.San Rafael homeless campers sue city over restrictive ordinance

In another David versus Goliath story, San Rafael is paying two outside law firms to defend the city against a lawsuit resulting from a restrictive homeless camping ordinance passed in July.

Residents of “Camp Integrity,” a homeless encampment on the Mahon Path in Central San Rafael, say they were compelled to file the legal action because the city’s ordinance violates their constitutional rights and places them in physical danger.

Last week, Senior U.S. District Court Judge Edward Chen extended a temporary restraining order against San Rafael, prohibiting the city from enforcing the new ordinance, which limits the size and number of homeless campsites in an area.

At the conclusion of the 90-minute hearing, Chen directed both sides to provide more information to the court before the next hearing on Oct. 2. Specifically, the federal judge wants briefings on whether San Rafael’s camping ordinance interferes with freedom of association, a protected right under the First Amendment, and the applicability of the state-created danger doctrine.

Chen also ordered the city to “produce a detailed legible map showing areas where camping is permitted (legible enough to see street boundaries) with an indication of the number of campers allowed in each area pursuant to the proposed density restrictions.”

The city’s hotly contested ordinance limits the size of a group campsite to 10 feet by 20 feet. An individual campsite can’t exceed 10 feet by 10 feet. All campsites must maintain at least 200 feet of separation—two-thirds the length of a football field.

Currently, about 40 people occupy 33 tents on half of the Mahon Path, from Lindaro Street to Lincoln Drive, an area measuring about 540 feet. Under the ordinance, only three campsites would be permitted in that space.

Some of the campers have disabilities and depend on their homeless neighbors to deliver necessary supplies, according to the lawsuit. Others, who have been the victims of sexual assault or domestic violence, rely on nearby campers for safety.

Chen questioned the city’s attorneys about the constraints that they claim will keep homeless people and the rest of the community safe.

“I don’t know what that number is—but couldn’t a larger cluster be accommodated so folks at least have enough in numbers that they feel safe, or they can count on somebody to help them with food and water?” Chen asked.

San Rafael’s attorney, Mark Austin of Burke Williams & Sorensen, referenced a staff report that “set forth all of the dangers of larger encampments.” Austin also pointed to the declaration of Lynn Murphy, a licensed therapist who works for the San Rafael Police Department as the mental health outreach liaison.

“When there’s three or more tents that get together and start to grow in terms of the trash, the crime, the biohazards, the fire risk, etcetera,” Austin said.

Chen then sought evidence for Austin’s assertion that when the homeless encampment population reaches a certain threshold, problems increase.

The city’s other attorney, Michael von Loewenfeldt of Wagstaffe, von Loewenfeldt, Busch & Radwick, jumped in to clarify.

“Your Honor, this is the city’s first attempt to limit density,” von Loewenfeldt said. “There’s no social experiment that’s been run where we count tents and measure problems…It’s not that we don’t want to answer your question; it’s just it’s hard to understand what it is you’re looking for, and it seems inconsistent entirely with the city’s legislative power, and this court’s very limited role in analyzing the constitutionality of ordinances like this.”

In other words, the city doesn’t believe their ordinance is a matter for the courts.

Anthony Prince, the attorney for the California Homeless Union, disagrees, maintaining that the ordinance isolates people. That isolation is the crux of the matters that Chen wants the parties to address. Does forcing homeless people into small groups with less than three tents prevent them from freely associating with one another? Is the city placing them in danger?

Homeless people need to associate for safety, sufficient access to services and community assistance, according to Prince, who is representing one of the homeless campers in the lawsuit.

Isolation creates more vulnerability, Prince asserted. Numerous studies back him up. Homeless people are far more likely to be victims of violent crime than housed people.

“Larger encampments tend to be safer,” Prince said.

Prince also pointed to a major benefit of large encampments—case managers know where to find their homeless clients and can keep them on a path toward permanent housing.

San Rafael has first-hand experience with the advantages of a large city-sanctioned encampment. From July 2021 through August 2022, the city operated a “service support area (SSA).” A staff status report, released in December 2021, touted the SSA’s success.

“It creates a central, designated place for our partners to provide services…Service providers have remarked to staff that the SSA allows them to reach more people and make greater impacts than if encampments were spread out over many locations.”

