In 1978, the U.S. government created a path to recognizing Indian tribes in the United States. Four years later, the Southern Sierra Miwuk Nation, a tribe native to Yosemite Valley, submitted its initial request to become a recognized tribe.

The tribe is still waiting.

Obtaining federal recognition is often seen as the “golden ticket,” because it allows tribes to organize collectively and access federal resources. Recognized tribes can get funds for housing or climate resilience, for example. They also can establish sovereign governmental status, giving them authority to collect taxes and administer laws.

“It means that tribes have the ability to take care of their community members through health, through education and through other services that the government promised us when they stole our land hundreds of years ago and continue to steal our land now,” said Cristina Azocar, an Indigenous journalist and professor at San Francisco State University.

California has the highest Native American population in the country and is also home to the majority of non-federally recognized tribes. The Death Valley TimbiSha Shoshone Band is the only California tribe that has been recognized in the 44 years since the federal acknowledgement process was established.

In the last 13 years, the U.S. Department of Interior has actively reviewed applications for acknowledgement of only 18 tribes, even as hundreds remain in line. The Public Press has identified more than 400 tribes seeking federal recognition and is working to confirm that 200 others with publicly listed applications are genuine. Many have been waiting for decades.

A Public Press request for expedited release of records listing all non-federally recognized tribes was denied by the Department of the Interior, as was an appeal of that denial. No timeline has been given for their release.

The application process is long, complex and stringent. While the government gives tribes tight deadlines to submit documentation, it allows itself unlimited time to review materials after its initial assessment. On top of that, the COVID-19 pandemic has contributed to a slowdown in processing.

“Especially during COVID, tribes that had federal recognition were much more able to take care of their people than tribes without federal recognition,” Azocar said. “My own tribe, we were sent tests, we were sent masks.”

Federal recognition also gives tribes access to emergency funding from sources like the $2.2 trillion in COVID stimulus funding provided by the Cares Act, federally funded health care and education, the right to operate casinos, and the ability to convert their land into housing. 

A rigorous process

The federal acknowledgement process set up in 1978 is the main path tribes take to become recognized and listed in the National Registry, an annually updated reference list. As of this year, there are 574 recognized tribes, most of which received their designation through treaties, acts of Congress, executive orders, reaffirmation from the Assistant Secretary of Indian Affairs or federal court decisions.

The government prefers the administrative process because documentation is required, and it’s perceived as objective. But it’s difficult for tribes to collect all the documentation needed to apply and a lot of tribes cannot complete — or in some cases, even start — the process, given the time and expense involved.

Since 1978, 34 tribes have been denied acknowledgement, and 18 tribes approved. Currently, there are only six tribes under review to become recognized, and that includes two California tribes: the Southern Sierra Miwuk Nation — from Yosemite Valley — and the Ahmah Mutsun Band of Ohlone Indians from the San Francisco Bay Area.

The Native American grassroots movement of the late 1960s inspired many tribes to seek recognition, and petitions to the government increased in the 1970s. As a result, the Department of Interior created the administrative process and the Office of Federal Acknowledgement to manage applications that first became effective on Oct. 2, 1978.

The first set of regulations, revised in 1994, required tribes to collect all sorts of historical and anthropological evidence to meet seven criteria that prove their continuous existence, activities and cohesion as a tribe from the 1800s to the present.

“In some cases, there’s thousands and thousands of documents,” Azocar said. “The process has gotten more and more rigorous, even though there is nothing that says that it necessarily has to meet a certain standard, but there is a precedent that has been set.”

In 2015, the regulations were revised again, and the amount of evidence required was reduced. Now, tribes have to show only documentation from the early 1900s to the present day, but this is often still an overwhelming challenge. The goal of the revision was to make the process more transparent and flexible in recognition of the fact that all tribes were not homogenous. Even so, the administration still asked for evidence that in some cases was impossible to produce.

“The Office of Federal Acknowledgement suggested that it gather phone records of tribal members who had conversations with each other,” said Azocar, referencing the Little Shell Tribe in a passage in her book, News Media and the Indigenous Fight for Federal Recognition. “And I thought, that’s crazy. How would you actually be able to go about doing that?”

In addition, since tribes had no way to know they would need the records later, they didn’t always keep documentation.

To date, no tribe has been recognized through the new regulations introduced in 2015. Lee Fleming, director of the Office of Federal Acknowledgement within the Department of the Interior, declined to answer Azocar’s questions about the administrative process, and did not explain why the process took so long or how they hired staff to perform the reviews.

The government made documenting Native American tribal history challenging in multiple ways. The Southern Sierra Miwuk Nation, for example, had negotiated a treaty with U.S. in the 1850s, but the U.S. Congress did not ratify it. It was the peak of the Gold Rush, and the interests of white Californians were prioritized. The census also did not start counting Indians until 1850, and many tribes had already been displaced from their homelands.

“There were no records of Indians before 1815, so that is also a problem with getting historical documentation when tribes weren’t even part of the count of our country,” Azocar said.

And some of the evidence tribes are tasked with submitting was erased by racist laws. In Virginia, “You can’t trace your ancestry back past 1924,” Azocar said. A law called the Racial Integrity Act required anyone who was not white, including Native Americans, to be registered as “colored” on birth or marriage certificates.

Evidence collection can be costly, too. The Native American Rights Fund spent 29 years and more than 3,400 attorney hours on the federal recognition of the Little Shell Tribe of Chippewa Indians of Montana, Azocar said. “The cost of that time was already in excess of $1 million.”

Even after all the expenditures, the tribe was not recognized through the federal acknowledgement process, but in an act of Congress as part of the National Defense Authorization Act in 2020.

“It’s really difficult, because often a tribe can’t do it itself,” Azocar said. “It has to hire historians, it has to hire anthropologists. And these often cost money unless somebody’s willing to do it for free.”

A fight for recognition

The application process requires tribes to meet seven criteria: that they have existed continuously over a historical period, that they constitute a unique and distinct community, that they have political authority over their tribal members, that they have an internal governing structure in place, that membership consists of individuals descended from a historical Indian tribe, that those members are not part of any other federally acknowledged tribe, and that the U.S. government has not forbidden or terminated recognition of the tribe.

In 1982, after the Southern Sierra Miwuk Nation notified the government that it intended to seek federal recognition, it had to undergo several rounds of documentation production and technical review. Two years after filing its letter of intent, the tribe submitted its initial documented petition prepared by anthropologists Lowell John Bean and Sylvia Brakke, who worked to change the depictions of California Indians. The tribe then spent 14 years gathering additional evidence.

In 1998, the tribe was ready. But the government was not. It was not until 2010 that the tribe was designated “active consideration” — meaning the government is ready to review the tribe’s application. At that point, the administration had one year to complete the review. The Interior Department filed 21 extensions, giving itself more than eight years to complete its initial evaluation.

“We’ve been put on hold now, all this time,” said Sandra Chapman, the tribe’s chairwoman. “We’re trying to get a meeting with Deb Haaland. We need to have her backing.” Haaland is the Secretary of the Interior, the first Indigenous woman to hold a Cabinet-level position.

In 2018, the Interior Department’s Office of Federal Acknowledgement published a preliminary finding denying recognition to the Southern Sierra Miwuk Nation. The tribe did not meet the community criterion and more evidence needed to be submitted on the history, geography, culture and social organization of the group, the office said.

To better understand the decision, the tribe filed a Freedom of Information Act request for all correspondence and documents from the Office of Federal Acknowledgement relating to the decision-making process on its request. Four years later, the tribe is still waiting for a response.

The tribe has submitted about 200 years’ worth of evidence, dating back to the 1800s, as required by the 1994 regulations. The documentation would have been cut in half under the new regulations, but that would restart the application process. 

The Southern Sierra Miwuk Nation has a federal acknowledgement committee and a membership committee that have worked to get its documentation compiled. “We have our genealogy, all documented,” Chapman said. “We are going to send that evidence to Washington, we’re going to overload them with all kinds of evidence, we’re going to give them more than they asked for and see what they say now.”

Tribe members have also received support from Yosemite National Park, which has an ongoing consultation relationship with seven tribes, including the Southern Sierra Miwuk Nation, also known as the American Indian Council of Mariposa County.

“This relationship has existed for over 40 years,” a letter of support from the park for the tribe’s recognition said, noting that its “ancestral ties to Yosemite National Park have spanned multiple generations … and began prior to the establishment of the Park.” The U.S. Congress passed the first law protecting the Yosemite area in 1864 and created the park itself in 1890.

“We’re a strong community,” said Chapman, pointing to letters of support from local residents and the Board of Supervisors as well as the Park Service, which also welcomed a traditional village on the land. “How can you build a roundhouse on, you know, federal land? If you’re not a tribe?”

Azocar pointed to the tourism industry surrounding Yosemite National Park as a reason the government may be reluctant to grant the tribe recognition.

“If the tribe had further recognition, it would potentially have more power to have not just a lease, but have a stand to reclaim some of the territory,” she said, noting that “reclamation of territory is not necessarily in the interest of the federal government.”

The initial denial of recognition puts the tribe in phase two of the federal recognition process, giving members an opportunity to present additional evidence that they should be recognized. The tribe is working to rebut the denial and requesting public comment letters to aid in the effort. Comments close on Nov. 11, 2022.

If an application has been given a final decision, and federal acknowledgement is denied, the tribe cannot apply again. Tribes can seek alternative routes such as the courts or lobbying state senates to federally acknowledge them through public law, but these methods are just as expensive and difficult.

Some states offer tribes recognition, but it doesn’t come with federal benefits, like health and education assistance. But it can help with the federal recognition process to demonstrate a relationship over time with other governments, Azocar said.

“I am passionate that we become federally recognized,” Chapman said. “Our ancestors had wanted it. I remember my mom and dad saying they wanted to be recognized. It’s the recognition that you get that the government is saying, I know who you are.”

— Additional research and reporting contributed by Jordyn Gleaton

Jordyn Gleaton helped research and produced the graphics for this article. She is working with the San Francisco Public Press as a 2022 Dow Jones News Fund data journalism intern. Gleaton is entering her junior year at the University of California, Berkeley, where she is double majoring in political science and legal studies, and pursuing a human rights interdisciplinary minor.

The post California Indian Tribes Denied Resources for Decades as Federal Acknowledgement Lags appeared first on San Francisco Public Press.

In a previously unreported vote last month, the commission issued a decision requiring that all ride-hailing firms train drivers to avoid sexual assault and harassment, adopt procedures for investigating complaints and use uniform terminology in their annual reports to the agency so it can accurately monitor them.

But the commission softened its initial proposal by dropping a requirement that the companies inform victims they could “opt in” to speak with its investigators. Although the agency had said the measure would help it ensure firms properly respond to assault claims, it instead decided the cases would be better handled by company investigators once they receive appropriate training.

The commission hailed the new rules as “a necessary milestone” in its “ongoing commitment to ensuring the safety” of transportation network companies, as the firms are known, and a signal to assault victims that their claims will receive “the necessary consideration and sensitivity that respects their rights.”

In comments before the vote on June 23, 2022, commissioners said they sought to balance holding the industry accountable and protecting victim privacy.

“It’s important that we have sufficient information to understand what’s happening and how best to explore ways to prevent these incidents, protect victims, and also ensure their confidentiality,” Commissioner Darcie Houck said.

Commissioner Clifford Rechtschaffen said the decision addressed “an extraordinarily serious and sensitive set of issues involving assault. We really need to tread very, very carefully, and I think this decision does that.” 

Local officials said the move was a welcome improvement in how the agency addresses a longstanding risk on rides.

“The CPUC’s action to standardize how Uber and Lyft are supposed to protect passengers from sexual assault and harassment is way overdue,” Rafael Mandelman, a San Francisco supervisor and chair of the San Francisco County Transportation Authority, said in an email. “I hope this is a sign that the state is prepared to take these issues more seriously, sooner rather than later.”

Los Angeles County District Attorney George Gascón, who sued Uber over what he alleged were its false safety claims in 2014 when he was San Francisco’s district attorney, said in an email: “This is a positive step. I hope that both the Commission and rideshare companies work collaboratively to improve public safety.”

Terrie Prosper, the commission’s director of news and outreach, did not respond to questions about the decision. 

The commission is California’s primary regulator of ride-hailing firms and the state’s only agency that collects comprehensive safety data on the industry. Uber and Lyft represent 99.9 percent of the state’s ride-hailing business.

The agency legalized ride-hailing in California in 2013 and other states followed suit. Within months, there were media reports of alleged assaults around the country.

But the commission did not specifically require that firms include sexual assaults and harassment complaints in their mandatory annual reports to the agency before 2017, according to documents released to the San Francisco Public Press under the state public records act.

Moreover, it failed to require that they use consistent definitions of assaults and harassment, which resulted in unreliable data. The problem was revealed only in October 2021, after the Public Press obtained a partially redacted 2020 annual report. The agency has not released other annual reports.

Company representatives have said they submitted all required information and that safety is a top priority. They say less than 1% of their rides have any safety issues.

