San Bernardino Running Legal Risk With Homeless Intimidation Policy

By Mark Gutglueck
As San Bernardino officials pursue the rejuvenation of the county seat’s downtown as a key to the 147-year-old municipality’s economic recovery, their myopic intensity is laying the groundwork for a bare-knuckled, protracted and expensive court battle with advocates for the homeless which is not likely to be adjudicated in the city’s favor.
Once majestic San Bernardino has been in a downward economic spiral for a generation, having suffered a major blow with the Department of Defense’s closure of Norton Air Force Base in 1994. The previous, simultaneous and subsequent exodus of businesses from the county’s largest city resulted in unemployment rates that significantly exceeded state and national levels. The local economy sputtered and real estate values plummeted. The financial malaise of the community at large was reflected in the budgets and operations of local governmental entities, and by the beginning of the millennium perpetually dwindling revenues had pushed the city to the point where its expenditures chronically exceeded its income. Beset with $180 million in ongoing unfunded liabilities and a $49 million annual operating deficit, the city in 2012 filed for Chapter 9 bankruptcy protection. For more than three years the city tarried in bankruptcy, and only within the last two months was it able to structure its exit therefrom.
On the agenda for city officials is remaking the city, rejuvenating it and restoring it to the reputation it once enjoyed at the beginning of the 20th Century, when it and its surrounding communities were considered a Mecca, a resort community in the midst of an agricultural wonderland. Though all hope of restoring the city to its quaint agricultural splendor is eroded, local officials are still possessed of the concept of transforming the dilapidated urbanized landscape into an attractive living arrangement in keeping with modern standards.
Part and parcel with that is having the private sector involve itself – in the form of investment – to rebuild or replace whole city blocks, including the construction of office and professional concerns, retail operations and boutiques combined with inner-city residential uses, what is known as a mixed-use concept.
Indeed, late last year, even prior to San Bernardino making its bankruptcy exodus, city officials hailed obtaining an agreement with AECOM, The Fransen Company and KB Homes to redevelop the Carousel Mall, the once vibrant shopping venue at the heart of the city which included the Harris Department Store, first established in San Bernardino in 1905, J.C. Penney; Montgomery Ward; Cinema Star; and later Gottschalk’s along with over 100 other tenants. The San Bernardino City Council entered into an exclusive negotiation agreement with the three companies as part of what it hopes will be the first major infusion of private capital into the downtown area in decades, an undertaking that will involve reestablishing it as a retail district capped or intersticed with town homes and condominiums.
Simultaneously, the city has embarked on Mayor Carey Davis’s Quality of Life Initiative, a program aimed at removing all visible signs of social problems – graffiti, vandalism, prostitution, property crimes – from San Bernardino’s urban core. As articulated in principle – on paper and in public presentations – Davis’s initiative stands as an eminently reasonable approach toward reinvigorating the city, making it a safe and pleasant place for residents to frequent while simultaneously giving investors a reason to consider San Bernardino as providing the prospect of a decent return on their money. The rebirth of the downtown core could be, Davis and his supporters believe, the spark that will jumpstart the progressive growth that will emanate outward into all other areas of the city.
The catch is that the tactics being covertly employed to achieve this quality of life involve what many consider to be draconian elements, which upon discovery might prove disastrous for the city in terms of the actual costs the city will sustain if its new way of doing things is met with a legal challenge.
Moreover, many feel the use of public money and resources in an effort to criminalize homelessness is both immoral and an abuse of governmental discretion.
San Bernardino officials maintain no effort to criminalize homelessness is ongoing in the city. Many of the homeless and those who have witnessed the action of city employees believe – or know – otherwise.
Efforts to harshly deal with homelessness in both America and California predate substantially the current effort in San Bernardino. In recent years, those policies were inevitably subjected to legal challenge and the courts have consistently held such measures cannot be constitutionally applied. Many of those subjected to this harsh treatment, and the lawyers who have represented them, have recovered substantial amounts of money. More significantly, those efforts have resulted in rulings that establish the homeless cannot be treated as if they are animals, or criminals or third class citizens.