Ultimately, 35 of the 47 campers received permanent housing, according to Chris Hess, San Rafael’s assistant director of community development, housing and homelessness. 

Yet, Austin, San Rafael’s attorney, provided the court with a much different account than the city’s own assessment.

“In fact, with respect to the case managers and other third-party service providers, they actually have a more difficult time in some instances accessing the homeless individuals at the larger encampments because they get harassed by some of the members of those encampments,” Austin opined. “And so, some of them avoid the encampments entirely.”

Lynn Murphy, the city’s mental health liaison, helped run San Rafael’s SSA. However, in her declaration to the court, she provided a similar, though milder version of Austin’s statement.

“Within the large encampments, the individuals living in the encampments are welcoming to the case managers, but it can often be intimidating for case managers to enter a site that is occupied by a large group of campers,” Murphy wrote.

After years of covering homelessness, I was unfamiliar with these intimidation and harassment claims. I contacted local nonprofits that employ case managers and outreach workers to determine whether they avoid homeless encampments.

“We always go into encampments,” said Chandra Alexandre, chief executive officer of Community Action Marin. “That’s our job. That’s what we do. Our people are trained for this kind of work, and they can go in pairs.”

Alexandre said that her staff has not reported feeling intimidated or harassed at the Mahon Path. Zoë Neil, director of Downtown Streets Team, concurs.

“Our case managers are in encampments all the time,” Neil said. “We do safety and de-escalation training, but I’ve had no reports that case managers are uncomfortable going into the Mahon Path or other San Rafael encampments. If we feel uncomfortable, we use the buddy system.”

Clearly, San Rafael and the homeless plaintiffs have a lot to work out. Chen arranged for the parties to engage in settlement talks beginning on Sept. 20. A rational solution, such as establishing a city-sanctioned encampment, will hopefully surface during those negotiations.

Otherwise, the city and its homeless residents will be bound by Chen’s next ruling, likely leaving one side unhappy. But for now, the campers will stay on the Mahon Path.

Nikki Silverstein
Nikki Silverstein is an award-winning journalist who has written for the Pacific Sun since 2005. She escaped Florida after college and now lives in Sausalito with her Chiweenie and an assortment of foster dogs. Send news tips to [email protected].

14 COMMENTS

  1. Once again, Ms Silverstein, you cover aspects of life in marvelous Marin that most would like to have permanently deleted from their consciousness. The SR plan put forth by the city is unworkable and even ludicrous on its face. I measured the distance between my home and the one next door and it is 75 or so feet. Homeless people need community to get by because it’s all they have. They depend on each other to survive. This isn’t rocket science! My hat is off to Anthony Prince. Carry on undaunted, both of you!?

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  2. Nikki Silverstein is famous for her long running “Heroes and Zeros” columns. It’s clear now that she and Mr. Prince are Heroes and the SR City Council are the Zeros. Ms. Silverstein brings us the facts, by walking and talking to the people involved. Only such heroes will save us when the blind hammer of bureaucracy descends.

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  3. Interesting interpretation of the situation. The Mahon Path as of 9/13 is in a terrible state. Drug use seems to now be condoned and every week the garbage clean up misses more and more, further compounding the issue. The question facing everyone involved is Are we being compassionate or negligent by letting the unhoused openly use and fester in their filth?

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    • Hi Clean,

      I’m wondering when you were last at the encampment. A nonprofit organization, Downtown Streets Team, is cleaning at the camp. I’ve been there several times over the past few weeks and it appears free of trash and garbage. There is a regular garbage pickup service, as well.

      As for drug use, I have personally only seen marijuana while at the camp. In all my years of visiting encampments, I’ve never witnessed illegal drug use at all. People don’t typically use out in the open when they have a private area, such as a tent, nearby.

      In response to your question, I’d like to pose another one. Are we being compassionate by trying to isolate people when other temporary solutions exist? Since the shelters in Marin are perpetually full, San Rafael could have a city-sanctioned encampment with a security guard, garbage service and bathrooms. That would prevent most of the complaints lodged about the encampment. A tiny home village is another temporary solution, an idea that the city has considered.

