To combat homelessness, San Diego police officers are increasingly turning to a local law that was originally enacted to address trash dumpsters blocking the public right-of-way.

Section 54.0110 of San Diego’s municipal code forbids “any vegetation or object” from encroaching on a public space. A log of arrests by San Diego police, going back to 2010, shows the law first being used on Occupy San Diego protesters, who’d set up camp in the city’s Civic Center plaza, in November and December 2011. In all, there were 11 encroachment arrests that year, according to the log. Arrests grew to 23 in 2012 and 76 in 2013. As of Aug. 4, there had been 64 arrests so far this year.

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Citations issued for encroachment violations, both misdemeanors and the lesser charge of infraction, show a similar increase. In 2010, officers in Central Division, which includes downtown, issued 232 encroachment citations. By 2013, that number had increased more than five-fold to 1,234. Nearly 1,600 citations were issued in 2014. During the first six months of 2016, officers issued 624 encroachment citations, according to police records.

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Scott Dreher, one of two attorneys who sued the city in 2004 over excessive enforcement of the state’s illegal lodging law, believes police are using encroachment to circumvent a settlement that resulted from that lawsuit. The settlement allows homeless folks to sleep in certain public spaces from 9 p.m. to 5:30 a.m.

Basically, police are still issuing citations for sleeping in public – they’re just using encroachment tickets in cases where illegal lodging tickets aren’t an option because of the settlement.

“They’re treating people like trash cans and ignoring the types of encroachment the law was designed to address,” he said.

When Dreher and Tim Cohelan sued the city in 2004, police were issuing upwards of 3,000 tickets a year for illegal lodging. In the years following the settlement, illegal lodging citations and arrests declined significantly with only 305 citywide in 2010. In 2015, though, police enforcement of illegal lodging and encroachment resulted in a total of 1,700 arrests and citations.

A police department spokesperson didn’t respond to an interview request, but in a separate interview with Voice of San Diego, San Diego Police Lt. Wes Morris, who oversees the Central Division’s Quality of Life Team, said the city’s encroachment law gives police more options than illegal lodging: While California penal code considers illegal lodging to be a misdemeanor offense, encroachment can be an infraction or a misdemeanor.

Misdemeanors carry stiffer penalties, while infractions usually only require payment of a fine or community service. The problem, said Michael Ruiz, who supervises the public defender’s misdemeanor unit, is that someone who’s homeless can quickly rack up violations. Repeat offenses can result in jail time and probation in the form of a court order to stay 100 yards away from the arrest location.

“Each time they pick up another [offense], they get an additional 100-yard stay-away order,” Ruiz said. “So you can imagine a map of downtown with these little circles for places of arrest and they start overlapping. There are some frequent fliers who have nowhere to go downtown.”

Ruiz said his attorneys do their best to challenge sentences that include jail time and stay-away orders.

“There shouldn’t be [a stay-away order] attached because you need someplace to sleep at night,” Ruiz said.

The line police draw between misdemeanor-level encroachment versus infraction-level encroachment isn’t clear.

On a recent weekday, near the intersection of 16th and Market streets, some folks who’d erected tents were ticketed for encroachment infractions — even though their tents left plenty of sidewalk space — while others weren’t. Diana Butler, who said she’d been arrested multiple times for misdemeanor encroachment, spending anywhere from three to five days in jail each time, pulled a ticket from her wallet, issued earlier this month, for infraction-level encroachment.

In June, Butler, who’s 69 years old, said she was arrested for encroachment and illegal lodging and spent five days in jail for having her tent still up at 6 a.m. She pleaded guilty to both charges and was issued a stay-away order for the area near 16th and Market streets. She’d been camping at that location, she said, for convenience: It’s next to the Public Storage where she keeps her personal items and she has difficulty getting around.

She was at Public Storage last week to retrieve her things when a police officer who’d arrested her in the past recognized her and ticketed her for disobeying the stay-away order.

“It’s a waste of taxpayer money,” Butler said.

Tristia Bauman, a senior attorney with the National Law Center on Homelessness and Poverty, said the only thing stay-away orders accomplish is to shift people from one part of town to another.

“Pushing homeless people around to different parts of the city only to have to deal with the not-in-my-backyard concerns doesn’t address the underlying causes of homelessness,” she said. “It doesn’t reduce the number of homeless people in any given community.”

Last year, the U.S. Department of Justice filed a statement of interest in a federal lawsuit that, like the San Diego lawsuit over illegal lodging enforcement, argues it’s unconstitutional to prosecute homeless people for sleeping in public.

“It should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment,” the statement says. “Sleeping is a life-sustaining activity — i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.”

The federal Department of Housing and Urban Development is also focusing on laws targeting the homeless, Bauman said. Starting last year, applications for grants to combat homelessness asked Continuums of Care — the regional planning groups that apply for those grants — to “describe how they are reducing criminalization of homelessness.”

Both Ruiz and city attorney spokesman Gerry Braun said a new city program, the Community Justice Institute, is trying to intervene in cases involving homeless offenders charged with low-level misdemeanors, including encroachment. In lieu of a fine, jail time or probation, defendants can perform community service. Homeless defendants who enroll in CJI are linked up with the Alpha Project, a homeless-services provider.

But getting homeless defendants to participate in CJI has been a challenge: Since the program started in December 2014, only two out of 10 defendants charged with encroachment agreed to enroll. And out of 43 defendants charged with illegal lodging, only seven enrolled in CJI.

“There’s a pocket of the population who aren’t getting these offers because they have too many of these [violations] on their records,” Ruiz said.

