the next.”

San Diego County courts did get another tool this April that can remove a person from the streets, at least for a time.

The county recently implemented Laura’s Law, a measure that gives judges the power to order mandated treatment for a mentally ill person – homeless or not – for at least 180 days.

But Laura’s Law comes with strict criteria and requires county officials to conduct in-person evaluations and suggest the person voluntarily enter a facility before they make the case to the Superior Court.

Most homeless folks who resist going into shelter wouldn’t be eligible for this intervention, said Piedad Garcia, a deputy director in the county’s Health and Human services Agency.

If they aren’t eligible or a judge doesn’t grant the order, the county can get permission to hold a person for up to three days using what’s known as a 5150 hold.

Still, that requires proof the person is a serious danger to himself or others. That’s a high bar, too.

The Easiest (and Hardest) Way to Get Someone Off the Street

Garcia and a slew of experts I talked to emphasized that the government has little power to force a homeless person to do what they don’t want to do, whether that’s walk into a shelter or move into an apartment.

The best solution, they say, is to figure out what works for that person.

That means spending weeks or months getting to know a person and learning about her needs rather than pressuring her through law enforcement action, said Steve Berg of the D.C.-based National Alliance to End Homelessness.

“It doesn’t really get the results that you want,” Berg said. “If shelter provides things that a homeless person thinks are valuable then you don’t have to force them. They’ll go.”

The county’s new Project One for All initiative is the largest San Diego program thus far to acknowledge the need to invest upfront time with homeless folks who are the hardest to reach.

The county plan aims to persuade 1,250 homeless San Diegans with serious mental illnesses to get off the street over the next two years.

Garcia said the county’s initial contracts call for an average of three to five months of outreach per client.

“We know now that in order to engage people who are resistant to services, resistant to treatment, you need to take the time to engage them,” Garcia said.

    This article relates to: Homelessness, Nonprofits/Community

    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.

    Carrie subscribermember

    "Morris said those issues rarely present roadblocks. Most enforcement happens during the day and the city usually has beds to offer up at night if there’s an issue, he said."

    This statement is in direct contradiction to the statement by lorisaldana that a there are not enough shelter beds. So, which is it? Who has the data? Or is it just because the cops don't try to cite people at night because they know there are not beds available?

    rhylton subscriber

    Here is something else that the Police can do. They can harass the homeless, as has been documented and stated on this site and elsewhere, and, in so doing, inspire one or more vigilantes into doing what is being done; the murders and other violent attacks. 

    lorisaldana subscriber

    Today, July 4th at 1 PM, SDPD announced they are searching for a suspect in the assault and murders of homeless men. One body was burned under the Clairemont Drive freeway ramp. Another was found in a park near Ocean Beach. 

    In recent weeks, additional attacks have taken place downtown near Horton Plaza and other areas. 

    It is time to end the #SDPD #ASG sweeps to prepare for the All Star Game and ComicCon. 
    These sweeps are not only NOT promoting safety, they are actually putting people's lives at risk as they seek shelter by hiding and sleeping in other areas, away from lighting and people who might deter these attacks.

    Dennis subscriber

    Lisa, one problem with "transients" or "homeless" is their proximity to schools, especially in the beach communities. With many schools having joint use spaces with park and rec, homeless take up spaces less than 50-100 feet from schoolchildren with only a chain link fence separating the two. The problem is the unknown factor if the "transient"/"homeless" person has a record that is dangerous to children and/or are carrying a weapon. I feel for their plight but wish their was a statute on the books outlawing loitering near schoolchildren.

    KIm Carpender
    KIm Carpender subscriber

    There is a huge piece of government owned land where the old Midway post office is located.  Every time I drive past I wonder if it could be used to create a huge homeless services area.  I'm thinking a legal place for those living in cars to park, showers and toilets to take care of waste issues, and all the services, both mental and physical  health and job seeking, that people might need.  AA and NA could hold daily meetings too.  For those without cars perhaps some sort of small secure space where they could at least keep their belongings.  

    joe coneglio
    joe coneglio

    The problem is ridiculous. The homeless are besides an eyesore a health and safety issue. The city smells like an outhouse, the litter is unsurmountable , petty crime is just a part of daily life for San Deigens and safety in our parks is non-existent. If they don't feel welcome in our neighborhoods and parks may I suggest leaving San Diego. I believe the sweeps and constant badgering should entice the homeless into shelters or permanent housing. I think it is time to double down on efforts to clear our streets of this problem.

    lorisaldana subscriber

    @joe coneglio There are not enough shelters nor permanent affordable housing for the thousands of people now living on the streets in San Diego and other cities.

