It’s long been clear that the police have no general duty to do their job. Forget the public relations schtick, useful primarily to get budget increases and cool new equipment, about “defend and protect,” the cops can turn their back and walk away without violating your constitutional rights. But can the government simply abandon a portion of a city to crime and criminals? According to Northern District of California Judge Jon Tigar, yes. Yes it can.

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.”

Of course, this isn’t a matter of unfortunate neglect, but a matter of choice. Frisco has made a decision, predicated upon a belief that drug addiction should be deemed a health problem rather than a crime problem, and are better served by leaving them to their own devices in the Tenderloin in the expectation that they will somehow choose to change their lifestyle, shake their habit and become productive law-abiding citizens if only the police don’t interfere.

For those who are already law-abiding, business and property owners, and even ordinary citizens who have cause to move through the Tenderloin, suffering the crime and degradation of the process of bettering the lives of drug addicts is the price of progress. This answer did not sit well with the residents and businesses who paid the price. So they sued and the city moved to dismiss. Judge Tigar held that they lacked standing since the government’s decision to turn the Tenderloin into a “containment zone” failed to impair their constitutional liberty and property rights as it was’t an “official” policy, but one of mere neglect.

Plaintiffs’ federal constitutional claims are premised on the City’s failure to enforce its drug and anti-encampment laws in the Tenderloin, which they allege makes the Tenderloin “dangerous, unsanitary and no longer open and accessible to plaintiffs and other members of the public.” Plaintiffs dispute this characterization of their claims, contending they have alleged affirmative conduct on the part of the City. However, a review of the complaint reveals their claims are premised on the City’s “de facto” policy of non-enforcement in the Tenderloin and the affirmative acts of non-parties.  (“While plaintiffs are currently unaware of any writing that formally codifies the City’s containment zone policy, it is undisputable that for years the City has known that drug dealers brazenly sell narcotics on the streets and sidewalks in the Tenderloin … [and] has allowed individuals to openly buy and use narcotics in the Tenderloin, and to remain under the obvious influenced of drugs, on the sidewalks and public spaces of the neighborhood.”).

By not putting it in writing, the city can pull a “Casablanca,” (I’m shocked, SHOCKED, to find that gambling is going on in here!). More to the point, had the city crafted a formal policy or ordinance, it would have used the coercive power of government to create this zone that sacrificed the safety of its residents and businesses for the benefit of drug addicts and a ideological view that the rampant commission of crime was a health rather than crime problem.

Plaintiffs essentially want this Court to order the City to alter its enforcement policies  surrounding drug use and encampments in the Tenderloin. 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.” Texas, 599 U.S. at 674 (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). 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.”

As the court properly held, the exercise of discretion not to arrest and prosecute belongs to the executive. By making the decision not to do so, the city does not “exercise coercive power over an individual’s liberty or property.” Thus, those citizens who disagree with the exercise of discretion cannot complain that their constitutional rights have been violated.

But is the unofficial decision by the City of San Francisco to abandon the Tenderloin, as a containment zone for drugs and crime, the same as the exercise of individualized discretion not to arrest and prosecute an individual? Much like progressive prosecutors deciding not to enforce laws duly enacted by the legislature when they don’t care for them, is the abandonment of a section of a city of the same nature as deciding not to prosecute a person against whom the  evidence is weak or who has cooperated?

Notably, although Judge Tigar dismissed the cause of action by law-abiding residents and businesses, he did not dismiss the cause relating to the disabled who were blocked from using the sidewalk by duffel bags, shopping carts and piles of feces. Apparently, the disabled trump drug addicts on the hierarchy of victims worthy of concern in Frisco.

H/T Volokh Conspiracy