Why a Tent on Sunset Boulevard Was Allowed to Remain
UPDATED January 26, 2024
The ability for the city to remove tents has been tied up in the courts for some time. In August 2023, a court hearing clarified that tents can be removed when a person refuses an offer of shelter and is no longer considered to be involuntarily homeless. Mayor London Breed issued this memo about the clarification of the court injunction, saying the city will do more to remove tents when people refuse shelter and services.
But it’s important to note that the court case involving the injunction is not resolved. There has been a flurry of court activity in early 2024 regarding tent encampments:
"The Ninth Circuit ordered an injunction restricting encampment sweeps in San Francisco 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." — From the San Francisco Standard, read the full story.
The trial about tents was scheduled to be heard in April 2024 but has been postponed pending the outcome of a U.S. Supreme Court case about tents.
Meanwhile, the U.S. Supreme Court agreed to reexamine a case called Johnson v. Grants Pass that advocates have used to establish the right to sleep outside: "The decision to take up the case follows lobbying by Gov. Gavin Newsom, the San Francisco City Attorney's Office and other local advocates who had urged the court to clarify the tangle of laws governing how cities can respond to homeless encampments." — From the San Francisco Standard, read the full story.
Governor Newsom said in a statement: "The Supreme Court can now correct course and end the costly delays from lawsuits that have plagued our efforts to clear encampments and deliver services to those in need."
The U.S Supreme Court case will be heard in April 2024 with a ruling expected in June.
When it comes to RVs, City Attorney David Chiu issued this memo that outlines what the city can and cannot do.
By Supervisor Joel Engardio
When a tent recently appeared near the curb on Sunset Boulevard, my office received many emails and calls from concerned residents. It was the first time they had seen a tent in that westside area and they worried one tent would turn into 10 or even 100, like they see downtown.
Residents demanded the tent be removed immediately. They were upset when I explained why this wasn’t possible due to a court injunction against removing tents in San Francisco.
Ideally, the city would offer shelter and services in lieu of letting people camp anywhere. We would give someone a choice: accept the shelter offered or have the tent removed.
The problem is, we don’t have enough shelter for everyone in San Francisco who is unhoused on any given night. And a judge has ruled that until the city offers enough shelter for everyone all at once, we aren’t allowed to remove a single tent or enforce laws against public camping.
I agree with City Attorney David Chiu who said that “it defies logic to require that San Francisco have shelter for all persons experiencing homelessness before San Francisco may enforce these laws against any one person.”
Governor Gavin Newsom told the San Francisco Chronicle that “the court order preventing San Francisco officials from clearing homeless encampments is ‘preposterous’ and ‘inhumane.’”
I support our city attorney’s effort to vigorously fight this ruling.
(What about RVs? There is an explanation at the end of this blog post on what the city can and cannot do regarding RVs)
Frustrated residents
I met with some frustrated residents in the Outer Sunset recently. They wanted to know why they must pay taxes and obey local laws when tents are allowed in any public space and RVs can park anywhere for days on end. Many said it’s unfair when a tent is allowed to block a sidewalk yet homeowners get notices they must pay thousands of dollars to patch cracks in the sidewalk — or pay fines for decorative fences and benches that don’t perfectly comply with city code.
The residents of 36th Avenue pointed out that public property near their homes was being vandalized. One encampment tampered with the water irrigation line on Sunset Boulevard. Another had tapped into the power box at a Muni stop, connecting to live electric wires. There is a lot of dry grass along Sunset Boulevard and residents feared a fire.
Supervisor Joel Enagrdio conducts sidewalk “town hall” with 36th Avenue residents.
I explained that City Attorney David Chiu is fighting the court injunction against removing tents.
The dispute in the tent case is whether the city has to offer shelter to 100 percent of homeless individuals in San Francisco before a single tent can be removed, even if the shelter we offer is refused. The injunction doesn’t apply to private property and it allows tent removal for sidewalk cleaning or mowing grass. But tents are free to return when the maintenance is done.
