The laws of sleep

When Larry Milligan's excited he almost levitates—he carries his weight on the balls of his feet and moves as fast as he talks. Holding a mic in one hand and punctuating his words with the other, last Thursday he told the 200-plus residents at the city's winter homeless shelter that they'd won.

“The ultimate goal was that this would change consciousness,” said Milligan, who fasted in 2004 and again last fall to draw attention to how tough it is to be homeless in San Diego and find a place to sleep.

On Tuesday, March 6, the City Council voted to approve a settlement reached two weeks earlier between the city and two attorneys, Tim Cohelan and Scott Dreher, working pro bono on behalf of nine homeless individuals who'd been ticketed under a state law that forbids sleeping in public.

The crux of Dreher and Cohelan's lawsuit was this: San Diego's homeless population outnumbers its shelter beds—roughly 2,000 beds to 4,500 people. Sleep is a biological necessity, and so ticketing someone with no better option than to sleep on the sidewalk, or under a bridge or in a public park, violates the U.S. Constitution's protection against cruel and unusual punishment. Police argued that illegal-lodging tickets were handed out only in response to complaints; the attorneys argued that their clients' experience proved otherwise.

Under the settlement, police “will not ordinarily” issue illegal-lodging tickets between 9 p.m. and 5:30 a.m. to anyone asleep on public property. (City Attorney Mike Aguirre initially agreed to 6 a.m. while police wanted 5 a.m.; Dreher and Cohelan said OK to 5:30 a.m.)

As for the equivocal language—“will not ordinarily”—it was a compromise that came from both sides getting to know the other's position a little better, Dreher said.

“We wanted, originally, ‘Shall not ever give tickets.' Then we kind of went back and forth negotiating that because [the police said] they needed some freedom to have that out there, especially if it's part of a greater package of violations. What the spirit of it's supposed to be is they're not going to give tickets for [sleeping in public] if it's the only offense unless there's something else going on-they're on drugs or they're blocking a doorway or something like that.”

“Every situation is entirely different,” said Executive Assistant Police Chief Bill Maheu. “You... allow officers to use judgment.”

Maheu gives the example of a Logan Heights market that was cited for health violations because of folks loitering on the sidewalk.

“The business didn't want to go out of business because of it,” he said. “So you've got somebody who's there, you've got complaints on it, they refuse to move, they refuse to access available services—because we do have some services that, on any given night, may be available or may not; I mean, that changes each week.”

Federal Magistrate Judge William McCurine Jr. has final jurisdiction over the settlement, meaning that if Dreher and Cohelan believe the settlement's not being honored, they can take it up with the judge. There's no formal monitoring procedure, Dreher said. “You hear stuff, people call you; Larry Milligan hears things all the time,” he said.

For now, Milligan is encouraging folks to stick together at night-no more need to hide out in alleys, on the side of freeways and the San Diego River bed to sleep at night-the downtown civic center concourse, for instance, is open for snoozing during designated hours.

“If you all go your own way, you minimize your chance of survival,” Milligan told the group. “In an organized group, you maximize your chance.”