Prop N. is Unconstitutional

by John X/PNN Community Journalist

A few weeks ago I was staying in a shelter here in the city and me and one of the staff got into an argument that ultimately led to the police being called. This is a short story and history lesson for what happened. Hopefully some insight and knowledge will flow from this to help the entire shelter and S.R.O community.

Upon engaging this staff person in this argument I decided to call the police since I was told I was going to be " put the fuck out". I called the police and explained a staff person was going to put me out of a shelter of which I had a contract with management (CASE MANAGER) for services for this facility.

To avoid any more problems or confrontations I waited at the bottom of the stairs inside the facility for the police to arrive. A senior manager arrived and asked me why I was at the bottom of the stairs after curfew. I advised this person a staff member had thrown me out of the facility or at least had threatened to do so and I was waiting for the police. He briefly stated " she can't do that" and "give me a minute and I will talk to her".
I waited at the bottom of the stairs for his return while at the same time wondering where San Francisco's Finest were at.

A few minutes later the senior manager came back to the top of the stairwell area and stated " you have been denied services and you have to wait on the outside of the gate for the police." This is where it becomes interesting, as I agreed to comply again to avoid any confrontation or even appearance of confrontation with this facilities staff.

Upon arrival of the police their was a great debate as to what the staff wanted as opposed to me, the person who had actually called for the police intervention.

With 4 officers, 2 police, 1 sergeant and the acting lieutenant for the station we all began the discussion not in my return to the property, but exactly in what manner or fashion I was to not be allowed to return. The lieutenant told me that they had not removed me from the property (I removed myself when I stepped outside the gate) but at the same time had no authorization to return me. We argued back and forth a bit and the only thing I was told was they could assist me in removing or gaining access to whatever property I had in the facility but would not assist in any matter with my return as the matter was now civil in nature. I attempted in vain to explain to the police that I had a contract with this facility between myself and the case manger thus " by invitation of resident or management" I was allowed to be on the property. However this proved to be useless and went absolutely nowhere. After this 20 minute interchange I was told matter -of- factly by the police there was nothing they could or would do to assist me and I was out and they were leaving, period!

Since I had nothing better to do, (sleeping now not on the agenda) I decided to take a walk to 850 Bryant street. I spoke with the lieutenant for the station and had asked him how it was that the police could use the term " agent or representative" to give the shelter staff the authority to remove someone but for the purposes of enforcement for a violation (my unlawful removal and failure to allow re-entry) the case was now a civil matter.

The lieutenant could not explain the interchange of the two to any degree of validity and finally went to his office and came back with section 602 n of the California penal code. He had originally attempted to state that these "shelter type" facilities have their policies and procedures and under those procedures can lawfully remove someone as they chose from the property.

He was absolutely unequivocally wrong! When he returned he handed me a copy of 602 n and in short this is what it states. After reading the entire section the last paragraph reads " however this subdivision shall not apply to persons on the premises who are engaging in activities protected by the state or federal constitution, or persons who are on the premises at the request of a resident or management and who are not loitering or otherwise suspected of violating or actually violating any law or ordinance".

What this means or meant for me was this. When I had the argument with the staff I was invoking my first amendment rights (freedom of speech), also I was not charged by the police with "violation of any law or ordinance" i.e. penal code 415 - disturbing the peace.Also I had permission (request) to be on premises by management by my contract with case management for services. As such I was entitled to be present on this property. I was also entitled to have the staff attendee charged with violation of 602 n and if necessary then removed from the property for violation of 602 n and legally if staff refused to leave property also arrested and charged with standard trespassing (Penal Code 602) and criminal trespassing (Penal Code 602.5). Though I was denied any of this, I have learned that civil remedies are available to me for the police department refusing to take any actions on my behalf that I was legally and constitutionally entitled to.
Now what this means for you someone in an S.R.O environment is this. First, let me explain how this section works so you can better understand how it could fit into your situation. The rules for single room occupancies are just that, rules. Not laws or ordinances just rules. The best example I can give you is this, municipal code 25 (sleeping in doorways) is a city ordinance. That ordinance allows the police without the owner to be present on the property to remove and arrest any person found sleeping in their doorway for the state penal code (law) of trespassing 602 PC. Because again local ordinance municipal penal code 25 has been violated.

You have a right to use your space as you see fit as long as you are not in violation "of any law or ordinance" period !. This covers overnight guests, visitors (local-out of town) etc. You are paying to stay there. Your rights can not be infringed upon by anyone.
Unless the rules or policies for San Francisco single room occupancies has been standardized and local ordinances have been created with hearings held by the Board of Supervisors with voter approval and ratified they all are illegal and unconstitutional and could and should be challenged in federal court.

Now how this applies to proposition N is quit simple. Prop N states that any recipient on assistance who is in non compliance with a policy of a shelter provider and is removed from a shelter facility will be considered to be in non compliance with the requirements for his/her general assistance and will be removed from the general assistance program.
As a note, I have kept copies of the original legislative version as proof to this statement
" For the record".

.None of these shelters or single room occupancies have any laws or ordinances that support the actions of which some of the management and staff take. Although it has been stated that numerous homeless service provider organizations worked in collaboration with the Board of Supervisors on " acceptable policies and procedures " none of those procedures or policies are constitutional and can not be upheld if held to any degree of legal scrutiny of which I emplore this readership to do. It should be noted that federal law on this in two specific areas is quit clear. First, title 18 U.S.C (United States Code) Sect. 241 makes it a crime to conspire to deprive someone of their civil rights. Title 18 U.S.C Sect. 242 makes it a crime to deprive a person of any right under color of law. This section applies to everything from judges to appointed or elected city ,county or state officials (including police officers)in official capacities. I remind this readership that proposition N was drafted by "lawyers" and the rules of the city S.R.O'S was drafted by , supported and approved by the Board of Supervisors. Probably the most important point I should make to this readership is the following, federal law precludes any group,organization,or government body from creating any rule or law that is either know or to be know as unconstitutional. If it is found that any group,organization or government has created a rule or law that is found to be unconstitutional in any regard that law is to be considered immediately voided. As it is the position of the federal government that no one is to be held whether knowingly or unknowingly to any rule or law that violates any of the constitutional protections of any citizen of the United States Government. If we allow proposition N to pass we will continue to allow this city to bash the civil right of a group of people who continues to have less and less of a voice in this city except by "poverty pimps" who claim to be working for the interests of the indigent but at the same time non of them has taken the time to present a story of this type to this many people with as much of a potential legal and financial impact as I, John X, have.