City Attorney David Chiu

Plaintiffs in homeless encampment lawsuit backtrack on statements made to Ninth Circuit

Plaintiffs walk back concessions about the meaning and scope of the injunction

SAN FRANCISCO (August 29, 2023) — City Attorney David Chiu filed a notice with the Ninth Circuit U.S. Court of Appeals today alerting the Court that Plaintiffs in Coalition on Homelessness v. City and County of San Francisco have refused to commit to concessions made in open court last week. During oral argument of the appeal of a lower court’s preliminary injunction order that has hampered the City’s ability to address homelessness, Plaintiffs conceded that the order does not apply to unhoused individuals who refuse shelter, that they cannot dictate how the City runs shelters, that police presence to ensure the safety of all is not a “threat,” and that the number of shelter beds does not control whether the City can enforce its laws. However, following good faith attempts by the City to memorialize those concessions, Plaintiffs would not commit in writing to their representations to the Court.

City Attorney David Chiu
City Attorney David Chiu

“It is unfortunate and telling that Plaintiffs are unwilling to confirm in writing what they told the Court,” said City Attorney Chiu. “It does not make sense that a person who rejects a shelter offer or has a shelter bed but chooses to maintain a tent on the street should be considered ‘involuntarily homeless.’ Plaintiffs conceded that much last week, but have now walked those statements and other statements back. It is very difficult to resolve a dispute when you can’t trust the statements Plaintiffs make in open court. These games make litigation more time consuming and expensive, alienate our community, and distract from the overall goal of alleviating homelessness.”

In December 2022, Judge Donna Ryu issued a preliminary injunction that 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.

However, the order did not define “involuntarily homeless,” and Plaintiffs have taken multiple positions on what it means to be “involuntarily homeless.” This created uncertainty about whether the City could enforce laws against those who refuse shelter or have shelter beds but choose to maintain tents on the street. This is especially problematic as a significant number of unhoused individuals approached by City workers have rejected offers of shelter, particularly after the injunction was issued.

During oral argument on the appeal of the preliminary injunction, Plaintiffs agreed with the City and the Ninth Circuit Judges multiple times that if a person refuses shelter they should not be considered “involuntarily homeless” and enforcement action could be taken against unhoused individuals who refuse offers of shelter, irrespective of the number of available shelter beds or housing in the City.

The City filed a letter alerting the Court that Plaintiffs walked back their statements so that the Court can issue a decision on this matter. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in the appeal on August 23.

While the case is pending at the Ninth Circuit, there are still active proceedings in front of Magistrate Judge Ryu. Notably, last Thursday, Judge Ryu denied Plaintiffs motion to enforce the injunction as to the Eighth Amendment claims, finding that the Plaintiffs did not meet their burden of establishing that the City violated the injunction. Judge Ryu took the Fourth Amendment claims under submission.

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