By David M. Greenwald
San Francisco, CA – A California Appellate Court struck down an attempt by the San Francisco City Attorney to impose stay away orders to alleged drug dealers finding that “the proposed stay-away orders are insufficiently tailored to pass constitutional muster based on the evidentiary record before it.”
The City Attorney alleges that the named defendants in this case “are street-level drug dealers whose drug-dealing activities in the Tenderloin neighborhood create a public nuisance.”
In September of 2020, the City filed civil complaints against each defendant as well as 24 other individuals, asserting both public nuisance and violation of unfair competition laws.
In each complaint, the City sought a permanent injunction ordering the defendant “to stay away from the proposed Tenderloin Drug Abatement Area and any area of the City and County of San Francisco where DEFENDANT has engaged in the illegal sale of controlled substances.”
The “proposed Tenderloin Drug Abatement Area” comprises about 50 square blocks and covers over 221 acres.
In their action, the city of San Francisco asked the court to issue stay-away orders prohibiting defendants from entering the abatement area with limited exceptions for (1) riding public transit (but not getting on or off) either by bus along the western boundary of the abatement area or by train running underground through the Tenderloin, (2) using one side of the sidewalk on one street for half a block if necessary to go to scheduled federal court appearances, and (3) making “a scheduled visit to a particular location” in the abatement area “to conduct specified lawful business on a designated date and time,” but “only with the PEOPLE’s advance written and filed stipulation” and with the requirement that the defendant carry a copy of the stipulation.
To bolster their case, the city submitted a declaration from San Francisco Police Captain Carl Fabbri.
According to Fabbri, “the overall crime rates in the Tenderloin are historically about three times higher than in the City overall on a per capita basis,” it “is the epicenter of illegal drug sales in the City,” and “the situation [in the neighborhood] has worsened in recent years and months.”
For example, in 2020, there were 600 arrests for drug dealing in the Tenderloin, and officers seized over $288,000 in cash and more than 18 kilograms of heroin, cocaine, methamphetamine, and fentanyl. In addition, drug overdoses have increased in recent years.
In addition, there were 699 drug overdose deaths in San Francisco in 2020, up from 441 overdose deaths in 2019 and 259 in 2018.
Fabbri opined that a civil “injunction preventing drug dealers from coming to the Tenderloin would be a useful tool to combat street drug dealing and the negative effects on the Tenderloin, beyond the tools of existing criminal laws” because “enforcing a stay-away order requires far less police resources than doing a drug bust.”
He believed the size and borders of the proposed abatement area were “appropriate and necessary” because “sellers are mobile, and are not confined to a particular street corner.”
The defendants opposed the motions for preliminary injunctions, arguing that the city did not show a likelihood of success on the merits at trial.
In addition, the defendants questioned the merits of the claims, arguing, “the City could not establish the balance of interim harms tipped in its favor and, in any event, the proposed injunctive relief was improper and overbroad.”
They asserted the City was using defendants as “scapegoat[s] in its ill-conceived effort to make a political point” and the proposed injunctions would harm defendants “and the community while doing nothing to increase public safety or reduce substance abuse.”
Further they noted “the proposed injunctions would not address the serious problems facing the Tenderloin, which include poverty, housing insecurity, mental and physical health issues, drug use disorder, and food insecurity.”
For example, the director of harm reduction services at the Glide Foundation, located in the Tenderloin neighborhood, stated that, in her experience, “arresting individuals selling drugs on the streets of the Tenderloin has no impact on the availability of drugs for sale” as “other people simply fill in any gap.”
She explained, “Spending money on these lawsuits and seeking to ban people from the Tenderloin is a waste of resources and will do nothing to reduce the availability and use of drugs in the neighborhood.”
The defense also cited two sociology professors who have published extensively on policing and punishment, Katherine Beckett and Steve Herbert of the University of Washington, who argued that the use of “spatial exclusion, or banishment” (including injunctions, curfews, and stay-away orders) significantly erodes the citizenship status of those subject to exclusion and is “futile and counterproductive.”
Prior to trial on the merits of these claims, the city moved for preliminary injunctions against defendants that would prohibit them from entering a 50-block exclusion zone in the heart of San Francisco.
The court noted that there “was no dispute about the conditions in the Tenderloin.” The defendants acknowledged that the area is “facing a drug-related health crisis,” and the trial court found the City established the neighborhood is “rife with illegal drug-dealing” and related activities.
The trial court, however, denied the city’s motion despite the lack of dispute that the city has authority to seek injunctive relief to address public nuisances and UCL violations (unfair competition law), on two grounds.
First, the trial court determined that a stay-away order—as opposed to an injunction prohibiting certain conduct—”is not an authorized remedy under either the public nuisance law or the UCL.”
Second, “even assuming stay-away orders are available statutory remedies, the trial court concluded the specific injunctive relief the City requested would be constitutionally impermissible under the facts of these cases.”
Instead, the court determined “that excluding defendants from such a large area in the center of San Francisco implicates the constitutional right to intrastate travel—that is, the right to travel locally through public spaces and roads—and the City failed to meet its evidentiary burden of convincing the court that its proposed remedy was sufficiently tailored to minimally infringe upon the protected interests at stake.”
In the appellate court ruling, they uphold the trial court ruling. The appellate court differs from the trial court in that “we are not prepared to hold that a stay-away order could never be a potential remedy for a public nuisance or unfair business practice in an appropriate case.”
However, they find “the City has failed to show error in the trial court’s finding that the proposed stay-away orders are insufficiently tailored to pass constitutional muster based on the evidentiary record before it.”