Under what circumstances is a person “involuntarily” homeless? And exactly how many shelter beds must a city provide in order to enforce anti-camping laws?
If a judge answers these questions, raised in the ongoing battle over San Francisco’s homeless encampment sweeps, it could prove to be a key evolution in an ongoing legal battle playing out across the country.
A 2018 ruling by the Ninth Circuit Court of Appeals in Martin v. Boise established that cities can not punish involuntarily homeless people for simply doing things to stay alive — like resting on a sidewalk — if they’re not offered an alternative form of shelter.
But critics of the decision have called the ruling vague and difficult to apply in practice.
In San Francisco, The City’s policies comply with Martin v. Boise, but its actions haven’t haven’t lived up to those promises. At least, that’s the take of Judge Donna Ryu, who ruled last month that The City has failed to follow its own laws when sweeping homeless encampments.
Citing a dearth of shelter bed availability, Ryu issued a preliminary injunction that bars The City from enforcing several laws, including those that ban camping or sitting and lying on public property.
If Ryu’s stance in the preliminary injunction holds, San Francisco could be another Boise, serving as a constitutional litmus test of cities’ response to homelessness.
A ruling could back up, clarify or even expand the precedent set by Martin v. Boise.
Or not. The City and homeless advocates who oppose aggressive sweeps could reach a settlement before trial, or the court’s ruling could leave the same unanswered questions as have decisions before it.
Both sides of the battle have the resources and incentive to see this fight through.
The lawsuit was brought forward last year by a number of high-profile organizations, including the San Francisco Coalition on Homelessness and ACLU of Northern California. The City — where officials face political pressure to rein in encampments — has dug its heels in and already contested Ryu’s ruling.
What happens in San Francisco
San Francisco law requires The City to offer the homeless a safe place to stay before ticketing them for pitching a tent on city property.
But Ryu’s position — issued in the form of a preliminary injunction in December — could prove consequential because it not only looks at what The City says it should do, but what it actually does.
“I think one thing that does make this preliminary injunction order potentially unique is its analysis of the policies that were written on the books versus how it’s playing out in practice,” said Lily Milwit, an attorney with the National Homelessness Law Center, a nonprofit that advocates for the rights of the homeless.
That’s a crucial distinction to advocates for the homeless who, like numerous cities across the Western United States, continue to try to navigate the legal landscape left in the wake of Martin v. Boise.
“We’re very much seeing in real time organizations and plaintiffs sort of testing the bounds of Martin, and that’s sort of what’s happening with this most recent case,” Milwit said.
Those who have fought on cities’ behalf believe Ryu’s stance — and those of judges who have made similar rulings — unfairly ratchets up pressure on city officials.
“Now, local governments in the western United States face tremendous risk of liability at every turn as they try to solve the homelessness crisis. These court decisions have caused paralysis at a time when we urgently need action,” Theane Evangelis, the lead attorney who represented The City of Boise in Martin v. Boise, wrote in an email to The Examiner.
A federal court ruling issued last month sparked questions about exactly what San Francisco must offer the homeless before citing them
Martin v. Boise and how cities have responded
In its Martin v. Boise ruling, the court declared “the government cannot prosecute homeless people for sleeping in public if there ‘is a greater number of homeless individuals in (a jurisdiction) than the number of available’ shelter spaces.” And although the judges described the ruling as narrow, its implications have been broad and its parameters unclear to the cities responsible for adhering to it.
In the case of Johnson v. City of Grants Pass, which is currently being appealed, the Ninth Circuit “doubled down” on Martin’s standard,” Evangelis said. “Rulings like this one from a San Francisco federal court will further tie governments’ hands until the Ninth Circuit reverses course or the U.S. Supreme Court steps in,” she added.
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Of course, cities didn’t respond to Martin v. Boise by quickly building enough shelter beds and housing for everyone.
Many adopted policies that attempted to skirt Martin’s limits. Some set aside a certain number of shelter beds so that, at the moment they were enforcing camping laws, they could ensure that there was a bed available — even if the total population of unsheltered homeless people, in reality, far surpassed the number of beds.
Other cities took the approach of declaring certain areas off-limits to camping, while in others it was allowed. Citing the risk of fires associated with encampments, the city of Sacramento adopted a law in 2020 that prohibited camping near what it deemed “critical infrastructure” and wildfire risk areas.
San Francisco’s encampments are addressed by its Healthy Streets Operations Center, which is supposed to offer people living on the street a place to stay before forcibly moving them. The City is also required to collect and store the items it clears from encampments.
Homeless advocates are arguing not that those policies violate the standards under Martin v. Boise, but that The City is failing to comply with them.
Is unsheltered homelessness proliferating?
When the Supreme Court declined to take up an appeal to Martin v. Boise, many cities and business groups warned that it would allow encampments to proliferate on City streets and sidewalks unabated.
In San Francisco, at least, that hasn’t quite happened. The City’s unsheltered homeless population actually declined slightly, between 2019 and 2022 according to its Point in Time Count.
Still, The City is operating from a massive structural deficit.
To house all of its unsheltered people, San Francisco would have to massively expand its shelter and permanent supportive housing offerings.
The cost of doing so within the next three years would exceed $1.4 billion, according to a recent report authored by the Department of Homelessness and Supportive Housing.
In 2018, the Ninth U.S. Circuit Court of Appeals issued a pivotal ruling that established protections for people experiencing homelessness
The future
Much of Ryu’s preliminary injunction relies on simple math — The City has thousands fewer available shelter beds than it does unsheltered people experiencing homelessness.
The City conceded “the existence of long-standing shelter bed shortfalls, as well as the fact that homeless San Franciscans have not been able to voluntarily access shelter beds since April 2020,” Ryu wrote.
It still left key questions for city officials, like when is a person “involuntarily” homeless?
“The Ninth Circuit has decided it’s unconstitutional to enforce a camping ordinance against anyone who is ‘involuntarily homeless,’ but it’s impossible to figure out who falls into that category. Homelessness is a complex problem,” Evangelis wrote. “Constitutional rules can’t depend on facts that are impossible to assess and constantly subject to change.”
To homeless advocates, such questions are moot until The City actually has as many beds as it would take to shelter the homeless population.
Unable or unwilling to dramatically expand shelter, The City will look to continue its current approach to enforcing laws against camping and sitting or lying on a sidewalk — hence the legal battle at hand.
It will likely take a while to resolve.
Barring a settlement, the case isn’t set for trial until 2024. And no matter what the court decides, it could be appealed, as was the case in Martin v. Boise, which could take years.
Despite the confusion sparked by a judge’s ruling last week, The City can — and has already continued to — conduct sweeps of homeless encampments
