What could end up being a very significant legal battle over homeless encampments and cities' ability to address them is playing out at the Ninth Circuit, and in legal filings by the plaintiff in the case, the Coalition on Homelessness, and the City of San Francisco.

There was a rally and counterprotest last week outside the Ninth Circuit Court of Appeals at 7th and Mission streets, as Mayor London Breed was out supporting the city's right to keep sidewalks clear of encampments, and advocates for the unhoused were trying to shout her down. This was all essentially immaterial to the legal arguments being made inside the court, or to what the three-judge panel of the court will ultimately decide on the issue — which basically comes down to whether homeless individuals can be legally cleared from public spaces if there isn't adequate shelter space to offer everyone on the street.

The Coalition on Homelessness brought the case against the city last September, arguing that the city was in violation of an earlier Ninth Circuit decision, Martin v. Boise, that declared it illegal to penalize homeless campers on city land or in a park for being there if adequate alternative shelter was not available to them.

U.S. Magistrate Judge Donna Ryu issued an injunction in December halting all clearings of encampments in San Francisco, and later left that injunction in place in April despite the city's appeals, and now it's gone to the Ninth Circuit.

But herein lies one of the latest arguments: Can you legally clear an encampment and ask people to move if they are on public land and have been offered shelter, but refused it? SF City Attorney David Chiu is arguing that yes, this should be legal, because this is no longer "involuntary homelessness" if the individuals have refused an offer of shelter. Ryu's decision had declared the clearings illegal in the case of "involuntary homelessness," and the two sides are now arguing over this definition.

In a press release Tuesday, Chiu's office is calling out the Coalition on Homelessness for refusing to acknowledge to Judge Ryu in writing what its attorneys acknowledged in court at the Ninth Circuit last week — while the appeal is ongoing, so are proceedings in Ryu's court.

"During oral argument on the appeal of the preliminary injunction, Plaintiffs agreed with the City and the Ninth Circuit Judges multiple times that if a person refuses shelter they should not be considered 'involuntarily homeless' and enforcement action could be taken against unhoused individuals who refuse offers of shelter, irrespective of the number of available shelter beds or housing in the City," Chiu's office writes.

"It is unfortunate and telling that Plaintiffs are unwilling to confirm in writing what they told the Court,” says Chiu in a statement. "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.’ Plaintiffs conceded that much last week, but have now walked those statements and other statements back. It is very difficult to resolve a dispute when you can’t trust the statements Plaintiffs make in open court. These games make litigation more time consuming and expensive, alienate our community, and distract from the overall goal of alleviating homelessness."

Chiu's office also objects to the coalition not acknowledging something else their lawyers conceded in court, which is that the presence of police officers in an area do not necessarily pose a threat, if they are performing their normal duties to maintain safety.

Discussions ordered by the Ninth Circuit, in order that the Coalition on Homelessness and the City Attorney's Office can get on the same page about the scope of the injunction in question, have apparently broken down. NBC Bay Area went into some further detail last week about what the Ninth Circuit judges said in court, but it was essentially a push to get the parties to finish arguing in the lower court first.

"The City filed a letter alerting the Court that Plaintiffs walked back their statements so that the Court can issue a decision on this matter," Chiu's office writes.

The Coalition on Homelessness hasn't commented publicly on this matter, though the group did tweet last week about the events at the Ninth Circuit.

"At yesterday’s hearing, the Ninth Circuit seemed to reject that the injunction provides any significant impediment to San Francisco enforcing its laundry list of anti-homeless laws against those who do have access to shelter," the Coalition wrote. "So it begs the question. Why hasn’t the city just settled the lawsuit already?"

Whether or not it is predictive for how the court may rule in this case, a different three-judge panel on the Ninth Circuit ruled in June in a different case, refusing further review of a 2022 decision ruling against the Oregon city of Grants Pass. That ruling upheld Martin v. Boise in that the city had been levying fines on homeless campers for violating local ordinances, but the judges stopped short of saying that cities could never criminalize sleeping outside especially if it, say, infringes on a public right-of-way. The court further was careful to say that the ruling did not apply to individuals who were offered free shelter but refused it.

The ACLU, which is also a party to the Coalition's lawsuit, publicly proposed a "settlement framework" to the city earlier this months, which Chiu's office dismissed as a "political stunt."

Chiu's office said in a statement that "legal parties do not engage in settlement negotiations via the press, particularly when confidential settlement discussions are required," and they added that despite the plaintiffs’ "antics," the city will continue to  argue in court and "fight for our city’s ability to maintain a healthy and safe San Francisco for all."

Previously: Raucous Rallies Outside Courthouse As Court Hears Appeal of SF Encampment Sweep Ban, But Gives No Decision

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