San Diego’s latest strategy to crack down on tent encampments faces biggest challenge yet

A Superior Court judge could undermine San Diego’s strategy to clear homeless encampments from city sidewalks and parks.

This afternoon, Judge Yvonne Campos is set to hear final arguments in a pretrial hearing for a misdemeanor case against a 59-year-old unhoused woman charged with encroachment. It’s a city law that was intended to prohibit trash cans from blocking a sidewalk, but San Diego police have increasingly used it to break up tent encampments that officials say pose a risk to health and safety.

Two local attorneys, who are representing the woman for free, are asking the judge to dismiss the case. Their argument is that this law is unjust at its core and the way police are enforcing it violates constitutional rights.

As written, the city’s law makes it illegal for anyone to place anything in any public right of way. 

“If the goal here is enforcing the encroachment law,” said Coleen Cusack, the lead defense attorney, “then we wouldn’t have any beachgoers on the beach. We wouldn’t have any park goers in the park. Because everything down on the ground anywhere is a violation of the law. They’re selectively applying this law to homeless people and they’re not applying it to anyone else.”

Deputy city attorney Steve Hansen said that’s wrong, it’s not about briefly setting something down on the ground. He said there has to be some aspect of permanence — even though the law doesn’t say that.

The pretrial hearing spanned five days, with meandering and sometimes combative arguments that touched on the nation’s founding, capitalism, the rights of property owners and the causes of homelessness. 

Cusack and her co-counsel, Scott Dreher, have called 11 witnesses to testify — ranging from police officers to advocates to people experiencing homelessness — in an attempt to build a case that the defendant’s constitutional rights have been violated. This kind of time commitment is extremely rare for a misdemeanor.

But allowing this case to proceed would tell people experiencing homelessness that they are required to walk all day long with their property on their back, without ever stopping to place it on the ground, Cusack said.

While the judge worked relentlessly to keep Cusack on track, often imploring her to understand the role of a trial judge is only to focus on the case at hand, Judge Campos indicated early on that the city may have some problems here.

She posed a hypothetical scenario, asking if a Girl Scout setting up a table to sell cookies on a public street corner would be a violation of this law. It might be, said Hansen, the attorney representing the city. 

But none of the five police officers who testified ever recalled citing or arresting someone who had housing, let alone a Girl Scout.

“I think you may have some righteous claims,” Campos said to the defense attorneys before testimony began.

To be sure, even if Campos decides to dismiss the case, it would not set any precedent — or become a new law that other judges would have to follow. But it would undermine what has become a key component of the city’s strategy to address homelessness.

‘They have their own rules’

Last year, inewsource published a series of investigations on San Diego’s approach to homeless encampments that found a dramatic spike in arrests, revealed police and city officials violating court orders, and highlighted a disconnect between the mayor and city attorney about how best to handle people living on the sidewalk.

Emails obtained by inewsource last summer revealed that high-ranking police officials discussed a scheme nearly a decade ago to clear parks and other public spaces for “normal citizenry,” urging officers not to let public spaces turn into “transient camps.”

A San Diego police lieutenant pointed out encroachment is a jailable offense that can be applied to almost any situation, according to the 2014 email. That correspondence was entered as evidence in this pretrial hearing on the grounds that it might still be relevant.

Since the start of the pandemic, top city officials have cracked down on tent encampments using this trash can law, insisting that they have a duty to remove unhoused people from unsafe and unsanitary conditions that pose a risk to everyone.

Every single criminal case that resulted from this crackdown ended in dismissal, often because the city attorney’s office asked for it. But this appears to be the first to go to trial.

Della Infante, 59, was arrested for encroachment last October outside her tent on Sports Arena Boulevard, where she’s known to all who live there as ‘Mom’ or ‘Mama.’ The city is seeking an order to keep her away from the area, Cusack said.

According to a court-ordered city policy, officers have to offer shelter each time they encounter someone about this law, elevating enforcement after each refusal from a warning to citation to jail. A person is arrested after they’ve refused shelter at least four times.

Waiving her right to remain silent, Infante testified last week through a video conferencing app, saying she’s been targeted and harassed by police. She has been a resident of San Diego for more than 30 years, living in a tent on Sports Arena Boulevard for the past four. It started with a car accident that left her injured, she said. She needed surgery and missed work, and around the same time her boyfriend lost his job, too. Before long, they both wound up on the street.

Infante said she tried to go to a shelter once. Beds stacked as high as the ceiling were all full and the place was filthy. She had a terrible experience, she said, and she never wanted to go back.

