Authorities Can’t Force the Homeless Off the Street. Here’s What They Can Do.
Homelessness itself may not be a crime, but common elements of it can be.
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.
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.
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.