      The city claimed in the hearing that there is approximately 150 acres of public land open to homeless people for camping. It seems that officials should be able to find a location for an encampment or tiny home village.

      Obviously, the solution to homelessness is housing. That’s a slow process; however, there are viable interim solutions.

      I’m interested in your thoughts.

      Best,
      Nikki

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      • your complete denial negates any credibility you may have had in telling these stories.

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        • Complete denial of what? Of course, there are issues at all encampments. However, many complaints bandied about are from housed people who have never been out of their cars and walked into the encampment.

          There have been accusations of human excrement at the site. I’ve never seen it. The campers themselves pay for two on-site porta-potties. Does it make sense that they wouldn’t use them? People have been arrested for drugs found in their tents. To my knowledge, there has not been an arrest for use of drugs out in the open. So, let’s be reasonable.

          Crime, fires and drug possession occur in encampments, as they do in residential neighborhoods. Full time security at encampments substantially reduces those issues. Trash service and porta-potties reduce issues. Encampments are manageable. The city has successfully managed a previous encampment. There are solutions.

          Perhaps you could propose alternative measures if you don’t agree.

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          • I wonder if brokenstreetlight is even referring to this encampment because it sounds like conflating this topic with Oakland and SF homelessness issues.

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  4. The Mahon Path is too close to Davidson Middle School. Students use this path during the school year. It is also close to the shopping center where Sprouts market is located.

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    • This comment is pathetic when California law states that a cannabis dispensary cannot be within 600 feet of any public or private K-12 school, and Camp Integrity is 4,224 feet from Davidson Middle School. You choose.

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  5. Politicians who create and vote for public policies that intimidate and disperse unsheltered community members living in encampments do so at the bidding and pressure of housed constituents. This type of favoring of one type of resident over another is currently being demonstrated by San Rafael’s mayor Kate Colin, the city manager, and council members from every district of San Rafael.

    In no instance have any of the accusations written in comments above and in conversations amongst those housed in San Rafael been true. In fact, County case workers and those who have been in Camp Integrity know that San Rafael’s unhoused day-to-day lives are far from the fear-based discriminatory lifestyle stereotyping exemplified by those who wrote comments above and others who feel similarly.

    The real story here is how absolutely heartless, prejudice and NIMBY the mayor of San Rafael, current city council members, and the city manager are. Instead of spending our tax dollars making ‘sweeps’ and dispersing / removing what housed residents and businesses think is ‘unsightly’, try renovating and providing housing for these residents in one of the many empty commercial buildings no one wants to do business in, with integrated support services on the ground level. It’s disgusting and absolutely inhumane to realize that those leading us in San Rafael would rather push around and further marginalize residents who have the least in our community, than build public housing and deal with angry homeowners and businesses who don’t like the ‘look’ of poverty and won’t take the time to understand why encampments are the safest way for unsheltered people to live.

    Nikki, thank you for thoroughly investigating and writing about this topic for readers of the Pacific Sun. Hopefully people are learning from your articles about this side of Marin which the majority of residents pretend isn’t happening.
    Thank you!

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  6. This Tara Evans person is fired up! Have to say though, in my opinion, a bit full of hot air. Kate Colin, the city manager and the city council are doing a reasonably good job of balancing the community’s needs with those of some < 100 people that can't take care of themselves. There is no desire to marginalize, but there is some responsibility that each member of society has. Unfortunately until these folks take some responsibility, conditions might be a bit uncomfortable and not always the river front campsite they are currently enjoying.

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  7. It’s hard to comment because the truth of real fact is not printed.the fact of in january2024, the law will start judging people as they say ‘ aren’t mentally fit& need to be taken for there “professed helping those mentally impaired” they now will state they are going to help them get to get back on track.this is just as they did in Germany,they will just grab persons if they judge them unfit to care for them selves.this is not a program by those who have careing in mind to help those people .it’s like Stalin’s rules of freedom .to incarate the undesirable ( homeless) in the name of helping) they have aborted the rights our forfathers fought for .January 1 st 2024 .GET READY there commie to get you ! Fact…the governor’s new program.it was voted for ,prop 27 last election.

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