Helping the Homeless While Reclaiming Public Space
By Jennie Feldman
Homelessness in San Francisco is a human and civic catastrophe. According to recent estimates, at least 7,754 people are unhoused in our city out of a total population of 815 thousand, and the majority of those unhoused are also living on the street, unsheltered. The greatest burden of this crisis is borne by the unhoused themselves, who suffer physically and psychologically from lack of access to shelter; but housed people are also affected, as homelessness impedes their access to open and safe spaces that everyone should be able to enjoy.
The ravaging impact of homelessness on our fellow human beings underscores our moral obligation to find real solutions to the crisis. Drug overdoses, traffic accidents, and untreated conditions like diabetes and heart disease contribute to early death among the homeless. Being unhoused reduces a person’s lifespan by approximately 25%. The lethality of homelessness has only increased in recent years; one analysis showed that deaths among the unhoused surged by 77% between 2016 and 2020. The homeless are also far more likely to be victims of crime. In San Diego, for example, homeless people are 27 times more likely than the non-homeless to be the victims of attempted murder, 12 times more likely to be assaulted, and nine times more likely to be sexually assaulted.
Homelessness is also destructive to housed neighbors. Encampments attract drug trafficking and use, both of which increase the likelihood of property and violent crimes. The buildup of tents, makeshift structures, garbage, human waste, and other detritus creates conditions that are debilitating for local businesses and inhospitable for residents. San Francisco’s public resources – our police and fire departments, public works, emergency response teams, and hospitals – are increasingly consumed with addressing problems stemming from unsheltered homelessness. Unhoused individuals represent less than one percent of San Francisco’s population but consume a disproportionate amount of public resources.
For the sake of all of us – unhoused and housed – we should refuse to accept homelessness as a permanent feature of our city. Instead, we should address it by dramatically increasing our supply of interim shelter beds and pursuing a legal strategy for defending our public spaces.
Scaling up shelter
Despite billions of dollars spent addressing homelessness in recent decades, San Francisco remains at least 4,400 beds short of being able to shelter all its unhoused residents. Indeed, the city has never established a comprehensive strategy for meeting its shelter needs. That is because our leaders have been almost exclusively focused on a permanent supportive housing strategy that has left interim and emergency shelters dangerously underfunded. According to a Bay Area Council report on homelessness, “most of the Bay Area has been defunding emergency shelters to increase permanent housing production” while remaining “unable to scale permanent housing faster than the rate at which residents are becoming homeless.”
Temporary shelters can be built for a fraction of the cost of permanent housing. While not ideal, such shelters can address the acute needs of the unhoused, offering them protection from the elements, access to services, and the dignity of being able to shower and launder their clothing. In Los Angeles, Union Rescue Mission built a Sprung Structure (a high-grade membrane tent) for more than 100 people at the cost of $10,000 per bed - which may seem like a high price, but the tent is heated and air-conditioned, and the price includes six months of 24/7 case management. Seattle is building tiny homes that cost between $6,000 and $10,000 per unit.
If we had the political will and courage, San Francisco could lease the 62-acre Cow Palace, which is owned by the state and currently underutilized, and contract with Connect Shelters to build prefab modular homes for $22,000 per unit. Even at the high end of shelter cost estimates, we could provide a bed for every unsheltered person in San Francisco for $96.8 million. By comparison, the Department of Homelessness and Supportive Housing’s (HSH) budget for 2022-23 is $672 million – a figure that notably does not include homelessness-related costs borne by other city agencies and departments.
While permanent supportive housing should be part of the equation for addressing San Francisco’s homeless crisis, we simply cannot afford a permanent housing unit for every person experiencing homelessness in our city. In a recent report, HSH estimated that it would need $723 million in start-up costs and $200 million in annual operating costs to eliminate homelessness in three years. Even if San Francisco could afford this (and with a looming $728 million budget deficit, it surely cannot), HSH’s forecast does not consider the possibility that providing such resources will attract more homeless individuals to our city searching for free services and generous benefits. As one analyst noted, permanent supportive housing “appears to attract more people from outside the homeless system, or keeps them in the homelessness system, because they are drawn to the promise of a permanent and usually rent-free room.”
Overcoming legal challenges
Like most cities, San Francisco has laws that prohibit sleeping, lodging, or camping on public property. For example, in 2010, 54 percent of San Francisco voters backed Proposition L, which banned sitting or lying on public sidewalks between 7 AM and 11 PM and imposed penalties that could include jail time for repeat offenses. While such laws generally garner popular support, a series of recent court cases has called their enforceability into question.
In Martin v. City of Boise, the Ninth Circuit Court of Appeals held that governments may not enforce laws against public camping where there is “a greater number of homeless individuals in a jurisdiction than the number of available beds in shelters.” The court held that such ordinances violated the Eighth Amendment’s Cruel and Unusual Punishment Clause because they penalize the status of homelessness. The court reasoned that because “human beings are biologically compelled to rest,” a city “may not criminalize conduct that is an unavoidable consequence of being homeless – namely sitting, lying, or sleeping on the streets.”
