Injunction against San Francisco's encampment sweeps left in place by appeals court

The U.S. Court of Appeals for the 9th Circuit on Thursday left in place an injunction against the city of San Francisco that prevents the city from clearing encampments without first offering the residents shelter.  

It all stems from Coalition on Homelessness v. City and County of San Francisco, a lawsuit filed in federal court in the fall of 2022. The plaintiffs in the case are hoping to prevail based on the federal appeals court decision Martin v. Boise, which ruled cities cannot move or displace people living on the street if they do not first offer them shelter, or if there is no shelter available for people in the first place.  

At issue also is Johnson et al v. City of Grants Pass, a 2020 decision that clarified issues raised in Martin v. Boise, citing the Eighth Amendment's Cruel and Unusual Punishment Clause as it relates to regulating homelessness.  

Dehumanizing encampment sweeps

The Coalition's case essentially argues that San Francisco has been conducting dehumanizing encampment sweeps that flew in the face of both city and federal law.  

The contentious and controversial case now returns to the lower federal district court that issued the injunction for clarification of the scope of the injunction and consideration of arguments that the city tried unsuccessfully to raise during the appeal without first raising them with the judge that issued the injunction.  

The ruling largely means the status quo will continue and is a blow to the city's hopes of gaining more flexibility with dealing with its extensive homelessness problem.  

The preliminary injunction was issued in December 2022 and bars San Francisco from exercising its so-called "sit/lie/sleep" or "anti-camping" ordinances against "involuntary homeless individuals" while there is a shortage of shelter beds. The ruling was "preliminary" because the full-scale trial in the case is set to happen later this year.  

Refusal of offered shelter

Though the Coalition on Homelessness said the 9th Circuit decision affirmed the lower court's ruling, the city attorney's office said Thursday that it "appreciates" the Ninth Circuit's clarification that the injunction "only applies to people who are involuntarily homeless, not those who have refused an offer of shelter." 

San Francisco maintains that, though the city needs 4,000 more shelter beds to meet the needs of unhoused residents, it always offers shelter to anyone it is attempting to displace by clearing encampments. 

The city's lawyers argue that if an offer of shelter is made in accordance with Martin v. Boise but rejected by the homeless individual, then the city should be free to enforce anti-camping laws, even with a shortage of shelter beds. Individuals that decline offers of shelter are not involuntarily homeless, the city argues.  

In the appeal, the Coalition on Homelessness argued that they did not oppose the city's policy of offering shelter before enforcement, but the organization asserts that in reality, the city routinely falls short of this promise and "criminalizes lying, sleeping, and sitting outside when they have no realistic alternative." 

"The parties offered starkly different accounts of the way encampment closures are carried out," reads Judge Lucy Koh's opinion Thursday. "The district court found the Plaintiffs' evidence more convincing and entered a preliminary injunction." 

New arguments rejected

Koh rejected the city's attempt to raise several new arguments during the appeal. Koh agreed they deserved further consideration, but not by her court.  

San Francisco argued that geographic and time limitations on some of the enjoined ordinances sets them apart from the Martin v. Boise case. 

"The City argued for the first time that the shelter offers were irrelevant because, unlike in Martin [and Johnson, another case], the challenged enforcement actions do not leave unhoused individuals with nowhere else to go -- instead, they require individuals to relocate from specific encampment sites and only at certain times," wrote Koh.  

Since the city hadn't raised this argument in the district court, the Ninth Circuit did not consider it. 

Praise for decision

On Thursday, the Coalition on Homelessness' attorneys praised the decision.  

"As the court has affirmed, San Francisco's homeless residents also have rights," said American Civil Liberties Union of Northern California attorney John Do, who represents the plaintiffs. "The right to be free from citation and arrest for their status." 

In his dissent, 9th Circuit Judge Patrick Bumatay questioned the scope of Martin v. Boise and said the injunction should be "vacated immediately." 

"Nothing in the text, history, and tradition of the Eighth Amendment's Cruel and Unusual Punishment Clause come close to prohibiting enforcement of commonplace anti-vagrancy laws, like laws against sleeping on sidewalks or in parks," reads the decision summary of Bumatay's opinion. "The district court's broad injunction falls starkly outside the original meaning of the Cruel and Unusual Punishment Clause, disregards the long history of anti-vagrancy laws, and broadly expands Martin." 

New arguments ahead

The exact parsing out of the legality of encampment sweeping will most likely come out when the lawsuit heads to court some time this year, said Kwart. The lower court will modify the injunction based on the 9th Circuit decision, and the city attorney's office said it plans on bringing all of its additional arguments to litigation.  

Kwart said that there are a number of "big, unresolved legal questions" following the Martin decision and that she had hoped the appeal would have resolved some of them, but it didn't.  

"Maybe these issues will eventually be resolved in our case or in another case from another city," she said.  

"We acknowledge that this litigation raises difficult and important legal questions with real stakes for San Francisco and the thousands of unhoused individuals who call San Francisco home," wrote Koh. "As our dissenting colleague admirably states, our goal is to get the law right. Allowing the district court to develop the record and consider the City's new arguments in the first instance makes it more likely that we will." 

Gov. Newsom reacts

Gov. Gavin Newsom released a statement after the 9th Circuit's decision on Thursday saying that it create further delays for cities trying to solve homelessness and "offers a troubling invitation to continued litigation."  

"This ruling reinforces the need for the United States Supreme Court to provide clarity in this space by granting review in the Grants Pass case when it considers this matter later this month," said Newsom, whose office filed an amicus brief to the Court urging it to review Johnson v. City of Grants Pass. 

In:
• Gavin Newsom
• London Breed
• Homelessness
• San Francisco