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BLAIR v. SHANAHAN

March 12, 1992

CELESTUS BLAIR, JR., Plaintiff,
v.
STEVEN SHANAHAN, individually and in his official capacity, JAMES LASSUS, 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: WILLIAM H. ORRICK

 Plaintiff, Celestus Blair, Jr. ("Blair"), is a former panhandler. *fn1" He brought this suit challenging the constitutionality of § 647(c) of the California Penal Code *fn2" and enforcement of this statute by defendants under the United States and California Constitutions. On September 24, 1991, this Court issued an Opinion and Order ("Opinion") declaring § 647(c) facially unconstitutional under the federal constitution. Blair v. Shanahan, 775 F. Supp. 1315 (N.D. Cal. 1991). Under that Opinion, several remaining issues were reserved for resolution by trial or settlement of the parties. On December 6, 1991, defendant City and County of San Francisco (the "City") made an offer of judgment under Rule 68 *fn3" of the Federal Rules of Civil Procedure that was unconditionally accepted by Blair on December 10, 1991. On January 2, 1992, judgment was entered in this case pursuant to the Rule 68 offer of judgment. In the motion presently before this Court, the City moves under Rule 60(b) of the Federal Rules of Civil Procedure to modify or vacate that judgment. The Court denies the City's motion because it finds that: (1) the accepted offer of judgment represents a meeting of the minds of the parties; (2) there was no mistake in the accepted offer of judgment justifying intervention under Rule 60(b); and (3) equitable considerations do not require alteration of the judgment. In addition, the Court rejects the attempted intervention in this motion by the State of California (the "State") because the State does not have standing to argue any of the issues currently before this Court.

 I.

 A brief history of events after issuance of the Court's Opinion declaring § 647(c) unconstitutional is helpful. The City moved for an order under Rule 54(b) of the Federal Rules of Civil Procedure certifying the Opinion for appeal. On October 23, 1991, the Court denied that motion to avoid piecemeal appeals. In a letter dated October 10, 1991, Blair presented a settlement offer to the City. The relevant terms of this offer are summarized as follows:

 1. The City would stipulate to 42 U.S.C. § 1983 liability concerning Fourth Amendment violations for arrests without probable cause;

 2. The City would stipulate to 42 U.S.C. § 1983 liability for First Amendment violations involving Blair's arrests. "The stipulation could provide expressly that the City's rights to seek appellate review of the court's determination that § 647(c) violates the First Amendment are not impaired by this stipulation."

 3. The City would stipulate to 42 U.S.C. § 1983 liability for Fourteenth Amendment violations. Again, appeal rights could be expressly reserved in the stipulation.

 4. The City would stipulate to liability for arrests in violation of the California Constitution.

 5. The City would stipulate to damages of $ 20,000 and to Blair's status as the "prevailing party" (entitling Blair to costs and attorney's fees).

 6. The City and State would stipulate to expungement of Blair's arrests under § 647(c).

 7. The City would approve, in form only, a judgment declaring § 647(c) unconstitutional on its face. The stipulation could provide expressly for the City's right to seek appellate review of that determination.

 8. Blair would dismiss with prejudice all state and federal claims against all individual defendants.

 9. Blair would approve in form only a judgment dismissing his freedom of speech claim under the California Constitution. The stipulation could expressly provide for Blair's right to seek appellate review of that judgment.

 Decl. of Michael C. Hallerud ("Hallerud Decl."), filed Jan. 17, 1992, Ex. A. The City never accepted or rejected this offer. On November 29, 1991, Blair requested a mandatory settlement conference, which was scheduled by this Court for December 11, 1991, before Magistrate Judge Claudia Wilken.

 After further settlement discussions, on December 4, 1991, George Riley ("Riley"), attorney for the City, spoke with Michael Hallerud ("Hallerud"), Blair's attorney, concerning basic terms of a "settlement framework" for which Riley would attempt to gain approval from the City's Police Commission. In a letter to Blair, Hallerud memorialized this "settlement framework." *fn4" The "settlement framework" never matured into an offer from one party to the other. It simply served as a framework for discussion of possible terms. Thus, the City never accepted or rejected Blair's offer of October 10, 1991, the only formal offer of settlement. The City did not counteroffer until December 6, 1991.

 On December 6, 1991, the City sent Blair an offer of judgment under Rule 68. This offer of judgment provides as follows:

 Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendants make the following offer of judgment. Defendant City and County of San Francisco ("City") offers to allow judgment to be taken against it on plaintiff's first, second, third and seventh claims for relief with respect to plaintiff's arrests on November 25 and 30, 1988, and May 20 and June 16, 1989. Defendant City further offers to allow judgment to be taken against it for damages in the total amount of $ 4,000. Defendant City also offers to allow judgment to be taken against it regarding plaintiff's request for an order expunging all records relating to plaintiff's detentions, arrests, and searches on each occasion set forth in the First Amended Complaint. Finally, the City offers to allow judgment to be taken against it on the ninth claim for relief in accordance with the Court's Opinion and Order filed September 24, 1991.

 The effect of plaintiff's acceptance of this offer will be an entry of judgment under Rule 54 of the Federal Rules of Civil Procedure (1) granting the relief set forth above, (2) [dismissing] the remaining causes of action and (3) dismissing with prejudice all defendants other than the City.

 This offer of judgment does not cover any attorneys' fees and costs incurred to date to which plaintiff may be entitled. The issue of attorneys' fees and costs shall be resolved in a ...


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