Why is the Coalition on Homelessness Suing the City of San Francisco?

This article has been adapted from an episode of Street Speak, our podcast answering your burning questions about poverty and homelessness. To listen to the full episode, find us wherever you get your podcasts or on our website, streetsheet.org/street-speak-podcast

Right now, attorneys from the Lawyer’s Committee on Civil Rights (LCCR)—alongside the American Civil Liberties Union (ACLU) and the Coalition on Homelessness—are suing the City and County of San Francisco for their main response to homelessness: criminalization. Zal Shroff, senior attorney, and Hadley Rood, UC Berkeley public interest fellow, are both part of the racial justice team at LCCR leading this lawsuit. The lawyers were joined by homeless activist and plaintiff Toro Castano to discuss the legal underpinnings of the lawsuit, as well as the impacts that encampment sweeps have on homeless people.

The lawyers and the seven plaintiffs they represent hope this lawsuit will change the way the city responds to homelessness.

Zal Shroff: So the lawsuit, in a nutshell, is about the difference between what San Francisco promises its response to homelessness is and what that response actually is, in fact. So I think the public is often told a narrative that San Francisco has a really progressive response to homelessness. It has a services-first approach to homelessness, so that everyone who wants services or shelter gets access to those services and shelter. And if people are still outside on the street just because they want to be there, we should punish them because they’re not taking the services that are being offered to them: That’s what the public is sold as the narrative of homelessness in San Francisco, which is to blame unhoused people for the condition of being homeless.

What that story does not show is that San Francisco has fundamentally underinvested in affordable housing over decades, creating an affordability crisis that results in about 20,000 San Franciscans—longtime San Francisco residents—becoming homeless at one point or another every single year. What results is 8,000 people at any given moment being unhoused in this city and, unlike the city’s representation, they have about 4,000 shelter beds for 8,000 unhoused people. So you have an unprecedented crisis of street homelessness where people are forced to sleep outside through no fault of their own because there are no services or shelter for them to access. And so the real misconception, the mistruth that is being spread, is that there is enough shelter to go around for everyone and that people just aren’t taking it. And we know that not to be true because we’ve taken three years of data to show that when people are being cited and arrested, when they’re being moved from block to block across the city to pretend like homelessness isn’t in the city anymore, what actually is the case is that they have nowhere to go, the city has nothing to offer them, and they’re just being policed out of sight. And what we see joins that, is a variety of different harassing conduct, but also massive amounts of property destruction, where people have their survival belongings stolen, seized, thrown in a dumpster on a regular basis. And we see devices that are obviously for survival gear or important technology items, like someone’s tent that they’re sleeping in, like their blankets or like their MacBook Pro or their cell phone—things that no one could conceive of as trash—that are being thrown in the dumpster directly in retaliation for people being outside, when again, they have no choice but to be there. And that’s what’s cruel and unusual about San Francisco’s practices.

Encampment sweeps are carried out by multiple agencies across the City of San Francisco, which work together under the umbrella of the Healthy Streets Operation Center, known as HSOC. HSOC is comprised of the Public Works Department (DPW), San Francisco Police Department (SFPD), the Fire Department, the Department of Emergency Management, the Homeless Outreach Team, and other agencies. The lawyers told us that there are formal sweeps—carried out by HSOC—and informal sweeps, in which either DPW or SFPD, or sometimes both, show up and tell people to move along. Oftentimes sweeps involve not just moving people to the next block, but also confiscating their belongings, including tents, sleeping bags, medications, and other things people need to survive.

Toro Castano: The largest sweeps have several different departments on scene. Usually there’s a special [Homelessness Outreach Team], that’s just for sweeping. They will offer lodging, but they don’t know what might be until about noon or 1:00 in the afternoon. So it’s kind of a gamble whether you’ll get shelter or congregate shelter or some other type of lodging. The DPW is usually on scene to try to take as much of people’s stuff as possible. It’s been rumored that they sell stuff at flea markets—that seems to be keeping with the kinds of things that they prioritize taking—and then there are usually police to kind of keep things orderly. I’ve been arrested once during a sweep, but it’s not very common for that to happen. Usually they’re just interested in pushing people along… Oftentimes [sweeps] can happen early in the morning and they happen as early as 4:30 in the morning. Recently it’s been below freezing at that time, so the cold is really disorienting.

Homeless people often lose their survival gear in encampment sweeps, making it harder to make it through cold nights. But it isn’t just gear that is stolen. Homeless people across San Francisco have spoken out about precious and personal items stolen and trashed by DPW and SFPD. Recently, activists and homeless community members converged on City Hall to demand an end to encampment sweeps. The effort was coordinated by Stolen Belonging, a group documenting the personal losses unhoused San Franciscans endure during sweeps. The emotional toll encampment sweeps take on their victims is devastating.

Castano: My mother’s wedding kimono, in August 2021, that was one of the main things [they stole from me]. It makes one feel less attached to formal society. It makes one feel less valuable or valued. It just further disenfranchises one mentally, emotionally, psychologically.

