After the removal of the last underpinning of what was previously a layer of interwoven federal, state and local legal and social regulations preventing the upending of homeless encampments, the City of San Bernardino is set to force hundreds of able-bodied dispossessed from its municipal parks.
For decades, the county seat for multiple reasons has been a magnet for the homeless population, including those local citizens who through financial adversity lost their homes or the means to rent one, as well as those leaving, in particular Los Angeles/Los Angeles County and moved eastward, and many who have come to California from other states.
The warm or at least warmer weather in the fall, winter and spring in Inland California makes for less onerous nights for those without the advantage of a roof over their heads. Moreover, when the homeless population in California began to surge in the late 1990s and early 2000s, some San Bernardino County and San Bernardino city officials overreacted, utilizing draconian means that went beyond being harsh to outright cruel, inhumane and criminal to dissuade those who were unhoused from coming to the area or to persuade those who were already here to leave, as well as to prevent local do-gooders from assisting them. This provoked a backlash against such efforts, including some intervention by activist lawyers who went to bat for the homeless in a courtroom setting, forcing a recognition of how local authorities had crossed the line and sparking some court rulings that tied the hands of both the police and code enforcement divisions to prevent them from, publicly and openly at least, intimidating the homeless, roughing them up, kicking them, punching them, striking them with objects, seizing their bedding, tents, clothing, and other personal effects and throwing them into the trash, siccing police dogs on the homeless, arresting and jailing them on trumped-up charges, dousing them with insecticide, lighting them on fire and offering them cyanide-laced food to kill them. The San Bernardino Police Department, in particular, got itself and some of its officers into trouble when those officers assaulted, beat into submission, arrested and seized the cell phones of citizens who sought to video the police as they physically abused the homeless.
Simultaneously over the years, at the national and state level laws were passed that were both aimed at giving the homeless a minimal layer of protection and at providing authorities, both local and state, with the ability to drive the homeless off the streets or out of a given community entirely. The homeless-friendly laws remained in place while challenges to the laws barring homelessness or the homeless were in many cases challenged and overturned.
One of the more basic provisions in the law of the land with regard to homelessness had for decades been embodied in the 1962 case of Robinson v. California. Another legal milestone with regard to the homeless came into place more recently, with the 2018 case Martin v. Boise. In Robinson v. California, the Supreme Court held that the Eighth Amendment prohibits criminalization of a status, as opposed to criminalizing criminal acts, in striking down a California law that criminalized being addicted to narcotics. By extension, this applied to being homeless, such that it made applying traditional vagrancy laws difficult, problematic or even impossible. In this way, from that point on, at least until very recently, an individual could not be prosecuted for being homeless. In Martin v. Boise, the Court of Appeals for the Ninth Circuit ruled that city officials in Boise, Idaho, could not enforce an anti-camping ordinance whenever its homeless population exceeds the number of available beds in its homeless shelters. Since the Supreme Court declined to hear an appeal to this case in 2019, it became binding precedent within the Ninth Circuit. The Ninth Circuit includes the nine western states and all of the Pacific Islands.
Both Robinson v. California and Martin v. Boise had the practical effect of preventing government in general and local governments in particular from declaring open warfare on the homeless.
In San Bernardino County, government officials appeared to be divided on the issue of homelessness. Some were compassionate toward those who had fallen into such a state, and were against, generally, utilizing the power of the law to prohibit them from inhabiting public space. Other officials believed that such compassion was misplaced, and that the proliferation of those unable to fend for themselves by maintaining a domicile was a substantial factor in the deterioration in the quality of life of those who were not homeless, i.e., those citizens residing in homes in neighborhoods contained in the cities and unincorporated communities throughout San Bernardino County. They pushed for and sometimes achieved laws, ordinances and policies which they insisted did not fly in the face of the Martin v Boise or the Robinson v. California standards. In this way, cities and the county passed, or emphasized the enforcement of existing loitering ordinances, which were distinct from vagrancy laws. Another approach, one that was used by the City of San Bernardino, at least for a time, was to arrest those who remained in the city’s parks after sunset – generally meaning 8 p.m. in the summer and 5 p.m. in the winter and times in between in the spring and fall – and to transport them to the sheriff’s department jail in Rancho Cucamonga, known as the West Valley Detention Center, to be booked. In some cases, sheriff’s personnel might book the arrestees, but would immediately release them. Others brought in, particularly ones with no substantial previous criminal records, would be released without being booked. Generally, the only ones that would be incarcerated would be those who had outstanding warrants. Those arrested and transported to the West Valley Detention Center, booked or not, would then face the challenge of walking the 20 miles back to San Bernardino. By the time they would return, many would discover that their possessions – their tents and sleeping bags, camping stoves, clothes and whatnot, were gone, having been thrown out by the police or visitors to the park, appropriated by some other homeless individuals or removed by a person or persons or an entity unknown. After being subjected to this ordeal three or four or five times, many opted not to return to San Bernardino.
