SAN DIEGO — There are questions being raised over whether or not the City of San Diego's proposed ban on homeless encampments is legal.
The City Council is scheduled to vote on the ‘Unsafe Camping Ordinance’ on Tuesday. If approved, the proposal would make encampments illegal in all public spaces when shelter beds are available.
However, there are some areas where encampments would not be allowed at any time, regardless of shelter capacity, like in parks or near schools.
"So, that is the second part and the more controversial part of this proposal,” said retired San Diego Superior Court Judge, Laura Halgren.
Halgren referenced a case out of Boise, Idaho.
In 2018, the appellate court threw out a law that had allowed police to arrest people for sleeping in public, on the grounds such arrests were cruel and unusual punishment if shelter beds or housing were unavailable for homeless residents.
In that case, Halgren says the courts never specified what types of exceptions would be allowed under the law.
That's where San Diego could run into a legal challenge.
"In Santee, there is an ordinance that bans camping along the river because of a public safety concern of pollutants running into the river. And there are other public safety exceptions that allow absolute bans, but this one is pretty broad and if the case came into court a judge would need to look at it and decide - is the public safety so specific that it outweighs the right to sleep on the streets if there's no shelter available," said Halgren.
Community group Alliance San Diego created a map, which they claim shows where encampments would be banned at all times.
The majority of the city is covered in black.
Halgren says if a legal challenge is brought forth, it may take the highest court to decide where and when the ban applies.
“It's interesting to note that the Boise case in the 9th circuit is in conflict with some rulings in other circuits and it's possible this issue could get before the US Supreme Court at some point," said Halgren.
The San Diego City Attorney's Office also raised some concerns.
If you'd like to read their legal analysis on this issue, click here.
WATCH RELATED: Homelessness surges in San Diego County (June 2023).