Ninth Circuit Appears to Reaffirm Civil Rights Protections in Litigation Over San Francisco’s Discriminatory Policing of Unhoused People

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SAN FRANCISCO – A three judge panel of the Ninth Circuit Court of Appeals held a hearing today to review the district court’s preliminary injunction in the lawsuit Coalition on Homelessness v. City of San Francisco, which was brought by the plaintiffs to prevent the City from citing and arresting homeless individuals who have no access to shelter. The lawsuit also seeks to prevent San Francisco officials from destroying unhoused individuals’ valuable personal property. Ninth Circuit Judges Patrick J. Bumatay, Roopali H. Desai and Lucy H. Koh presided. The Coalition on Homelessness is represented by the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (LCCRSF), ACLU of Northern California, and Latham & Watkins LLP.

Plaintiffs argued to uphold a federal district court injunction that prohibits San Francisco from forcibly displacing unhoused people and destroying their belongings without providing adequate alternative shelter or affordable housing as required by the U.S. Constitution. San Francisco City Attorney David Chiu filed an appeal asking the Ninth Circuit to clarify the definition of “involuntary homelessness” that was used as the basis to frame the legally acceptable options available to San Francisco in how it approaches unhoused residents. The City acknowledges it lacks available shelter for thousands of unhoused residents in need of a roof over their head. The lawsuit comes after years of bureaucratic failures resulting in no real movement to tackle the City’s growing affordability crisis and the resulting homelessness crisis as hundreds of residents lose their housing year after year.  

The judges appeared generally skeptical about the need for an appellate-level hearing at this juncture in the litigation. One judge noted that the City’s arguments appeared to be “manufactured”—i.e. not real and just mere political theatre. At today’s hearing, the Ninth Circuit seemed to reject that the injunction provides any significant impediment to San Francisco enforcing its laws against those who do have access to shelter. The court’s line of questioning indicated that the injunction as written should not be an impediment to San Francisco’s ability to maintain a safe and healthy environment on city streets. Questions asked by the judges also made clear that the lower court’s factual findings of a significant scarcity of shelter beds are compelling and that unhoused individuals did not in fact have access to shelter in San Francisco, consistent with the district court’s detailed factual findings.

“Fortunately, people who do not have homes do still have civil rights in our country,” said Zal K. Shroff, acting legal director with Lawyers’ Committee for Civil Rights of the San Francisco Bay Area (LCCRSF). “Our position on the basic facts in this case has not changed: San Francisco must not use handcuffs to solve what is really a housing problem. The City had no good answer to that argument in today’s hearing. The hearing made clear the only obvious path San Francisco must take to end its street homelessness crisis—the housing-first solution San Francisco leaders have already acknowledged as the only effective way forward.”

In a hearing on Thursday, August 24, the federal district court will consider the plaintiffs’ motion to appoint a special master to ensure compliance with its December preliminary injunction. The court injunction requires the City to temporarily halt enforcement of its anti-homelessness laws that criminalize sitting or sleeping in public, with exceptions for street cleaning and disability access, unless shelter is first actually made available to unhoused people in San Francisco—because thousands of unhoused residents have no access to shelter. The injunction does not prevent San Francisco from arresting people for illegal activity. The City has failed to demonstrate that it is complying with the injunction.

“San Francisco has never challenged the basic premise underlying our lawsuit: the City must offer appropriate shelter or housing to people sleeping on the streets before they are punished just because they cannot afford a place to stay,” said John Do, senior staff attorney for the Racial and Economic Justice Program at the ACLU of Northern California. “No matter what the appellate court decides after today’s hearing, the underlying lawsuit remains unresolved, and San Francisco still sorely lacks the affordable housing required to truly address chronic homelessness.”

Currently more than 4,000 people sleep on San Francisco’s streets every night, while temporary shelter beds are at functional capacity on almost every day of the year. The City’s recently re-opened shelter waitlist has hundreds of people waiting for a shelter placement. Plaintiffs argue the City should deliver on its promise to provide genuinely affordable housing options, temporary shelter beds, and permanent supportive housing units, instead of wasting resources on ineffective encampment sweeps that ultimately entrench the homelessness crisis at a huge cost to taxpayers. In recent weeks, plaintiffs outlined a set of commonsense solutions that could serve as the basis for a settlement with the City in the interest of expediting efforts to effectively and humanely end San Francisco’s street homelessness crisis rather than spending years in court.

“Contrary to what San Francisco is saying to the public, City officials have failed to show that they consistently offer shelter to unhoused folks,” said Jennifer Friedenbach, executive director of the Coalition on Homelessness. “Until that changes, we must rely on the courts to protect the civil rights of our homeless neighbors.”

For more information about the ongoing lawsuit and injunction in Coalition on Homelessness v. City of San Francisco read these FAQs

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