What about blatantly dangerous activity like siphoning electricity from a bus stop? The city was able to remove that tent. But I had to coordinate responses between three city agencies to make sure residents were heard. Trained ambassadors and social workers visited the tent several times asking inhabitants to stop their illegal and dangerous behavior, while offering shelter and services. The outreach was rebuffed.
It’s important to note that it is not a crime to be homeless. People should not be suffering on our streets. We can offer shelter along with wrap around services for unhoused people experiencing mental illness and drug addiction. It’s the humane thing to do.
Yet the generosity and empathy of our city’s residents does not mean we should hand over every public space to encampments. And if criminal activity happens in an encampment, it cannot be tolerated or normalized. Laws should apply equally to everyone. We should not enable a two-tiered system where only some care about consequences of our laws.
San Franciscans should not fear leaving their homes, walking their dog, or taking their kids to school. Many residents feel this way, which is why City Hall must acknowledge and care about the feelings of longtime residents as much as it is focused on the unhoused population.
Court injunction
How did we get here? Last fall, homelessness advocates sued the city, claiming tent removals violated the constitutional rights of unhoused people. U.S. Magistrate Judge Donna Ryu granted an injunction against removing tents while the case is litigated.
Our city attorney says “Judge Ryu’s order puts the city in an untenable situation, reaches beyond legal precedent, and exacerbates our homelessness crisis.”
Coalition on Homelessness director Jennifer Friedenbach said "our goal in the lawsuit is to ensure that there is an effective and humane street response to homelessness. We are trying to get the city to follow their own policy which is to bag and tag the property, notice and store for 90 days."
Friedenbach set up a website that tells the stories of people who lost property, including "medication, survival gear, and more."
Central to the case is the Eighth Amendment of the Constitution, which prohibits “cruel and unusual punishments.” Homelessness advocates say it is cruel to forcibly remove tents if adequate shelter isn’t available for the unhoused population.
Yet City Attorney Chiu has argued in his appeal that Judge Ryu “conflated an individual’s Eighth Amendment right with a collective societal interest in shelter. As a practical matter, this means San Francisco can never enforce sit/sleep/lie laws on public property until it spends over $1.45 billion to construct thousands of new shelter beds. The district court’s all-or-nothing rule undercuts San Francisco’s ability to regulate health and safety in its public spaces, in the service of a legal standard that is untethered to any individual’s Constitutional rights.”
Homelessness advocates have asked Judge Ryu “to appoint a monitor, at the city’s expense, to oversee compliance with her orders,” according to a San Francisco Chronicle report. They also seek to “require San Francisco to submit periodic reports, under oath, documenting its officers’ treatment of homeless people.”
Different rules for different cities
Other California cities are not restricted from removing tents the same way San Francisco is. Why not? It depends on which judge hears a case for a particular city. Different judges are interpreting the law differently.
An analysis by the Bay Area Council found that "Judge Ryu’s order relies on a maximalist interpretation of the U.S. 9th Circuit’s decision in Martin v. Boise which held that homeless persons cannot be penalized for violating no-camping ordinances unless an offer of shelter is made and refused. By contrast, U.S. District Court Judge David Carter ruled in Los Angeles Alliance for Human Rights v. County of Los Angeles that the city can begin to enforce no camping ordinances once its shelter inventory meets 60% of the unsheltered homeless population based on research indicating 60% of unsheltered homeless residents would take the shelter if offered. The 60% threshold has since been used as a target in the cities of Sacramento, Riverside, and at least two dozen other Southern California cities."
San Francisco is being forced to offer shelter to 100% of the homeless population before being able to remove tents when it's only 60% in other cities.
This conflict in judicial rulings is why San Francisco’s city attorney is appealing to a higher court — and I will support taking the case to the Supreme Court, if necessary.
There are circumstances where the city may be able to compel the removal of a tent even with the constraints of the injunction. Report to police any illicit activity you might see like drug dealing, drug manufacturing, prostitution, and dumping. Also report any harassing behavior.
