Why Tents Can’t Be Removed

By 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 at a central location 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. 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.”

I support our city attorney’s effort to vigorously fight this nonsensical ruling. I also understand the frustration residents are feeling.

I’ve heard many say 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.

It feels unfair when someone can indefinitely park and live in an RV anywhere they want while others get a ticket if their car overstays a two-hour parking limit by a few minutes.

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. 

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.

This means, if a tent dweller is in an especially problematic situation, we can’t compel that person to move into a shelter even if a bed is available.

Our city attorney says, “Judge Ryu’s order puts the City in an untenable situation, reaches beyond legal precedent and exacerbates our homelessness crisis.”

Central to the case is the Eighth Amendment of the U.S. 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.”

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. Ninth 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. 

Next Steps in the Case

City Attorney David Chiu requested a stay of the court injunction and has also filed an appeal. Decisions could come within months. If both of those efforts fail, a trial is set for next spring to fight the original lawsuit against removing tents.

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.

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 Muni bus shelter, and police could only compel the inhabitant to move the tent two feet.

Homelessness advocates are well organized and let tent dwellers know their rights under the current injunction. 

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, I was able to secure funding for retired police officers to walk beats in the Sunset to help fill the gap of an extreme police officer shortage.

To find a long-term solution, I would like to turn the vast Cow Palace parking lot into a centralized space for tiny home cabins and RVs that can offer shelter, sanitation and behavioral health services. The goal is to offer enough shelter to satisfy the judge’s order if we do not prevail on appeal to a higher court. 

Another Issue Clogging Up Courts

In addition to the tent removal case, City Attorney 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 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 “The City is not an ATM for $10,000 checks. We have to defend our City.”

Joel Engardio is the District 4 representative on the San Francisco Board of Supervisors. He can be reached at engardiostaff@sfgov.org.