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San Diego’s Public Camping Ban in the Shadow of Johnson: Legal Frameworks and Practical Realities
Photo by Levi Meir Clancy on Unsplash
Introduction
On July 31st of last year, the City of San Diego began enforcement of a new “Unsafe Camping Ordinance,” regulating encampments on public land.[1] On its face, this new law – San Diego Municipal Code (SDMC) § 63.0401 et seq. – looks primarily like an environmental ordinance. Its stated purpose is to protect individuals living on public lands from health and safety hazards, and vice versa, to protect public lands that “are environmentally sensitive and may be significantly damaged by unregulated human activity.”[2] However, the ordinance fits into a larger web of laws throughout the Ninth Circuit that have attempted to criminalize homelessness, an issue that will be taken up by the U.S. Supreme Court on April 22nd upon its review of Johnson v. City of Grants Pass. In this case, arising out of a small city in Southern Oregon, the Ninth Circuit imposed restrictions on local governments’ usage of criminal penalties in enforcing anti-camping bans when adequate shelter beds are unavailable. This ruling is an important step in protecting the legal rights of individuals experiencing homelessness, but has been met with criticism by civic leaders, including California Governor Gavin Newsom, who say that the ruling limits their abilities to control the growth of public encampments.[3] While Johnson may be overturned by the Supreme Court in the coming months, San Diego and other cities should refrain from implementing and enforcing laws that criminalize public camping due to their ineffectiveness and the unintended consequences that enforcement of these laws have on unhoused individuals and on public land.
San Diego Municipal Code § 63.0401 et seq.
San Diego’s Unsafe Camping Ordinance (UCO), codified as Municipal Code Ch. 6, Art. 3, Div. 4 (§63.0401-0405), makes camping or maintaining an encampment on any public property between 9pm and 5:30am illegal if shelter beds are available within the City.[4] The ordinance also outright prohibits camping or maintaining an encampment within two blocks of schools and shelters; near transit hubs and adjacent to trolley tracks; in open spaces, waterways, and banks of waterways; and in City parks where there is determined to be “a substantial health and public safety risk.”[5] Most significantly, the UCO establishes criminal penalties for violators, putting it into a larger context of laws across California and the nation that criminalize the state of being unhoused. Violators are subject to fines of up to $1,000 and imprisonment in county jail for up to six months.[6]
To understand the issues raised by this ordinance, it is useful to look at previous criminal statutes and policing practices that laid its groundwork and continue to frame it, as well as how the constitutional issues the ordinance presents have recently been adjudicated on the national stage. For context, in 2023, there were 6,500 individuals experiencing homelessness in the City of San Diego, about half of whom were unsheltered.[7] Even before the UCO was passed, the City routinely arrested unhoused individuals under charges of encroachment[8] (placing or maintaining objects on public streets or rights-of-way) and illegal lodging[9] (lodging in a structure or place, whether public or private, without permission of the owner).[10] For example, between September of 2022 and August of 2023, City police arrested 177 individuals and gave out 480 tickets for encroachment violations, along with 28 arrests and 67 citations for illegal lodging.[11]
On its website, the City explains that it uses a “progressive enforcement” approach to the Unsafe Camping Ordinance, meaning that upon initial police contact, individuals simply are educated about the new law and are not subject to either a misdemeanor citation nor the potential for arrest.[12] This system appears to be based on an earlier policy limiting the enforcement of a previous encroachment ordinance, which the City agreed to as part of the settlement to a 2019 lawsuit.[13] However, “progressive enforcement” is not codified in the language of the UCO itself, so the City retains discretion to enforce the law more aggressively in the future.[14]
Current State of the Law
Constitutional challenges to the criminalization of homelessness center around Eighth Amendment protections against cruel and unusual punishment. The Eighth Amendment not only limits what kinds of punishments the government may impose and their severity relative to corresponding crime committed—it also limits what the government may criminalize itself.[15] Accordingly, opponents of the Unsafe Camping Ordinance (and ordinances like it) argue that it constitutes cruel and unusual punishment for individuals to face arrest for merely existing in public space with no other place to go, effectively criminalizing a citizen’s immutable state of being.
