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CALMATTERS: California May Change Its Mental Health Funding: Why That Might Cut Some Services

For the second time in as many years, Gov. Gavin Newsom is pushing for major reform of California’s mental health system, this time by overhauling the way counties spend mental health dollars and placing a bond measure before voters to build more psychiatric beds

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The proposal aims to reprioritize a significant portion of the state's existing behavioral health system to focus on what Newsom characterized as the state's "most acute challenge," which is the number of homeless people with mental illness and substance use disorders. Only about 20% of California's approximately 172,000 homeless people have a severe mental illness, according to the U.S. Department of Housing and Urban Development, but the issue plays an outsized role in state politics.
The proposal aims to reprioritize a significant portion of the state's existing behavioral health system to focus on what Newsom characterized as the state's "most acute challenge," which is the number of homeless people with mental illness and substance use disorders. Only about 20% of California's approximately 172,000 homeless people have a severe mental illness, according to the U.S. Department of Housing and Urban Development, but the issue plays an outsized role in state politics.

By Kristen Hwang
CalMatters

For the second time in as many years, Gov. Gavin Newsom is pushing for major reform of California’s mental health system, this time by overhauling the way counties spend mental health dollars and placing a bond measure before voters to build more psychiatric beds.

County behavioral health advocates and local service providers fear programs will be cut and, much like the controversial CARE Courts legislation — which passed last year and allows individuals to petition a court to force seriously mentally ill people into treatment and housing — say Newsom’s initial announcement came as a shock.

“We listened to the press conference just like you,” said Christine Stoner-Mertz, executive director of the California Alliance of Child and Family Services, which represents organizations that provide child welfare, foster care, juvenile justice and youth behavioral health services.

The proposal is being pitched as a solution to the state’s ballooning homelessness crisis, but experts doubt it will make any kind of meaningful dent. No one has published bill language for the proposal, but Newsom unveiled two major changes during his March state-of-the-state tour: Divert 30% of existing Mental Health Services Act money toward housing people living on the streets who are severely mentally ill; Use a bond measure to generate between $3 billion and $5 billion for 6,000 residential psychiatric treatment beds.

Voters passed the Mental Health Services Act nearly two decades ago as a ballot initiative that levied a 1% tax on state millionaires to fund local mental health programs. Substantial changes to the act are subject to voter approval because it originally passed as a ballot measure in 2004.

The proposal aims to reprioritize a significant portion of the state’s existing behavioral health system to focus on what Newsom characterized as the state’s “most acute challenge,” which is the number of homeless people with mental illness and substance use disorders. Only about 20% of California’s approximately 172,000 homeless people have a severe mental illness, according to the U.S. Department of Housing and Urban Development, but the issue plays an outsized role in state politics.

“It’s unacceptable what we’re dealing with at scale now in the state of California,” Newsom said. “We have to address and come to grips with the reality of mental health in this state and our nation.”

Newsom, who made reducing homelessness a key part of his gubernatorial campaign in 2018, is contending with the reality of homelessness increasing by nearly 32% in the past four years. Though he has called out counties for not acting aggressively enough and dedicated nearly $10 billion to address the problem, he has also faced harsh bi-partisan criticism for what many view as a political stunt in threatening to withhold money from counties and failing to significantly increase the state’s housing stock.

Newsom’s proposal is backed by several lawmakers, including former Assemblymember and current Sacramento Mayor Darrell Steinberg, who co-authored the original act, and Sen. Susan Talamantes Eggman, a Democrat from Stockton who co-authored the CARE Court legislation and who has staked the remainder of her term on advancing mental health changes.

Those who do the on-the-ground mental health work in the state, however, say they have major concerns about such a large system shake-up. The focus on housing and the need for more behavioral health treatment beds is welcome, Stoner-Mertz said, but shouldn’t detract from the current workforce crisis and other problems exacerbated by the COVID-19 pandemic.

“One-third is a big chunk of money,” Stoner-Mertz said. “The question in our minds is what is the approach and process to solving some of these problems. We would welcome greater partnership around that.”

What the mental health funding proposal would change

On Wednesday, state officials revealed new details about the proposal. It changes the categories counties would be required to invest in, focusing most of the money on homeless adults. Counties would be required to spend 30%, or roughly $1 billion annually, of their Mental Health Services Act dollars on housing homeless people with serious mental illness or drug addiction. They would also direct 35% of the funds to full-service partnerships for these individuals, which include clinical treatment and social supports co-designed by the client and the program.

The remaining 35% could be used for a combination of existing programs like mental health prevention and early intervention, infrastructure and workforce investments, although officials made it clear that workforce would be a priority. Innovation grants that have historically been part of the program do not have any dedicated funds. The proposal also opens the door to using the money for people who struggle with addiction but don’t have additional mental health needs.

In contrast, current regulations give counties broad flexibility in using the money. A minimum of 38% must be spent on full-service partnerships, although counties can spend up to 70% on these services. (Full-service partnerships are intensive wraparound services designed to do “whatever it takes” to meet the client’s long-term needs. They can include things like 24/7 case management, clinical treatment, and housing.) About 19% is reserved for prevention and early intervention programs, much of which focuses on children, and 5% for innovation. Some counties choose to use a portion of the funds for workforce and infrastructure needs.

