Divided appeals panel bars San Francisco from clearing homeless camps

A divided 9th U.S. Circuit Court of Appeals panel on Thursday largely upheld a preliminary injunction barring San Francisco ordinances aimed at clearing homeless camps but instructed a lower court judge to clarify it.

9th Circuit Judge Lucy H. Koh, an appointee of President Joe Biden, ruled that the city’s new arguments, raised on appeal, were waived because they did not raise them before U.S. Magistrate Judge Donna M. Ryu of Oakland. Coalition on Homelessness et al. v. City and County of San Francisco et al., 22-CV-05502 (N.D. Cal., filed Sept. 27, 2022).

The city’s original position was that plaintiffs were unlikely to succeed on the merits of their Eighth Amendment claim “because the city offers shelter before requiring any unhoused person to vacate public property,” Koh wrote.

But on appeal, she wrote, the city “argues that the shelter offers were irrelevant all along.” San Francisco’s attorneys maintained its case was different from two 9th Circuit precedents. Johnson v. City of Grants Pass, 23-175 (S. Ct., filed Aug. 22, 2023); Martin v. City of Boise, 2018 DJDAR 8871 (9th Circ., filed Oct. 29, 2015).

Instead, Koh wrote, the city argued that its “challenged enforcement actions do not leave unhoused individuals with nowhere else to go — instead, they require individuals to relocate from specific encampment sites.”

She added that the city’s new arguments are not enough to reverse Ryu’s preliminary injunction. “Review of the city’s arguments further shows how factually intensive the resolution of the geographic scope is in this case — all the more reason not to reach the issue without factual findings from the district court on this heavily disputed factual record,” Koh added.

9th Circuit Judge Roopali H. Desai, another Biden appointee, joined Koh’s decision.

But 9th Circuit Judge Patrick J. Bumatay, an appointee of President Donald Trump, dissented, arguing the majority ruling “leaves the citizens of San Francisco powerless to enforce their own health and safety laws without the permission of a federal judge” and said it should be vacated.

“The result of the district court’s far-reaching injunction is that homeless persons now have a choice to sleep, lie, or sit anywhere they want in public at any time until San Francisco can provide them shelter,” he wrote.

“While they are entitled to the utmost respect and compassion, homeless persons are not immune from our laws,” Bumatay added. “And San Francisco should be free to address this pressing concern without judicial interference premised on the most radical interpretation of our Constitution.”

Koh, however, wrote that it was too soon for the 9th Circuit to rule on the case before a thorough factual record is established, adding that she is bound by Grants Pass and Martin. A trial in the Coalition on Homelessness case is scheduled in October.

“The dissent would nevertheless wade into the deeply complex and significant constitutional issues implicated in the City’s new geographic scope argument without the benefit of consideration or key factual findings by the district court,” she wrote.

In an unpublished order, the panel instructed Ryu to reconsider and clarify the scope of the injunction concerning involuntarily homeless people and police sweeps. “Because there appears to be some confusion on this point, the district court should specify on remand that the preliminary injunction prohibits verbal or written threats to enforce,” the panel order stated.

The partisan split among 9th Circuit judges is consistent with the divide that has emerged on the court between Democratic appointees and Republican appointees, who divided on partisan lines in ruling last year that the city of Grants Pass, Oregon violated the Eighth Amendment with its anti-camping ordinances.

Gov. Gavin Newsom and several California cities, including San Francisco, have asked the U.S. Supreme Court to review Grants Pass, and San Francisco City Attorney David Chiu wants the court to reverse Martin too. A decision from the court is expected soon.

Jen Kwart, a spokeswoman for Chiu, wrote in a statement that the city is disappointed not to get clarification on what the city can do now.

“San Francisco raised numerous issues demonstrating the many complicated, unresolved legal questions created by Martin v. Boise and Johnson v. Grants Pass,” she wrote. “We are disappointed the panel chose not to answer any of those questions at this stage. Cities cannot reasonably be expected to solve homelessness while operating under this uncertainty.”

John Do, a senior staff attorney with the ACLU Foundation of Northern California, hailed the published decision in a phone interview as “a reaffirmation of the preliminary injunction.”

“As the court has affirmed, San Francisco’s homeless residents also have rights – the right to be free from citation and arrest for their status,” he added. “You can’t harass people back and forth across the city.”