Homelessness v. City of Hous.

Appeal from the United States District Court for the Northern District of California, Donna M. Ryu, Magistrate Judge, Presiding, D.C. No. 4:22-cv-05502-DMR

Wayne K. Snodgrass (argued) and Kaitlyn M. Murphy, Deputy Attorneys, San Francisco City Attorney's Office, San Francisco, California; James M. Emery, Edmund T. Wang, Ryan C. Stevens, and Miguel A. Gradilla, Deputy City Attorneys; Yvonne R. Meré, Chief Deputy City Attorney; David Chiu, City Attorney, San Francisco City Attorney's Office, San Francisco, California; for Defendants-Appellants.

Joseph H. Lee (argued), Latham & Watkins LLP, Costa Mesa, California; Alfred C. Pfeiffer Jr., Latham & Watkins LLP, San Francisco, California; John Thomas H. Do, ACLU Foundation of Northern California, San Francisco, California; Elisa Della-Piana, Hadley Rood, and Zal K. Shroff, Lawyer's Committee for Civil Rights, San Francisco, California; for Plaintiffs-Appellees.

Alexander C. Werner, Munger Tolles & Olson LLP, San Francisco, California, for Amici Curiae Healthcare Providers, Doctors Sharad Jain, Harrison Alter, Nicholas Iverson, Hemal Kanzaria, Elaine Khoong, Margot Kushel, John Landefeld, Katherine Lupton, Lisa Ochoa-Frongia, Naomi Schoenfeld, Sara Teasdale, and Melody Tran-Reina.

Deborah E. Arbabi, Crowell & Moring LLP, Irvine, California, for Amici Curiae National Homelessness Law Center, National Low Income Housing Coalition, National Coalition for the Homeless, and National Alliance to End Homelessness.

Ruth M. Bond, Atkinson Andelson Loya Ruud & Romo, Sausalito, California, for Amici Curiae California Association of Counties, International Municipal Lawyers Association, and League of California Cities.

Shanin Specter, Kline & Specter, Philadelphia, Pennsylvania, for Amici Curiae College of the Law, San Francisco.

Marissa A. Roy, O'Melveny & Meyers LLP, Los Angeles, California, for Amici Curiae Current and Former Local Elected Officials and Local Progress Impact Lab.

Y. Monica Chan, Fenwick & West LLP, Seattle, Washington; Shayla R. Myers, Legal Aid Foundation of Los Angeles, Los Angeles, California; for Amici Curiae Disability Rights Advocates.

Eliana Machefsky, National Police Accountability Project, New Orleans, Louisiana, for Amici Curiae Law Enforcement Action Partnership and National Police Accountability Project.

Before: Patrick J. Bumatay, Lucy H. Koh, and Roopali H. Desai, Circuit Judges.

Opinion by Judge Koh;

Dissent by Judge Bumatay

OPINION

KOH, Circuit Judge:

Appellant City and County of San Francisco ("the City") appeals the grant of a preliminary injunction in this action brought by the Coalition on Homelessness

and seven current or formerly homeless residents of San Francisco ("Plaintiffs"). We publish this opinion to address the City's contention—raised for the first time in this appeal—that the limited geographic scope of the encampment resolutions at issue in this case and the time-limited nature of one of the enjoined ordinances distinguish this case from Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), and Johnson v. City of Grants Pass, 72 F.4th 868 (9th Cir. 2023). We affirm the district court on this issue.¹

In September 2022, Plaintiffs sought a preliminary injunction preventing the City from enforcing "any ordinance that punishes sleeping, lodging, or camping on public property," including Cal. Penal Code § 647(e), Cal. Penal Code §§ 370, 372, and S.F. Police Code §§ 168-69, under the Eighth Amendment.² Plaintiffs challenged the City's use of these laws to effect "sweep operations,"³ which Plaintiffs contended—citing declarations from individuals who had experienced and observed such encampment closures—occurred across San Francisco on a daily basis, without notice and with "no safe harbor at any location within the City." The City opposed the preliminary injunction, arguing that Plaintiffs are unlikely to succeed on the merits of their Eighth Amendment claim because the City offers shelter before requiring any unhoused person to vacate public property. The parties offered starkly different accounts of the way encampment closures are carried out. The district court found the Plaintiffs' evidence more convincing and entered a preliminary injunction. The City then moved for clarification and for a stay of the Eighth Amendment aspects of the preliminary injunction, again on the ground that individuals who decline offers of shelter are not involuntarily homeless under Martin and Johnson.

For the first time on appeal, the City argues that the shelter offers were irrelevant all along. The City now contends that unlike in Martin and Johnson, the challenged enforcement actions do not leave unhoused individuals with nowhere else to go—instead, they require individuals to relocate from specific encampment sites. In Johnson, the court declined to decide a somewhat similar question about "alternate outdoor space." See 72 F.4th at 894 n.33. This appeal is not a proper vehicle to address this unsettled question, either.

The City concedes that it did not raise this argument about the limited geographic scope of encampment resolutions to the district court. The City thus waived this argument. See Armstrong v. Brown, 768 F.3d 975, 981 (9th Cir. 2014). Although we may exercise our discretion to consider a waived issue "when the issue presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed," id. (quoting Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir. 2012)), we disagree with the City that these circumstances are present here,

as we explain below. In any event, "even if we have discretion to review these arguments notwithstanding the [City's] waiver, we decline to do so." Id. at 982. "The [City] has no excuse for its failure to raise these arguments below. Unlike cases in which we have exercised our discretion to consider arguments that were not raised below, the [City] had ample opportunity to craft its response to the district court." Id.

The dissent would nevertheless wade into the deeply complex and significant constitutional issues implicated in the City's new geographic scope argument without the benefit of consideration or key factual findings by the district court. "Our judicial system generally assumes that consideration of an issue at both the trial court and appellate court level is more likely to yield the correct result, because the issue will be more fully aired and analyzed by the parties, because more judges will consider it, and because trial judges often bring a perspective to an issue different from that of appellate judges." Ecological Rts. Found. v. Pac. Lumber Co., 230 F.3d 1141, 1154 (9th Cir. 2000). These principles are the foundation of our waiver doctrine and present sound reasons for us to decline to consider these issues at this juncture.⁴

Even aside from the waiver problem, however, the City's new arguments do not establish a basis to reverse the district court. Review of the City's arguments further shows how factually intensive the resolution of the geographic scope is in this case—all the more reason not to reach the issue without factual findings from the district court on this heavily disputed factual record.

As a threshold matter, most of the enjoined laws are no narrower in scope than the laws at issue in Martin and Johnson. California Penal Code § 647(e) is virtually identical to the law that was enjoined in Martin. Compare Cal. Penal Code § 647(e) (prohibiting as "disorderly conduct" "lodg[ing] in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it"), with Martin, 920 F.3d at 604 (challenge to Boise City Code § 6-01-05, which banned "[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof").⁵ The City also does not argue that the enjoined public nuisance provisions are meaningfully limited such that they would leave involuntarily homeless individuals with somewhere else to go. See Cal. Penal Code § 370 (defining "public nuisance" to include "[a]nything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any . . . public park, square, street, or

highway"); id. § 372 (criminalizing maintenance or commission of a public nuisance as a misdemeanor). Although the dissent endeavors to distinguish these laws, it is not our role to make the parties' arguments for them, particularly given the preliminary posture of this case. "In our adversarial system of adjudication, we follow the principle of party presentation," because "our system is designed around the premise that parties represented by competent counsel know what is best for them, and are responsible for advancing the facts and argument entitling them...