As was the case with the elected leadership in other cities, San Bernardino’s mayors and city council members over a long span of time were torn over whether the city should accept money available from the State of California for the support of various homeless assistance programs. There was a degree of debate and difference between the elected officials and the city’s residents with regard to accepting the funds. Some felt the city should accept whatever funding was available. Others were skeptical, believing that unless the programs for the homeless being undertaken proceeded all the way to creating housing that was sustainable and would reduce significantly or eliminate the homeless population, the city should not involve itself in such half, quarter, eighth or sixteenth measures. Others said many homeless were in that state by choice and did not want to be housed. Others argued that providing shelters for the drug addicted or alcoholics only enabled them in pursuing their proclivities. Others still asserted that successful homeless assistance programs would have a “magnet effect,” and would attract ever more homeless to the city.
San Bernardino more than two decades ago, when the problem was far less acute, had dubiously distinguished itself as the haven for more homeless than any other city in the county, and by a substantial margin. Traditionally the city with the next most dispossessed having taken up presence there was Victorville. Beginning in 2007, the City of Ontario began to bear the homeless onus as well, when about 20 ragtag squatters who occupied open property just west of Ontario Airport without authorization created what soon was attracting more and more people, many of whom were in vehicles and would pitch tents immediately adjacent to their cars. In this way, over the course of more than five years, the shantytown there, which was quasi-sanctioned by city officials, grew to a population of roughly 400, putting Ontario on a trajectory to surpass Victorville and eventually San Bernardino as a homeless host. City officials there, however, made a concerted effort beginning in 2012 to move those who did not have vehicles into shelters around the city and began enforcement with regard to the vehicles, many of which were not licensed. By February 2013, the Ontario’s Hooverville was essentially defunct, with only five hardcore residents remaining.
In cooperation with the U.S. Department of Housing and Urban Development, San Bernardino County, through its Department of Behavioral Health and working in conjunction with the San Bernardino County Homeless Partnership in collaboration with the Office of Homeless Services and in consultation with the Institute for Urban Initiatives, conducts the so-called point-in-time-count of what the Department of Behavioral Health calls San Bernardino County’s subpopulation, meaning those who are unhoused. The count is carried out during a single 24-hour period in either January or February. Consistently over the years without a single exception, San Bernardino is the jurisdiction with the most people who have no place to go.
According to the point-in-time counts, in 2015, San Bernardino had 767 homeless; in 2016, 564; in 2017, 491; in 2018 646; in 2019, 890 homeless; and in 2020, 1,056. In 2021, because of the COVID pandemic, the U.S. Department of Housing and Urban Development, San Bernardino County, The San Bernardino County Department of Behavioral Health, the San Bernardino County Homeless Partnership, the Office of Homeless Services and Institute for Urban Initiatives forewent making a survey. In 2022 1,350 homeless were counted in San Bernardino; in 2023 the county seat held 1,502 destitute; and in 2014, there were 1,417 total homeless in the city.
Over the years, though a fair number of the homeless in San Bernardino had set up paupers’ quarters on the streets, in alleyways, in the Santa Ana or Lytle Creek riverbeds or around them, under railroad trestles or freeway overpasses, or hidden in chaparral or landscaping along the freeways, the lion’s share of those without a normative place to live had gravitated to the city’s parks.
In particular, 44-acre Seccombe Lake Park, just east of downtown, was attracting many people, with hundreds sleeping there every night. Beginning more than four years ago, city officials began with an effort to enforce the night curfew and slowly, those living there left. Thereafter, to effectuate a homeless lock-out at Seccombe Lake Park, the city committed to developing a portion of the park’s acreage into an affordable housing project.
