.Federal judge limits San Rafael’s homeless camping ordinance

Another lawsuit pitting homeless people against a city in wealthy Marin County is now in full swing. This time, San Rafael occupies the hot seat.

A recent order by a federal judge has substantially diminished the impact of San Rafael’s restrictive homeless camping ordinance. In addition, the city must perform administrative tasks that may be challenging for officials to manage with its current resources.

Homeless people and their advocates are praising the 50-page preliminary injunction, issued by Senior U.S. District Court Judge Edward Chen on Oct. 19, saying that it helps to ensure safety for campers.

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“We’re pleased with the order overall,” Anthony Prince, the San Rafael Homeless Union attorney who is representing some of the plaintiffs in the lawsuit, said in an interview. “On balance, the city lost. They’re paying for their overreach and their apparent extremism.”

A group of homeless people living at Camp Integrity, an encampment on the Mahon Creek Path in San Rafael, filed the claim in August, after the city passed a controversial ordinance imposing severe limits on the size and number of campsites in an area. While homeless people maintain there is safety in numbers, city officials argue that large encampments pose health and safety risks because of increased crime, fires and garbage.

To help make their case, the homeless plaintiffs enlisted Jeffrey Schonberg, Ph.D., a researcher who focuses on the Bay Area’s homeless population. Schonberg submitted a report to the court stating that the ordinance is dangerous because it isolates homeless people. 

Leaving women isolated significantly increases the risk of sexual assault, domestic violence and human trafficking, Schonberg said.

Drug overdose deaths will increase by 15% to 25% if the ordinance is enforced, because “one of the single largest risk factors of overdose is using in isolation,” Schonberg testified. And homeless people rely on one another for survival by exchanging favors and providing care for the more vulnerable campers, according to Schonberg.

Schonberg’s report appeared to sway the judge, but the homeless plaintiffs still didn’t get exactly what they wanted in the preliminary injunction. Neither did the city.

San Rafael had hoped the judge would lift—without restrictions—a previous order that prevents the city from enforcing the ordinance. The campers believed the best outcome would have completely blocked the ordinance, allowing the dozens of tents on the Mahon Creek Path to remain in place.

Instead, Chen’s preliminary injunction provides a compromise.

“The Court will lift the broad temporary restraining order and issue a narrowly tailored preliminary injunction which permits enforcement of the Ordinance under limited conditions, conditions which accommodate the competing interests of both parties while minimizing their respective hardships,” Chen wrote in the most recent order.

The city’s ordinance, passed in July but never implemented because of the court’s temporary restraining order, limited the size of a group campsite to 10 feet by 20 feet. It also required 200 feet of separation between campsites—the equivalent of two-thirds the length of a football field.

Chen’s preliminary injunction doubles the size of a group campsite to 400 square feet, with each site housing up to four people. The distance between campsites was reduced to 100 feet.

San Rafael Mayor Kate Colin believes the constraints in the original ordinance would have been more effective in “reducing violence,” citing incidents of stabbings, tent fires and drug arrests at the Mahon Creek Path encampment.

“Unfortunately, the judge’s order did not approve the ordinance as written, so I am not pleased with that,” Colin told the Pacific Sun. 

The Mahon Creek Path encampment has continued to grow over the last several months. In July, there were approximately 33 tents. Currently, there are 61 tents, according to the city.

The encampment starts at the intersection of Lindaro Street and Anderson Avenue and ends at Lincoln Drive. The area measures about 540 feet in length. Even with the conditions Chen placed on the city’s ordinance, the majority of camp residents will need to relocate.

But San Rafael faces a few hurdles before the judge will lift the ban on the ordinance. First, the city must submit for the court’s review a street level map identifying permissible campsites by size and number of occupants. At each site, boundaries must be visibly designated.

The court must also review the city’s process for designating how campsites are allocated or claimed.