There are some concerns about whether counties have historically met minimum spending requirements, particularly for full-service partnerships, but there’s no question that the money has become an integral part of the state’s behavioral health system, making up nearly one-third of all spending. Last year the tax generated about $3.8 billion. Newsom’s proposal introduces standardized accountability measures and reduces the amount of money counties are allowed to keep in reserves.

In addition, language will be placed on the 2024 ballot asking for a general obligation bond to pay for 6,000 psychiatric and substance abuse treatment beds. These beds would serve approximately 10,000 people annually, according to a fact sheet from Newsom’s office, by providing long-term residential treatment. An undetermined portion of the bond funds would be used to house homeless veterans.

For many mental health organizations, the bond to increase residential care capacity is much easier to swallow than prescriptive changes to how mental health dollars are spent. The state faces a shortage of more than 7,700 adult psychiatric beds, according to a 2021 RAND report commissioned by the County Behavioral Health Directors Association.

“We really appreciate the administration looking at the report that we did, and the focus on building out infrastructure is wonderful,” said Michelle Doty Cabrera, executive director of the County Behavioral Health Directors Association. “But we continue to need the same kind of focus on workforce and funding for services ongoing.”

At the same time that Newsom is advancing this proposal, his January budget delays $1.1 billion in other behavioral health investments over the next two years, including money intended to increase treatment capacity for adults and kids in crisis, and money for workforce development.

What are the primary concerns?

There’s no telling how exactly existing mental health priorities will get reallocated, but cuts are nearly inevitable given how heavily counties rely on the dollars. The money is “braided into the fabric of all things in our safety net,” Doty Cabrera said.

But some of the most pressing questions come from those who work with children and families. Currently, at least half of the money earmarked for prevention and early intervention must be used for children and young adults.

“This is the only protection from our perspective that is actually going to keep a focus on young people and keep a focus on more upstream services,” said Adrienne Shilton, director of public policy for the nonprofit California Alliance of Child and Family Services.

That money is potentially on the chopping block under the new proposal, as are innovation grants that have catalyzed multi-county programs to improve services for communities of color and LGBTQ folks.

Historically, Medi-Cal — the state’s public health insurance program for extremely low-income residents — has not covered behavioral health prevention programs, which is where the Mental Health Services Act becomes important. The money was intended to allow counties the greatest amount of flexibility in meeting local needs, particularly when other funding streams came with restrictions, said Toby Ewing, executive director of the Mental Health Services Oversight and Accountability Commission.

“It is designed to be a counterpoint to historic restrictions that were in place for Medi-Cal,” Ewing said.

At the same time that the money gives counties the ability to provide services beyond Medi-Cal, they also use qualifying program expenses to draw down matching Medi-Cal federal funds, effectively expanding local mental health programs. Collectively, counties use about half of the money on services that qualify for matching federal dollars, Doty Cabrera said.

With about $1 billion earmarked for housing, which the federal government will not pay for, the mental health system may face between $500 million and $1 billion in lost federal revenue, Shilton said, if Newsom’s proposal is approved.

Dr. Mark Ghaly, state secretary for Health and Human Services, disagrees with the assumption that these changes mean cuts will happen. The administration’s team has heard the same concerns in stakeholder meetings following the announcement and will work with counties “to try to maintain as much as we possibly can with them,” Ghaly said.

“There is no reason why we won’t be able to do a lot on the prevention and early intervention side,” Ghaly said.

He also notes that this proposal can’t be considered alone. It is part of a larger strategy to improve mental health services in the state, which includes sweeping changes to Medi-Cal, a children’s behavioral health initiative and investments in crisis response. One piece of the puzzle seeks permission from the federal government to use Medi-Cal dollars on housing, which would allow counties to still draw down a significant portion of matching funds.

“All of these things come together, build on each other, and I would like to say catalyze one another to promote the transformation,” Ghaly said. “This is, in my mind, government doing well.”

Will this help homelessness? Not really.

The proposal has been couched as a solution to California’s explosive homelessness problem, which consistently tops the list of voter issues.

“We’re fooling ourselves that if we don’t address that fundamental need that we can turn this thing around,” Newsom said during his press conference, backed by more than a half dozen officials who detailed homeless issues from state, county, city and personal perspectives.

But the public perception that California’s homelessness crisis is caused by psychiatric emergencies and drug addiction is a false one. Rather, decades of politicians upholding restrictive zoning laws and obstructive environmental policies have pushed California to the bottom of affordable housing rankings and are the primary drivers of homelessness in the state. Other factors, like changes to the state’s criminal justice system, also contribute. Dr. Margot Kushel, director of the UC San Francisco Benioff Homelessness and Housing Initiative, said no amount of spending on mental health will improve the state’s overall homelessness problem.

Still, she and other medical professionals who work primarily with unhoused people say the most vulnerable people on the streets are those with untreated mental illness, and prioritizing housing is the most important thing the state can do for that population’s physical and mental health. People living without shelter also face dismal health outcomes, and discharging a patient back to the street is a recipe for swift deterioration.

