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The City’s Walking a Legal Tight Rope With Its Hep A and Homelessness Strategies

The city’s struggling to balance its response to a public health emergency and exploding homelessness with past and pending legal cases meant to preserve homeless San Diegans’ rights.

homeless downtown San Diego

Homeless people line up their belongings alongside Fault Line Park in East Village. / Photo by Adriana Heldiz

The city’s struggling to balance its response to a public health emergency and exploding homelessness with past and pending legal cases meant to preserve homeless San Diegans’ rights.

Amid ramped up enforcement aimed at the homeless population, which has been hit hardest by the hepatitis A outbreak, the city’s had to grapple with settlements laying out rules for police ticketing homeless people and two more recent lawsuits challenging city enforcement tacks.

City officials say they’re complying with two settlements dictating how police handle homeless San Diegans’ property and when they can ticket people for settling in tents – and that they’re reviewing next steps with two suits calling on the city to abandon enforcement tools often applied to San Diego’s homeless population.

But attorney Scott Dreher, who’s involved in all of those cases, is exasperated. He thinks the city’s running afoul of the agreements he negotiated, and violating the constitutional rights of homeless San Diegans living on the streets and in cars and RVs.

“They’re now using the (hepatitis A public health) ‘emergency’ to run roughshod over the constitutional rights of the homeless,” Dreher said.

Here’s a rundown of the settlements binding certain city procedures, the pending legal cases alleging violations by the city, and where things stand with them.

The Spencer Case

More than a decade ago, a group of homeless San Diegans filed a class action over the city’s enforcement of illegal lodging, a state law that bars settling somewhere without permission.

The case ended with a 2007 settlement requiring police to offer an open shelter bed to people they encounter on the street between 9 p.m. and 5:30 a.m. before they can cite or arrest them for illegal lodging. In other words, officers can’t make illegal lodging arrests if shelters are full.

Police have said they rarely run into issues with the settlement since most enforcement happens during the day, and the city usually has beds to offer homeless San Diegans at night.

But the opening of three new shelter tents in coming weeks and a temporary, sanctioned tent city at 20th and B streets in Golden Hill could potentially give police more latitude with enforcement.

A spokeswoman for the city attorney’s office said the city is continuing to comply with the settlement. But Dreher said he’s concerned by stories of recent arrests. For example, Dreher said he’s heard of multiple instances where homeless people were cited or arrested immediately after 5:30 a.m. with no warning or offer of shelter.

Spokesmen for Mayor Kevin Faulconer and the Police Department disputed this. They say police almost always offer resources to homeless San Diegans before an arrest or citation.

Lt. Scott Wahl, the police spokesman, said officers sometimes must respond quickly to deal with a combative person or safety issue and thus may not offer help in every instance.

“The city’s intent has been, and will continue to be, to provide a better alternative for people to living on the streets or in parks and riverbeds,” Faulconer spokesman Greg Block wrote in an email.

Dreher isn’t satisfied.

He said he may bring up his concerns that the city’s violating its settlement with federal Magistrate Judge William Gallo, who’s presided over the case and settlement discussions.

Dreher has also previously raised concerns about the city’s increasing use of its encroachment code, which was written to curb trash left on sidewalks, to crack down on homeless San Diegans since the illegal lodging settlement in 2007.

The Encroachment Challenge

Ten homeless San Diegans filed a class action against the city this summer over its use of the encroachment code to disrupt homeless camps.

Dreher and fellow attorney Kath Rogers, who are representing the plaintiffs, allege the city’s violating homeless San Diegans’ civil and constitutional rights. They demanded that the city stop applying the code to homeless San Diegans, and said they were eager to talk to the city about options to address their concerns.

But instead of re-evaluating the use of encroachment violations in response to the suit, the city has doubled down. Police and the mayor’s office have said citations and arrests have been necessary to facilitate power-washing of city sidewalks in response to  the spread of hepatitis A.

A settlement on the case looks unlikely after three sit-downs between the city and the lawyers.

“Those were absolutely unproductive,” said Dreher, who believes the city-sanctioned safe campground and soon-to-be-opened shelter tents set to temporarily house as many as 700 people don’t do enough to address concerns about the encroachment code.

The city is set to formally respond to the concerns raised in the lawsuit next month.

Parking and Sleeping in Vehicles

Homeless San Diegans living in vehicles and RVs are constantly trying to avoid tickets from police. Residing in a vehicle is banned in the city, and a new law pushed by Faulconer when he was a city councilman bars parking RVs or other large vehicles in public streets or parking lots overnight.

Nine homeless San Diegans with disabilities who live in RVs or cars sued the city earlier this month, alleging the city’s vehicle habitation and oversized vehicle ordinances unfairly target homeless San Diegans.

Last fiscal year, officers handed out more than 60 citations for vehicle habitation and wrote more than 2,300 tickets for violations of the oversized vehicle ordinance, according to police data.

“Our No. 1 goal is to stop the ticketing,” said attorney Ann Menasche of Disability Rights California, an advocacy group that led efforts to assemble the case.

Menasche’s group began raising concerns with city officials this spring about the plight of San Diegans with disabilities who live in their vehicles and asked if they’d modify the policies. The ticketing continued.

As Menasche, Dreher and others worked on the case, Faulconer announced a city-funded expansion of a safe parking program for people living in cars.

But the lots, operated by nonprofit Dreams for Change, don’t allow RVs. A Faulconer spokesman said the mayor’s team began looking into possibilities for those living in RVs before the lawsuit was filed and is continuing to do so.

Menasche said her group may be willing to discuss solutions with the city but will be pushing for quick action.

“We want this to stop, and we’re not going to be allowing the city to twiddle their thumbs,” Menasche said.

The Storage Case

Years ago, the nonprofit Isaiah Project and the ACLU of San Diego and Imperial Counties sued the city and the Downtown San Diego Partnership, claiming workers had unlawfully seized and discarded the property of dozens of homeless San Diegans during regular sidewalk clean-ups.

That led to a settlement mandating that city workers put up signs giving homeless San Diegans who live at clean-up sites notice that they’ll need to move within 72 hours. It also required the city to set up a storage facility where unattended property can be held after sweeps.

Enter the hepatitis A outbreak. The city had already increased the frequency of the clean-ups in 2016. Now it’s cleaning city sidewalks even more often and power-washing them too.

Dreher said he’s concerned the city is throwing away homeless San Diegans’ property rather than storing it as required, a violation of the settlement.

Dreher said the city asked earlier this month if he’d consider amending the settlement to allow city workers to throw away items without the 72-hour notice. Dreher refused.

A spokeswoman for the city attorney’s office said only that the city is complying with the settlement as it stands and noted that a judge would have to sign off on any changes to it.

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