Numerous passengers have sued Uber and Lyft alleging the companies failed to prevent and investigate assaults. The firms routinely deny the claims, and settlements are usually confidential. Last week, eight women and two men sued Uber in San Francisco Superior Court, alleging they were attacked by Uber drivers within the last three years. Navideh Forghani, an Uber spokesperson, declined by email to comment on the two lawsuits.  

Meanwhile, the companies have released their own studies using definitions they developed with experts. Uber’s 2019 “U.S. Safety Report” listed 5,981 alleged incidents of sexual assault in 2017 and 2018 nationally. It did not break out incidents by state, but Uber later said 1,243 occurred in California.

Last month, Uber published a second study, reporting 3,824 alleged incidents in 2019 and 2020 nationally.

In its “Community Safety Report,” published in 2021, Lyft acknowledged 4,158 alleged sexual assaults nationally, in 2017, 2018 and 2019. It also did not include state tallies.

Both companies said in emails that they supported the commission’s requirement that they use a uniform system of definitions, or “taxonomy,” in reporting assaults to the agency.

Under the new rules, sexual assault is defined as the touching, or attempted touching, of sexual body parts of a driver or passenger against their will. This includes victims who are unconscious at the time. Several passengers have claimed in lawsuits that they were assaulted after passing out in the back seat.

Sexual harassment is defined as the “unwelcome visual, verbal, nonverbal, or physical conduct” based on sex, directed at a passenger or driver, such as inappropriate personal questions, remarks about appearance and “flirting.”

The agency said it based the definitions on state criminal and civil law and the 1964 Civil Rights Act.

The commission rejected definitions that Uber and Lyft developed after consulting with experts. The agency also rejected Uber’s suggestion that it only report incidents in which it had deactivated the driver, saying this would obscure a true tally of assault claims.

Uber and Lyft told the commission that as of at least 2019 they had begun training drivers on avoiding sexual assault with assistance from the Rape, Abuse & Incest National Network (RAINN), which describes itself as “the nation’s largest anti-sexual violence organization.”

But now the commission is mandating that all ride-hailing firms develop a program in consultation with a recognized expert to annually train drivers using examples of proscribed acts. It must cover harassment based on gender identity and expression, as required under California law.

Firms are required to provide a copy of their policies for preventing sexual assaults and harassment to drivers and passengers. They must develop an investigation manual that requires a timely response to assault claims and documentation. And they must consult experts to establish investigator qualifications, training and procedures for “trauma informed” investigations.

The companies said they had added many safety features over the years, as well as sexual misconduct education for drivers. But neither responded to emailed questions about whether they should have acted earlier in requiring more rigorous training for drivers and investigators.

The agency emphasized that the new rules are “interim” and that firms must update their programs “as necessary” after an industry-wide evaluation by experts.

Genevieve Shiroma, the commissioner who wrote the decision, said before the vote, “This is crucial work and we will continue our work in this area.”

This article was produced in partnership with the McGraw Center for Business Journalism at the Craig Newmark Graduate School of Journalism at the City University of New York. Support was also provided by the Fund for Investigative Journalism. See previous stories at sfpublicpress.org/series/ride-hailings-dark-data. Contact Seth Rosenfeld at srosenfeld@sfpublicpress.org.

The post Uber, Lyft Must Adopt Measures to Prevent Sexual Assaults, California Regulator Rules appeared first on San Francisco Public Press.

More than one month after statewide eviction protections expired on June 30, less than 4% of rent relief funds requested by San Francisco households remain unprocessed, with 55% of funds paid out. 

Over 20,600 San Francisco households had asked for almost $340 million in rent and utility assistance from both state and local COVID-19 rent relief programs as of the week of July 11, government figures show. The amount requested declined 9% between April 11 and July 11 as the state continued to weed out ineligible applications. The state stopped accepting applications on March 31, more than a year after it opened a financial aid program to cover housing debt incurred by tenants due to pandemic hardship. 

Households whose applications have been approved can stay an eviction even if they have not received payment yet; however, those with applications under review or pending applicant information — a category that applies to 1,154 applicants in San Francisco — are vulnerable to eviction.  

California passed legislation to ensure all eligible households who applied by the March 31 deadline will receive funding. Recent budget proposals would earmark additional money for rent relief. 

The following figures include San Francisco residents’ requests from California’s COVID-19 Rent Relief Program and San Francisco’s original Emergency Rental Assistance Program, which stopped taking applications in September 2021. It does not include requests from the city’s newest rent relief program, which began accepting applications April 1. 

Over $140 million in rent and utilities requested from the state program by San Franciscans had been denied as of the week of July 11. Almost 1,000 San Francisco applicants appealed their denials. 

On July 7, an Alameda County Superior Court judge barred the state from denying any more pending applications or any appeals of denials that occurred in the previous 30 days until a hearing is held to determine if applicants’ rights to due process were violated in the application review process. 

In 2021, California received $5.2 billion for emergency rental assistance funds from the federal government. The state has since acquired nearly one out of every three dollars of federal reallocations of unused funds from other states, for a total of $198 million.  

Tenants who had previously applied to the program and were awaiting rent relief were protected from eviction through June 30 for rent due between April 2020 and April 2022 under AB 2179. Under the same bill, local eviction protections passed unanimously by the Board of Supervisors in March were voided until July 1, but have since taken effect.  

In response to the state’s move to cease accepting applications, the city reopened its own rent relief program for tenants who are seeking funds for rent debt accumulated in April and beyond. So far, it has distributed close to $4.3 million in funds to 713 of the 4,415 households that have applied, and residents who need help are encouraged to apply. 

In its previous rent relief program, San Francisco assisted over 3,200 applicants with $22.8 million in relief. An additional $243,878 in requests from 53 households are yet to be processed. 

The statewide eviction moratorium, protecting tenants who could not pay rent because of COVID-19 hardship, was originally scheduled to end Jan. 31, 2021, but lawmakers extended it twice. Following the moratorium’s final end date, Sept. 30, San Francisco tenants became vulnerable to eviction for nonpayment of rent if they had not paid at least 25% of the rents due in the preceding 13 months, as well as October’s rent. 

However, California lawmakers did create some protections for renters who were unable to pay back rent after the moratorium expired. Tenants who applied to the state’s rent relief program before the deadline and were waiting on relief were protected from eviction through March 2022. State lawmakers in late March extended those protections through June 30. 

Even though they may have been barred from evicting some tenants, starting in November 2021, landlords could sue tenants to obtain unpaid rent that was due from March 2020 through September 2021. If a landlord pursues the debt in small claims court, they and the tenant must represent themselves in the courtroom. 

Are you facing eviction? Call the Eviction Defense Collaborative at (415) 659-9184 or send an email to legal@evictiondefense.org as soon as possible. The organization advises that tenants respond within five days of being served with court papers to avoid the risk of a default judgment against them.

Is your landlord suing you to recover pandemic rent debt? Go here to read our guide on how small claims court works, and how to argue your side of the case.

The post San Francisco Rent Relief Tracker appeared first on San Francisco Public Press.

Emily provided written documents and audio to show how he had allegedly abused her time and time again. In her testimony, she said he monitored her phone conversations, even those related to the web design business they jointly set up before their marriage. Sometimes, she recalled, in a fit of jealousy he would hang up on male clients while she was negotiating a business deal.

Trevor was so controlling, she said, “I felt I was not allowed to have my own thoughts.”

So she bit her tongue and said nothing, afraid of his mercurial temper. In November 2020, after receiving a bruised arm from him — an episode his lawyer says was mostly her fault — representatives from his church told her she should accept physical discipline from her husband, she said in an interview. Their message: She needed to learn to forgive.

Her attorney, Minty Siu-Kootnikoff, filed for a temporary restraining order in February 2021 and custody of the couple’s then 6-year-old son. It was a complicated case, with accusations of bad parenting and disruptive drug use flying back and forth between the couple.

Siu-Kootnikoff was one of the first lawyers to invoke a new legal tool California had enacted just a month earlier that expanded on the law’s long-standing conception of domestic violence. The reform allows victims to claim a pattern of “coercive control” — psychological abuse that does not necessarily end in physical harm. Siu-Kootnikoff is the legal services director at Sojourn, a domestic violence shelter in Santa Monica.

Siu-Kootnikoff viewed the recently enacted law as the best tool for getting her client a legal remedy. “Domestic violence is about control, and is not limited to physical abuse,” Siu-Kootnikoff said. “Therefore the amendments adding coercive control to the definition of ‘disturbing the peace’ are critical to addressing abuse that is not dealt with in the criminal codes, yet is as damaging and destructive as a black eye or broken arm.”

Not all judges are sympathetic to the stories of intimate partners who claim emotional abuse, and some even exhibit misogynistic conduct, women’s rights advocates say. More than six in every 10 California judges are male, down from seven a dozen years ago. It is not uncommon to hear a judge cast doubt on a claim of domestic abuse if one partner returns to the other after the abuse was alleged to have started. But the conclusion of the judge who heard Emily’s case shows that at least a few jurists seem to have gotten the message.

“The dynamic of domestic violence is not subject to black-and-white rules,” Judge Michael J. Convey of the Los Angeles County Superior Court noted in his Feb. 5, 2021, ruling on the case. “It is individual. It is nuanced. It is changing. The court’s views of domestic violence are evolving over the years to reflect a more proscriptive assessment — and a set of orders designed to recognize more subtle, more insidious, if you will, behaviors that can be called violence or abuse.”

Convey echoed the observations of sociologist and forensic worker Dr. Evan Stark, whose prize-winning book “Coercive Control: How Men Entrap Women in Personal Life” helped to stimulate the conversation on the newly recognized crime of coercive and controlling behavior in the United States and throughout the United Kingdom and Australia. “It’s not about hitting or hurting, but taking away women’s autonomy,” Stark said in an interview.

Convey agreed with Siu-Kootnikoff that what Emily had undergone for years was indeed coercive control, that there “was an exercise of coercive control by Trevor and that it was pervasive and that it was long-standing and that it was part of the dynamic between them.”

The judge also said that by going back to Trevor a year after they divorced in 2015, he was not persuaded to discredit her story, citing research showing that it is not uncommon for victims to return to their abusers.

It remains to be seen how many more judges affirm what proponents of the concept say is the purpose of the reform, which is to give victims like Emily the benefit of the doubt.

The 2020 California law, introduced by state Sen. Susan Rubio, herself a survivor of domestic abuse, widens the definition of domestic violence and allows victims to introduce evidence of coercive control in applications in family court for a restraining order or child custody. The coercive control law applies to civil, but not criminal, cases.

California became the second state in the nation to adopt such a reform, following Hawaii in September 2020. In July 2021, Connecticut passed a law similar to California’s, with a couple of additional provisions: It set up barriers to vexatious litigation, preventing abusers from dragging their intimate partners to court for frivolous reasons, said Meghan Scanlon, president of the Connecticut Coalition Against Domestic Violence. The law also established a grant program to provide low-income survivors with access to legal assistance when making an application for a restraining order in five of its cities where the most domestic violence cases are heard. California’s law has no direct funding provision.

All of the laws passed so far recognize coercive control as a subtler form of abusive behavior that is often overlooked when a victim testifies about abuse. It occurs when an abuser isolates an intimate partner from friends and family, takes over their personal finances and surveils their activity, or uses verbal attacks to reinforce authority.

In her book, “Invisible Chains: Overcoming Coercive Control in Your Intimate Relationship,” author Lisa Aronson Fontes, a survivor of domestic abuse, says coercive control describes an ongoing and multipronged attack, with tactics that include manipulation, humiliation, isolation, financial abuse, stalking and sometimes physical or sexual abuse.

Coercive control is “about domination and control,” noted David A. McLeod, an associate professor in the Social Work Department at the University of Oklahoma, who has researched and published papers on intimate partner violence. “If the abuser feels he is losing control, he will push his partner back into compliance.”

The view from the bench

Women’s rights advocates say it is hard to convince court officials that victims who claim coercive control should be taken seriously, rather than wait for them to be bruised or hospitalized.

“We prefer to use the term abuse rather than violence because it means so much more than physical violence,” Convey wrote in his ruling on Emily and Trevor’s case. “And the term has been used here, coercive control.”

He continued: “Where appropriate, it can be found to be mental abuse. It can be found to be upsetting enough to cause one’s peace to be disturbed and their calm, their emotional calm to be upset.”

The education of judges in how to apply the law will be key to its success. Women’s rights advocates say enshrining the concept of coercive control gives family courts additional options to punish behaviors that have severe mental and financial consequences for victims, and might become violent if not addressed early.

On average in the U.S., more than 1 in 3 women, and 1 in 4 men, will experience physical violence, rape or stalking by an intimate partner, according to the National Domestic Violence Hotline.

During the pandemic, domestic violence in the U.S. has risen by more than 8%, studies show. In response, the Biden administration last year invested nearly $1 billion from the American Rescue Plan to support services for domestic violence survivors, according to the U.S. Department of Health and Human Services.

Even prior to California, Connecticut and Hawaii passing coercive control laws, some jurisdictions in the United Kingdom and Australia had broadened definitions of abuse. But it may take at least 10 years to know how well the laws are working, said Chitra Raghavan, a women’s rights advocate and forensic psychologist at the John Jay College of Criminal Justice in New York.

Meanwhile, in California at least, some judges, inspired by the intent of the new law, are taking action.

