By Linda Badger

Homeless encampments represent a public failure – a manifestation of the desperation of those living on the streets and a threat to the health, safety and livelihoods of our neighborhoods.

To address this problem, San Francisco maintains free shelters and enforces laws and ordinances against “urban camping.” Unlike many cities, San Francisco does not have an outright ban on people sleeping or lying on sidewalks. For example, San Francisco Police Code Section 168 states that, “during the hours between 7 a.m. and 11 p.m., it is unlawful to sit or lie down upon a public sidewalk, or any object placed upon a public sidewalk.”

Laws against tents or lodgings are more stringent. Police Code Section 169 state: “In the City and County of San Francisco, it is unlawful to place an encampment upon a public sidewalk.” Prior to removing any encampment, however, this provision requires that the City give encampment dwellers 24-hour advance notice, store their personal property for later retrieval, and most importantly, offer available shelter to all inhabitants of the encampment being removed. To follow this policy, City officials must find an available bed in a shelter to offer to individuals before removing their encampments. If the individual refuses shelter, the encampment can be removed.

Despite these laws and ordinances, homeless encampments persist. Homeless advocates blame the City’s severe shortfall in shelter beds. Lately politicians, including Mayor London Breed and Gov. Gavin Newsom, have been blaming the courts. In the Ninth Circuit, courts have found cities liable for violating the Constitution’s Eighth Amendment ban on “cruel and unusual punishment” by criminalizing homeless encampments when their inhabitants have nowhere else to go. The legal issue of whether the Eighth Amendment can be used for this purpose is likely to go before the United States Supreme Court soon. In the meantime, local politicians continue to point fingers at a “sweeping” District Court Preliminary Injunction inhibiting encampment removals in San Francisco since 2022.

This controversial injunction resulted from a lawsuit brought in District Court by the Coalition on Homelessness and the ACLU on behalf of seven homeless individuals who alleged the City violated their Constitutional rights by removing their encampments without first offering them an available shelter bed, as required by San Francisco’s own policies. The Magistrate judge noted that had San Francisco followed its own policies, it would not have run afoul of the Constitution. Because the Magistrate judge believed that homeless advocates had presented compelling evidence of illegal removals by the City, and that the City had presently only “thin” evidence that it made prior offers of shelter, she entered a preliminary injunction to prevent future violations when enforcing five “sit, lie or sleep” laws and ordinances, pending a full trial on the merits in 2024.

The wording of the preliminary injunction enjoins the City from enforcing or threatening to enforce five laws or ordinances that “prohibit involuntarily homeless individuals from sitting, lying or sleeping on public property,” including San Francisco Police Codes 168 and 169. The Court quotes Ninth Circuit precedent holding that individuals given access to “adequate temporary shelter,” would not be considered “involuntarily homeless,” and even notes that San Francisco’s written policy of offering shelter before removing an encampment is constitutional.

In this context, the preliminary injunction appears to require San Francisco to do little more than follow its existing written policy of offering a homeless individual an available shelter before removing his/her encampment. If that individual rejects the offer, they would not be “involuntarily homeless,” and the injunction would not apply.

Paradoxically, the City claimed that the injunction prohibits San Francisco from removing any encampments unless and until it can provide enough shelter beds for all of its thousands of homeless inhabitants. According to the San Francisco city attorney: “[T]he district court’s ruling, requiring that San Francisco provide housing for every person experiencing homelessness before it can enforce many of its most important laws as to particular encampments, places San Francisco in an impossible situation.”

With a homeless population of more than 7,000 and shelter beds for approximately 3,000, San Francisco’s interpretation of the preliminary injunction means that its encampment laws would not be enforceable in the foreseeable future. Because of the injunction, San Francisco Police were informed in a department notice that they could “NOT use, enforce, or threaten to enforce the [five laws and ordinances] to prohibit homeless individuals from sitting, lying or sleeping on public property.”

San Francisco’s draconian interpretation made the national news and angered many residents. The city attorney asked the Magistrate judge to clarify the injunction, but she rejected the request on procedural grounds, inviting a proper motion. Instead, the City appealed the issue to the Ninth Circuit Court of Appeals. On Aug. 23, while Breed conducted a rally against the “crippling” injunction outside of the courthouse, the City asked the Ninth Circuit Court of Appeals to, among other things, vacate or modify the injunction.

During the argument before the Court of Appeals, the judges as well as attorneys for the plaintiffs appeared perplexed by the City’s argued interpretation, which one judge said seemed “manufactured.” Ultimately, the Court of Appeals declined to modify the injunction because, “the parties agree that a person is not involuntarily homeless if they have declined a specific offer of available shelter or otherwise have access to such shelter or the means to obtain it.” In other words, San Francisco can enforce its sit, lie, sleep and encampment rules as long as it offers an available shelter bed to the individual whose encampment is being removed, which was basically SFPD’s pre-injunction written policy.

Next year, assuming there is no settlement of the matter, the District Court will hold a trial to determine if San Francisco violated the Constitutional rights of seven homeless plaintiffs whose encampments were removed, allegedly without an offer of shelter. The more impactful issue to be addressed by the courts (and likely the U.S. Supreme Court), however, is whether removing an encampment without an offer of shelter constitutes “cruel and unusual punishment” in cities like San Francisco, which do not have outright bans on sleeping or lying in public. The City of San Francisco is arguing that it is under no constitutional obligation to make an offer of shelter before removing encampments because there are miles of other public spaces where homeless individuals can legally sleep on a sidewalk or in a park, 20 out of 24 hours of the day.

After spending millions of dollars to address San Francisco’s homeless problem, the legal resolution sought seems to be the age-old solution of having the police roust desperate people sleeping on the streets to tell them to “move along.” This will certainly help politicians intent on cleaning up the City before big events, such as the recently held Dreamforce conference or the upcoming Asian Pacific Economic Cooperation Summit scheduled for Nov. 12-18, but it does nothing for the poor, the mentally ill, or the addicted who need economic and medical help.

Linda Badger is a Richmond District resident, lawyer and writer who contributes to the Richmond Review and Sunset Beacon newspapers.