San Francisco leaders are preparing to ramp up efforts to clean up and clear out homeless camps in the city after the Ninth Circuit Court of Appeals clarified that people who decline shelter should not be classified as “involuntarily homeless.”
The clarification could also be critical for other western cities, which have struggled with the proliferation of homeless encampments on sidewalks and in public parks in the wake of two Ninth Circuit rulings — Martin v. City of Boise and Johnson v. City of Grants Pass — that limited the enforcement of camping bans on people who have nowhere to go.
San Francisco mayor London Breed announced Wednesday that the clarification provides the city with a “path forward” to enforce laws against “voluntarily homeless individuals.”
The clarification by the Ninth Circuit comes nearly a year after the city was sued by a coalition of advocates for the homeless who claimed that the city violated state and federal laws, as well as its own policies on clearing homeless camps and trashing people’s belongings.
National Review reported earlier this year that San Francisco has been hit with hundreds of questionable complaints from homeless residents seeking $10,000 payouts from the city, allegedly for trashing their “priceless” belongings and for their pain and suffering.
In December, U.S. Magistrate Judge Donna Ryu issued a temporary injunction in the case that limited the city’s ability to enforce laws against sitting, lying, or sleeping in public for people who are “involuntarily homeless.” In the wake of the injunction, the city was limited to clearing camps for health and safety reasons and to provide access to sidewalks, and only after providing a 72-hour notice, according to the San Francisco Chronicle.
Last year, the city counted 7,754 homeless people living in the city, and more than half of them were unsheltered. Their camps are often littered with garbage and debris.
Breed said on Monday that the city “engages thousands of unhoused people in encampments each year by offering shelter and services,” and that the city has made “substantial investments” in its stock of supportive housing and shelters. But some people on the streets don’t want to be sheltered, and they use tent encampments “not primarily for housing but to conduct illegal behavior like drug dealing, human trafficking, and theft,” Breed said.
For months now, lawyers for the city and the Coalition on Homelessness have been arguing in court over who should be considered “involuntarily homeless.”
“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,’” San Francisco City Attorney David Chiu said in August, before the court’s clarification.
Earlier this month, the Ninth Circuit judges agreed that “a person is not involuntarily homeless if they have declined a specific offer of available shelter or otherwise have access to such shelter or the means to obtain it.”
“The fact that it took us nearly nine months to get this clarification is frustrating,” Breed wrote in her announcement. “But we have to focus on moving forward.”
She said city workers are getting updated training about what they can and cannot do to clear homeless camps in light of the Ninth Circuit’s clarification and Ryu’s injunction, which is still in place. But, she said, they are “getting prepared” to begin enforcing anti-camping laws again.
She said the homeless advocates who sued the city “will still be out interfering with their work.”
“They will film our city workers. They will try to tell our workers what they can and cannot do,” Breed said. “These activists are the same people who hand out tents to keep people on the street instead of working to bring them indoors, as we are trying to do. And they are the same people instructing and encouraging people to refuse shelter — to remain on the street instead of going indoors. Their agenda is clear.”
The Coalition on Homelessness has not commented on the Ninth Circuit’s clarification or on Breed’s announcement that the city will be ramping up enforcement of anti-camping laws.
The Ninth Circuit’s clarification about what it means to be “involuntarily homeless” in the San Francisco case could end some confusion over what western city governments can do to enforce anti-camping laws in the wake of the court’s Martin and Grants Pass rulings. In 2018, the Ninth Circuit ruled in the Martin case that municipalities can’t impose criminal penalties against homeless people for sitting, sleeping, or lying on public property if they have no available shelter. In 2022, in the Grants Pass case, the Ninth Circuit added that the Oregon city
can’t enforce anti-camping ordinances “against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the City to go.”
Some western city leaders and homeless advocates have argued that the rulings made public camping bans unenforceable if a city has more homeless residents than shelter beds.
Last week, in a ruling requiring the city of Phoenix to dismantle a massive downtown homeless camp, a state judge in Arizona blasted that line of thinking. The city of Phoenix “erroneously applied” the narrow Martin ruling and allowed the Zone homeless camp to devolve into a public nuisance, Maricopa County Superior Court Judge Scott Blaney wrote in an order.
“If an individual refuses a shelter bed because she will not be permitted to bring all of her property into the shelter, that individual is not involuntarily homeless. If an individual refuses to go into a shelter because he wants more space than the shelter provides, that individual is not involuntarily homeless. And if an individual refuses to go into a shelter because he wants to live together with his partner, that individual is not involuntarily homeless,” Blaney wrote.
“Individuals who make these difficult but voluntary decisions to forego temporary housing are not involuntarily homeless and are not legally entitled to set up a tent or semi-permanent structure on public land,” he added. “Such individuals have realistic access to adequate temporary shelter but choose not to use it.”
Blaney also took aim at the Martin and Grants Pass rulings, saying they have had a “profound impact” on western communities, and have “created an unworkable mandate based on questionable legal analysis.” They have also “provide a convenient excuse” to city leaders who “wish to do nothing” while homeless encampments grow and fester.
“To the extent that a state trial court judge could have any influence on the United States Supreme Court’s decision to review a lower court ruling, this judge would respectfully urge the U.S. Supreme Court to review the Grants Pass ruling and, by extension, the Martin decision,” Blaney wrote.
Last month, the city of Grants Pass, Oregon, petitioned the Supreme Court to review its case.