    Many of these people are long time residents of San Diego who have been working but not earning enough to afford safe, secure housing. 

    Many are older adults with disabilities and/or on Social Security who have lived here for many years, and are unlikely to move due to costs/logistics/limited mobility. Same for many disabled veterans.

    Actions to "clear our streets" address none of the causes of homelessness and will not result in permanent solutions. In fact these "sweeps" may be putting people at greater risk, as seen by this series of assaults in recent weeks. See: http://www.kusi.com/story/32331662/police-looking-for-suspects-in-multiple-homeless-beatings

    And while SDPD can't "criminalize" homelessness, these "sweeps" may suggest it is OK to harass and evict people- or worse. 

    David Crossley
    David Crossley subscriber

    Maybe they can't force them off the streets, but they sure as hell can move them to another street--farther away from Petco Park.  I am curious to see what happens after the All Star Game.

    rhylton subscriber

    San Diegans receiving tickets that are illegal is an open secret. Someone should sue.

    lorisaldana subscriber

    @rhylton Actually, the tickets are legal, but do little to help people who are homeless. IN fact, a study has found the opposite: from http://bit.ly/SEAAdvocacy 

    "Unfortunately, too many local governments are focused on ending the visibility of homelessness rather than on ending homelessness itself.This misplaced focus causes cities to disrupt homeless encampments by evicting their residents or enforcing anti-camping or anti- sleeping ordinances. These actions are futile and counterproductive. Breaking up encampments without offering residents adequate housing or shelter gives residents nowhere to go, while making their survival even more precarious. Disrupting encampments harms residents by taking away the safety of community, and forcing them into a daily nightmare of searching for security, shelter, and food, making it impossible to focus on longer-term measures to end their homelessness. The constant disruption send a message to people experiencing homelessness that they are not allowed anywhere.4 "

    Also, these sweeps require considerable SDPD and "waste management" staff costs.  So an important question is: are these sweeps cost-effective? Is the money being spent for this enforcement in the best public interests of San Diegans? Does removing people's belongings have any long-term benefit?

    Related: Other cities have found that homeless people with the MOST belongings are often most likely to have mental health issues and have a more difficult time finding permanent housing. If these sweeps were done with an analysis of these factors, they could actually be used to identify and help those most at risk for long term homelessness.

    Instead- the sweeps are exclusively punitive. For example:  this past week alone, two veterans who had already received "Housing for Heroes" vouchers also received citations for encroachment. This means in addition to seeking a landlord who will accept their vouchers, and in addition to needing to come up with money for furnishing their permanent housing, they now have to raise funds to pay for these citations. 

    Is this good public policy- forcing veterans to pay for being homeless, even as they are actively working to end their homelessness? 

    rhylton subscriber

    @lorisaldana @rhylton My reference to illegal ticket was not specific to tickets given to the homeless. Please take note of my deliberately chosen words.

    lorisaldana subscriber

    @rhylton @lorisaldana  What "tickets" do you mean? I responded based on the topic of this article and comments related to  homelessness. 

    lorisaldana subscriber

    Thank you for this report, and also for not once using the term "transient" to describe people who are experiencing homelessness- in stark contrast to the city of San Diego. 

    In San Diego's 2017 budget summary, they refer to increasing funding for these sweeps, referring to the actions as "transient camp inspections and abatements." This "sweep" policy is in stark contrast to recommendations found in  a report from Seattle ("No Rest for the Weary: Why Cities Should Embrace Homeless Encampments") that explains:

    "Local governments should recognize, like Portland has, that many residents of encampments have no place else to go and are simply looking for a place to sleep. That is why it is essential to understand the benefits encampments provide to their residents....

    "The most important benefits of encampments over living in the street or in shelters are safety, community, autonomy, and stability."

    These pre-AllStar Game sweeps are disruptive, criminalize otherwise law-abiding people, and may make life less safe for those who have no other place to live by taking away their only shelter and breaking apart cohort groups.

    How can this be conducted in anyone's best interest, except those who want to deny the reality- that San Diego is in the midst of a serious and growing homelessness epidemic?