A three-judge panel of the Ninth Circuit Court of Appeals will continue to deliberate on the larger issues brought by an appeal from the City of San Francisco concerning a lower court's injunction on the clearing of homeless encampments. But they have ruled on a motion from the city to modify that injunction, and the wording of the ruling only adds more questions to this debate.
The brief, one-paragraph ruling issued Tuesday only addresses a motion filed by the city to modify the emergency injunction issued by U.S. District Judge Donna Ryu back in December. That order, the city says, has made the job of clearing homeless encampments more difficult, legally — however, such clearing continues to occur, as Mayor London Breed showed in a video last week.
At issue is whether the city must consider a person "involuntarily homeless" if they have been offered shelter but they've refused it. Judge Ryu's order said that it was unconstitutional for the city to penalize individuals or clear encampments, noting that the city lacks enough shelter beds for all those who are living on the streets. This issue was at the heart of the suit, brought by seven homeless individuals, the Coalition on Homelessness, and the ACLU.
The latest ruling states, "Because the parties agree that a person is not involuntarily homeless if they have declined a specific offer of available shelter or otherwise have access to such shelter or the means to obtain it, and because the district court has denied the plaintiffs' motion to enforce the injunction," the city's motion is denied.
The judges add that they will rule on "all the other issues raised by the appeal in due course."
The hearing for this appeal brought with it some political theater outside the Ninth Circuit two weeks ago, with Mayor London Breed and her supporters trying to shout down homeless advocates. The City Attorney's Office has called Judge Ryu's injunction "excessively vague," and the city continues to seek clarity about the circumstances in which the clearing of an encampment becomes necessary for public safety, etc.
City Attorney David Chiu seized on the Ninth Circuit's ruling to claim victory Tuesday, even though they denied the city's motion. As Chiu told the Chronicle in a statement, the court "agreed with the City that the preliminary injunction does not apply to those who refuse shelter or those who have a shelter bed and choose to maintain a tent on the street."
This means that nothing changes, essentially, and the city will continue its sweeps while making offers of shelter beds. Homeless advocates will continue arguing that these one-night shelter stays are not adequate or realistic offers, because they often mean leaving behind one's belongings, pets, etc.
Zal Shroff, an attorney with the Lawyers’ Committee for Civil Rights, gave a statement to the Chronicle saying, "The Ninth Circuit’s ruling makes clear what the law has always been: San Francisco cannot punish people who lack access to specific and realistically available shelter. The injunction is in place because San Francisco failed that test by citing, fining, and arresting unhoused people who did not have a clear means to access shelter more than 3,000 times over the last several years."
The SFPD has been citing and arresting people for public intoxication and drug possession, as part of a broad crackdown on open-air drug use, but the city would likely deny that they have been citing people for being homeless.
A trial in Ryu's court has yet to take place, and the Ninth Circuit judges seemed two weeks ago to want that proceeding to finish, and for the parties to hash out their differences in that court first. But first, the Ninth Circuit appears as if it will rule on the merits of Ryu's injunction, clarifying the circumstances under which the city should legally be allowed to "resolve" encampments.
One thing being discussed is that the city could higher a special monitor to oversee all encampment clearings — though something like this, with a member of the city attorney's office present at these events, seems to already be occurring as Breed said last week.
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