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.
