1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 COALITION ON HOMELESSNESS, et al., Case No. 22-cv-05502-DMR

8 Plaintiffs, ORDER DENYING DEFENDANTS' 9 v. MOTION TO STAY

10 CITY AND COUNTY OF SAN Re: Dkt. No. 97 FRANCISCO, et al., 11 Defendants. 12 13 Plaintiffs are a group of current and formerly homeless residents of the City and County of 14 San Francisco (“San Francisco”), along with the Coalition on Homelessness, a non-profit 15 advocacy organization. They filed a lawsuit challenging certain aspects of San Francisco’s official 16 response to homelessness, including its coordinated five-agency effort to address homeless 17 encampments. On December 23, 2022, the court partially granted Plaintiff’s motion for a 18 preliminary injunction. Defendants subsequently filed a notice of appeal of that order to the 19 United States Court of Appeals for the Ninth Circuit. They now move to stay a portion of the 20 preliminary injunction pending the outcome of their appeal. [Docket No. 97.] Plaintiffs oppose 21 the motion. 22 This matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). For the 23 following reasons, the motion to stay is denied. 24 I. BACKGROUND 25 The preliminary injunction order contains a detailed discussion of Plaintiffs’ Fourth and 26 Eighth Amendment claims against Defendants and the evidence relevant to those claims. See 27 Coal. on Homelessness v. City & Cnty. of San Francisco, No. 22-CV-05502-DMR, 2022 WL 1 contention that “San Francisco criminalizes involuntary homelessness in violation of homeless 2 individuals’ Eighth Amendment rights” under Martin v. City of Boise, 920 F.3d 584, 618 (9th Cir. 3 2019). Id. at *20. In the preliminary injunction order, the court discussed Martin, in which the 4 Ninth Circuit held that “the Eighth Amendment prohibits the imposition of criminal penalties for 5 sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain 6 shelter.” Id. (quoting Martin, 920 F.3d at 616, 617). The order quoted the following passage from 7 Martin:

8 We hold only that so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in 9 shelters], the jurisdiction cannot prosecute homeless individuals for involuntarily sitting, lying, and sleeping in public. That is, as long as 10 there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on 11 public property, on the false premise they had a choice in the matter. 12 Id. at *20-21 (citation and quotation marks omitted) (quoting Martin, 920 F.3d at 617). The Ninth 13 Circuit further explained “that its holding ‘does not cover individuals who do have access to 14 adequate temporary shelter, whether because they have the means to pay for it or because it is 15 realistically available to them for free, but who choose not to use it . . .’” Id. at *21 (emphasis in 16 original) (quoting Martin, 920 F.3d at 617 n.8). 17 The preliminary injunction order discussed an SFPD Enforcement Bulletin that describes 18 various laws and ordinances available to “address lodging or encampments, including criminal 19 laws prohibiting sitting, lying, and lodging.” Id. at *4 (quotation marks and citation omitted). The 20 Enforcement Bulletin sets forth restrictions of SFPD’s enforcement of the same, including 21 requiring officers to “secure appropriate shelter before taking” specified enforcement actions and 22 prohibiting officers from issuing citations or ordering the removal of tents and encampments “[i]f 23 there is no shelter or navigation center bed available.” Id. 24 As noted in the order, the policy reflected in the Enforcement Bulletin “is not at issue” in 25 this case; in fact, “Plaintiffs [have] confirmed that the substance of the Enforcement Bulletin is 26 constitutional.” Id. at *22. However, the court found that Plaintiffs had submitted “detailed 27 evidence demonstrating significant failures to comply with the policy,” and that the evidence was 1 shown that they “are likely to succeed on the merits of their claim that Defendants violate the 2 Eighth Amendment by imposing or threatening to impose criminal penalties against homeless 3 individuals for ‘sitting, sleeping, or lying outside on public property’ without giving them the 4 option of sleeping indoors” under Martin, 920 F.3d at 617, and Johnson v. Grants Pass, 50 F.4th 5 787, 795 (9th Cir. 2022). Id. at *24. Finding that Plaintiffs had established the remaining 6 preliminary injunction factors, id. at *25-26, the court entered the following preliminary injunction 7 corresponding to the Eighth Amendment claim:

8 Defendants are preliminar[il]y enjoined from enforcing or threatening to enforce, or using California Penal Code section 148(a) to enforce 9 or threaten to enforce, the following laws and ordinances to prohibit involuntarily homeless individuals from sitting, lying, or sleeping on 10 public property:

11 • California Penal Code section 647(e)

