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Is homelessness a crime? 

SLOPD says it's made progress in how it deals with the city's homeless, but some worry the population is still being criminalized

click to enlarge A PLACE TO SLEEP SLO and other cities will likely review their ordinances after a recent federal appellate court ruled that punishing or arresting homeless individuals for sleeping in public places when there is no alternative was unconstitutional. - PHOTO BY JAYSON MELLOM
  • PHOTO BY JAYSON MELLOM
  • A PLACE TO SLEEP SLO and other cities will likely review their ordinances after a recent federal appellate court ruled that punishing or arresting homeless individuals for sleeping in public places when there is no alternative was unconstitutional.

It's late on a Friday night, and things have been fairly quiet for San Luis Obispo Police Department Sgt. Trevor Shalhoob.

Cal Poly's Week of Welcome is hitting its final stretch, and while the bars are swamped with college students, the dark, quiet section of neighborhood he's patrolling is calm and nearly silent.

His radio crackles to life. Someone calls to report a woman near the downtown area screaming loudly in public. No threats or physical violence. She's just screaming at the top of her lungs. He can hear her in the background of the transmission.

Shalhoob says that he and many of the department's officers know her. She's a transient with a mental illness. When she is on her medication, he said, she is reasonable and willing to speak with officers. But when she isn't, she sometimes screams at people or even objects. It usually frightens passersby and they end up calling the police. Still, her many interactions with the SLO officers don't end with her being arrested because she isn't hurting anyone or even breaking any laws.

"People need to understand," Shalhoob says, "it's not a crime to be mentally ill."

click to enlarge GATHERING Members of SLO's homeless community and others gather at Mitchell Park, where the local chapter of Food Not Bombs offers a meal once a week. - PHOTO COURTESY OF FOOD NOT BOMBS SLO
  • Photo Courtesy Of Food Not Bombs Slo
  • GATHERING Members of SLO's homeless community and others gather at Mitchell Park, where the local chapter of Food Not Bombs offers a meal once a week.

The relationship between the homeless and law enforcement has long been fraught. Officers in departments like SLO's must address the wider public's concerns, both real and perceived, about the public health and safety issues raised by a large homeless population, while respecting the human and constitutional rights of individuals who are living on the streets. The tension between those two goals could be further strained after a federal appellate court ruling that may impact the city's laws about sleeping or camping in public spaces.

While some believe that the SLO Police Department is making headway in addressing the needs of the population by instituting programs and policies to connect them with services and support to keep them out of jail, others believe that some of the city's ordinances still punish the poor and un-housed for simply being homeless.

The tug of war between the two viewpoints isn't lost on SLO Police Chief Deanna Cantrell.

"I get emails constantly from both sides of this argument," Cantrell told residents at a June 27 forum on homeless issues. "That being homeless isn't criminal and, 'You guys are terrible and you're making everything a crime.' Then I get it from the other side. It's, 'Why aren't you doing something?'"

The letter of the law

In cities like SLO, the police are usually on the front lines when it comes to interacting with the homeless population. At the forum, Cantrell said that her department regularly fields calls from the public about homeless individuals, even when they aren't doing anything that might be considered a crime.

"It's not illegal to be dirty. It's not illegal to have mental illness. It's not illegal to talk to yourself. It's not illegal to talk to inanimate objects. It's not illegal for groups of homeless people to hang out with each other," she said. "But the police department gets called for all those things."

Cantrell outlined the department's efforts to assist the homeless population. That includes the use of its Community Action Team (CAT), a pair of officers who regularly work with the city's homeless, focusing on outreach and helping direct them to services that might help them. The department is also in the process of hiring a mental health professional who will be embedded with the CAT officers as part of a one-year pilot program.

"Our goal is really to get them into services first," Cantrell said. "Secondary to that is enforcement."

Enforcement, of course, is still always on the table. When it comes to the city's chronically homeless population, the most common enforcement occurs from minor crimes such as public intoxication, littering, and illegal lodging, as well as citations for violations of the city's municipal code for aggressive panhandling, public smoking and urination, and public consumption of alcohol or possession of open containers of alcohol.

Violating some of those ordinances can end with a misdemeanor arrest in some circumstances, but more often, they result in a citation—what essentially amounts to a ticket and fine. At the forum, Cantrell indicated that such citations were only so effective in addressing residents' worries about quality of life and public safety concerns raised in connection with SLO's homeless.

The homeless who receive such citations are often repeat offenders. The department's top 10 offenders in 2017 where charged with crimes more than 470 times. The No. 1 offender was cited with alcohol violations 45 times in one year.

"The citations, I've got to be honest, probably don't carry much weight ... the problem is it's not a very big stick. It's a toothpick," she said.

