Episode 13: Why is the Coalition on Homelessness suing the City of San Francisco?

On September 27th, the ACLU, Lawyer's Committee for Civil Rights, and the Coalition on Homelessness—the organization that creates this podcast—filed a lawsuit against the City of San Francisco. They, and the seven homeless plaintiffs they represent, allege that the constant "sweeps" of homeless encampments carried out by numerous city agencies are unconstitutional.

We speak with Zal Shroff and Hadley Rood, lawyers with the Lawyer's Committee for Civil Rights (LCCR), as well as with plaintiff and homeless activist Toro Castaño, about what this lawsuit could mean for the thousands of unsheltered San Franciscans who call this city home.

To support the lawsuit, please report any encampment sweeps you see to the legal team using this form: https://forms.gle/fSUgkK1TEUVk7fLW6

Today's weather report is brought to you by Revolt, an activist, rapper, singer, illustrator, journalist and all-around troublemaker, who rouses the rabble with the arts that he dabbles in. This new track "She's Homeless" is inspired by and builds on an original song by Crystal Waters. You can find more like this at revoltrightnow.com

Transcript

TJ Johnston: You're listening to Street Speak, the podcast answering your burning questions about poverty and homelessness. 

Quiver Watts: On today's episode, we talk about a critical legal challenge to San Francisco's main response to homelessness criminalization. 

TJ: We spoke with Zal Shroff and Hadley Rood, the lawyers suing the city of San Francisco to stop the inhumane and illegal encampment suites the city does every day. 

Zal Shroff: I'm Zal Shroff. I'm a senior attorney on the racial justice team at the Lawyers Committee for Civil Rights of the San Francisco Bay Area, and I use he/him pronouns. 

Hadley Rood: And my name is Hadley Rood. She/her pronouns. I'm the UC Berkeley public interest fellow with the Racial Justice program at Lawyers Committee for Civil Rights this year. 

Q: We also spoke with Toro Castano, one of the plaintiffs on the lawsuit. 

Toro Castano: Hi. I'm Toro. Castano. Held a master's degree in territorial studies. I'm one of the 11 plaintiffs. I am a homeless activist. Housing activist.

TJ: Zal and Hadley work at the Lawyers Committee for Civil Rights of the Bay Area. 

Z: So Lawyers Committee is a civil rights nonprofit that was founded in the 60s to connect the private bar with civil rights work and movement work. And so we do a variety of different representation, but mostly impact litigation supporting movements and organizer communities in achieving the change that they want to see in their communities. 

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

Z: 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, 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, and actually 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 under invested 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 sighted 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. 

Q: Toro explains why he signed up to be a plaintiff in this lawsuit. 

Toro: Well, I think first and foremost, because there's so much abuse, there's so much room for abuse. Being subject to almost daily sweeps, personnel in various departments seem to take it upon themselves to do things that are really cruel and make it really difficult to stay warm and to basically survive outdoors or outside. Ultimately, I think I would like to see a path to housing, to affordable housing and the production of more affordable housing. 

Q: Unhoused people are tired of being pushed from block to block, losing their survival gear and precious personal belongings targeted by encampment sweeps. But what exactly are these sweeps? 

H: Basically, there are some different forms of sweeps in the city. There are the formal HSOC resolutions. HSOC is a combination of the Department of Public Works, the Police Department, Fire Department, Department of Emergency Management, the Homeless Outreach Team, all kinds of different departments in the city working together with the stated goal of encampment resolution, meaning that all these departments will show up, they'll tell folks they need to move, they'll give them a certain amount of time to pack their belongings. What's supposed to happen is that each individual at the site gets a shelter offer; we know from data and stories we've collected that doesn't happen. And then folks are usually forced to move and any belongings they can't pack up quickly enough are taken, has been sort of the historical practice that we've documented. Along with those sort of large scale, more formalized sweeps, there are also informal sweeps, often involving only one or two departments. The Department of Public Works and the San Francisco Police Department do these the most, often together or sometimes separately, where they will just show up unnoticed, start talking to individuals, tell them ‘you have to leave’, or sometimes even just kind of show up and start taking people's property, whether or not people are even aware—maybe they're just waking up, maybe they're away from their belongings momentarily. So that's sort of the two main contexts of a sweep where we're seeing these violations happening. It's sort of larger ones and then these individual informal ones as well. 

TJ: What that looks like on the ground is inconsistent, but Toro describes losing the things he needs to stay warm and also sometimes facing criminalization for poverty. 

Toro: The largest sweeps have several different departments on scene. Usually there's a special HOT team, that's just for sweeping. They will offer lodging, but they don't know what that 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. 

TJ: These sweeps happen constantly and they can happen at any time. 

Toro: Oftentimes they 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. 

Q: And does the city give advanced notice, or are the sweeps sporadic? 

