Law Used to Ticket Homeless Draws Challenge : ACLU Joins Legal Assault on Illegal-Lodging Statute

Juan Griffan figured he was about as down and out as a person could be. Lacking work and shelter, the homeless fellow stretched out in a downtown San Diego park one recent afternoon, aiming to catch a few solid winks before the chill of night set in.

But, even in sleep, Griffan found no refuge from his life. Instead, he was abruptly rousted by a San Diego police officer and given a ticket. His offense? Illegal lodging.

For Griffan and hundreds of his homeless brethren, such citations have become a virtual staple of life on the streets of America’s Finest City. Armed with an old state vagrancy law that forbids a person from “lodging” in any public or private place without permission from its owner, police routinely ticket those found napping in downtown doorways and parks or on benches, beaches and sidewalks.

Law enforcement authorities say the citations, which require an offender to appear in court and face a fine or other penalty, are a response to the slew of complaints they receive each day from business owners, who gripe that the sleeping souls are an eyesore and a nuisance.

Others, however, contend that the misdemeanor tickets amount to downright harassment of a population that already has enough troubles.

“There is not much to be gained from punishing homeless people for being homeless,” said attorney Tom Homann. “Not only is this a foolish waste of police time and public money, it’s a ludicrous way to attempt to solve the problem of poor people.”

Claims Law ‘Unconstitutionally Vague’

Homann is representing Griffan in a challenge of the state penal code section that provides authority for issuance of the citations. At a Municipal Court hearing next month, he will argue that the law is “unconstitutionally vague” and that it unlawfully punishes someone for the “status of homelessness.”

The local American Civil Liberties Union affiliate, represented by an attorney from San Diego’s largest law firm, has filed a thick brief in the case, supporting Homann’s position and attacking the statute on several fronts.

“This is an extremely important case to the ACLU because it involves some significant constitutional issues,” said Betty Wheeler, legal director for the organization in San Diego. “If you interpret this statute the way the San Diego Police Department interprets it, then, if you are a homeless person, you violate that law every day of your life.”

Even Mayor Maureen O’Connor broke the law, Wheeler noted, when she slept in Balboa Park during her recent undercover stint as a homeless person.

“There were two police officers on that trip with the mayor,” Wheeler said. “I would think it would have been their obligation to cite her.”

Homeless activists, meanwhile, are closely monitoring the court challenge. Frank Landerville, project director for the Regional Task Force on the Homeless, said he is concerned about “a policy that punishes homeless people for this when they may not have any alternative at their disposal.”

Landerville noted that, after the city’s 852 shelter beds are filled each night, there are at least another 1,500 homeless people in San Diego with nowhere but the streets to sleep.

“I understand the feeling of business owners who don’t want these people on their doorstep, but tickets aren’t going to get the homeless off the street,” Landerville said. “It just doesn’t make sense to me to add to their situation one more problem that they have no means to deal with.”

According to police statistics, about 90% of the citations are issued in downtown neighborhoods, while the beach areas have the second heaviest concentration. The tickets are rare in other parts of the city.

During a six-month period ending March 30, the department issued 1,993 tickets for illegal lodging. In the same period, another 247 people were booked into the County Jail downtown on that charge and related violations; 87% of those arrested were homeless.

Although critics of the practice suggest that police began stepping up their efforts around the time of the Super Bowl, Lt. Ron Seden said enforcement of the illegal-lodging statute has been continuous.

“We always try to make the city look as nice as it can, and having a bunch of drunks sleeping on park benches in the high tourist areas doesn’t project a nice image of the city,” Seden said. “We are constantly getting complaints from owners or managers of property, who are upset not so much with the fact that they’re lodging, but with what they leave behind.”

Seden said police officers “feel like referees in this thing. We’ve got people urging us to crack down one day and other people criticizing us for it the next.”

Kenneth S. Klein, an attorney with Gray, Cary, Ames & Frye, who is volunteering on the case for the ACLU, said his legal assault on the statute is three-pronged. For starters, Klein argues, the penal code section authorizing illegal-lodging tickets only applies to people sleeping inside a physical structure.

