Federal Judge Refuses to Extend Injunction to Protect Unhoused from Elements – Homeless Union Hopeful Court Will Agree to Renew Order before Mid-September

Possessions of a homeless person on Capital Mall Drive in Sacramento on Saturday, September 11, 2021.(Photo by Robert J Hansen)

By Crescenzo Vellucci

The Vanguard Sacramento Bureau Chief

SACRAMENTO, CA – A federal judge here Wednesday chose to not extend an injunction designed to protect the unhoused from extreme August heat, allowing the injunction to expire at the end of the month, according to the Sacramento Homeless Union.

“Plaintiffs’ decision to file their motion a day before the expiration of the injunction is not well taken. Based on Plaintiffs’ delay and the cooler forecast ahead, the Court will not extend the injunction until Defendants have an opportunity to respond,” said U.S. District Court Judge Troy Nunley, noting he’ll make a decision after he’s received both parties’ motions Sept. 11.

“The judge is right: we did wait to the last minute to file, but that was because several times in the litigation the question has come up that the more recent the forecast, the more reliable it is especially with longer range forecasts, like monthly,” said union chief counsel Anthony Prince to The Vanguard Wednesday.

“It’s a disappointment but I still think there are enough excessive heat days in September that he will reinstate the injunction after the City has a chance to oppose and we file a reply,” added Prince in his message to The Vanguard.

A check on Sacramento shows temperatures increasing to the mid-90s again late next week after a cool down this coming weekend into the 70s and 80s.

The union said it’s disheartened by Nunley’s decision to allow full briefing on the issue, and “for now, (the judge) has decided against extending the injunction prohibiting the City from clearing encampments during extreme temperatures.”

“The Union is doing the best it can under difficult circumstances with very limited legal resources, and we did wait to file in order to get the most current forecast. But we do understand the Court’s concern regarding the City’s right to file an opposition. It is also true that temperatures are expected to drop over the next few days, but according to the monthly forecasts we submitted to the Court, 90 degree-plus temperatures will be back by the second week of September,” said the union.

“(W)we hope, but do not expect, that the City voluntarily abstain from removing unhoused persons from shaded areas over the next week because temperatures are still going to be high in the mid and upper-eighties…are confident that in the end, the Court will uphold the right of the unhoused to seek shade and shelter in circumstances which the Court previously described as being ‘a matter of life and death,’” said Prince.

“In any event,” he added, “the case is not over and we remain hopeful that Judge Nunley will reinstate the injunction when the next extreme heat wave occurs…the Union will continue to document harm caused by the sweeps, which the City is still doing in violation of the injunction as they did when they swept City Hall Plaza earlier this month.”

In its motion Wednesday, the union asked the court to extend the original Aug. 16 order banning the city from clearing homeless encampments through Aug. 31 until the end of September. 

The homeless union asked for the city “remove and cease and desist from displaying signs prohibiting persons from sitting, lying or having personal and survival items at City Hall Plaza (and) “refrain from deterring the unhoused by way of signage, threats, excessive police presence or disregard of campers’ safety while cleaning the Plaza or in any other manner.”

The union also is asking the court to require the city to “post large, visible official notices at City Hall informing campers, employees, contractors and the public that unhoused persons have a right to remain at City Hall so long as the injunction is in place.”

Finally, the union is asking the city to “immediately take steps to remedy hazards and other dangerous conditions at Miller Park identified by Plaintiffs following the August 22, 2023, tour” (and the city) “permit Union representatives to return to Miller Park this week and at least two more times during the pendency of this Order in order to talk with residents and otherwise continue documenting hazards and making recommendations for their elimination.”

Sacramento Homeless Union Charges City’s Miller Park Safeground Tour Reveals ‘Problematic Health and Safety Concerns’

The Sacramento Homeless Union argued “weather-related conditions that gave rise to this Court’s successive Orders for injunctive relief beginning over a year ago remained evident in August of this year and are forecasted to recur in September. Here where those rudimentary precautions include finding shade and shelter from the blazing sun, this Court should continue to uphold the right of unhoused Sacramentans to “engag[e] in conduct necessary to protect themselves from the elements.”

“There has been no change in the essential facts or the law that justified the prior orders. Indeed, if anything the rule set forth in Martin v. Boise has been underscored in the case of Johnson v. Grants Pass, decided September 28, 2022, five days after the expiration of (the) Court’s second heat-related Order for preliminary injunction. In Johnson, the Ninth Circuit described the ordinance in question as ‘enforced against homeless individuals who take even the most rudimentary precautions to protect themselves from the elements,’” added the union.

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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