Drawn-out court battle

Emily tied the knot with Trevor in 2011, two years after they began dating. She was 30 and he was 28. He checked all the boxes: charismatic, tall, attractive, a good business partner with a shared interest in travel. And she loved how he showered her with attention.

They ran their web designing business out of their home in Castaic, in Los Angeles County. Her skill was in designing animated cartoons and games. Between them, they were pulling in between $15,000 and $20,000 a month, Emily said.

But early on she also noticed how “controlling and narcissistic” Trevor could be, she said. Even so, she kept excusing his behavior and was determined to make the relationship work. That didn’t happen, and in 2015, they divorced. They shared joint custody of their son, then a toddler.

Three years later, they got back together because they decided that it would be better if Trevor were more involved in the child’s life, according to both parents.

“He’s absolutely my world,” said Trevor about his son in a recent telephone conversation. When Emily went to his church, he added, “I took it as a hopeful sign.”

But once they were back together, she said the abuse she had earlier experienced only intensified and at least once turned physical.

In November 2020, when Emily was trying to get her son ready for school and sought Trevor’s help because the boy would not cooperate, Trevor held her by her arms and pushed her “multiple times” in front of their son, according to testimony presented at the February 2021 trial. She included pictures of bruises on her arm as exhibits.

Trevor’s attorney, Matthew J. Chung, defended his client’s behavior on that day.

“Emily was the one that was getting up in Trevor’s face,” Chung told the court. “Emily was the one who was pushing forth towards him. Emily was the one who was yelling” at the boy.

“Had she not gotten into Trevor’s face,” Chung said, “he would not have a need to have defended himself and pushed Emily away.”

In his conversation with the San Francisco Public Press, Trevor alleged that he was a victim too. “It’s difficult to summarize these very personal events,” he said. “But I can tell you there was a lot of violence perpetrated by her against me.”

In testimony, Emily alleged that Trevor manipulated the boy, telling him Emily’s opinion didn’t matter and encouraging the child to side with him against her. She heard the boy once tell Trevor, “It’s OK to hit mommy if she doesn’t do what you say.”

She told the court that Trevor did not allow her to “actively parent,” or have a say in what school he attended. Trevor also made all the household decisions.

She accused Trevor of spanking their son, sometimes so hard that it left welts, a claim Chung sought to discredit in court. He suggested it was a “light clap.”

“Nothing more than that,” Chung said. “No lasting redness, no lasting lumps on the minor child’s body.”

But Judge Convey dismissed that claim. After pointing out that Trevor did testify that he used physical discipline on the boy, evidence “also shows that the physical discipline caused red marks on the child. That is excessive physical force to a child.”

Chung said that if anything, it was Emily who, through a deluge of text messages, kept gaslighting Trevor — making him question his own sanity. The messages cast Trevor as “always a bad person,” paraphrasing them as “Why are you abusing me? You should stop abusing me.”

At the trial, Chung said that Emily smoked marijuana in the presence of their son. “Emily used marijuana at the household and at family events to excess,” and even in the presence of the boy, to deal with her diagnosed anxiety disorder, diminishing her parenting skills, said Chung.

But Convey dismissed that allegation: “There has been insufficient evidence that this use of either prescription drugs or marijuana has altered or impacted her ability to care,” he said.

He just as emphatically dismissed Emily’s accusations that Trevor was using non-prescription opioids and alcohol to excess. “The evidence was absolutely to the contrary,” he said, finding that Trevor had been sober for several years.

Convey said he believed Trevor when he said that after the November 2020 incident, he did not “kick” Emily out of the house, that she left the premises voluntarily.

In his ruling, Convey granted Emily a temporary restraining order against her ex for three years and denied Trevor one against her. He also gave Emily sole custody of their son. Trevor was given unsupervised visitation rights three weekends a month.

“I made mistakes,” Trevor said in an interview. “I wasn’t perfect.” But he said he found the judge’s decision distressing: “I’m having to entrust our child to someone who’s not stable.”

Emily said she did not ask for child support from Trevor because she wanted to make a “clean break from him.”

Both Trevor and Emily were ordered to attend parenting classes separately. Emily said she continued to take medicine to treat her anxiety disorder and migraines, and attended court-mandated group therapy.

Asked why she went back to Trevor after she experienced so much psychological abuse during the four years she was married to him, Emily said that’s a question she has often asked herself.

“All that I went through,” she said, “is behind me now.”

This article is part of a series on California’s coercive control law, underwritten by a Domestic Violence Impact Reporting Fund grant from the Annenberg Center for Health Journalism at the University of Southern California.

The post ‘I Was Not Allowed to Have My Own Thoughts’: California Courts Start Penalizing Psychological Domestic Abuse appeared first on San Francisco Public Press.

Kimberly’s husband, Albert Abutin, “had a hair-trigger temper, would slam doors,” and often hurled sexist insults at his wife, the lawyer told the court.

While Albert denied fault in one altercation that left Kimberly with a head injury, attorney DeAnn Salcido instead built her case around a legal concept that was relatively untested at the time called coercive control — a pattern of financial, emotional and psychological manipulation that victim advocates say can be a precursor to domestic violence.

But Judge James A. Mangione was unimpressed. He denied the request to order Albert to stay away from Kimberly. If Kimberly were speaking the truth, Mangione asked, why would she remain for five years in a marriage with an abuser and have a child with him?

“To this court, having a relationship as she’s portrayed it, and yet conceiving a child with him is inconsistent,” Mangione wrote in his Aug. 4, 2021, ruling, agreeing with the argument put forth by Albert’s attorney. “I found her not credible.”

Experts in domestic violence say judicial skepticism of abuse victims, often with misogynistic overtones, has long been widespread in U.S. family court, creating dangerous hurdles to justice. The expanded conception of domestic violence on paper is of limited use if judges continue to cast a skeptical eye on testimony, usually from women, of manipulation within intimate relationships.

Mangione was appointed to the Superior Court of San Diego County by former Gov. Jerry Brown in 2015 at age 61.

If Mangione had ever heard of the then brand-new California law allowing victims to claim coercive control — a broad range of behaviors including humiliation, surveillance, intimidation, gaslighting and isolation that strips an intimate partner of a sense of autonomy and personhood — it seemed lost in the courthouse.

Sandra Ross, a board member of California Protective Parents Association, said that as important as California’s law is, for it to be used effectively, “a lot depends on the personal biases of judges and attorneys.” She maintained that victims are at the mercy of judges’ experiences and prejudices.

The California Judicial Council, which oversees the state judiciary, said it has “always included content on coercive control as a form of abuse, even before the statute was enacted.” The council said it has included training on the law in at least 10 of its courses, with another three planned for this summer.

Under the 2022 California Rules of Court, every judge who hears family matters “must participate” in a periodic update on domestic violence education. But it doesn’t have to be through the judicial council, but may be through other providers approved by it.

The San Diego County Superior Court’s public affairs office said it could not disclose whether Mangione had received this training prior to hearing the case because the judicial code of ethics would “prevent the judge from speaking about this case.”

When state Sen. Susan Rubio introduced California’s coercive control bill, which was signed into law in September 2020 and took effect the following January, she said victims would be able to use a “pattern of abuse as part of their testimony in court” when seeking custody or a restraining order. For Rubio it was personal —- she survived an abusive relationship. She said the new law would give victims another tool to escape dangerous situations in the home.

But the success of a plea for court protections depends on many factors. Navigating a justice system that tends to favor those who can afford protracted litigation can become a nightmare. Some women obstructed in this pursuit end up feeling let down by the justice system and regretting their decision to come forward.

Mothers and ‘monsters’

Sociologist Evan Stark, who first articulated the concept of coercive control in 2007, said in an interview that behavior of the kind experienced by Kimberly was a manifestation of “gender oppression rooted in patriarchy.” He also emphasized that coercive control is not just what men do to women, but what men prevent women from doing for themselves. And, he noted: “Patterns of behavior and instances of control can add up to abuse.”

In Kimberly’s case, attorney Salcido said that threshold had clearly been met. In her five-year marriage to Albert, a deputy in the San Diego County Sheriff’s Office, the couple constantly argued, according to testimony from Kimberly’s two teenage children from a previous marriage.

“Why should anybody have to live their life that way on eggshells, waiting for his next hair-trigger temper tantrum to happen?” Salcido said in the courtroom.  She pointed out that one of the significant provisions in the law is that it includes behavior that threatens the victim’s peace of mind. She warned that Kimberly would never get the peace of mind she was entitled to if “Mr. Abutin escapes the consequences of his behavior.”

ABUSE THAT LEAVES NO MARKS | Second in a Series

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• Expanding View of Domestic Violence Gives Survivors New Tool, but Unsympathetic Judges Remain an Obstacle

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• ‘I Was Not Allowed to Have My Own Thoughts’: California Courts Start Penalizing Psychological Domestic Abuse

Without a protective court order, Salcido told the court, Albert “will be emboldened to continue to verbally harass her at exchanges, at any school events, to mutter under his breath like he did when he would walk away from fights to the point where their children would hear the mother called the C-word.” Salcido said the restraining order would help to prevent the escalation of Albert’s behavior into something even worse.

But Mangione was having none of it. He also dismissed the claims of Albert’s first wife, Heather who, in testifying on behalf of Kimberly, said he had abused her, too.

“With regard to Heather Abutin, I found her not credible — again, ‘He was living hell,’ that ‘He’s a monster,’ ‘He’s out of his mind,’” Mangione said according to the court transcript,  paraphrasing Heather’s side of the case. “And yet, she had three children with him. And not only had three children with him, but after they broke up, is so frightened and intimidated by Mr. Abutin, she continued to stay in contact with him asking for advice and asking him for money.”

Kimberly said Heather had no stake in the outcome of her case, yet “she felt brave enough to let the judge know it is a cycle.” And Heather volunteered to testify, Kimberly said, because “she wanted to finally tell her story since she never did when she divorced him.”

During the trial, Salcido said Heather had warned Kimberly, an emergency nurse at Kaiser, even before their child was born that she should leave Albert “as his behavior would never change.” Salcido told the judge that Albert made every effort to keep the two women “isolated from each other.”

Albert’s attorney, Ermilla A. Martinez, argued that Heather should not be trusted because in her declaration, she accused Albert of having hit her when they were married, and then asked that that statement be retracted during Kimberly’s hearing.

Martinez argued that Kimberly should not be trusted either. How could she say he had financially controlled her when a year before they separated she had bought herself a $75,000 BMW, Martinez asked.

Martinez questioned why Kimberly married Albert even after noticing his allegedly explosive temper in the two years they dated. “And then she planned and she had a child with this person that had an explosive temper,” Martinez said.

That kind of reasoning has long been discredited by research on why women stay in intimate relationships even if they are abused. In a recent case in Southern California, Los Angeles County Superior Court Judge Michael J. Convey said studies and case law helped him decide in favor of a woman seeking a restraining order against her abuser. “Many studies have shown and cases have addressed situations where parties continue to have, for example, sexual relations after the breakup, or after a restraining order was already in place.”

According to the U.S. Centers for Disease Control and Prevention, most women will, on average, attempt to leave an abusive relationship between five and seven times before successfully and permanently doing so.

Salcido told the court that Albert blew up again in March 2021, after he and Kimberly had signed a “civility agreement” outlining the terms of the divorce that Kimberly had long wanted. Soon after, Kimberly told him he could no longer share their bed, and he should move out.

“He lost his temper for whatever reason,” Salcido told the court, and he threw a clipboard he was holding at the headboard of the bed where Kimberly was sitting. According to Kimberly’s testimony, the clipboard ricocheted and hit her in the back of the head, causing a concussion.

“She was taken to the hospital that day by her son, and she has been seeing a therapist ever since to deal with the PTSD and the anxiety that it created,” Salcido told the court.

Martinez questioned that claim, saying she has “absolutely no medical records to show that she had an exam that day by a doctor, and that she had a CT scan that day or in the future.”

She argued that Albert lashed out only when Kimberly “threatened,” soon after signing the agreement, to take their son to Menifee, a city one hour away from Chula Vista in San Diego County, where they were living. Kimberly said in an interview that she owned a house there. Martinez said Kimberly’s motive in seeking a restraining order was to get more child support and get Albert to pay her attorney’s fees. The two are also entangled in a custody battle over their 4-year-old child.

Women’s rights advocates would say that the abuse Kimberly said she experienced in her marriage is not uncommon in families of law officials. As the National Center for Women and Policing noted, “Two studies have found thatat least 40 percent of police officer families experience domestic violence, in contrast to 10 percent of families in the general population.”

Anna Lvovsky, an assistant professor at Harvard Law School, where she teaches the history of policing and criminal law, wrote in an article published in the June 2017 issue of the Harvard Law Review about the “judiciary’s undue willingness to accept what the police say as gospel truth.” Kimberly said she often wonders how fair a judgment she received from Mangione.

She decided not to appeal the denial of the restraining order, which she could have done within six months of the ruling, said Julie Saffren, who practiced family law in Santa Clara County for 15 years and is currently an adjunct professor at Santa Clara University School of Law, where she teaches a course on domestic violence. Kimberly said she let the deadline expire because she did not have the money to pursue that option. “I have spent $50,000 on this case so far,” she said.