Cantrell said that many homeless who are cited ignore the tickets, don't pay fines, and fail to show up in court. Those add up until the court issues a warrant for failure to appear, which can result in an arrest and a short jail sentence. It's not the optimal outcome, but Cantrell said that time in jail can also be a chance for homeless individuals suffering from drug or alcohol addiction to get sober, get help for mental illness if they need it, and get connected with support services they may have missed or refused while on the street.

"Jail works sometimes," Cantrell told residents at the forum. "I know you might disagree, but it really does. There's a purpose for it."

Criminalization concerns

While Cantrell and the department stress that their approach is to get chronically homeless individuals in SLO help before resorting to citation or arrest, Kelsey Zazanis was skeptical.

In August, Zazanis said she was walking near Madonna Plaza when she saw two female police officers accost a homeless man at a bus shelter. The man had a shopping cart filled with trash bags. Zazanis said she watched the two officers force the man to take the bags out of his cart before "forcefully shoving it away." She decided to intervene.

"I asked them, 'Why are you harassing this man?'" she said. "They said he was breaking the law. I asked them what law he was breaking, but they couldn't answer me."

Zazanis is one of several co-founders of the local chapter of Food Not Bombs, a group that feeds homeless individuals in Mitchell Park on Sundays. She, similar to the group's other members, is concerned that police use the city's laws and ordinances to penalize or harass individuals for being homeless. SLO isn't the only city grappling with those concerns. A 2015 study by UC Berkley Law School's Public Advocacy Clinic found that 58 cities in California had enacted as many as 500 laws that criminalized activities commonly associated with homeless individuals. Those included laws governing standing, sitting, and resting in public places; sleeping, camping, and lodging in public areas and vehicles; begging and panhandling; and food sharing.

click to enlarge SIGN OF THE TIMES SLO's homeless population is a fixture of the city. Police say they try to reach out to offer help and services before citing and arrest homeless individuals. Still others worry that some of the city's laws penalize people because they are homeless. - PHOTO BY JAYSON MELLOM
  • Photo By Jayson Mellom
  • SIGN OF THE TIMES SLO's homeless population is a fixture of the city. Police say they try to reach out to offer help and services before citing and arrest homeless individuals. Still others worry that some of the city's laws penalize people because they are homeless.

According to the same report, SLO has six ordinances on the books that could be used to penalize individuals for being homeless. At least one of those ordinances had to be amended after it landed the city and police department in court six years ago.

In 2012, local attorneys Saro Rizzo and Stew Jenkins sued the city over a zoning ordinance it used to prohibit sleeping in vehicles on city streets. Rizzo told New Times that they brought the lawsuit against the city after reports from their clients that the SLOPD, then under the leadership of Cantrell's predecessor, Chief Steven Gesell, ramped up enforcement of the ordinance, resulting in multiple homeless individuals receiving citations and having to pay fines.

"We heard that the police were doing midnight raids, banging on the windows of vehicles with their batons and telling people to get out of town," Rizzo said. "I said, 'That's wrong.' We questioned the constitutionality of the application of the law and asked the court to review it."

In July of that year, a SLO County Superior Court judge sided with Rizzo and Jenkins. Stating that—among other reasons—the ordinance and the enforcement actions by the department singled out poor and homeless people for harsh treatment, the judge ordered the police department to immediately cease issuing the citations. The lawsuit ended with a settlement agreement. The city agreed to revise the overnight camping ordinance, limiting prohibited camping hours to between 10 p.m. and 6 a.m. and enforcing it as a parking citation. The city also agreed to put up signage on city streets and dismiss any tickets issued under the old ordinance that year.

Rizzo said he was happy with the lawsuit's resolution and felt that the police department, now under Cantrell's leadership, was doing a better job of trying to address issues with the city's homeless population.

"I think the attitude of the current chief and the city is much better," he said. "There's a much better understanding as to what their rights are."

Not everyone is satisfied with the results of the settlement. After the 2018 election, the recently formed SLO chapter of the Democratic Socialists of America said they will lobby the city to completely repeal the current overnight camping ordinance.

"Really, it's hard to see how this law is applied and not conclude that it targets a vulnerable population," said Grant Helete, a member of the organization's homeless issues working group. "This is not the way to address the root issue."

Martin v. City of Boise

In September, the U.S. 9th Circuit Court of Appeals ruled that prosecuting homeless individuals for sleeping outside on public property when adequate alternative shelter isn't available violated the U.S. Constitution's prohibition of cruel and unusual punishment. The decision on the case, Martin v. City of Boise, was the result of a lawsuit brought against the city of Boise, Idaho, for its ordinances that ban sleeping on public property. The decision applies to all states in the 9th Circuit's jurisdiction, which includes the state of California.

"As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter," the court wrote in its majority decision. "As long as the homeless plaintiffs do not have a single place where they can lawfully be, ... the challenged ordinances effectively punish them for something for which they may not be convicted of under the Eighth Amendment."

