Limits on San Francisco’s clearing of homeless encampments upheld by 9th Circuit

A court order limiting San Francisco’s ability to clear street encampments of people who have nowhere else to go will remain in effect while litigation continues, a federal appellate court ruled Thursday.

The ruling by a three-judge panel of the U.S. 9th Circuit Court of Appeals marked a substantial win for the Coalition on Homelessness, a progressive advocacy organization that secured a preliminary injunction by challenging San Francisco’s policies for clearing encampments as fundamentally unjust and illegal under past court decisions protecting the rights of homeless people to sleep in public in certain situations.

Thursday’s ruling is the latest decision in a sprawling legal debate over homelessness in the American West and how local jurisdictions may legally address it. The debate has pitted progressive activists and advocacy groups against liberal leaders such as San Francisco Mayor London Breed and Gov. Gavin Newsom, who have been frustrated along with many of their constituents by the spread of encampments in downtown areas and other neighborhoods since the start of the COVID-19 pandemic.

The debate has also sparked tensions between liberal and conservative judges of the 9th Circuit, including in a separate case out of Grants Pass, Ore. that is under consideration for review by the U.S. Supreme Court.

In its decision Thursday, the 9th Circuit panel declined to consider several arguments in favor of stricter enforcement measures that San Francisco and a coalition of other California cities had raised in recent filings, saying they hadn’t been properly raised or substantiated with facts in the lower district court. The judges did acknowledge, however, that the injunction only applies to “involuntarily homeless” people, or those who have not been offered alternative housing or shelter by the city, and ordered the lower court to clarify that point.

In recent months, San Francisco has tried to justify its continued operations to clear encampments, saying they are inhabited by people who have been offered shelter or housing.

The appellate judges also ordered the lower court to specify that the injunction prohibits the city from “threatening to enforce” its enjoined laws, but does not bar the mere presence of police officers near encampments.

John Do, a senior attorney for the ACLU of Northern California representing the coalition, said Thursday’s order should help ensure that San Francisco continues ramping up resources and offering shelter and housing to homeless people, rather than simply criminalizing poverty.

“It’s a resounding win,” he said.

Jen Kwart, a spokeswoman for San Francisco City Atty. David Chiu, said they appreciated that the appellate court “confirmed again and further clarified that the injunction only applies to people who are involuntarily homeless, not those who have refused an offer of shelter.”

However, Kwart said their office was “disappointed” by the court’s decision not to consider arguments posed by the city in the appellate process, including around the scope of its restrictions — which she said left critical legal questions about solving homelessness unanswered.

“Cities cannot reasonably be expected to solve homelessness while operating under this uncertainty,” Kwart said. “At some point, a court will need to clarify the law in this area, and it is disappointing that in the midst of an intense homelessness crisis, we all must continue to wait for that clarification.”

Breed’s office declined to comment on the pending litigation, but released figures Thursday claiming a 22% increase in the number of people connected to shelter or housing last year, and that 64% of people who city personnel interacted with at encampments “declined offers of shelter or reported already having shelter or housing.”

Newsom, in a statement, said the ruling would “only create further delays and confusion as we work to address homelessness.”

Liberal judges have argued that the constitution — and specifically the 8th Amendment’s provisions against cruel and unusual punishment and excessive fines — protects homeless people’s right to sleep in certain public spaces, with certain protective gear, when they have no where else to go. Conservative judges have rejected that idea, arguing that there is a long legal tradition of local jurisdictions enforcing “anti-vagrancy” laws.

Circuit Judge Lucy H. Koh, who wrote the court’s opinion Thursday, was joined by Circuit Judge Roopali H. Desai; both were appointed by President Biden. Circuit Judge Patrick J. Bumatay, who was appointed by President Trump, dissented.

Koh wrote that the litigation “raises difficult and important legal questions with real stakes for San Francisco and the thousands of unhoused individuals who call San Francisco home.” But, Koh added, the appellate court could not delve into city arguments about geographic and time limits on encampment restrictions that were never made in the lower court.

Moving forward, the lower court should consider whether the city’s rules “leave involuntarily homeless individuals with a realistically available place to go,” Koh wrote.

Koh wrote that her panel was bound by past 9th Circuit precedent on the 8th Amendment in such matters, but noted the Supreme Court may soon be reviewing the existing precedent.

Bumatay, in his dissent, wrote that the 9th Circuit has repeatedly misinterpreted the protections of the 8th Amendment as it relates to homeless encampments, endangering public safety in the process.

It “cannot be cruel and unusual to prohibit homeless persons from sleeping, camping, and lodging wherever they want, whenever they want,” Bumatay wrote. “While they are entitled to the utmost respect and compassion, homeless persons are not immune from our laws.”

Newsom has called on the conservative-leaning Supreme Court to take up the Grants Pass case and rule in favor of local municipalities trying to rein in public encampments. He said Thursday’s ruling reinforced the need for such intervention.

Do, the coalition’s attorney, called Newsom’s position “deeply, deeply troubling.”

“It is incredibly unfortunate and shameful for our policy leaders to scapegoat unhoused people for their own policy failures,” Do said. “Homelessness didn’t come out of the ether. It’s a direct result of the lack of investment in affordable housing.”