Monday saw a U.S. Supreme Court hearing on what lawyers are calling “one of the most important cases on homelessness in decades.” The implications, nationally, are sweeping. But locally, it is not entirely clear how this will affect the practice of sweeping homeless encampments off San Francisco streets.
The outcome of the case City of Grants Pass v. Johnson will leave unresolved many aspects of the 2022 San Francisco lawsuit that triggered a preliminary injunction limiting the conditions in which San Francisco can evict tent encampments — and the actual trial in that case is not slated to commence for another year.
And, regardless of how the conservative supermajority Supreme Court rules, that injunction is likely to stand, at least in part. That’s because the injunction has two elements: Enjoining San Francisco from enforcing San Francisco ordinances that punish sleeping, lodging or camping on public property; and prohibiting San Francisco from seizing and destroying the unabandoned personal property of homeless individuals.
The first part will be affected by the Supreme Court’s ruling on whether it is cruel and unusual punishment to regulate camping on public property of people who have nowhere else to go, which is prohibited by the Eighth Amendment, according to Nisha Kashyap, an attorney from the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. She represents the homeless plaintiffs in the lawsuit against San Francisco.
Regardless of the SCOTUS ruling, however, the portion of the injunction that’s based on the Fourth Amendment and requires the city to cease destroying homeless people’s property — belongings, tents, medication and clothing — will remain in effect.
As for the San Francisco lawsuit as a whole, “the large bulk of our claim will continue, regardless” of the Supreme Court’s decision, said John Do, a senior attorney at the American Civil Liberties Union of Northern California, who represents the plaintiffs.
Do started waiting in line outside of the Supreme Court at 2 a.m. on Monday to witness the historic hearing.
“It’s ironic to have seen over 50 people already there,” he said of those who brought blankets or sleeping bags to withstand the 40-degree night. The irony here was that the Supreme Court hearing on City of Grants Pass v. Johnson was also a discussion on people bedding down out-of-doors with blankets.
“It’s a very specific and narrow issue,” said Do. “You essentially criminalize and banish someone for the supposed crime of using some bedding or blanket, when there’s no real alternatives for them to be.”
Apart from the Fourth and Eighth Amendment issues, the San Francisco case also includes claims such as whether the city discriminates against individuals with disabilities, or violates the Fourteenth Amendment by not giving enough notice before collecting someone’s possessions. These claims would continue to be considered by the U.S. District Court for the Northern District of California.
The lawsuit filed by homeless San Franciscans against the city — Coalition on Homelessness v. City and County of San Francisco — was paused to wait for the SCOTUS decision. “We appreciate that the District Court’s decision spares the City from wasting public resources litigating this case, when the entire legal landscape may soon change,” said San Francisco City Attorney David Chiu after the pause was granted in February.
After Monday’s Supreme Court hearing, however, Chiu noted that the legal landscape may not change that much. “The Court did not appear inclined to completely disrupt long-standing Eighth Amendment precedent on cruel and unusual punishment,” he said.
Possible effects on San Francisco practices
If the Ninth Circuit Court of Appeals’ ruling, that it is unconstitutional to criminalize homeless people sleeping outdoors with a blanket, is overturned by the Supreme Court, “what we would lose are these minimal guardrails against ineffective, cruel, yet politically popular laws aimed at criminalizing homelessness,” said Chris Herring, a University of California, Los Angeles assistant professor who focuses on homelessness, and a key expert witness in the San Francisco lawsuit. Herring also worked as a researcher in the San Francisco homelessness office under Mayor Ed Lee.
“It would eliminate a layer of legal liability, making city agencies even less accountable than they already are,” he said. “At the same time, politicians will be encouraged to compete more aggressively in a sort of race to the bottom of ever-more punitive and costly policies.”
Mayor London Breed and Gov. Gavin Newsom argued in their amici curiae submitted to SCOTUS that “they wanted the court to hear this … that it was tying their hands from addressing encampments, and even getting in the way of their compassionate approach,” said Herring.
The injunction, however, does allow city officials to move or dismantle encampments, based on three sections of the penal and health codes, including “willfully and maliciously obstruct[ing]” public spaces and “any accumulation of filth.” And, far from hands being tied, the city moved thousands of homeless people off the street following the injunction.
San Francisco officials working on homelessness on a day-to-day basis don’t think their current practice will be changed too much.
“In general, we’re going to be roughly in the same place that we are now,” said Sam Dodge, director of San Francisco’s Street Crisis Response Team. “We have a lot of people in crisis, we have beds and services to help them. It’s a lot of voluntary services, and that’s our chief strategy: To link people in crisis to voluntary services.”
It’s also a process. It’s not like these things magically disappear, Dodge said. “Nothing has really radically changed since the injunction, either,” he said.
“What was apparent to us,” said Chiu, “is Grants Pass is not San Francisco. San Francisco has invested billions of dollars in our compassionate approach to addressing homelessness, and our laws have reasonable time, place and manner restrictions.”
Kashyap is opposing Chiu in court, but on this point they largely agree. “Because we don’t have to look to the U.S. in San Francisco, we can look at San Francisco’s own policies.” These require the city to “offer shelter before it can reach for the tool of criminalization,” she said. “And those policies predate these rulings, and should remain in place even after.”
Despite the divergence, the Supreme Court justices seemed to agree that homelessness — or even defining “homelessness” — is a tough issue that could not be easily solved by a court decision.
“The Justices did appear skeptical about whether the nuanced and numerous questions on homelessness should be decided by the courts,” Chiu said in a statement. “Many pointed out that local policymakers and local communities are better equipped to decide these day-to-day issues.”