Just last month, a judge denied her the child support she had sought from Albert, saying she was earning as much as he was.

A pattern of misogyny

A 2019 study by Joan Meier, a law professor and director of the National Family Law Violence Center at George Washington University, shows an apparent “systemic gender bias against women” in U.S. family courts.

Her study found that women often grapple with the high cost of legal help and are penalized by courts that favor fathers. Women risk losing custody if they accuse men of abusive behavior toward their children. Family courts do not provide public defenders because the two parties in the controversy are individuals on a relatively equal footing, unlike in a criminal court, where it is a state versus the defendant. So women with little financial means are sometimes forced to act as their own attorneys.

“Mothers who allege abuse are losing custody at disturbing rates, and children often face grave consequences when they are forced to return to their allegedly abusive parent,” Meier said. 

Some advocates for domestic violence victims say the courts have become a venue for more abuse. After hours of preparing for court, survivors are likely to be re-traumatized there, especially if the judge is not sensitive to interpersonal issues and traditional gender dynamics.

Kimberly Abutin would be the first to agree.

“The system is horrible and disgusting and I was mistreated by it,” she said in a recent interview. “What is it going to take before an abused woman can get help? Should somebody get killed before she can get justice?”

Women’s rights advocates underscore Kimberly’s concerns.  According to a 2017 CDC report, the most recent available, more than half of women slain in the U.S. are killed by intimate partners.

“Too many are forced to go through our courts without legal representation and the expert support needed to have a fair chance at justice,” said Dr. Aleese Moore-Orbih, executive director of the California Partnership to End Domestic Violence. “That’s why legal assistance for survivors is a key funding priority for the partnership at both the state and federal levels.”

Mistrust of the system

Feelings of structural disadvantage in the courts can drive victims of abuse away from pursuing their legal rights. Such is the story of one woman living in Southern California, the African American mother of an 8-year-old.

The former actress, currently working as a wine salesperson, spoke about her case on the condition she not be identified by name. Here, we’ll call her Iris.

She said she cycled in and out of Southern California courts, making at least 80 appearances there over seven years, running through a number of attorneys and sometimes even representing herself, all to protect herself and the child from the father who, she alleges, has a documented history of abuse.

The child was born after what she described as a “brief entanglement” that lasted all of 97 days. He represented himself as a pharmaceutical sales representative. He showed up on their first date in a sports car. But “from the first moment there were red flags,” Iris said, adding: “I thought I was to blame.’’ He would keep deriding her passion for acting and gaslighting her. “He would tell me I was too old to pursue a Halle Berry, and kept comparing me to other women in the industry.” He would also “initiate an argument and then record my response.”

Three months into what she described as a coercively controlled relationship, Iris, then 41, found out she was pregnant. “Oh, so now you are carrying my child,” was how her ex reacted, she said. She recalled him also telling her, “It’s an inopportune time to get pregnant,” and encouraging her to terminate the pregnancy.

But Iris decided to continue with the pregnancy, even though she had made up her mind to end the relationship. Throughout her pregnancy, she said, he refused to assist in prenatal care. “He felt that because I was having his child he could control me,” Iris said. Eventually, she gave up acting and started working as a paralegal. By that point, he was regularly parking and loitering outside her job and home, as well as calling her repeatedly, including during working hours.

Initially, “I didn’t know I was being abused,” Iris said. “I had no black eye or broken bones.” She said she just thought he had a personality disorder.

When their child was born, Iris said her ex did not want to sign the birth certificate, but at the same time filed for sole custody when the child was 2 weeks old. The parents have 50-50 custody.

“Abusers will sue for custody because they don’t want to pay child support,” said Lisa Aronson Fontes, author of “Invisible Chains: Overcoming Coercive Control in Your Intimate Relationship.”

According to Iris, “there were no less than 27 hearings related to his requests for a reduction in child support,” and it still has not been resolved. The court calculated in October 2020 that the child’s father owed her more than $79,000 in child support, attorney fees and accrued interest.

Iris claimed he ceaselessly engaged in so-called litigation abuse, where an abusive partner tries to retain power and control over the victim by misusing the court system against the victim, according to the nonprofit WomensLaw.org, a project of the National Network to End Domestic Violence.

Court documents showed her ex filed repeated petitions and motions requesting multiple adjournments or violating the judge’s orders by not paying the right amount in child support.  Or he would take repeated action to force her to come to court. These actions are similar to those described by WomensLaw as litigation abuse.

“The court allowed him to come in and create utter chaos in my life,” she said.

Iris said the protracted legal fights forced her to spend so many hours in court and away from work that it ruined her financially. Fearing that he still might be stalking her, she said she has changed her telephone number five times over the last few years. She said she has been forced to learn how to advocate for herself, something she is planning to do at the next custody payment hearing.

“I have lived my entire life fearing he can harm my child,” Iris said. She said she has been diagnosed with depression and PTSD.

“If you are constantly feeling you are living under siege, it harms your body and mind,” noted Chitra Raghavan, a professor in the psychology department at the John Jay College of Criminal Justice in New York and the director of its forensic mental health counseling program. “It leaves you no longer feeling human.”

Like with many domestic abuse survivors, Iris said she has lost faith in the justice system. Too many judges have discredited her. “The overall issue that faces litigants like myself is patriarchy,” she said. “If you are not male and white, then you are at a severe disadvantage.”

Iris said she did not want to even try seeking legal remedies from California’s coercive control law because one of her former attorneys told her it would be futile. Besides, her experiences have led her to believe that women like her risk facing more trauma in courtrooms.  “Our legal system has become a springboard for abuse,” Iris said, noting that she is on her “third trial judge and technically, third trial.”

Asked about Iris’ comments, Pallavi Dhawan, director of Domestic Violence Policy for the Los Angeles City Attorney’s Office, who helped craft the coercive control law, said they echoed “the documented trend in family courts where judges will sometimes interpret allegations of domestic violence in a manner unfavorable to the alleged victim.” But she noted that each survivor would have her own experience.

The bigger picture is that without a culture of understanding within the courts, systemic bias will continue, regardless of the laws on the books, said Moore-Orbih, the domestic violence activist.

“Gender and racial bias,” she said, “are significant barriers to ensure that survivors are believed and therefore treated fairly.”

This article is part of a series on California’s coercive control law, underwritten by a Domestic Violence Impact Reporting Fund grant from the Annenberg Center for Health Journalism at the University of Southern California.

The post Expanding View of Domestic Violence Gives Survivors New Tool, but Unsympathetic Judges Remain an Obstacle appeared first on San Francisco Public Press.

The emotional abuse had been going on for years, according to Blanca. She said he constantly denigrated her appearance and Spanish-accented English. He refused to put her and their two sons on the health insurance provided by his job as a mechanic, telling her to buy her own. He rejected her pleas to let her write checks and have access to their joint bank account. He made her pay all the rent on the Bay Area home they shared with his relatives.

Experts in sociology and family law have a name for the kind of behavior Blanca experienced: coercive control. It refers to the way people — usually men — nonviolently manipulate their intimate partners into doing their bidding. But while this type of abuse by itself leaves no telltale signs such as black eyes, broken bones or marks on the victim’s arms, it can be a steppingstone to physical violence, research shows.

Coercive control is under-reported, much like all abuse. Often, it is hidden in plain sight.

“I began to feel worthless and ugly,” Blanca said. “I began to feel depressed.”

As with many victims, it is hard to tell Blanca’s story completely. She spoke on the condition that we not reveal her last name and that her husband not be contacted for comment, for the safety of her family. This reporter has been one of her housekeeping clients since 2017.

Blanca said she was aware that leaving an abuser was the most dangerous time for a woman.

After decades of damage to her self-esteem, Blanca has finally severed ties. Under a California law passed in 2020, the government is finally offering some acknowledgment of the harm she experienced. But the reform applies only in civil court — and can be used only in limited types of cases.

Recognizing the damage coercive control can cause

Coercive control encompasses a broad range of behaviors that cause emotional distress, according to social scientists. Common practices include isolating someone from friends, relatives or other support. Depriving them of basic necessities. Controlling communications, daily behavior, finances and economic resources. It could also include gaslighting — making victims question their sanity.

At its core, “coercive control is a power imbalance obtained through cruel, forceful and manipulative means,” said Chitra Raghavan, a forensic psychologist at the John Jay College of Criminal Justice in New York. Raghavan is often called by the courts as an expert witness in cases of intimate partner violence, sex trafficking and trauma.

In the U.S., more than 1 in 3 women, and 1 in 4 men, will experience physical violence, rape or stalking by an intimate partner, according to the National Domestic Violence Hotline.

There are no federal laws addressing coercive control in this country. But as academic researchers and advocates worldwide are calling attention to these behaviors, a handful of states have recently taken action to make them illegal.

In 2020, the California Legislature revised the state’s Family Code to include coercive control as evidence of domestic violence, expanding the definition enshrined in the state’s 1993 Domestic Violence Prevention Act. The statute defines coercive control as “a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.”

California acted one month after Hawaii added coercive control to its definition. In Hawaii, though, it is incorporated into criminal statutes. When someone is convicted of coercive control that person is required to participate in an intervention program and spend two days in jail, said Nanci Kreidman, chief executive officer of the Domestic Violence Action Center in Honolulu.

Last June, Connecticut passed a similar law. But there, the bill also establishes a grant program to provide low-income victims with legal representation when applying for a restraining order. Bills in New York, South Carolina and Maryland are pending.

“The fact that so many different jurisdictions want to codify coercive control into law means that it is recognizable as a harm for which there should be a legal remedy,” said Julie Saffren, who practiced family law in Santa Clara County until 2019, and who now teaches a course on domestic violence at Santa Clara University School of Law as an adjunct professor.

In California, if a court finds a person has committed coercive control, the petitioner can get a restraining order against the abuser in family court. “The law can also be used separately when the victim is seeking child custody and the court is making a finding about the best interest of the child,” said Pallavi Dhawan, director of domestic violence policy and prevention for the Los Angeles’ City Attorney’s office, the bill’s sponsor.

“In other words, a court could make a finding of domestic violence, including coercive control, in the absence of an existing restraining order,” Saffren said. “This is because, courts recognize that domestic violence, in all its forms, is detrimental to children.”

A violation of a restraining order, whether or not it comes from family court, is a crime. Once served with one, the restrained person cannot own or purchase firearms as long as the order is in force. The recent fatal shooting of his three children and a friend at a Sacramento-area church by a father who had a restraining order slapped on him shows that there are many holes in enforcing this provision.

Scotland leads the way

The coercive control legislation was introduced by state Sen. Susan Rubio, herself a domestic abuse survivor. She said in an interview that she was propelled to get the law passed because of her own experience and after hearing the experiences of many women.

“I dealt with domestic abuse myself and I know what survivors go through,” she said, adding: “It was time people recognized that domestic violence is more than just physical abuse. This bill protects survivors of domestic violence by making their cases harder to dismiss and easier to prosecute. It will also empower victims to come forward.”

Dhawan, who worked closely with Rubio in crafting the legislation, said the bill initially faced resistance in the legal and women’s rights communities, with some abuse survivors wanting to make coercive control a crime.

Rubio said she decided against criminalizing it because as it was, the issue was “foreign to some of my colleagues and making it a criminal offense would have stalled the bill.”

Women’s advocates also point out that a criminal response is not the most effective way to get justice for survivors. They just want it to end.

“Criminal response creates barriers to reporting,” said Shiwali Patel, who advocates for policy and culture change for women and girls at the National Women’s Law Center near Washington, D.C. “If it’s a civil matter, the survivor will have more control over the process.”

In 2007, Dr. Evan Stark authored a book: “Coercive Control: How Men Entrap Women in Personal Life.” A forensic social worker in Connecticut and founder of one of the first battered women’s shelters in the United States, Stark has helped shape law and policy across the globe, in both the civil and criminal arenas.

In an interview, Stark called coercive control “oppressive behavior grounded in gender-based privilege” that is “typically ongoing rather than episodic. Its effects are cumulative rather than incident-specific.”

In 2019, Stark helped Scotland enact comprehensive laws criminalizing coercive control. Today, that country’s law is considered the gold standard, he said. Even before the law was enacted, thousands of police officers and support staff received training on how to enforce it, thanks to the government allocating 825,000 pounds in funding to the national police force of Scotland.

Marsha Scott, chief executive of Scottish Women’s Aid, a nonprofit that helps protect women’s financial independence, who helped craft the law, said that the bill’s supporters realized that to succeed, enforcers had to be trained beforehand. In the first year of its implementation, the government pursued about 1,000 cases and secured an 80 percent conviction rate, she said.

California’s coercive control bill didn’t have an “outreach and education component,” Rubio said. Nor did it have a funding provision, she said.

There is no available data that shows how many survivors have benefited from the law because there are no reporting requirements, Dhawan said.

Born of patriarchy

A nearly 30-year U.S. resident born in Mexico, “Blanca fit the textbook definition of a coercively controlled person,” said her attorney, Sara MacDwyer, in an interview three months before she recently died.

