Ninth Circuit Appeals Court Told City Hasn’t Proven It’s Complying with Homeless Injunction Protecting Unhoused from Police Sweeps

Photo by Fredrick Lee on Unsplash

By Audrey Sawyer

SAN FRANCISCO, CA — The Ninth Circuit Court of Appeals three-judge panel Tuesday reviewed the district court’s preliminary injunction in “Coalition on Homelessness v. City of San Francisco,” and was told the city has not provided meaningful evidence it has complied with the injunction, setting Aug. 24 for plaintiffs to argue the court should appoint a special master to ensure San Francisco complies with the injunction the court issued last December. 

The original lawsuit centered around not only preventing the city from arresting and citing unhoused individuals without access to shelter, but also to prevent San Francisco officials from destroying unhoused individuals’ valuable personal property.

According to Public Good PR, the panel consists of the three Ninth Circuit Judges Patrick J. Bumatay, Roopali H. Desai, and Lucy H. Koh presiding. The Coalition on Homelessness is represented by the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (LCCRSF), ACLU of Northern California and Latham & Watkins LLP.

The U.S. District Court for the Northern District of California ruled in December San Francisco officials may not threaten to enforce sit/lie/sleep laws against involuntarily homeless individuals (defined by those who do not have realistic access to shelter or permanent housing amidst the City’s unprecedented affordable housing crisis). 

At that time, the court issued a preliminary injunction to ensure the city was complying with its order.

Zal K. Shroff, acting legal director with Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (LCCRSF) has stated, “Our position on the law and the basic facts in this case has not changed: San Francisco must not use handcuffs to solve what is really a housing problem. 

“The city had no good answer to that argument in today’s hearing. The hearing made clear the only obvious path San Francisco must take to end its street homelessness crisis—the housing-first solution San Francisco leaders have already acknowledged as the only effective way forward.”

While the point of the plaintiffs is to uphold a federal district court injunction that prohibits San Francisco from forcibly displacing unhoused people and destroying their belongings without providing adequate alternative shelter or affordable housing (as required by the U.S. Constitution), San Francisco City Attorney David Chiu had filed an appeal asking the Ninth Circuit to clarify the definition of “involuntary homelessness” (term being used as the basis to frame the legally available options available to San Francisco in how it approaches unhoused residents). 

Housing advocates claim the lawsuit has been a result of many years of bureaucratic failures regarding handling the city’s rising unaffordability crisis and therefore the resulting homelessness crisis with hundreds of residents losing their housing each year. More than 4,000 individuals currently sleep on the San Francisco streets with temporary shelter beds at functional capacity nearly every day of the year. 

A newly reopened housing waitlist has hundreds of people waiting for shelter placement. Plaintiffs claim the city is responsible to deliver on promises of providing genuinely affordable housing options, temporary shelter beds, and permanent housing units instead of wasting resources on ineffective encampment sweeps that ultimately entrench the homelessness crisis at a massive cost to taxpayers. 

Representing the appellants/city, Wayne Snodgrass and Joseph Lee had spoken. Snodgrass said the current budget for housing in San Francisco is $672 million, and that each year, San Francisco is housing thousands, with voters supporting legislation to enact special taxes to provide services. Snodgrass maintains the city has made “significant strides” by citing an increase of shelter beds by 1,000. 

Snodgrass added that in order to get individuals in these beds, San Francisco must utilize all available resources made by legislators and voters, and include laws that restrict the usage of public rights for the way of camping and sleeping. 

Snodgrass: “These laws are necessary in order to show that they are actually being used instead of living in an encampment.” Snodgrass added the district court did not make clear the definition of “involuntary homelessness,” a point which existed throughout the entire hearing. Instead, Snodgrass argued the Ninth Circuit Court had been relying on a “formula” which drew from decisions of Martin & Grant’s past.

As the language regarding the formula was stricken, Snodgrass points out, that ought to be proof enough that the language is indicative of legal error. He said it ought to not be considered “cruel and unusual punishment” to forbid sleeping on public property for four out of 24 hours, noting ordinance 647E, which does not prohibit sleeping publicly but would prevent lodging, and that it is only enforced if there are signs of shelter (such as a tent or anything similar).

Regarding the threat to enforce concerns, Snodgrass argued the January hearing had a suggestion that the mere presence of police, even silent, could be seen as a threat to enforce, but Snodgrass agreed with the 9th Circuit Court in that a written or verbal threat ought to exist, and a presence alone is not enough.

Joseph Lee on behalf of appellants said that if someone has access to available shelter, they are no longer “involuntary homeless” which would be consistent with Bar and Grant’s passing, saying this would be out of the scope of injunction. 

Both sides discussed the language of the injunction, regarding the scope only relating to involuntary homelessness and without connection to the formula. 

During rebuttal, David Chiu argued the city has never pointed to a specific location to be a safe harbor, and that this has been enforced across the city. 

Chiu added the record shows that the city, after advising individuals to move, will follow them and then tell them to move. “A modification can be made if the city does create a safe harbor.” He reminds the court the city is thousands of beds short, not simply five or a smaller quantity. 

Snodgrass argues essentially that findings in Grant ought to not apply as he claims that the homeless do have a place to sleep, sit, and Chiu’s argument is that this is not true, as the way that laws are enforced in San Francisco and it is showing that there is no safe harbor. 

Snodgrass noted the record does not distinguish between someone who is sleeping contrasted against someone who has tents on public property and while the latter is prohibited, sleeping alone is not. For out of 20 of the 24 hours, individuals are allowed to sleep in public places. 

After Snodgrass said the city was complying with the law and spending large sums on additional homeless shelters, Judge Lucy Koh said evidence shows “there are still individuals who are involuntarily homeless, so why should we vacate the injunction?”

About The Author

Audrey is a senior at UC San Diego majoring in Political Science (Comparative Politics emphasis). After graduation, Audrey plans on attending graduate school and is considering becoming a public defender.

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    1. David Greenwald

      “Plaintiffs have argued to uphold a federal district court injunction that prohibits San Francisco from forcibly displacing unhoused people and destroying their belongings without providing adequate alternative shelter or affordable housing as required by the U.S. Constitution.”

      What do you think would be accomplished by forcibly displacing unhoused people and destroying their property without providing shelter?

      1. Ron Oertel

        They would disperse, probably in more than one way and to more than one locale.

        Is there actually a shortage of “shelter” within the state?  If so, I’m aware of some prisons that will soon be unused.

        Maybe ask someone like Martha Stewart to work her magic on those.

        1. Ron Oertel

          Assuming that figure is correct, it wouldn’t surprise me.

          Weather, services, tolerance.  The trifecta of attracting the homeless.

          But I’m semi-serious regarding the repurposing of prisons.  I believe that this was Trump’s idea.

          Would also help communities negatively impacted by shutting down prisons.  An entire network of jobs providing services in those communities.

          And might return places like San Francisco to near-normalcy (whatever that means, in that particular city).

          Might take more than a few Martha Stewart type of “doilies”.

          In any case, it’s a lot better than what’s being done (or not done) right now, and is probably relatively cost-effective.


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