Tents can be removed from private property. Tents can also be removed temporarily for street cleaning. After the cleaning work is done, the tent can be set up again until the next cleaning.
Blocking a sidewalk or bus stop is technically illegal, but a tent can stay if there are 24 inches of pedestrian clearance around it. For example, the tent on Sunset Boulevard was touching a Muni bus shelter and police could only compel the inhabitant to move the tent two feet.
Another tent on Sunset Boulevard met the threshold for illegal and dangerous activity. It was stealing electrical power from a Muni shelter by tapping into the power with an extension cord. We were able to remove that tent. However, the tent could return, as long as it remained at least two feet from the bus stop and did not engage in illegal activity like stealing electricity.
My office dispatches community ambassadors to tents and RVs to offer shelter and services. The ambassadors make repeat visits to build relationships with the inhabitants to convince them to take shelter. It doesn't always work but there have been successes.
In addition to the community ambassadors (who wear yellow jackets), I was able to secure funding for retired police officers (in blue jackets) to walk beats in the Sunset with radios. Both sets of ambassadors fill a much needed gap as San Francisco faces a shortage of more than 500 police officers and we work to recruit more. The ambassadors help the community feel safe while freeing up existing police officers to focus on serious crimes.
Timeline in the case
This Q&A in the San Francisco Chronicle explains every step of the lawsuit. This timeline in the San Francisco Standard also offers an in-depth explanation.
A trial is set for April 2024 when City Attorney David Chiu was going to fight the lawsuit against removing tents, but the trial was postponed pending the outcome of a U.S. Supreme Court case about tents.
City Attorney Chiu appealed the injunction to a higher court in August 2023. A three-judge panel of the Ninth U.S. Circuit Court of Appeals denied Chiu’s request to modify the injunction. But the order is more complicated than an outright denial.
Both City Attorney Chiu and homelessness advocates claimed victory. At issue was the definition of “involuntary homeless.” City Attorney Chiu wanted the ability to remove tents if the person refused shelter because the refusal of shelter meant the person was choosing to stay in a tent and not involuntary homeless. At the August 23, 2023 hearing, a lawyer for the Coalition on Homelessness conceded that people who refuse offers of shelter would not be considered “involuntarily homeless.” After the hearing, when Chiu attempted to get the concession in writing, he claimed the homelessness advocates reneged on their courtroom statements.
On September 5, 2023, the Ninth Circuit issued a statement denying City Attorney Chiu’s request to amend the injunction. The court said it denied the motion because both parties during the hearing agreed that “a person is not involuntarily homeless if they have declined a specific offer of available shelter or otherwise have access to such shelter or the means to obtain it.”
However, the parties are not in agreement.
City Attorney Chiu said the court’s statement is a victory because it clarifies that the city can remove tents when people refuse shelter. Yet homelessness advocates also claimed victory because the court said a tent can’t be removed unless there were “specific” offers of “available” shelter — and advocates contend the city does not have enough of either.
Residents upset with encampments are urging city officials to begin removing tents when people refuse shelter, but officials are waiting for City Attorney Chiu to provide legal direction.
This article in the San Francisco Examiner explains the confusion around the definition of “involuntary homeless” and what the latest court ruling means.
City Attorney Chiu said he is providing direction to city agencies on how to proceed given the court’s September 5 clarification that tents can be removed when a person refuses an offer of shelter and is no longer considered to be involuntarily homeless. Mayor London Breed issued this memo about the clarification of the court injunction, saying the city will do more to remove tents when people refuse shelter and services.
Note the court case involving the injunction is not resolved. A trial about tents was scheduled to be heard in April 2024 but has been postponed pending the outcome of a U.S. Supreme Court case about tents.
The U.S. Supreme Court agreed to reexamine a case called Johnson v. Grants Pass that advocates have used to establish the right to sleep outside. The San Francisco Standard explained: "The decision to take up the case follows lobbying by Gov. Gavin Newsom, the San Francisco City Attorney's Office and other local advocates who had urged the court to clarify the tangle of laws governing how cities can respond to homeless encampments."
