Why San Francisco Must Appeal Misguided Homeless Ruling

by on January 3, 2023

Judge Wrongly Creates a Right to Camp

Should San Francisco allow people who reject shelter to pitch tents in residential neighborhoods? Does solving homelessness mandate a constitutional right to camp?

U.S. Magistrate Donna Ryu’s December 23, 2022 order says precisely that. In a case brought by seven unhoused individuals and the Coalition on Homelessness against the City and County of San Francisco, Ryu’s preliminary injunction prevents the city from clearing encampments even if shelter is offered to all campers.

Ryu also ruled that “as long as there are more homeless individuals in San Francisco than there are shelter beds available,” the injunction will remain in effect. This ignores that roughly 60% of campers  reject offers of shelter.

Case precedent for Ryu’s expansive ruling is lacking. Her order vastly expanded the Ninth Circuit ruling in Martin v. Boise that campers must be offered shelter before being arrested for violating camping bans. There is a big difference between protecting campers from arrest and giving campers the right to reject shelter or housing.

Compassion (and the law) requires San Francisco to provide shelter or housing to those in need. It does not require offering a right to camp to those who refuse shelter or housing.

Tents pose health,  safety, and fire risks both to the unhoused and nearby residents and businesses. They often become havens for illegal drug activities. Yet Magistrate Ryu had no problem imposing a right to camp in San Francisco.

The city must appeal the court’s ruling.

Court Disregards Evidence

How did this outcome, which goes well beyond Ninth Circuit precedent, happen?

The San Francisco Chronicle reported on the judge’s disregard for San Francisco’s legal defense:

“”They rely on declarations of San Francisco employees,’ she wrote, who ‘generally walk through how the city typically conducts encampment closures, without discussing any specific closures or providing supporting data or analysis of the same.’ “—SF Chronicle, December 24

But that’s not true. Ryu downplayed/ignored the detailed supporting declaration from Sam Dodge, the Director of San Francisco’s Healthy Streets Operation Center (“HSOC”). Dodge’s declaration and the city’s opposition brief undermines the court’s conclusion that San Francisco systematically fails to offer shelter before displacing campers.

While the judge found “the city failed to directly dispute that it cleared people without offering shelter,” Dodge’s declaration states the contrary. He explicitly details his distribution of “projected shelter needs for each engagement.”  Dodge stated: “Between 24 hours and 72 hours before each HSOC engagement, member of the Felton Engagement Specialist Team visit the location, engage everyone on-site to assess their health and interest in any treatment or other services….By 7:30 am,  homeless outreach workers begin engaging with clients and offering shelter.” (Emphasis added).

The  Chronicle did not report on Dodge’s declaration. It instead highlighted the judge’s misguided interpretation of the city’s response. Dodge’s five- page declaration explicitly lays out the city’s procedures for dealing with encampments, procedures that satisfy the constitution.

For the record, from 2000-2007 Dodge worked for the Tenderloin Housing Clinic, which I head. He has a long history of running and working on homeless programs. He is in the field to help the unhoused, not violate their constitutional rights.

While the Chronicle editorial board praised the ruling claiming it forces San Francisco to expand its shelter system, that’s not what Ryu’s injunction does. Her ruling allows the unhoused to reject shelter for tents. Since San Francisco lacks the resources to add enough shelter and permanent supportive housing spaces to meet current and future demand, Ryu’s order establishes a permanent right to camp in San Francisco.

Ryu could have restricted her order to addressing her concerns about the city’s shelter referral process and shelter schedule. Instead she issued an order based on her belief the city systematically fails to offer shelter to campers—which is 100% false.

A Constitutional Right to Camp?

The magistrate’s order preventing the closure of encampments shows how the 2018 9th Circuit ruling in Martin v. Boise can put cities in a no win position. Here’s why.

Under Ryu’s interpretation of Boise, San Francisco must allow people to camp in public spaces until the city can convince a court that there is a space for everyone coming to the city needing shelter. The lack of health and safety provisions in encampments becomes irrelevant, as does the risk of fires caused by those trying to stay warm without heat.

But the Boise ruling did not go beyond requiring cities to offer shelter before arresting campers. That’s what San Francisco already does.

In 2022 San Francisco sheltered over 7,000 households and housed 2,400 households through rental subsidies and supportive housing programs. But thousands of unhoused people remain. The unhoused population in the city is not static. No city has the resources to keep adding enough shelter spaces to match the total unhoused population. That’s why the court’s dismissing the 60% of unhoused who turn down shelter makes no sense and the ruling must be appealed.

Housing First Even More Important

The court ruling will hopefully return attention to two key facts.

First, its cheaper for the city to expand its master leasing program for the unhoused than to expand  shelters. And the cheaper alternative provides a permanent home not a temporary bed.

The city used the huge backlog of Prop C funds almost exclusively for the more expensive approach of buying SRO hotels rather than leasing. That has left the cupboard bare for new acquisitions through the end of the 2022-23 budget year.  Those concerned over the city’s estimated cost for ending homelessness need to do a cost comparison of how many units the city can lease vs purchase over the next three years.

Second, cities need  a massive increase in federal funding to end homelessness. That money was cut out of President Biden’s Build Back Better bill due to unanimous Republican opposition. Republican Senators figure they can put all the blame on big city Democratic mayors. That’s been their strategy since the Reagan presidency.

To those who believe there is plenty of money now: Most of San Francisco’s homeless budget subsidizes rents for people who have long been housed. San Francisco doesn’t shift these costs to an “Affordable Housing” budget even when people have lived in supportive housing for over a decade. So you can’t look at the budget and divide it by the number of unhoused because most of the money is going to those already in permanent housing.

Plaintiffs in this lawsuit are understandably frustrated about ongoing homelessness. But lawsuits that promote a “right to camp” only add to the public backlash against the unhoused.



Randy Shaw

Randy Shaw is the Editor of Beyond Chron and the Director of San Francisco’s Tenderloin Housing Clinic, which publishes Beyond Chron. Shaw's latest book is Generation Priced Out: Who Gets to Live in the New Urban America. He is the author of four prior books on activism, including The Activist's Handbook: Winning Social Change in the 21st Century, and Beyond the Fields: Cesar Chavez, the UFW and the Struggle for Justice in the 21st Century. He is also the author of The Tenderloin: Sex, Crime and Resistance in the Heart of San Francisco

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