The legal battle over San Francisco reducing tent encampments to zero

SAN FRANCISCO - Litigation, like politics, sometimes makes for strange bedfellows. 

A federal judge Thursday heard arguments on the issue of whether the city of San Francisco must use "all reasonable efforts" -- including police enforcement of laws against public camping -- to reduce to "zero" the number of tent encampments in the Tenderloin district. 

The law school formerly known as UC Hastings College of the Law (now University of California College of the Law, San Francisco, or UC Law SF) said emphatically that the city must do so

Lined up against the law school were the city and the Coalition on Homelessness, a nonprofit advocacy group, although the two are bitter adversaries in a different court case. 

A lot of history led to this situation.
   
The Stipulated Injunction

On May 4, 2020, in the early stages of the pandemic, UC Law SF along with several individuals and a merchant organization based in the Tenderloin brought an unusual lawsuit. 

Contending that the area had become a haven for tent encampments, they argued that the city was allowing a "public nuisance" to be created on its streets. The plaintiffs asked U.S. District Judge Jon Tigar to force the city to clear the encampments.

On June 12 -- hardly a month after the case was filed -- the city and the plaintiffs reached a settlement and asked Tigar to approve a "stipulated injunction," under which the city agreed to "make all reasonable efforts to achieve the shared goal of permanently reducing the number of tents, along with all other encamping materials and related personal property, [in the Tenderloin] to zero."

Tigar approved the agreement, entered the stipulated injunction as a court order, and agreed, as is relatively common in similar situations, to "retain jurisdiction" over the matter. That meant should the parties have a future disagreement over the stipulated injunction, they could return to Tigar for relief without filing a new lawsuit

Following the court's approval, plaintiffs said that "the City initially showed significant success, reducing the number of tents in the Tenderloin from 448 in May 2020 to 22 in October 2020."

But that progress did not continue. By March 2024, the number of encampments increased to 71 and, according to plaintiffs, the city was "backsliding" on its commitment to use all reasonable efforts to reduce encampments to zero.

The plaintiffs and city had a series of discussions about the situation, but were unable to reach a resolution. 
   
Another Injunction Is Heard From

A stumbling block in the negotiations between the city and the plaintiffs was something that only emerged after the stipulated injunction was originally entered. 

In 2022, the Coalition on Homelessness, along with several individuals, filed its own federal lawsuit against the city, alleging that the city's practice of clearing tent encampments did not comply with law.  The coalition's argument was that the city's shelter system was essentially maxed out, that thousands of people were living on the streets without shelter, and when the city cleared their illegal encampments, the displaced people had no place to go. 

The suit alleged that enforcing the city's laws against public camping violated the U.S. Constitution's prohibition on "cruel and unusual" punishment when the people involved were "involuntarily homeless," that is, when they did not have (or refused to accept) shelter.

Chief Magistrate Judge Donna Ryu -- Ryu serves on the same court as Judge Tigar -- agreed with the plaintiffs and in December 2022 entered a controversial injunction that prevented the city from clearing encampments unless it first made a genuine offer of shelter to the people who were displaced and the offer was refused.

When the city and the plaintiffs discussed the stipulated injunction, the city contended that it could not do what the agreement had originally contemplated, at least in part, because of Ryu's injunction. 

The plaintiffs did not see it that way and on March 14, 2024, the plaintiffs teed up Thursday's hearing by filing a motion to enforce the prior agreement.

Even though the stipulated injunction was essentially a deal between the city and the plaintiffs, the city found an unlikely ally in opposing the plaintiffs' position.

It turns out that back in 2020, before Tigar's consideration of the stipulated injunction, the Coalition on Homelessness and two other organizations moved to intervene, that is, to become parties to the case, in order to be heard on the stipulated injunction. The court granted intervention, but the order was not entered until July 30, the same day that the stipulated injunction was approved, so while the coalition was technically a party, it had no input on the terms of the stipulated injunction.

Flash forward to the plaintiffs' motion to enforce the stipulated injunction in the long-dormant case. As a result of its long-ago intervention, the coalition was still a party to the case, and as a party it was entitled to argue against the plaintiffs' position. 
   
Tigar Hears the Arguments

The arguments before Judge Tigar centered on two issues. 

The first was the question of how long the city's zero-tent commitment was supposed to last. 