The U.S Supreme Court case will be heard in April 2024 with a ruling expected in June.
Options and resolution
Residents don’t want to hear more explanations and excuses about how one judge’s injunction has disrupted San Francisco. They want to see a resolution.
This leaves City Hall with two options. City Attorney Chiu can keep fighting the case to the Supreme Court, if necessary. Or, we could find a way to create thousands of shelter beds ASAP.
That would require turning unused piers and empty parking lots — any space that works — into a centralized space for tiny home cabins and RVs that offer shelter, sanitation, and behavioral health services. An organization called 2000 Open Doors has lots of ideas about how to make this happen.
To tackle our homelessness crisis, we must build all types of housing that meet a variety of needs — shelter beds, navigation centers, permanent supportive housing, tiny homes, and regular housing.
We must also address the underlying causes of human suffering on our streets, including mental illness and drug addiction. Successful treatment is dependent on having a safe and stable place to live.
For people suffering from mental illness, we need enough beds for every level of care: acute, subacute, and community residential. We’re woefully lacking in subacute and community residential facilities. Funding those facilities will require state and federal resources.
Finally, we must acknowledge what is known as “drug tourism.” It plays a role in why some people set up encampments in San Francisco and refuse shelter. Drugs are not allowed in shelters, but they’re easy to get on the sidewalk. To save lives, we must shut down the open drug market on San Francisco’s streets.
The issues of homelessness, drug addiction, and mental illness are complex. They require a compassionate approach, without sacrificing the social contract for a functioning city.
Another issue clogging up courts
In addition to the tent removal case, City Attorney David Chiu is also “fighting off a barrage of claims of up to $10,000 each from homeless residents who accuse the city of illegally confiscating or destroying their belongings during street cleaning operations,” according to a recent San Francisco Chronicle report.
So far, more than 100 claims have been filed that homelessness advocates appear to be organizing. The alleged lost property includes rare Adidas and Ferragamo shoes worth thousands of dollars, gold jewelry, and laptop computers. When the city denies those claims and advocates appeal to small claims court, local judges have ruled for maximum damages.
“This is a manipulation of the claims process,” said City Attorney Chiu. “For many of these claims, there is no supporting evidence of lost property. We are now seeing sets of identical claims associated with different claimants. I do not believe these are genuine claims of property loss.”
I agree with our city attorney when he says that “the city is not an ATM for $10,000 checks. We have to defend our city.”
What about RV encampments?
City Attorney David Chiu issued this memo to direct what can be done regarding RVs in relation to the various court cases and injunctions the city is appealing.
I've asked SFMTA to enforce existing parking laws for vehicles and RVs. There are legal limits to what SFMTA can do. For example, state law says a vehicle cannot be towed with a person in it. When people are living in their car or RV, it could only be towed if they have abandoned the vehicle. Ticketing someone for sleeping in their vehicle will not lead to a tow.
A state appeals court has further lessened the effects of ticketing. The court's recent ruling no longer allows the towing of vehicles when tickets are unpaid, even if the vehicle is vacant and without an occupant.
State law currently allows for towing if a vehicle lacks registration. But state lawmakers are proposing a new law that bans towing for expired registration tags. If you disagree with this proposed law, it is important to contact your state representatives. Matt Haney and Phil Ting represent San Francisco in the state assembly. Scott Wiener represents San Francisco in the state senate.
What can be done while these cases work their way through the courts? My staff can dispatch community ambassadors to visit vehicle inhabitants. The ambassadors offer shelter and services, but they cannot force vehicle inhabitants to take what is offered. The ambassadors will make return trips and over time they have been able to successfully convince some people to take shelter.
When shelter and services are refused by RV dwellers, this document from City Attorney Chiu outlines what can be done.
Meanwhile, we must create a sensible space for RVs with services to help people in need. There are unused piers and empty parking lots that could be used as temporary sites for RVs and offer services. We need to find areas like this to direct people to because we cannot let every street be a place for parking RVs.