Limits on clearing San Francisco homeless encampments upheld by 9th Circuit

(Eric Risberg/Associated Press)

Limits on clearing San Francisco homeless encampments upheld by 9th Circuit

Homepage News, California Politics

Kevin Rector

January 11, 2024

A court order limiting San Francisco’s ability to clear street encampments of people with nowhere else to go will remain in effect while the lawsuit continues, a federal appeals court ruled Thursday.

The ruling by a three-judge panel of the U.S. 9th Circuit Court of Appeals marked a substantial victory for the Coalition on Homelessness, a progressive advocacy group that secured a preliminary injunction by challenging San Francisco’s encampment clearance policy as fundamentally unjust and illegal in the past. court decisions that protect the rights of homeless people to sleep in public in certain situations.

Thursday’s ruling is the latest decision in a sprawling legal debate over homelessness in the American West and how local jurisdictions can legally address it. The debate has pitted progressive activists and advocacy groups against liberal leaders such as San Francisco Mayor London Breed and Governor. Gavin Newsom, who along with many of their constituents have been frustrated by the spread of encampments in downtown and other neighborhoods since the COVID-19 pandemic began.

The debate has also raised tensions between liberal and conservative judges of the 9th Circuit, including in a separate case from Grants Pass, Ore. that is under consideration by the U.S. Supreme Court.

In its decision Thursday, the 9th Circuit panel declined to consider several arguments in favor of stricter enforcement measures that San Francisco and a coalition of other California cities had raised in recent filings, saying they were not properly manner were argued or substantiated with facts in the documents. lower subdistrict court. However, the justices recognized that the ban only applies to “involuntarily homeless people,” or those who have not been offered alternative housing or shelter by the city, and ordered the lower court to clarify this point.

In recent months, San Francisco has tried to justify its continued activities to clear camps by saying they are occupied by people who have been offered shelter or housing.

The appellate judges also ordered the lower court to specify that the order prohibits the city from “threatening to enforce” the imposed laws but does not preclude the mere presence of police officers near encampments.

John Do, a senior attorney with the ACLU of Northern California who is representing the coalition, said Thursday’s order should ensure that San Francisco continues to ramp up resources and provide shelter and housing for the homeless, rather than simply criminalize poverty.

“It’s a resounding victory,” he said.

Jen Kwart, a spokesperson for San Francisco City Atty. David Chiu said they appreciated that the appeals court “reaffirmed and further clarified that the order only applies to people who are involuntarily homeless, and not to those who have refused an offer of shelter.”

However, Kwart said her office was “disappointed” by the court’s decision not to consider the city’s arguments in the appeal, including around the scope of the restrictions, which she said raised critical legal questions about solving homelessness left unanswered.

“Cities cannot reasonably be expected to solve homelessness while operating under this uncertainty,” Kwart said. “At some point, a court will have to clarify the law in this area, and it is disappointing that in the midst of an intense homelessness crisis, we all have to continue to wait for that clarification.”

Breed’s office declined to comment on the pending lawsuit, but released figures Thursday claiming that the number of people connected to shelter or housing increased by 22% last year, and that 64% of people with whom city staff had contact in camps, ‘refused the offer of shelter’. or reported that they already had shelter or housing.”

Gov. Gavin Newsom said in a statement that the ruling “would only cause further delays and confusion as we work to address homelessness.”

Liberal justices have argued that the Constitution and specifically the 8th Amendment provision


against cruel and unusual punishment and excessive fines, protects the right of homeless people to sleep in certain public spaces, with certain protective equipment, if they have nowhere else to go. Conservative justices have rejected that idea, arguing that there is a long legal tradition of local jurisdictions enforcing anti-vagrancy laws.

Circuit Judge Lucy H. Koh, who wrote the court’s opinion on Thursday, was joined by Circuit Judge Roopali H. Desai; both were appointed by President Biden. Circuit Judge Patrick J. Bumatay, who was appointed by President Trump, disagreed.

Koh wrote that the lawsuit “raises difficult and important legal questions, with real stakes for San Francisco and the thousands of unhoused individuals who call San Francisco home.” But, Koh added, the appeals court could not delve into city arguments about geographic and time limits on camp restrictions that had never been imposed by the lower court.

Going forward, the lower court should consider whether the city’s rules “give involuntarily homeless people a realistically available place to go,” Koh wrote.

Koh wrote that her panel was bound by the 9th Circuit’s past precedent on the 8th Amendment in such cases, but noted that the Supreme Court could soon review existing precedent.

Bumatay wrote in his dissent that the 9th Circuit has repeatedly misinterpreted the 8th Amendment’s protections when it comes to homeless encampments, endangering public safety.

It “cannot be cruel and unusual to prohibit homeless people from sleeping, camping and staying wherever they want, whenever they want,” Bumatay wrote. “While they are entitled to the utmost respect and compassion, homeless people are not immune to our laws.”

Newsom has called on the conservative-leaning Supreme Court to take up the Grants Pass case and rule in favor of local municipalities trying to rein in public encampments. He said Thursday’s ruling reinforces the need for such an intervention. Do, the coalition’s attorney, called Newsom’s position “very, very troubling.” “It is incredibly unfortunate and shameful for our policy leaders to scapegoat unhoused people for their own policy mistakes,” Do said. “Homelessness does not come out of the blue. It is a direct result of the lack of investment in affordable housing.”


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