The statute at issue was rewritten in 1961 after its predecessor, drafted in 1872, was held unconstitutionally vague by the state Supreme Court. It declares a person guilty of “disorderly conduct” for lodging “in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control thereof.”

Klein says the legislative history of the law makes it clear it only applies to those taking shelter within a building.

“Back in 1872, we were a fairly agrarian society and it would not have been uncommon for a traveler to stop for the night in an open field,” Klein said. “What you did not want was someone physically breaking into someone else’s place.”

If the judge rejects that argument, Klein and Homann will argue that the law is unconstitutional in at least two respects: it is overly vague and punishes someone for an involuntary status, in this case, homelessness.

On the issue of vagueness, Klein argues that the statute fails to define the offense of illegal lodging clearly enough to enable someone to avoid committing a criminal violation.

“If lying down or sleeping somewhere shows that one ‘lodges’ there, then a sunbather at the beach or a commuter dozing at a bus stop could be engaged in criminal activity,” Klein wrote. “If an intent to make a place one’s permanent residence indicates that one ‘lodges’ there, then Juan Griffan did not violate the statute, for he did not have . . . the intent to make the sidewalk or parks his permanent residence.”

The ACLU further argues that such vagueness and the amorphous term “lodging” give police excessive discretion in enforcing the statute: “The law should be clear enough, not only so people know how to conform their conduct so as not to violate it, but also so the discretion of the officer on the street is not unbridled,” Wheeler said.

Klein and Homann also contend the statute violates constitutional protections against cruel and unusual punishment by targeting those in a condition they have no power to avoid. Given the shortage of shelter beds in San Diego, the homeless “will often have no choice but to sleep in public and, if the city has its way, risk condemnation as criminals,” Klein wrote.

Deputy City Atty. Jill Armour Lewis paints a different picture. She said the statute “clearly is intended to apply to those sleeping outdoors” and maintains that “it is not in the least bit vague.”

“The statute simply says that, if you lodge in a place that is not intended for such use, then you are breaking the law,” Lewis said. “I think common sense would dictate that a doorway or a sidewalk does not have temporary lodging quarters as its intended purpose.”

Warning Tickets Issued

Lewis also noted that police frequently issue warnings to illegal lodgers before slapping them with a ticket. “I think they often wake them up, tell them not to sleep there, ask them to gather up their cardboard and blankets and move,” she said. “Not everyone gets a ticket.”

When the offenders receive a citation, they are ordered to appear in court. Most never show up, and then warrants are issued for their arrests.

“These people don’t exactly have social secretaries to keep their calendars,” Homann said. “It’s kind of ridiculous to expect someone who has a hard enough time eating from day to day to make a court date two months after the ticket is issued.”

Few of the warrants are ever executed, however, either because officers don’t know where to find the offenders or because there is no room in the jail for them. Those who do show up for their hearing frequently receive a suspended sentence, according to Municipal Judge Robert P. McDonald. Others receive $50 or $25 fines, or are required to do volunteer work.

“Let me tell you, it is often a heart-rending situation,” said McDonald, who estimates that he sees fewer than a dozen illegal lodgers in his court each week. “You can’t fine someone living on the street. That just makes their situation worse. But the police are obliged to enforce the law. There is no simple answer.”

In its brief to the court, the ACLU makes clear its view that, aside from the statute’s legal problems, it is simply “unconscionable to make homelessness a crime.” If the judge upholds the law, however, the organization suggests that homeless offenders be offered a bed and transportation to the shelter along with their belongings before they are ticketed.

“We don’t think it’s too much to ask,” Klein said. “And, if someone declines this offer, then you’ve got a pretty solid argument that they’re lodging outside voluntarily.”

Landerville of the homeless task force supports that idea. But Lt. Seden, for one, doesn’t believe such a system would work.

“We’ve got enough trouble just responding to the radio calls on serious crimes in progress, so I don’t see how we could afford to run a taxi service for people found sleeping in Balboa Park,” he said.

Moreover, a “certain percentage of the hard-core types aren’t interested in the structured environment they have at these shelters. They don’t want the sermon, and they want to smoke and drink and get up when they please.”