Policing of Public Drug Use Challenging

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Assembly Bill 362 – which’d allow San Francisco to operate a trial facility in which drug users can inject themselves – was reintroduced in the State Legislature last February by State Senator Scott Wiener and Assembly-member Susan Eggman after being vetoed by Governor Jerry Brown in 2018.  The measure is a response, in part, to costly and inefficient enforcement of existing drug laws, which result in public use of illegal narcotics in the City going largely unchecked.  

Keith Goldstein, Potrero Dogpatch Merchants Association president, acknowledged the prevalence of public drug use in San Francisco, but wasn’t sure how best to address the problem. “I am not aware of arrests,” said Goldstein.  “Bayview Captain Troy Dangerfield told us they do not make arrests for open drug use.  I doubt that arresting open-air drug users is a good solution, but I suspect that our current policy will lead to more drug users coming to the City and taking advantage of the fact they can shoot up openly with impunity.” 

Sargent Brian Kneuker of Bayview Station confirmed the existence of public drug use and associated complaints about it. “We get those calls,” he said.  

Other San Francisco Bay Area municipalities are confronting visible drug use and the challenges of addressing it. “Anecdotally, I can confidently say that we have seen a significant uptick in intravenous drug use in our city over the last few years,” said Lieutenant Ryan Johansen of the San Bruno Police Department.  “This does present a number of challenges for us as a law enforcement agency.  Dealing with intravenous drug users is extremely dangerous for first responders, as used needles can transmit dangerous disease very easily.  Searching or treating a person and/or their property while being sure not to stick yourself on an uncapped needle is very difficult, scary and dangerous.”

Those who come across a used syringe in parks, backyards, or streets should text a picture with its location to San Francisco’s Needle Pick-Up Crew, 415.810.1337, according to Brittany Valley, Syringe Disposal Associate.  Valley is part of a ten-person cleanup crew operated by the San Francisco AIDS Foundation and funded by the San Francisco Department of Public Health.

Lieutenant Elle Washburn of the San Jose Police Department acknowledged that public drug use exists in her jurisdiction as well, though not on the scale seen in San Francisco. “There is not a visible prevalence of people using hypodermic needles and controlled substance out in public as one might find in San Francisco.  If an officer were to on-view that behavior in public, the person would be arrested and cited for the simple possession of a controlled substance and/or hypodermic needle.  The drugs would be seized and booked as evidence.  The only time we would attempt to book into jail is if they were in possession of a quantity consistent with sales of the controlled substance, which is a felony.”

Under California Health and Safety Code 11364 HS it’s a misdemeanor punishable by up to six months in jail or a $1,000 fine to possess drug paraphernalia; anything used to inject or smoke a controlled substance.  While the law extends to crack pipes and coke spoons, it doesn’t cover syringes if they’ve been legally purchased or otherwise obtained, such as from a needle exchange program.

Under California Health and Safety Code 11350(a) HS possession of a controlled substance without a valid prescription can result in up to a year’s jail time, or a $70 fine for first offenses.  

Defendants charged with violating California Health and Safety Code 11550 HS – a misdemeanor offence to be under the influence of a controlled substance – can also be sentenced to a year in jail and must serve a minimum of ninety days in county jail even if granted probation after being convicted. California Penal Code 1000 allows for defendants to undergo pre-trial diversion; charges are dropped if the perpetrator successfully completes a drug rehabilitation program.  Additionally, California Proposition 36, The Substance Abuse Treatment Act of 2000, makes it possible for offenders to serve their time in a drug treatment program instead of jail.

 “Should someone be arrested for a felony,” posited Washburne, “With the intention of booking them into jail, and they require medical clearance before booking, we would then transport them to the hospital for treatment and medical clearance prior to taking them to jail.  This can be time consuming, but it is reserved for felony cases.  Should we arrive at the hospital and find out they need to be admitted for any reason, we would likely get Watch Commander approval to 849b them pending District Attorney review; meaning, they get released that night, but the charges still go to the DA for review/filing.  It would not be worth tying up an officer all night, even if it was for a felony drug possession. We would reserve a hospital booking for violent felons.”

“Context really is key,” explained Johansen. “It’s easy to try and over-simplify the problem.  It’s a wide-spread issue that, at present, has correlations in mental health issues and homelessness challenges. Law enforcement should have a seat at the table of that larger conversation, and, at the same time, we have a role to play.  See, not at all simple. All things considered, we focus on fair and impartial policing as well as equal protection under the law.  We try to keep subjectivity out of our enforcement efforts.  We follow our department’s policies. Should the Department change how we effectively enforce narcotic offenses, then our officers would adapt accordingly.”