Roundtable: Decriminalizing Homelessness

Kaye PBS is supported by the law firm of Mintz working with startups and growing companies Mintz legal services can help clients raise capital secure space and protect intellectual property to achieve strategic goals. More at MedStar calm. Mintz built on excellence driven by change. It's a win for those who want to decriminalize homelessness. San Diego repeals a decades old law that bans living in cars. Human Research at San Diego's V.A. has the attention of Congress. I news source broke the story and soon it will get a hearing on Capitol Hill and a new line tends to provide more transparency for police shootings and misconduct. But it's on hold for now as police unions mount a legal fight. I'm Andrew Bowen and the PBS roundtable starts now. Welcome to our discussion of the week's top stories. I'm Andrew bowing in for Mark's hour. And joining me at the PBS round a table today are Bianca Bruno reporter for Courthouse News Service Brad Rossi no senior reporter and assistant director for eye news source and Kelly Davis a contributor to Voice of San Diego for the past 35 years it's been illegal in San Diego to live in a car the city's law was blamed by some advocates for criminalizing poverty and homelessness. Well the city council did away with that law this week in a unanimous vote and they did it with a little nudge from a federal lawsuit. Now Bianca let's start with how this law was being applied to the city's homelessness crisis. How was this affecting so the law was written in the 80s by city council it's a local ordinance and it was really affecting anyone living in cars or. And that includes all kinds of people you know people on disability or limited income you know living on Social Security. Students just people who can't really afford the skyrocketing housing costs in San Diego. And so what's the justification for banning people living in cars right. Why not just let people be so it's kind of the classic NIMBY argument where it was people in neighborhoods who were sheltered in single family homes not wanting people living in cars on the street. You know concerns about sanitation and safety and so the city didn't exactly repeal this ordinance out of the goodness of its hearts. Let's talk about this lawsuit. What's the story on that. So a class action was filed in late 2017 by a group of homeless people living in vehicles and Arby's oversized cars who claimed that the city's ordinance violated their constitutional rights as well as the Americans With Disabilities Act. And so that case has been making its way through the court and had some pretty significant court orders last year. And yeah. So let's talk about that the federal judge in this case ordered the city to stop enforcing this law. What was his reasoning there. So Judge Anthony Bhattacharya said that similar to another law up the coast Calif or San Diego's ordinance was vague and that it did not sort of outline for people what circumstances need to exist for their vehicle to be considered a living quarters or their home. And that because that's not detailed. People don't know what needs to be present for them to be violating the ordinance. So basically they wouldn't know what they're doing wrong and they could be ticketed by police officers. And the city also cleared the outstanding tickets in addition to stopping the enforcement of the law. Yeah. So last year in August he issued an injunction against the city saying they could not enforce the vehicle habitation ordinance. And as part of that within a month the city of San Diego had to comply. They canceled eight hundred and sixty three delinquent accounts and almost 200 parking tickets were kind of clean. Carnival where where are the hotspots where this is really happening or where this has become a problem in San Diego is it near the beaches is it downtown. You know for people in our vs they're definitely near Mission Beach in sort of the the big parking spots for boats. I've heard from a homeless advocate that there's a lot of Arby's parked in Courtney that to really I think it's it's all over. Yeah. So KP B.S. actually spoke with one of the plaintiffs in this lawsuit. Let's hear what he had to say about the repeal of this ordinance able to not have to move. Oh man it's just. Like I died and went to. The intensity of the. Fire leaving out some kind of. Engine infraction or something. It dominates a lot of your thinking. You keep somebody from sleep in a van. They're in a whole world of crap you know. Causes. It's like torture. And that was Michael Blum the plaintiff in this lawsuit a man living in his car. So there was a similar lawsuit in Los Angeles against a nearly identical ordinance. What happened there. So the 9th Circuit found that that law was also unconstitutional for basically the same reasons. Judge Battaglia issued the injunction in San Diego that it was vague and violated folks rights. And when the city council repealed this ordinance it was a unanimous vote like we said. What were they saying. So Councilman Ward he pointed out that laws like this they don't help in fixing the homelessness crisis in San Diego. That while no one wants to see people living in cars it's certainly preferable to people sleeping on the street especially given you know the hepatitis A crisis and other sort of sanitation concerns. Mm hmm. And the city has a few spaces for people to legally and safely live in their cars by these safe parking zones. Yeah. So those were issued in response to the Hepatitis A crisis a couple of years ago. And apparently they've been working and they also have some ways to connect people to to resources but those aren't available for people in Arby's. And so up in Los Angeles the city ended up actually reworking its its vehicle habitation ordinance so it could pass legal muster what happened there. And is there any indication that San Diego could do the same. So far no. I don't think it'd be sort of a politically smart call for council to decide to rewrite or rework the ordinance especially