SAN FRANCISCO (CN) — San Francisco’s battle with a coalition of unhoused people who say the city’s ban on resting on public streets violates their civil rights is back in the hands of a federal judge. A Ninth Circuit panel on Thursday remanded the case, which has drawn attention to the debate over the civil rights of unhoused people and how cities can enforce bans on camping on public property in a state with some of the highest homeless populations in the country.
U.S. Chief Magistrate Judge Donna Ryu ruled in 2022 that San Francisco officials cannot threaten enforcement of "sit/lie" public sleeping laws against involuntarily homeless individuals — meaning people who do not have access to shelter or permanent housing. The city appealed the judge's injunction barring enforcement of public resting ordinances, saying the order was so vague it interfered with the city's ability to enforce other laws on homelessness.
U.S. Circuit Judges Patrick Bumatay, a Donald Trump appointee, and U.S. Circuit Judges Lucy Koh and Roopali Desai, both Joe Biden appointees, affirmed in a ruling Thursday that Ryu did not abuse the court's discretion by requiring the city to comply with its “bag and tag” policy for removing people’s property from streets.
The order rebuffed city officials' argument distinguishing San Francisco’s ordinances from those cited in the landmark case Martin v. Boise, which bars cities without enough shelter beds from moving unhoused people, because the city allows people to sleep in public during certain hours.
“The city has not challenged the propriety of preliminary injunctive relief on plaintiffs’ Fourth Amendment claims and has not shown that the district court abused its 'considerable discretion' in fashioning a remedy,” Koh wrote in the order.
"To the extent the district court did not make clearer findings about whether the encampment closures leave involuntarily homeless individuals with nowhere else to go, that is because the city did not put that issue before the court despite multiple opportunities to do so."
The panel remanded the case to San Francisco court to clarify that the preliminary injunction applies only to the city’s enforcement of laws against those who are found to be involuntarily homeless.
The circuit court said Judge Ryu should also consider whether enjoining the city’s enforcement was appropriate, since its ordinance can't be enforced without an offer of available shelter — meaning the city must contact a person to give them shelter options before removing their personal belongings.
“To prevent harm to plaintiffs, the current preliminary injunction remains intact while the district court reconsiders its scope and makes any necessary clarifications,” Koh wrote.
The injunction does not prevent nebulous “threats,” nor threatening behavior toward people, and only prohibits the city from “threatening to enforce” ordinances against involuntarily homeless individuals for sitting, lying or sleeping on public property, the panel found.
Koh said the preliminary injunction remains in effect only while litigation continues.
“Should the number of shelter beds surpass the number of homeless individuals before entry of final injunction, the preliminary injunction provides an escape hatch,” the judge wrote. "As noted above, the city may still take enforcement action against individuals who are not involuntarily homeless while the preliminary injunction remains in effect.”
Writing in dissent, Judge Bumatay said the "radical" injunction should be vacated.
Nothing in "the text, history and tradition of the Eighth Amendment" prohibits enforcement of commonplace anti-vagrancy laws, like laws against sleeping on sidewalks and in parks, Bumatay said, accusing Judge Ryu of "judicial tinkering."
He said the lower court’s broad injunction falls starkly outside the original meaning of the cruel and unusual punishments clause and disregarded a history of anti-vagrancy laws.
"Our decision is cruel because it leaves the citizens of San Francisco powerless to enforce their own health and safety laws without the permission of a federal judge," Bumatay wrote. "And it’s unusual because no other court in the country has interpreted the Constitution in this way."
San Francisco Mayor London Breed, who said in August 2023 that she plans to take the case to the Supreme Court, declined to comment. Jen Kwart, the city attorney's communications director, said the city appreciates the Ninth Circuit panel's directing the district judge to narrow the injunction.
"San Francisco raised numerous issues demonstrating the many complicated, unresolved legal questions created by Martin v. Boise and Johnson v. Grants Pass," Kwart said. "We are disappointed the panel chose not to answer any of those questions at this stage. Cities cannot reasonably be expected to solve homelessness while operating under this uncertainty. At some point, a court will need to clarify the law in this area, and it is disappointing that in the midst of an intense homelessness crisis, we all must continue to wait for that clarification."
Attorneys for the plaintiffs said in a statement that the panel's order came on the same day the city announced a 22% increase in the number of people connected to shelter or housing in 2023.
Nisha Kashyap, senior staff attorney at Lawyer’s Committee for Civil Rights of the San Francisco Bay Area, said “San Francisco should now get serious about real solutions to homelessness rather than wasting millions of dollars using handcuffs to solve a housing problem. If we want to solve homelessness, we need more affordable housing."
John Do, senior staff attorney with ACLU of Northern California, said that the order affirms that San Francisco's unhoused residents have the right to be free from citation and arrest for not having shelter.
“It’s clear San Francisco can address this challenging issue, supported by the preliminary injunction in place, because all the injunction requires the city to do is to follow its own policies and the law," Do said.
Follow @nhanson_reports
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Newsom’s ‘May revise’ trims budget to $288 billion May 10, 2024 -
