Court order blocking homeless sweeps leaves residents, city workers in ambiguity

The city is walking a fine line as the frustrations of housed residents and those living on the streets clash in the wake of a court ruling that restricted the city from dismantling encampments. 

A controversial injunction handed down by U.S. Magistrate Judge Donna Ryu on Dec. 23 temporarily restricted city agencies from enforcing local laws barring sitting, lying or sleeping on public property. City workers can still ask people to move under a narrow and rather vague set of circumstances that include street cleaning and safety issues, and the ruling doesn’t bar the city from enforcing other laws unrelated to lodging on the street.

No one seems satisfied with the ambiguity.

The number of tents has ticked up in recent months, according to city data. Unhoused individuals still report having their lives disrupted by city operations. Residents living or running businesses near encampments say they have little recourse to resolve prolonged disturbances. Citing an “impossible situation,” the city is appealing the injunction in a high-stakes court case that could influence how cities across the country address rising street homelessness.

The federal injunction came in response to a lawsuit by the Coalition on Homelessness accusing the city of breaking the law and destroying property as part of its encampment sweeps.

“They’re playing mental war games,” said a man named Josh living under the Central Freeway. “They’re not physically making you move. But they make a spectacle of it.”

At a Feb. 14 "encampment resolution"—the city’s term for clearing an area of tents—a group of more than a dozen city workers from the Department of Emergency Management, the San Francisco Fire Department, the Healthy Streets Operation Center and the San Francisco Police Department arrived at a lineup of seven tents near the intersection of Gough and Eddy streets.

The area around the tents was tidy. But a representative from the fire department told occupants that they needed to move because they were living in front of Sacred Heart Cathedral Preparatory School. The Department of Emergency Management later cited street cleaning in a statement, saying the request to move tents was permitted under the ruling.

“I get it. We’re right next to the high school,” said Brett Webber, who has been living on San Francisco’s streets for six months. “But it takes a lot to find a place to go. We try to find places that are good for the public, too.”

Webber, who said he served in Afghanistan, didn’t think he had a choice after city workers asked him to move. After setting up on sidewalk next to a park across the street, he was again ordered to move by park rangers because camping isn’t allowed in public parks. 

The federal injunction doesn’t impact the park code, the City Attorney’s Office said.

On nearby Larch Street—a narrow alley off Van Ness Avenue that’s become a recurring hotspot for encampments—property manager Tevaite O’Neill said that the situation for her tenants has worsened since the Dec. 23 injunction.

The number of tents and structures across the city has peaked since at least June 2021, totaling 605 as of January. And residents who spoke with The Standard said that the court injunction has left them with fewer avenues to address noise, vandalism, damage and drug activity associated with certain camps.

O’Neill’s family, along with another building owner in the area, sued the city in 2020 alleging that drugs, violence and noise from a large encampment on Larch threatened the safety of tenants. O’Neill said that the city helped to keep the alley clear for a time; they wound up dropping the lawsuit.

But now, the city’s outreach teams, who are tasked with encampment resolutions and offering shelter to occupants, take weeks to respond to complaints according to O'Neill. Property managers call police three to four times a week for drug use, vandalism and other suspected illegal activity.

One disruptive occupant had been starting fires and digging up sensor wiring outside the building’s garage, O’Neill said. Trash has regularly piled up, and sidewalks were vandalized with graffiti, leading to a $362 bill from the city for cleanup—which O’Neill called an insult.

“We’re at our wits' end. We’ve spoken to news reporters; we’ve emailed the mayor, the police department—any city official we get,” she said. “There’s smoke damage to our building, and it’s only a matter of time before someone is going to get hurt.”

The injunction doesn’t prohibit SFPD from enforcing vandalism, drug activity or other other laws besides simply sitting or lodging on the street. But officers are often slow to respond if there are higher-priority incidents in the area, and can't permanently clear encampments. SFPD didn’t respond to a request for comment. 

“Now we call the police, but they can’t do anything,” O’Neill said. “What are we doing? How do we get help? And how do you give people housing if they’re refusing it?”

A police memo that circulated last month illustrates the city’s hazy rules for handling encampments.

It specifies that officers may not "use, enforce, or threaten to enforce" six specific laws and ordinances related to sitting, sleeping or lying on public property.

Officers are still permitted to ask individuals to relocate voluntarily, however, so long as the request is “not accompanied with a threat of enforcement.” They can still enforce codes around trespassing, obstruction to the public right-of-way and accumulation of filth or unsanitary debris. And city workers can ask people to move temporarily for street cleaning.

