In San José, a Controversial Choice for Unhoused: Shelter or Arrest?

On a warm May afternoon, Butch Larson and David Garcia leaned intently over a makeshift workbench outside Larson’s tent, one of a dozen lining the Guadalupe River Trail in South San José.

Above them, cars roared along an overpass on Highway 85, enveloping the encampment in an unceasing din, but providing the pair a break from the midday sun.

Larson tinkered with the underside of a small skateboard. He worked slowly, still recovering mobility in his right arm after suffering a stroke last year. Larson has been unhoused since 2012, living for the last four years in this encampment off Cherry Avenue. Garcia arrived a year or two later.

Just a hundred yards away, a construction crew worked on what San José officials hope will be future homes for Larson and Garcia: a 128-unit tiny home village set to open this fall. People experiencing homelessness in the immediate area will be offered first preference for a private room.

But Larson and Garcia aren’t interested, at least not right now. Both said the facilities have too many rules and too little space for their tools.

“We don’t want those,” Garcia said. “They should give us a hotel room.”

Larson doesn’t want that either. He lived briefly in a former downtown motel that was converted into a temporary housing unit, and said it felt “like a jail.”

“I couldn’t smoke no marijuana or drink alcohol there,” he said. “I couldn’t have my tools, I couldn’t have my electric bike, I couldn’t have my motorbike, I couldn’t have my electric skateboard.”

But Larson, Garcia and others living in encampments near interim housing sites could soon face new pressure to move indoors.

The San José City Council will vote next week on a controversial plan authored by Mayor Matt Mahan to arrest unhoused people who refuse multiple offers of shelter. The proposal, called Responsibility to Shelter, is aimed at getting unhoused people into temporary housing or a court-ordered behavioral health treatment program.

Mahan is leading a call echoed by mayors across California, and recently by Gov. Gavin Newsom: if shelter space is available, living in often unsafe and unsanitary encampments cannot be an acceptable alternative. If encampments persist after the city has spent millions of taxpayer dollars on temporary housing, Mahan argued, winning support for future shelter in San José will prove impossible.

“In addition to our moral responsibility to intervene in cycles of addiction and mental illness and get people indoors into treatment, we have a duty and really a political necessity to bring the whole community along,” Mahan told KQED.

Critics of the mayor’s plan argue that such enforcement is premature. City data shows most unhoused people in San José accept shelter when offered. And even if every person living outdoors wanted a bed, the city is still far from being able to offer one: while there are more than 3,000 city and county-run shelter units in San José, an estimated 5,477 people are living without shelter.

Santa Clara County officials, whose collaboration would be required once an arrest is made, are deeply skeptical. Without additional treatment beds, they warn, the plan could push more people through a revolving door between the courthouse, the jailhouse and the streets.

Back at the encampment near Cherry Avenue, Larson and Garcia said the threat of arrest would do little to change their mind.

“I’ve been telling everybody out here, I’ll probably be the first person to go to jail over this s–t,” Larson said.

New police and outreach units

Both supporters and opponents of the plan agree that unhoused people who are arrested won’t be spending nights in jail, at least not initially.

The plan before the council on Tuesday would add an expectation to accept shelter to the city’s encampment code of conduct. That code of conduct also prohibits camping in a “no encampment zone,” which includes the two-block radius around existing temporary housing sites.

But the code of conduct is not enforceable by arrest, San José Chief of Police Paul Joseph told the city council last month. Instead, violations would be used “to prioritize which campsites are in need of abatement and which can wait.”

That means encampments near the city’s interim housing communities, such as the Cherry Avenue site, will be prioritized for enforcement.

Riley, who declined to share his last name, has lived there for two and a half years. He flashed a bright smile underneath a pair of black Ray-Ban sunglasses, but said frankly, “It’s hard out here.”

“I mean, with no air conditioning and your stuff gets stolen,” he said. “That’s the biggest thing, actually, because I like nice clothes, but it gets stolen. It gets stolen a lot.”