Toro: They're supposed to, but I think it's pretty rare. In the last ten sweeps I have not received advanced notice. 

Q: So without notice, what happens if the police and DPW show up while someone is at an appointment or at the grocery store? Not there to claim their belongings? 

Toro: They'll take them and throw them away, usually. They hardly ever bag and tag. I had that experience the other day. Fortunately my campmates packed up my things for me, but I was returning from the grocery store as there was a sweep at 7:00pm in the evening. 

Q: Toro says that the sweeps are meant to appease constituents who are frustrated with the City’s inaction around street homelessness. But they're in no way intended to address homelessness in any meaningful way. 

Toro: Yeah, I think it's to satisfy the constituents or the residents because we could be, for example, today we're in front of an area where there's no businesses, no homes. It seems like an ideal location, but they're going to come and push us across the street back into the neighborhood where it'll be much more anxiety-inducing for the people that live on the street and for the residents in the area. There's no rhyme or reason. They're really just trying to satisfy people that are emailing and calling the captain, or he orders a lot of officers to come and move us along. 

TJ: Homeless people often lose their survival gear in encampment sweeps, making it harder to survive the cold nights. But it isn't just survival gear that is stolen. 

Toro: 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 kind of disenfranchises one mentally, emotionally, psychologically. 

TJ: The emotional impact is severe. 

Hadley: One of the kind of 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 just the things that you have to give up and kind of 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, just kind of 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 kind of what we've observed and tried to document and, you know, kind of had really the kind of honor of getting to portray in the setting. 

TJ: The trauma is most acute for those living on the streets, constantly navigating the impacts of encampment suites. But Zal also notes that all San Franciscans are harmed by the violence of criminalization. 

Z: To give a little of our perspective as obviously observers and documenters as I think so many advocates in this space, of course, the Coalition Homelessness chief among them, experience, is it is a remarkable amount of vicarious trauma to carry, to watch what the government is doing, to see people in their pain. And I think for this entire community in San Francisco, it is something that makes all of us less well off, less mentally well. And it's something that is harming all of us as we live our daily lives, whether we choose to acknowledge it or not. And I think having that sense of understanding of the experience of homelessness and also the solutions to homelessness and that they are all of ours to carry, is critically important. And it's such a reminder doing that documentary work and building this case, it's been really a reminder of that. 

TJ: You're listening to street speak. We'll take a quick break and turn to the weather. 

Q: Today's Weather Report is brought to you by Revolt, an activist, rapper, singer, illustrator, journalist and all around troublemaker who rouses the rabble with the arts that he dabbles in. This new track “She's Homeless” is inspired by and builds on the original song by Crystal Waters. You can find more like this at revoltrightnow.com. 

TJ: You've just heard “She's Homeless” by Revolt. Now back to the episode. 

Q: We asked the lawyers why they chose to take on this case. 

Z: Sure, yeah. So the Coalition on Homelessness folks have been obviously working on this for a long time and have been hearing from the community about how bad these sweeps are getting. And they have been getting worse year after year these last few years, especially since the creation of the Healthy Streets Operations Center. So it's really, we piggyback on the Coalition's work to document a lot of those atrocities, to document when people have lost their belongings, when they have been policed out of sight. And that's where we sort of picked up once organizers told us this is the need we have to really bring a case that elevates the data, that people already know and have been collecting, but that hasn't made it to actually force the government to do what they need to do, which is fundamentally stop criminalizing homelessness and to find the real solution to homelessness, which is, of course, affordable housing, which they have again refused to build in adequate numbers. 

Q: So how did the lawyers find Toro and the other plaintiffs and start building this case? 

H: I am happy to jump in on this one. I worked on this case as an intern last year and then came back as a fellow after the summer, so have really been able to be plugged in throughout the process. And as an intern, I led a lot of the fact gathering process going out with volunteers from the Coalition on Homelessness and talking directly to impacted individuals who had either come to the Coalition previously to talk about their experiences or sometimes folks who were just out on the street that day. And one of the things that we've realized with this lawsuit and tried to document is that everyone who is unhoused in the city has had some experience with this. So that's sort of one of the big trends. We connected with the name of plaintiffs in the case in much the same way, outreach, and then also sort of a combination of them coming to us and the Coalition, and us kind of going to them. 

TJ: It's clear that there are a lot of people who are harmed by the city's encampment suites. But is the city breaking any laws when they target homeless people, steal their belongings and push 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. 

Z: So really 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 sort of 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 has 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 like 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. 

And then we also have statutory causes of action under the Americans with Disabilities Act and the California equivalent for the way in particular, that disabled unhoused folks are treated at these sweep operations. And that's really the major thrust of the litigation. 

Q: There are two major ways that encampment sweeps disproportionately impact people with disabilities. 

