SAN FRANCISCO’S TENDERLOIN district is the delta where the three great rivers of seemingly unsolvable urban problems — homelessness, drugs and mental health — converge.
On Thursday, fed-up Tenderloin residents initiated two actions in federal court demanding that the city divert the flows somewhere else.
One of the legal actions is a new lawsuit filed by a group of institutions, residents and businesses who contend that the city is using the Tenderloin as a “containment zone” where it has decided to allow or accept open air drug use, illegal encampments, and rampant behavioral health problems, despite the fact that they are destroying the neighborhood.
The other court move was made in a 2020 case brought by the law school formerly known as Hastings College of the Law and now “College of the Law, San Francisco,” in which the plaintiffs say the city has reneged on its prior court-approved agreement to rid the area of encampments.
The coordinated legal maneuvers — the same lawyers are handling both cases and are working on a pro bono basis — adopt a practical, though some might say cynical, approach.
While the court filings assert a wide number of claims, their primary goal is not to compel the city to solve the problems of homelessness, drugs and mental health. They want the court to rule that the city cannot make the Tenderloin bear those problems on a disproportionate basis from the other neighborhoods in the city, and to enter unspecified injunctive relief to reach that end.
In other words, move the problems somewhere else — anywhere else — just not here.
But a suit taking that approach begs a question that is very important in the court of public opinion.
Where?
Even the most casual observer knows that there are three key interests involved in San Francisco’s “homelessness problem.”
There is the interest of city residents and businesses who do not want tent encampments and people sleeping on sidewalks in front of their homes and stores. There is the interest of the people living on the street without shelter. And finally, there is the interest of the city, charged with responsibility for the streets and for public health and safety, with a vast — but nowhere near vast enough — budget to buy its way out of the problem.
While all three interests are legitimate, the wide range of external limits and constraints, as well as the conflicts among the three, have defeated the efforts of decades of San Francisco’s political leaders. And now the issues have moved to the place of last resort for social problems — the courts.
The involvement of the courts makes sense in the abstract; judges — particularly federal judges, who have lifetime appointments and so are free from ever having to stand for election — have a long history of making difficult and sometimes unpopular decisions, freeing politicians to do things they might otherwise be unable to do. But judges decide lawsuits, and what they can decide is dependent on the nature of, and the parties to, the individual lawsuits they are asked to decide.
The 800-pound lawsuit
The U.S. District Court for the Northern District of California — the court where the new filings were made on Thursday — is also home to a 2022 lawsuit brought against the city by the Coalition on Homelessness, a nonprofit advocacy group.
In December of 2022, in that highly publicized case, U.S. Magistrate Judge Donna Ryu issued a controversial injunction that prevents the city from enforcing laws prohibiting public camping and sleeping against people who are “involuntarily homeless.” In practice, that means the city must give an encampment resident a genuine offer of shelter, and may only proceed if the offer is rejected.
The city has fought that injunction tooth and nail, mostly unsuccessfully, though some would say it has it has been politically useful as a foil to divert attention from the city’s ongoing failure to solve the underlying problems.
San Francisco Mayor London Breed and City Attorney David Chiu have railed against it, proclaiming that it ties the city’s hands in addressing the street level problems complained of by businesses, residents, and tourism officials trying to help the city bounce back from the pandemic.
Chiu has devoted significant resources to fighting the case and even though he has largely been stymied so far, he got a lifeline on Jan 12, 2024 when the U.S. Supreme Court agreed to review a case from Oregon that was one of the bases for Ryu’s injunction.
That case — Grants Pass v. Johnson — is widely expected to be resolved by the end of the court’s term on June 30th, and the city attorney used that expectation to convince Ryu to put the coalition’s case on hold until Grants Pass is decided, although the city did not oppose keeping in place the injunction that ties its hands until the decision.
The Hastings case
The original Hastings case was filed on May 4, 2020, based on the allegation that the proliferation of tents and homeless in the tenderloin created a public nuisance and unsafe conditions that were imperiling the law school and other residents of the neighborhood. For example, the complaint alleged that “the odors of smoked crystal methamphetamine and human waste, and open-air drug dealing immediately outside the Tower cause residents to fear for their safety; many are afraid to venture outside their building, particularly at night.” (The Tower is a building at 100 McAllister Street that contains 252 units of student housing.)
The complaint said that already unacceptable conditions in the Tenderloin were made worse by the pandemic and the emergency nature of that period was reflected in the speed with which the case moved through the system.
On June 12 — hardly a month after the case was filed — the parties filed a motion for approval of a “Stipulated Injunction” under which the city agreed “to reduce encampments by 70 percent by July 30, 2020, and us[e] all reasonable efforts to… permanently reduc[e] the number of tents, along with all other encamping materials and related personal property, to zero.”
