To combat homelessness, San Diego police officers are increasingly turning to a local law that was originally enacted to address  trash dumpsters blocking the public right-of-way.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