Even though San Francisco's own injunction on homeless encampment-clearing is not on trial at the Supreme Court, the city has now filed a brief in another case that is sure to have implications here.
The friend-of-the-court brief, filed September 25, can be read in full here. As the Chronicle notes, the brief goes further than other similar briefs filed by Governor Gavin Newsom and local governments around the country in that it is asking the court to outright reverse an earlier appellate court ruling, not just to review it.
The ruling pertains to the case City of Grants Pass v. Johnson, et al., a case out of Grants Pass Oregon, in which the Ninth Circuit Court of Appeals upheld a lower court ruling pertaining to penalizing the homeless for setting up camp on public land. Back in July, the Ninth Circuit declined to grant the case an en banc hearing, following the initial ruling by a three-judge panel, and several more conservative justices made forceful dissents.
The case is being looked to as a test and a potential game-changer on the issue of homeless encampments, and how much power a city has to infringe on the rights of those living on its streets. In particular, San Francisco is concerned with the issue of "involuntary homelessness," i.e. situations in which shelter beds are offered but refused. The Ninth Circuit has already indicated that a precedent set in an earlier case out of Boise, Idaho — in the case Martin v. Boise — does not necessarily apply to those who refuse offers of shelter.
U.S. Magistrate Judge Donna Ryu cited the Grants Pass and Boise cases in issuing an injunction last December that continues to irk SF city officials, declaring that the clearing of homeless encampments had to stop. And now SF City Attorney David Chiu's office is seeking a reversal from the Supreme Court that will force Ryu's hand.
The Grants pass decision, the city's brief states, "made it needlessly more difficult for San Francisco to address its ongoing homelessness crisis and to provide services, including shelter, to persons experiencing homelessness."
"Like so many other cities across the country, San Francisco is wrestling with an overwhelming homelessness crisis," writes Deputy City Attorney Tara Steeley, the counsel of record on the brief. "The City has responded by devoting billions of dollars in funds and resources to assist persons experiencing homelessness, leading with shelter and social services, not criminal citations."
And furthermore, Steeley writes, "San Francisco’s inability to provide shelter to all such individuals does not warrant courts restricting the City’s ability to maintain the safety and accessibility of its public spaces."
"San Francisco recognizes that it makes no sense to criminalize an individual resident who in fact has no place to sleep overnight other than on a public street or sidewalk," Steeley continues. "But that is not the issue here... San Francisco has seen over half of its offers of shelter and services rejected by unhoused individuals, who often cite the district court’s order for their justification to permanently occupy and block public sidewalks."
The brief goes on to call the Ninth Circuit's legal analysis "fundamentally flawed," and to say that federal courts "have given little guidance to cities faced with the challenges of addressing the evolving homelessness crises."
Jen Kwart, a spokesperson for the City Attorney's Office, added in a statement to the Chronicle, "San Francisco believes that it does not make sense to criminally prosecute homeless individuals for sleeping on public property when they have no other place to go, but Grants Pass misapplied the law and has left cities without the necessary tools to address homelessness and keep streets safe and accessible."
Governor Gavin Newsom, for his own political reasons, has been vocal is seeking Supreme Court intervention on the issue, and essentially admitting that he hopes the conservative majority on the court will help in this case.
The high court has said that it will discuss whether or not to take up the Grants Pass case at its October 27 conference, and it could at that point grant review at a later date, let the ruling stand, or reverse it. The court previously denied review to the 2018 Boise case.
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