A San Diego Superior Court judge ruled Friday that a misdemeanor charge of blocking a sidewalk should move forward against a 59-year-old woman experiencing homelessness.
Responding to a request to dismiss the case, Judge Yvonne Campos rejected all four claims that the woman’s constitutional rights had been violated. The case is set for trial Aug. 18 and a conviction could carry up to six months in jail, as well as $1,000 in fines.
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.” Police have said she refused shelter in the past and would not move her belongings when asked.
“Had Defendant simply moved her property across the street, or down the street, as she has been doing for several years, this case would likely not exist,” Campos wrote in her 40-page ruling. “Defendant has chosen to force this showdown by claiming that she should not have to move her property when the city elects to conduct abatement of public places.”
Since the start of the pandemic, top city officials and police have cracked down on tent encampments using a city law known as encroachment, insisting that they have a duty to remove unhoused people from unsafe and unsanitary conditions that pose a risk to everyone.
Two local attorneys representing Infante for free asked the judge to dismiss the case in February, arguing the city’s encroachment law is unjust at its core and the way police enforce it violates constitutional rights. The law was intended to prohibit trash cans from blocking a sidewalk, but nearly a decade ago police decided to use it as a tool to clear tent encampments.
The attorneys, Coleen Cusack and Scott Dreher, argued that the law makes it illegal for anyone to place anything in any public right of way. Deputy city attorney Steve Hansen said that’s wrong: it’s not about briefly setting something down on the ground — there has to be some aspect of permanence.
On Friday, Judge Campos sided with the city. Infante wasn’t arrested for merely sleeping or resting in a public place while experiencing homelessness, Campos said in her ruling. She was arrested for her collection of personal belongings on public property and refusing to move when asked.
“While Defendant is a member of the public, she cannot commandeer specific public real estate and deem it solely hers to do with as she pleases,” the ruling said.
Campos pointed out that Infante has refused shelter in the past.
“The gist of her testimony seemed to be that she wants and expects certain housing to be provided to her by the government or someone else, or else Defendant wants to be left alone to live freely in her tent encampment without any interference or oversight from the city,” the judge wrote.
Campos also rejected arguments that the city unfairly targeted Infante because she’s unhoused, saying the city’s trash can law “appears to advance … legitimate governmental interests even if it somehow disproportionately targets homeless individuals because it is homeless people who have established homesteads on public property.”
Those interests include reducing the number of people living on the streets by encouraging shelter placement, maintaining the integrity of public property, and protecting public health, safety and access in public spaces, Campos wrote.
The judge’s ruling only addressed Infante’s motion to dismiss charges against her.
In a statement, defense attorney Cusack said she was disappointed by the ruling and looks forward to prevailing at trial. She said Infante was not immediately available to respond to the ruling. The city attorney’s offices did not comment by deadline, and a spokesperson for Mayor Todd Gloria said his office would review the ruling and consult with the city attorney.
Campos also attempted to address the “proverbial elephant in the room,” saying there are no constitutionally protected rights to occupy public or private property that does not belong to you.
“In a society legally structured around capitalist principles such as ours (‘you eat what you produce,’ or ‘sink or swim’), there is no judicially recognized legal answer, or legal recourse, constitutional or otherwise, for those without means,” the ruling said. “The starting framework has been that of self-sufficiency. Each of us must provide for our own shelter and housing.”
Those without the means to provide for themselves are subject to the rules and restrictions that come with assistance provided by the government or private charitable groups, Campos wrote. That includes homeless shelter operators that have rules about alcohol and drug use.
The ruling comes at a time when homelessness in the city is more visible than ever before. The crisis has become a flashpoint for San Diegans, as some accuse city leaders of inhumane treatment while others say they aren’t doing enough to clear encampments from city sidewalks.
The number of San Diegans who become homeless for the first time is outpacing those who manage to move off the streets and into housing. The latest homeless census showed nearly 3,300 San Diegans living on sidewalks and in riverbeds and canyons — the highest recorded in at least a decade.
To combat this growth, San Diego police are ticketing and arresting people who refuse to leave the streets and move to a shelter system that remains more than 90% full.
In a twist of fate, Infante has found herself at the center of a debate playing out in San Diego about how to ethically and lawfully deal with people who live on the street with all of their belongings. This case, in some ways, is responsible for the city’s latest push to pass a camping ban. The City Council is scheduled to hold its second and final public hearing on the proposed ban Tuesday.
The court’s ruling followed an extremely rare pretrial motion hearing that spanned six 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. Eleven people testified, ranging from police officers to advocates to people experiencing homelessness.
