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Controversial ban on San Francisco homeless sweeps upheld by federal court

A man in a suit shouts into a bullhorn as someone holds a sign reading "homeless industrial complex" in the background.
The Ninth Circuit Court of Appeals declined the city's request to toss out an injunction restricting encampment sweeps. | Source: Jeremy Chen/The Standard

The Ninth Circuit Court of Appeals declined to toss out an injunction restricting encampment sweeps in San Francisco on Thursday but asked a lower court to revisit aspects of the controversial court order. 

The Ninth Circuit decision represents a mixed result for city attorneys who had argued that the court order was unworkable. The injunction, which was requested by the advocacy group Coalition on Homelessness as part of an ongoing federal case, restricts the city from enforcing or threatening to enforce specific laws against sitting, lying or lodging in the street. 

A three-judge panel ordered the injunction to remain in effect as the underlying case plays out in federal district court. But the judges also asked the district court to clarify that the injunction only applies to "involuntarily homeless" individuals—meaning it doesn't protect those who decline an offer of shelter or are otherwise already sheltered.

“We appreciate that the Ninth Circuit has confirmed again and further clarified that the injunction only applies to people who are involuntarily homeless, not those who have refused an offer of shelter,” said Jen Kwart, a spokesperson for City Attorney David Chiu. “Nothing about the Court’s order today requires San Francisco to modify its compassionate services-first approach to homelessness.”

The Ninth Circuit also asked the lower court to narrow or reconsider other details of the injunction. 

For one, it asked the district court to clarify that the presence of police alone does not constitute a threat of enforcement. The panel also asked the court to reconsider whether it was necessary to enjoin one particular law, Police Code 169, which specifies that it is unlawful to camp on the sidewalk. That code already requires city workers to offer shelter or housing prior to enforcement.  

The Ninth Circuit also declined to weigh in on underlying legal questions around how cities can address encampments. 

In a filing, the advocacy group League of California Cities backed up the city’s request to nullify the injunction and argued that it was based on an improper reading of an earlier case, Martin v. Boise, among other claims. But the Ninth Circuit suggested that those questions were outside the scope of the appeal. 

John Do, a senior staff attorney with the American Civil Liberties Union of Northern California, which represents the Coalition on Homelessness, said the group was prepared to work with the city to find a path forward in the case. 

“We urge the city to take reasonable and commonsense steps to address the homelessness crisis,” Do said. “It’s clear San Francisco can address this challenging issue, supported by the preliminary injunction in place, because all the injunction requires the city to do is to follow its own policies and the law.”

The injunction, issued in December 2022, has become a flashpoint for frustrations over the city’s response to unsheltered homelessness. 

In August 2023, at a rally outside the Ninth Circuit, Mayor London Breed and other elected officials decried the impacts of the injunction on the city, arguing that it had hamstrung their efforts to keep streets clean and place people in shelters. Gov. Gavin Newsom echoed those assertions, accusing courts of blocking efforts to resolve encampments. 

"This latest action by the court will only create further delays and confusion as we work to address homelessness," Newsom said in a statement Thursday. "It offers a troubling invitation to continued litigation that will hamper efforts to address encampments and provide people with the resources they need."

Newsom added that the Ninth Circuit decision "reinforces the need for the United States Supreme Court to provide clarity in this space."

Newsom, San Francisco officials and other local advocacy groups have called on the U.S. Supreme Court to reexamine Johnson v. Grants Pass, another pivotal case that reaffirmed the rights of homeless individuals to sleep outside. The Supreme Court is expected to decide whether to take up the matter this month. 

“At some point, a court will need to clarify the law in this area, and it is disappointing that in the midst of an intense homelessness crisis, we all must continue to wait for that clarification,” Kwart said. 

Annie Gaus can be reached at annie@sfstandard.com