'An Impossible Situation': Tensions Rise as Federal Court Weighs Legality of SF Encampment Sweeps

Protesters and counterprotesters went head-to-head outside the Ninth Circuit Court of Appeals in San Francisco on Wednesday, where a panel of three judges heard arguments over whether to appeal an injunction that prevents the city from moving unhoused people under certain circumstances.

The legal battle started in September 2022, when the Coalition on Homelessness sued San Francisco for violating the city’s own ordinances around clearing encampments. Attorneys for the coalition, representing both the ACLU and Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, argue that the city has violated federal precedent by not providing appropriate shelter before removing unhoused people, and that it trashed personal belongings during its sweeps.

“They have cited and arrested thousands of unhoused people whose only crime was having nowhere else to go when the city obviously did not have shelter to offer them,” Zal Shroff, interim legal director for the Lawyers Committee, told KQED in an interview before the hearing. “You can still clean the streets, you can enforce your drug laws, you can enforce your accessibility laws, clear all safety hazards, but you can’t keep policing unhoused people from block to block solely for the crime of being too poor to afford a home, when you obviously haven’t given them a place to go.”

Tensions were high outside the packed courthouse, where more than 100 people rallied both for and against the injunction while surrounded by a significant police presence.

“We are compassionate, we are supportive, we continue to help people. But this is not the way,” Mayor London Breed said outside the courthouse on Wednesday. “It is not humane to let people live on our streets in tents, use drugs. We have found dead bodies, we found a dead body in these tents. We have seen people in really awful conditions and we are not standing for it anymore. The goal here is to make sure that the court of appeals understands we want a reversal of this injunction that makes it impossible for us to do our jobs.”

San Francisco resident Fred Winograd showed up to the rally to protest the injunction. “It’s unfair to the people on the street and it’s unfair to the city,” Winograd told KQED. “Outside of my door someone can camp and stay there and not be moved because of this injunction. That’s harmful to the residents and businesses of this city, and it’s got to stop.”

Others, like Terri Beswick, came to show their support for the Coalition on Homelessness and its lawsuit. “I love that the court took a stand on this and I hope they stick to it,” Beswick said. “If you want people off the streets, you have to give them somewhere to stay.”

Wednesday’s hearing laid out initial arguments, but it could be several months before the panel of judges issue their ruling over the injunction, which was first issued by U.S. Magistrate Judge Donna Ryu.

City Attorney David Chiu formally appealed the injunction in January 2023, with the backing of Mayor Breed, multiple city supervisors and a coalition of residents and business owners.

“We are trying to address the conditions on the street and this lawsuit makes it harder to do so,” Chiu told KQED. “There are a number of issues with the injunction, which we believe is unnecessarily broad, exceeds legal precedent and has strained our city’s ability to meet practical and legal obligations.”

Plaintiffs maintain that the city can clean its sidewalks and enforce its sit-lie laws so long as shelter is offered and personal belongings are protected. If someone refuses shelter, the plaintiffs said the city could then enforce its laws.

But the city is far from meeting the need for temporary shelter beds or permanent supportive housing.

As of Aug. 23, there were 448 people on the waiting list for the city’s recently-opened shelter request system. San Francisco has 7,754 people experiencing homelessness, and at least 4,397 of them living outside as opposed to a shelter, according to the latest citywide count.

Meanwhile, the city has roughly 3,500 shelter beds in its system. (During the COVID-19 pandemic, more than 2,000 additional beds were brought online through programs like the Shelter-In-Place Hotel program, but that program has since ended.)

In an email, Chiu estimated that it could cost $1.45 billion, on top of several years of building and planning, to erect enough shelter for everyone who needs it in the city.

“The injunction has put our City in an impossible situation, ignoring the necessary balance between providing compassionate services and shelter to unhoused people and maintaining safe and healthy streets for all,” Chiu said.

On Wednesday, attorneys representing the city said the injunction was overly broad and left questions as to what options the city has to address street homelessness.

In particular, defendants questioned the judges’ definition of “involuntarily homeless,” arguing that the injunction language is not clear.

The injunction “does not define ‘involuntarily homeless,’ which has created uncertainty about whether the City can enforce laws against those who refuse shelter or have shelter beds but choose to maintain tents on the street,” Chiu said in a press statement ahead of the hearing.

“This is especially problematic as over half of the unhoused individuals approached by City workers reject offers of shelter.”

Joseph Lee, the attorney representing the plaintiffs, said at the hearing that a person could no longer be considered “involuntarily homeless” if they are offered but decline a genuine shelter option.

“The actual limitation for who the injunction protects is limited to involuntarily homeless individuals,” Lee said. “The city used these laws not in the way that they are intended or in the way that their policy describes they can be used, but used it as a pretext to criminalize homeless individuals.”

Right after the hearing, Chiu said that his team was “pleasantly surprised to receive this major concession from Plaintiffs during oral argument today,” referring to the clarity over involuntary homelessness. “It never made sense that a person who rejected a shelter offer or had a shelter bed but chose to maintain tents on the street should be considered ‘involuntarily homeless,’” he wrote in a press release.

The city also argued that precedents established in similar cases including Martin v. Boise and Johnson v. Grants Pass (PDF) should not apply to San Francisco. In broad terms, those cases found that public agencies can’t enforce public sidewalk sleeping or camping laws if there is no shelter or housing alternative available. The city’s attorney said San Francisco is different because its laws allow for people to sleep outside in certain settings.

But San Francisco has several laws governing and preventing sidewalk camping and sleeping.

In 2010, voters approved a “sit-lie” law that prohibits sitting or lying on public sidewalks between 7 a.m. and 11 p.m., with certain exceptions. In 2013, the city amended another ordinance to ban sleeping in parks from 8 p.m. to 8 a.m.

If someone is not with their belongings, the city is required to bag and tag items rather than tossing them to the dump during an encampment sweep.

Multiple lawsuits were filed earlier this year on behalf of homeless residents who said they lost clothes, cell phones or laptops, sleeping gear, family heirlooms and other important personal items during sweeps. As of February, the city had paid out more than $100,000 in claims to unhoused people in more than 20 different cases, the San Francisco Standard reports.

Supervisor Rafael Mandelman, who spoke at the rally on Wednesday in support of ending the injunction, has proposed legislation, called “A Place for All,” that would dramatically expand the number of temporary shelter beds, including the use of tiny homes and other non-congregate options. But reception to that response has been mixed.

“Yes, we need more shelter, but it needs to be coupled with housing and prevention, otherwise it’s inefficient and we waste city dollars,” said Jennifer Friedenbach, executive director of the Coalition on Homelessness. “Most (permanent) housing options are cheaper than shelter. And it’s not faster to create a shelter program than it would be to expand our section 8 program either.”

Next, on Thursday, August 24, the district court will hear a motion to enforce the injunction brought by plaintiffs, alleging the city violated the sweeps ban.

KQED’s Billy Cruz contributed to this report.