Even local and county behavioral health groups that have raised concerns about the proposal acknowledge the need for more housing for their clients, but they fear an inversion of the current problem — housing without services — will result.

“My concern is robbing Peter to pay Paul,” said Debbie Manners, president and CEO of Sycamores, a Los Angeles behavioral health and child welfare agency. Sycamores serves about 500 children and families daily through its school-based mental health program. Two years ago the state allocated $4.4 billion to a Children and Youth Behavioral Health Initiative, but it’s a one-time investment.

“I’m not sure how that will fill in the gap. I don’t think it will fill the gap,” Manners said.

Unfortunately, limited funding is the reality of this year’s budget cycle, with the Legislative Analyst’s Office projecting a $24 billion deficit.

“You don’t want to pit one need for money against another, and I get that,” Kushel said. “On the other hand, it isn’t really possible to serve this population without their having housing.”

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Losing Income Chief Cause of Homelessness, UCSF Study Finds

Losing income is the No. 1 reason Californians end up homeless — and the vast majority of them say a subsidy of as little as $300 a month could have kept them off the streets. That’s according to a new study out of UC San Francisco that provides the most comprehensive look yet at California’s homeless crisis.

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The study's authors say the findings highlight the idea that money, more than addiction, mental health, poor decisions or other factors, is the main cause of -- and potential solution to -- homelessness.
The study's authors say the findings highlight the idea that money, more than addiction, mental health, poor decisions or other factors, is the main cause of -- and potential solution to -- homelessness.

By Marisa Kendall
CalMatters

Losing income is the No. 1 reason Californians end up homeless — and the vast majority of them say a subsidy of as little as $300 a month could have kept them off the streets.

That’s according to a new study out of UC San Francisco that provides the most comprehensive look yet at California’s homeless crisis.

In the six months prior to becoming homeless, the Californians surveyed were making a median income of just $960 a month. The median rent for a two-bedroom apartment in California is nearly three times that, according to Zillow. And though survey participants listed a myriad of reasons why they lost their homes, more people cited a loss of, or reduction in, income than anything else.

The study’s authors say the findings highlight the idea that money, more than addiction, mental health, poor decisions or other factors, is the main cause of — and potential solution to — homelessness.

“I think it’s really important to note how desperately poor people are, and how much it is their poverty and the high housing costs that are leading to this crisis,” said Margot Kushel, a physician who directs the UCSF Benioff Homelessness and Housing Initiative, which conducted the study.

Already the study — which the authors say is the most representative homelessness survey conducted in the U.S. since the mid-1990s — has drawn attention from high places.

The initial idea for the survey came from California Health and Human Services Secretary Mark Ghaly, Kushel said. Ghaly’s office has been involved along the way, though the state didn’t fund the research.

“As we drive toward addressing the health and housing needs of Californian’s experiencing homelessness, this study reinforces the importance of comprehensive and integrated supports,” Ghaly said in a news release. “California is taking bold steps to address unmet needs for physical and behavioral health services, to create a range of housing options that are safe and stable, and to meet people where they are at. We are grateful for the voices of those who participated in this study, as they will help guide our approach.”

The survey comes as local governments press Gov. Gavin Newsom to distribute ongoing funding to fight homelessness, arguing the one-time grants he has doled out so far don’t allow them to make lasting progress. Newsom has resisted that kind of multi-year commitment, although his administration has allocated nearly $21 billion toward homelessness and housing since he took office.

The UCSF team surveyed 3,198 unhoused adults throughout California between October 2021 and November 2022, and conducted in-depth interviews with 365 of those participants.

 

What drives California’s homeless crisis?

When asked why they left their last home, respondents cited conflict between roommates, not wanting to impose on the person or people they were living with, domestic violence, illness and breakups.

A loss of or reduction in income was the most common response, with 12% of people saying that’s what caused their homelessness. Just 4% blamed their own substance use or drinking.

All of those varied factors that led people to lose their homes often have underlying roots in economic instability, said Jennifer Wolch, a professor emerita at UC Berkeley specializing in homelessness.

“This lack of income and severe instability and housing precarity, it has spillover effects on people’s relationships, their use of alcohol and other kinds of problematic substances,” she said. “It impinges on their health status.”

The story told by one survey participant, identified as Carlos, shows how someone can gradually descend into homelessness. He had to stop working after falling off a ladder and injuring his spine, but wasn’t eligible for workers’ compensation because he had been paid in cash. Unable to afford his rent, he moved out of his apartment and rented a room in a new place. He soon left due to conflicts with his roommates. He then briefly lived with his sister’s family, until they faced COVID-related job loss and he moved out to avoid becoming a burden. He lived in his truck until it was towed due to unpaid parking tickets. Now, he lives in an encampment in a park.

Most of the homeless Californians surveyed said a relatively small amount of cash would have saved them from the street. Seventy percent said a monthly rental subsidy of $300-$500 would have kept them from becoming homeless, while 82% believed a one-time payment of between $5,000 and $10,000 would have worked.

Jennifer Loving, CEO of Santa Clara County nonprofit Destination: Home, hopes the study’s findings will help debunk what she says is a common myth that people are homeless because of their individual failings, rather than because rents are outpacing wages. She’d like to see California’s leaders take notice.

