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Where Things Stand in San Francisco's Legal Battle Over Street Encampments

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Three tents line a sidewalk, with a person - back to camera - sitting on the curb in front of one of the tents.
A small tent encampment lines a sidewalk in San Francisco's Tenderloin neighborhood on Aug. 28, 2023. (Tayfun Coskun/Anadolu Agency via Getty Images)

A federal court this week denied San Francisco’s request to modify an order that temporarily bans the city from clearing street encampments without first offering people alternative shelter options.

Tuesday’s ruling is the latest chapter in an ongoing battle over the city’s widespread homeless encampments and what to do with the thousands of people who live in them.

The ban — or injunction — in question was issued by a federal judge late last year, several months after the nonprofit Coalition on Homelessness sued the city, alleging it was violating its own encampment clearing policies.

“It is real progress,” Zal Shroff, interim legal director for the Lawyers’ Committee for Civil Rights, said of Tuesday’s ruling by a three-judge panel of the Ninth Circuit Court of Appeals. “The law has been perfectly clear that you cannot punish someone who doesn’t have access to shelter.”

San Francisco, however, said this latest decision — which effectively kicks the most contentious decisions on the issue down the road — was actually in its favor, as it allows the city to resume some encampment sweeps and, if necessary, renew its motion in the future.

How’d we get here?

When the Coalition on Homelessness sued San Francisco last September, it argued the city was threatening to cite and arrest encampment occupants who refused to move, without first offering them adequate shelter options, in violation of its own policies.

The plaintiffs also argued the city had failed to regularly adhere to its “bag and tag” policy that directs its workers to offer people in encampments the option of labeling and storing their personal items before their camps are cleared.

“The law is very clear, and the city needs to follow its own policies,” Jennifer Friedenbach, executive director of the Coalition on Homelessness, told KQED after Tuesday’s ruling. “Everything is in place, it’s the practices on the ground that need more work.”

More on SF Encampment Sweeps

In December, U.S. Magistrate Judge Donna Ryu sided with the plaintiffs by issuing a temporary injunction, ordering the city to stop clearing encampments occupied by people who are “involuntarily homeless” unless a genuine offer of shelter has been made. She also ordered the city to follow its existing “bag and tag” policies.

In its appeal to the Ninth Circuit panel last month, the city argued the injunction was overly broad and had prevented it from addressing problematic street conditions that have led to major safety and health issues. As part of that appeal, the city filed a motion to modify part of the injunction by making clear that unhoused people who reject shelter or housing offers should not be considered “involuntarily homeless.”

That clarification is important, the city argued, because the injunction only applies to those who are “involuntarily homeless.”

Although the Ninth Circuit panel on Tuesday technically denied the city’s motion, it only did so because the plaintiffs had already subsequently agreed on that clarification.

The ruling effectively means that, under the existing injunction, the city can continue to clear encampments and enforce its “sit-lie” laws as long as it first offers occupants suitable shelter options and the opportunity to store their belongings.

“We are pleased that the Ninth Circuit agreed with the City that the preliminary injunction does not apply to those who refuse shelter or those who have a shelter bed and choose to maintain a tent on the street,” Chiu said in an email to KQED. “We look forward to the Court’s decision on the other substantive issues raised in our appeal.”

But Friedenbach, from the Coalition on Homelessness, said the latest ruling holds the city accountable.

“This means the city needs to continue following the law and following their own policies, meaning they can’t throw away people’s property and they have a process for that they need to follow, and the city can’t threaten to arrest or cite people for lodging or sleeping unless they have a firm offer of shelter first,” she said.

Additional court proceedings are expected to continue over the next year, as the Ninth Circuit panel considers the city’s challenge to the injunction as a whole.

What is the basis for last year’s injunction?

In issuing the injunction, Judge Ryu cited Martin v. Boise, a 2018 ruling that blocked the city of Boise, Idaho from enforcing its street camping and other sit-lie laws unless it first offered unhoused people alternative shelter options.

Plaintiffs in the San Francisco case argued that the city often disregarded its own similar policy — of first offering shelter options — when pursuing encampment sweeps.

Both sides recognize that San Francisco simply does not have enough housing or emergency shelter to meet current demand. More than half of the city’s roughly 7,800 people experiencing homelessness (PDF) live outside, according to the latest citywide count.

The city, however, has only about 3,500 shelter beds in its overloaded system, and as of Thursday, some 470 people were on the shelter waitlist.

In her ruling, Judge Ryu asked San Francisco to detail how it trains law enforcement and street-clearing crews, and identify which city workers have not been trained on the specifics of the injunction.

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A similar legal battle also recently played out in Berkeley, where a federal judge on Tuesday issued a temporary restraining order blocking the city from clearing a homeless encampment on the west side of the city, near the freeway. The plaintiffs in the case, who are residents of the encampment, argued that they were notified by the city, via a sign posted on a nearby light post, just three days before the scheduled Labor Day sweep was to take place.

In that case, U.S. District Judge Yvonne Gonzalez Rogers ruled that “the potential loss of personal property, community, and safety, particularly in the absence of access to resources and services is an irreparable harm.”

The judge said that because of the holiday weekend, plaintiffs would not have the necessary time or availability of resources to help them move, “placing them in danger and in violation of their right to due process.”

The temporary order in Berkeley, however, is set to expire on Sept. 15.

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