City Attorney David Chiu

San Francisco files opening brief in homeless encampment injunction appeal

Lower court order puts the City in an untenable situation and reaches far beyond legal precedent

SAN FRANCISCO (February 22, 2023) — City Attorney David Chiu filed the City’s opening brief with the U.S. Court of Appeals for the Ninth Circuit yesterday in its appeal of the preliminary injunction order in Coalition on Homelessness v. City and County of San Francisco. The preliminary injunction order issued by a lower court on December 23 prohibits San Francisco from enforcing or threatening to enforce certain laws prohibiting public lodging or camping against “involuntarily homeless individuals” as long as the number of people experiencing homelessness exceeds the number of available shelter beds.

The brief details the significant investments San Francisco has made to alleviate homelessness in the City, and points out that the injunction exceeds existing Ninth Circuit precedent set in Johnson v. Grants Pass and Martin v. Boise.

City Attorney Chiu released the following statement on the City’s appeal:

“San Francisco has made significant investments to address homelessness through a services-first approach and provide shelter and permanent supportive housing to people experiencing homelessness.

This litigation disregards those efforts and threatens to move the City backward. It will force the City to invest more in shelter at the expense of permanent supportive housing, which is opposite of both the City and the Plaintiffs’ stated goals.

We have asked our neighborhoods to accept shelter and navigation centers in their communities. Many neighborhoods have gladly accepted those services, but we must be able to show that these interventions make a tangible difference. Telling the City it cannot take action against someone who has a shelter bed reservation but also maintains a tent on the street is unreasonable.

We tried to seek clarity on the scope of this injunction, but the lower court declined to provide that. Unfortunately, we have no choice but to appeal this decision. We are asking the Ninth Circuit to consider its own precedent and unwind the untenable situation the City has been put in.”

The City argues that the injunction is unworkable because, as plaintiffs have interpreted it, the injunction means that the City cannot enforce its laws against any individual experiencing homelessness until the City has available shelter beds for all people experiencing homelessness. That would require outreach workers to know the exact number of people experiencing homelessness across the City at any given time, when it is impossible to have real-time data on the number of people experiencing homelessness.

The injunction is unclear as to the meaning of “involuntarily homeless” and what constitutes a threat of enforcement. The lack of clarity around “involuntarily homeless” puts the City in a difficult situation, especially in navigating interactions with those who refuse shelter or those who have shelter beds but choose to also maintain tents on the street. Similarly, Plaintiffs have asserted that the mere presence of uniformed law enforcement during encampment outreach constitutes a threat of enforcement. Law enforcement presence is essential to ensure the safety of outreach workers and other City staff.

In addition to the practical implications, Judge Ryu’s order potentially conflicts with another federal court order that the City is subject to in Hastings College of the Law v. City and County of San Francisco. In that stipulated injunction, the Court mandated San Francisco conduct enhanced enforcement in the Tenderloin against individuals who have refused shelter offers in order to prevent re-encampment.

The case is Coalition on Homelessness v. City and County of San Francisco, U.S. Court of Appeals for the Ninth Circuit, No. 23-15087. The brief can be found here.