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September 20, 1991

STEVEN SHANAHAN, individually and in his official capacity, JAMES LASSUS, individually and in his official capacity, STEPHEN PAULSON, individually and in his official capacity, CHRISTOPHER BREEN, individually and in his official capacity, JEFFREY LEVIN, individually and in his official capacity, FRANK JORDAN, individually and in his official capacity, and THE CITY AND COUNTY OF SAN FRANCISCO, Defendants

The opinion of the court was delivered by: ORRICK


 In this civil rights action, plaintiff, Celestus Blair, Jr., a former panhandler, seeks compensatory and punitive damages from defendants, San Francisco police officers Steven Shanahan, James Lassus, Stephen Paulson, Christopher Breen, and Jeffrey Levin (the "Arresting Officers"), the City and County of San Francisco (the "City") (the City and the Arresting Officers are collectively referred to as "defendants"), and Frank Jordan, the former Chief of Police of the City and County of San Francisco, for constitutional violations Blair suffered when arrested for allegedly violating § 647(c) *fn1" of the California Penal Code, injunctive relief, and a declaration from this Court that § 647(c) is unconstitutional in that it violates the First and Fourteenth Amendments to the Constitution of the United States.


 Prior to October 1989, Blair lacked steady employment and was intermittently destitute and homeless. When unemployed, he relied on the charity of others. Accordingly, he frequently solicited alms from passersby on San Francisco's public streets and sidewalks.

 Between November 1988 and June 1989, the San Francisco Police Department (the "SFPD") arrested Blair at least five times for begging and charged him with violating § 647(c). On each occasion, the San Francisco District Attorney declined to press charges.

 This Court now faces several opposing motions for summary judgment on the issues in this case. The 1986 United States Supreme Court trilogy of Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), Anderson v. Liberty Lobby, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), requires that a party seeking summary judgment identify evidence that shows the absence of a genuine issue of material fact. Once the moving party has made this showing, the nonmoving party must "'designate specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586 (footnote omitted). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). Applying this rule the Court now decides the motions in convenient order.


 Defendants argue that Blair lacks standing to sue for declaratory and injunctive relief because he now enjoys steady employment, no longer begs, and is unlikely to beg again in the future. *fn2" As the City notes, in order to maintain an action for equitable relief alone, Blair must do more than demonstrate "past exposure to illegal conduct"; he must demonstrate a "'real and immediate,' not 'conjectural' or 'hypothetical'" threat that he will suffer some injury because of the SFPD's continued enforcement of § 647(c). Los Angeles v. Lyons, 461 U.S. 95, 102, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983) (citations omitted) (past exposure to illegal conduct does not give rise to a present case or controversy regarding injunctive relief; rather, Article III's case or controversy requirement precludes federal courts from considering claims for equitable relief unless the plaintiff can demonstrate that he faces a real and immediate threat of future injury). *fn3"

 Blair no longer begs. He has nowhere stated that he intends or expects to resume begging in the future. Assuming that Blair would return to begging only if he had no other way to make ends meet, a series of relatively unlikely events would have to occur before Blair would be subjected to further arrests under § 647(c); he would have to lose what appears to be a secure position, be unable to secure another job and exhaust whatever savings he may have accumulated. Thus, under Lyons, the possibility of Blair suffering further injury is not immediate enough to warrant a grant of standing in a proceeding based solely on a claim for equitable relief.

 Blair's claim for injunctive relief, however, is inextricably intertwined with his personal stake in the related claims for damages. Blair's claims here are factually distinct from Lyons and fall squarely within a rule established by the Ninth Circuit based on such facts. The rule, derived from the cases discussed infra, compels the conclusion that Blair has standing to pursue his claim for equitable relief.

 Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) (per curiam), as limited by Smith v. City of Fontana, 818 F.2d 1411 (9th Cir. 1987), holds that standing for equitable relief exists if a plaintiff seeks damages and equitable relief based on the same legal theory and operative facts. In Giles, the plaintiff brought a single action for damages and injunctive relief against Bonneville County after the county jailer subjected her to an unjustified strip search. The court found that because the plaintiff had only one action pending against the county, the Giles plaintiff's situation differed from that in Lyons, where the lower court had severed that plaintiff's cause of action for damages from his cause of action for injunctive relief. Giles, 746 F.2d at 619. The Giles court, therefore, distinguished Lyons, which governed whether the plaintiff's request for an injunction "standing alone, presented a case or controversy." 746 F.2d at 619. The Giles court concluded that because the plaintiff had a claim for damages against the County "a live controversy exists between her and the County" that gave her standing to pursue her injunctive relief as well. Id.

 The Giles court relied on Gonzales v. City of Peoria, 722 F.2d 468, 481 (9th Cir. 1983), which granted three plaintiffs standing to pursue injunctive relief for alleged constitutional violations. In Gonzales, the court found that, "unlike the situation in Lyons, there is no indication here that the plaintiffs' damages claims are severable from their demands for equitable relief." Id. at 481. Giles and Gonzales remain good law in this circuit. See Soules v. Kauaians For Nukolii Campaign Committee, 849 F.2d 1176, 1179, 1180 n.6 (9th Cir. 1988).