12 • California Penal Code section 370

13 • California Penal Code section 372

14 • San Francisco Police Code section 168

15 • San Francisco Police Code section 169 16 Id. at *28.1 The court ordered that the preliminary injunction “shall remain effective as long as 17 there are more homeless individuals in San Francisco than there are shelter beds available.” Id. 18 On January 3, 2023, Defendants inappropriately filed an “Administrative Motion for 19 Clarification of Preliminary Injunction Order” pursuant to Civil Local Rule 7-11. [Docket No. 20 70.] In the motion, Defendants asked the court “to clarify that a particular individual is not 21 ‘involuntarily homeless’” within the meaning of the preliminary injunction pertaining to the 22 Eighth Amendment claim “where San Francisco has offered that individual adequate temporary 23 shelter.” Id. at 2. According to Defendants, “Plaintiffs maintain all unsheltered people 24 experiencing homelessness . . . are ‘involuntarily homeless’ under the [preliminary injunction 25 order], regardless of whether they have received an adequate shelter offer, and therefore the City 26

27 1 The court also granted injunctive relief pertaining to the Fourth Amendment claim. See 1 may not enforce sit/lie/sleep laws against any unhoused person anywhere in San Francisco.” Id. 2 Defendants dispute this interpretation and argue that under Martin, 920 F.3d at 617 n.8, and 3 Johnson, 50 F.4th at 793 n.2, “a particular individual is not ‘involuntarily homeless’ if the 4 individual refuses an offer of adequate shelter.” Id. at 4. According to Defendants’ administrative 5 motion, without the requested “clarification,” San Francisco is subject to conflicting obligations in 6 this case and in a different case, Hastings College of the Law v. City & County of San Francisco, 7 Case No. 4:20-cv-03033-JST (N.D. Cal. filed May 4, 2020, closed Oct. 7, 2020), in which the 8 court entered a stipulated injunction regarding encampments in the Tenderloin neighborhood of 9 San Francisco. Id. at 2. In the alternative, Defendants requested expedited briefing on the motion 10 for clarification. Id. at 6. 11 On January 6, 2023, Plaintiffs filed an administrative motion for a status conference, 12 arguing that Defendants were not complying with the preliminary injunction and asking for certain 13 discovery, compliance reports, and appointment of a special master to monitor Defendants’ 14 compliance. [Docket No. 75.] Defendants filed an opposition to Plaintiffs’ motion shortly 15 thereafter and submitted declarations by 11 percipient witnesses purportedly rebutting Plaintiffs’ 16 claims of noncompliance. [Docket No. 82.] 17 The court held an initial case management conference (CMC) on January 12, 2023 in 18 which it addressed the parties’ administrative motions, among other things. [See Docket Nos. 84 19 (Minute Order), 91 (Jan. 12, 2023 Hr’g Tr.).] The court denied Defendants’ administrative motion 20 on procedural grounds. It explained that Defendants’ motion sought substantive relief; Local Rule 21 7-11 is for “truly administrative matters,” such as requesting permission to go beyond page limits; 22 and the truncated procedures governing an administrative motion clearly made it an improper 23 vehicle for the requested relief. Tr. 23-24. The court noted that if Defendants wanted “a ruling on 24 the substantive issues raised in the administrative motion” they would need to “file an appropriate 25 motion” explaining any purported conflicting obligations and addressing the applicable standard. 26 The court also instructed Defendants “to evaluate . . . whether [such a] motion is actually a motion 27 for reconsideration [of the preliminary injunction order], which is governed by a different 1 standard.” Id. at 24.2 2 Defendants did not file a motion for reconsideration or otherwise move for a ruling on the 3 substantive issues they raised in their administrative motion. Instead, on January 23, 2023, 4 Defendants filed a notice of appeal of the preliminary injunction order. [Docket No. 88.] 5 On February 2, 2023, Defendants filed the instant motion to stay a portion of the 6 preliminary injunction order pending appeal. In particular, Defendants ask the court to stay “the 7 portion of the [preliminary injunction order] regarding the use and enforcement of sit/lie/sleep 8 laws.” Mot. to Stay 4 n.2. 9 II. LEGAL STANDARD 10 “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. 11 Holder, 556 U.S. 418, 433 (2009) (quotation marks omitted). “It is instead ‘an exercise of judicial 12 discretion’” that “‘is dependent upon the circumstances of the particular case.’” Id. (quoting 13 Virginian Ry. Co. v. United States, 272 U.S. 658, 672-73 (1926)). 14 “The standard for evaluating stays pending appeal is similar to that employed by district 15 courts in deciding whether to grant a preliminary injunction.” Lopez v. Heckler, 713 F.2d 1432, 16 1435 (9th Cir. 1983). Courts consider four factors: “(1) whether the stay applicant has made a 17 strong showing that he is likely to succeed on the merits; (2) whether the applicant will be 18 irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other 19 parties interested in the proceeding; and (4) where the public interest lies.” Nken, 556 U.S. at 434 20 (quotation marks omitted). “The first two Nken factors ‘are the most critical.’” Lair v. Bullock, 21 697 F.3d 1200, 1204 (9th Cir. 2012) (quoting Nken, 556 U.S. at 434). “The party requesting a stay 22 bears the burden of showing that the circumstances justify an exercise of [the court’s] discretion.” 