“Hopefully it will inform a statewide strategy,” she said, “because we need a statewide strategy to be able to manage how we are addressing homelessness.”

 

Another California homeless myth

Another myth the study attempts to dispel is that most homeless people flock to California cities because of warm weather, liberal policies and generous services. In reality, 90% of the people surveyed said they were last housed in California, and 75% live in the same county as where they lost their housing.

That’s important to remember, Wolch said, because it’s easy to disregard unhoused people who we think “aren’t from here” and haven’t paid taxes here.

“People who are homeless are your neighbors,” she said. “People who are homeless live in the same city that you do and they possibly have lived there longer than you have.”

The survey painted a bleak picture of the traumas and tragedies that made survey participants more vulnerable to ending up on the street. People reported growing up in depressed communities with few job opportunities, where they experienced exploitation and discrimination. Nearly three-quarters said they had experienced physical violence during their lives, and one-quarter had experienced sexual violence.

One in three people surveyed attempted suicide at some point.

Mental health and addiction also were a common undercurrent in the lives of many of the unhoused people surveyed, which is to be expected in a population that has suffered so much trauma, according to the researchers. Two-thirds of people reported experiencing mental health symptoms — including depression, anxiety or hallucinations — in the past 30 days. Homelessness and all it entails, including lack of sleep, violence and difficulty accessing medication, exacerbated their symptoms, many people said.

About one-third of people reported using drugs three or more times a week — mostly methamphetamines. And 1 in 5 people who reported regular drug or heavy alcohol use said they wanted addiction treatment but couldn’t get it.

 

Jail to homelessness pipeline

The study also emphasizes the relationship between incarceration and homelessness, said Alex Visotzky, senior California Policy Fellow for the National Alliance to End Homelessness.

More than three-quarters of people surveyed had been incarcerated at some point during their life. And in the six months before becoming homeless, 43% were in jail or prison, or were on probation or parole. The vast majority of those who had been incarcerated received no help signing up for housing, healthcare or benefits upon release.

“That drove home for me this point: Incarceration, homelessness and then subsequent criminalization are fueling a really vicious cycle for marginalized people, especially Black and Latino Californians, that’s both causing and prolonging homelessness,” Visotzky said.

 

‘We don’t have enough housing for poor folks’

To solve the homelessness crisis, the main problem California needs to address is the lack of housing that’s affordable for extremely low-income residents, according to the researchers. The state has just 24 affordable and available homes for every 100 extremely low-income households, according to the National Low Income Housing Coalition.

Among the solutions the researchers proposed: expanding vouchers that use federal, state and local dollars to subsidize people’s rent. They also suggested piloting shared housing programs where multiple households live together and split costs, while also providing funds to help people remain with or move in with family or friends.

Kushel hopes the study helps drive public support for these ideas, which in turn will spur politicians to act.

“I hope that it really focuses our efforts on housing, which is the only way out of homelessness,” Kushel said. “It’s almost so obvious it’s hard to speak about. We don’t have enough housing for poor folks.”

The study is available at https://homelessness.ucsf.edu/our-impact/our-studies/california-statewide-study-people-experiencing-homelessness.

Copyright © 2023 Bay City News, Inc.  All rights reserved.  Republication, rebroadcast or redistribution without the express written consent of Bay City News, Inc. is prohibited. Bay City News is a 24/7 news service covering the greater Bay Area.

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Bay Area

‘Godzilla Next Door’: How California Developers Gained New Leverage to Build More Homes

It’s hard to know just how many builder’s remedy projects have been filed across the state. YIMBY Law, a legal advocacy group that sues municipalities for failing to plan for or build enough housing, has a running count on its website of 46 projects, though its founder, Sonja Trauss, admits that it’s an imperfect tally.

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Over the last two years, local governments across California have had to cobble together new housing plans that meet a statewide goal of 2.5 million new units by 2030.
Over the last two years, local governments across California have had to cobble together new housing plans that meet a statewide goal of 2.5 million new units by 2030.

By Ben Christopher
CalMatters

Late last fall, a Southern California developer dropped more than a dozen mammoth building proposals on the city of Santa Monica that were all but designed to get attention.

The numbers behind WS Communities’s salvo of proposals were dizzying: 14 residential highrises with a combined 4,260 units dotting the beachside city, including three buildings reaching 18 stories. All of the towers were bigger, denser and higher than anything permitted under the city’s zoning code.

City Councilmember Phil Brock attended a town hall shortly after the announcement and got an earful. A few of the highlights: “Godzilla next door,” “a monster in our midst” and “we’re going to never see the sun again.”

“‘Concerned’ would be putting it mildly,” Brock said of the vibe among the attendees. “A lot of them were freaked.”

As it turns out, freaking locals out may have been the point.

WS Communities put forward its not-so-modest proposal at a moment when it had extreme leverage over the city thanks to a new interpretation of a 33-year-old housing law. Santa Monica’s state-required housing plan had expired and its new plan had yet to be approved. According to the law, in that non-compliance window, developers can exploit the so-called builder’s remedy, in which they can build as much as they want wherever they want so long as at least 20% of the proposed units are set aside for lower income residents.

