From today's 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.)
The post Residents' Claim That S.F. Failed to Adequately Police Tenderloin Sidewalks May Go Forward on Disability Law Theory appeared first on Reason.com.