H: Yeah, so kind of two different violations or kind of buckets of violations. One is that we've heard and documented that the city is not providing adequate time for individuals with disabilities to collect their belongings, and they're also not offering accessible shelter. So maybe the shelter isn't ADA accessible, but it's the only available bed or the only available placement. And so the individual cannot accept that shelter, even though the city can then say, oh, well, they refused shelter and kind of look at it or frame it that way. So that's sort of one ADA violation, that is not accommodating. 

Then on the other end, the city is destroying many valuable and vital medical items. Things like one of our named plaintiffs in her declaration had her prosthetics taken. She's a double amputee and uses either a wheelchair or prosthetics, 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 it 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. 

TJ: We asked the lawyers if there are legal precedents that give them the confidence that they will win their lawsuit. 

Z: So the two main precedents are Martin v. Boise, well known, and now Grants Pass, which affirms that decision and came out just a few weeks ago—in fact, the day after we filed our case. And then Lavan is the other major case—in the 9th Circuit coming out of LA—that talks about property destruction as fundamentally unconstitutional, particularly in the context of unhoused people and their survival belongings. 

Q: Hadley says that previous legal interpretations require that the city offers shelter to people who are being displaced by sweeps, but that San Francisco consistently fails to follow these laws. 

H: One of the main sort of, quote unquote shelter options that are offered are safe sleep sites, which under Martin v. Boise and Grants Pass do not count as valid shelter offers. Unless there's a roof over your head, it's not shelter. Along with that, a lot of times folks will be offered congregate beds even throughout the pandemic. Oftentimes the only beds available were in congregate kind of group navigation center placements. And then oftentimes one of the things that we've documented is that HOT team workers and city workers will not know what kind of shelter beds, if any, are available at the beginning of a sweep. So that means that people are being enforced against even before it's known what kind of beds are available for that day or how many. And we've documented instances where, you know, the City comes, tells everyone to move, has everyone pack up their belongings, and then there ends up being no beds available that day at all. So situations like that where there just is no shelter to offer and nonetheless folks are being enforced against.

TJ: If they win, it might mean that encampment suites 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. 

Z: Sure, yes. So starting with the emergency hearing we've got on December 22, on that day, it'll be determined as a preliminary matter whether or not the court thinks that the city is violating the Constitution and whether or not it's criminalizing unhoused people without shelter, whether it's destroying their property in large numbers. And if that's the case, it gets us monitoring under the court supervision to make sure that the City stops doing those unconstitutional things while the rest of the lawsuit plays out. The rest of the lawsuit will address both those topics and also our disability claims, and also a claim that the City has conspired with different agencies to violate people's constitutional rights. So all those things will be decided by the broader lawsuit and could result in a permanent injunction that tells the City you cannot do suits in this way. You have to offer people shelter if you're going to ask them to get off the street. You have to make sure that they have a place that they can actually go to. You have to safeguard their property. And so all of those things would be requirements at the end of the day in the lawsuit, which would end the unconstitutional criminalization of homelessness and the unconstitutional destruction of property. And then of course, we hope that we can prevail upon the City by bringing this challenge to say, and now that you can't spend your money here, you know where you have to spend it, which is on affordable housing. 

TJ: The plaintiffs all hope to be part of making changes to the way the city responds to homelessness. Toro says he would like to see the city stop throwing away money on ineffective encampment sweeps and start investing in housing and cultural programs to engage homeless communities. 

Toro: I think first and foremost, I'd like to see a production of affordable housing which is lacking in the last 40 years. I'd like to see that stock built up. And then I'd also like to see bold solutions proposed like that of —?— in Columbia in the 90s, in one of the most dangerous places on the planet, who use aesthetics and art forms to put the best services in the worst neighborhoods. And it completely turned things around. And now they're even studying it for Mexico because they're dealing with drug war violence there. I like to see bold solutions like that proposed, and these other examples looked at. There's plenty of places where they're actually making a difference because this criminalization is very expensive and it's unproductive. 

What I would really like to see in my dream of dreams, I'd like to see them fund something like a theatrical program in the form of Theater of the Oppressed, to create a dialogue between residents and homeless people. I think those kinds of things are not happening right now, and there's so much animosity and antagonism. The residents are organizing community watch programs, but they're using them to harass and really make people kind of mentally unhinged. 

Q: If you're listening at home and feeling furious about the ongoing violence being done to those living without shelter in this wealthy city, there are ways you can get involved and help the lawsuit prevail. 

H: We have a Google form that's very short that we've been making publicly available that allows residents, folks in San Francisco to document whenever they see the City committing one of these violations. So kind of there's a box that you can check for if they're 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 22.

TJ: You just heard from Zal Shroff and Hadley Rood, from the Lawyers Committee for Civil Rights and from Toro Castano, homeless activist and plaintiff in the lawsuit. Check out the episode notes for more information on how to get involved. Thanks for listening to Street Speak.