Over the last two years, local governments across California have had to cobble together new housing plans that meet a statewide goal of 2.5 million new units by 2030. At last count, 227 jurisdictions — home to nearly 12 million Californians, or about a third of the state population — still haven’t had their plans certified by state housing regulators, potentially opening them up to builder’s remedy projects.

That gives developers a valuable new bargaining chip.

WS Communities used its advantage in Santa Monica to broker a deal in which it agreed to rescind all but one of its 14 builder’s remedy projects in exchange for fast-tracked approval of 10 scaled-down versions.

“The builder’s remedy — the loss of zoning control, the ability of a developer to propose anything, Houston-style, whatever they want, no zoning regulations — that gets people’s attention,” said Dave Rand, the land-use attorney representing the WS Communities. “The builder’s remedy can be a strategic ploy in order to potentially leverage a third way.”

For the developer, the settlement — which still needs a final vote to fully be implemented — is a major win. But this use of a long-dormant law also represents a shift in the politics of housing in California, reflecting a new era of developer empowerment bolstered by the growing caucus of pro-building lawmakers in the Legislature.

“The old games of begging municipalities for a project and reducing the density to get there and kissing the ass of every councilmember and planning official and neighbor — that’s the old way of doing things,” said Rand. “Our spines are stiffening.”

It’s hard to know just how many builder’s remedy projects have been filed across the state. YIMBY Law, a legal advocacy group that sues municipalities for failing to plan for or build enough housing, has a running count on its website of 46 projects, though its founder, Sonja Trauss, admits that it’s an imperfect tally.

Some of the projects, like those in Santa Monica, are towers with hundreds of units. Others are more modest apartment buildings. Whatever the total, Trauss said it represents a significant uptake for a novel legal strategy.

“There were a lot of naysayers who were like ‘it’s too risky,’ ‘nobody knows what’s gonna happen,’ ‘nobody’s gonna do it,’ blah, blah, blah,” she said. “I feel vindicated. You know, people are trying it.”

But counting just the units proposed under the law misses its broader impact, said UC Davis law professor Chris Elmendorf.

Multiple cities rushed forward their housing plans this year, with city attorneys, city planners and councilmembers warning that failure to do so before a state-imposed deadline could invite a building free-for-all.

“All the action is in negotiation in the shadow of the law,” said Elmendorf. The law “may result in a lot of other projects getting permitted that never would have been approved because the developer had this negotiating chip.”

Rediscovering the California builder’s remedy

If it’s possible for someone to unearth a forgotten law, Elmendorf can rightly claim to have excavated the builder’s remedy.

The Legislature added the provision to the government code in 1990, but no one used it for decades. In the one case Elmendorf found where someone tried — a homeowner in Albany, just north of Berkeley, who wanted to build a unit in his backyard in 1991 without adding a parking spot — local planners shot down the would-be builder.

Elmendorf stumbled upon the long-ignored policy 28 years later while researching East Coast laws that let developers circumvent zoning restrictions in cities short on affordable housing.

He started tweeting about it. He even dubbed the California law the “builder’s remedy,” borrowing the coinage from Massachusetts.

“I think it’s fair to say that people in California had forgotten about the builder’s remedy almost completely until I started asking about it on Twitter,” he said. ” I think those twitter threads led some people to say, ‘huh.'”

Among those who noticed: staff at the state Housing and Community Development department who began listing the “remedy” as a possible consequence of failing to plan for enough housing.

Why was the builder’s remedy largely forgotten? The text of the law is complicated and it’s only relevant once every eight years, when cities and counties are required to put together their housing plan. Plus, though it allows developers to ignore a city’s zoning code, it’s not clear that it exempts them from extensive environmental review, making the cost savings of using it uncertain.

But more importantly, up until recently, invoking the builder’s remedy — the regulatory equivalent of a declaration of war — was bad for business.

Historically, local governments have had sweeping discretion over what gets built within their borders, where and under what terms and conditions. Developers and their lawyers hoping to succeed in such a climate had to excel at what one land use attorney dubbed the art of “creative groveling.”

But in recent years, as the state’s housing shortage and resulting affordability crisis have grown more acute, lawmakers have passed a series of bills to take away some of that local control. In many cases, cities and counties are now required to approve certain types of housing, like duplexes, subsidized housing apartments and accessory dwelling units, as long as the developer checks the requisite boxes.

That’s all led some developers to rethink their approach to dealing with local governments — one that is less concerned with building bridges and isn’t so afraid to burn a few.

Santa Monica makes a deal

Santa Monica’s city council voted unanimously for the deal with WS Communities early last month — but grudgingly.

In exchange for the developer pulling its original proposals, the city agreed to a streamlined approval process for the new plans. The council also agreed to pass an ordinance to give the developer extra goodies on the 10 remaining projects.

If the city doesn’t pass the ordinance, according to the settlement, WS Communities has the right to revive the builder’s remedy for all 14 towers.

Councilmember Brock, elected in 2020 along with a slate of development-skeptics, was hardly a fan of the deal. But as he saw it, the prospect of a lengthy legal battle that the city’s attorney insisted Santa Monica would lose gave the council little choice. That didn’t make what Brock viewed as a hard-knuckle negotiating tactic any easier to swallow.