Asked about the mayor’s enforcement plan, Riley said it didn’t sound too extreme.

“Honestly, I feel like if you don’t want to be homeless, then you should accept the resources, even if it’s not a mansion,” he added, gesturing at the nearby tiny homes under construction behind a chain-link fence. “If they gave me a chance right now, once they’re done, I would do it.”

Under the proposal, that offer will come from a new seven-person team of housing and parks workers, who will spend time building relationships with people in encampments.

These offers of housing distinguish Responsibility to Shelter from encampment laws being rolled out in other California cities. After the Supreme Court ruled last year in the Grants Pass decision that jurisdictions could legally clear tents without offering shelter, cities such as Fremont and Fresno have passed outright bans on camping.

Once the housing team has made several offers of shelter (originally proposed by Mahan as three offers but revised to give discretion to outreach workers), a new “Neighborhood Quality of Life” police unit could be dispatched. That unit, made up of one sergeant and six officers, would make arrests for any misdemeanor violations at the site, such as trespassing or illegal dumping.

Mahan sees the arrests as a pathway to services that only the county can provide — a forcing function for judges to order participation in mental health or substance use programs, and to pressure the county to fund more housing for people enrolled in such treatment.

“For those individuals who are a subset of the population, but our most vulnerable neighbors and, frankly, the most impactful on the rest of society, success is getting into treatment,” he said.

But Jamie Chang, associate professor of social welfare at UC Berkeley, said there’s little evidence that arrests will make a positive difference in the life of someone experiencing homelessness. She questions the premise that people who are resisting shelter are necessarily in need of mental health or substance use treatment.

“I’m very concerned about people who are not accepting shelter for various reasons, because they have disabilities, because they have too much stuff,” she said. “I think it’s very clear that people experiencing homelessness have many, and oftentimes very valid reasons for refusing shelter.”

County says plan is ‘unnecessary and ineffective’

For people who are arrested under the Responsibility to Shelter plan, the path to treatment is not straightforward.

San José officials want police to bring arrestees to a county facility where people under the influence of drugs or alcohol or those experiencing a mental health crisis can stay up to 24 hours — but they haven’t reached an agreement with the county to make that happen.

In the absence of a deal, San José police will bring the unhoused person they arrest to the county jail, where they will be immediately released with a citation to appear in court, a sheriff’s office spokesperson said, citing a state law that prohibits jailings for most misdemeanors.

Damon Silver, Santa Clara County’s acting public defender, said it’s unlikely at that point for the person experiencing homelessness — just released from county jail and likely separated from their belongings — to navigate the path to treatment.

“They’re struggling to survive,” Silver said. “And for us to expect that they’re likely going to be able to manage both the transportation, the monitoring of when their court date is and then arrive successfully at court? I think we’re going to anticipate a large failure-to-appear rate.”

That failure to appear could lead a judge to issue a bench warrant, which raises the chances that the unhoused person would have to spend time in jail until their next court appearance.

If the person experiencing homelessness does appear for their arraignment, San José’s city attorney will ask that the case be referred to the county behavioral health court. The public defender might push back on the terms of a proposed treatment plan or ask that the judge dismiss the case.

If placed in a diversion program, the unhoused person could be connected to therapy, treatment or counseling. But judges, lawyers and service providers who work in the county’s diversion system all agreed: without housing, treatment will fail.

“We don’t have enough housing beds for people in this county,” Silver said. “We don’t frankly have enough mental health beds for people in this county, and we don’t have enough substance abuse beds and treatment for people in this county.”

The public defender’s skepticism has been echoed by top Santa Clara County brass. In a May 12 letter addressed to San José leaders, Board of Supervisors President Otto Lee, District Attorney Jeff Rosen, Sheriff Robert Jonsen and County Executive James R. Williams called the potential homeless arrests “unnecessary and ineffective.”

“At a time of tremendous budgetary challenges, City policies should not divert limited public safety resources to address what is ultimately a problem caused by the lack of affordable housing in our cities,” they said.