Blanca, 50, said that at first her husband, a U.S. citizen of Mexican descent, seemed nice and caring. She considered his financial control of her something to be expected because he came from a society organized in a patriarchal structure, a culture that tells men it was normal for them to dominate their wives. It was similar to how, in Blanca’s childhood, her father treated her mother, except that he was also physically abusive to both his wife and daughter.

But within months after Blanca was married, her husband began to belittle her. The insults became more personal after she confronted him about an affair he was having with another woman. He would tell Blanca that he hated her and loved his mistress because unlike Blanca she took good care of him. “Your hands are coarse and rough,” he would tell her. “You have chicken legs.” “You have a masculine build and stretch marks on your stomach.”

MacDwyer said “the barrage of malicious comments” psychologically harmed Blanca. “He made her feel unattractive, so how could she have any self-esteem?”

But it was his actions, not just his words that made the relationship coercive. Blanca had no control over her finances, even though the self-employed woman was making as much money cleaning houses as her husband did as a mechanic.

He insisted she pay the entire rent for the four-bedroom house they shared with their sons, his mother and his brother in Contra Costa County. She did not complain when he said he expected her to pay for utilities, groceries and other household expenses.

“But I felt bound all the time,” Blanca said, crossing her wrists in front of her and tearing up.

Particularly humiliating, Blanca said, was when her husband had his new girlfriend call her to tell her she had only herself to blame. Blaming the victim is a tactic many abusers use to maintain power and control, according to MacDwyer.  

Saffren drew upon her years of experience representing abused women in family court. “In mental health terms, I think it’s a form of projection where it is unbearable for the abuser to acknowledge their behavior because at some deep level they know it’s wrong, so they project outwardly to their partner to make them responsible; that’s how they reconcile their self-view with their violent behavior.”

Last fall, Blanca filed for divorce, citing irreconcilable differences. Court documents show that her husband has also filed, citing the same reason. Blanca said she was unlikely to get financial support from him because he has filed for bankruptcy.

Asked why she did not leave her husband sooner, Blanca said she could not imagine a life without him.

“I would always keep excusing his behavior,” she said, frowning. After a pause, she continued. “Now, while I am going through divorce, I wonder why.”

This article is part of a series on California’s coercive control law, underwritten by a Domestic Violence Impact Reporting Fund grant from the Annenberg Center for Health Journalism at the University of Southern California.

The post How California’s Coercive Control Law Could Help Women Manipulated by Partners appeared first on San Francisco Public Press.

Barring an eleventh-hour postponement by lawmakers (not out of the question, given three previous last-minute extensions), California’s eviction protections expire June 30. Among those vulnerable to being forced from their homes are more than 135,000 tenants whose applications for rent relief have been denied, and thousands more whose applications may be denied in the future or not processed by the time protections are lifted.

On top of that, tenants who didn’t submit requests for relief before the deadline and those struggling to pay rent due after March 31, the date the state stopped accepting applications, have been vulnerable to eviction since then because of the limited scope of Assembly Bill 2179. The bill, passed on March 31, extended eviction protections, but only for some tenants.

San Francisco is now seeing the beginning of an eviction wave of tenants who lost protections after the program was closed or are otherwise behind on rent, warns a tenants’ rights lawyer.

“We’re starting to see numbers escalate in the courts, getting closer to pre-COVID levels,” said Ora Prochovnik, director of litigation and policy at the Eviction Defense Collaborative. “And we’re struggling to keep up with it.”

The organization is one of the primary groups in San Francisco representing tenants in eviction lawsuits and tracks the requests it receives from tenants seeking legal aid.

“We’re just in some uncharted waters right now,” said Tim Thomas, research director at University of California at Berkeley’s Urban Displacement Project, regarding how the expiration of California eviction protections will play out.

Evictions are likely to rise after July 1, as landlords who have been waiting for protections to end begin to file the legal paperwork to eject renters, Thomas said, referencing trends he’s observed across the country. He added that lawyers who represent tenants will likely be overburdened with cases.

Rent relief from the California program was intended to aid thousands of tenants at risk of losing their homes for non-payment of rent. More than 15,000 households in San Francisco have received $177.3 million in assistance, according to data from state and local programs. However, those whose state applications were rejected or remain unprocessed as of July 1 will be vulnerable to eviction.

Although the state is scrambling to process all its applications by July 1, as many as 33,000 applicants may still be waiting for help when the last protections expire, according to a report by three nonprofit housing research groups. The California Department of Housing and Community Development disagreed with these projections, citing week-to-week progress updates that show the number of applications moving through the eligibility and approval process. The program will have made a determination for all first-time payment applicants by June 30, said Alicia Murillo, a communications specialist with the department.

Despite disagreements around specific projections, housing and equity advocates expressed concerns regarding an eviction wave.

“We should be worrying about it,” said Thomas. “On a national scale a lot of areas that have seen moratoriums ending have been seeing very large increases in eviction.”

Nearly 100,000 households that are behind on rent or mortgage payments in the Bay Area said that they are likely to be evicted or foreclosed upon in the next 60 days, according to the US Census Bureau’s most recent Household Pulse Survey.

Thomas predicts that once protections expire, California will see a slow rise in evictions that gains steam over the next few months. He noted that evictions tend to be seasonal, and that rates often pick up in July.

“There’s something about around that period of time that it just really picks up a lot,” he said.

Nailing down evictions data is “incredibly complex and tricky,” Thomas noted. Although some data is accessible, it’s often incomplete and may not fully reflect the reality of how many people are being forced out of their homes. Landlords are not required to report three-day notices for non-payment of rent, so the number of notices recorded likely represent only a fraction of the total, according to the San Francisco Rent Board. Scheduled evictions by the Sheriff’s Department do not capture the large number of tenants who may be intimidated into leaving by their landlord at various stages of this process, Thomas said.

Though California’s eviction moratorium ended last September and the state’s rent relief program stopped accepting applications in March, tenants who applied to the program and are awaiting a decision or payment are protected from eviction for pre-April rent debt until June 30. And even if they haven’t received the funds by that date, tenants approved by the program can block evictions by providing documentation of their approval from the program.

For many, the only thing legally staving off an eviction is their pending application. But once an application is denied, a tenant can be evicted — and the number of denials is on the rise.

Denials and shadow debt

As the state has stepped up its pace in processing requests in recent weeks, denials have jumped, further increasing the number of tenants vulnerable to eviction.

The share of San Francisco applicants whose applications were denied nearly doubled from April 13 to June 16, accounting for 29% of requests, up from about 15% seven weeks earlier. That put the number of applications denied at over 6,300 out of over 21,400 total applications. A tenant can appeal a denial up to 30 days after it has been issued. If a tenant loses their appeal, or does not appeal within the time frame, they can be evicted — even before June 30.

An applicant can be denied for not meeting qualifications, such as exceeding 80 percent of the area’s median income, or for being non-responsive when the state program attempts to communicate with them regarding their application. But a quirk of modern technology has put some applicants in the non-responsive category without them even realizing it, said Antonina Real, a tenant counselor at the South of Market Community Action Network.

Calls from the state program showed up as “Scam Likely” on the phones of some tenants she works with, she said, so tenants don’t pick up or may not call back. This delays the process and can result in denial if the applicant doesn’t eventually respond to the program. When asked about this issue by the Public Press, Murillo said it was the first time the “Scam Likely” calls had been mentioned to the Office of Housing and Community Development.

On top of technological hurdles, tenants with so-called shadow debt, acquired by borrowing from credit card companies, friends, family or even loan sharks to cover overdue rent, can no longer get help from the program, she said. Though the program never officially covered shadow debt, applicants used to be able to apply for up to three months of future rent and use other income to pay off their debt, a spokesperson for the program, Russ Heimerich previously told the Public Press.  

In one case, when the tenant’s application was marked by the state as “withdrawn,” Real thought it was an error because the tenant — who had borrowed from a loan shark and credit cards to pay rent — had not withdrawn the application. Real called a case manager at the state program, who said that the program does not reimburse individuals who took on shadow debt to pay rent.

A July report by the University of Pennsylvania found that Asian American and Pacific Islander households have the highest average shadow debt in California, borrowing almost a third more than white households, and double what Black households borrowed. Previous Public Press reporting highlighted potential cultural reasons why certain demographic groups, such as Chinese tenants, may take on shadow debt at higher rates.

“The whole Chinese community shares the same value: They don’t like to owe anything” to the landlord, Rita Lui, a housing counselor at the Chinatown Community Development Center, told the Public Press in October.

Another reason these communities may take on higher shadow debt is because they didn’t know about the existence of the state’s rent relief program in the first place or were unable to apply due to language barriers. Rent-burdened households where English is not the primary language spoken are underrepresented in the state’s rent relief application pool by about 32 percent, according to the National Equity Atlas rental assistance dashboard.

This is one reason why the state program is facing a lawsuit for discrimination against people with disabilities and non-English speakers due to accessibility issues with the application portal. Murillo from the California Office of Housing and Community Development declined to comment on the lawsuit, saying the litigation is still pending, but noted that the state’s program has assisted more than 300,000 low-income households with $3.6 billion in payments to prevent eviction.

“This program was designed to be a temporary support and we stand by the work to date that kept Californians housed during the COVID-19 pandemic,” Murillo said.

San Francisco tries to fill the gap

To provide relief for households who were unable to get assistance from the state program for various reasons, the city is stepping in with its own program.

In response to the state rental assistance program’s closure, the Mayor’s Office of Housing and Community Development reopened San Francisco’s rent relief program on April 1 and has since made $2.6 million in relief payments to 480 of the 3,200 households that have applied. Close to one in three applicants reported taking on shadow debt to pay rent or utility bills, and 27% said they had already received an eviction notice when they submitted their application. While the relief is critical, it is missing legal protections to go along with it, and processing aid requests takes time.

“There’s a whole group of folks who have post-April 1 debt that will never be protected by these laws because they didn’t apply pre-April 1,” Prochovnik said.

The absence of local protections isn’t for lack of trying. State lawmakers on March 31 voided protections unanimously passed by the Board of Supervisors earlier that month. The preemption on local moratoria will remain in effect until next month. So far, no new legislation has been introduced to reinstate a local moratorium.

The city’s eviction defense system, rent relief program and Tenant Right to Counsel program are closely coordinating their services, said Audrey Abadilla, a spokesperson for the Mayor’s Office of Housing and Community Development. During the eviction process, the programs cross-reference pending assistance from the state program and will intervene with rental assistance not covered by the state program.

The difficulty of trying to avoid eviction

Lara Moon Mertens, 42, faced several complications getting much-needed relief and preventing eviction during the pandemic.

A tattoo artist who lost most of her income during the pandemic as tattoo shops closed down, Moon Mertens was able to make ends meet for some time using unemployment insurance. But when the checks ran out in October, she became unable to pay her rent.

Though her landlord initially cooperated as she submitted the required documents for her application, eventually he grew impatient, she said.

“He kept saying ‘It’s over,’” Moon Mertens said, referencing text messages from her landlord regarding her tenancy. He attempted to evict her in March, but she was able to stop the eviction with the help of Open Door Legal and the legal protections provided by her pending application.

Because the state program does not offer rental assistance for rent due after March, Moon Mertens turned to the Eviction Defense Collaborative for April and May rent. But eventually her state application was denied, and though she is appealing that decision, she is now facing eviction for unpaid rent due in June.

“I had to investigate pretty shrewdly to find out that I was denied in the first place, but also why I was denied,” she said, noting that in previous phone calls with the state program she had been told that her application was in good standing.

Though she said the state program cited inaccuracy in paperwork as the reason for her denial, Moon Mertens suspects that the true reason may be that her unit is zoned as a single residence unit but is being rented out to six different people who all applied for relief.

While she awaits the decision on her appeal and works to fight off the newest eviction case against her, she has signed up for more legal assistance and relief.

“I haven’t been in the best of states,” Moon Mertens said through tears. “But overall, I’m really, really happy to have the resources that San Francisco does, because I know other cities just don’t.”

Eviction, homelessness and equitable recovery

One of the key resources San Francisco tenants do have, according to Melissa Jones, executive director of Bay Area Regional Health Inequities Initiative, is the right to counsel in eviction cases. This is one of the important steps that Bay Area counties can take in the wake of the pandemic to stem the tide of evictions.

On the precipice of a wave of displacement, researchers and advocates emphasized the connection between eviction, housing affordability and homelessness, as well as the importance of rethinking approaches to poverty and equity.

“My concern is that we’re going to see out of all this, like pre to the pandemic, we’re going to see much higher rate of homelessness than we ever saw before,” said Thomas of UC Berkeley. “To fix all this, we really need to reshape and rethink how we think about poverty in America, how we think about housing in America and basic necessities in America.” He emphasized what many Bay Area advocates focused on the housing affordability crisis call the three P’s of housing: preservation of existing affordable housing, affordable housing production and tenant protections.

“It’s so much less expensive for the community and so much less damaging for the individual to prevent an eviction and move into homelessness than to try to move people out of homelessness later,” Jones said.

She highlighted the importance of thinking of this moment as a “global recovery moment” wherein we focus on communities that have borne the brunt of the pandemic’s hardships, especially Black residents of the Bay Area.

Data on evictions and rent relief show the pandemic has had disparate impacts on Black tenants. In California, 20% of applicants to the state rental assistance program facing eviction are Black, despite making up only 6.5% of the population.

