S.F. can’t ban suspected drug dealers, court rules
The grim toll of drug dealing in San Francisco’s Tenderloin does not give the city legal authority to ban four suspected dealers from a 50-square-block area of the neighborhood, says a state appeals court.
Then-City Attorney Dennis Herrera filed suit in September 2020 seeking stay-away orders against 28 people from a large area of the Tenderloin, the center of the narcotics trade in San Francisco. Police said there were 600 drug-dealing arrests in the Tenderloin in 2020 and crime rates there were three times the city’s overall rate. Out of 699 drug overdose deaths in San Francisco in 2020, more than 40% were in the Tenderloin and South of Market, officials said.
The injunction would prohibit the named individuals from entering the area except while passing through by bus or subway, or walking a short distance to a court hearing. Violations would be punishable by fines of up to $8,500.
The city’s first attempt to enforce the ban, against four Oakland residents who had been separately arrested on suspicion of illegal possession and sale of drugs, was blocked last May by San Francisco Superior Court Judge Ethan Schulman. He said state law did not appear to authorize a court to prohibit someone from entering a geographic area — but even if it did, the proposed order was so broad that it would violate the constitutional right to travel.
On Friday, the state’s First District Court of Appeal said a local government may be entitled to issue narrowly targeted stay-away orders to wrongdoers in some circumstances, but not one that was this broad.
“We do not minimize the serious and pervasive harm caused by the flood of street-level drug sales in the Tenderloin,” Justice Marla Miller wrote in the 3-0 ruling. “We are mindful of, and sympathetic to, the challenges faced by the city in addressing the issues of illegal drug sales, drug use, and the drugrelated health crisis and its effects on the people who live and work in the neighborhood.”
Miller said, however, that “although the city contends these defendants have no reason to ever even be in the 50-square-block Tenderloin neighborhood except to sell drugs there was evidence that many community resources and government agencies are located in the Tenderloin.” She said Schulman was entitled to believe the four people’s statements “that they were interested in taking advantage of the employment, treatment, housing, and health services available in the 50-square-block neighborhood.”
The city’s lawyers cited a ruling by the state Supreme Court in 2016 upholding a judge’s order requiring a defendant who had been convicted of robbing a Home Depot store to stay away from all of the appliance chain’s outlets in California. But Miller said the order did not interfere with the right to travel because the defendant was still allowed to go anywhere else in the area.
In this case, she said, each of the four defendants was accused of crimes in a relatively small area, and one has two daughters who live in the Tenderloin.
Herrera left the city attorney’s office in November to become head of the San Francisco Public Utilities Commission and was succeeded by David Chiu, a former state Assembly member. Chiu’s spokesperson, Jen Kwart, said Monday the office was disappointed by the ruling and had not decided whether to appeal.
Still, “we are pleased the Court of Appeal agreed that we can continue to pursue creative remedies in similar public nuisance cases,” Kwart said, referring to the state law against private actions that harm public health. “We are currently evaluating potential next steps, and we will continue to look for ways to use civil law to promote and increase public safety in the Tenderloin.”
But Chessie Thacher of the American Civil Liberties Union, a lawyer for the four defendants, noted the court’s observation that, under the law, “human beings do not constitute nuisances in themselves.”
“The city should pursue remedies, but not on the backs of these individuals,” Thacher said.
And San Francisco Public Defender Mano Raju, whose office represents some of the defendants in their criminal cases, said on Twitter Monday that the proposed stay-away order “came from the playbook of the racist war on drugs which has only harmed lowincome communities of color without any positive impact on public health.”