given kind of. The consensus that the city needs to do something to help people get housed. And this lawsuit that's filed by the disability advocates also targeted this recreational vehicle ordinance or Oversize Vehicle ordinance. What would happen there. So they also sought an injunction to get the city to stop enforcing that law. It's a oversized vehicle ordinance. It doesn't allow people to park between 2 and 6 a.m. on city streets. So people in Arby's kind of happy to do this whack a mole strategy where they're you know moving parking lot to parking lots. So they're in compliance. But Judge Battaglia found that that law was not vague because it did kind of offer some guidelines for what people needed to comply with. And so that's still in effect. It's still in effect and people are still being ticketed rendered. And I've asked the attorneys in the case if anyone's and there are being pounded since the lawsuit was filed and she couldn't say but aside from that 2:00 a.m. It's 2:00 a.m. to 6:00 a.m. I'm sure our viewers can still. Are these covered under they can be legally parked. Can it be legally parked on the streets. Yes. And lawyers for the plaintiffs in this lawsuit think that San Diego's decision this week the City Council's decision could actually be a bellwether for similar laws across the country. Tell us about that. So San Diego and sort of following suit with what happened in L.A. that's serving as sort of a legal precedent for this to be followed throughout the country. The National Law Center on Homelessness and Poverty has said that vehicle habitation laws or laws outlying living and vehicles are the fastest growing way that cities are criminalizing homelessness. And so they really expect more lawsuits to be filed throughout the country. And so on one hand it's are these laws constitutional on the other hand it's just a question of Is this good policy is it working. Sure. Yeah. All right. Well that wraps up this segment. We do have to move on. But thanks for following this story and then add it from the beginning pretty much so yeah we're watching this as it plays out in court. So the V.A. has had its bad share of bad press lately with long wait times poor communication with patients and a failure to stop high rates of veterans suicide. And as if that weren't enough the V.A. is now being accused of allowing a doctor to perform risky and medically unnecessary procedures on veterans suffering from alcoholism and liver disease. That's said to have happened right here in San Diego and soon the V.A. will have to answer to Congress. Now Brad you first reported this story back in November. Who is this doctor and what was he allegedly doing to patients. So the doctor's name is Samuel ho. He was the head of the gastroenterology section at the V.A. here in San Diego. He was also a professor at UCSD. Almost all of them at the V.A. have joint appointments at UCSD. And he was part of a federally funded study. It was a gigantic study that involved more than 10 different academic institutions and hospitals around the world paid for I think a six million dollar study. And what he was trying to do was look at ways of improving the diagnosis of liver inflammation in patients that have alcoholism. What he was accused of doing was taking liver biopsies from these veterans suffering from alcoholism through a procedure called a trans jugular liver biopsy which means going in through the neck and snaking something down to liver and taking out a piece. Now the accusation is that this this procedure was not necessary for any reason. And the doctor is accused of passing this off at the V.A. is something called standard of care which means that it's something that is required during the course of a normal medical evaluation or procedure. He's saying you need to have these biopsies done to diagnose you. The whistleblowers in this case are alleging that is not the case and that he was doing this mainly to get money and get published in scientific papers. So let's talk about those witness whistleblowers in this case who are they and when did they raise the alarm about this study. So their names are Mario choke here and Martina buck. They first brought this to light in 2013. So this has been going on for almost six years. Mario is the head of the liver and transplantation clinic at the V.A. also at UCSD Martina was a researcher at UCSD and at the V.A. They Martina set on what's called the institutional review board at the V.A. which oversees any kind of research especially human research. Back in 2013 and she initially brought this to light because Dr. Ho was was saying that he wanted to do this procedure on pregnant patients which is a huge no no. She brought that to the board. Things were changed he was allowed to proceed by removing the pregnant patients from the study group. But as time went on and she kept raising her concerns and Moreno started raising concerns they started facing retaliation. And in 2016 they brought this to the Office of Special Counsel which is a federal investigative agency that oversees whistleblower complaints. So there's one particularly gruesome detail about what happened to one of the patients in this study what happened there. Well I should say there were about 28 patients that we know of that went through this study over the years. And in our first story in November we hadn't heard anything about what actually happened to any of them. And what we found recently was that one of the patients was a man suffering from hepatitis and cirrhosis and was diagnosed by many different doctors are saying you do not need a liver biopsy. But once Dr. Samuel ho became aware of the patient he said that he needed it done. And what happened was the man ended up coming out of the procedure losing with blood from the biopsy procedure in his neck covered in feces confused the next morning he woke up delirious and we that's that's the only patient that we know about that we have details on but that's it's pretty gruesome Brianna. And so who at the V.A. is responsible