Long ago, the Supreme Court looked favorably at policies that conferred second class status on those who did not have anywhere to live. 180 years ago, the State of New York put in place a law to prevent the “pestilence of paupers, vagabonds, and possibly convicts” from infesting state ports. A challenge was made, but the U.S. Supreme Court, as it was then composed, said the law could stand. Since the dawn of the 20th Century, however, federal courts have consistently found laws, statutes and ordinances which exclude the homeless from public land and criminalize the status of vagrancy to be constitutionally objectionable on multiple grounds. Local governments have pursued creative means – including zoning, loitering and restrictions on camping or remaining in place on public property – to prevent the homeless from lodging in public areas. As the homeless crisis has intensified in recent decades, dozens of cities with populations exceeding 100,000 have have provided themselves with the authority to criminalize all level of activities deemed undesirable, such as sleeping or camping on sidewalks or parkways, panhandling, vagrancy, or erecting tents or temporary shelters on public property.
The City of Los Angeles, in particular, took the lead. By 2005, Los Angeles County was host to more than 80,000 people who had no home. The most intensive concentration of those homeless were those living on Skid Row, which was defined in the course of one court case as the area east of Main Street, south of Third Street, west of Alameda Street, and north of Seventh Street. The stable, or permanent, population of Skid Row has been counted at various times as being between 3,000 and 6,000, the largest concentrated collection of homeless people in the United States. On a typical night, between 11,000 and 12,000 would sleep on Skid Row. In response, the Los Angeles City Council moved to enact, and the Los Angeles Police Department began to enforce, ordinances which prohibited sleeping, sitting, or lying on the street at any time of day. Police officers began to routinely descend upon Skid Row late at night or early in the morning, demanding that those there leave with their belongings. If they did not move on at once, the homeless would be arrested or cited. Any of the items they left behind would be discarded. Then-police chief William Bratton called the collection of ordinances allowing these tactics “a very effective tool” in securing the downtown area.
In 2006, the United States Court of Appeals for the Ninth Circuit in the case of Jones v. City of Los Angeles, held that “the Eighth Amendment prohibits the city from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.” In October 2007, the parties settled the case and sought withdrawal of the opinion, which the Court of Appeals granted. Nevertheless, the ruling in Jones v. City of Los Angeles set the prevailing standard which effectively prevents ordinances from criminalizing conduct that, due to the shortage of housing for the homeless, is an unavoidable outgrowth of being without a place to live, making it legally unacceptable for cities struggling with homeless population challenges from shifting the homeless from streets to jails.
Again pushing the envelope of what restrictions could be placed on the homeless or what ordinances or policies could be employed to induce them to leave, the City of Los Angeles enacted an ordinance allowing authorities to seize and discard unattended personal property located on public property, in particular sidewalks. This provoked a lawsuit, Lavan vs. Los Angeles, in which eight homeless people claimed their personal belongings were illegally taken from the sidewalk when they got up to use the restroom or run an errand. In September 2012, the Ninth Circuit Court of Appeals determined that the city was not allowed to remove and destroy unattended property on the sidewalk, citing Fourth and Fourteenth Amendment violations. The City of Los Angeles for two years sought to appeal the ruling and amend the consequent injunction it entailed, but the U.S. Supreme Court did not deign to review the ruling.
