In the wake of the U.S. Supreme Court's decision declaring the Constitution doesn't bar cities from enforcing rules preventing the homeless from camping on city sidewalks and in public parks, a federal appeals court has moved quickly to pull back an earlier ruling that had blocked San Francisco from taking action against homeless encampments.
On July 8, a three-judge panel of the U.S. Ninth Circuit Court of Appeals formally withdrew a 2023 ruling in the court fight between the city and county of San Francisco and several homeless individuals and activists advocating on their behalf over San Francisco's alleged mistreatment of the unhoused.
The move by the Ninth Circuit came about 10 days after the U.S. Supreme Court struck down a key earlier Ninth Circuit ruling which critics had said essentially created a constitutional right for the "involuntarily homeless" to camp wherever they liked on public property.
Mayor London Breed
| City and County of San Francisco Official photo
In the 6-3 decision in the case known as Grants Pass v Johnson, the Supreme Court's conservative majority specifically struck down a highly controversial 2018 ruling from the Ninth Circuit, known as Martin v City of Boise, which had declared penalties against homeless people for "sitting, sleeping or lying outside on public property" violated the Eighth Amendment's prohibition on cruel and unusual punishments, if those individuals cannot otherwise obtain shelter.
Under the Martin decision, the Ninth Circuit had held cities may not be allowed to enforce anti-camping ordinances unless they can prove they have enough shelter beds or other spaces available in which homeless people can sleep.
In the Grants Pass case, the Ninth Circuit had expanded the Martin holdings, as two liberal judges said they believed homeless people should be allowed to bring class actions against cities for allegedly violating their constitutional rights.
Fifteen Ninth Circuit judges later wrote they believed that decision was "egregiously flawed and deeply damaging" and would leave cities "in a straitjacket" when attempting to ensure their parks, streets and sidewalks are not taken over by homeless encampments, resulting in "tents crowding out sidewalks, needles flooding parks, and rubbish (and worse) marring public squares..."
In the Supreme Court's ruling, the majority said the Martin decision represented an unconstitutional stretching of the Eighth Amendment, because anti-camping laws do not criminalize people for being homeless.
While the Grants Pass case was working its way to the Supreme Court, a different Ninth Circuit panel delivered a ruling in the San Francisco case, declaring the Martin decision prevented the city from enforcing its own anti-camping rules against homeless encampments, because the city did not provide enough temporary housing for all of its homeless population.
However, following the Supreme Court's Grants Pass ruling, that Ninth Circuit panel now all agreed its earlier ruling could not stand. They did not wait for an order from the Supreme Court directing them to withdraw the decision or otherwise vacating it.
The quick action was praised by both San Francisco City Attorney David Chiu and San Francisco Mayor London Breed.
In separate statements, they both indicated the Ninth Circuit's July 8 action will give city officials greater ability to address the societal ills caused by San Francisco's crisis of rampant homelessness.
“This will give our City more flexibility to provide services to unhoused people while keeping our streets healthy and safe," said Chiu. "It will help us address our most challenging encampments, where services are often refused and re-encampment is common.”
In a separate statement, Breed's office added: "Conversations with the City Attorney are underway to inform our next steps, including how policies and procedures are updated. San Francisco is a city that prioritizes compassion and we will continue to lead with services first in all of our outreach efforts but we cannot allow for people to refuse services and shelter when offered and available."
An attorney with the American Civil Liberties Union (ACLU), who is representing the Coalition on Homelessness and other plaintiffs in the action, said the decision by the Ninth Circuit's action was not unexpected.
But John Do, senior attorney with the Racial & Economic Justice Program at the ACLU of Northern California, said the ACLU and the organizations they are representing intend to continue with the claims in their lawsuit not directly underpinned by the now overturned Martin decision.
Specifically, he said they intend to continue to press claims that the city has carried on an illegal campaign against the homeless in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution by clearing their tents and other belongings without proper notice and without giving them the opportunity to retrieve their belongings.
Further, he noted the complaint also accuses the city of repeatedly violating its own policies and public pledges to provide notice and treat unhoused people with compassion.
The parties are scheduled to appear in San Francisco federal court in August for a hearing to begin to determine how the case has been altered and what comes next.
In the meantime, Do noted the Supreme Court in the Grants Pass decision did not require any city to enforce anti-camping rules.
He said he hoped the city of San Francisco would not rely on what he called the Supreme Court's "really shameful decision" to join in a sort of "cruel race to the bottom to push out unhoused people" from the community.