“I don’t believe for a minute that they ever planned to build all those projects,” he said.

Councilmember Caroline Torosis, who was elected last fall, laid the blame on the prior council for failing to pass a timely housing plan. Even so, she said the city had no choice but to reclaim control over its own land use from the developer.

“We were put in a difficult situation,” she said. “I think that this was absolutely the best negotiated settlement that we could have reached, but of course, they had leverage.”

Both Scott Walter, the president of WS, and Neil Shekhter, the founder of the parent company, NMS Properties, refused a request to be interviewed through their lawyer, Rand.

But in true property kingpin fashion, WS was able to flip these builder’s remedy proposals into things of even greater value: ironclad plans that it can build out quickly or sell to another developer.

“The builder’s remedy projects were anything but fast and certain,” said Rand. “This has been parlayed into something with absolute certainty and front-of-the-line treatment.”

Affluent California cities fight back

About an hour’s drive northeast of Santa Monica, the foothill suburb of La Canada Flintridge recently rejected a builder’s remedy application.

During a May 1 hearing, Mayor Keith Eich stressed the city was “not denying the project.” Instead, they were denying that the builder’s remedy itself even applied to the city.

The argument: The housing plan the council passed last October complies with state law. California’s Housing and Community Development department rejected that version of the plan and has yet to certify a new one. But La Canada’s city attorney, Adrian Guerra argued at the hearing that the agency’s required changes were minor enough to make the October plan “substantially” compliant.

That’s not how state regulators see it. In March, the housing department sent the city a letter of “technical assistance.”

“A local jurisdiction does not have the authority to determine that its adopted element is in substantial compliance,” the letter reads.

Not so, said Guerra: “The court would make that determination.”

A number of cities across the state have made that argument. Among them are Los Altos Hills and Sonoma. Beverly Hills is already fending off a lawsuit contending that the law applies to that city, though it recently rejected a builder’s remedy project on extensive technical grounds.

It’s a question that’s almost certain to end up in court. A recent California’s Fifth Circuit Court of Appeal ruling offers legal fodder to both sides.

The April opinion ruled against the state housing department’s certification of the City of Clovis’ housing plan. That’s a point for those arguing that the word of state regulators is not inviolate. But the ruling also noted that courts “generally” defer to the state agency unless its decision is “clearly erroneous or unauthorized.”

Down the coast, the City of Huntington Beach isn’t relying on such legal niceties. In March, the city council passed an ordinance banning all builder’s remedy projects under the argument that the law itself is invalid. Days later, the Newsom administration sued the city.

But in Santa Monica, city council members didn’t see much upside in pushing back.

“You can’t just fight a losing battle,” Brock said. “I think anybody who decides they’re gonna be an all star NIMBY is up for failure.”

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CalMatters

A California Law Forced Police to Release Shooting Footage; Now Videos Follow the Same Script

Ken Pritchett clicks his mouse and the logo of a Southern California police department pops up on a computer monitor the width of his shoulders. Another click and the image flips to a three-dimensional map. A glowing orange arrow indicates the direction a man ran as he tried to evade police. “Right here, this is the path he took in the alley,” Pritchett said, switching from the map to a still image highlighting an object in the man’s hand. “Then you can see him turn toward the officers. He wants to die. This is suicide.”

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The law has some exceptions, allowing departments to withhold video if it would endanger the investigation or put a witness at risk. Law enforcement departments often cite those reasons when regularly denying records requests by CalMatters and other news organizations. Of the 36 fatal police shooting cases since July 2021 being tracked by CalMatters, only three have responded with even partial records.
The law has some exceptions, allowing departments to withhold video if it would endanger the investigation or put a witness at risk. Law enforcement departments often cite those reasons when regularly denying records requests by CalMatters and other news organizations. Of the 36 fatal police shooting cases since July 2021 being tracked by CalMatters, only three have responded with even partial records.

By Nigel Duara
CalMatters

Ken Pritchett clicks his mouse and the logo of a Southern California police department pops up on a computer monitor the width of his shoulders. Another click and the image flips to a three-dimensional map. A glowing orange arrow indicates the direction a man ran as he tried to evade police.

“Right here, this is the path he took in the alley,” Pritchett said, switching from the map to a still image highlighting an object in the man’s hand. “Then you can see him turn toward the officers. He wants to die. This is suicide.”

This incident, like all the videos Pritchett produces in his home office, ended in a police shooting. Pritchett has made more than 170 of these for police departments and sheriff’s offices, mostly in California.

The video flips again, this time to the display of a shuddering body camera worn by an officer sprinting down an alley. Commands are yelled, the person being chased lifts an object with his right hand, police fire their weapons, the man falls down.

The video isn’t much different from hundreds of others produced since California passed a law in 2018 mandating police departments release body camera footage within 45 days of any incident when an officer fires a gun or uses force that leads to great bodily injury or death. Like most other critical incident videos released by law enforcement agencies after a shooting, this one is a heavily edited version of the original raw video, created by one of the private contractors that went into business editing police footage after the law went into effect.