Issues with homeless are seemingly universal in Southern California. Roughly halfway between Los Angeles and San Bernardino, officials in the City of Pomona, reasoning that the Lavan and Jones cases might be considered applicable only to the ordinances passed by the Los Angeles City Council, sought to test whether it could get away with instituting policies that would so complicate the lives of the homeless that they would elect to leave. Utilizing its police, code enforcement officers and sanitation workers, the city seized the personal property of the homeless: bicycles, tents, blankets, sleeping bags, clothes, knapsacks and bags containing papers and documents, identification cards, birth certificates, Social Security cards, medications and other items, and then hauled them away in trash trucks, ultimately depositing them in a landfill. Public Counsel, a public interest law firm of the Los Angeles County and Beverly Hills bar associations, representing 14 Pomona homeless residents and the North Towne Christian Church, filed a class action lawsuit in Los Angeles Federal Court, seeking to stop the city from confiscating and discarding their belongings. According to the suit, the city was utilizing its police, code enforcement officers and sanitation workers to seize the personal property of homeless residents without notice and disposing of it in defiance of laws requiring municipalities to store the items and give people the opportunity and adequate time to recover them.
Recognizing that it was in a very weak legal position, the city caved almost immediately, and within three weeks worked out with the attorneys with Public Counsel an agreement that the police and other city personnel will no longer confiscate and discard the property of the homeless and filed the agreement with the U.S. Central District Court’s Western Division.
Across the Los Angeles County/San Bernardino County line, the cities of Montclair, Ontario, Rancho Cucamonga, Fontana, Rialto and Colton separate Pomona from San Bernardino.
That physical buffer, some San Bernardino officials have convinced themselves, insulates them from the legal requirements imposed on their counterparts in Los Angeles County. Banking on the theory that San Bernardino County, including the county seat, qualifies as an obscure backwater jurisdiction which is unlikely to garner the attention of such homeless advocacy groups as Public Counsel and the American Civil Liberties Union, San Bernardino City Officials have instituted an unofficial policy of both reducing the visibility of the homeless on its streets while inducing as many as possible to leave. That unofficial policy is out of synchronization with the city’s written policies on its formulas for dealing with the homeless, which is essentially in compliance with the principles embodied in the Jones v. City of Los Angeles and Lavan v. City of Los Angeles decisions. This two-tracked approach – what city officials, including the city attorney’s office, say municipal employees are doing and the activities police officers and code enforcement officials are actually engaged in – constitutes, city officials believe, a fig leaf behind which the city can maintain itself if an outside group does emerge to challenge the efforts to encourage the homeless to leave San Bernardino. The calculation city officials have made, which so far at least has proven safe, is that the homeless are not financially fixed to stand up for themselves, that is, to be able to hire an attorney to legally contest what is happening to them.
Last month, after a three-year abeyance in bankruptcy, the city presented its “plan of adjustment” and is now taking its first baby steps back to financial, or what approximates financial, normalcy.
Understandably, city officials at this juncture are anxious to put the city’s best foot forward and make a favorable impression upon potential investors or entrepreneurs contemplating setting up operations in the city. Accordingly, they are seeking to redress the city’s image. This appears to include getting the “riff-raff” off the streets, using whatever tactics suffice.
Part of that effort exists under the guise of Mayor Davis’s “Quality of Life” initiative, which is ostensibly aimed at making tangible improvements to the city. Mixed into the agenda of making visible improvements to the city’s appearance, reducing or eliminating blight, improving or refurbishing infrastructure, raising property values and restoring civic pride is the goal of persuading the homeless to go elsewhere. According to many living on the streets, the police department has been employed as a cat’s paw in achieving this end. Where arrests of a homeless person on an ostensibly bonafide criminal charge, probation or parole violation or outstanding warrant can be made, that often occurs. Those who are merely living on the streets and are not engaging in any overt criminal wrongdoing present a greater challenge. In San Bernardino, seizing their possessions – sleeping bags, blankets, tents, backpacks, clothes, medication and food – either while the homeless are there or when they have temporarily left those items to go find a restroom or do something else – is a means of encouraging or inducing them to move on.
Multiple anecdotal accounts of that sort of treatment of the homeless in San Bernardino have reached the Sentinel. Homeless individuals have related to the Sentinel their version of events relating to the loss of their possessions after city employees, including police officers, have seized their items and jettisoned them. More recently, a Sentinel reporter witnessed two police officers, neither of whom appeared to have warrants, rifling through the effects of a homeless couple who were camped in the storefront area of a building on E Street. One of those officers ordered the Sentinel reporter to leave.