Relevant legal precedent for this issue in the Ninth Circuit is rooted in two recent cases: Martin v. City of Boise in 2019, and the aforementioned Johnson v. City of Grants Pass in 2023. In Martin, the Ninth Circuit held that the government cannot criminalize states of being, such as sitting, lying down, or sleeping, that are “universal and unavoidable consequences of being human.”[16] The court stated that if there is truly nowhere indoors for individuals to go, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”[17] Specifically, it held that this rule applies whenever there are more unhoused individuals in a particular jurisdiction than there are available shelter beds.[18] Johnson affirmed this reasoning, adding that it is unconstitutional for cities to prohibit the public use of sleeping bags, pillows, or other forms of material used as protection from the elements, and that cities cannot skirt around the Martin holding by giving civil citations which later become criminal penalties.[19] The underlying message for both is clear: a city cannot impose civil or criminal penalties onto unhoused people who are unable to obtain shelter.[20]
Lengthy dissents in Johnson point out possible reasons that the holding may be overturned at the Supreme Court. For example, Judge Daniel Collins argued that the Eighth Amendment does not preclude punishing acts that society has an interest in preventing merely because the acts are involuntary.[21] He also claimed that the majority’s viewpoint effectively requires cities across the Ninth Circuit to “allow the use of [their] public parks as homeless encampments”[22]—ostensibly because of a lack of resources to build adequate shelter beds. Judge Milan Smith highlighted the separation of powers issues from the Johnson ruling, stating that it “short-circuited the political process” and leaves politicians and law enforcement powerless to take reasonable policy measures in their communities.[23] He added that, even if the premise that the Eighth Amendment protects against punishing involuntary status is accepted, it should only do so through an individualized analysis of each unhoused person’s circumstances and ability to obtain shelter, not through the broad comparison of overall unhoused population to quantity of available shelter beds.[24]
Since the Supreme Court granted certiorari on Johnson,[25] countless government and nonprofit organizations, including the San Diego County District Attorney’s Office and San Diego City Attorney, have filed amicus briefs in support of the City of Grants Pass.[26] They are joined by equivalent organizations from all of California’s major cities and even Governor Newsom.[27] The arguments made in these filings are similar to those argued in the Johnson dissent–particularly focusing on the restrictions Johnson places on local governments in managing homelessness in their communities–and they reveal a clear divide between the current law and the dominant views of civic leaders throughout the Ninth Circuit.
In the meantime, municipal leaders have attempted to craft anti-encampment policies which approach, but do not cross, the lines the Ninth Circuit has drawn. For example, in May of 2023, shortly before the UCO was adopted, the San Diego City Attorney prepared a memo analyzing the proposed ordinance in the context of Ninth Circuit precedent.[28] It recommended that the city could enforce the ordinance in compliance with Martin and advised that “the constitutional rights of unsheltered individuals must be balanced against the City’s obligation to protect the public’s health and safety.”[29] However, this memo was based on an analysis of Martin and does not address Johnson, which created stronger and more specific protections regarding property rights and the intersection between civil and criminal penalties.[30]
Reflections and Externalities
Beyond these important constitutional questions, anti-camping ordinances raise a number of practical concerns and often result in harms that undermine their very aims. One important consideration is how policing of unhoused individuals resulting from the Unsafe Camping Ordinance can lead to extraneous arrests. A 2023 data report from the San Diego Regional Task Force on Homelessness found that nearly a third of individuals in jail were unhoused on the night of their arrest.[31] Laws like San Diego’s Unsafe Camping Ordinance only exacerbate this issue by opening up opportunities for law enforcement to satisfy probable cause and conduct searches, obtain warrants, and ultimately make unrelated arrests that otherwise would not have occurred–an especially important problem given that many San Diego County Jails are already over capacity.[32] Being taken into custody also imposes severe barriers that can set back an individual's efforts to seek steady housing, interfere with vital employment or family obligations, and can lead to their property being stolen or thrown away. Additionally, the threat of arrest disincentivizes individuals living in encampments from reporting threats, crimes, or otherwise defending themselves from safety hazards that they may be vulnerable to.
Another important practical consideration is whether a frequent response by unhoused individuals to this further policing—simply moving to areas where they are not policed–achieves either of the UCO’s stated aims of protecting people from safety hazards or protecting environmentally sensitive land. It likely does the exact opposite. As policing of unhoused individuals in urban centers increases, many are forced to move to more secluded spaces or end up leaving the City entirely for other areas where they will not be contacted by law enforcement.
For example, in 2022 County Supervisor Joel Anderson discussed a homeless encampment off Magnolia Avenue in East County which traverses multiple jurisdictions–it simultaneously borders the city limits of El Cajon and Santee, unincorporated San Diego County land, and CalTrans state property.[33] This jurisdictional ambiguity can be attractive for some individuals in that it means fewer law enforcement encounters, but it also incentivizes them to move farther away from social services and shelters, which tend to be concentrated in or near downtown. This migration puts individuals most in need of assistance farther from resources, providing additional barriers to those seeking stable housing and shifting burdens from San Diego to other cities throughout the county. For example, beyond East County, some unhoused San Diegans also have moved from downtown to South Bay, where leadership has stated that they are comparatively less equipped to connect individuals with services.[34] The unsheltered population in Chula Vista, for instance, grew to 318 in 2023, a 54% increase from the year prior.[35]
Regarding environmental concerns, like in most other major cities in California, San Diego’s geography positions condensed urban centers adjacent to canyons, rivers, lakes, coastline, and other environmentally sensitive areas. Ironically, while the ordinance purports to be after the protection of sensitive public lands as one of its central goals, enforcement of the law displaces individuals away from urban centers to underdeveloped areas which are more sensitive to damage and are unsafe for human habitation. For example, around 280 people live by the San Diego river, a reality which not only creates concerns regarding pollution of the river, but also is especially hazardous to those individuals given the trend of heavy rainfall and severe flooding in recent years.[36] Encampments in canyons, mountains, or other dry/brushy areas also present concerns of wildfires,[37] a devastating proposition given the City and state’s long history of fires.