After the court permits San Rafael to implement the modified ordinance and oust many of the Mahon Creek Path residents, city officials will still have to jump through hoops. The city must provide moving assistance for campers required to relocate from Mahon Creek Path. Additionally, for campers whose tents and bedding won’t fit in the allotted space, the city must provide replacement gear.

Perhaps the most labor-intensive aspect of Chen’s requirements for San Rafael involves how the city must handle a homeless person’s request for reasonable accommodations based on a disability. The city can’t evict or prosecute a person making such a request, “unless and until it completes an interactive process (including administrative appeals) with that Plaintiff to address the need for reasonable accommodation,” according to the preliminary injunction.

It remains to be seen whether San Rafael has the administrative bandwidth to meet the requirements in Chen’s order.

“The city has received the judge’s lengthy order and is studying it carefully to determine next steps,” said Michael von Loewenfeldt, of Wagstaffe, von Loewenfeldt, Busch & Radwick, who is one of the attorneys representing San Rafael in the lawsuit. 

It may benefit the city that the preliminary injunction applies only to residents of the Mahon Creek Path encampment who are named plaintiffs or belong to the San Rafael Homeless Union, narrowing the number of protected people. Homeless people living in other encampments throughout the city are not covered by Chen’s order.

But therein lies the rub for San Rafael. If the city begins enforcing the regulations in the original ordinance for other encampments, affected homeless residents are free to file a claim in federal court. And the Mahon Creek Path lawsuit serves as an easy blueprint to follow.

In the meantime, residents of the Mahon Creek Path encampment say the city has begun retaliating against them. Last week, Brian Nelson, one of the lawsuit’s named plaintiffs, received a notice from the city that the wood pallet foundation beneath his tent is unsafe and must be removed in 48 hours.

The pallets have been in place for eight months and prevent water from entering his tent, according to a letter that Prince, the San Rafael Homeless Union attorney, sent to von Loewenfeldt. The letter also warns that unless the city rescinds the notice, the matter will be reported to the court.

San Rafael and its homeless residents look like they’re following a playbook from a similar case in Sausalito. In February 2021, a group of homeless people sued Sausalito over an ordinance restricting homeless camping. The city responded by hiring expensive outside counsel to defend the lawsuit. The litigation dragged on for 18 months before the parties reached a settlement. All in, Sausalito spent approximately $2 million of taxpayer funds.

Surely, there must be a better way.

“It’s time for the city to deal with homelessness,” Prince said. “This lawsuit was brought by homeless people, and they now have a measure of protection from the court. These lawsuits are going to happen over and over again. I say the parties should sit down and settle by making policies that will keep homeless and housed people safe.”

Perhaps they can all discuss it in front of Chen at the status conference on Nov. 1. 

Nikki Silverstein
Nikki Silverstein is an award-winning journalist who has written for the Pacific Sun since 2005. She escaped Florida after college and now lives in Sausalito with her Chiweenie and an assortment of foster dogs. Send news tips to [email protected].

16 COMMENTS

  1. Definitely support the city brining in the big guns to handle this issue. If anyone loves kicking the can, it is Anthony Prince, who after a long career will have very little to show for his work. Nice to see that the homeless have the integrity to not call it “camp integrity” any more. The rain is coming, so good to take steps like cleaning your gutters, and it the case of the Mahon path homeless – find a suitable place to live. Not looking forward to the disgusting mess of wet mattresses and garbage that will abound in the coming months. The group across from the tennis courts enjoy sending their refuse into the creek. Clean up after yourselves.

