In a Thursday afternoon hearing, lawyers for homeless plaintiffs suing San Francisco said are dismissing Mayor London Breed and Healthy Streets Operations Center director Sam Dodge as defendants, but will potentially sue them later, in their individual capacities.
And, while the homeless plaintiffs allege the city violated the partial injunction against clearing homeless encampments granted by U.S. District Court Magistrate Judge Donna Ryu on Dec. 23, Ryu denied their motion on Thursday, citing the misuse of the process and the vagueness in the presentation.
She urged both sides to focus on providing more factual evidence: What is actually communicated at the scene? How many people asked for the shelters? Did the city’s resources meet their needs?
Last September, the Coalition on Homelessness sued San Francisco, alleging that the city criminalized homelessness through what it described as “cruel and unconstitutional policing and property destruction.” Three months later, Ryu granted a partial injunction against the clearing of homeless encampments, as “there are more homeless individuals in San Francisco than there are shelter beds available.”
John Do, who is representing the plaintiffs, replied on Thursday that they would follow the court instruction to wait for more additional documents provided by the city, and discuss a more regular routine to evaluate city’s acts.
Since Ryu’s order on Dec. 23, 2022, 410 people have been voluntarily connected to the shelters. City Attorney spokeswoman Jen Kwart wrote in an email that the city is hoping to get clarification and that, without such guidance, the city would evaluate its next steps.
In the city’s latest move to provide more shelter beds, on Friday it opened another urgent care and transitional primary care clinic, the Maria X Martinez Health Resources Center at 555 Stevenson St., for people experiencing homelessness.
Who should be sued?
The original 105-page complaint listed Breed and Dodge as defendants, in their official capacities as mayor and director of the Healthy Streets Operation Center (HSOC), respectively. But Rachel Mitchell, an attorney for the plaintiffs, said in the hearing on Thursday that “they were both using city resources for their personal and political gain.”
No details were offered. Joseph Lee, the lead attorney for the plaintiffs, said they preserve the right to potentially add Breed and Dodge as defendants in their individual capacities. The City Attorney’s office doubted if the current complaint contains anything sufficient to support personal liability.
Ryu set Feb. 28 as the last day to submit a draft version of the amended complaint.
Besides Breed and Dodge, six “public entities” were listed as defendants, including the City and County of San Francisco, the San Francisco Police Department, the San Francisco Public Works Department, the Department of Homelessness and Supportive Housing, the San Francisco Fire Department, and the Department of Emergency Management.
The city tried to argue against listing the city and five departments based on intracorporate conspiracy doctrine, which means that members of a corporation, such as employees, cannot be held to have conspired among themselves.
But Ryu on Thursday ruled that the conspiracy claim can go forward. “There are plausible allegations that those departments are independent governmental entities with decision-making authority separate from the city,” she said.
Violation of the injunction?
Another controversy is over whether actions taken by the city during the storms in the past few weeks comply with the partial injunction against homeless clearances granted last month.
Before the injunction was approved, plaintiffs’ co-counsel, Do, said the injunction “should not impact the city’s ability to enforce legitimate health and safety laws, like ensuring access to streets.” This means that “what the city can’t do is just the criminalization of being unhoused.”
Deputy City Attorney Jim Emery said that what the government has done during the storms is “to offer shelter and services to these people who are on the street, and to give them the opportunity to get out from the weather.”
A consensus has been reached by both parties that the city can have individuals move things for a few hours for cleaning purposes, and offer help to the homeless. The plaintiffs, however, doubted if those homeless people were asked to leave “voluntarily and temporarily.”
“It’s not clear to me what’s going on,” commented Ryu. “My first concern is about what’s actually being communicated to the affected unhoused individuals, either in advance by notice, or verbally on the spot.”
One declaration mentioned that there were five police officers and six unhoused individuals present in one scenario on Dec. 27. Judge Ryu said such an equal ratio can be perceived as a potential threat of forcing individuals to move, but she wanted to see more factual information.
“The issue is … who’s asking for shelter; how many people are actually asking; how many are getting placed? It was really striking, striking that was not included,” reiterated Ryu, at the end of the hearing.
According to the latest San Francisco homeless point-in-time count, there were 7,754 people experiencing homelessness in San Francisco on Feb. 23, 2022. Some 43 percent of them were sheltered, a slight increase compared to 2019. San Francisco’s shelter system capacity is 4,283 beds, as of last year.