“I just don’t want to make a fuss and get arrested,” Webber said. “They specifically waited for the police to get here.” 

After the Feb. 14 sweep, one woman named Nina was taken to a shelter while Webber was told that there were no beds available for homeless veterans that day. The Department of Emergency Management said that the city engaged eight people at the operation and four of them “accepted services,” though it didn’t specify what that meant.

“Just work with folks, treat them with dignity and respect and have some services to offer,” said Jennifer Friedenbach, executive director of the Coalition on Homelessness. “Everything just has to be so aggressive, and it doesn’t work. It just perpetuates homelessness, and it’s a waste of resources.”

A recent report by the Department of Homelessness and Supportive Housing estimated that the city needs an additional 3,810 units of permanent housing and 2,250 shelter units beyond those already slated for construction to solve homelessness. 

But even if ample facilities existed, there’s no guarantee that people experiencing homelessness would willingly accept shelter. 

Healthy Streets Operation Center, the interdepartmental group tasked with encampment resolutions, has estimated that 15% to 20% of individuals it engages with already have confirmed shelter.

Other unhoused individuals have told The Standard that they prefer the streets to shelters because of past negative experiences, fear of lodging with unstable people, the difficulty of storing belongings or simply the greater freedom afforded by the streets.

“[The] shelter’s really sparse. It's good for a shower and a meal and a place to keep your hygiene stuff,” said Amanda Steele, an unhoused woman named who sleeps in a city shelter but keeps the majority of her belongings in a street encampment. “I’m this close to being there more often than not, but the transition part is scary.”

Dylan Miner, who said he sleeps at a shelter run by Urban Alchemy in Lower Nob Hill, likewise keeps many of his belongings on the street while he waits for a housing placement.

The city’s outreach operations bring about traumatic memories from times that his property was destroyed, he said. The city has paid out thousands in settlements to unhoused people who say their belongings were confiscated during encampment resolutions.

“I can’t bring my whole life [to the shelter],” Miner said. “I can’t hang out with my homeboy over there.”

Supervisor Rafael Mandelman, who has advocated for increased enforcement against sidewalk camping and greater shelter capacity, said that fallout from the federal injunction hasn’t been as bad as he anticipated.

But he argued that the city should enforce sit/lie laws against people who have already secured shelter, contending that the city doesn’t have an obligation beyond providing a place to sleep and a “reasonable amount of storage space.”

“The fear in December was that everything would fall apart overnight. That has not happened,” Mandelman said. “But insofar as the judge's injunction is being used to allow people to have both shelter space and the tent on the sidewalk, it's really bad.”

Those circumstances figure heavily into the city’s objections to the December court injunction.

In an brief filed in the Ninth Circuit Court of Appeals on Tuesday, City Attorney David Chiu asked the court to invalidate the injunction, arguing that the ban on the enforcement of sit/lie laws is overly broad, untenable and based on faulty legal analysis.

Chiu argued that the injunction didn’t clarify what it means to be “involuntarily homeless”—and whether that applies to individuals who refuse shelter—and wrote that the city also has an obligation to keep public spaces clear for residents who use sidewalks to walk, shop and work.

The court will consider Chiu’s appeal, as well as the Coalition on Homelessness’s response, and a panel of three judges will issue a decision in the coming months that could invalidate all or part of the injunction, uphold it or add new conditions on the lower court’s decision. The panel’s decision would likely become precedent in the Ninth Circuit’s territory, which covers much of the Western U.S.  

"I suspect a lot of people will be on the sidelines watching what’s going on with the [Coalition's lawsuit]," said Curtis Dowling, an attorney who specializes in property issues and previously represented the O'Neill family.

Hadley Rood, an attorney with the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area representing the Coalition on Homelessness, said that the city’s arguments “ignore the factual record,” including evidence that unhoused people cannot easily obtain shelter of their own accord. The city’s homelessness department closed its shelter waitlist during Covid.

“Folks in SF don’t have voluntary access to shelter,” Rood said.

A spokesperson for HSH acknowledged that the city does not have enough shelter to meet the need, but said the department maintains a phone line to request a bed and is working on a new referral process for shelter that will be in place by the new fiscal year.

The overall goal of the lawsuit is to incentivize the city to build more permanent housing, attorneys for the Coalition on Homelessness have said. But as the arguments play out in court, some speculate that the injunction will ultimately have the opposite effect.

“The injunction, actually, would seem to me to push the city to more aggressively stand up immediate short-term shelter options,” Mandelman said. “The notion that we are going to try to solve our street conditions by building permanent housing for every unhoused person who may pass through San Francisco is a noble ambition, and it’s not going to work.”