A FEDERAL MAGISTRATE judge is set to hear competing motions today that could dramatically alter life for homeless people on San Francisco city streets.

The requests arise from a preliminary injunction issued against the city on Dec. 23 in a case brought by the advocacy group Coalition on Homelessness and a number of individual plaintiffs, some of them unsheltered people living on city streets.

Based on the Eighth Amendment’s prohibition against cruel and unusual punishments, U.S. Magistrate Judge Donna Ryu enjoined the city from enforcing or threatening to enforce a variety of laws and ordinances that would “prohibit involuntarily homeless individuals from sitting, lying, or sleeping on public property.”

The judge based her ruling on the fact that the city did not have sufficient beds to provide shelter to all of the unhoused individuals in the city and therefore the homeless plaintiffs had no place to go and were essentially being prosecuted for the status of being homeless.

The city sought to clarify her order, arguing that it could be read to prevent all enforcement until adequate shelter was available for every unsheltered person, rather than simply requiring that each displaced person had an offer of a shelter bed.

People gather on the sidewalk near a homeless encampment at the corner of Golden Gate Avenue and Jones Street in the Tenderloin neighborhood in San Francisco on April 11, 2020. (Photo via U.S. District Court for Northern District of California/Bay City News)

San Francisco City Attorney David Chiu took the unusual step of issuing a news release to underscore the importance of the issue. In a Jan. 3 release he stated, “the Court’s order puts San Francisco in an impossible situation, practically and legally. I am concerned that this order, if interpreted broadly, will lead to more people suffering on our city streets.”

Mayor London Breed was even more direct: “Mayors cannot run cities this way,” she said in a statement. “We already have too few tools to deal with the mental illness we see on our streets. Now we are being told not to use another tool that helps bring people indoors and keeps our neighborhoods safe and clean for our residents.”

Meanwhile, lawyers for the plaintiffs have accused the city of “cavalierly” violating the court’s order in the two weeks since it was issued. They have filed their own motion asking the court, among other things, to appoint a special master to monitor the city’s compliance with the injunction.

The plaintiffs’ lawyers back their position with affidavits from individuals who have observed encampment closures after the injunction and allegedly saw repeated instances where people were coerced into moving from their encampment without a place to go.

The court is expected to hear both motions at a Jan. 12 video status conference, along with the city’s motion to dismiss parts of the case.

The stakes

Even allowing for the usual hyperbole of lawyers, the stakes in the case are enormous.

The core question is what the city must do before it may undertake the “closure” of a street encampment. Closure is the term the judge employed to avoid the more loaded term “sweep.”

The city says the judge’s order can be read to provide that there may be no closures as long as the city does not have enough beds to provide shelter to every one of San Francisco’s unsheltered individuals.

If that is the proper reading, closures are effectively ended in the foreseeable future because the parties agree that San Francisco is short several thousand beds to cover all unsheltered people.

According to the city, the court should clarify that the offer does not prevent closures as long as the particular individuals who would be displaced are first given an offer of shelter, even if they don’t accept it.

The city lawyers base their argument on the term “involuntarily homeless individuals” in the injunction and argue that a person who has an offer of shelter is not “involuntarily homeless.” If the offer is accepted, the individual has shelter; if rejected, the person may be homeless but is not involuntarily so.

The city lawyers predict a parade-of-horribles if the order halts all closures until the shelter bed shortage is eliminated.

A recent report prepared for the Board of Supervisors by the city’s Department of Homelessness and Supportive Housing found that as of February 2022, the date of the last official homeless count, there were 7,754 homeless individuals in the city. Of that number, 4,397 were “identified as sleeping in unsheltered locations.”

The report outlined a plan to reduce that number of unsheltered individuals to zero over a three-year period.

The cost? According to the department’s estimates, it would take $1.45 billion beyond what the city has currently appropriated to get to zero in three years, and that does not include costs to maintain homelessness at zero after the three-year period.

Funding that amount at any time would be a heavy lift, but it comes at a time when the city is projecting a budget shortfall of more than $700 million over the next two fiscal years.

And the lack of resources is not the only problem.

The report concludes that the difficulties of acquiring and building appropriate housing, creating new services and interventions, and preventing new instances of homeless mean that “it is not feasible for HSH to scale up the amount of housing, shelter, and prevention programming needed within the 3-year timeframe to end unsheltered homelessness.”

In other words, if every unsheltered person has to have a bed, San Francisco will not be able to close any encampment any time in the foreseeable future.

The plaintiffs’ position

Lawyers for the plaintiff don’t accept the city’s framing of the question. They argue that the evidence presented at the preliminary injunction hearing showed that the city no longer allows individuals to seek admission to shelters on their own behalf because “the system is full and effectively closed.”

Relying on affidavits of monitors who observed closures even after the injunction was put in place, the plaintiffs say the city routinely makes offers of shelter before knowing whether a bed will actually be available and forces homeless people to move before the city even learns about availability.