Prochovnik said that the Eviction Defense Collaborative has historically observed a disproportionate share of requests for assistance regarding evictions from communities of color, tenants with disabilities and elderly tenants compared to city demographics.

For these reasons, Jones encouraged action to support a more strategic, equitable recovery for communities of color than we saw after the 2008 crash and recession.

“There is real opportunity and the resources that are out there,” she said, citing California’s $97 billion budget surplus, the bipartisan infrastructure package and the American Rescue Plan. “It’s up to us to focus, design and plan for an equitable recovery and to learn the lessons from that to start to make standard practices that require it.”

The post Tens of Thousands Vulnerable to Eviction as California Protections Poised to End appeared first on San Francisco Public Press.

In a unanimous decision issued Friday, a three-judge panel of the 1st District Court of Appeal in San Francisco said the commission’s lengthy and open-ended administrative procedures violate the strict timelines of the California Public Records Act.

The ruling could bring more accountability to the commission, which has faced criticism of excessive secrecy and ineffectiveness, advocates said. It regulates corporations ranging from utilities to ride-hailing services.

The commission had claimed that a century-old law — intended to prevent abusive litigation by railroad barons fighting regulations — required people requesting records to undergo a convoluted administrative process before they could sue the agency to compel the release of public records.

Citing that section of the Public Utilities Code, the agency over the years has blocked requests for records on its handling of disasters such as Pacific Gas & Electric Co.’s Camp fire, the failed San Onofre nuclear power plant and thousands of collisions and assaults on Uber and Lyft rides.

But the court roundly rejected the agency’s argument, holding that the procedures set forth in the utilities code “do not apply to the PRA,” or Public Records Act.

“[T]he procedural scheme, and specifically the rehearing process, set forth in the Public Utilities Code is not only entirely different than, it is at odds with, the procedural provisions of the PRA and the Legislature’s intent in enacting them,” the court said.

More widely, the court said “any” administrative process that state and local agencies adopt to handle records requests “must comply with the language and purpose of the PRA.” If agencies fail to complete their internal reviews within the deadlines of the records act, it said, requesters may seek court review without further delay.

But the court also held that the specific records requested in this case — correspondence between the commission and the governor’s office concerning the devastating 2018 Camp fire — were confidential and need not be released.

Citing prior holdings on similar records, the court said releasing the governor’s correspondence with the commission would interfere with the ability of government officials to speak frankly.

How the Public Utilities Commission circumvents the California Public Records Act

David Snyder, executive director of the First Amendment Coalition, a nonpartisan organization that advocates for government transparency, said that although the court found the governor’s correspondence to be confidential, the ruling was an important advance.

“The decision is a real win for transparency,” said Snyder, whose organization joined with the Associated Press and the Center for Investigative Reporting in supporting the lawsuit. They had filed a brief in the case that said the commission has a history of “unlawful delays” in responding to requests.

“The court has made clear that an agency’s administrative procedures can’t trump the Public Records Act, and that an agency like the PUC cannot indefinitely delay processing a public records request,” Snyder said.

Terrie Prosper, the commission’s director of news and outreach, and Christofer Nolan, a lawyer representing the agency in the case, did not respond to emails seeking comment.

Steve Zansberg, the Denver attorney who filed the lawsuit on behalf of television station ABC-10 in Sacramento and its reporter Brandon Rittiman, said his clients were gratified that the decision will make it easier for people to seek judicial review in cases where the agency delays or denies their requests.

“No one should have to wait, as did my clients, for months and months to be able to ask a court to review that agency’s decision to deny records access,” he said in a statement.

As the court put it, “The delay that occurred here was egregious by any measure.”

On Nov. 19, 2020, Rittiman requested copies of communications between Marybel Batjer, president of the commission at the time, and Gov. Gavin Newsom’s office concerning the Camp fire. The Butte County blaze destroyed 18,000 structures and killed at least 85 people. PG&E pleaded guilty to 84 counts of involuntary manslaughter and one of causing the fire.

Rittiman was investigating why the agency waived a $200-million fine against PG&E and whether the governor’s office influenced that decision.

The agency said the records were confidential; Rittiman filed an administrative appeal. When seven months had passed and the agency had made no decision, Rittiman sued, the court noted.

The agency then sought to get his case dismissed because he had not completed its administrative process, but the state Supreme Court ordered a review.

The commission has long maintained that those requesting records could not sue it for failing to comply with the Public Records Act until they underwent two internal administrative appeals of their claim. As its legal basis, the agency cited the 100-year-old law intended to prevent abusive litigation by railroad interests.

But as the lawsuit noted, the agency’s appeals system provided no deadline, allowing it to indefinitely delay its decisions on whether to release records, despite the Act’s requirement that agencies decide within 24 days. In this way, the agency prevented people from having a court independently review their cases, even as their requests languished at the agency.

Enacted in 1968, the California Public Records Act is modeled on the federal Freedom of Information Act. The state law declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right.”

It says all state agencies “shall” determine whether the requested records are releasable within 24 days, immediately notify the requester and “promptly” release them. If an agency withholds records, it says, the requester may seek court review “at the earliest possible time.”

Voters reinforced the law in 2004 when they overwhelmingly passed Proposition 59, which embedded similar words in the state Constitution.

The commission, too, has roots in a voter-backed constitutional amendment. The agency was created in 1879 as the Railroad Commission but was corrupted by the Southern Pacific Railroad, says a history written by commission staff. In 1911, voters following Gov. Hiram Johnson’s reform platform granted the agency greater autonomy with the intent of insulating it from undue influences. Its authority was extended to other utilities, and in 1946 it was renamed.

The agency is led by five commissioners appointed by the governor to six-year terms. They oversee 1,402 employees and a $1.1-billion budget.

The commission’s policy on records requests — known as General Order 66-D — says requesters must complete the internal administrative reviews before they can seek judicial review of the agency’s withholding of records.

But the court concluded that just as the Legislature had used its “plenary” power to pass the public utilities code of the early 20th century, it used the same sweeping authority in 1968 to pass the records act, which it clearly intended to apply to the commission.

The court declared that “the PRA fixes the bounds” of the commission’s authority to adopt internal procedures for records requests. The agency’s open-ended process, it said, “cannot be squared” with the records act’s much tighter timeframe.

“In short, the PRA calls for the handling of record requests and the resolution of disputes over such requests with alacrity,” the panel said, and permits requesters to sue to enforce the act.

“The PUC has for so many years operated in a black box,” said the First Amendment Coalition’s Snyder. “The public has not had as much access to its inner workings. Hopefully this will open the door, at least a bit, to greater transparency and, thus, greater accountability for the Public Utilities Commission.”

For more coverage on this topic, see Ride Hailing’s Dark Data. This story was produced in partnership with the McGraw Center for Business Journalism at the Craig Newmark Graduate School of Journalism at the City University of New York. Support also came from the Fund for Investigative Journalism.

The post Court Says California Utilities Commission Must Obey State Public Records Act appeared first on San Francisco Public Press.

Applying century-old laws meant to fight corruption, the commission has effectively limited court enforcement of the state’s public records act. But a state appeals court on May 3 is hearing a lawsuit challenging that practice and could bring more transparency to the commission. 

David Snyder, executive director of the First Amendment Coalition, a nonpartisan organization dedicated to advancing government transparency that is supporting the lawsuit, said it’s “absolutely crucial” that people have timely court review of agency denials of their requests for information.

“Administrative agencies should not and cannot have the final say on whether the Public Records Act has been followed,” said Snyder, a lawyer and former journalist. “That’s the proverbial fox guarding the henhouse.”

Citing special powers granted no other state agency, the commission has obstructed requests for records on its handling of catastrophes such as Pacific Gas & Electric Co.’s Camp Fire, the failed San Onofre nuclear power plant and thousands of collisions and assaults on Uber and Lyft rides, a San Francisco Public Press review of court cases and state documents found.

Those powers were intended to fight the corrupting influence of the railroad barons, but the commission has deployed them to undercut the California Public Records Act, meant to promote government transparency and accountability, court records show.

The Legislature and the governor’s office have not resolved the conflict between these historic reforms, legislative records show, despite incidents revealing that secrecy at the agency has contributed to inefficiency and corruption.

Terrie Prosper, the commission’s director of news and outreach, did not respond to several requests for comment for this story. 

The agency has denied that its procedures violate the public records act’s requirements that it release records promptly. In adopting its current policy in 2018, it called such allegations “simply speculative” and cited “our longstanding practices supporting disclosure and our progressive development of rules that will promote public access to records in our possession.”

But over the objections of the agency’s lawyers, the state Supreme Court in November reinstated a lawsuit challenging its refusal to release records concerning communications between Gov. Gavin Newsom’s office and the commission about the 2018 Camp Fire — the deadliest wildfire in state history — and the agency’s decision to waive a $200 million penalty against PG&E.

That case, to be heard in the state’s First District Court of Appeal, highlights the hurdles facing anyone seeking records from the powerful agency, which regulates power, water, telephone, transportation and other utilities that affect the lives of all Californians. It is responsible for ensuring that utility services are fair and safe.

The lawsuit was brought by television station ABC-10 in Sacramento and its reporter Brandon Rittiman, whose award-winning coverage of the Camp Fire has garnered national attention.

Steve Zansberg, the station’s Denver-based attorney, said in court records that the commission has a “practice of imposing unreasonable and unlawful roadblocks” to public records.

According to Zansberg, the case poses a fundamental question: Is the commission above the state law that requires all agencies to promptly release records about how they conduct public business?

“We’re trying to hold the PUC accountable,” he said in an interview. “You can’t do that if you don’t have access to the records that show what’s going on behind the scenes.”

Christofer Nolan, one of the lawyers representing the agency in the case, did not respond to an email seeking comment. 

The lawsuit has drawn support from the First Amendment Coalition, based in San Rafael; the Associated Press; and the Center for Investigative Reporting, the nation’s oldest nonprofit investigative newsroom.

Matthew Cate, the Washington, D.C., attorney who filed a brief on behalf of the organizations, wrote that the commission has a history of “unlawful delays” in responding to requests and that its practices could encourage other agencies to erect similar obstacles to public information.

“The PUC has created a set of procedures completely contrary to the letter and spirit of the CPRA and the constitutional right of access to public records,” Cate wrote, referring to the state public records act.

A gauntlet of obstacles

A review of court cases, commission filings, legislative history and interviews with attorneys, in addition to this reporter’s experience as a requester, found a gauntlet of obstacles that disadvantage requesters and favor agency denials:

• The agency can take months or years to release records. Between Jan. 1, 2017 and April 4, 2022, the agency received 3,115 requests and took an average of 58 days to close them, statistics it released under the public records act show. Five requests submitted by the Public Press for records concerning thousands of ride-hailing safety incidents have taken between six and 27 months.
• The commission tends to interpret the scope of requested records narrowly, while applying exemptions from disclosure broadly, effectively reducing public access to information.
• With other state agencies, a person may directly seek independent court review of a denied request. But under commission rules, they must first file an administrative appeal and then apply for a rehearing, a far more cumbersome and lengthy process.
• The commission requires requesters to appeal within 10 days or lose their right to challenge its denial, compared with 90 days allowed under the federal Freedom of Information Act.
• Agency rules provide no deadline for the commission to resolve appeals or rehearings, and the agency asserts that requesters may not seek court review until it has, effectively holding their requests in limbo. Federal law, by contrast, allows requesters to sue as early as 20 working days after appealing.
• With all other California agencies, requesters may seek review in local superior court. But for the commission they may seek review only in state appeals courts or the California Supreme Court, forums that are more complicated and costly, effectively deterring independent review of denials.

And though the public records act requires agencies to adopt written guidelines that “reflect the intention of the Legislature to make the records accessible” and post them in “a conspicuous public place,” the commission’s rules are spread piecemeal across four parts of its website and are so labyrinthine that they even confound experienced attorneys.

Clicking on the FAQ link at the bottom of the agency’s request form returns a page that says “Nothing here yet! Check back soon.” A separate search of the website does return a functional FAQ page, but neither it nor the “Requester Resources” page mentions appeals or rehearings.

A unique agency

The commission has said in official filings that it is dedicated to transparency but must balance that goal with its legal duty to maintain confidentiality of trade secrets and personal data contained in filings it receives from companies.

The commission has noted that no other agency in the state is required to follow both the public records act and the Public Utilities Code, which says any employee who releases confidential information submitted by a utility, unless ordered to by the commission, is subject to a misdemeanor charge. This legal requirement “is unique to the Commission and thus analogy to other state agencies or local governments’ processes,” it said, are “inapplicable.”

The agency says it adopted its system of administrative appeal and rehearing to give requesters a chance to show records should be released while allowing utilities a chance to show the information is truly confidential before the commissioners make a final decision.

However, attorneys for requesters noted that employees of other agencies also face criminal penalties for improperly releasing information, such as criminal histories or medical records.

And whatever internal process an agency creates, they say, it may not violate the public records act’s clear deadlines. 