All of these issues are important policy considerations when discussing anti-homelessness laws’ true impacts–they do not just represent a deprivation of constitutional rights, but ultimately create a chain of externalities which undermine the stated aims of the laws.
Conclusion
As interested parties on all sides prepare for the Supreme Court’s impending ruling on Johnson, it is critical to remember that ultimately no potential outcome will meaningfully impact the underlying issues. If overturning Johnson and Martin—thereby giving cities a freer hand to criminalize and displace unhoused people within their jurisdictions—could truly solve homelessness, these cases would never have originated in the first place. In reality, the homelessness crisis has impacted communities throughout the Ninth Circuit for decades before these recent rulings, and criminal enforcement of public camping bans has never been an effective solution.
However, the legal system still does have an important role to play in alleviating homelessness. Larger investment into diversion programs, like drug courts and behavioral health courts, allow district attorneys and judges to focus more on rehabilitation than on retributive justice.[38] For example, San Diego Mayor Todd Gloria and City leadership have been proponents of Governor Newsom’s CARE Act program, which provides housing and treatment services to individuals through California court infrastructure as a diversion to the criminal legal system.[39]
At its core, the homelessness crisis in California centers around a lack of affordable housing,[40] and is tied to the multifaceted issues of low wages, lack of economic mobility, mental illness, addiction, inaccessible health care, and systemic discrimination.[41] Constitutional concerns aside, San Diego’s Unsafe Camping Ordinance, and the many other ordinances like it throughout cities in the Ninth Circuit, do nothing in themselves, even symbolically, to combat these larger issues.
The Ninth Circuit holding in Johnson is not enough to solve these problems either. What it does do, though, is protect citizens from being criminally punished for the situations these larger systemic factors have placed them in. More broadly, Johnson as it currently stands is an official acknowledgement that societal failures, not individual ones, are at the root of the homelessness crisis. Johnson helps publicize and legitimize the structural issues faced by our unhoused communities—a crucial starting point from which civic leaders can build—and for that it is worth preserving.
[1] “Unsafe Camping Ordinance.” The City of San Diego. https://www.sandiego.gov/police/services/neighborhood-policing-division/unsafe-camping
[2] SDMC § 63.0401-0405
[3] Jeanne Kuang, Supreme Court will hear case about homeless encampments, with huge implications for California, CalMatters, (January 12, 2024), https://calmatters.org/housing/homelessness/2024/01/homeless-camp-scotus/
[4] SDMC § 63.0403-0405
[5] Id.
[6] SDMC § 12.0201
[7] San Diego Regional Task Force on Homelessness, City of San Diego 2023 Point-in-Time Count Data, https://www.rtfhsd.org/wp-content/uploads/2023-City-of-San-Diego-Region-Breakdown.pdf
[8] SDMC § 54.0110
[9] CA Penal Code § 647e
[10] Blake Nelson, San Diego’s camping ban enforcement so far: dozens of warnings, 5 tickets and zero arrests, San Diego Union Tribune, (Sept. 11, 2023, 6:13 PM)
https://www.sandiegouniontribu...; see also Cody Dulaney, San Diego 'encroachment' case dismissed against unhoused woman, KPBS, (Aug. 11, 2023, 11:40 AM)
https://www.kpbs.org/news/racial-justice-social-equity/2023/08/11/san-diego-encroachment-case-dismissed-against-unhoused-woman; see also “6.6.14Email_Redacted with Attachment copy,” inewsource,
[11] Blake Nelson, San Diego’s camping ban enforcement so far: dozens of warnings, 5 tickets and zero arrests, San Diego Union Tribune, (Sept. 11, 2023, 6:13 PM)
[12] “Unsafe Camping Ordinance.” The City of San Diego. https://www.sandiego.gov/police/services/neighborhood-policing-division/unsafe-camping
[13] See “Stipulation and Proposed Settlement Order” for Arundal et al. v. City of San Diego, . https://www.documentcloud.org/documents/6433387-Arundel-Et-Al-v-San-Diego-City-of-Et-Al-Casdce.html
[14] SDMC §63.0405
[15] Martin v. City of Boise, 920 F.3d 584, 615 (9th Cir. 2019)
[16] Id. at 617.
[17] Id.
[18] Id.