Braun said the city attorney’s office this month launched a new program, SMART, that aims to connect repeat homeless offenders with housing and services instead of custody or probation. SMART’s philosophy is that getting — and keeping — someone housed will result in significant savings to law enforcement and the court system.

Clarification: This post has been updated to reflect the fact that encroachment violation citations can take the form of both misdemeanors and infractions.

    This article relates to: Homelessness, Must Reads, Public Safety

    Written by Kelly Davis

    Kelly Davis is a freelance journalist focusing on criminal justice and social issues. Follow her on Twitter @kellylynndavis or send an email to kellydaviswrites@gmail.com

    7 comments
    George in BayHo
    George in BayHo subscriber

    @Jake Vogelsang Thanks for adding a dose of reality to this discussion, Jake.  If a homeless camp suddenly appeared on the sidewalks in front of our homes, the neighbors would find a way to convince those people to move elsewhere.

    This is such a complicated issue; it seems unlikely that we will ever address all of the causes so homelessness will always exist.  But that does not mean we should tolerate sociologically unacceptable behaviors, such as urban encampments.  

    Is it possible to find the elusive combination of kindness and gentle enforcement?



    Bruce Higgins
    Bruce Higgins subscriber

    I have worked with nonprofits in the homeless area in the past.  I am therefore sympathetic to the homeless, but this is a complex problem.  Homeless encampments pop up around areas where they can get services, so its no surprise that they are in the area around where Father Joe's and several other providers are located.  Having said that, there are also a lot of problems associated with encampments: poor sanitation/no sanitation, alcohol/drug use, drama from some of the more unstable members, panhandling, etc., etc.  Many people don't like this and complain, the police respond, the homeless get victimized, and the cycle continues.

    The Housing First model has been successful in other cities in getting the homeless off the the streets.  It has proven difficult here for two reasons:  In fighting among our homeless providers who want to protect their piece of the pie, and low housing stocks in our area.  Many landlords who might be interested in providing subsidized housing do not participate because of complaints from their other tenants about the habits of the homeless.  I live in City Heights, the building next to me used to provide subsidized housing.  One of the tenants used to 'praise the Lord' at the top of his lungs at 3 am.  Others shot up by the garbage dumpsters and there was constant police calls to the building.  That building no longer provides subsidized housing and the neighborhood is quieter.

    So what do we do until enough units can be set up to house the homeless and provide them with the support they need?  BTW this will be years away.  Shelters are not an answer, there are not enough beds available.  The wait for a single adult male for a shelter bed is many, many weeks. We know the problems with street sleeping, which is what we are doing now.  Is it possible that something like the encampment put on by VVSD at Sand Down would work?  I don't think there is going to be one answer, I think there will be many answers, some more successful than others.  I believe it is important that we keep trying.   We should solve this problem before we consider spending tax payer money on $ Billion palaces for rich people to play in.  The homeless are people, who deserve better than we have given them.

    Desde la Logan
    Desde la Logan subscriber

    The city's solution is to ticket people who can't afford to pay their fines? Shameful. San Diego doesn't have the political will to do what is necessary to help the least fortunate amongst us. They'd rather spend money by throwing them in jail, building rock impediments, or push them into low income neighborhoods where they blend in better with us poors instead of the affluents that live in Pinnacle. Shameful.

    Dean Cunliffe
    Dean Cunliffe

    I find it shameful that the City would resort to interpretations of the law that allows harassment of people with no where else to go.

    All of a sudden, it clicked. Now I understand all the new faces I see in my neighborhood.

    I attend planning groups, and ad hoc committee meetings that spend the majority of the time discussing homeless people, which in my opinion is based in fear. Most of the homeless I know are benign and would prefer to be left alone. Some who urban camp in my neighborhood say that they don't want stay down on the Bottoms because of all the drama, alcohol, and drugs.

    Those who are mentally disturbed aren't as crazy as most would think, but do have a problem assimilating to what most people consider normal, whatever that is, but the picture of homelessness shocks and disturbs people.

    What I find shocking, is the deinstitutionalization that began around 1959, by then Governor Brown, not our current Governor, his father Edmund.

    At the time California housed 37,000 mentally ill people in hospitals. In an effort to save money, the Governor and prominent Psychiatrists, decided it would best to shift the burden to local community houses and programs. Together they sold this program to the legislature, and voilà

    This is where it started to fall apart. The project was an utter failure, and underfunded, some 36-38 percent of the former patients ended up homeless.

    No med's, No follow up, No nothing!

    I don't advocate putting people into mental hospitals, they deserve better.

    The solution is not one size fits all, it requires a certain flexibility and different components to fit the different sub-groups that make up the homeless population.

    And it should come as no surprise that there will be some people who simply won't get off the streets.

    So here's a chance for our Governor to clear the plate his father left at the table, because this will be a huge undertaking that requires the kind of money that only he can find in the budget. Maybe.

    The private sector needs to step up as well, and partner with the state to make it cost effective.

    And oversight, with autonomy and powers to intercede between the two, without favor. A committee open to those whom they serve.

    And thank the Lord because you have a bed to sleep in.....for now

    Thomas Theisen
    Thomas Theisen subscribermember

    Good article addressing the reality on the street.  When I talk to the homeless, I'm seeing more and more illegal lodging citations, encroachment citations, and stay away orders - probably more than before the 2007 lawsuit settlement.  This does virtually nothing to end homelessness, and could in fact be counter-productive by alienating the homeless population.

    rhylton
    rhylton subscriber

    @Thomas Theisen Alienation the population is what LE does best. The tragedy is that they cannot see that that is what is being done.