Enacted in 1968, the California Public Records Act is modeled on the federal Freedom of Information Act. The state law declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

It says all state agencies “shall” determine whether a request seeks copies of releasable records within 24 days of receipt, immediately notify the requester of that determination and “promptly” release public records. If an agency withholds records, requesters may seek court review “at the earliest possible time.”

Voters bolstered the law in 2004 when they overwhelmingly passed Proposition 59, which embedded these words in the state Constitution: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

Like the public records act, the commission has roots in a voter-backed constitutional amendment. The agency was created as the Railroad Commission in 1879 but was corrupted by the Southern Pacific Railroad, which dominated state politics, according to a history written by commission staff.

In 1911, voters propelled by Gov. Hiram Johnson’s reform platform granted the agency greater autonomy with the intent of preventing corruption. Its authority was extended to other utilities and in 1946 it received its current name. It is led by five commissioners appointed by the governor for six-year terms. They oversee 1,402 employees and a $1.1 billion budget.

San Bruno fights secrecy

The 2010 explosion of a PG&E gas pipeline in San Bruno killed eight residents, injured dozens more and destroyed or damaged scores of homes. It also revealed what San Bruno City Attorney Marc Zafferano described in an interview as a “roadblock at every turn” as he sought information from the commission.

San Bruno officials had grown concerned that PG&E and agency staff were holding secret meetings that would result in an unfairly light penalty against the utility. To find out, the city requested communications with PG&E executives, but the agency largely failed to respond, Zafferano said.

So the city filed an administrative appeal — only to discover agency rules specified no deadline for its decision.

After more delays, the city sued in San Francisco Superior Court only to hit another hurdle: the public utilities code barred lawsuits against the commission in superior court.

Originally intended to stop industrial titans from using diverse courts to undermine commission rulings, the utilities code allowed lawsuits against agency regulatory decisions only in state Supreme Court.

Efforts to expand judicial review of the commission’s decisions over the years have variously met with opposition from its leadership and several governors, who saw those efforts as an impediment to both regulation and business.

In 1991 Gov. Pete Wilson vetoed a bill that would have allowed such lawsuits in the state Court of Appeal.

“At this critical state in its economic and social evolution, California can ill afford the delay, expense and uncertainty invited by enlarged predicates for judicial review contained in this bill,” he said.

Only in 1996 was the law changed to allow lawsuits challenging limited kinds of commission decisions in the appeals court — a measure the commission opposed until it was narrowed.

In 2015, the Legislature passed a bill to let superior courts hear public records lawsuits against the agency, but Gov. Jerry Brown vetoed it, saying he supported more transparency but was concerned such a change “will only result in increased litigation and likely delay commission decision-making.”

In 2017, an early version of a reform bill would have allowed public records lawsuits against the agency to proceed in Superior Court. The provision had backing from the California Newspaper Publishers Association, but it was dropped from the final bill.

The commission thus moved to dismiss San Bruno’s lawsuit from superior court for lack of jurisdiction. But the city negotiated a settlement in which the agency released records, spurring PG&E to release many more.

The records confirmed there were improper private communications between the agency and utility, for which PG&E agreed to pay $97.5 million in penalties. It also was fined $1.6 billion for violating safety standards.

As part of the settlement, the commission reviewed its public records procedures. San Bruno urged the agency to adopt deadlines to end the “potentially endless appeals process that it completely controls.” The city also recommended letting requesters challenge agency delays and denials of requests in superior courts.

These obstacles, Zafferano told the commission, “will likely continue to deter all but the most determined and well-funded participants from obtaining the prompt access to public records that all public agencies are required to provide.”

But in a 2018 order the agency dismissed such concerns as “speculative” and adopted its current policy, known as General Order 66-D.

Blocked records on reactor leak

Michael Aguirre, a former federal prosecutor in San Diego, ran into similar barriers when he sought records on the 2012 shutdown of the San Onofre nuclear station, at which engineers had discovered a radioactive leak.

Aguirre represented utility customers challenging the commission’s decision that customers should pay $3.3 billion of the $4.7 billion cost of the failed reactor.

In January 2015, he requested written communications between the commission and Gov. Brown’s office regarding the reactor. The agency released about 900 pages but withheld more than 100 records.

Aguirre sued the commission in San Francisco Superior Court for violating the records act. The agency asked the court to dismiss the case on the ground that it lacked jurisdiction — but Superior Court Judge Ernest Goldsmith disagreed. 

Goldsmith found “there is a violation of the Public Records Act by withholding public records.” And since the agency had made clear it would not release the records, he ruled in 2016, requiring Aguirre to exhaust his administrative remedies by appealing would be “futile.”

But the state appeals court overruled Goldsmith, saying the lower court lacked jurisdiction.

This forced Aguirre to start over. Later that year, he requested copies of communications between the commission and Brown’s office about San Onofre.

The agency denied his request 11 days later, claiming the records were exempt because they concerned the governor’s communications or the commission’s deliberative process.

Seven days later, Aguirre filed an administrative appeal. Four months after that, the commissioners affirmed the denial. 

This time, Aguirre sued the agency in state appeals court. He contended that the governor’s office might have secretly influenced the agency’s decision to let the utility pass costs to customers, and the public had a right to know.

The agency, he said, had “engaged in extreme delay tactics in violation of the prompt determination requirements of the Public Records Act.”

The commission denied Aguirre’s claims and asked the court to dismiss his lawsuit because he had not applied for a rehearing until after he sued. Since that application was pending, it said, the court had no jurisdiction.

The appeals court did not address whether the commission’s appeals procedures violated the public records act. But in June 2018, it ruled that the agency had improperly withheld records and ordered their release.

In a separate federal lawsuit, Aguirre and his law partner, Maria Severson, won commission approval later that year of a revised decision that saved ratepayers $775 million on the plant closure.

“While the PUC has feigned interest in greater transparency, it actually has historically worked to thwart disclosure of public records,” Severson said in an interview. “You are on the slowest possible track if you are trying to get information to the public in a timely way.”

Fighting release of fire records

In recent years, the commission has revised some policies to make more information public. It has posted more documents online. And it no longer lets companies simply stamp their filings “confidential,” now requiring specific justifications for secrecy claims.

But as Sacramento TV reporter Rittiman found, the agency still poses obstacles to records requests.

The Camp Fire in Butte County burned 153,336 acres, destroyed 18,000 structures and killed at least 85 people. PG&E eventually pleaded guilty to 84 counts of involuntary manslaughter and one of illegally setting the fire, caused by its faulty power line.

Rittiman believed there was a public interest in knowing why the agency waived a $200 million fine against PG&E and whether the governor’s office influenced that decision.

On Nov. 19, 2020, the ABC-10 special projects reporter filed four requests seeking records of communications between then-commission president Marybel Batjer and Gov. Newsom’s office.

Eleven days later, the agency told Rittiman that governor’s communications are confidential and closed his requests.

Rittiman appealed. Under agency rules, its legal division is supposed to prepare a draft resolution deciding the appeal, then send it to the commissioners for public review and comment. The resolution is scheduled for a hearing and vote. If requesters disagree with that decision, they may apply for a rehearing.

Requesters may not seek court review of the agency’s decision, it claims, until the commission decides the rehearing and requesters have “exhausted their administrative remedies.”

In Rittiman’s case, the agency did not schedule a hearing on his appeal, leaving his request hanging.

Four months later, on April 14, 2021, Zansberg wrote the commission saying that unless it held a hearing at its next meeting, Rittiman would consider its inaction to be a “constructive denial” of his appeal and seek court review.

Zansberg also challenged the agency’s claim that the records were exempt from release because they were governor’s communications. He noted that the state appeals court had said in two other rulings that the exemption applied only to communications sent by correspondents outside of government, not intra-governmental ones like those Rittiman sought.

Still, no hearing was set. On June 14, Zansberg filed Rittiman’s lawsuit against the commission in state appeals court. He posed two key questions: Is the agency subject to the time limits in the public records act? Or can it simply ignore requests, indefinitely, and thereby permanently avoid judicial review?

But the agency tried repeatedly to get the case thrown out of court before any judge could answer those questions.

It argued that the court had no jurisdiction because Rittiman’s administrative appeal was pending. The appeals court agreed, citing the public utilities code that says requesters must exhaust administrative remedies before suing.

Zansberg asked the state Supreme Court to review the case. The court ordered the commission to submit an update on his appeal.

On Sept. 27, the agency said it expected to vote on his administrative appeal in November.

Moreover, the agency’s lawyers declared, the high court itself had no jurisdiction in the case because Rittiman had “not waited for the Commission to prepare a resolution of the matter.”

Nevertheless, the court on Oct. 20 granted Rittiman’s motion for review and directed the appeals court to order the agency to show why it should not promptly release the Camp Fire records.

The commission once again told the appeals justices they had no jurisdiction. Only now it said that was because Rittiman had failed to apply for a rehearing. (On Nov. 19, 2021, exactly a year after the original records request was filed, the commission had finally denied his initial appeal.)

Zansberg replied that the Supreme Court already rejected the jurisdiction claim by ordering the appeals court to review the case. And besides, he had applied for a rehearing, emailing it to three agency attorneys a month earlier.

Commission attorney Nolan admitted to the court that Zansberg had emailed the application— but now asserted it was invalid because he had not followed agency rules for electronically filing documents.

As a result, Nolan said, the court still had no jurisdiction to hear the case.

To Zansberg, it seemed that the commission was turning the legal machinery voters had given it to fight corruption against a reporter who was trying to expose it.

“If this type of games-playing and procedural rigamarole was what the legislature contemplated as fulfilling an agency’s duties,” he said in an email, “then the public records act might as well be stricken from California’s Government Code.”

For more coverage on this topic, see the whole series: Ride Hailing’s Dark Data.

This story was produced in partnership with the McGraw Center for Business Journalism at the Craig Newmark Graduate School of Journalism at the City University of New York. Support was also provided by the Fund for Investigative Journalism.

The post How California Utilities Commission Undermines the Public Records Act appeared first on San Francisco Public Press.

Tabitha Davis had just lost twins in childbirth and was facing homelessness. The 23-year-old had slept on friends’ floors for the first seven months of her pregnancy, before being accepted to a temporary housing program for pregnant women. But with the loss of the twins, the housing program she’d applied to live in after giving birth — intended for families — was no longer an option.

After several weeks in a hotel, which a prenatal program for homeless people had paid for while she recovered, Davis went to a brick building in San Francisco’s South of Market neighborhood to apply for a permanent, subsidized housing unit. There, a case worker she’d never met asked her more than a dozen questions to determine if she was eligible.

Some of the things he asked: Have you ever been sexually assaulted while experiencing homelessness? Have you ever had to use violence to keep yourself safe while experiencing homelessness? Have you ever exchanged sex for a place to stay? “Those are the questions that really bothered me,” she said. “Whatever my experience is of being sexually assaulted, or what I had to do in order to stay safe on the streets, shouldn’t pertain to whether or not I deserve housing.”

That day, Davis was informed that the score she’d been given based on her answers to the questionnaire wasn’t high enough to qualify for permanent supportive housing. It was a devastating blow after an already traumatizing few months. “I thought, ‘You put me on the streets right now, mentally, I will kill myself,’” she said.

What Davis encountered with those questions is called coordinated entry, a system designed to match people experiencing homelessness with housing. In San Francisco’s system, applicants are asked 16 core questions, and their answers are given a point value which is then tallied. The total number is intended to reflect applicants’ vulnerability; currently, a score of 118 points means they qualify for one of the city’s permanent supportive housing units, which is subsidized by the government and comes with wraparound supportive services. Applicants with lower scores may qualify for rent assistance or a bus ticket out of town, but if they want housing in San Francisco, they have to wait six months before taking the test again.

Though the city’s Department of Homelessness and Supportive Housing has an annual budget of $598 million and the majority of that is spent on housing, there simply aren’t enough permanent supportive housing units available to accommodate the thousands of homeless people in San Francisco. (A 2019 survey estimated the number of homeless people at more than 8,000.) The threshold for approval is directly tied to housing availability, and right now, roughly one-third of people who take the assessment score high enough to qualify.

“It’s really prioritizing scarce resources,” said Cynthia Nagendra, the department’s deputy director of planning and strategy. “There has to be some prioritization, unfortunately, until we have some housing resource for every single person.”

Coordinated entry was meant to be a more objective tool than the previous system, which offered resources on a first-come, first-served basis. In contrast, coordinated entry aims to determine who is most vulnerable and who should therefore get access to the limited supply of available housing.

Through records requests, the San Francisco Public Press and ProPublica obtained the questions and scoring algorithm used in San Francisco’s coordinated entry questionnaire, which has never before been made public. The news organizations solicited feedback on that tool from front-line workers, academics and people experiencing homelessness. Some raised objections to how the questions were phrased. Others pointed out inequities in the scoring. And many more criticized the way it was administered, suggesting that the process itself — in which applicants are asked very personal questions by a stranger — might make it unlikely that already-distressed people would answer accurately.

In our interviews, it became clear that the survey fails to identify many of the vulnerabilities it was intended to catch. And what was supposed to be an objective tool winds up, as a result of how it’s written and administered, making it harder for certain populations — immigrants, young people and transgender people — to get indoors, experts and advocates told us.

