Will West Coast cities regain the right to keep their sidewalks and public spaces clear of homeless encampments? That is the question to be decided by a federal court in a case that pits San Francisco, reeling from an entwined crisis of homelessness and addiction, against an advocacy group, the Coalition on Homelessness. 

San Francisco’s city attorney is asking judges on the 9th Circuit of the United States Court of Appeals to lift a lower court order that bars the city from clearing homeless encampments. In December 2022, a district court judge, Donna Ryu, issued the temporary ban on clearing tents after the Coalition on Homelessness sued the city over the practice.

In court arguments Wednesday, a three-judge circuit court panel seemed receptive to coming to some compromise between the city and the homeless advocacy group over how and when the city can clear tents. Both parties also appeared to agree that if homeless individuals are offered shelter and decline it, they can no longer be considered “involuntary homeless” and their encampments can be cleared.

San Francisco is reeling from twin homelessness and drug crises. There are nearly 8,000 homeless persons in the city. Tents line sidewalks in the hardest-hit neighborhoods of the Tenderloin and SoMa. Open drug use there is prevalent, despite the city’s recent efforts to crack down on it.

Overdose death data for 2023 so far indicates that this will be the deadliest year for the city on record. More than two persons die in the city each day from drug overdoses. Retail theft is rampant. Nearly half of all businesses in the Union Square area have closed since 2019. San Francisco ranks last among major cities to recover since Covid.

“We need only look out the windows of this courthouse to see up close the dismal conditions that are now present on many of San Francisco sidewalks as tents and encampments have sprung up and multiplied,” deputy city attorney, Wayne Snodgrass, told the court in his opening statement.

At dueling protests outside the courthouse Wednesday morning, San Francisco’s mayor, London Breed, called on the court to side with the city and let them clear tents. Ms. Breed said the city is prepared to take the case all the way to the Supreme Court.

“We are prepared through our city attorney to do whatever it takes to make sure we are able to do our jobs,” Ms. Breed said. “It is not humane to let people live on our streets in tents, use drugs. We have found dead bodies. We have found a dead baby in these tents. We have seen people in really awful conditions and we are not standing for it anymore.”

Judge Ryu’s 2022 order against the city cites the 9th Circuit opinion in Martin v. Boise and prohibits San Francisco from enforcing laws against camping by “involuntary homeless individuals,” so long as the number of homeless persons in the city exceeds the number of shelter beds.

The 9th Circuit’s 2018 Boise ruling held that cities cannot enforce anti-camping laws on public property when they do not have adequate available shelter space. Six homeless individuals had sued the City of Boise over their anti-camping ordinance, and the court ruled that prohibiting sleeping in public when there is no alternative violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”

The Boise decision is why other West Coast cities like Los Angeles, Phoenix, Portland, and Seattle are barred from clearing homeless encampments. Boise tried appealing the decision, but the Supreme Court declined to hear the case.

In an earlier stage of the Boise dispute, President Obama’s Justice Department weighed in to oppose the city’s policy.

“If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless,” the Justice Department said in a court filing. 

Despite spending nearly $1 billion per year on homelessness, with a budget for the Department of Homelessness and Supportive Housing in excess of $600 million, San Francisco does not have enough shelter beds to accommodate nearly 8,000 homeless individuals.

The City Attorney’s office also said in a statement that “over half of the unhoused individuals approached by City workers reject offers of shelter.” The city argued before the circuit court panel for clarity on the definition of “involuntary homeless.”

Mr. Snodgrass also argued that San Francisco is not like Boise in that the city’s ordinances allow for sleeping on sidewalks or in parks 20 out of 24 hours in the day. “We respectfully submit that it is not cruel and unusual punishment to forbid sleeping on public property within four out of 24 hours making up the day,” he said.

“Can I ask you to address your friend’s argument that San Francisco is not Boise?” a Trump-appointed judge on the panel, Patrick Bumatay, asked the Coalition on Homelessness’ attorney.

The Coalition’s attorney, Joseph Lee, argued that the city may permit sleeping in public on the books but it did not, prior to the 2022 court order, allow it in practice. He also argued that the city would often offer shelter as a pretext to clear tents when no adequate shelter space was actually available.

“The prior injunction was entirely appropriately issued to address these interlocking laws that San Francisco uses to criminalize homelessness,” Mr. Lee said.

If the 9th Circuit lifts the order prohibiting San Francisco from clearing tents or modifies it in some way, it could clear the way for other cities to challenge Boise and their ability to clear encampments. 

“This matter is not only critical to San Francisco, but may have implications for cities across the Ninth Circuit that are grappling with their own issues surrounding homeless encampments on public property,” the city attorney’s office wrote in a statement. “That’s why the League of California Cities, the California State Association of Counties and the International Municipal Lawyers Association filed an amicus brief supporting the City’s appeal.”