One month to the day after a federal judge enjoined the city of San Francisco from sweeping homeless encampments, the city filed an appeal Monday and said it will ask the appeals court to put the injunction on hold while the appeal is pending.

The appeal prompted a sharp reaction from Zal Shroff, one of the plaintiffs’ lawyers. “The City’s appeal is a disingenuous, nakedly political move that will cost all San Franciscans in the long run,” Shroff said.

A tent at a homeless encampment on 13th Street in San Francisco is pictured on Jan 12, 2023, before it was cleared from the sidewalk by city workers and discarded. (Photo by Joe Dworetzky/Bay City News)

The appeal and the expected stay request mark the latest escalation in litigation brought against the city, Mayor London Breed and several city departments by the Coalition on Homelessness, a nonprofit advocacy group, and several individuals, including some who have experienced homelessness.

On Dec. 23, U.S. Magistrate Judge Donna Ryu preliminarily 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 plaintiffs were essentially being prosecuted for the status of being homeless. In her opinion, that violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

San Francisco, represented by the City Attorney’s Office, quickly moved for a clarification of the order, fearing it would be read to mean that there could be no encampment closures until there was a bed for every unsheltered person in the city.

The city argued that the order should be read to mean that as long as every person displaced by the city was offered a shelter bed or other housing, the city could proceed with the closure, even if the displaced person declined the shelter offer.

Meanwhile, the plaintiffs asked the court to appoint a special master to oversee the enforcement of the injunction, arguing that the city continued to sweep encampments in violation of the court’s order.

On Jan. 12, Ryu denied both parties’ motions, finding them procedurally defective.

No room at the inn

The dispute is of far-reaching importance. If the underlying injunction prevents the city from sweeping any encampment while there is a shortage of shelter beds for all unhoused residents, the city’s effort to enforce its ban on encampments will be stopped in its tracks for what could be years.

The city is thousands of beds short of being able to shelter all the unsheltered. Shroff notes that the city “has closed the shelter system, closed same-day shelter lines, and unhoused people no longer have any realistic way to voluntarily access shelter anywhere in San Francisco.”

A recent report prepared by the city’s Department of Homelessness and Supportive Housing says that it would cost $1.45 billion to bring the unsheltered number to zero over a three-year period. Moreover, the report says that even with three years and that much money, it still would not be feasible because of the difficulty of acquiring and siting facilities in the city.

“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.”

Mayor London Breed

The city asked Ryu to interpret her order to mean that the city only needs to have a shelter bed for each person who wants a shelter bed and is displaced when an encampment is closed.

The city argued that many people in encampments decline shelter beds and even though the shelter system is closed to self-referrals, the city regularly has a small number of beds it can offer to the residents of an encampment when it is being closed.

The City Attorney’s Office said that without that interpretation, the city will be in an “impossible situation.” Mayor Breed went further.

“Mayors cannot run cities this way,” Breed 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.”

Shroff was harshly critical of the city’s narrative about the case. “The City’s statements to the public about this case have been nothing short of mendacious,” he said. “San Francisco cannot possibly claim that unhoused people have access to shelter.”

Camping out

In another complication, in 2020, the city was sued in federal court by what was then known as the Hastings College of the Law. UC 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 the city’s failure 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 and would also work to prevent re-encampments.

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

In response to a question from Bay City News, Jen Kwart, a spokesperson for the City Attorney’s Office, said the city intends to ask the appeals court for a stay, though no papers requesting that relief had yet been filed as of Tuesday.

A ladder serves as a cart to move belongings from a homeless encampment on 13th Street in San Francisco to another location on Jan. 12, 2023. (Photo by Joe Dworetzky/Bay City News)

The stay request is significant because while it may take a year or more to hear the city’s appeal, requests for a stay are generally acted on quickly.

The appeals court is the U.S. Court of Appeals for the 9th Circuit. Ryu’s opinion relied heavily on the 2018 decision of the 9th Circuit in Martin v. City of Boise.

The Martin case found an ordinance in Boise, Idaho, violated the Eighth Amendment but it also said its decision was a “narrow one.”

The court did not require a city to provide shelter for the homeless, 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.” 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.”

San Francisco’s appeal and request for a stay may reveal whether the appeals court is sympathetic to the city’s desire to deal with encampments incrementally as it has been doing, or whether it believes that the time has come for the city to act in a more comprehensive way to address the problem of unsheltered people living on the streets.