Importantly, the Martin court insisted that its holding was “a narrow one,” and not an order that the City of Boise “must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets … at any time or place.” The Martin court also stated that the ruling does not apply to individuals who have access to temporary shelter but choose not to use it. A subsequent Ninth Circuit case, Johnson v. City of Grants Pass, confirmed that people with access to shelter are not considered “involuntarily homeless” under Martin. This is a key point because it means that while San Francisco cannot currently shelter its entire homeless population, it should be able to enforce its laws against public camping if it can show that an individual has declined shelter, and is not “involuntarily homeless.”
On April 16, 2019, perhaps in response to Martin, San Francisco Police Chief Bill Scott issued an Enforcement Bulletin that explicitly linked enforcement of San Francisco’s laws against public camping to the availability of shelter. Chief Scott ordered that “[o]fficers must secure appropriate shelter before taking enforcement action,” and “[i]f there is no shelter or navigation center bed available, officers may not issue a citation or seize the encampment/tent.”
While San Francisco’s policy appears to comply with Martin, several current or formerly homeless residents, along with the powerful nonprofit organization the Coalition on Homelessness, have sued the City because of “significant failures to comply with the policy.” The global law firm Latham and Watkins, along with the Lawyers’ Committee for Civil Rights, are representing the plaintiffs. On December 23, 2022, U.S. District Court Judge Donna M. Ryu ruled that San Francisco did not “meaningfully” refute that the City “initiates encampment closures without actually knowing whether any shelter beds will be available to encampment residents.” Rather than ordering the City to comply with Martin, a policy that all parties agree is constitutional, Judge Ryu exceeded Martin’s reach and blocked San Francisco from enforcing any laws that “prohibit involuntarily homeless individuals from sitting, lying, or sleeping on public property.”
In her opinion, Judge Ryu noted that San Francisco had provided “thin” evidence to support its argument that every homeless person is offered shelter before being displaced by the city, while the plaintiffs “submitted ample evidence that homeless individuals routinely are displaced without a firm offer (or in many instances, any offer) of a shelter bed.” In a subsequent motion, the City asked Judge Ryu to clarify the meaning of “involuntarily homeless,” but she declined to do so. The City has appealed Judge Ryu’s order to the Ninth Circuit but the order is still in effect as of this writing.
To move forward, then, San Francisco should do three things:
1. Establish a real-time booking system for shelter beds
San Francisco does not have a real-time system for determining whether shelter beds are available. Without such a system, compliance with Judge Ryu’s order is exceedingly difficult. Consumers have had the ability to book hotel rooms instantly for more than a decade; why can’t the City develop a system for unhoused people to reserve shelter beds? Even if such “reservations” were only valid for a certain number of hours (so as to not leave a bed empty overnight if a person does not claim it), such a system would enable outreach workers to connect unhoused people to shelter before forcing them to move. Judge Ryu’s opinion suggests that the City will not be able to enforce its anti-encampment laws unless it can demonstrate that it has a means of first extending bona fide offers of shelter. Establishing such a system should be a top priority.
2. Vigorously defend our laws in court
The City Attorney must aggressively defend San Francisco in the Coalition on Homelessness case and should not be cowed into a settlement that would diminish the City’s right to enforce its laws. The City should engage experts to opine on why many unsheltered people are resistant to receiving services. As journalist Sam Quinones has written in New York magazine, many of those living on the streets today are addicted to methamphetamines and fentanyl, and these substances are so powerful that they can thwart the instinct of self-preservation, leading people to refuse offers of housing.
Additionally, the City should file “friend of the court” briefs to defend its interests in any future cases relating to encampment laws. When the City of Boise sought Supreme Court review of the Martin case, several California cities filed briefs in support of Boise, but San Francisco did not. This is unacceptable. San Francisco must stand with other cities in defending the right to protect public spaces and must not capitulate to activist groups.
3. Enforce existing laws
There is nothing in Martin v. Boise or the current lawsuit against San Francisco to prevent the City from enforcing laws against criminal activity unrelated to a person’s homeless status. SFPD should take action against the rampant criminal activity that plagues encampments: drug dealing, prostitution, human trafficking, arson, public urination and defecation, dumping of refuse, graffiti, and vandalism. The police should investigate the piles of stolen bicycle parts and retail goods often seen in such areas. They should also enforce public safety laws against open fires, tampering with utility wiring, and blocking sidewalk access.
What we allow is what will continue
Every San Franciscan should refuse to accept tents and thousands of unsheltered homeless people as a permanent feature of life in our city. We should not be shy about expressing the opinion that everyone has a right to clean and safe streets. Street sleeping harms unhoused people most of all, but it also devastates surrounding communities and people who live indoors have the right to speak up against it. Enabling and facilitating people to live on the street is not compassionate, not fair, and not right. For the sake of San Francisco’s future, we must do better.