Eric Tars, a senior attorney for National Law Center on Homelessness and Poverty who served as co-counsel on the Martin v. Boise case, said cities impacted by the court's decision should look at it as an opportunity to address the root causes of homelessness and put in place the best practices to combat it.

"Too often, the knee-jerk response is to try and criminalize them and get them off the street quickly," Tars said. "It's a terrible policy, because you are trying to use the criminal justice system to address a social failing."

In an email response to New Times, SLO Police Chief Cantrell said she'd be meeting with City Attorney Christine Dietrick at the end of October to discuss the court's ruling and any impacts it may or may not have.

Depending on how the language of the ruling is interpreted, some of the city's ordinances might not necessarily apply to the court's decision, including the current overnight car camping ordinance, which Dietrick said was classified as a simple parking ticket and not a criminal violation.

click to enlarge LOCAL LAWS SLO city does not have an ordinance that bans feeding the homeless in public places, but other laws against overnight vehicle camping, sitting on public benches for too long, and panhandling in public often impact the city's homeless population. - PHOTO BY JAYSON MELLOM
  • Photo By Jayson Mellom
  • LOCAL LAWS SLO city does not have an ordinance that bans feeding the homeless in public places, but other laws against overnight vehicle camping, sitting on public benches for too long, and panhandling in public often impact the city's homeless population.

"It's a parking violation, and that's an important distinction," she said. "This case is about criminalizing this type of activity. Under our ordinance this is not a criminal activity."

Other ordinances that might be impacted by the ruling include SLO's bench ordinance; illegal lodging ordinance; and ordinances against blocking streets, sidewalks, and alleys. Dietrick noted that, unlike the Boise laws challenged in the case, some of SLO's ordinances only ban such activities for certain periods of time. The overnight camping ban, for example, only applies between the hours of 10 p.m. and 6 a.m., and the city bench ordinance allows them to be used by one person for up to one hour, or up to three hours in a 24-hour period.

"There are limitations. Our parks, for instance, are closed for certain hours," Dietrick said. "Most of the ordinances on the city's books are focused in terms of the time of the activity."

Tars was skeptical of both arguments. He said that the court's ruling didn't distinguish between criminal violations and fine-based citations. He also noted that banning the activity for certain hours still penalized poor and homeless if there was nowhere else they could sleep during those hours.

"I'd say it would still be unconstitutional," Tars said.

Other SLO County municipalities are questioning whether their ordinances will pass muster in the wake of the court's ruling, particularly in South SLO County, which has no permanent homeless shelter. Grover Beach City Manager Matthew Bronson told New Times that the city was aware of the court decision and would be reviewing its impact.

"We believe it will place limitations on how we enforce our camping ordinance in the city," Bronson said.

At a Sept. 25 City Council meeting, Arroyo Grande Police Chief Beau Pryor also raised concerns, worrying that the ruling would lead to more homeless encampments in his city.

"I would anticipate that the face of our community is going to change slightly," he said. "When we can't enforce our camping ordinances, the homeless folks that don't have access to shelter beds could be allowed to set up in our public parks and properties and stay overnight."

As SLO, Grover Beach, Arroyo Grande, and other California cities grapple with how to respond to the 9th Circuit's ruling, Tars warned against trying to find ways around the decision, stating that cities should see it not as a limitation, but a tool to help communities have a dialogue about how to truly address homelessness.

"Unfortunately, communities have shown a lot of creativity in the ways they try to criminalize homelessness," he said. "Rather than putting so much energy into trying to thread the constitutional needle ... why not put that effort into actually trying to solve the problem of homelessness?"

No easy answers

Like most of the factors surrounding the issue of homelessness, the relationship between individuals living on the streets and the police officers tasked with protecting those same streets is complicated. Local laws, ordinances, and concerns for public health and safety collide with legal battles, court decisions, socioeconomic realities, and individual rights in a complicated web that affects the interactions between the two groups on a daily basis.

At the June forum, Cantrell acknowledged that the issue was complex, but said she is remaining committed to respecting homeless people's rights and to trying to get them help if they wanted it.

"Sometimes that takes two or three or four or five tries," she said. "And we're not going to give up, none of us are, but it does really require that people meet us halfway."

Dennis Powell, who like Zazanis is one of the co-founders of Food Not Bombs SLO, has seen the interaction between the police and SLO's homeless firsthand. Powell describes himself as homeless by choice, and, while he acknowledged that the city and police department may have made some gains on how they treated homeless people, he cautioned against using the signs of progress as a reason to look away from the problems that remain. He urged the public to be vigilant.

"Even one instance of injustice or unfairness blows the whole thing," Powell said. "If you see something happening, bear witness to the situation and make sure nothing cruel or unfair is happening." Δ

Staff Writer Chris McGuinness can be reached at cmcguinness@newtimesslo.com, and on Twitter as @CWMcGuinness.

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