A majority of Des Moines City Council members gave a second nod to removing protections for people found sleeping outside from fines, saying that it could protect police officers from legal action that could be taken against them.
Council members approved an agreement on Sept. 29 for the city to pay to expand capacity at Central Iowa Shelter & Service (CISS) after shelter leaders announced earlier this year that it would have to stop accepting extra people because it couldn’t afford it. CISS is set to add at least 25 spots reserved for homeless people in Des Moines, bringing its total beds to 175, under the agreement with the city. Four of the spots would be non-group living spaces.
With the agreement, city officials proposed deleting language in the camping ban that says a person found sleeping outside is not fined $15 if there’s no space at a shelter or if the person cannot afford the ticket. City officials said the agreement with CISS ensures shelter space would be available for people experiencing homelessness, which would make that part of the code unnecessary.
The suggestion, made by the city attorney’s office, also would eliminate potential liability issues for police officers. In a statement emailed to the Des Moines Register, City Manager Scott Sanders said the change would remove uncertainty on officers’ ability to enforce the ordinance.
City Council members in a special meeting on Wednesday, Oct. 8, approved the second of three readings on the ordinance change in a 5-2 vote. City Council members Josh Mandelbaum and Mike Simonson voted against.
The vote was identical to the one recorded over a week ago, when council members approved the agreement and the first of three readings on the ordinance. At the time, Mandelbaum said he would have voted for the agreement with CISS if it weren’t tied to the ordinance change. He added the community should have more time to weigh in.
On Oct. 8, Mandelbaum doubled down on his stance, saying that it’s an unnecessary step, and having an agreement to expand shelter might actually reduce potential liability issues for officers.
“I continue to believe that this is an unnecessary step. And if we are concerned about liability for our officers, I think we can draft language … that would address that concern so that this ordinance doesn’t need to be more punitive than it already is,” Mandelbaum said.
Des Moines Police Department officials declined to comment about officer liability until the final vote on the ordinance.
What liability issues could arise for police due to the city’s camping ordiance?
The proposals come about a year after the City Council’s approval of a controversial citywide ordinance that bans camping and sleeping in public spaces. The council also reduced the number of days people have to remove their belongings from public spaces.
Enforcement of the ordinances began in February. As of Oct. 8, the city had made one arrest and has issued no citations for violations of its camping ban, Sanders confirmed in an email.
The latest point-in-time count shows 210 people were sleeping outside on a single night in July in Polk County — an 18% increase from last year’s record 177, according to a count from Homeward, Polk County’s homelessness planning organization.
Under the current ordinances, campers violating the ordinance are offered one-time transportation to a shelter space or given directions to a shelter. If there’s space at a shelter, people who refuse to go could be fined up to $15. Violations are simple misdemeanors similar to a speeding ticket and would not include imprisonment.
But a person experiencing homelessness is not penalized if there’s no space at a shelter or if the person can’t afford the fine, according to the ordinance. That could change if Des Moines City Council gives its final approval to remove that language from the ordinance.
Des Moines City Council member Chris Coleman said generally, police officers have indemnity, or are protected from financial loss or damage in cases under city and state law. But police don’t get those same protections against punitive damage if someone’s constitutional rights are violated.
Coleman said the way the ordinance is written raises significant questions about their protections, so the city attorney recommended to strike that part of the ordinance.
When asked, Coleman said he doesn’t know of any cases where police officers have been sued or gotten in trouble in connection with the camping ban, but there are previous cases where officers have had punitive damages and were held personally responsible.
An officer having to check if someone can afford a citation leaves room for ambiguity, Coleman said.
“You know, I may say I can’t afford it because I’m trying to save money for something else, whereas somebody else may look at my finances and say, ‘Yeah, you have $15 to your name, you can pay for that,'” Coleman said.
Likewise, people could argue the shelter doesn’t have space because they only choose to sleep on the bottom bunk, for example, Coleman said. Police have to determine, based on the circumstances, whether it’s a legitimate defense.
“And so there was too much ambiguity that a police officer could not verify as they were doing the persuasion to go to the shelter or enforcement to get them out of our parks and sidewalks,” Coleman said.
During the meeting, Sanders said there are always ways to tweak the language to improve it from “one party to the next,” but to eliminate confusion, it should be struck from the code.
Mayor Connie Boesen echoed Sanders, saying that the city wants people to get the help and get off the streets, but also not create problems for officers.
Polk County approves its own agreement with CISS
Polk County supervisors approved their own agreement with CISS on Oct. 7.
The county will pay CISS $319,000 per year over the next three fiscal years. Polk County Community, Family and Youth Services Director Eric Kool told the Register $149,000 of that will go toward a first-night stay for people checking into CISS, which includes housing and meals.
About $170,000, Kool said, will go toward costs related to weather amnesty when the shelter accepts more people in times of extreme heat and cold. The county’s allocation is to help cover additional expenses during weather amnesty due to wear and tear, staffing and food.
Kool said the official contract hasn’t been written, and details still need to be finalized.
Virginia Barreda is the Des Moines city government reporter for the Register. She can be reached at vbarreda@dmreg.com. Follow her on Twitter at @vbarreda2.
This article originally appeared on Des Moines Register: Des Moines may remove fine exemption for people sleeping outside to protect police
Reporting by Virginia Barreda, Des Moines Register / Des Moines Register
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