Judge in Midway District case says San Diego’s encroachment law doesn’t violate rights of homeless people

A row of tents lines a homeless encampment on Sports Arena Boulevard in the Midway District in January 2022.
(Hayne Palmour IV)

The ruling, which allows a criminal case against an unsheltered woman to proceed, says the defendant ‘cannot commandeer specific public real estate and deem it solely hers to do with as she pleases.’


San Diego’s use of an encroachment law to charge homeless people living in sidewalk encampments does not violate the Constitution, according to a San Diego County Superior Court judge — a ruling that allows a criminal case against an unsheltered woman to move forward.

Judge Yvonne Campos declined to dismiss unlawful-encroachment charges against Della Infante, who had been living on a 100-square-foot patch of sidewalk on Sports Arena Boulevard in the Midway District when she was arrested in October and charged with violating the law, a misdemeanor that is part of the city of San Diego’s municipal code.

In her 40-page ruling June 23, Campos rejected arguments from Infante’s lawyers that the ordinance violated several state and federal constitutional rights, including the rights to due process and equal protection under the law. They also said the encroachment law criminalizes homelessness by subjecting to prosecution people who live on the streets because of inadequate shelters in the city.

Campos concluded that Infante was not being targeted because of her status as a homeless person but because of her conduct — essentially claiming a 100-square-foot section of the public right of way for her own use.

“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,” Campos wrote. “That is in essence the claim Defendant cloaks in her theories of her ‘right to rest’ or ‘right to store property due to homelessness.’ These are presently not acknowledged or enumerated rights in American jurisprudence or California jurisprudence applicable to this court’s analysis.”

The ruling came days before the San Diego City Council approved a new ordinance cracking down on encampments, which have become more prevalent as the city’s homeless population has increased. The ordinance allows police to cite or arrest people found camping on public property if they refuse an available shelter bed. In certain areas, such as within two blocks of parks, schools and waterways, arrests could be allowed even if no shelter beds are available.

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In Campos’ ruling, she also discussed what she termed in one section “The Proverbial Elephant in the Room,” by which she meant the fact that while there is constitutional protection for property rights, there is no “concomitant constitutional protection afforded those who do not own property.”

Previous court rulings have said people cannot be arrested for sleeping in public if a municipality does not have shelter beds available, but Infante’s case is different, Campos said.

“These cases ... are a far cry from Defendant’s assertion that she has a constitutional right to plant her tent encampment wherever she chooses,” Campos wrote, “or that she has a constitutional right to store her encampment property on public property, on her terms. Defendant does not simply seek a place to rest or sleep in public or to simply place her bedding supplies in public. Defendant seeks a privilege to construct her own homestead encampment wherever she decides and for however long she wishes to operate it.”

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Campos’ ruling came in response to a pretrial motion by Infante’s lawyers Coleen Cusack and Scott Dreher to dismiss the case.

Cusack said the ruling is not a precedent that others judges must follow, and she plans to bring similar motions in other encroachment cases she is working on.

“I am anticipating Della will be acquitted at trial, and if we win, we will not be appealing the decision further,” Cusack wrote in an email. “If trial is unsuccessful, we will have the opportunity to appeal Judge Campos’ decision then.”

A representative of City Attorney Mara Elliott said Campos’ ruling speaks for itself and declined to comment on what, if any, application it may have to the new anti-camping law.

The city has long relied on the encroachment ordinance — and a second law in the state criminal code banning illegal lodging — to break up encampments and in some cases charge homeless people in court. The law makes it illegal for anyone to “erect, place, allow to remain, construct, establish, plant or maintain any vegetation or object” in the public right of way. It was adopted in 2007 as a response to trash cans and recycling bins left in the right of way, according to documents about the law obtained by the online news organization Inewsource in March.


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