[19] Johnson v. City of Grants Pass, 72 F.4th 868, 896 (9th Cir. 2023)
[20] Erwin Chemerinsky, Legal expert: DA Thien Ho has filed a frivolous lawsuit against the city of Sacramento | Opinion, Sacramento Bee, (September 21, 2023, 10:56 AM), https://www.sacbee.com/opinion/article279567779.html
[21] Johnson, 72 F.4th at 914.
[22] Id.
[23] Id. at 935-36.
[24] Id. at 938-39.
[25] City of Grants Pass, Oregon v. Johnson, 144 S.Ct. 679 (2024).
[26] Office of the San Diego County District Attorney, Amicus Brief in Johnson v. City of Grants Pass, No. 23-175 (U.S. Supreme Court, 2023), filed September 21, 2023, https://www.supremecourt.gov/DocketPDF/23/23-175/280167/20230921154754114_23-175%20Amicus%20Brief%20San%20Diego%20County%20District%20Attorney.pdf; International Municipal Laweyers Association (IMLA), Amicus Brief in Johnson v. City of Grants Pass, No. 23-175 (U.S. Supreme Court, 2023), filed September 25, 2023, https://www.supremecourt.gov/DocketPDF/23/23-175/280374/20230925135328591_IMLA%20Amicus%20Brief%20FINAL%20DRAFT.pdf
[27] Brief for California Governor Gavin Newsom as Amicus Curiae Supporting Petitioner, City of Grants Pass v. Johnson, 2023 U.S. S. CT. BRIEFS LEXIS 2834 * (No. 23-175). https://www.supremecourt.gov/DocketPDF/23/23-175/280288/20230922163648635_Amicus%20Brief%20for%20Governor%20Newsom%20-%20Grants%20Pass_Final.pdf
[28] Office of the San Diego City Attorney, MEMORANDUM MS 59, (May 30, 2023) https://docs.sandiego.gov/memo...
[29] Id. at pp. 6-8.
[30] Johnson, 72 F.4th at 896.
[31] San Diego Regional Task Force on Homelessness, 2023 Jail Survey Data Report, https://www.rtfhsd.org/wp-content/uploads/2023-Jail-Survey-Data-Report-FINAL.pdf
[32] KPBS Public Media, Sheriff announces partial reopening of renovated Rock Mountain jail, YouTube (July 5, 2023) https://www.youtube.com/watch?v=2_BQsJnZBnY
[33] Matt Hoffman, Supervisor Joel Anderson wants East County cities to work together to solve homelessness, KPBS (April 29, 2022, 4:41 PM)
[34] Blake Nelson, Change cities? Enter rehab? San Diego’s new homeless camping ban leaves many facing tough decisions, San Diego Union-Tribune, (August 6, 2023, 5:00AM), https://www.sandiegouniontribune.com/news/homelessness/story/2023-08-06/move-cities-enter-rehab-san-diegos-new-homeless-camping-ban-leaves-many-facing-tough-decisions
[35] San Diego Regional Task Force on Homelessness, 2023 PITC Regional Cities Breakdown, https://www.rtfhsd.org/wp-content/uploads/2023-PITC-Regional-Cities-Breakdown.pdf
[36] Blake Nelson, Hundreds of homeless people live by the San Diego River. Do they know about the coming storm?, San Diego Union-Tribune, (January 30, 2024, 7:39PM), https://www.sandiegouniontribune.com/news/homelessness/story/2024-01-30/hundreds-of-homeless-people-live-by-the-san-diego-river-do-they-know-about-the-coming-storm
[37] Mary Plummer, Fire risks tied to homelessness in San Diego’s canyons leave residents on edge, inewsource, (December 10, 2019)
https://inewsource.org/2019/12/10/san-diego-homeless-canyon-wildfires/
[38] See Robert C. Coates: Ending Chronic Homelessness in America's Major Cities--The Justice Systems' Duty, 42 U.S.F. L. Rev. 427, 435 (2007).
[39] Manuela Tobias and Jocelyn Wiener, California lawmakers approved CARE Court. What comes next?, CalMatters, (September 14, 2022) https://calmatters.org/housing/2022/09/california-lawmakers-approved-care-court-what-comes-next/; “San Diego Mayor Todd Gloria 2024 State of the City” (January 10, 2024) https://voiceofsandiego.org/wp-content/uploads/2024/01/MAYOR-GLORIA-SOTC-2024_1-10-24.pdf
[40] Erwin Chemerinsky, Legal expert: DA Thien Ho has filed a frivolous lawsuit against the city of Sacramento | Opinion, Sacramento Bee, (September 21, 2023, 10:56 AM) https://www.sacbee.com/opinion/article279567779.html
[41] See generally National Coalition for the Homeless, Homelessness in the U.S., https://nationalhomeless.org/homelessness-in-the-us/research-by-topic/