The Supreme Court bench of six conservative justices and three liberal judges, however, seemed inclined to give cities more authority over homeless residents. Moreover, “the fact that the justices decided to take this on very much indicated that the conservative justices were interested in ruling on this,” said Herring.
“However, I guess there did seem to be some skepticism by [Neil] Gorsuch and [Brett] Kavanaugh at certain moments,” said Herring, adding that he found it “surprising.”
Kavanaugh, for instance, seemed to wonder about the purpose of arrest: “I actually have one last question,” said the Trump appointee. When someone is arrested, he asked, and “you get out of jail … what’s going to happen then? You still don’t have a bed available. So how does this help?”
The proper civil response would be to offer reasonable shelter and effective mental health/drug/alcohol treatment on demand (TOD) as needed. If these services are refused by the individual, then they are now ‘voluntarily homeless’ by definition, and subject to the rational enforcement of all existing laws.
Hopefully the city will be able to develop 8000+ shelter beds and TOD while this kabuki drama is being hashed out in the courts, but I am not holding my breath for any meaningful change, even though we are all deeply impacted by it.
Drew,
I agree with you and the City has the land to easily create 4 campsites to host 2,000 homeless in each location.
One on the half of Lincoln Golf Course admoining the VA’s Ft. Miley Medical Complex and give homeless Vets first crack here.
Two on half of Harding Golf Course which is controlled through the PGA by the Saudi Prince (MSB) who ordered the Washington Post Journalist beheaded.
Three and Four on what are planned to be Recreation Fields on Treasure Island.
Enforce Governor Newsom’s ‘Sit/Lie’ law for those who still insist on putting their tents in your front yard.
h.
“no real alternatives for them to go”.
You mean ‘no real PALATABLE place for them to go’. A roof and a meal with the “price” of a curfew, some other behavior restrictions, and compulsory attendance at an event (*worship service* where the requirement is to sit there for an hour) – perhaps unpalatable, but surely an “alternative”!
Alternately, they may have to pay for a nites lodging at a cheap motel (and forgo the next purchase of a favorite intoxicant which will further the ‘lather, rinse, repeat’ cycle_), or may have to seek temp employment to cover the costs.
While there are a very few who truly don’t have an ‘alternative’, that doesn’t apply to the (vast) majority of the current campers. Don’t forget, they are abusing public spaces with waste/noise/threatening behavior, blocking ADA compliance pathways, and for some engaging in criminal activities.
There is an essential issue of rights. We are all born on this earth with no personal choice where that is. We all need 2 sq ft each to stand (and 3x to rest). WHERE that is to be is debatable, nee? Many socialist countries assign us that place. Capitalist countries allow freedom of choice – with a price. Seems like a question of price, absent anything else.
Ms. Zhou,
The City should build 4 campgrounds on out-of-the-way places so’s the Homeless actually have a place to go when they are ‘Swept’.
I’ve suggested these locations (even got tossed out of a Friedenbach talk at Manny’s) before many times …
1. The half of Lincoln Golf Course adjoining the VA’s Fort Miley Medical Complex.
2. The half of Harding Golf Course adjoining Laguna de la Merced because when MSB bought the PGA he got SF’s Harding bookings with the deal.
In this State of Emergency that Contract can be declared Null and Void.
Let the Greedy Pro Golfers and their Local supporters play 9 holes.
Put the other 2 on Treasure Island next to Bob Beck’s Office.
go Niners !!
h.
Thank you for this insightful article on the recent Supreme Court case regarding homelessness. It highlights the ongoing challenges that cities face in addressing this complex issue, particularly in places like San Francisco where the crisis seems to intensify each year. An interesting angle to consider is the historical context of how similar cases have been handled in other jurisdictions. For instance, the 2018 Ninth Circuit ruling in Martin v. City of Boise established that cities cannot criminalize individuals for sleeping in public spaces when there are insufficient shelter beds available. This ruling has set a precedent that affects how local governments design their homelessness policies. It raises questions about finding fair solutions that respect individuals’ rights while also maintaining public order. Moreover, the use of a “writ of mandamus” could play a key role in how future cases are approached. This legal tool allows individuals to compel government officials to perform their duties, which might be particularly relevant in ensuring that cities fulfill their obligations to provide shelter or necessary services for the homeless population. What are your thoughts on the potential impact of a writ of mandamus in similar cases? Do you think it could force cities to more effectively address homelessness?
Aside from the shitshow of whether to crack down on homeless people or keep them living in public squalor, the issue for SF is that homelessness has become the go to political kill switch for the right wing. Poverty martyrs shaming residents cannot trump Levitican injunctions regarding the unclean.
The confinement of progressive politics to defending positions on housing and homelessness that make no perceptible difference relative to the political threats means that the right wing rampages uncontested on every other area of public policy as well.
This falls under the progressive self-sabotage neoliberal ideology of trying and failing to work their way up from the most vulnerable, putting the interests of all others on hold until that’s done. Such liberal guilt trips have long since failed to carry the day politically. Homelessness remains practically unaddressed while SF politics has shifted inexorably rightward over the past 15 yr.
Six ballot measures command that homelessness is a political imperative, that public squalor must be addressed, either the easier way by progressives or the harder way by the right wing. Homelessness must be taken off of the table as a kill switch political issue.
In answer to Kavanaugh, simple: lock them up and keep them locked up. Thats what our billionaires want. Of course we could bomb and starve them to death. That would also solve the problem. As for encampments, despite city or state or federal laws, it is quite evident to anyone who has walked the Mission streets that sinceAPEC encampments are routinely dismantled and the unhoused residents have gone . . .?