For Davis, that meant some of the hardships she was experiencing were overlooked. For instance, there was no question in the survey that would give her points for the losses she had just suffered. Failing to qualify for housing resulted in weeks of stress and instability while she recovered from the trauma of losing her children. Eventually, with the assistance of case workers at several organizations, she found a place in a transitional housing program for youth. But being told, during the lowest moment of her life, that she did not qualify for permanent housing left its mark. “It made me feel invalid in my own experience,” she said.

In response to these critiques, homelessness department spokesperson Denny Machuca-Grebe said in an email, “I want to make it clear that anyone who comes to our department for help should NOT ‘be left out.’” For those deemed ineligible for housing, he said the city offers other services; these may include shelter placements, relocation help and rental assistance. In general, the department had not responded to requests for comments about individual cases in the past, and it didn’t comment on Davis’ experience.

Excluded Populations

Coordinated entry was first implemented in 2018, after the Department of Housing and Urban Development began requiring regions that apply for federal homelessness funds to create a tool “to ensure that people who need assistance the most can receive it in a timely manner.” Much of the rest of the country adopted a tool called the Vulnerability Index, Service Prioritization Decision Assistance Tool. San Francisco developed its own set of questions, intended to determine which unhoused people are in greatest need of a home.

In the four years since the requirement was implemented, some cities and counties have reviewed their coordinated entry systems and uncovered trends such as significant racial or gender biases. A 2019 analysis of data from Oregon, Virginia, and Washington found that even though people of color were overrepresented in the homeless population, they tended to score significantly lower than their white counterparts, making it harder for them to access permanent supportive housing. The study recommended that HUD consider revising its coordinated entry guidelines to ensure that communities“equitably allocate resources and services.” This year, San Francisco started its own analysis of its coordinated entry process, and it expects to present the findings before the end of the year.

Nearly every expert we interviewed suggested that the experiences of people of color may not be fully reflected in their answers to the coordinated entry questions. San Francisco’s own data shows Black, white, Asian and Indigenous people being approved for housing at roughly equal rates. But Nagendra, from the Department of Homelessness and Supportive Housing, is looking into concerns that conditions that often make people of color more vulnerable are not being fully captured and that the numbers may not tell the whole story. “When you look at quantitative data, ours will show we are actually prioritizing people who are Black at an equitable rate. But when we talk to people, they might tell a different story,” she said.

Courtney Cronley, an associate professor of social work at the University of Tennessee who has written about racial bias in coordinated entry systems, pointed to one of San Francisco’s questions as an example of possible bias in action: “How many times have you used crisis services in the past year (for example, mental health crisis services, hospital, detox, suicide prevention hotline)?”

“Black people are less likely to use formal health care systems,” Cronley said. “They’ll reach out to family and friends and social support systems rather than going to the doctor. The doctor is not someone that they necessarily trust. These questions are biased towards persons who are white in our communities and biased against African Americans.”

The Department of Homeslessness and Supportive Housing has also said that very few transgender and gender-nonconforming people have been taking coordinated entry assessments. In a December 2021 meeting, Megan Owens, the department’s coordinated entry manager, presented demographic data on who was being assessed. She said that the number of people reporting those gender identities during assessments is “lower than in the best estimates of the homeless population.” In March, city data showed that transgender and gender-nonconforming people constituted only 2% of those taking assessments to try to get housing.

Critics of San Francisco’s coordinated entry system also say that one of the most basic questions, “How long have you been homeless this time?” leads to the exclusion of immigrants and younger people.

That question might sound simple, but it’s difficult for many people to say how long they’ve been homeless — and answering accurately can be critical to getting housing. That’s because San Francisco’s algorithm grants people more points the longer they have been unhoused: A person who has been homeless for more than 15 years receives 12 more points than someone who’s been homeless for one to two years. Anyone who says they’ve been homeless for less than a year gets zero points on this question. (On average, adults who qualify for housing in San Francisco report being homeless for six years.)

Gayle Roberts, the chief development officer at Larkin Street Youth Services, a nonprofit serving young homeless people in San Francisco, said it is “common knowledge among social service providers that it [the coordinated entry system] is weighted heavily toward serving the needs of those who have experienced homelessness the longest.”

Laura Valdéz, executive director of Dolores Street Community Services, is one of several nonprofit leaders who questioned the efficacy of the system. “For many newly arrived immigrants, the way they literally interpret that question is since they’ve been here in San Francisco,” she explained. “So their scores are really low in comparison to other folks. But a large percentage of our immigrant community were unhoused in their home country.”

Valdéz also said the coordinated entry system can lead people living outdoors to accrue significant trauma before they qualify for permanent supportive housing. The program, she said, “requires people to stay in that system that is creating greater and greater harm to them for them to be able to score higher.”

The duration-of-homelessness question can also be tricky for homeless youth, defined as those between 18 and 24. In a 2019 count, they accounted for 14% of the city’s homeless population. Many young people are intermittently homeless, making it difficult to calculate the full length of that experience, said Dr. Colette Auerswald, a professor of community health sciences at the University of California, Berkeley.

“Maybe they stayed on their friend’s couch for five days and they were on a bus last night,” she said. “So they may be like, ‘Well, one day,’ but actually they’ve been in an unstable situation for a really long time.”

San Francisco’s homelessness department acknowledges this bias against young people seeking housing. In an attempt to address the age gap, the department included two questions that are only scored for people ages 18 to 24: “In the place you are staying, are you experiencing physical or sexual violence?” and, “In the last 12 months have you traded sex for a place to stay?” If they answer yes to either one, it provides a significant bump in their overall score: 12 points for each question. But if anyone older than 24 who has been sexually assaulted or has traded sex for a place to stay gets no points at all. (While the answers to these questions are only scored for 18-to-24-year-olds, they are asked of every person who takes the assessment. When asked why these questions were asked of people who could not receive points for answering, the department said it was for “data gathering.”)

Machuca-Grebe,  the department spokesperson, explained that the question was added because “we have found that without the score placed on the questions for youth, they would be seriously under prioritized — leading to a disproportionate exclusion of youth.”

Davis was in the 18-to-24 age range when she first took her coordinated entry assessment, so those questions were scored. But she does not believe they should be asked at all.

“There’s not a single person that I can think of that is female-presenting that hasn’t been sexually assaulted while experiencing any part of their life, not just homelessness,” she said. “So you’re telling me that because someone hasn’t been raped, that she doesn’t get housing, and then she stays on the streets and then does get raped? And now she can? No, that doesn’t make sense.”

Questions From a Stranger

It is not just the wording and scoring of the questions that give experts pause. They also said that the way the assessment is given can fail to accurately assess a person’s vulnerability.

In San Francisco, all questions must be read by a trained staff member from one of the nonprofits that contract with the city to conduct the assessment. The questions are pulled up on an iPad or a computer. A drop-down menu offers a prewritten set of answers to select from, and the score is automatically added up by the software.

Coordinated entry assessments are frequently conducted in semi-public places, like a bustling office or a street corner under a highway. Applicants rarely have a preexisting relationship with the person asking the questions, and, due to understaffing at many nonprofits conducting assessments and the high number of people in need, there may not be time to build one.

“You really need to have interviewers establish rapport and relationship with the client prior to conducting or doing any assessment, because if they don’t trust interviewers, they’re just not going to talk to them,” said Cronley, the University of Tennessee professor.

The stakes are high: When an interviewer chooses the “Client refused” option from the pull-down menu of potential answers, the applicant receives zero points for that question.

Valdéz also sees lack of trust as a problem in the communities she serves. “Many of us would not feel comfortable speaking about our personal traumas, in 45 minutes, to a complete stranger,” she said. “My family experienced homelessness, and I can tell you right now, if I’m sitting in front of someone that I’ve just met, it is very unlikely that I would share that in an assessment.”

This was a concern voiced by Auerswald, the Berkeley professor, about the youth questions on violence and trading sex for a place to stay. She said the phrasing would not secure accurate results.

“My worries here is that a lot of young people are gonna say no,” she said. “And obviously, here, they really need to say yes. It’s one of their only hopes at prioritizing for housing, even though it’s a super traumatizing question.”

People’s personal interpretation of each question can affect their answers, Auerswald said. “A lot of young people who are trafficked would say no to this question,” she said. “They’d say, ‘Well I wasn’t raped, it wasn’t violent. I have someone taking care of me and I am paid or given something in exchange.’ Definitions of violence are different now. Violence is a lot of things. You can have sex under threat of violence, even if you don’t have a mark on you.”

Cronley said racial bias in child welfare and policing plays a similar role in determining how forthcoming people are willing to be when answering these questions.

“Black women are going to be more likely to fear that their children will be taken away from them if they report illicit behaviors, or if they report any sort of mental health challenges,” she said. “If you’ve got kids and you’re homeless and you’ve traded sex for money, you’re not going to tell them that you did that. No way.”

Davis had enough experience with systems for homeless people that she knew not answering the questions was not an option. “I had no choice but to answer them or I couldn’t get into housing,” she said.

For some, though, the experience is so uncomfortable that they drop out of the process entirely. A native of El Salvador, Luis Reyes has lived in San Francisco for 30 years and been homeless for 10 of those. Reyes said he has taken the coordinated entry questionnaire twice — once in 2019 and again in 2020, right before the pandemic hit. Like Davis, he went to the brick building at 123 10th St., the city’s largest drop-in center for these assessments.

“There was a guy who did the assessment in Spanish,” Reyes said, through an interpreter, of his 2020 interview. “‘Are you incapacitated? Are you a senior citizen? Do you have AIDS?’” Reyes remembers him asking. “He even asked me if I was gay,” he recalls — a question that is not included in the coordinated entry assessment. Reyes answered no to all of the above and says he was then told he didn’t qualify for housing.

The experience discouraged Reyes, who was living in a shelter at the time of his second assessment. He decided not to take the questionnaire again. He has spent some months sleeping in his car, and more recently he stayed with his girlfriend at a senior living facility. But she’s not allowed to have guests, and soon he will have to return to the streets.

System Under Review

Across the country, cities and counties are starting to critically examine their coordinated entry systems. Last year, eight communities, including Chicago and Austin, Texas, studied the data on their coordinated entry results and discovered significant racial disparities. Both cities revised their systems using community feedback, redesigned their processes and wound up approving more people of color for services.

In San Francisco, 17,000 coordinated entry assessments were conducted between the launch of the system in 2018 and the middle of 2021. This year, the city announced it would be undertaking its own review to determine if the government is serving people equitably and if the housing options offered are a good fit for those in need. Nagendra, at the Department of Homelessness and Supportive Housing, is overseeing the city’s review.

“If things have gotten away from our overall intention and design, we can look at those things and figure out where we need to redesign, refresh, whatever it might be,” she said in an interview.

The city’s approach to its review is driven by data and leans heavily on interviews, which are being conducted in focus groups and through outreach at encampments. The agency plans to make the research findings public in late May.

Critics would like to see a more radical overhaul of the coordinated entry system and the way it is pegged only to the supply of housing.

Joe Wilson, executive director of Hospitality House, a community center for homeless people in the Tenderloin neighborhood, where the majority of the city’s unhoused population resides, explains the problem with that approach.

“This algorithmic-based decision-making process is designed to keep the problem small enough so we don’t have to truly address it,” he said in an interview. “They’re not filling housing based on need, they’re assigning it based on capacity. It is not logical, it’s not consistent, and it’s not effective.”

For example, families used to be required to hit 40 points to qualify for housing. In February, the Department of Homelessness and Supportive Housing doubled that number to 80 points due to a shortage of family-specific housing. Owens, the coordinated entry manager at the department, estimated that the change would reduce the number of families who qualified for housing to between 50% and 60% of those taking the assessment, down from 75%.

Critics of the coordinated entry program have been proposing solutions as the city begins its review. In a February report, the Coalition on Homelessness, San Francisco’s largest nonprofit advocating for homeless people, recommended that the city “develop an assessment tool that categorizes people according to what type of housing would be the most suitable for their situation, instead of assigning them an eligibility score. This will tell us what type of housing and assistance is needed, versus how much housing we have.”

The organization also proposes letting case workers and housing providers work together to identify the best place to house an applicant. This approach, the Coalition argues, would create “a real-time housing placement system” that would more quickly bring vulnerable people indoors. This could help address the city’s chronic difficulty in filling the vacant units it has available: As the San Francisco Public Press and ProPublica reported in February, 1,633 people who had been approved for housing were still waiting to move in — some for months — even as more than 800 apartments sat vacant. At least 400 people had been on the waitlist for more than a year.

For those working on the front lines of the homelessness crisis, change to the coordinated entry system can’t come fast enough. Last July, in a meeting with the Department of Homelessness and Supportive Housing, Wilson told a story about a client his organization had helped.

“We have an 86-year-old woman who has been homeless for 14 years who has not been prioritized for housing,” he said, noting that she took a coordinated entry assessment but did not hit the 118-point threshold for housing.

A key insight from that experience, he said: Algorithmic decision-making “moves us away from the absolute necessity of human judgment and human interaction in human services.”

Read part one, In San Francisco, Hundreds of Homes for the Homeless Sit Vacant

The post San Francisco Rations Housing by Scoring Homeless People’s Trauma. By Design, Most Fail to Qualify. appeared first on San Francisco Public Press.