and responsible for making sure that these kinds of things don't happen. There are so many layers. It's unbelievable that this got through all of them so there's what I mentioned before the institutional review board. There's another subcommittee research safety subcommittee there's a research compliance officer at the V.A. then there's the overall director of the V.A. And then on the federal level you have the Office of Medical Inspector at the V.A. and other federal institutions the Office of Human Research Protection. So this found its way all the way through the chain despite all the complaints and was allowed to go on for years if this isn't considered a standard of care. Why your story talks about the whistleblowers being retaliated against. Why did they face retaliation if it seems so obvious that that this doctor wasn't doing things properly. There is an unbelievable culture of retaliation at the V.A. that has been well-documented over the years. There was a letter from former Special Counsel Carolyn Kerner to the president and Congress from 2014 that laid out the numbers and I have them here. They're kind of astounding in all of 2015. The Office of Special Counsel saw that out of all the federal agencies or all the federal employees that would go to the OIC more than 35 percent of all complaints the OSA came from the V.A. and in 2015. I'm sorry in 2014 the V.A. surpassed the Department of Defense and the number of complaints that came from their agency even though the Department of Defense has twice the number of employees. So this is just a culture that has been going on for years and years. So the V.A. did an internal investigation into these allegations. In 2017 what came of that their first investigation found that despite all the evidence it was unsubstantiated that there was basically no problem at the V.A.. Now the Office of Special Counsel was charged with overseeing that investigation in a way and weighing in on whether it was a good investigation or a bad one. And they came back and said it was a completely unreasonable investigation. The oh my went back to the V.A. or went back to interviewing people and found that some of their complaints were substantiated but the OSCE still found it unreasonable. In a letter to the president in Congress. And that has led to another visit from the army which just happened a couple of weeks ago with a reinvestigating the case. So lots of multiple investigations and re investigations and things like that. And now you spoke to Congressman Scott Peters of San Diego about this story and he's saying that Congress is going to hold some hearings on it. What's going to happen there. Yes so the hearings according to Congressman Scott Peters will happen this spring. I didn't know much about how hearings actually function so I asked him to break it down for us and what did what he said is that it'll be one day they will call in anywhere from three to four to five different people they may be experts they may be people within the V.A. to ask them questions this Doctor Samuel Ho has gone to Dubai and I asked are they going to bring him back for this and he said probably not what they'll ask for is some kind of statement from him that they'll read at the hearing and then after they'll talk amongst each other and decide what is the next course. Are all the questions answer everything that they had in their minds or or do they feel like it needs to go to a next step and possibly bring in law enforcement so long time before this completely plays out. But given that doctor who is now in Dubai if these accusations end up being proven true is there any chance of him actually facing any consequences. That's a really good question and I actually looked up extradition treaty between the U.S. and what I found is that Dubai United Arab Emirates does not have a treaty with the U.S. but they have extradited people in the past just in November they extradited a British national to India for corruption charges. So it is possible it could be brought back and just a few seconds left on the segment but you said the whistleblowers are facing retaliation. How are they seeing all of this new investigation now that it's coming to light. I think they're they're cautiously optimistic. Martina did lose her job over this. She they claim that she was harassing people and a culture of something at the V.A.. Mario still there. But you said he's facing retaliation as well. Mm hmm. Well thanks for breaking this story. Certainly not a happy one but. But glad that it came to light and we can now look into it further including Congress. So we have to move on that California has long had some of the strongest privacy protections for police officers accused of misconduct. But that started to change on January 1st with a new law that took effect. The goal is to shed some light on how police departments deal with bad apples but that sunlight did not last for long after a judge this week put the brakes on the law's enforcement. Now Kelly this law now called SB 14 21. Tell us what it did. Yes as before June 21 which is authored by Oakland senator named Nancy Skinner. It allows the public to request certain records from law enforcement agencies. And that's a really important part. We can't under this law just willy nilly go in and ask for any records of complaints filed against police officers or misconduct in Valley investigations. The DA the all that's available under the law are documents related to officer involved shootings or incidents where use of force by an officer caused great bodily injury. And you could also request records involving cases where officers have been found. So these are substantiated complaints of citizens found to have committed sexual assault or they lied during the process of an investigation. And so what's the intent around this it was as it was being debated there was kind of a cultural moment happening. Yeah I mean this is part of a much larger effort over the last few years to shed more light on nonplused practices you know