Is San Diego’s homeless camping ban on firm legal ground? Some say it could face a challenge

San Diego Mayor Todd Gloria urges the City Council to support the "Unsafe Camping Ordinance" on June 13.
San Diego Mayor Todd Gloria urges the City Council to support the “Unsafe Camping Ordinance” on June 13.
(Nelvin C. Cepeda / The San Diego Union-Tribune)

A trial has been scheduled for San Francisco to defend clearing homeless encampments. An attorney for a national homeless-rights group says San Diego’s ordinance also could be challenged.


While the city of San Diego prepares to begin enforcing a ban on homeless encampments, at least one attorney says it could face a legal challenge as another California city already fights to enforce its own camping prohibition.

In San Francisco, a judge has blocked police from sweeping homeless encampments from sidewalks following a lawsuit filed by the Coalition on Homelessness.

The city’s appeal to overturn the injunction was denied in April, and a trial is set for next April.

That litigation challenges whether San Francisco is abiding by the legal precedent established in a 2018 federal appeals court ruling in Martin v. Boise that limits a government’s ability to cite or arrest homeless people for camping on public property. The ruling is generally interpreted to mean a city cannot cite a person who has no other place to go, such as a shelter.

The San Francisco case was brought up briefly in the June 13 San Diego City Council meeting where the ordinance passed 5-4. A second reading of the ordinance is expected Tuesday, June 27, with enforcement able to begin around Aug. 1.

The ordinance prohibits camping on any public property when shelter beds are available and at all times in places where public safety is a concern, such as city parks and near schools or existing shelters.

June 15, 2023

When Councilman Kent Lee asked about the pending San Francisco litigation, Chief Deputy City Attorney Heather Ferbert said the case offers little guidance in case law since it remains undecided.

Ferbert said the case raises questions about whether the Martin v. Boise decision requires sufficient shelter to house the entirety of the city’s unsheltered population in order to enforce a no-camping law.

In San Diego, the city has argued it can cite a person who is camping on public land and refuses an offer of shelter. It does not require a specific number of vacant spots other than the one being offered to the individual.

San Francisco has slightly more emergency shelter beds (about 4,500) than it has unsheltered people (about 4,400). San Diego has nearly twice as many unsheltered people (about 3,300) as shelter beds (it funds about 1,700).

Though the San Francisco case is undecided, the San Diego city attorney’s office wrote in a recent legal memo that San Diego is on solid ground in its interpretation of Martin v. Boise and can enforce its encampment ban.

In the legal opinion, the city attorney’s office agreed that under the Martin decision, cities may not prohibit people from sleeping on public property if shelter is not available. But it also said cities are allowed to cite people for other behavior, such as blocking a sidewalk.

The San Diego City Council discusses a proposed homeless encampment ban while critics of the ordinance show their opposition.
The San Diego City Council discusses a proposed homeless encampment ban June 13 while critics of the ordinance hold signs showing their opposition.
(Nelvin C. Cepeda / The San Diego Union-Tribune)

The memo also states the Martin decision does not categorically prevent governments from prohibiting camping at particular times or in particular locations.

That interpretation would appear to leave the door open to banning camping in some places at all times, regardless of shelter bed availability. In San Diego’s case, such a ban would apply within two blocks of schools, shelters, transit hubs, trolley stops, riverbeds, waterfronts, beaches and city parks.

But the memo issued a caveat: “As the courts have not established a test to evaluate the times or locations where camping may be prohibited when shelter is not available, council should weigh the constitutional rights of unsheltered individuals against the city’s need to protect public health and safety in these specific locations.”

“When considering whether to ban camping in specific locations that would be applicable when shelter is not available, our office recommends the council’s decision be based on facts in the record supporting a strong health and safety reason for the ban,” Ferbert said June 13. “Council should also consider the collective impact of the specific bans and whether there is a place for people to go when shelter is not available.”

A homeless person's belongings in La Jolla
(Elisabeth Frausto)

In December, Andrew Mille, who had lost his job as an e-bike customizer and was homeless for a second time, told the La Jolla Light that he needed a safe place for himself and his two dogs.

“I live anywhere I can right now that’s not going to get me arrested or run off the property in the middle of the night,” he said. “I have to have a decent area where we can lay down. Instead of just me cramping into some small corner, I have … two dogs attached to me all night.”

Mille called La Jolla “one of the safest areas for me to sleep with my dogs because we could find lots of open areas and open spaces that weren’t going to be ... patrolled by security.”

Don, who declined to give his last name, said he had been living outside in San Diego County for 12 years — seven of them in La Jolla, where he said tourists give him money when he plays flute on the street.

“If you move me to La Mesa or something, I’m going to have to come back here,” he said. “This is where I live. This is where I make money.”

Brian Gruters, associate director of outreach services for the nonprofit People Assisting the Homeless, or PATH, in the San Diego area, told the Light: “It’s not that [Don] doesn’t want help, he just doesn’t want what’s available, which is a shelter bed downtown. ... [In La Jolla], Don knows people, he has a routine and knows where things like the bathrooms are.”

Coleen Cusack, a lawyer who has defended homeless people in San Diego, said she didn’t want to comment on the city’s ordinance just yet but would be watching the outcome of the San Francisco case for a possible precedent.

Will Knight, an attorney and decriminalization program director for the Washington, D.C.-based National Homelessness Law Center, said he sees problems with San Diego’s ordinance and the city attorney’s memo.

Knight noted that the memo says that to comply with the Martin decision, the city must offer a shelter bed that someone can accept based on the person’s needs. As an example, it says the city cannot conclude it has complied if a woman is offered only a top bunk that she cannot access.

Knight said he agrees with the example but that the memo doesn’t go far enough.

The city also should take a shelter’s location into account when considering whether it is adequate, he said. For instance, homeless parents may need a shelter near their child’s school.

He also said the memo shows that San Diego is going further than other cities when considering a blanket ban on encampments in certain areas because of public safety concerns.

Enforcement won’t begin until at least 30 days after the ordinance becomes official, then will be a progressive three-encounter process.

June 17, 2023

Knight was referring to a section of the memo that reads: “Other jurisdictions have relied on Martin to ban camping in specific locations when shelter is not available, although this office has not identified any jurisdiction that has banned camping in a broad area of the city.”

The memo says Spokane, Wash., banned camping under any railroad viaduct regardless of available shelter, the city of Riverside banned camping in a wildland area where houses meet or intermingle with undeveloped vegetation, and Santee banned camping in areas that threaten to discharge pollutants or waste in the San Diego River corridor.

Knight said those examples are true public safety issues but that San Diego is going beyond reason.

“The city of San Diego is taking it a mile further and saying Martin says we can do this whenever we want, however we want,” he said.

“What are not legitimate public safety concerns?” he asked rhetorically. “‘We don’t want children to see homeless people.’ That’s the only reason to keep them away from schools. Or ‘We don’t want them in our beautiful parks.’”

Knight also noted a part of the memo that calls the ordinance “defensible so long as it does not unduly infringe upon the constitutional rights of unsheltered individuals for the status of being homeless and does not prohibit camping in a manner that results in unsheltered individuals having no alternative place to go.”

But Knight argued the ordinance does just that, contending it criminalizes people for being poor, which is unconstitutional.

“It’s something we’d certainly oppose, because it’s definitely not a step in the right direction,” he said.

— La Jolla Light staff contributed to this report.