Alex Van Dyke, a pro bono lawyer for the plaintiffs, acknowledged that under the stipulated injunction some of the city's obligations only applied during the pandemic, but he was emphatic that the zero-encampment undertaking was not one of them.

Tigar seemed skeptical. He asked Van Dyke rhetorically if that meant the plaintiffs could come back to court in 2054 if tent encampments sprang up then.

Van Dyke did not back off. He said the plaintiffs definitely could do so and reminded the court that the plaintiffs had requested a "permanent" injunction in their complaint so it wasn't surprising that the settlement included a continuing long-term obligation of the city.  He added that if circumstances changed, the city could always move to modify the stipulated injunction, but absent modification, the obligation would continue to apply

Deputy City Attorney Kaitlyn Murphy said that Van Dyke's argument was completely unsupportable. She said that a careful reading of the language of the stipulated injunction revealed that the zero-tent commitment ended when Mayor London Breed declared the pandemic emergency over in June 2023. Any different reading would render other parts of the agreement redundant

The coalition's lawyer also opposed the plaintiffs' position. She thought that burdening the city with a never-ending commitment that would limit its discretion in addressing homelessness was unreasonable. In her opinion, reducing homelessness was not a matter of clearing encampments, but of providing shelter and housing. 

The second key issue was what amounted to "reasonable efforts" to reduce encampments in the district to zero.

Van Dyke argued that public tent encampments were illegal under city ordinances and the city should be using its enforcement powers to clear illegal encampments. He argued that in 2020, when the stipulated injunction first went into effect, the city did that and had great success in reducing encampments. The problem was that the city had stopped doing what it promised.

Anticipating the city's argument that it could not use its enforcement powers because of the injunction in Judge Ryu's case, Van Dyke argued that the city still had options. He said Ryu's injunction allowed encampments to be cleared as long as the displaced residents were given an offer of shelter. 

Based on data posted on the city's website, Van Dyke said the city had at least 300 unoccupied shelter beds that could be offered to the people living in the 71 tents in the Tenderloin. If they accepted the offer, they would leave the streets for shelter, and if they rejected the offer, the city could clear their encampments and Ryu's injunction would not apply.

The city countered by saying that 300 shelter beds were not actually available -- that was just the number of beds that were unoccupied, but many unoccupied beds were damaged and uninhabitable. The city's lawyer faulted the plaintiffs for not proving there were useable beds being left empty. 

The coalition's lawyer jumped on board with the city to say that the plaintiffs had not met their burden of proof. She disputed that shelter beds were available and noted that the shelter system had a waiting list. which she argued proved that beds were not available. She also disputed the notion that unsheltered people reject offers of shelter when they are available and accessible. 

Tigar listened to the arguments attentively, asking only a handful of pointed questions. 

At one point during his questioning of Murphy, he acknowledged that he might "show my hand" when he observed that the plaintiffs had an "uphill battle" on the timing question. Despite that, he gave close attention to Van Dyke's rebuttal argument that the use of the word "permanent" in the zero-tent commitment ("...the shared goal of permanently reducing the number of tents...") was a clear indication that the city agreed that the zero-tent commitment would be ongoing.

At the close of arguments, Tigar complimented the lawyers on the quality of their briefs and the arguments. He said he would take the matter under submission, but did not say when he would issue an opinion.

Bay City News invited the city and plaintiffs to comment on the arguments. 

A spokesperson for the City Attorney's Office said, "The City is simply not violating the stipulated injunction in the Hastings matter, and we appreciate the Court's attention to our position ... It is clear that increased litigation over homelessness is not improving conditions on our streets. The courts are not equipped to police every interaction between outreach workers and unhoused individuals. The courts are similarly not equipped to step into the shoes of elected policymakers and voters in order to craft broad strategies to address homelessness."

Van Dyke said, "We felt that we were able to convey to Judge Tigar that there are commonsense measures that the city should be taking to reduce the number of tents in the Tenderloin."

He added, "The Tenderloin has for years been treated as a containment zone by the city. Living conditions in the neighborhood ... are unacceptable. The city recognized this when it promised to make all reasonable efforts to reduce the number of tents in the neighborhood to zero. Plaintiffs are simply asking the city to keep the promises it made to them."