(CN) — The Ninth Circuit Court of Appeals heard oral arguments Thursday in Sacramento's a challenge to a succession of rulings ordering the city and county to halt homeless encampment sweeps on days with extreme heat.
The Sacramento Homeless Union has for two summers in a row requested a preliminary injunction temporarily barring officials from clearing homeless encampments on days where the temperature exceeds 90 degrees Fahrenheit. A federal judge granted the injunction both times, in 2022 and 2023.
The Homeless Union, which claims to represent some 2,700 people living without a home Sacramento, sought the injunction under the "state-created danger doctrine," which holds that it is unconstitutional for a state actor to place people in conditions where they could be harmed.
"The majority of the visibly homeless reside in encampments shaded by freeway overpasses, trees and vegetation and which include homeless-built makeshift habitations with covers that offer some defense against extreme heat," the union argues in its complaint. "Consequently, the city’s eviction of the homeless from these locations onto the unprotected streets and sidewalks or into sweltering tents atop heat-absorbing asphalt surfaces 'Safeground' parking lots, is affirmatively increasing the risk of harm to the unsheltered."
"This lawsuit is not about challenging the practice, the policy of clearing encampments," said Sacramento Homeless Union attorney Anthony Prince. "We are challenging the custom and practice…. of moving people out of areas where they had protection from the heat and sun."
Lee Roistacher, the attorney representing the city and county during the appeal, argued the courts had no authority to pause the sweeps.
"It’s a difficult issue," he told the three-judge panel, "but in our view it's a political and legislative issue. It’s not a constitutional issue." He added that encampment cleanups are about protecting the health and safety of every in the city, and that "the government's obligations to all its citizens shouldn’t be put on pause."
The judges appeared befuddled by the case; one called it "very peculiar" in that there appeared to be a pattern of annual temporary injunctions, but no trial and no formal discovery period, though the city has filed a motion for judgment on the pleadings.
The panel also seemed to think the matter may be moot.
The appeal concerns last summer's preliminary injunction, which expired in the fall. Though the Sacramento Homeless Union is likely to ask for another injunction this summer, it's unclear whether the court will agree to one.
"Why should we spend our time on an order that’s expired and on a situation that may or may not happen?" asked U.S. Circuit Judge M. Margaret McKeown, a Bill Clinton appointee.
But both parties said they wanted a ruling.
Roistacher suggested that the court could issue an advisory opinion saying the "state-created danger doctrine cannot apply to clearing homeless encampments when the purpose of that is to remedy the real health and safety impacts to the broader community."
U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, posed a question to the Homeless Union's lawyer, Anthony Prince: "Next summer, if the city moved homeless people to a place that had shade, would you have a claim?"
Prince said that if the city were moving homeless people to a "relatively safer area" then there would be no state-created danger.
But Roistacher took issue with that suggestion, saying that it amounted to a "backdoor" constitutional requirement to shelter all homeless people. New York has such a requirement, thanks to a 1981 settlement of a class action case. California does not.
The panel was rounded out by U.S. Circuit Judge David Alan Ezra, a U.S. district judge in Hawaii, sitting by designation. The panel took the case under submission.
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