Hadley Rood: One of the main things is, as Toro said, it is dehumanizing, it’s devaluing, and it just makes it that much harder to get back on your feet. One of our named plaintiffs in his declaration talks about how the City took his tent so many times that eventually he decided to just live in a cardboard box because it didn’t feel worth it to continue trying to replace the items that the city took over and over again. So stories like that of the things that you have to give up and the constant fear and anxiety. Lots of folks we’ve talked to are afraid to go to important medical or housing or job related appointments, to leave their belongings for more than a few minutes at a time. And so things like that, the constant fear, anxiety of this happening. And then once it does happen, the kind of feeling of desperation and sadness that goes along with it. And so I think that’s what we’ve observed and tried to document and had the honor of getting to portray.

It’s clear that there are a lot of people who are harmed by the city’s encampment sweeps, but is the City breaking any laws when it targets homeless people, steals their belongings and pushes them from block to block? The lawyers say yes. They are challenging the legality of San Francisco’s encampment sweeps, saying that the City is violating the constitutional rights of those they target.

Shroff: The bulk of the claims that we’re making are constitutional claims under the United States Constitution and the California Constitution. And it’s really well settled law at this point.

The first major bucket of claims is around the 8th Amendment, which protects against cruel and unusual punishment. And the basis of that doctrine says that you can’t punish someone for something they have no control over. If something was involuntary, you don’t get to punish them for it. And so the way that applies in the context of unhoused people is that if unhoused people have nowhere else to go in their home community, if they have no shelter, if they have no housing to go to, you cannot punish them just for the act of sleeping or putting a tent up outside. That is a fundamentally unconstitutional and cruel punishment. And that’s exactly what, of course, we see San Francisco is doing when it is thousands of shelter beds short, thousands of people who are forced to sleep outside, and yet they’re still being harassed and policed every day, arrested, cited, fined, just for the act of sleeping in public. And again, that’s entirely separate from totally valid ordinances like oh, someone’s obstructing a sidewalk or there’s a street hazard. That’s not what we’re talking about. We’re talking about truly thousands of people being cited or arrested purely because they are unhoused. So that’s one major bucket of the claims.

The other major bucket is property destruction. Destroying someone’s property as the government without a warrant, without sufficient notice in advance, these are 4th and 14th Amendment violations that constitute unreasonable seizures and also a violation of unhoused people’s due process rights. And we see that, day in and day out, instead of storing people’s property, giving them notice about where to pick it up and allowing people to actually recover their property, most unhoused folks experience their property being destroyed in front of them over their protests. That is obviously a 4th Amendment violation and a 14th Amendment violation.

The other important sets of laws the lawyers say San Francisco is violating are sections of the Americans with Disabilities Act (ADA) and state disability laws. The lawyers told us that there are two major ways that encampment sweeps disproportionately impact people with disabilities. They say they have documented that the City fails to give individuals with disabilities adequate time to collect their belongings when sweeps happen, and that the shelter placements offered oftentimes are not ADA compliant, meaning that disabled people are being displaced and then only offered shelter that cannot accommodate them. They also say that the items lost during encampment sweeps are necessary for disabled people and people with chronic illnesses trying to survive outdoors.

Rood: The City is destroying many valuable and vital medical items. One of our named plaintiffs in her declaration told us she had her prosthetics taken. She’s a double amputee and uses either a wheelchair or prosthetics. She had those very expensive medical items taken, and has been unable to replace them since. Other things that have been taken are things like wheelchairs, walkers, vital medications that folks need daily to manage chronic illnesses. These are things that should be very obvious to city employees are not trash, are vital to individuals’ day-to-day lives, and nonetheless, they’re thrown away indiscriminately.

The lawyers are relying on precedents set by Martin v. Boise and Johnson v. City of Grants Pass, two legal decisions that uphold the rights of homeless people. These findings determined that it is a constitutional violation to displace people from encampments unless they are offered real, accessible shelter. These cannot be outdoor safe sleep sites like we have in San Francisco, Shroff says. “Unless there’s a roof over your head, it’s not shelter.” If the plaintiffs win, it might mean that encampment sweeps as we know them will end in San Francisco. The City does not currently have adequate shelter for even half the population of homeless people who need it. And sweeps could only happen if safe and acceptable shelter was offered to those being displaced.

On December 22nd there will be a preliminary hearing that will help determine next steps for this lawsuit. In the meantime, there are ways you can get involved and help the lawsuit prevail.

Rood: We have a Google form that’s very short that we’ve been making publicly available that allows residents and folks in San Francisco to document whenever they see the City committing one of these violations. There’s a box you can check if [the City] is forcing people to move without shelter, if they’re destroying people’s property, if they are not accommodating folks with disabilities, or if there was no advance notice posted at a site. So people in their everyday lives walking around: If you see the City doing something they’re not supposed to, or if you yourself experience the City doing something that they’re not supposed to, you can let us know. And that will be a way that we can track the City’s behavior between now and the hearing on December 22nd.

Here is the link to the google form for the public to report violations: http://bit.ly/3GW34cI