In response to a Sentinel California Public Records request for city “policies on interactions with homeless persons, seizure of possessions for homeless individuals, and a log of property seized/disposed of for homeless individuals,” the city attorney’s office provided copies of “Policy 418 [and] Policy 804 [and] Policy 464” in the “San Bernardino Police Department Policy Manual.”
Policy 418 pertains to “Mental Illness Commitments” and “guidelines for when officers may take a person into custody for psychiatric evaluation and treatment.” Stating “It is the policy of the San Bernardino Police Department to protect the public and individuals through legal and appropriate use of the 72-hour treatment and evaluation commitment,” Policy 418 goes on to state, under section 418.4.1 Securing Of Property, “When a person is taken into custody for evaluation, or within a reasonable time thereafter, and unless a responsible relative, guardian or conservator is in possession of the person’s personal property, the officer shall take reasonable precautions to safeguard the individual’s personal property in his/her possession or on the premises occupied by the person (Welfare and Institutions Code § 5150). The officer taking the person into custody shall provide a report to the court that describes the person’s property and its disposition in the format provided in Welfare and Institutions Code §5211, unless a responsible person took possession of the property, in which case the officer shall only include the name of the responsible person and the location of the property.”
Policy 804 in the San Bernardino Police Department Policy Manual pertains to “Property and Evidence” and pertains to “the proper collection, storage, and security of evidence and other property.” In addition to specifying how evidence seized during police operations is to be secured for aiding in follow-up investigations or prosecutions, the policy also covers “found property” which “includes property found by an employee or citizen that has no apparent evidentiary value.” According to the policy, “found property and property held for safekeeping shall be held for a minimum of 90 days and 60 days respectively. During such period, [department] personnel shall attempt to contact the rightful owner by telephone and/or mail when sufficient identifying information is available. Property not held for any other purpose and not claimed within 90 days after notification (or receipt, if notification is not feasible) may be auctioned to the highest bidder at a properly published public auction. If such property is not sold at auction or otherwise lawfully claimed, it may thereafter be destroyed.”
Policy 464 in the in the San Bernardino Police Department Policy Manual pertains to “Homeless Persons.” According to Policy 464, “The San Bernardino Police Department recognizes that members of the homeless community are often in need of special protection and services. The San Bernardino Police Department will address these needs in balance with the overall mission of this department. Therefore, officers will consider the following when serving the homeless community. It is the policy of the San Bernardino Police Department to provide law enforcement services to all members of the community, while protecting the rights, dignity and private property of the homeless. Homelessness is not a crime and members of this department will not use homelessness solely as a basis for detention or law enforcement action.”
Policy 464 states, under the heading ”Field Contacts” that “Officers are encouraged to contact the homeless for purposes of rendering aid, support and for community-oriented policing purposes. Nothing in this policy is meant to dissuade an officer from taking reasonable enforcement action when facts support a reasonable suspicion of criminal activity. However, when encountering a homeless person who has committed a non-violent misdemeanor and continued freedom is not likely to result in a continuation of the offense or a breach of the peace, officers are encouraged to consider long-term solutions to problems that may relate to the homeless, such as shelter referrals and counseling in lieu of physical arrest. Officers should provide homeless persons with resource and assistance information whenever it is reasonably apparent that such services may be appropriate for community-oriented policing purposes.”
