Homelessness in San Diego spikes as city nears vote on camping ban. What you need to know

As the number of people living on San Diego sidewalks and riverbeds spikes dramatically, top city officials hope to make it illegal for people experiencing homelessness to live outside on public property.

The latest point-in-time count, released Thursday, shows a 32% increase in San Diego’s unsheltered homelessness population — from 2,494 last year to 3,285. It’s the highest count recorded in at least the past decade.

On Tuesday, the San Diego City Council will vote on a proposed camping ban that aims to break up tent encampments that officials say threaten public health and safety. Police would be able to enforce the camping ban citywide if shelter beds are available, and anytime, regardless of shelter availability, near schools, parks, transit hubs and along waterways.

With mounting public pressure, the proposal has seemingly divided San Diegans on how public spaces should be used in the midst of a housing shortage and homelessness crisis. Hundreds, if not thousands, have both condemned and applauded the ban, packing a public meeting, attending protests and signing at least four online petitions.

The ban — proposed by Councilmember Stephen Whitburn, whose district includes downtown, and championed by Mayor Todd Gloria — comes at a time when the region’s homeless service system cannot keep pace with the surging need, as more and more San Diegans find themselves living on sidewalks and along riverbeds. 

City officials admit they have failed to meet quality of life expectations in neighborhoods, pointing to the 2,200 citizen complaints of tent encampments they receive on average every month. They say the situation has gotten so bad that it’s impacting public health and safety. 

Ahead of next week’s vote, Gloria has been trying to drum up support for the ban, including holding press conferences at a school playground close to downtown, highlighting the traumatic experiences of children on their way to school, and at a fire station, where he stressed the danger encampments pose to life and property.

“The City Council must pass the unsafe camping ordinance to protect the health and safety of all San Diegans,” Gloria said in a press release.

Prior to the vote, officials plan to present a strategy to expand shelter options, adding sanctioned campsites that can hold about 530 tents and parking lots that can accommodate roughly 300 families. 

Here are five things you need to know ahead of the City Council’s meeting on Tuesday: 

What the camping ban would accomplish

Living in a tent is already illegal in San Diego. A number of laws deal with this, but police have increasingly used one known as encroachment to break up tent encampments and punish those who refuse to go to a shelter. 

The proposal aims to provide clear rules of the road, incorporating various court rulings that establish rights of unhoused people to seek shelter in public, and providing where and when camping is illegal. If the city adopts the proposed ban, unhoused people won’t be able to camp outside of designated areas in the city when shelter beds are available. And even when there is no availability, they won’t be able to camp within two blocks of shelters, schools, parks, riverbeds or transit hubs.

Police Chief David Nisleit has said officers will use the same enforcement strategy with the proposed ban as they have with encroachment — offering shelter each time they encounter someone, elevating enforcement after each refusal from a warning to citation to jail. A person could be arrested after they’ve refused shelter at least four times.

Advocates say the camping ban will continue pushing unhoused people around the city — from neighborhood to neighborhood, forcing them to move their belongings into more remote and harder to reach areas to avoid enforcement — and only make it harder to put people into housing.

Shelter capacity is key to enforcement

San Diegans, including public officials, should hear details Tuesday from Gloria’s administration on its plan to create the shelter capacity required to enforce the camping ban. 

Skeptics have questioned the math: the city’s shelters have been at more than 90% capacity for some time, despite capacity having increased to 1,780 beds citywide under Gloria’s leadership. People who want shelter often can’t access it.

In addition to shelter beds, the city already has four parking lots where people can live in their vehicles and access services. Together, they can hold 233 vehicles. Officials hope to expand overnight-only parking to accommodate between 200 and 400 additional families, and open two campsites totaling about 530 tents in Balboa Park by the end of the year. 

But the number of people living on city streets continues to grow. On Thursday, the Regional Task Force on Homelessness released sobering results from January’s point-in-time count. Overall homelessness in San Diego has grown 35% compared to last year — from 4,801 to 6,500, including 3,200 unhoused people living in some type of shelter. 

The city’s two largest homeless service providers told inewsource in recent interviews that while encampments are unsafe for everyone, officials need to be smart about the approach.

“We don’t have enough shelter beds in this town, not by any stretch of the imagination,” said Deacon Jim Vargas, president and CEO of Father Joe’s Villages. 

He said he applauds Gloria’s efforts to expand options but the city needs more, and more variety to help people with individual needs, such as sober living, harm reduction and what’s known as non-congregate shelter, which provides privacy. But housing is what breaks the cycle of homelessness, he said.

“We know that citations and a jail cell is not the answer,” said Vargas, adding he’s neither for nor against the ban. “It doesn’t help the person in question and doesn’t help the community as a whole. In fact, if anything, it makes the situation for those who are on the streets even worse.”

Bob McElroy, president and CEO of Alpha Project, said he would not support the proposal without adequate shelter space.

“Otherwise, we’re back to square one, criminalizing homelessness,” he said. 

Legal questions about defining ‘shelter’

In its May 30 opinion on the proposed camping ban, the San Diego City Attorney’s Office underscored the legal rights unhoused people have to seek shelter and offered recommendations on how to move forward. 

