City Attorney David Chiu

San Francisco files amicus brief with U.S. Supreme Court in Grants Pass

Brief takes a balanced approach, urging the Court to reverse lower court precedent that impedes the City from effectively addressing homelessness while still preserving Eighth Amendment protections

SAN FRANCISCO (March 1, 2024) — San Francisco City Attorney David Chiu filed an amicus brief today asking the U.S. Supreme Court to reverse the Ninth Circuit’s holding in Grants Pass v. Johnson. The U.S. Supreme Court’s decision in Grants Pass will have significant implications for San Francisco, which is in the midst of ongoing litigation about its ability to resolve tent encampments and is operating under a preliminary injunction order relying on precedent the Ninth Circuit set in Grants Pass.

City Attorney David Chiu
City Attorney David Chiu

That injunction, like others entered against municipalities across the Ninth Circuit, is based on the Ninth Circuit’s misinterpretation of the Eighth Amendment in Grants Pass. That legal error has resulted in confusion among lower courts and sweeping injunctions with no foundation in the law.

The City’s amicus brief strikes a balance between preserving important Eighth Amendment protections for unhoused individuals, while recognizing that the Amendment does not strip local jurisdictions of their authority to regulate use of public property or the ability to address health, safety, and welfare issues arising from encampments in public places.

San Francisco recognizes that, under the Eighth Amendment, jurisdictions cannot and should not make it a crime to be homeless. San Francisco seeks to balance its commitment to a compassionate, services-first approach with its responsibility to ensure that sidewalks and public spaces are safe and accessible for all residents, businesses, and visitors. San Francisco does not prohibit sleeping and lying in all public spaces at all times. And the City does not endorse the Petitioner’s position because it sweeps so broadly as to strip basic protections from individuals experiencing homelessness.

“It does not make sense to punish status or criminally prosecute homeless individuals for being homeless,” said City Attorney Chiu. “But, the Ninth Circuit in Grants Pass went well beyond that central idea and misapplied the law. It has left cities like San Francisco without the necessary tools to compassionately address homelessness and ensure our streets and public spaces are safe and accessible to all. The Supreme Court should correct this legal error in Grants Pass and allow cities to effectively combat our homelessness crisis.”

Coalition on Homelessness v. San Francisco
Despite billions of dollars spent on a services-first approach to addressing homelessness, San Francisco was sued in September 2022 by the Coalition on Homelessness, which has challenged the City’s practices related to resolving homeless encampments.

In December 2022, Magistrate Judge Donna Ryu issued a preliminary injunction that prohibits San Francisco from enforcing or threatening to enforce certain laws prohibiting sitting, lying, sleeping, and lodging on public property against “involuntarily homeless individuals” as long as the number of people experiencing homelessness exceeds the number of available shelter beds in San Francisco – a totally infeasible metric given San Francisco’s considerable unhoused population. The preliminary injunction relies heavily on reasoning from Johnson v. Grants Pass, and much of the injunction order quotes Grants Pass verbatim.

The preliminary injunction expanded the Ninth Circuit’s already sweeping precedents, reaching farther than what Grants Pass requires and putting the City in an untenable and uncertain legal position. As a result of the Ninth Circuit’s precedent and the District Court’s application of it, the City has been unable to implement the considered policy decisions of its Mayor, the Board of Supervisors, and the City’s voters. The preliminary injunction has improperly constitutionalized and subjected to court discretion complicated local policy questions about how best to address the homelessness crisis. When every single interaction between a City outreach worker and an unhoused person can be policed by a federal court, it makes it extremely difficult for conscientious City employees to do their jobs and protect public spaces. This is why municipalities from across the country have cited the preliminary injunction in San Francisco’s case as a reason for the U.S. Supreme Court to reverse the Ninth Circuit’s holding in Grants Pass.

Given the District Court’s overreach, San Francisco appealed the preliminary injunction to the Ninth Circuit. The Ninth Circuit issued an order in September 2023 clarifying that people who refuse offers of shelter do not meet the definition of “involuntarily homeless,” and thus, the injunction does not apply to them. On January 11, 2024, the Ninth Circuit ruled on the rest of San Francisco’s appeal, largely upholding the preliminary injunction and allowing it to remain in place while also directing the District Court to narrow the injunction.

Because the U.S. Supreme Court will hear argument in Grants Pass in April, San Francisco sought and obtained, over opposition from Plaintiffs, a stay of nearly all legal proceedings in its case until 30 days after the U.S. Supreme Court issues a decision in Grants Pass, which will give all parties time to assess the impact of the decision. San Francisco’s case is Coalition on Homelessness, et al. v. City and County of San Francisco, et al., U.S. District Court for the Northern District of California, No. 4:22-cv-05502.

Johnson v. City of Grants Pass, Oregon
Relying on the Ninth Circuit’s decision in an earlier case, Martin v. Boise, homeless advocates filed a class action lawsuit against the City of Grants Pass, Oregon, in 2018, challenging the City’s homelessness policies. A District Court ruled against Grants Pass, which appealed the case to the Ninth Circuit. The Ninth Circuit upheld the lower court’s decision and issued a decision expanding its precedent in Martin v. Boise. In August 2023, the City of Grants Pass filed a Writ of Certiorari, asking the U.S. Supreme Court to review the decision, and the Court agreed to take the case on January 12, 2024.

The question at issue in Grants Pass is whether generally applicable laws regulating public lodging or camping are considered “cruel and unusual” punishment as prohibited by the Eighth Amendment.

The U.S. Supreme Court will hear oral argument in Grants Pass on April 22 and is expected to issue a decision in the case during this term, which ends in June 2024. The case is City of Grants Pass, Oregon v. Johnson, U.S. Supreme Court, Case No. 23-175. A copy of San Francisco’s amicus brief can be found here.