or coercive threats to justify this statute. This case falls squarely under the holding in Carey ; the statute violates the Equal Protection Clause of the Fourteenth Amendment.
The City's motion for summary judgment on Blair's first claim for relief is denied. Plaintiff's opposing motion for a declaration that § 647(c) is unconstitutional on its face is thus granted.
IV. LIABILITY UNDER 42 U.S.C. 1983.
Both sides move for summary judgment on defendants' liability under 42 U.S.C. § 1983 for violating Blair's rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution. For municipal liability to attach, Blair must demonstrate that execution of a City policy caused his constitutional deprivations. Monell v. Dep't of Social Services of City of New York, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Alternatively, in the absence of an explicit City policy, Blair must demonstrate the existence of a failure to train officers properly that amounts to a de facto policy of deliberate indifference to the rights of those people with whom the police come in contact. Canton v. Harris, 489 U.S. 378, 388, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). The parties argue both aspects of this issue. Although the Court finds that Blair has established a triable issue of fact under the Monell holding (and thus discussion of the Canton approach is not necessary), in the interests of thoroughness, both approaches will be analyzed.
For liability to attach to the Arresting Officers, Blair must demonstrate that the "contours of the right [that the Arresting Officers violated] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Applying these rules, the Court now returns to the motions.
A. First and Fourteenth Amendments.
For Blair to win on his motion for summary judgment as to the liability of the City under § 1983, he must show that "execution of a government's policy or custom, whether made by its lawmakers or those whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . ." Monell, 436 U.S. at 694. Thus, Blair must demonstrate both an official policy and a "direct causal link between [that policy] or custom and the alleged constitutional deprivation." Canton, 489 U.S. at 385 (explaining Monell).
Blair cannot meet this requirement on these pleadings, and so his motion must be denied. Blair has demonstrated the existence of the required official policy in § 120
of the San Francisco Police Code. He has also presented some evidence that supports the contention that this policy was the moving force behind his unconstitutional arrests. See, Pl.'s Reply Mem. of P. & A. in Supp. of Pl.'s Mot. for Partial Summary J., filed Mar. 21, 1991, at 20. Blair, however, has not demonstrated a factually undisputed causal connection between this policy and the violations of his constitutional rights. The City has presented evidence adequate to withstand summary judgment on this issue. See Defs.' Opp'n to Mot. for Partial Summ. J., filed Mar. 14, 1991, at 16, 17.
Under Canton, Blair may demonstrate the existence of a "policy" where there exists a "failure to train [that] amounts to deliberate indifference to the rights of persons with whom the police come into contact." 489 U.S. at 388. Defendants move for summary judgment on this issue, claiming that Blair cannot make any such showing as a matter of law. There is no dispute that the City has sufficiently frequent contact with beggars to warrant the development of a training program that focuses on constitutional treatment of them. The City has such a program, but Blair states that it is so inadequate that it constitutes deliberate indifference on the City's part to the rights of beggars. As regards Blair's efforts to establish the City's § 1983 liability for his First and Fourteenth Amendment violations under the Canton approach, defendants' motion for summary judgment must be granted.
Blair argues that the City should have told its officers that § 647(c) is unconstitutional and should not be enforced. He claims that the only acceptable training program regarding this statute would be one that forbade officers from enforcing it. This Court finds that the statute is unconstitutional on its face. The training program the City conducted, however, was based on the holding of the highest California court to rule on the statute. That court found the statute to be constitutional. Solely for the purposes of establishing its training program, the City was entitled to rely on that court's determination as to the statute's constitutionality. No reasonable jury could find that reliance by the City on the de facto decision as to the statute's constitutionality constitutes "deliberate indifference" to the rights of beggars. On the issue of the existence of a de facto policy under Canton that may have caused the violations of Blair's First and Fourteenth Amendment rights, defendants' motion for summary judgment is granted.
Both parties move for summary judgment on the issue of the Arresting Officers' limited immunity for violations of Blair's First and Fourteenth Amendment rights. Blair argues that no reasonable police officer could have believed that Blair's arrests were lawful in light of the clearly established law at the time, and the facts upon which the arrests were based. According to Blair, the Arresting Officers should have read Schaumburg, Alternatives, and Carey, disregarded Ulmer, and should have known that § 647(c) violates the Constitutions of the United States and California. The Court cannot place such a burden on these officers. Accordingly, the Arresting Officers are entitled to qualified immunity against any 1983 claims based on violations of Blair's First and Fourteenth Amendment rights committed while enforcing § 647(c).
B. Fourth Amendment Violations.
Blair also claims that the SFPD repeatedly violated his Fourth Amendment rights. He claims he was arrested without probable cause. This claim stands independent of Blair's argument as to the constitutionality of 647(c). "'Probable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. De Fillippo, 443 U.S. 31, 37, 61 L. Ed. 2d 343, 99 S. Ct. 2627 (1979). Probable cause to arrest under § 647(c) requires both an "accost" and a solicitation for alms. Both sides admit that on four occasions, police officers arrested Blair for violating § 647(c) even though he was stationary while begging. Therefore, this claim hinges on the proper interpretation of an "accost" under Ulmer's hitherto definitive reading of § 647(c).
The City argues that the training it provides its officers in the application of § 647(c) insulates it from liability under § 1983. The City avers that it informs all its officers that accosting the passerby (defined by the City to mean to "approach" and initiate conversation) is an essential element of § 647(c). Lawson Decl., filed Feb. 22, 1991, at paras. 5, 6, Ex. A.
Blair quotes from Ulmer to support his assertion that "walking up to" another person is an essential element of probable cause to arrest under § 647(c). Ulmer stated that:
The meaning connoted by the word "accost" is clear from the legislative materials noted above: the statute is "aimed at the conduct of the individual who goes about on the streets accosting others for handouts" (emphasis added); the statute does not extend to one "who merely sits or stands by the wayside." Walking up to and approaching another for the purpose of soliciting, as opposed to merely receiving donations, is prohibited by the statute. . . . The statute forbids any approach in a public place for the purpose of soliciting or begging for alms.
55 Cal. App. 3d at 266-67, 127 Cal. Rptr. at 447-48 (citations omitted). This Court notes as especially relevant the fact that "walking up to and approaching" is conjugated as a single activity that "is prohibited." Id, 55 Cal. App. 3d at 267, 127 Cal. Rptr. at 448 (emphasis added.) Thus, the later reference in that paragraph to "any approach" is properly understood as a short-hand reference to "walking up to and approaching."
Blair argues that the City's training is deficient in that it fails to explain "that walking toward another is an essential element of a § 647(c) violation," and instead states that "'the asking, soliciting, or begging constitutes the crime.'" Pl.'s Mem. of P. & A. in Opp'n to Defs.' Mot. for Summ. Adjudication, at 20 (quoting the Basic Course Unit Guide published by The Commission on Peace Officer Standards and Training, cited in Lawson Decl., Ex. A). Although accurate, Blair's argument fails for purposes of summary judgment.
Canton held that:
[It] may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.