Federal decide refuses to droop injunction

Citing a misguided legal maneuver by city lawyers, a federal judge late Monday rejected a request by the city of San Francisco to stay a preliminary injunction blocking the city from sweeping up tent encampments in the city amid a shortage of emergency shelters. In denying the request for a stay while the injunction was appealed, U.S. Magistrate Judge Donna Ryu pointed to a legal move by the city's lawyers, who, in their haste to file an appeal, ignored their previous advice about the proper procedure for had ignored the filing of their challenge to the interim injunction.

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Ryu used the city's legal strategy to support her conclusion that the city had little chance of success in its appeal of the injunction. She also found that the city had not demonstrated that it would suffer “irreparable harm” if the injunction remained in effect.

The decision, and particularly its focus on the city's legal maneuvers, are likely to complicate the city's chances of overturning the cleaning ban in the near future. The controversy comes in a high-profile case brought against the city by the advocacy group Coalition on Homelessness and a number of individual plaintiffs, including some unsheltered people living on the city's streets.

The plaintiffs argued that the Eighth Amendment's ban on cruel and unusual punishment means the city cannot punish a person for sleeping on city streets while there is a lack of available shelter beds.

Ryu agreed and on December 23, 2022, preliminarily ordered the city to enforce or threaten to enforce a series of laws and ordinances that would “prohibit involuntarily homeless persons from sitting, lying or sleeping on public property.”

The order effectively prohibited the city from breaking up or sweeping tent camps. The judge based her decision on the fact that the city's homeless system, with more than 4,000 beds, was inadequate to house the entire unsheltered portion of the city's homeless population.

Without beds in shelters, she argued, the homeless would have no place to sleep except on city streets. This meant that clearing out encampments was essentially punishing people for their involuntary status of homelessness.

When the injunction was issued, the city responded quickly and sharply.

San Francisco Mayor London Breed said: “Mayors cannot govern cities this way. We already have too few tools to deal with the mental illnesses we see on our streets. Now we are being told not to use any other tool that will help get people indoors and keep our neighborhoods safe and clean for our residents.”

On January 3, San Francisco District Attorney David Chiu issued an unusual press release saying, “The court’s order puts San Francisco in an impossible situation, both practically and legally.”

The city's overreaction stemmed from their concern about the possible scope of Ryu's command. Tent encampments are illegal in San Francisco under city law and can be broken up, but only if the city gives advance notice and provides people with shelter.

The city feared that the order would be interpreted to prevent encampments until sufficient housing was available for every unsheltered person in the city. The city believed that it should only provide a shelter bed for people displaced during the evacuation of a camp. The difference between these interpretations was enormous.

According to the city's reading, on any given day only a few dozen empty shelter beds had to be found to accommodate the people in whatever camp was being swept. Under the other reading, thousands of beds would need to be built or purchased—enough for all the homeless—a process that would likely take years and cost hundreds of millions of dollars. Apparently seeking a quick resolution to this issue, the city's attorneys filed a so-called “administrative motion” on Jan. 3 to “clarify” the meaning of Ryu's order.

Ryu wasn't happy.

Despite the urgency of the city's request, Ryu found at a Jan. 12 hearing that the city's attorneys had improperly raised the issue and attempted to use a process to raise minor administrative matters – such as permission to increase page limits to ask for a short version – to address a clearly substantive question. At the hearing, Ryu admonished the city's lawyers (as well as the plaintiffs' lawyers who had used the same procedure in one of their motions).

She told lawyers for both sides: “You know better” and warned them “not to get off on the wrong foot.”

She further clarified that if the city wanted to raise the issue, it should follow the proper process for substantive motions. The city did not accept their offer. Instead, she appealed her injunction on January 23.

A week later, on February 2, it asked Ryu to stay her injunction while the appeal was pending. In the briefing in support of the stay, the city's attorneys made the same legal argument about the scope of the injunction that they had unsuccessfully attempted to make in their Jan. 3 motion for clarification.

This approach obviously bothered Ryu. In her decision Monday denying the suspension, she emphasized that the city had refused to do so, even though she had asked the city to adequately address the matter. In their view, this approach deprived the court of the opportunity to examine the city's argument in the context of a proper assessment of the facts.

She also found that the city had failed to meet its burden of proving that it would suffer irreparable harm if the injunction remained in effect. For example, she pointed out that the ordinance allows the city to require the relocation of an encampment for the time it takes the city to clean the area. She also said the city can continue to provide social services and housing options to encampment residents.

The finding that the city's attorneys did not follow proper procedures puts the city in a difficult position. While the city can ask the U.S. Court of Appeals for the Ninth Circuit to stay the injunction, the appeals court would not only have to take the relatively unusual step of intervening before the merits of the appeal, but also do so where necessary It is justifiable that the City did not take the appropriate steps to bring the matter before the court that issued the contested injunction.

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Unless the appeals court intervenes, the injunction will likely remain in effect pending a full trial in the case before Ryu. This trial is currently scheduled for April 3, 2024. Jen Kwart, a spokeswoman for City Attorney David Chiu, said: “We continue to believe that Judge Ryu's order places the city in an untenable situation, goes beyond legal precedent and exacerbates our homelessness crisis.”

We look forward to presenting our case to the Ninth Circuit on appeal.”

Hadley Rood, one of the plaintiffs' attorneys, said, “The injunction is narrow and only prevents the city from brutally punishing homeless people simply because they are homeless.”

Problems surrounding the city's handling of homelessness have escalated in recent months. The city's Board of Supervisors held a hearing March 21 to consider a plan drawn up by the city's Department of Homelessness and Supportive Housing to outline how to house all homeless people in the city.

The ministry rejected this, concluding that even with $1.45 billion and three years for implementation, it could not achieve the desired result due to difficulties in acquiring land in the city and building adequate capacity . The department's stated inability to provide enough housing, combined with the city attorney's difficulty obtaining a stay, appear to be the problems the mayor and board face in leading the city's recovery from the pandemic is likely to become even more severe.

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