No Preliminary Injunction Over Residents’ Claim That S.F. Failed to Adequately Police Tenderloin Sidewalks

From today’s decision by Judge Jon Tigar (N.D. Cal.) in Roe v. City of S.F.:

Plaintiffs are residents and businesses that live and operate in the Tenderloin neighborhood in San Francisco. {Plaintiffs seek to enjoin the City from “directly or indirectly supplying fentanyl or methamphetamine-related drug paraphernalia to any individuals, groups, organization, or entities within the Tenderloin neighborhood and … from allowing City-funded contractors to furnish such paraphernalia to any individuals, groups, organizations, or entities in the Tenderloin.” Plaintiffs contend that the City’s “affirmative conduct” regarding harm reduction and housing attract drug addicts to the Tenderloin and that “violent, gang-affiliated drug dealers also converged on the neighborhood.” Plaintiffs rest their request for preliminary injunction on their claims for private nuisance and public nuisance.} … Plaintiffs [also] allege claims for: (1) violation of the ADA; (2) violation of the Rehabilitation Act; (3) violation of California’s Disabled Persons Act (“DPA”); … and [4] state-created danger under the Due Process Clause ….

The City argues that Plaintiffs have failed to establish standing because they have not shown that (1) the City’s paraphernalia policies have increased drug use or other social ills in the Tenderloin or (2) that cessation of those policies would lead to a decrease. They also argue that the City has taken numerous “concrete steps” to abate drug use and maintain positive conditions in the Tenderloin since this case was filed. They note that Plaintiffs have failed to respond to the City’s evidence that changes in its policies have actually improved conditions in the Tenderloin such that Plaintiffs are no longer at risk of the harms they cited in their motion. [City Filing] at 18 (“Photos of the area outside Plaintiffs’ homes and businesses confirm the conditions alleged have abated to the extent they ever existed.”). The City submit photographic evidence of these improvements, as well as testimony from some Plaintiffs conceding that conditions have improved such that they are no longer at risk of injury.

Thus, the City argues, Plaintiffs now base their request for injunction only on the theoretical possibility of future injury, which is insufficient. The City adds that “speculative fears” of future injuries are specifically not cognizable injuries for the purposes of private nuisance actions. The City also argues that Plaintiffs fail to establish the redressability element of standing as they cannot prove that enjoining the city from distributing drug-related supplies in the Tenderloin would resolve the drug usage, homelessness, and crime issues. Finally, the City argues that enjoining its policies could actually worsen conditions in the Tenderloin by forcing addicts to use shared or unsafe drug paraphernalia.

These arguments are both unrebutted and persuasive.

As the City notes, Plaintiffs failed to respond to these arguments in their reply brief. That by itself supports denial of an injunction. “By failing to respond to the City’s arguments, Plaintiffs have conceded those arguments and have acknowledged that their … claims should be dismissed on those grounds.” …

The City’s arguments are also persuasive on the merits. Plaintiffs have not submitted evidence tying the City’s policies to an increase in drug use or the degradation of conditions in the Tenderloin. Thus, they have not shown the “certainly impending harm” that is required for relief. “Where, as here, the parties have taken discovery, the plaintiff cannot rest on ‘mere allegations,’ but must instead point to factual evidence” to make a clear showing of each element of standing. By contrast, the City’s evidence shows several instances where the conditions at issue have been substantially mitigated. Recent photographic evidence taken near the homes and businesses of individual Plaintiffs shows conditions have largely improved. Multiple plaintiffs acknowledged in their depositions that conditions have improved.

Plaintiffs claim that the City has “presented a distorted visual record of the conditions by excluding images of nearby detrimental conditions.” But, with one exception, Plaintiffs’ rebuttal evidence consists of photographs taken in November 2021. While Plaintiffs make generalized contentions that conditions in the Tenderloin have not improved in the intervening time, they present no evidence demonstrating that any of the named Plaintiffs can show they are suffering actual or imminent harm. Plaintiffs therefore fail to demonstrate Article III standing.

Plaintiffs also do not respond to the City’s arguments that Plaintiffs have failed to show that injunctive relief would redress their injuries. “Redressability means it is “likely” and not “merely speculative” that the plaintiff’s injury will be remedied by a favorable decision.” Plaintiffs here “do not afford much argument as to how a favorable judgment from this Court would ameliorate the alleged” injuries caused by drug addicts in the Tenderloin. The record before the Court contains no evidence that enjoining the City from funding organizations that distribute drug paraphernalia would reduce the social ills that Plaintiffs complain about…. Plaintiffs have both pleaded speculative injuries that they have not established are “certainly impending” and failed to establish that the threatened injuries are “fairly traceable” to the City’s policies or funds.

Given Plaintiffs’ lack of standing, they cannot establish that they are entitled to a preliminary injunction….

Here’s my 2024 post about an earlier decision in the case:

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From [the July 19, 2024] decision by Judge Jon Tigar (N.D. Cal.) in Roe v. City of S.F.:

Plaintiffs are residents and businesses in the Tenderloin neighborhood in San Francisco. Plaintiffs allege that the City treats the Tenderloin as a “containment zone” for narcotics activities. Specifically, Plaintiffs contend that “for years the City has allowed individuals to openly buy and use narcotics in the Tenderloin, and to remain, under the obvious influence of drugs, on the sidewalks and public spaces of the neighborhood.” “Addicts living on the Tenderloin’s streets foreseeably support their habit by stealing (e.g., shoplifting, car break-ins, burglaries, robberies) and hawking the stolen merchandise on the sidewalks.” And “as their disease progresses, their mental and physical health declines, resulting in them acting erratically, ignoring serious medical problems (e.g., open sores at injection sites), rummaging through trash, discarding garbage on the sidewalk around them, going partially clothed, and defecating in public.” As a result, Plaintiffs allege “the City-owned public walkways and spaces in the Tenderloin are dangerous, unsanitary and no longer open and accessible to plaintiffs and other members of the public.”

Plaintiffs sued, claiming that the failure to enforce the law was unconstitutional, but the court said no (correctly applying the existing precedents, I think):

But as the Supreme Court recently reiterated “a citizen lacks standing to contest the
policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” This is because “when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual’s liberty or property, and thus does not infringe upon interests that courts often are called upon to protect.”

But it allowed the case to go forward on the theory that the City’s policies burdened disabled residents in violation of federal disability rights law:

Plaintiffs here allege that the “sidewalks and public spaces” in their neighborhood are impassable and inaccessible to them due to “[e]ncampments and bulky items, such as duffle bags, shopping carts, and disassembled bicycles.” … [T]hese allegations put the City on notice of how the barriers prevent Plaintiffs from full and equal access—encampments and other items obstruct their path such that those with walkers and other mobility issues are unable to utilize the sidewalks. See Hood v. City of Sacramento, No. 2:23-cv-00232-KJM-CKD, 2023 WL 6541870, at *6 (E.D. Cal. Oct. 6, 2023) (finding allegations that plaintiffs were disabled and encampments and debris blocked sidewalk access which prevented access to locations within the City were sufficient to state a Title II claim).

Seems like a strange legal rule to have—courts can’t intervene when the government fails to protect ordinary people from people illegally blocking sidewalks, but must intervene when the government fails to protect disabled people from the same behavior—but perhaps this is the rule we do have. (I’m not an expert on disability law, so I can’t speak to how sound this decision is as a matter of current federal law.)