Pritchett, who makes more of these videos than any other private contractor in California, asked CalMatters not to disclose the name of the police department in order to preserve their business relationship.

The law has some exceptions, allowing departments to withhold video if it would endanger the investigation or put a witness at risk. Law enforcement departments often cite those reasons when regularly denying records requests by CalMatters and other news organizations. Of the 36 fatal police shooting cases since July 2021 being tracked by CalMatters, only three have responded with even partial records.

Instead, the public and the media must rely on edited presentations that often include a highlighted or circled object in a person’s hand, slowed-down video to show the moments when the person may have pointed the object at police and transcriptions of the body camera’s audio.

They are also the only documentation of a fatal police encounter that the public will see for months, or years, or maybe ever.

Since the advent of cell phone cameras and, later, police-worn body cameras, the public has had detailed access to violent police encounters in a way it never had before. After incidents including the livestream of the aftermath of the Minnesota police shooting of Philando Castile in 2016 and the helicopter footage of the Sacramento police shooting of Stephon Clark in 2018, states including California passed a host of laws aimed at using that technology to better judge the actions of officers.

Critics allege that the problem with the condensed, heavily-edited version of the body camera footage released by law enforcement agencies is that they shape public opinion about a person’s death or injury at the hands of the police long before the department in question releases all the facts in the case or the full, raw video.

They also point to particular incidents in which a department erased or failed to transcribe audio critical to understanding the case, did not make clear which officers fired their gun or cut the video at a critical moment. In one case, Los Angeles journalist Sahra Sulaiman has taken apart multiple videos released by the Los Angeles Police Department and found irregularities that she asserts are deliberate manipulations meant to justify officers’ actions. In response, she said the LAPD ignores her or directs her back to the video.

“To only release an edited version is not what we think is called for from the defendant’s point of view,” said Stephen Munkelt, executive director of California Attorneys for Criminal Justice, a Sacramento-based association of criminal defense attorneys. “If they’re editing things out, it’s probably the stuff that’s beneficial to the defendant.”

He also worries about the impact of the release of the body camera footage on a potential jury pool. Still, Munkelt said, some video is better than none, if only because defense attorneys have more grounds to ask a judge for the full, unedited video.

Former journalist working with California police

In response to the 2018 body camera law, a cottage industry has emerged to produce these videos, though several larger law enforcement agencies produce theirs in-house. Pritchett works for Critical Incident Video, founded, not coincidentally, when the law went into effect in 2019. According to emails obtained by The Appeal and The Vallejo Sun, Critical Incident Video charges $5,000 per video.

Pritchett is a former journalist and insists that he applies the same scrutiny and objectivity to these videos, paid for by police departments, that he did in his former life as a television reporter and anchor in Fresno and Sacramento.

“Virtually every article we’ve seen about what we do, somebody accuses us of spinning for the police department, but I have yet to ever see an example put forward that shows that we’re spinning anything,” he said. “And if they did, tell me, for God’s sakes. My entire goal is to make these straight, spin-free.”

Not every department uses Critical Incident Video, but for the dozens that do, Pritchett’s style is unmistakable: first, the map, then usually a transcription of 911 calls, then the body camera video. Pritchett said that, if he’s done his job well, he can help head off conflict between a law enforcement agency and the public.

“I think the main issue now is people come jumping to conclusions about what happened before they’ve seen the video, which is why we recommend that (law enforcement) always get that video out there as quickly as possible,” Pritchett said. “We have done quite a few videos where there was a social media public narrative about something that happened, and the video clearly shows that that didn’t happen.”

Pritchett said that, before he made his first video, he learned by watching the videos that departments produced internally. He did not like what he saw.

“Basically, what we saw was the LAPD’s videos, and I didn’t like them … I probably shouldn’t have said that,” he said with a laugh. “But I remember seeing mugshots. I remember seeing information that was not really relevant (like) previous charges. I remember thinking the whole (video) that someone had a gun, until they told me at the end that it was actually not a gun.”

So, he has rules. He will not refer to the person who was shot as a “suspect.” He will not use mugshots of the person who was shot. He will not display previous charges or convictions of the person shot, even if the department asks him to — something that he said cost his company a client when the police department insisted on including it. If an object was later found to be anything other than a gun, he demands that the departments tell viewers that up front.

Critical Incident Video’s process usually begins hours after a shooting. The police department or sheriff’s office will call Pritchett and send the raw footage, along with any witness video the agency has obtained. He combs through it, picking out the parts he believes are important.

He reads the initial police press release — “which is often incorrect,” he said — then reads any related media reports. He transcribes the audio of the body camera, creates a 3D map showing where the encounter began and writes a prospective script if one is requested, then tells the police to put it in their own words.

Pritchett said he pushes back against departments. Sometimes in a press release, agencies will say they immediately rendered first aid to a person they shot, but the video shows a delay.

“Sometimes that becomes a point of contention,” Pritchett said. “I’m looking at the video and say, well, how do you define immediate? We’ll change that. Like I said, we have to fight.”

The California Police Chiefs Association and the California State Sheriffs’ Association did not return voicemails from CalMatters for this story.