“They always do the same thing, say they have something then it turns out to be nowhere for us to stay.”

Unhoused San Francisco resident

The plaintiffs quote one unsheltered person stating about the city, “they always do the same thing, say they have something then it turns out to be nowhere for us to stay.”

The plaintiffs urge the judge to find that the city has repeatedly violated her order by intimidating and misleading unsheltered individuals into breaking up their camps even though they do not have bona fide shelter available.

The extreme weather conditions that San Francisco has experienced in the time since the injunction was entered has added more drama. One monitor who observed a closure on Jan. 4 stated in an affidavit, “When I arrived, it was already raining. This was the beginning of a “bomb cyclone”-fueled storm when people were urged to stay home and not travel if at all possible … City workers indicated that they intended to power wash the street, just before an intense rain storm.”

The Martin case

The dispute over the scope of the injunction will involve examination of the 2018 decision of the U.S. Court of Appeals for the 9th Circuit in Martin v. City of Boise.

The Martin court prefaced its decision with the famous quote from the French writer Anatole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges.”

The court went on to rule that the Eighth Amendment’s prohibition of cruel and unusual punishment prevents “prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.”

Otherwise, the person would essentially be punished solely for the status of being homeless.

The Martin court said its holding was a “narrow one.” It did not require a city to provide shelter for homeless people, nor did it say that a homeless person must be allowed “to sit, lie, or sleep on the streets … at any time and at any place.”

A homeless encampment is shown at the corner of Golden Gate Avenue and Jones Street in the Tenderloin neighborhood in San Francisco on April 11, 2020. (Photo via U.S. District Court for Northern District of California/Bay City News)

However, “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” the ruling said.

A footnote added, “Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it.”

The city seizes on the language of the footnote to urge that Martin be applied on an individualized, case-by-case basis. Even if there is an overall shortage of beds, if a vacancy opens and is offered to an unsheltered individual, that person is not “involuntarily homeless” and can be moved even if he or she declines shelter.

Some light on the issue comes from a September 2022 decision by a three-judge panel of the 9th Circuit that allowed the court to certify a class action of homeless individuals to challenge “anti-camping” ordinances.

The panel split 2-1 in favor of the class action despite the vigorous dissent of one judge who argued that because “Martin requires an assessment of each person’s individual circumstances in order to determine whether application of the challenged ordinances violates the Eighth Amendment,” the class action procedure was not appropriate.

A petition for reconsideration of the ruling by the full 9th Circuit panel of judges is pending.

The Hastings injunction

The city’s argument in favor of clarification has an added twist.

In 2020, the city was sued in federal court by what was then known as the Hastings College of the Law.

Hastings, located in the Tenderloin neighborhood of San Francisco, challenged the city’s failure to close encampments near the law school on grounds, among others, that they amounted to a denial of due process and the creation of a public nuisance.

The case resulted in the parties reaching an agreement to a “stipulated injunction,” approved by the court. The city agreed that it would close more street encampments in the Tenderloin neighborhood and would also take action to prevent re-encampments.

The city now argues that its obligations under the Hastings injunction are in conflict with its obligations under Judge Ryu’s injunction, at least if the latter is interpreted as the city fears it will be.

The city cites that conflict as another reason why the clarification it seeks is appropriate.

The plaintiffs’ scathing response is that the city was well aware of the Hastings injunction when it presented its case on the preliminary injunction and now is simply trying to get another bite at the apple. But even if the city were allowed to raise the issue at this stage, the plaintiffs see no conflict because the Hastings injunction required all the parties to “respect the legal rights of the unhoused of the Tenderloin in all manners, including in relation to relocating and removing the unhoused.” Those rights would presumably include their rights under the Eighth Amendment.

The Court’s options

The judge has a number of options. She could decline to provide clarification of her order at this time and just address the specific violations of her order that the plaintiffs raise, on the theory that the city hasn’t shown that it actually has beds to offer to the homeless in the camps that it has closed. This would put the city to the test of whether it can comply on a case-by-case basis and push the larger issue down the road to be addressed, if necessary, as the case develops.

She could accept the city’s argument and make clear that her order does not prevent closure of an encampment if each of the displaced people has been given a genuine offer of a bed. That would likely lead to ongoing questions of whether the city — with an essentially full system — actually has beds to offer. It also ignores the underlying fact that the over-burdened shelter system is essentially a zero-sum game; if the city offers beds to a group of people in order to close their site, other unsheltered individuals who might have had access to those beds will not.

She could also clarify her order by making clear that there can be no closures until the city-wide bed shortage is alleviated, putting the city to the difficult task of figuring out whether it is better to actually solve the homelessness issue in the city or live with the current situation. That approach — reminiscent of positions taken by some federal judges in prison overcrowding cases — would likely result in an outcry from city leaders and an immediate appeal.

The hearing will be held on Thursday, Jan. 12, at 1 p.m.