Prior to the court’s consideration of the Stipulated Injunction, the coalition and a number of other advocates for the homeless moved to intervene, that is, to become parties to the case, with the right to be heard. The court granted intervention, but the approval was not entered until July 30, the same day the Stipulated Injunction was granted.
The interveners asked the judge to order the parties to return to negotiations so they could participate in the negotiations that lead to the agreed injunction, but the court declined.
U.S. District Judge Jon Tigar wrote that “Given the ‘urgent, dangerous and unprecedented conditions’ that the Stipulated Injunction seeks to improve, the Court will not freeze the status quo or delay the agreement between the original parties to the lawsuit to accommodate the intervenors. They will be free to attempt to modify or improve upon the original parties’ settlement by negotiation or motion.”
The city immediately acted to clear encampments and, according to the Hastings pleadings, the city “initially showed significant success, reducing the number of tents in the Tenderloin from 448 in May 2020 to 22 in October 2020.”
Thursday’s filing in the Hastings case was brought about, according to Hastings’ lawyers, because of backsliding by the city. They say the number of encampments has tripled to 71, according to a recent tally.
Hastings sought to avoid litigation and met with the city and U.S. Magistrate Judge Lisa Cisneros on multiple occasions to get the city to fulfill its commitment to using reasonable efforts to get the number of encampments in the Tenderloin to zero.
The plaintiffs argue that the situation in the Tenderloin amounts to a public nuisance, a state-controlled danger, and violates both the Equal Protection and Due Process clauses of the U.S. Constitution.
Those discussions did not resolve the matter, in part because the city blamed Ryu’s injunction.
On Thursday, Hastings and the other plaintiffs filed a motion to enforce the commitments the city made in the Stipulated Injunction that was approved by Tigar in 2020.
According to Hastings, the city attempt to use Ryu’s injunction to excuse its failure is pretextual because “nothing in Judge Ryu’s Order prevents the City from clearing tents and encampments once the occupants have ‘refused a specific offer of available shelter.’”
Hastings pointed out that among the city’s commitments in 2020 was that it would give priority to tent dwellers in the Tenderloin with respect to available shelter beds, so in its view nothing prevents the city from offering shelter and clearing encampments if the residents refuse.
The new Tenderloin lawsuit
Thursday’s other legal filing — a new lawsuit against the city — has broad overlaps with the original Hastings suit but adds more about the drug situation in the neighborhood. The complaint contains nearly a score of photographs that illustrate — and illustrate vividly — its key points.
The new suit devotes special attention to the impact of fentanyl and alleges that “the City’s de facto containment zone policy effectively herds fentanyl users into the Tenderloin, where they can easily buy fentanyl and openly get high. Once there, they quickly learn that the City and others will provide “support” if they live on that neighborhood’s streets, with some organizations going so far as to deliver drug kits to their sidewalk encampments.”
The complaint goes on about the fentanyl addicts, stating that “As their disease progresses, their mental and physical health declines, resulting in them acting erratically, ignoring serious medical problems (e.g., open sores at injection sites), rummaging through trash, discarding garbage on the sidewalk around them, going partially clothed, and defecating in public.”
As in the prior Hastings case, the plaintiffs argue that the situation in the Tenderloin amounts to a public nuisance, a state-controlled danger, and violates both the Equal Protection and Due Process clauses of the U.S. Constitution. The plaintiffs have asked that the new case be found to be “related” to the Hastings case, apparently in the hope it that it will also be heard by Judge Tigar.
A seemingly minor aspect of the original Hastings case may prove to be of importance going forward. Because Judge Tigar allowed intervention by the coalition and other homeless advocates only after the Stipulated Injunction was agreed to, it was of little moment at the time. But now that the parties have returned to court, it may turn out to be meaningful.
The coalition is a party to the Hastings case and can be heard on the issues newly raised by plaintiffs. That means the three significant interests — city, neighbors and the homeless — are present in the same piece of federal litigation.
Moreover, the Hastings case — unlike the case in front of Judge Ryu — is not stayed during the pendency of Grants Pass.
How this will play out going forward is far from clear. Some court watchers will wonder if the new litigation will move the center of gravity of litigation from Judge Ryu’s courtroom to Judge Tigar’s, and if so whether that was Chiu’s strategy all along.
In any event, the Tenderloin has long been ground zero for San Francisco’s homelessness problem, perhaps it will also be ground zero for litigation about what the city must do to address the great urban rivers of homelessness, drugs and mental health.