Although the removal of homeless encampments had not completely stopped in San Francisco, a panel of federal appellate judges just ordered an injunction to be lifted that clears a legal hurdle to the city's efforts to clear illegal encampments.

The Supreme Court's decision two weeks ago in Johnson v. Grants Pass broadly ended much of the legal ambiguity around public camping and the removal of established encampments. Justice Neil Gorsuch, writing for the six-person majority, even cited San Francisco as an example, agreeing with Mayor London Breed that the city's intent with enforcing anti-camping laws was "not to criminalize homelessness" but "to encourage individuals experiencing homelessness to accept services" and move off the streets.

The argument, Gorsuch said, came down to whether a city could enact laws against actions, such as public camping, that did not equate to criminalizing a person's status, that of being unhoused. And, the conservative majority concluded, that a city can, much the way municipalities punish drunk driving but do not criminalize alcoholism, and arrest people for illegal drug use even if they are addicts.

Homeless advocates, and the three liberal justices, decried the decision as inhumane, and as giving cities free reign to criminalize the mere act of sleeping in a public space.

"Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option," wrote Justice Sonia Sotomayor in a dissent that she delivered from the bench. "Punishing people for their status is 'cruel and unusual' under the Eighth Amendment."

Federal district Judge Donna Ryu was relying on an earlier Ninth Circuit decision, Martin v. Boise, when she issued her December 2022 injunction against the city of San Francisco, declaring that homeless encampment sweeps of all kinds were unconstitutional, under the Eighth Amendment, when adequate shelter was not available in a city to house everyone who needed it.

But the Johnson v. Grants Pass decision overturns that precedent, and today the Ninth Circuit vacated that injunction, in light of the Supreme Court ruling.

The appellate court upheld, however, a stipulation Ryu had made about the city complying with its own "bag and tag" policy with regard to unattended belongings that are found in an encampment sweep.

The city is supposed to bag and label all luggage and other belongings and leave a note at the site of an encampment instructing possible owners where they can retrieve those belongings, at a Public Works storage facility. Those belongings must be kept there for 90 days. The Coalition on Homelessness has long contended that these policies are not carefully followed, and that individuals' belongings are frequently lost or destroyed when encampments are cleaned out.

"We appreciate that the Ninth Circuit panel took quick action to ensure the preliminary injunction in San Francisco is in line with the Supreme Court’s decision in Grants Pass," said City Attorney David Chiu in a statement. "This will give our City more flexibility to provide services to unhoused people while keeping our streets healthy and safe. It will help us address our most challenging encampments, where services are often refused and re-encampment is common."

Last summer, the city had sought modification to the lower court's injunction from the Ninth Circuit, which they denied. However in their brief ruling, the Ninth Circuit clarified that the city was only violating the injunction in the case of "involuntary homelessness," which meant that encampments could be cleared if offers of shelter were made to the individuals there, and those offers were refused.

The new ruling then, essentially, allows encampment clearing to go on without necessarily making offers of shelter.

The original case brought in the fall of 2022, Coalition on Homelessness, et al. v. City and County of San Francisco, through which Ryu's injunction came to be, may now be significantly hindered. However, the case won't go to trial for another nine months, and the ACLU, which is representing the plaintiffs in the case, is not backing down.

"Because the city has a history of not keeping its word, we’ll be watching closely," said John Do, a senior attorney at the ACLU of Northern California, following the Supreme Court decision. "San Francisco should not interpret this ruling as a green light to unlawfully crack down on unhoused residents and instead must commit to moving more people off the streets and into affordable housing or emergency shelter."

The ACLU further noted that the Grants Pass decision "addressed only one of 13 claims in Coalition on Homelessness v. City of San Francisco."

"The Grants Pass case did not address the city’s pattern of destroying property, its failure to provide accommodations for people with disabilities, nor whether the methods used to clear encampments unlawfully endanger people’s lives," the organization said in a release. "These claims remain unresolved and will be at issue when the case goes to trial in May 2025."

Previously: Supreme Court Ruling Could Have Broad Implications for Homeless Encampment Sweeps In California

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