Under the heading, “464.4 Personal Property,” the San Bernardino Police Department Policy Manual states, “The personal property of homeless persons must not be treated differently than the property of other members of the public. Officers should use reasonable care when handling, collecting and retaining the personal property of homeless persons and should not destroy or discard the personal property of a homeless person. When a homeless person is arrested or otherwise removed from a public place, officers should make reasonable accommodations to permit the person to lawfully secure his/her personal property. Otherwise, the personal property should be collected for safekeeping. If the arrestee has more personal property than can reasonably be collected and transported by the officer, a supervisor should be consulted. The property should be photographed and measures should be taken to remove or secure the property. It will be the supervisor’s responsibility to coordinate the removal and safekeeping of the property. Officers should not conduct or assist in clean-up operations of belongings that reasonably appear to be the property of homeless persons without the prior authorization of a supervisor or the department homeless liaison officer. When practicable, requests by the public for clean-up of a homeless encampment should be referred to the homeless liaison officer. Officers who encounter unattended encampments, bedding or other personal property in public areas that reasonably appears to belong to a homeless person should not remove or destroy such property and should inform the department homeless advocate if such property appears to involve a trespass, blight to the community or is the subject of a complaint. It will be the responsibility of the homeless advocate to address the matter in a timely fashion.”
There are strong indicators that the City of San Bernardino is not living up to the compassionate and humanistic ideals expressed in its police department policy manual.
The city did not provide a response to the Sentinel’s public records request for a log of property seized/disposed of for homeless individuals.
Similarly, the city deemed the Sentinel’s earlier public records request for the identities, that is, the names, of all individuals detained, cited, arrested, prosecuted or processed on loitering, trespassing, vagrancy, squatting or occupation of public property charges or their equivalents as “overbroad.”
Amid the persistent reports that the city has stepped up its efforts to arrest, cite or otherwise process the homeless in an effort to persuade them to leave San Bernardino, the city excluded from its response to the Sentinel’s Public Records Act request a delineation of citations and arrests of homeless individuals in the last three months.
The city did, however, provide arrest statistics pertaining to the homeless for 2013, 2014 and 2015. Those statistics show that in 2013, there were 143 arrests of homeless in the city; a significant upsurge to 583 in 2014; and 178 in 2015.
Belinda Escobosa-Helzer an attorney with the Southern California Office of the American Civil Liberties Union, said that the City of San Bernardino was treading on extremely thin ice in pushing to persuade the homeless to leave town.
“The Eighth Amendment prohibits cruel and unusual punishment and governmental entities cannot criminalize someone for being homeless,” Escobosa-Helzer said. “Cities cannot arrest or cite people from resting or sleeping in public or stop them from storing their property unless and until they provide sufficient shelter for that portion of the population. You cannot criminalize people for engaging in something all human beings must engage in. In the 2015 point in time survey, 2,140 were counted as homeless in the city of San Bernardino. There are a number of factors that go into what makes up homelessness. A certain percentage of the homeless population are those who have recently lost employment and have undergone foreclosure and eviction. Many of those will regain employment and cease being homeless. But those who have been living on the street for a long period of time or have mental and physical disabilities are defined as chronically homeless. The 2015 point in time count showed that 61 percent of the homeless people are unsheltered. So when you look at the numbers of people in San Bernardino who are technically homeless and how many beds are available, the city still has an unmet need of 600 to 800 beds per night. It is these people with mental and physical disabilities that local governments tend to look upon as a so-called blight on the community, but San Bernardino, under the principles of the Jones decision, which has been supported by the Department of Justice, cannot criminalize people for being homeless until there is a place for them to go.”
Escobosa-Helzer then referenced the Lavan decision, which, she said “originated as a property rights case involving the Fourth and Fourteenth amendments.” The ruling in that matter, she said, establishes that “the police can’t seize property or take custody of someone else’s personal property, and if they do because they deemed it to be abandoned, they have to leave a note as to where the property is taken and provide the opportunity for that person to get it back through some sort of process.”
Escobosa-Helzer said that “With the Jones and Lavan cases it is recognized that just because people are experiencing homelessness, they have rights against unconstitutional cruel and unusual punishment and unreasonable search and seizures and they have the right to due process.” She said that denying the homeless their constitutional rights has become part of “the tactics governments have generally engaged in which are based on the assumption and belief that homelessness is a choice. Criminalizing homelessness is a far more ineffective and expensive policy and practice than providing people who are living on the streets with a place to stay.”