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    • Typical attitude of the Marin who don’t like homeless people and of course he says the same thing the rest of the sheepeople say in Marin “find a place to live” to which I reply okay well since I don’t have a place can I stay at your house I will sleep on the couch just until I find a place which next to impossible because rent and the price of everything else is so high in marin and then the NIMBYS say no everywhere an encampment is and everywhere where affordable housing is planned to be built and every building that could be conversation to affordable housing they object to that too, so than they say move to a place that more affordable like the Marin county sheriff’s deputy said to me when I was living on Binford RD well I could do that except I don’t have the money for that and besides I have been in Marin for the last thirty years not of all has been spent homeless I have had places to live but when you finally get permanent housing and the people who live in the same apartment building find out that you were homeless than they suddenly have no interest in talking to you nor want you living there or here and so to keep your now permanent housing you really have to work on not getting upset about the attitudes of the snobby ass Marinites, and yes I finally have permanent housing and I adopted a wonderful cat named Midnight I just have issues with the wealthiest places in the country not doing much of anything for the poor side of Marin the homeless community it is very hard not having a place to live except in a tent and while a tent is better than sleeping on the ground still in the winter it gets cold and when it rains the tent leaks and all your stuff gets wet including you, and than thier are the stares the snarky facial expressions the people who threaten to run you over the business that tell you to leave because customers don’t want you there even though you just paid for a sandwich at the deli which means you are a customer too, my hope is that I will never be homeless again because I don’t think I can do it again I am getting to old to go threw it again, oh I forgot the harassment from police homeless people get.

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      • Finding a place to live is not impossible, and that is why the other 260,000 people living in Marin are able to make it happen. Your issues are not society’s issues. This seems to be the crux of the problem: ” it’s too expensive here. No one will rent to me here.” If people are paying rent around you, the excuse does not work. The more that is given to homeless, the more that is expected. Time for the homeless in Marin to come to term with the facts. No one has a right to live anywhere they want. People have to live where they can afford.

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    • Work For A Living,
      You do realize that Judge Chen court order tipped sharply in favor of the plaintiffs, right? Judge Chen also wrote this in his court order ?

      “The Court concludes that full enforcement of the Ordinance is likely to inflict irreparable harm upon the Plaintiffs and threatens to impinge upon certain legal rights,” Chen wrote in the ruling.

      Instead of San Rafael hiring the “big guns” and spending a bunch of money, maybe they should spend it on solutions that have been proven to work in Marin County.

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      • The way I interpret Judge Chen’s order is the restriction on space is constitutional, but should be slightly expanded. Where enforcement will pick up is in regards to the many other unlawful aspects of a homeless camps: litter, code violations, drug enforcement, vagrancy, etc. Put these people more under the microscope of the legality of everything they do and you can quickly get them moving. If you drive down the road and throw a can out the window you are looking at a $1000 dollar fine. Do the same to public space like the Mahon Path and, well in theory the punishment is the same. Build something out of code on your property, the Marin property enforcers will be on you and stop your project; “build” a shanty town, with wires attached to the light poles, expect some interested parties sniffing around. Holding everyone to the same standard in society is a part of the fabric that holds it together. Drink booze in public, pee in public, do drugs, well those are all covered by the law. Slippery slope that flows in the direction of jail once you look more closely at these camps.

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        • San Rafael could be a great town but is always on the edge because of allowing the small segment of the community to do destructive behavior that undermines the laws that most of us follow. No doubt these folks need assistance but we shouldn’t allow no consequences for damaging behavior.

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  2. Wow. Mr./Ms “Workforaliving” seems to have no understanding of the issue of rising homelessness in Marin or elsewhere, and seems to have nothing to offer but hatefulness and judgement.
    San Rafael’s plan for Camp Integrity was doomed from the start. It did not address the issue of encampments, just made new conditions that were completely unworkable for people experiencing homelessness.
    Thankfully there are the Anthony Prince’s of the world who draw the curtain back and expose the city officials complete unwillingness to address the issue of homelessness in any kind of meaningful way.
    Looks like ComplainforaLiving isn’t the only party that doesn’t have an awareness of the causes of homelessness or any viable solutions to address it.

