Surge in nuisance arrests gums up legal system, costs taxpayers

It started in late 2011, as Doug Barthel recalls.

Business owners had been complaining about transients loitering in and around their businesses for years. A small but highly visible population of homeless to near-homeless transients was making life uncomfortable for some in and around downtown.

"It's something that we've dealt with for years when you've got problem people," said Barthel, who retired last month after more than a decade as the city's police chief. "Maybe they aren't necessarily breaking the law, but they're being a nuisance."

The city's legal department figured out a way to turn them into law breakers by making it easier for police to arrest "problem people" on trespassing charges.

Trespassing arrests and arrests for other low-level nuisance crimes have surged since 2010, according to an Argus Leader Media analysis of arrests made by the Sioux Falls police department between 2006 and 2014.

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In 2010, police made 31 trespassing arrests. Last year, there were 423 arrests, an increase of 1,265 percent.

At the same time the city made it easier to arrest transients for trespassing, police also stepped up their arrests for other nuisance crimes. Failure to vacate arrests have more than doubled since 2010. Disorderly conduct and obstructing officer arrests are up more than 60 percent.

To Barthel, the numbers show that the policy change was a success.

"It shows me that it's an effective tool that officers are using – that they find it effective," he said.

It's also been popular with businesses where transients congregated.

"I don't have to call them anymore," said Shawn Kopecky, who works at Munchies. "If they're sitting on a bench, the cops will come by and pick them up."

But the success comes at a cost to taxpayers. Even though they are nuisance crimes, the arrests mean that low-level crimes are taking up jail beds. Minnehaha County commissioners are grappling with a jail that is approaching capacity, and taxpayers could be asked to pay tens of millions of dollars for an expansion.

Others are concerned about costs to civil liberties and whether the policy change made it illegal, or at least more difficult, to be homeless in Sioux Falls. And within the city's legal community, it's widely believed that arrests occur more frequently when there's a convention or event downtown – a "round up the usual suspects" style of policing to get them off the streets and in jail for the weekend.

"The conventional wisdom here is that we deal with more of these types of cases after a weekend than during the week, and we deal with them when the weather's nice and there's a high-profile event," said Magistrate Judge John Hinrichs.

Judge Bradley Zell tracked arrests during a couple of weekends last year in which there were events held downtown.

"Clearly there were sweeps downtown," Zell said. "Clearly there were people swept off the streets who are eyesores."

Barthel said the city is not targeting the homeless. If police wanted to rid the city of homeless, they would need more serious charges rather than nuisance crimes.

"There is no effort to arrest the homeless," Barthel said. "Frankly, this only takes care of the problem for a day or two and they come back."

Among the population of "frequent flyers" – those who are often arrested and sent to jail on nuisance crimes – Weldon Middletent's arrest record is prodigious, even by the standards of the frequent flyers. From 2010 to 2014 police arrested him 51 times for mostly nuisance crimes.

In April of 2014, Middletent had a bad run. He was arrested on April 3, April 6 and April 9 for trespassing – two of the arrests coming at a gas station that sells malt liquor. He was arrested two times the month before for failure to vacate and again in May for trespassing.

Each time police arrested Middletent, he took up space at the Minnehaha County Jail, which is on pace to see 20,000 bookings this year, up from 18,000 last year. Besides taking up space in the jail, each arrest generates processing time for deputies – at least 45 minutes if the jail isn't busy and longer when it is busy – and 15 minutes to process releases, Sheriff Mike Milstead said. Taxpayers are also on the hook to buy medications or address any health problems.

The arrests of Middletent in April of 2014 illustrate another problem that often develops: One arrest for trespassing cascades into a series of other arrests for failing to appear in court or failing to pay fines. After Middletent was released from jail in April of 2014, he failed to appear for a court hearing in June. A judge issued a bench warrant.

Failure-to-appear arrests are more serious, Milstead said, and more of a problem for the jail because those arrested for failing to appear have to wait in jail to see a judge, tacking on additional days that taxpayers are required to pay for what started as a simple trespassing arrest.

"Of course, what happens is you see these follow up with failure to appears," Milstead said. "They failed to appear, and then they're failing to appear on their failure to appear."

The cost of unlawful occupancy isn't restricted to labor time for police and jailers. After the arrest and the booking, each person charged with failure to vacate or trespassing who can't afford a lawyer is constitutionally entitled to legal representation.

"It's pretty well universally acknowledged at the courthouse that they take up a tremendous amount of time," Hinrichs said.

In Sioux Falls, that usually means a lawyer from the Minnehaha County Public Defender's Office. The lawyer isn't technically free, though. The legal bill is added to a defendant's fine after a plea, which can become a warrant for arrest if it's unpaid.