But that did not erase the city’s homeless dilemma, as most of those who left Seccombe Lake Park migrated elsewhere in the city, primarily 64-acre Perris Hill Park, which was already popular with about one-tenth of the city’s homeless people, and 14-acre Meadowbrook Park.
Perris Hill Park is considered one of the city’s quintessential parks, with some of the city’s most treasured amenities, including the Roosevelt Bowl and Fiscalini Field,
City officials sought to apply creative ways of getting the homeless to leave its municipal parks, with varying degrees of success. In February 2023, the city council declared homelessness a local emergency, using that declaration as a dictum calling for relocating the homeless off of public property.
In January of this year, Federal Judge Terry Hatter Jr. issued a preliminary injunction preventing the City of San Bernardino from removing unhoused people living in its parks and on the city’s sidewalks and public area. Judge Hatter’s ruling was made in reaction to a lawsuit filed by the American Civil Liberties Union on behalf of the social action group SoCal Trash Army and three individuals – Lenka John, James Tyson and Noel Harner – who were down and out and living in Meadowbrook Park. In May 2023, the city closed down Meadowbrook Park, which is adjacent to the 11-Story courthouse, The San Bernardino Justice Center, in downtown San Bernardino. The shuttering of Meadowbrook Park was done, the city claimed, for maintenance in May 2023. City officials told those living in the park that they would offer them some alternative but never did.
In the suit, John, James Tyson and Noel Harner alleged the city violated their constitutional rights and destroyed or jettisoned their personal property, including medicine, vital documents medical equipment and tents. Harner, who is confined to a wheelchair, maintained in the suit that he was given a one-week voucher to stay at a motel upon being kicked out of Perris Hill Park, but was given no assistance in transiting to the motel or conveying his belongings there.
In his ruling, Judge Hatter made a finding that the city discarded and/or destroyed the displaced homeless residents’ belongings, did not accommodate their needs and “likely” engaged in a violation of their constitutional rights as well as those under the Americans with Disabilities Act.
Judge Hatter barred the city from removing or displacing unhoused residents and their belongings pending further judicial review of the matter. He said the court would consider vacating the order if the city can formulate a binding policy by which it replaces homeless encampments with housing options for those to be displaced.
This summer, however, there was a sea change with regard to how local agencies, municipalities, cities, towns and counties can deal with the homeless. On June 28, 2024, The U.S. Supreme Court entered a ruling in the case of City of Grants Pass v. Johnson, which pretty much erased the protections under the law that the homeless enjoyed which stemmed from both the Martin v Boise or the Robinson v. California.
In 2013, the Grants Pass City Council, with its president openly stating the city wanted to “make it uncomfortable enough for [homeless individuals] in our city so they will want to move on down the road,” began enacting a series of anti-camping, anti-sleeping, and parking exclusion ordinances, which were augmented with civil fines ranging from $295 to $537.60 if unpaid, along with imposing criminal penalties of trespassing on repeat violators who continued to reside on public land. The Oregon Law Center filed suit against Grants Pass on behalf of homeless individuals Gloria Johnson, John Logan and Debra Blake in the U.S. District Court in Oregon, challenging the ordinances. The district court and The Ninth Circuit Court of Appeals, relying on Martin v. Boise, rejected the city government’s assertion it its defense of its ordinances preventing the city from enforcing its anti-camping ordinance against homeless people. The U.S. Supreme Court took up a review of the Ninth Circuit ruling, finding, ultimately, the punishments of fines, temporary bans from entering public property, and one-month jail sentences were neither cruel nor unusual; that the Grants Pass’s anti-camping ordinances were neutrally applied against both the homeless and those who are not homeless; that it was not established that the homeless had no place other than parks or parking lots in which to sleep; that local and state officials and courts are free to determine whether the homeless by violating anti-camping were conscious of their guilt by violating anti-camping ordinances and that remedies to the homeless issue throughout the United States are too complex to be addressed by unelected members of the federal judiciary. The upshot was that the Court held that local government ordinances with civil and criminal penalties for camping on public land do not constitute cruel and unusual punishment of homeless people and local governments can ban the homeless from public areas.
When it rains, it pours.