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  3. I guess asking for an unbiased article was too much. “Wealthy Marin County” and San Rafael’s “Restrictive Homeless Ordinance” etc….way to show your cards right up front.
    This article makes it appear that the encampment is full of a down on their luck hippies, with no effort to establish the facts. The majority of the people in these encampments are NOT from San Rafael, but have found a city completely hamstrung by the courts and lawyers looking to represent the homeless. Maybe the title on this article should be “Massive homeless encampment takes over once peaceful middle school area” ??
    For people that are only reading this misleading article and not driving past this area daily, you need to know that it is a very large encampment full of rampant drug use, fighting and garbage all within a couple blocks of a middle school where the kids walk. There is zero accountability for who these people are, what their criminal background is, and what they are allowed to do on our city sidewalks. It truly is an example of the uneducated “fighting” for the homeless by making sure there they have no floor for what society is forced to tolerate as they live in filth and take over the neighborhood. It’s like a well meaning parent watching their kids commit crimes and doing drugs while refusing to allow anyone around them to say “no”. Sadly, I suspect those people and the lawyers involved are not the ones who now live with the consequences.

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    • Time To Throw Up,
      You do realize that 78% of people who became unhoused in Marin are from Marin, right?

      Can you please explain what is misleading about this article?

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    • It is a lie to suggest unsheltered folks are not from Marin. In fact, according to the Point in Time survey in 2022, 78% of Marin’s unhoused people were living in homes in Marin prior to living in encampments and without shelter. This is a result of widening income inequality, high inflation, and a lack of affordable housing, which are continuing to drive individuals and families into homelessness in our county.

      We cannot help people and transition them from the street into homes until we begin to lead with our hearts, show our love, and speak honestly about what is actually happening in front of us.

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  4. The law of unintended consequences…if San Rafael continues to allow this to spread eventually the community will shut down the homeless resources acting as the beacon drawing them in. No good deed goes unpunished.

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    • No Good Deed,
      You do understand the unintended consequences of the new camping ordinance, right? Instead of one central location for the unhoused to camp, the city has identified 262 campsites that people can camp by definition of the ordinance and how it is written. Most city parks will be available for the unhoused to camp, including Gerstle Park, Pickleweed Park, Peacock Park and the list goes on…

      Not only that, the Mahon Creek Path will still have a fair amount of people still camping there with the modifications to the ordinance ordered by the court.

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  5. I feel the city needs to find some permanent housing ASAP and follow the housing first model. With a middle school within the block and an ever expanding shantytown, the city needs to do something and pronto. This has been an issue for the last 15-20 years and San Rafael needs to step up and follow other communities in helping find shelter for those less fortunate.

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    • @Constance Vigilince

      I agree the City of San Rafael could stop paying millions in civil rights lawsuits and lawyers and start using that money to shelter unhoused community members.

      Everyone is a winner when leaders feel and connect (instead of prosecute in an attempt to sweep away) with those who most need to be seen and meet where they’re at right now, in our community.

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  6. Why is it whenever something happens in a town that people don’t like, they attribute it to people outside that town? In the 50s the Red Scare had every union organizer deemed an “outside agitator” because nobody wanted to believe that “their” town could produce people who think differently than the majority, or had different experiences?
    The majority of homeless here in Marin are FROM Marin, I hate to burst your little parochial bubble.

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  7. Some of the posts here make the point most homeless in Marin are from Marin. I suspect some of the support services help establish vagrant’s’residency’ but that is another issue.

    How many homeless in San Rafael are from San Rafael? This city has encouraged and supported social services but has become a magnet for vagrants. Let towns take care of their own community. San Rafael could graciously offer rides for homeless to their last place of residence.

    What is being built now on Andersen Drive is a shanty town. Its ironic day labor immigrants would line this same street looking for work. Now it is lined with boys that never became men who can’t take care of themselves, and blame others for their situation.

    Social services that offer unqualified help are cruely part of the homeless problem. There should be a difference response for able bodied drug addicted men, the disabled and women and children. They enable homeless drug users in one of the most expensive regions of the country, where assistance is never enough for housing but enough to buy drugs.

    No one should have the right to live anywhere they want and demand housing and social from that community. Cities that are required by State Law to provide services can obtain reimbursement for this unfunded state liability.

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