A federal judge says residents and businesses in San Francisco's beleaguered Tenderloin neighborhood can't use a lawsuit to force the city to enforce the law in their crime- and drug-infested community.
But the judge said he will allow some of the plaintiffs to continue pressing claims that the city has discriminated against Tenderloin residents with mobility disabilities by allowing sidewalks and building entryways to often remain blocked by homeless encampments, broken hypodermic needles and other impediments.
The decision was issued July 19 by U.S. District Judge Jon S. Tigar in the Northern District of California.
U.S. District Judge Jon Tigar
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"Plaintiffs here allege that the 'sidewalks and public spaces' in their neighborhood are impassable and inaccessible to them due to 'encampments and bulky items, such as duffle bags, shopping carts, and disassembled bicycles," the judge wrote.
"... These allegations put the City on notice of how the barriers prevent Plaintiffs from full and equal access - encampments and other items obstruct their path such that those with walkers and other mobility issues are unable to utilize the sidewalks."
The decision marks a partial victory for the city of San Francisco against the lawsuit accusing the city of essentially sacrificing the Tenderloin to criminals, drug addicts and homeless encampments in a bid to suppress such activity in the city's more gentrified areas.
The lawsuit has been pending since mid-March, when a group of Tenderloin residents and businesses filed their complaint in San Francisco federal court. Plaintiffs include Tenderloin residents with disabilities and immigrants, as well as businesses such as the Phoenix Hotel and the operators of the Best Western Road Coach Inn.
The lawsuit accuses San Francisco city officials of establishing a de facto policy of allowing greater criminal activity within the Tenderloin to essentially corral the crime and drug trade there and stem its spread into other neighborhoods.
The plaintiffs assert this policy since 2019 has allowed the Tenderloin to descend into such a state that the neighborhood has become all but unlivable, and businesses struggle to survive.
The plaintiffs note that sidewalks and streets throughout the Tenderloin are packed not only with homeless individuals, but gang members and others selling and taking drugs of all kinds, including fentanyl and other "potent, highly addictive and deadly opiates," while other criminal activity of all kinds flourishes.
Plaintiffs assert open air drug markets are common right outside of apartment buildings and homes in which children and families live, operating without fear of law enforcement.
"... The consequences of the containment zone policy to the residents of and stakeholders in the Tenderloin have been devastating and constitute a violation of their dignity and fundamental civil rights," the plaintiffs wrote in their March lawsuit. "This is a state-created danger. It is both a public and a private nuisance. It has deprived plaintiffs of equal protection of the law and of fundamental liberty interests protected by the United States and California Constitutions."
The lawsuit seeks court orders essentially forcing the city to give Tenderloin residents the same level of police protection and other city services that the Tenderloin residents and businesses allege are given to other areas of the city, but denied to them.
In response to the lawsuit, San Francisco City Attorney David Chiu asked Judge Tigar to toss the lawsuit. Chiu's office argued the lawsuit advanced a "novel" legal argument that cannot stand up under the law.
The City Attorney argues the city cannot be sued over its policies to enforce or not enforce the laws within its borders. Criminals have created the public nuisance in the community, the City Attorney argues, and the lawsuit impermissibly seeks to hold the liable for it.
The City Attorney argues the claims in the lawsuit are "policy and political quarrels," not legal claims for damages that can hold up in court.
In his ruling, Judge Tigar largely agreed with the city's side.
He said, under the Constitution, the city - acting as the executive branch of government in this instance - has the authority to decide if and when to actually enforce the law against drug dealers and other criminals and when to clear illegal homeless encampments from city sidewalks.
Quoting from the U.S. Supreme Court's 2023 immigration enforcement-related decision in United States v Texas, Tigar said: "Plaintiffs essentially want this Court to order the City to alter its enforcement policies surrounding drug use and encampments in the Tenderloin. But as the Supreme Court recently reiterated 'a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.'”
Further, he said constitutional considerations prevent him from ordering the city to address the Tenderloin's crime and vagrancy problems because to do so would "impose financial burdens" on the city to craft and implement enforcement and mitigation policies and programs.
The California state constitution, Tigar said, imposes no duties on the city or any other government to actually protect its citizens or their rights or "to take particular steps to guarantee the enjoyment of safety or happiness by all citizens."
"Rather, 'the constitutional mandate is simply that the government is prohibited from violating' individual rights but does not 'impose a mandatory duty on public entities to protect a citizen’s' rights," Tigar wrote. "Here, Plaintiffs seek to impose a mandatory duty on the City - enforcement of drug and anti-encampment laws in the Tenderloin. Article I, Section I imposes no such duty."
However, the judge said the Tenderloin residents with disabilities can continue pressing their claims for violation of their civil rights under federal law.
The judge said the residents have stated a plausible claim that the city has discriminated against those with mobility challenges by allowing public ways to remain filled with homeless encampments and other nuisances.
"Public sidewalks are a service, program, or activity of the City within the meaning of" federal civil rights and disability access laws, Tigar said. In this instance, the judge noted the city receives federal funds to maintain its streets and sidewalks. Therefore, the judge said, the city could be on the hook for not properly ensuring those public ways are clear and accessible for those with disabilities.
Judge Tigar rejected the city's attempt to dismiss the disability-related claims.
The judge, however, dismissed the crime and law enforcement-related claims. Those dismissals were without prejudice, meaning the judge will allow the plaintiffs the chance to amend their complaint and try again, should they be able to overcome the shortcomings identified by the judge. They have 21 days from July 19 to file a new complaint.
Plaintiffs are represented by attorneys with the firms of Walkup Melodia Kelley & Schoenberger, of San Francisco, and Kline & Specter, of Philadelphia.