In the same timeframe, Governor Gavin Newsom, during whose tenure as governor the state, between 2019 and 2021 spent $9.6 billion trying to alleviate homelessness and from 2020 onward spent another $3.7 billion on Project Homekey, a plan to fund local governments in their efforts to combat homelessness, grew acutely frustrated and impatient with the lack of progress in solving the homelessness crisis. He was going to cut off any further state homeless program funding to cities which had not shut down encampments and moved those in them to indoor shelters.
Within a fortnight, San Bernardino city officials who for years had been themselves frustrated in being unable to clear the homeless out of both high-profile and low-profile public places, felt as if the constraints, or most of them, had been removed.
To be sure, there were a few minor obstacles in the way – such as Judge Hatter’s ruling and the need to provide those who will be force out of the parks with housing shelter options.
On August 2, after extensive discussion between the city and the American Civil Liberties Union, a joint stipulation to dismiss the case brought by SoCal Trash Army, John, Tyson and Harner was filed and on September 25 Judge Hatter granted that motion for dismissal.
On Wednesday, October 2, at a press conference held at the San Bernardino City Hall on Wednesday, before a large gathering of media, local officials, and community members, San Bernardino Mayor Helen Tran, flanked by members of the city council said, “The lifting of the injunction gives us options for addressing unhoused individuals and their property compassionately as we clean up our parks.”
Tran said the restoration of the parks as places of recreation qualified as “the number one concern we hear from our residents.”
City officials distributed copies of an updated policy for conducting encampment cleanups during the press conference.
“We have been able to codify and clarify many of our encampment cleanup policies to protect our homeless, their belongings, as well as city staff and contractors,” said San Bernardino Acting City Manager Rochelle Clayton.
Among the updates to the encampment cleanup policy are the city’s designation of a disabilities coordinator to oversee requests by disabled individuals for reasonable accommodations before and during an encampment cleanup; the city’s pledge to train all employees and contractors participating in a cleanup in the city’s policy and procedures; the city’s development of a brochure to inform and educate homeless individuals about the city encampment cleanup policy.”
“The lifting of the injunction gives us the opportunity to clean up our parks,” said Councilman Fred Shorett. “But we have to do that with compassion and with thought about where these people will go.”
Yesterday, October 3, San Bernardino Spokesman Jeff Kraus informed the Sentinel by email that “The city expects to resume encampment cleanups in the coming weeks. U.S. District Judge Terry J. Hatter lifted an injunction prohibiting the city from conducting homeless encampment cleanups. This follows an agreement reached between the two parties that updated city policies on how cleanups are conducted.”
According to Kraus after Judge Hatter’s January injunction prohibiting the City of San Bernardino from conducting encampment cleanups, “…the number of tents at city parks has grown significantly, with very few homeless individuals willing to accept alternative housing solutions. As a result, usage of the parks by residents has declined and conditions at many parks has deteriorated. The city anticipates that encampment cleanups at its parks will resume in the coming weeks, starting with the posting of advance notices at locations where cleanups are planned to take place.”
According to Kraus, “The City of San Bernardino has committed nearly $60 million in local, state, federal, and grant funding to address homelessness, including the construction of two full service, comprehensive homeless housing facilities, the creation of a homeless outreach team, and funds for hotel vouchers to be issued to augment local shelters while the new facilities are being built.”
The funding for the vouchers the city is providing to interested homeless individuals originated with $1 million in federal American Rescue Plan Act grants.
Included in the city’s homeless services panoply is a 140-bed interim housing facility the city is building at 1354 G Street in partnership with the nonprofits Lutheran Social Services of Southern California and Dignity Moves. That project has been under way for several months and is to be finished by December. und on a Construction is expected to be completed by the end of the year.
In September, the city sought bids for the construction of a new homeless navigation center at a former school site at 796 Sixth Street. That facility will conceivably come online in another 12 to 13 months.
The city is coordinating with local shelters to provide additional bed space for the homeless.
Under the stipulation filed on August 2 and accepted by Judge Hatter on September 25, the city cannot evict a handicapped or crippled individual from the city’s parks without making arrangements for that individual to transported to and housed in a shelter or housing.
“This is not something that will be completed in a day, in a week, or even a month,” Tran said. “But together with our county and community partners, we are committed to providing a pathway to services, opportunity, and housing.”