Lieutenant Rich Lawhead, the official spokesman for the San Bernardino Police Department, insisted in his statement to the Sentinel, that the police department had a policy in dealing with the homeless that adhered to the fundamental principles embodied in the Jones and Lavan decisions.
“I will tell you they have been given guidelines to follow,” Lawhead said of the department’s officers. “At the time any property is seized it will be tagged and appropriate notification given before we throw anything away. There is no law against being homeless. Thank God we live in a country where we have the right to be homeless if we want to. People have the right to be homeless. We don’t infringe on people’s right to be homeless.”
Lawhead acknowledged that the department’s officers do take action against the denizens of the streets, but only when it is called for.
“Property owners have rights too and when anyone intrudes on the rights of business owners who have the right to enjoy their property, there has to be a balance,” Lawhead said. “When we come across a homeless camp, we give people notice before we do anything. If we clear out what might constitute an illegal homeless encampment and if there is an arrest relating to illegal activity, we tag their property and keep and hold it for them until such time as they are allowed to come and get their property. There is nothing to prevent a private property owner from clearing his property.”
As to Mayor Carey Davis’s Quality of Life Initiative, Lawhead defended it as a well-intentioned and effective measure toward improving San Bernardino. “This is not a program aimed at the homeless,” he said. “It has nothing to do with the homeless. It is a program to clear blight. We have mattresses and chairs and couches out on our sidewalks. We have yards with accumulated debris. It is an effort to deal with those issues and other illegal dumping material. Our goal is to make the city look better overall. Do we clean up what is left after homeless encampments? Yes. Every personal item we come across we tag and preserve for recovery.”
Lawhead acknowledged that people are not permitted to set up overnight residences on public property and they are not allowed to encroach on the city’s sidewalks.
“We have an ordinance against camping on public property,” he said, but indicated that the enforcement of that ordinance has much to do with “where and how. It depends on what the circumstances are. If there is an encampment that forces someone in a wheelchair to go off the sidewalk into the roadway, that is unsafe, and we do not allow it. We have had three or four people in wheelchairs in the city struck by cars and killed in recent years. If they have set a tent up in a park during daylight hours, that is not necessarily illegal. But you can’t be in the park after nine or ten p.m.”
Lawhead disputed accounts of individuals being arrested for vagrancy in conjunction with Davis’s Quality of Life Initiative. And he disputed that the action of two of the city’s police officers seen rifling through a homeless couple’s effects represented a departure from the department’s official policy with regard to interactions with the homeless or a violation of the principles inherent in the Lavan decision. Rather, he suggested, the Sentinel had, by seeking to photograph the encounter, “interfered with an investigation. You really don’t know anything about why they [the officers] asked you to leave. They may have gotten the impression you were interfering with the investigation. Your interpretation of what you saw and their interpretation of what you saw may not commingle.”
A picture that depicts the City of San Bernardino and its police department as being hostile to and unwelcoming of those living on the streets would be a false one, Lawhead said.
“I think one of the keys is that we offer a number of resources for those that we come in contact with and we are one of the only cities in the county that currently operates a resource center,” he said.
Christina Giorgio, an attorney with Public Counsel, told the Sentinel, “Individuals experiencing homelessness have the same constitutional rights in their property as a housed person. When a city, through its employees, summarily seizes and destroys the property of individuals experiencing homelessness, the city violates the Federal Constitution and numerous state laws as well. Such conduct is not only illegal, it endangers the health and safety of homeless individuals, as it typical involves the seizing and destroying of life-sustaining items such as prescription medication. The conduct is also terribly counterproductive to the process of ending homelessness, as the seizure typical strips these individuals of papers and IDs they need to access housing and benefits and apply for jobs. Also, it is terribly inhumane, as the items carried by those experiencing homelessness are among the most precious and irreplaceable keepsakes imaginable, such as the ashes of deceased parents, as was the case for two of our clients the Pomona case. To rip these belongings away from someone forced to live on the streets constitutes a huge psychological blow from which it is extremely difficult to recover.”

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