 Smith narrowed "the exception established in Giles that plaintiffs need not allege a credible threat of future injury in order to maintain a claim for equitable relief as long as they also have a claim for damages -- to situations where the two claims involve the same operative facts and legal theory." 818 F.2d at 1423. Blair's claims for equitable relief and for money damages depend on identical facts and legal conclusions and, therefore, fall within the Giles exception to Lyons, as that exception is limited by Smith.

 The factual distinctions between the Giles case and the Lyons case are apposite here. First, here, as in Giles and unlike Lyons, Blair clearly has standing under the "damages action, and there is no question that a live controversy exists" between the parties under the damages action. Giles, 746 F.2d at 619. Lyons relied extensively on O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974), and Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976); yet in neither of those cases did the plaintiffs have simultaneous claims for damages before the Court. For example, in O'Shea, the Court specifically noted that, "no damages were sought against the petitioners in this case, nor were any specific instances involving the individually named respondents set forth in the claim against these judicial officers." 414 U.S. at 492. Here, the damages and equitable claims are inextricably intertwined and rely on the same facts and applicable law.

 Second, Blair has been arrested five times for violating a statute that he has successfully challenged as facially unconstitutional (see discussion below). The plaintiffs' standing claims in O'Shea, Rizzo, and Lyons relied solely on the threat of future victimization resulting from policies that were uncertain or potentially nonexistent, which policies, depending on the circumstances, may or may not have been constitutional. In Rizzo, the Court noted that:

The genesis of this lawsuit -- a heated dispute between individual citizens and certain policemen -- has evolved into an attempt by the federal judiciary to resolve a "controversy" between the entire citizenry of Philadelphia and the petitioning elected and appointed officials over what steps might, in the Court of Appeals' words, "[appear] to have the potential for prevention of future police misconduct."

 423 U.S. at 371 (citations omitted). Clearly, that proceeding, so dramatically removed from the concrete adversity with which it began, has no factual similarity with the proceeding before this Court. Likewise, in Lyons, the policy allowing chokeholds was clearly constitutional under certain circumstances. The plaintiff in that case sought injunctive relief against the enforcement of that policy except when constitutionally appropriate. 461 U.S. at 98. There is a vast difference between a plaintiff's claim that a policy, which is properly left to the discretionary implementation of a given branch of the government, has been misapplied and may be misapplied in the future, and a plaintiff's claim that he has been arrested five times in an eight-month period under a statute that is unconstitutional on its face. Here, in short, there exists the "personal stake in the outcome" that "sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." O'Shea, 414 U.S. at 494 (citations omitted).

 Third, the Lyons court relied strongly on considerations of equity, comity, and federalism, which in that case militated towards judicial abstention concerning claims for equitable relief. Here, however, those militating factors are not present. The highest state court to rule on this facially unconstitutional statute upheld it. Ulmer v. Municipal Court for Oakland-Piedmont Judicial Dist., 55 Cal. App. 3d 263, 127 Cal. Rptr. 445 (1st Dist. 1976). Defendants relied on this state court decision in devising training programs for officers, and the officers applied that training in enforcing the law on the street. Absent action by a federal court, there is no evidence that any of the defendants will cease to enforce this facially unconstitutional statute. Indeed, only a suit that resulted in a pronouncement from the California Supreme Court (requiring the plaintiff or others to endure the inherent delay and uncertainty that bringing such a suit would entail) could stop enforcement of this statute. For all these reasons, this Court finds that Giles, rather than Lyons, provides the most appropriate authority.

 This Court has determined that Blair has standing to sue for equitable relief. He seeks an injunction against further enforcement of this statute. To gain an injunction against enforcement of the offending statute, however, Blair must demonstrate irreparable injury if an injunction does not issue. Although he has standing to assert this claim, he cannot make this additional showing. It is undisputed that Blair is gainfully employed, no longer begs, and has no intention of resuming begging. He will not be injured should this Court refuse to enjoin further enforcement of § 647(c). Therefore, defendants' motion for summary judgment is granted to the extent it relates to Blair's request that this Court enjoin further enforcement of § 647(c).

 Blair cannot make the requisite showing to warrant the issuance of an injunction against further enforcement of § 647(c). Blair, however, is entitled to the declaratory relief he seeks. In his motion, Blair requests an "order declaring as a matter of law that § 647(c) is unconstitutional on its face . . . ." Notice of Mot. by Pl. for Partial Summ. J. ("Blair Mot."), filed Feb. 22, 1991, at 3. *fn4" Blair meets the threshold requirements of the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, because there exists an actual controversy and federal subject matter jurisdiction. Declaratory relief is appropriate "when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue. . . ." Guerra v. Sutton, 783 F.2d 1371, 1376 (9th Cir. 1986) (citations and quotations omitted). A showing of irreparable injury is not required for the issuance of a declaration. Steffel v. Thompson, 415 U.S. 452, 471, 472, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974) (failure to demonstrate irreparable injury does not preclude the granting of declaratory relief); see also United Food & Commercial Workers Local Union Members v. Food Employers Council, Inc., 827 F.2d 519, 526 (9th Cir. 1987) (lack of standing for injunction does not preclude standing for declaratory relief). Because this Court finds § 647(c) to be in violation of the First and Fourteenth Amendments (see discussion in section III.B. below), Blair's motion requesting a declaration that § 647(c) is unconstitutional is granted.


 Defendants move for summary judgment on Blair's first and fourth claims for relief, which assert that Blair's arrests violated Article I, Section 2 of the California Constitution and the ...

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