Mayor: Encampments ‘undermine’ support for housing

Two days after the letter was sent, newly elected District 10 Councilmember George Casey fired back against county leadership during a hearing on the city budget.

It is members of the city council, Casey argued, not the county government, who field the brunt of complaints from residents about persistent street homelessness.

“Most people don’t know who their county supervisor is or what the county is responsible for, and we’re the ones that catch hell,” Casey said. “So they get to sit back in the cuts and do nothing, and they’ve done nothing. And so the idea that we’re going to let that letter or whatever they are willing to do or not do dictate what we do is ridiculous.”

Casey is intimately familiar with the politics of homeless housing. Five of the city’s 13 interim housing communities lie along a stretch of Monterey Road that straddles District 10 and District 2.

As the council has approved more temporary housing projects in South San José, they have layered on incentives to ameliorate concerns from residents living near the sites: the no encampment zones within a two-block radius, first preference for beds to people experiencing homelessness in the immediate area and a Community Advisory Committee to solicit feedback from nearby residents after the housing opens.

Issa Ajlouny leads the Community Advisory Committee for the recently opened Via del Oro interim housing complex. The site has been open for less than two months, but Ajlouny said he has already fielded complaints from neighbors about lingering encampments, fires and reported thefts.

“I feel like I’m the mediator,” he said. “I’m trying to be the person that says, ‘Hey, neighborhood, we need to be good neighbors to [the unhoused] and try to help them, our tax dollars are going towards it, we might as well do that.’ But in turn, we needed to be treated as good neighbors … and that actually is not happening right now.”

Ajlouny wants to see tougher enforcement and larger no-encampment zones — and he supports the Responsibility to Shelter plan, which would be enforced primarily in neighborhoods like his, near interim housing sites.

The message from the city when Via del Oro was approved was “We’ll throw you a bone,” Ajlouny said. “And the bone hasn’t landed yet.”

San José is operating more than 1,200 temporary units with on-site services — including private rooms and prefabricated apartments in tiny home villages, converted motel rooms and parking spaces for RVs. More than 500 additional shelter spaces are expected to open later this year.

A 2023 KQED analysis found that neighborhood fears about the city’s first five interim housing sites never came to pass. But Mahan believes that the future of homeless housing in San José is predicated on residents like Ajlouny seeing meaningful improvements in their neighborhoods.

“We can’t do that if 10%, 20%, 30% of people are saying, ‘No thanks, I want to stay right here, continuing with my lifestyle in my tent,’” Mahan said. “It completely undermines the rationale for the work and the political support that the community is willing to give to these efforts.”

‘We haven’t necessarily solved the problem’

In early March, a parking lot for RV-dwellers opened on Berryessa Road in north San José, with on-site bathrooms and showers, along with case managers and hot meals.

The opening was preceded by months of messaging, both to people staying in their vehicles nearby and people living in the neighborhood, that RVs would be cleared from the area once the safe parking lot launched.

Councilmember David Cohen said there were about 20 RVs on nearby streets when the site opened. A month later, about half remained. Now, the streets are clear.

“People who moved in early went back, and spoke to some of the people they knew on the [streets] and said ‘Actually it’s a pretty nice place,’” Cohen said. “As we build more of these sites and people see how they work, I believe more and more people will be accepting of the service and fewer will be service-resistant.”

But the story didn’t end with the cleared streets.

“Now we have another street a couple blocks away that has RVs on it that didn’t before,” Cohen said.

Cohen said he’ll wait for any amendments to the Responsibility to Shelter plan on Tuesday before making a final decision on his vote.

He agrees with the mayor that the city can’t wait until there is a bed available for every unhoused person in San José before clearing tents or lived-in vehicles — that there’s value in showing neighborhoods that new shelter sites will come with clean streets.

“But we have to understand that when we don’t have enough beds for everybody, we haven’t necessarily solved the problem,” he said. “We’ve just moved the problem.”