on on racial profiling on use of force. And let the public give the public more information on on what's really going on. And it was happening as Sacramento was dealing with this particularly noteworthy or newsworthy shooting of a black man. Yeah. She didn't have Stefon Clark unarmed young black man who was shot seven times in his grandmother's backyard by Sacramento police. That happened kind of right as SB 14 21 started making its way through the committee process and I feel like and others have said not just me that that case really kind of propelled this bill along. And so there have been over the last dozen years or so other attempts to give the public access to misconduct. Kurds and and many of those those bills failed. They didn't even make it through the first committee hearing this one made through all the committees pass the Senate. It's passed the Assembly easily signed by Jerry Brown. So I do think what happened is different Clark and you know other high profile shootings police misconduct cases played a role played a role. Yeah. And so there was a short window here in San Diego County where journalists and members of the public were able to get their hands on some of these records. What did everyone come up with. Yeah. So prior to eight police unions filing a lawsuit to halt implementation of the law. That happened earlier this week a couple of reporters from the interviewing Greg Moran and Lindsey Weekley. They were able to get their hands on. They put in I know they put in requests with police agencies throughout the county. These records are slow to be turned over because the police attorneys have to comb through make sure there's nothing that needs to be redacted. But they got actually I think the most interesting one they got was involved an officer who Chula Vista police officer he resigned before he was fired because he was caught having sex on duty in this part of the community like kind of a park Hill area where the community had complained. People are going to this area did for to have sex to engage in illegal activity. They were complaining. We need more police in this area. And the police officer ended up getting caught. They're doing exactly what the community was complaining. Other people were doing so. So let's dive into this lawsuit who is suing and what are they arguing. Yes it's eight police unions in San Diego. I won't list them all but San Diego Coronado Oceanside. They're represented by the same attorney Rick Pincus from Bobbitt Pinker's well-known very successful legal firm representing police unions. And so they asked a judge. Their argument is that the law is not retroactive. That the only records the public can can get their hands on are records created after January 1st 2019. The Nancy Skinner and others have said no matter who authored the bill. Yeah. The center of the bill said no. This applies to all records in possession of a police department. So a judge agreed to put a stay on the law halt the law pending a March 1st hearing. He put this on a very quick timeline. So on March 1st the unions will be back. And then there's some media organizations that are going to challenge and say you know this should apply to all records. Yeah. And full disclosure here. KP The U.S. is among those media organizations suing or rather trying to defend the line and arguing that it is retroactive and records prior to 2019 should be included under the public access. There's a very nice coalition of ACLU and various media organizations that have joined together. So you spoke with the attorney who's representing the unions. He's not a fan of this law to say the least. What did he tell you. Ultimately it came down to he believes the laws designed to shame police officers and to make them second guess what they're doing out in the field. He says it will cause police to not be as proactive as they might be in this situation. So I think you know there's other reasons they're giving that it could be overly burdensome to turn over all these records. But the thing he kept going back to is this is intended to shame police because well San Diego was dealing with a few lawsuits filed regarding this sheriff's deputy was found to have sexually assaulted over a dozen women I think close to 20 while in uniform. And you know if a law like this exists in a couple years ago you know how that how might that have affected the way this turns out. This could be you know we leave there's other cases where we found that it's only once the case hits the criminal court or civil court that we find that an officer had a long history of misconduct. So so I mean really I think the intent is to to shine a light on things that the public never sees in order to be kind of an early maybe an early warning system that there is a culture in a department or there's a tequila officer who maybe shouldn't be there. Or maybe he needs more training or should be fired. Just a few seconds left in the segment. But the judge issued a stay on this lie affecting only the agencies that are named in the lawsuit. Yeah. And so what happens after March 1st. What's going to what's going to happen. What's the next step. You know if he if he agrees that the laws retroactive then we will we're all free to put in our public records requests. If he agrees it only applies to records created after January 1st. I have a feeling there's going to be a challenge to that there throughout the state. There are many other legal challenge similar legal challenges. It's kind of a big mess. Yeah. So this is going to be really interesting to watch. Just because a case is going on. So thanks for your reporting on this. That does wrap up another week of stories at the Cape B.S. roundtable. I'd like to thank my guests Bianca Bruno of courthouse news service Brad Ross CEO of I news source and Kelly Davis of Voice of San Diego. And a reminder to our listeners all of these stories we discussed today are available on our Web site PBS dot org. I'm Andrew bone in for Mark hour. Thanks for joining us today on the roundtable.