Cities cannot criminalize people for carrying out life-sustaining activities in public view, such as sleeping or sheltering, when there is no other practically accessible option, city attorney’s memo said, referencing a 2018 federal court ruling known as Martin v. Boise. 

In that federal ruling, the court added, “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.” 

The court also found that just because a shelter bed is available doesn’t mean it’s practically accessible. 

For example, an all-men’s shelter would not be practically accessible for a woman. A congregate, dormitory-style setting might not be practically available to a veteran with post-traumatic stress.

The ruling does not prevent governments from prohibiting camping “at particular times or in particular locations” as long as the law doesn’t punish people for “lacking the means to live out the universal and unavoidable consequences” of being human.

To comply with this ruling, the City Attorney’s Office recommends police offer shelter that a person can actually accept based on individual needs — meaning a woman with mobility issues who cannot access a top bunk should not be offered a top bunk or a bed at a men’s shelter prior to enforcing the ban. The City Council should also ensure there are facts that support its decision to prohibit camping in sensitive areas when shelter isn’t available, and consider whether this will leave unsheltered people with nowhere else to go. 

To prosecute cases outside of these sensitive areas, the City Attorney’s Office said it would have to show that “there was shelter space available or a legal place to camp.” 

Here’s where the legal grounds get a little shaky. 

The federal court ruling does not define what a shelter is, beyond an indoor sleeping space that is practically accessible. But in a subsequent case stemming from the city of Chico, where officials tried to set up a sanctioned campsite on an unused airport tarmac, the judge ruled that campsite didn’t meet the definition of shelter.

“It is an asphalt tarmac with no roof and no walls, no water and no electricity,” U.S. District Judge Morrison England wrote in the opinion. “It is an open space with what amounts to a large umbrella for some shade. It affords no real cover or protection to anyone.”

inewsource asked the City Attorney’s Office whether officials are taking the position that an open space at a sanctioned campsite would be considered an available shelter bed, allowing police to enforce the ban citywide. In a statement, a spokesperson said it’s still unclear what qualifies as “available shelter.”

“Based on existing case law,” the spokesperson said, “our office recommends shelter provided by the city include protection from the elements and meet basic human needs for access to clean water, restrooms, food, safety, etc.”

Either way, experts and attorneys say it’s a risky bet to make, as the city will likely spend taxpayer money defending the ban in court.

Political pressure is mounting

Some have called the proposed ban cruel and inhumane, urging the city to instead pour resources into housing, best practices and evidence-based approaches. Others have praised officials for their leadership amid a growing number of tent encampments, saying they’re sick and tired of seeing people have sex, defecate and use drugs outside homes, businesses and schools. 

And folks on both sides are voicing their concerns through protests, petitions and press conferences.

Last month, about 50 people attended a protest at City Hall and marched around the Civic Center, shouting “shame” while carrying seven tents, each one displaying a letter that together spelled out “housing.” On Wednesday, protesters crashed Gloria’s press conference at the fire station. According to CBS8, he responded by pointing at the protestors and urging reporters to tell their audiences that “they support the encampments — we don’t.”

Two petitions against the proposal are gaining steam on change.org, totaling nearly 1,600 signatures as of Thursday afternoon. Alliance San Diego, a community group that focuses on civic engagement, started its own petition that calls on officials to update and implement the city’s Community Action Plan on Homelessness. Gloria has also started his own petition asking for support.

In addition, more than 160 researchers — ranging in expertise from public health, sociology and political science, to visual arts and Spanish — signed an open letter to Gloria and the City Council that said the proposed ban would do more harm than good and urged them to explore evidence-driven alternatives.

On the other hand, business owners, community organizations and school officials have come out in droves to support the initiative. 

“Large obstructions such as tents, chairs and furniture, as well as human waste and litter, have a negative impact on the perception of our beautiful city and threaten public health and safety,” said Betsy Brennan, president and CEO of the Downtown San Diego Partnership, in a letter to Councilmember Whitburn.

Police with the San Diego Unified School District respond to about seven calls a month on average of unhoused people sleeping on campuses, according to a letter from Chief Alfonso Contreras.

What is driving this proposal?

A law intended to prevent trash cans from blocking sidewalks is, in some ways, responsible for the camping ban proposal. 

Law enforcement officers have been using the trash can law, or “encroachment,” to clear sidewalk encampments they say are unsafe. Local attorneys with two decades of experience fighting San Diego’s treatment of unhoused people are challenging its constitutionality. 

The attorneys, Coleen Cusack and Scott Dreher, have asked a judge to dismiss a misdemeanor case against a 58-year-old unhoused woman, arguing that the law is unjust at its core and the way police are enforcing it violates constitutional rights. The city is defending its use of encroachment and argues that people don’t have a right to block public spaces with their belongings. 

The judge has not yet ruled in this case but has stated publicly that the city may have some problems with the trash can law. While the ruling would not set precedent — or become a new law that other judges would have to follow — it could undermine a key component of the city’s strategy to address homelessness.

Whitburn has said he isn’t comfortable using a trash can law against human beings, and that it’s time the city passed a new, straightforward ordinance that sets clear expectations. 

Editor’s note: June 8, 2023

This story was updated to include comments from the San Diego City Attorney’s Office.

Clarification: June 10, 2023

This story has been updated to clarify Deacon Jim Vargas’s thoughts on the city’s proposed camping ban.