Homeless Ruling Won’t Impact Santa Monica

By Blair Clarkson
Staff Writer

July 6 -- A contentious state appeals court decision last month that ruled jailing a
homeless alcoholic for public intoxication was not cruel and unusual punishment should have no impact on Santa Monica's policies for handling its own homeless population, according to City officials.

Both police and City officials said they seldom prosecute public drunk and disorderly cases -- a misdemeanor under the California Penal Code -- because of limited jail space and a preference for using treatment programs and diversionary tactics.

"I don't think that decision in San Diego is going to change our practice here at all," said City Attorney Marsha Moutrie, "because the Police are careful about how they apply (the statute) and so are we.

"The San Diego case was a fact specific decision," she said, "and I think we are respectful here of the individual rights that the decision expresses."

Two weeks ago the District Court of Appeal in San Diego, in a 2 to 1 decision, rejected homeless veteran Thomas Kellogg's claim that he could not avoid being drunk in public since he was homeless, and upheld the prior 180-day sentence imposed upon him in 2002.

Kellogg had been arrested on three separate occasions for public intoxication.

In Santa Monica, when police officers encounter anyone passed out on a sidewalk or staggering through an intersection, they will first check to see if medical treatment or hospital care is required, said Lt. Frank Fabrega.

If not, the person is brought to the station, allowed to sober up for four to six hours, booked for public intoxication and then released.

"Most of the subjects brought in for public intoxication don't even go to court," Fabrega said.

One reason is the steady overcrowding of LA County's prison system and a hesitancy to pack it tighter with misdemeanor crimes.

"The problem tends to be that jails are so full," said Council member Ken Genser. "The courts won't sentence anybody for minor crimes because there's no space in the jails."

Instead, police officers will often times take or refer homeless residents picked up for public drunkenness to a local substance abuse facility or treatment program instead of arresting them.

City officials feel services like the Clare Foundation -- a private, non-profit substance abuse treatment facility that works specifically with alcohol rehabilitation -- offer better, more meaningful solutions than simply churning people through the legal system.

"With anyone who is a substance abuser," said Mayor Richard Bloom, "we try first to engage that person in a diversionary program. Studies have shown that simply prosecuting and arresting substance abusers doesn't lead to the result that society wants.

"You want people to lose their addictions," he said. "Just jailing a person typically doesn't lead to that result."

In the case of repeat offenders like Kellogg, who are found passed out in the same doorway or creating disturbances on the same street corner again and again, officers will submit a police report to the attorney's office for prosecution, said Fabrega.

Yet even then, it is unlikely the case would proceed to court.

Instead of prosecuting a chronic offender, Moutrie said, the attorney's office would usually seek a "stay away" order to keep the individual from returning to the area as a condition of probation.

Stay-away orders are generally used to keep prostitutes from establishing bases of operation on busy streets.

Neither the police department nor the attorney's office tracks homeless crimes or differentiates between homeless residents and regular citizens arrested for public intoxication, but Fabrega noted that individuals are picked up for being drunk and disorderly "on a daily basis."

Although the San Diego decision will have no apparent impact on enforcement of City policies on public intoxication, Kellogg's case has highlighted a growing concern among homeless advocates over the perceived criminalizing of homeless activities over the years.

A decade ago the City Council cut off public drinking fountains and closed public bathrooms at 5 p.m. In 1996, a federal judge upheld a City ordinance banning panhandling near ATMs, banks, bus stops and on public transportation.

A lawsuit filed by several homeless residents argued that the measure criminalized the homeless and forced them out of the city, but the presiding judge ruled the law legally protected citizens from fear and intimidation.

In 2002, the Council passed laws requiring groups handing out food to 150 or more people to adhere to community event laws, and made it illegal for a person to sit or lie down in a Downtown doorway overnight.

Many in the homeless community saw these rulings as concessions to local business owners and residents fed up with the increasing numbers of homeless coming into the city.