Judges regularly waive those fines or fees for the indigent or credit the trespasser for time served, but Public Defender Traci Smith said the costs are real for her taxpayer-funded office.

Her lawyers have spent more than 3,824 staff hours handling clients charged with trespassing and failure to vacate since 2010, though many were facing additional charges alongside the two misdemeanors.

At $98.03 an hour – what Smith says it costs the county for every hour of labor her lawyers spend on clients – the legal bill for trespassing amounts to $374,901 since the SFPD's shift in tactics began.

That's a lot of staff time and a lot of money, Smith said, considering how few of the "frequent flyers" ever pay their bill.

"A lot of these people are the same people over and over and over again," Smith said. "All you're doing is moving them around to become someone else's problem, and ultimately, it's the taxpayers who are paying for this."

And although it's the Sioux Falls Police Department making the arrests, it's Minnehaha County that gets stuck with the expenses associated with the city's war on nuisance crime.

"There is kind of a key thing that occurs when those three words are spoken: 'You're under arrest,'" Milstead said. "As soon as those three words are spoken, the county is responsible to defend them, to prosecute them, to provide medical care and to house them at $90 a day."

Zell likens the situation between the city and county to someone who dumps his grass clippings on his neighbor's lawn.

"From my perspective, I'm a taxpayer, too, and the county's problem is the city," Zell said.

Ultimately, Milstead said, the frequent flyers aren't the reason for why the Minnehaha County needs more jail space. The jail is being filled with felony criminals who have been charged with crimes of violence. They can stay in the jail for a year or more while their cases play out and they get sent to the state penitentiary. But the churn of frequent flyers and the time they take to process in and out of the jail exacerbate the situation.

"For those frequent flyers, it's a revolving door," Milstead said. "It's troublesome for law enforcement. It's troublesome for our jail. It's troublesome for our community."

Barthel said he sympathizes with the county's situation. But police aren't going to make decisions about whether to arrest someone who broke the law based on how much space is available at the jail.

"It comes down to, what does the community expect?" Barthel said. "What are they willing to tolerate, and what are they willing to pay for?"

Hinrichs, who has been on the bench for nine years, says he understands that business owners are looking for relief from the downside that comes with a persistent transient population. But Hinrichs said that people don't understand the volume of cases that are now churning through the system. And he said it's frustrating because the constant flow of arrests will not solve the underlying problems associated with the transient population.

"The solutions that people want – the long-term solutions that people want and the help those people need – aren't going to come from the court system, because we aren't equipped for that," Hinrichs said.

"A lot of these people are the same people over and over and over again," Smith said. "All you're doing is moving them around to become someone else's problem, and ultimately, it's the taxpayers who are paying for this."

And although it's the Sioux Falls Police Department making the arrests, it's Minnehaha County that gets stuck with the expenses associated with the city's war on nuisance crime.

"There is kind of a key thing that occurs when those three words are spoken: 'You're under arrest,'" Milstead said. "As soon as those three words are spoken, the county is responsible to defend them, to prosecute them, to provide medical care and to house them at $90 a day."

Zell likens the situation between the city and county to someone who dumps his grass clippings on his neighbor's lawn.

"From my perspective, I'm a taxpayer, too, and the county's problem is the city," Zell said.

Ultimately, Milstead said, the frequent flyers aren't the reason for why the Minnehaha County needs more jail space. The jail is being filled with felony criminals who have been charged with crimes of violence. They can stay in the jail for a year or more while their cases play out and they get sent to the state penitentiary. But the churn of frequent flyers and the time they take to process in and out of the jail exacerbate the situation.

"For those frequent flyers, it's a revolving door," Milstead said. "It's troublesome for law enforcement. It's troublesome for our jail. It's troublesome for our community."

Barthel said he sympathizes with the county's situation. But police aren't going to make decisions about whether to arrest someone who broke the law based on how much space is available at the jail.

"It comes down to, what does the community expect?" Barthel said. "What are they willing to tolerate, and what are they willing to pay for?"

Hinrichs, who has been on the bench for nine years, says he understands that business owners are looking for relief from the downside that comes with a persistent transient population. But Hinrichs said that people don't understand the volume of cases that are now churning through the system. And he said it's frustrating because the constant flow of arrests will not solve the underlying problems associated with the transient population.

"The solutions that people want – the long-term solutions that people want and the help those people need – aren't going to come from the court system, because we aren't equipped for that," Hinrichs said.

Reporter John Hult contributed to this story. Follow Jonathan Ellis on Twitter @argusjellis.