Assemblymember Phil Ting, a San Francisco Democrat who wrote the 2018 body camera law, said he has no problem with the condensed videos provided by law enforcement agencies after a shooting, because they’re much better than what was made public before the law.

“After the legislation was passed into law, we’ve seen so much more released and so much more video,” Ting said. “If a department is articulating why they acted in a particular way, that’s a good thing. They work for the public and we want accountability.”

Michele Hanisee, president of the Los Angeles Association of Deputy District Attorneys, said the release of the videos is a balancing act, forcing prosecutors to weigh the benefit of transparency against the potential harm of prejudicing the jury pool.

“While transparency promotes public confidence in the conduct of law enforcement,” Hanisee wrote in an email to CalMatters, “the pre-trial release of evidence has the potential to influence the testimony of witnesses, create bias in potential jurors, or create an environment that could justify a change in venue.”

Replaying LAPD shooting videos

Three hundred and sixty miles south of Pritchett’s Sacramento home office, Sulaiman, a communities editor for StreetsBlog Los Angeles, is in front of her own monitor, squeezed into the two-foot patch of carpet between her couch and a knee-high table on which her laptop is perched.

Her eyes, reflected back in the dark blue of a police uniform on screen, dart back and forth between the video released by the LAPD and the time code. She rewinds, presses play, pauses the video, rewinds again.

“Did you hear it?” she asks, then presses play on the video from December 2021. “Listen again.”

On screen is Margarito Lopez, a developmentally disabled 22-year-old sitting on a set of short stairs, holding a meat cleaver, bathed in blue and red light. Several LAPD patrol cars are parked in front of him, the officers shouting at him to drop the cleaver, as they have for at least five minutes.

Lopez stands. The police continue to shout in English and in Spanish. He holds the cleaver over his head. The body camera video’s transcription matches the words of the officers: “Hey, drop it, drop it, stop right there!”

Seconds later, officers fire live rounds, killing Lopez. Sulaiman rewinds again and turns up the volume on her laptop.

This time, a piece of audio that wasn’t transcribed by the LAPD is clear: “Forty, stand by.”

Forty, in this case, is code for a less-lethal foam projectile, a warning to other officers that what they’re about to hear are not lethal rounds.

“The protocol demands that they give the warning and then everybody stand down, wait to see what effect it has,” she said. “So he gives the warning and if you don’t know what you’re listening for, you just hear shouting. But then I realized that that’s what the warning was, and immediately, as soon as the less lethal is fired, it’s contagious fire because they didn’t hear the warning.”

Without that piece of audio, Sulaiman said, the video makes it appear that Lopez was shot after failing to comply with commands and advancing toward the officers.

“And that’s where they play with these transcriptions a little bit,” she said. “So that’s the kind of thing where if you have this different piece of information, that completely changes what this incident is.”

Sulaiman doesn’t believe the LAPD transcription left out the less-lethal warning by accident. The LAPD did not respond to specific questions from CalMatters about this incident or the video transcription.

Since the murder of George Floyd by Minneapolis police in May 2020, Sulaiman has focused her work almost entirely on police violence.

Among her most thorough investigations was when she found the only evidence that an LAPD sergeant fired his weapon from his vehicle without stopping during a police chase on July 18, despite two other officers determining moments earlier that the man being chased didn’t have a gun.

The video never made clear which officer fired the shot that wounded 39-year-old Jermaine Petit, but in the reflection in the glass of the sergeant’s patrol car dashboard, she saw him holding up his gun and pointing it out the passenger side window. At the time of the shooting, the sergeant’s arm jerks backward. She said she had to watch the video several times, including at one-quarter speed, before she noticed the reflection.

She acknowledges that police have a difficult job in often-chaotic circumstances, trying to make life-or-death decisions. But that, she said, is their job.

“A lot of times they’ll say, oh, when we put civilians through these active shooter sort of scenarios, they just fire willy-nilly at people,” she said. “Well, yeah, ’cause I’m not f——- trained.

“And when you go second-by-second through these, it is certainly a lot easier to play Monday morning quarterback. But you also see that LAPD is doing the same thing when they’re constructing these narratives.”

Sulaiman said the videos themselves are a mixed bag of consequences. She’s glad that there is some video evidence of the shootings released, but said the format is ripe for manipulation by the police.

“What these videos have taught me is how really skilled LAPD is at deflecting attention at deeper structural reform,” she said. “That they are very good at pointing the finger, at localizing blame on the things that take the least amount of tweaking to fix and deflecting any kind of interest in questions of structural reform.”

Both Sulaiman and Pritchett, in their respective jobs, have had to watch hours and hours of people being shot. The images they see are not blurred. People lie dying in pools of blood, people ask why they were shot, people shout for their mothers.

“It’s tough,” Sulaiman said. “I don’t know what else to say about it.”

When asked how viewing those videos affects him, Pritchett paused for several seconds, started to speak, stopped himself, then started again.

“To be determined.”

Copyright © 2023 Bay City News, Inc. All rights reserved. Republication, rebroadcast or redistribution without the express written consent of Bay City News, Inc. is prohibited. Bay City News is a 24/7 news service covering the greater Bay Area.

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