Mayor London Breed has announced that the city plans to resume enforcing laws governing homelessness in San Francisco in the latest development in a lawsuit against San Francisco for how it conducts operations on street homeless encampments,
In a Medium post on September 25, Mayor Breed said that a district court order from last December has prevented the city from enforcing several of its homelessness ordinances—while allowing street cleaning and clearing blocked sidewalks—but lawyers for the Coalition on Homelessness and seven unhoused plaintiffs dispute that assertion.
“The only limitations the city has faced since a federal court injunction was issued last December are against displacing and punishing homeless individuals just because they have nowhere else to go,” said John Do, senior staff attorney for the American Civil Liberties Union of Northern California. “San Francisco has always been free to enforce any other criminal laws, or to address homeless encampments because of any genuine health and safety concern.”
Magistrate Judge Donna Ryu’s December court order cites Martin v Boise, a landmark federal case that prohibits citing or arresting people sleeping outdoors if no shelter is made available to them.
The city claims it offered encampment residents shelter when it cleared camps, but that homeless people frequently declined those offers. However, the court rejected this argument and noted that it had no basis in the record before the court. The city was unable to provide any evidence that it offered shelter prior to citing or arresting unhoused individuals at least 3,000 times for homelessness-related offenses.
In addition, plaintiffs have noted that the city only tracks the number of shelter placement in encampment operations, and routinely categorizes all those for whom they have no shelter beds available as refusing shelter, whether they have refused shelter or not.
These statements stem from the sides’ dueling interpretations of a ruling from the 9th U.S. Circuit Court of Appeals last month on what constitutes “involuntary homelessness.” The circuit court denied a motion to modify the injunction without prejudice. Despite losing on the motion, City Attorney David Chiu declared victory when the coalition’s legal counsel concurred that anyone who can access or has means to obtain shelter doesn’t fit the definition of “involuntarily homeless.”
Mayor Breed’s statement echoed Chiu’s earlier remarks on this supposed clarification of when an unhoused person declines a specific offer of shelter placement.
As of press time, the 9th Circuit has not published any authorization for the city to continue enforcing bans against sitting, sleeping or lying down on its public rights of way.
The coalition’s lawyers maintain that as long as unhoused people lack an opportunity to have a roof over their heads, ticketing and jailing them amounts to cruel and unusual punishment, and that confiscating their possessions in sweeps is illegal search and seizure.
The city’s recently reactivated waitlist for shelter reservations has about 400 people on it, even as the city’s unsheltered population is above 4,000, according to its estimates from 2022.
Zal Shroff, the plaintiffs’ lead attorney, said that this demand for shelter flies in the face of the city’s claims of widespread refusal of its services. “Hundreds of people are on a new, growing waitlist for shelter beds right now, with thousands more lacking appropriate options for shelter or housing,” he said. “But the city has nonetheless closed its same-day lines for shelter, where hundreds of individuals were turned away each day because of the city’s dearth of available shelter options. The idea that unhoused people are refusing shelter in large numbers is completely unfounded and contradicts the evidence submitted to the court that underpins the injunction.”
In another legal action with potential impact on San Francisco, Gov. Gavin Newsom filed a “friend of the court” brief to the Supreme Court on September 22 asking the court to review a similar 9th Circuit decision on a case in Grants Pass, Oregon. The former mayor criticized the ruling on this case and in Boise, Idaho as leaving cities “paralyzed” in enforcing homelessness ordinances.
In those cases, the 9th Circuit determined that the government cannot arrest poor people for sitting, sleeping or lying down in public when there is no real alternative. Three days later, San Diego, Seattle and Honolulu, as well as other cities and conservative organizations, filed a separate brief to the nation’s highest court.
If the parties don’t reach a settlement, a trial date is set for 2024.
This article was originally published in Street Sheet, a publication of the Coalition on Homelessness, one of the parties in the lawsuit.