23 Nken, 556 U.S. at 433-34. 24 III. DISCUSSION 25 Defendants seek to stay the portion of the preliminary injunction order that enjoins San 26 Francisco from enforcing or threatening to enforce, or using California Penal Code section 148(a) 27 1 to enforce or threaten to enforce, laws and ordinances regarding sitting, lying, and sleeping on 2 public property. 3 As to the first Nken factor, Defendants contend that they are likely to succeed on the merits 4 of their appeal because the challenged portion of the preliminary injunction order is “overbroad” 5 and exceeds the scope of Martin and Johnson. Mot. 5. Here, Defendants essentially renew the 6 argument they made in their inappropriate administrative motion for clarification; that is, under 7 Plaintiffs’ interpretation of the term “involuntarily homeless,” the preliminary injunction order 8 prohibits San Francisco from enforcing sit/lie/sleep laws against any individual “so long as the 9 total number of homeless individuals within the City exceeds the total number of shelter beds” 10 even if the City has offered that individual “adequate temporary housing.” Mot. to Stay 2, 5. 11 Defendants argue that if Plaintiffs’ interpretation is correct, the preliminary injunction order 12 “require[s] more of San Francisco than the Eighth Amendment demands.” Id. According to 13 Defendants, under Martin and Johnson, an individual is not “involuntarily homeless” if they are 14 “offered the opportunity for adequate temporary shelter for free before SFPD enforces or threatens 15 to enforce any of the relevant code sections against that individual,” regardless of whether San 16 Francisco has enough shelter beds to offer every homeless individual in the city. Id. at 5. 17 The court concludes that Defendants are unlikely to succeed on the merits of their appeal 18 because (1) they never properly raised this argument before the undersigned, and (2) in granting 19 the preliminary injunction, the court made factual findings that undercut Defendants’ position. 20 As to the first reason, Defendants’ opposition brief in the preliminary injunction motion 21 did not make the argument they now assert. See Coalition, 2022 WL 17905114, at *27. In fact, it 22 was not until the hearing that Defendants attempted to address the scope of Martin and Johnson 23 and explain how those cases apply to the facts of this case. The court pointed this out in the 24 preliminary injunction order. It observed that “[t]he formula established in Martin is that the 25 government cannot prosecute homeless people for sleeping in public if there ‘is a greater number 26 of homeless individuals in [a jurisdiction] than the number of available’ shelter spaces.” Id. at *23 27 (quoting Johnson, 50 F.4th at 795 (alteration in original) (citing Martin, 920 F.3d at 617)). It then 1 Martin and Johnson for demonstrating an 8th Amendment violation should be interpreted 2 differently when applied to this case.” Id. Specifically, despite Defendants’ concession “that 3 there are thousands more homeless individuals living in San Francisco than there are available 4 shelter beds,” they argued at the hearing that San Francisco “does not violate the 8th Amendment . 5 . . because it is the City’s practice to provide homeless individuals with an option for sleeping 6 indoors, as all are offered shelter beds before they are displaced.” Id. 7 The court went on to hold that it “need not decide whether Defendants’ reading of Martin 8 and Johnson is correct” because it expressly found that “their position lacks factual support.” Id. 9 at *24. In particular, the court made factual findings that “San Francisco does not have enough 10 available shelter beds for all homeless San Franciscans,” falling short “by thousands of beds,” and 11 that “homeless San Franciscans have not been able to voluntarily access shelter beds since April 12 2020” because waitlists and same-day lines are closed. Id. at *2, 3, 21-22. Therefore, “the only 13 clear way to access shelter is via an encampment resolution while under threat from law 14 enforcement.” Id. at *14 (quotation omitted). The court also found that Defendants had not 15 “meaningfully rebut[ted] evidence that San Francisco initiates encampment closures without 16 actually knowing whether any shelter beds will be available to encampment residents” and that 17 there was “ample evidence that encampment closures have been carried out even when [City] 18 representatives said there was no available bed space.” Id. at *22. Ultimately, the court found that 19 Defendants had provided “thin” evidence supporting their assertion “that every homeless person is 20 offered shelter before being displaced by the City,” even though San Francisco “controls the 21 relevant evidence.” Id. at *24. By contrast, “Plaintiffs submitted ample evidence that homeless 22 individuals routinely are displaced without a firm offer (or in many instances, any offer) of a 23 shelter bed,” contradicting Defendants’ position. Id. 24 After the court issued the preliminary injunction order, Defendants filed a procedurally 25 improper administrative motion for “clarification” that included argument about the application of 26 Martin and Johnson that had not been made in their opposition brief. In admonishing Defendants 27 for the maneuver, the court explained what Defendants would need to address in any future motion 1 reconsideration. Defendants instead chose to file a notice of appeal. As a result, the court – and 2 Plaintiffs – never had the opportunity to consider Defendants’ arguments regarding the scope of 3 Martin and Johnson as applied to the factual record in this case, despite the court having invited 4 Defendants to raise it properly. At best, Defendants raised it on the fly in oral argument, thereby 5 depriving Plaintiffs of a meaningful chance to respond. 