“I’m not going to stay at a shelter where I’m going to be infested with bed bugs or anything else,” Infante said under cross examination. “I’m not a dirty person.”

“You can make a street as clean as a house,” she added.

But one San Diego police officer described Infante as a mafia-like boss who controls her block of Sports Arena Boulevard with an iron grip, overseeing the flow of drugs and prostitution into the tent encampment that lines the industrial roadway.

“She controls that block and she has her muscle, which is her boyfriend and her street family. They’re very protective of her and I’ve dealt with it firsthand,” said Officer Raul Flores, who has more than 20 years’ experience with San Diego police. “If somebody wanted to inflict injury onto someone it would probably have to go through her.”

People listen to her, Flores said. She decides who can stay and who has to leave.

“It’s a whole subculture there,” he added. “They have their own rules. They have their own way of being.”

A right to set stuff down?

Infante’s attorneys have a long history of fighting San Diego’s treatment of people experiencing homelessness. 

For nearly 10 years, Cusack has spent her free time defending unhoused people who she says have been criminalized for surviving in public view. Three lawsuits filed by Dreher over the past two decades have shaped the rules for how the city can enforce certain laws and clean encampments.

With Infante’s case, Cusack filed a motion to dismiss the charge based on four constitutional claims:

• The city’s law is far too vague to enforce, making it “void for vagueness.”
• The law infringes on the right to own property, a violation of substantive due process.
• Police are violating the equal protection clause by enforcing a law that discriminates against people without housing.
• It’s cruel and unusual to punish a houseless person for setting their belongings down in public.

Campos has already said it would be quite a leap to classify this as cruel and unusual punishment. People don’t have a constitutional right to set up whatever property they want on public streets, she said.

“You’d in effect be asking me to create out of thin air a new finding, a new right, and that’s not something I’m going to do,” Campos said.

But as for vagueness, due process and unequal application, Campos gave the defense wide latitude to present arguments to make that case, despite multiple objections raised by Hansen.

While none of the officers who testified ever recalled citing or arresting people with housing for encroachment, they all said unhoused people just happen to be the ones violating the law. 

“The law is encroachment, which is anybody blocking the public right of way with their belongings,” said Officer Adrian Villanueva, who made the arrest in this case. “So, it happens to be that it’s the homeless who are doing it, but based on that law, we’re not targeting the homeless only.”

But they also disagreed on how and when the law should apply.

Officer Jenny Hall and Sgt. David Rodriguez both said anyone who sets anything down in a public space, including a beachgoer with a towel and a park goer with a tent, would be breaking the law. Flores said that’s not the intent.

“You’re supposed to throw towels on the beach, not the street,” Flores said. “You’re not supposed to live on the actual street.”

To cite or arrest someone for encroachment, Flores said officers have to be able to articulate that the person has been maintaining the property in a public space for an extended period of time. 

But that distinction doesn’t exist anywhere in the law.

Keep it movin’

Homeless encampments can pose health risks. This became clear here locally after a shigella outbreak in 2021, and when 20 people died of hepatitis A in 2017. 

The city spends millions every year to sweep through tent encampments and throw away trash or apparently abandoned property, and during these sweeps police are there to keep the peace and enforce encroachment.

Courts across the country have established and affirmed basic rights for people experiencing homelessness. 

They are entitled to personal property. Cities also cannot criminalize them for life-sustaining activities, such as sleeping or sheltering in public, when there is no other practically accessible option. And because they have a right to sleep, they also have a right to a blanket or bed roll to protect themselves from the elements.

Hansen’s argument ultimately boils down to this: the city of San Diego isn’t criminalizing the right to own property or the right to sleep, but if someone owns more than what they can carry on their body and blocks a public space, then they are violating this law.

Hansen said the defense is trying to argue that because unhoused people have a right to sleep, “then they have a right to a tent and a cooler and a table and a wagon.”

Judge Campos posed another hypothetical, asking about a person riding a bike hauling a wagon full of belongings behind them. They would be in violation of the law if they stop pedaling, Hansen said.

“If they were, you know, hobos like in the old days and didn’t stay in one place, yeah, there probably wouldn’t be a problem,” Hansen said.

As attorneys on both sides plan to make their final arguments in San Diego Superior Court on this case, top city officials are preparing a new law that would tackle this problem head on.

Mayor Todd Gloria and Councilmember Stephen Whitburn, whose district includes downtown, announced a proposed ordinance two weeks ago that would ban camping virtually anywhere in city limits, regardless of shelter availability. If passed into law, that will likely face legal challenges, too.