Monthly Archives: July 2020

People in emergency housing have rights as well as needs.

I’ve been filing public records requests lately, trying to understand this expanded institutional system that San Francisco is creating to contain unhoused people in many different temporary and informal living arrangements: COVID emergency hotels, shelters, “Navigation Centers,” official outdoor camps, RV camps and corrals — and the increasingly landlord-like supervision and spacing of informal tent sites on public streets.

Some of the documents that I’ve received from the Department of Homelessness and Supportive Housing are about rules and procedures that don’t say enough about due process or ordered liberty under law. (in fairness to HSH, these documents really emerge mainly from the SF Human Services Agency.) I want to talk here about the documents on handling “exits” — that is, expulsions — from emergency “Shelter in Place” hotels. Not only from concern for the hotel residents themselves. Also because I worry that what happens in these emergency hotels could be the start of a trend affecting a larger segment of society.

These documents are provided to me with little administrative context, and they are probably just snapshots of official thinking that is changing by the moment. San Francisco’s emergency housing/shelter system is still in flux. Some emergency hotel sites are about to close; at least one outdoor camp (Everett) will soon have to close because it’s on the property of a school that will reopen; the city is reportedly offering hostel or congregate shelter beds to more people and setting up new congregate shelter sites.

I also don’t know how many people are directly affected as yet by these documents. Maybe not many. The emergency hotels have strict rules — apparently even nightly curfews. But the current announced practice is that residents don’t get expelled from “Shelter In Place” hotels except for outright violence. As far as I’ve heard, there haven’t been many actual expulsions.

I still think it’s important to be reading and discussing these documents now, before the new poverty institutions become fully locked in, as a way to work on reversing the erosion of what Hannah Arendt called the “right to have rights.”

Before a person can assert any right, they first have to be seen as a kind of person who counts as being capable of having and using rights — someone who can assert a right without being mocked, ignored, punished, or patted on the head and offered a cookie. Do unhoused people on San Francisco have the “right to have rights”?

Relatively recently in SF — even under the agency-stripping “Care Not Cash system” — most marginally housed people, if they managed to get a room or apartment long-term, also automatically got rights as tenants. At a minimum, that meant rights to contest eviction in a recognized formal procedure — to insist on a correct formal notice and a fair chance at a day in court. Not that it has been easy to assert eviction defense rights — lots of people move out informally when told to do so, rather than take the risk that a formal court eviction order might damage their record for the next potential landlord. But tenancy rights are still better than second-class non-tenant status.

People don’t count as tenants if they’re in these lower-tier living arrangements — hotels in “programs” such as the “Shelter in Place” housing; shelters; navigation centers; publicly managed or contracted outdoor camps, or the publicly supervised situations where people are selectively allowed to live in tents in public spaces. Instead of tenants with rights against eviction, people in these situations are called “residents” or “guests” or “participants” — or, in the case of sidewalk camping, people are referred to simply as “tents.” They don’t have defined rights to a court review of eviction — only flimsy “appeal” or “grievance” rights to complain about an expulsion after the fact, often managing contacts and paperwork from a position of homelessness.

The best, most solidly established eviction appeal system in San Francisco’s system of second-class, non-tenancy living arrangements, is the Shelter Grievance Policy.

The shelter grievance system at least has provisions for formal hearings to contest evictions or penalties for supposed rule violations. Unlike most shelter situations elsewhere, SF shelter residents can get help with grievances from a team of four advocates with the Eviction Defense Collaborative. But it is still not clear if the city will agree to expand the advocates’ assigned area of work beyond the city’s traditional shelters — to the Navigation Centers, the new emergency COVID sites, and so on.

Even in shelters where the grievance policy applies — it isn’t good. RK Johnson, a shelter client advocate, wrote this article recently about what is and isn’t working under the strain of the pandemic emergency. She describes a lot of arbitrary action, rights violations and profiling: And the grievance policy is a “lite” version of due process even when it’s working as designed.

It’s unsettling in the recent documents for the emergency hotels to see the word “protocol” used for eviction appeals. That’s a medical word — not a word from the vocabulary of due process rights in, for example, public benefits hearings or HUD regulations. It implies someone was thinking about a resident’s decision to claim their Constitutional rights, not as a welcome test and expression of the norms of democratic equality under law through an assertion of inalienable rights, but as a behavior to be managed in a patient. It’s medicalization, or behavioralization, of what happens when a person who is basically viewed as rightless insists, inconveniently, on asserting a right.

Here’s the main document that mentions an appeal “protocol” if you want to read it. It explains how staff and managers should gather information about the appeal, decide if it provides enough information to be worth answering, decide what response to offer the “guest,” and communicate it to the “guest” within five business days after the appeal. “Response should clearly explain the steps the guest must take to accept the offer.”

The “exit” notice provides an email address and phone number to submit an appeal, but it isn’t clear how an “exited” person can most effectively act without a phone or stable address to stay in touch with the adjudicators. After some pressure, contact information to ask the Shelter Client Advocates for help got added to the notice form. But it isn’t clear what process the expelled person may invoke to review documents and other evidence of the alleged grounds for expulsion before the hearing; nor what chance the expellee will get to present evidence; nor what standard the expellee must meet to show that the expulsion was unfair; and what choice of remedy is available to the expellee following a successful appeal.

For example — and I ask this for a raft of particular reasons — what if someone claims they were kicked out for being the target of a harasser or domestic abuser? Or that the staff mistook effects of a disability for misconduct? Or that the expulsion followed from some other illegally discriminatory double standard?

Here are some notices from the disclosed documents that are written for presentation to the “guest.” At least these use “procedure” rather than “protocol”. But they define rights and procedures far less protectively and clearly than the general legal system does for people with tenancy rights:

It isn’t clear what exactly you have to do to win a hearing — for example, what a person would have to prove to show that an “exit” was caused by unlawful discrimination, and what remedies they could choose from if they did prove they were unfairly kicked out. It’s as if the resident doesn’t get the dignity of choosing what claim to assert and getting a yes or no answer whether their rights were violated or not. There’s only the rightless population-management question of whether a behavioral incident is appropriately handled and a placement assigned appropriately.

This new grievance procedure calls for escalation from on-site staff to the “Compliance Coordinator” to the “Whistleblower Program.” It doesn’t describe a hearing officer adjudicating a hearing — it describes review via chain of command. This isn’t adequate. The whole point of a hearing process is for an independent adjudicator to step in from *outside* the chain of command and decide who is right.

So, fundamentally, here’s why I worry:

If a “rights lite” system can be applied in COVID emergency housing systems without substantial legal or public objection, then it can also happen to other new and growing segments of the expanding lower tier in our two-tier system of housing and shelter.

If that happens, thousands of people could be stuck in new institutional settings where they do not count, to their keepers, as fully free and equal community members.

And the rest of us could end up having to live (even more) cautiously and obediently for fear of ending up there.