6 As to the second reason, Defendants have not established a factual record supporting their 7 newly proposed application of Martin and Johnson. The court made factual findings in the 8 preliminary injunction proceedings as described above and concluded that Defendants’ position 9 “lacks factual support.” Coalition, 2022 WL 17905114, at *24. Later, in opposing Plaintiffs’ 10 administrative motion challenging Defendants’ compliance with the preliminary injunction order, 11 Defendants submitted a significant amount of evidence. This included declarations by Sam 12 Dodge, current Director of the Department of Emergency Management’s Division of Street 13 Response Coordination and former Director of the Healthy Streets Operation Center (“HSOC”), 14 and David Nakanishi, current HSOC Director. Defendants’ evidence also included a declaration 15 by an investigator with the San Francisco City Attorney’s office. [See Docket Nos. 82-6, 82-12, 16 82-14.] All three witnesses presumably have detailed personal knowledge of the circumstances in 17 which encampment closures take place. Despite the opportunity to finally substantiate 18 Defendants’ position that “every homeless person is offered shelter before being displaced by the 19 City,” none of Defendants’ witnesses stated that San Francisco officials offer shelter to every 20 homeless individual before telling them to vacate public property. 21 In sum, Defendants have never properly raised the issue of how Ninth Circuit precedent 22 should be applied to the facts of this case and have not established a factual record supporting their 23 interpretation of that precedent. Accordingly, the court concludes that Defendants are unlikely to 24 prevail on the merits of their appeal of the preliminary injunction order. 25 Defendants have not shown that the remaining “critical” factor of irreparable harm 26 supports a stay. As the moving party, Defendants have “the burden of showing that irreparable 27 injury is likely to occur during the period before the appeal is decided.” Doe #1 v. Trump, 957 1 968 (9th Cir. 2011)). “[S]imply showing some possibility of irreparable injury is insufficient,” E. 2 Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 778 (9th Cir. 2018) (cleaned up), and a party 3 “cannot meet this burden by submitting conclusory factual assertions and speculative arguments 4 that are unsupported in the record.” Doe #1, 957 F.3d at 1059-60. Defendants identify no 5 concrete harms that are “probable if the stay is not granted,” Leiva-Perez, 640 F.3d at 968, instead 6 arguing generally that “[e]ncampment resolutions promote public health and safety.” Mot. 6. But 7 they do not cite any evidence regarding their inability to address public health and safety under the 8 restrictions imposed by the preliminary injunction order. In fact, defense counsel stated at the 9 January 12, 2023 CMC that Defendants have offered “shelter and services” to individuals at 10 homeless encampments since the issuance of the preliminary injunction order and have been able 11 to clean areas where encampments are located, suggesting that Defendants have found ways to 12 accomplish their public health and safety goals despite the preliminary injunction order. See Tr. 13 26-27. 14 Defendants also claim that their appeal raises “issues of federalism” because the 15 preliminary injunction order “allows a federal court to overrule local government officials 16 regarding matters otherwise vested in the local officials’ authority.” Mot. 7. However, “claims 17 that the Government has suffered an institutional injury by erosion of the separation of powers do 18 not alone amount to an injury that is irreparable, because the Government may pursue and 19 vindicate its interests in the full course of this litigation.” E. Bay Sanctuary Covenant, 932 F.3d at 20 778 (cleaned up). 21 As noted, the first two Nken factors are “the most critical.” Nken, 556 U.S. at 434. Given 22 Defendants failure to satisfy those factors, the court declines to stay its preliminary injunction 23 order pending Defendants’ appeal. See Washington, 847 F.3d at 1164 (noting that “the last two 24 steps are reached ‘[o]nce an applicant [for a stay] satisfies the first two factors’” (quoting Nken, 25 556 U.S. at 435)). 26 // 27 //

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to stay is denied. 2 3 IT IS SO ORDERED. a DISTR IC> Dated: April 3, 2023 Sy, CS 4 A) ° 2[Pesrer 6 Onief Magistrate Judge < 7 □

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