housing through the Tenderloin Housing Clinic. Joyce Dep., Putterman Decl., Exh. B at 80:21-25, 55:3-6. According to the City, Joyce "is not on the streets now, and was not on the streets when the Complaint was filed. . . . In fact, even when he did not receive automatic [general assistance] payments, he was on the streets for at most a few nights." City's Opp'n at 15; Joyce Dep., Putterman Decl., Exh. B at 54:5-60:12, 69:3-70:1, 72:5-75:20, 79:2-80:11.
Plaintiff Smith currently has housing, and receives general assistance and food stamps. City's Opp'n at 15; Smith Dep., Putterman Decl., Exh. D at 7:2-8, 49:17-51:22.
Plaintiff Tullah, a disabled veteran who is confined to a wheelchair, had not yet been deposed by the City as of the date of the hearing. Tullah claims he had been receiving general assistance from the City for approximately nine months, but was thereafter suspended for missing appointments. City's Opp'n at 16; Pl. Resp. to Def. First Set of Interrogs., Nos. 10, 15, Putterinan Decl., Exh. E.
On November 23, 1993, these plaintiffs filed a class action complaint seeking injunctive and declaratory relief against the City.
II. Legal Standard
Plaintiffs have at this time moved the Court to preliminarily enjoin the City's enforcement of certain state and municipal criminal measures which partially define the Matrix Program. Given this posture of the litigation, the Court is called upon to decide whether to grant a preliminary injunction in the exercise of its equitable powers. Fed. R. Civ. P. 65. Such relief constitutes an extraordinary use of the Court's powers, and is to be granted sparingly and with the ultimate aim of preserving the status quo pending trial on the merits. See 11 Wright & Miller, Federal Practice and Procedure: Civil § 2942, at 368 (1973); Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 607, 46 L. Ed. 2d 561 (1976); Chalk v. United States Dist. Ct., 840 F.2d 701, 704 (9th Cir. 1988).
As the Court is acting in equity, the decision whether to grant preliminary injunctive relief is largely left to its discretion. See Big Country Foods, Inc. v. Board of Education of Anchorage School District, 868 F.2d 1085, 1087 (9th Cir. 1989). However, this discretion has been circumscribed by the presence or not of various factors, notably, the likelihood that the moving party will prevail on the merits and the likelihood of harm to the parties from granting or denying the injunctive relief. See Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987); Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984). At the extremes, a party seeking injunctive relief must show either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that serious questions are raised and the balance of hardships tips sharply in the moving party's favor. Miss World (UK) Ltd. v. Mrs. America Pageants, Inc., 856 F.2d 1445, 1448 (9th Cir. 1988); Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987). "These are not two distinct tests, but rather the opposite ends of a single 'continuum in which the required showing of harm varies inversely with the required showing of meritoriousness.'" Miss World, 856 F.2d at 1448 (quoting Rodeo Collection, 812 F.2d at 1217).
Inasmuch as an injunction creates its own penal code enforceable by the Court's contempt powers, an additional consideration affecting the Court's determination to grant injunctive relief is whether or not the terms of the injunction can be stated with sufficient clarity to permit the injunction to be fairly enforced. The Federal Rules of Civil Procedure require that "every order granting an injunction . . . shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained. . . ." Fed. R. Civ. P. 65(d). This mandate is designed "to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood. . . . Basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed." Schmidt v. Lessard, 414 U.S. 473, 94 S. Ct. 713, 715, 38 L. Ed. 2d 661 (1974).
The injunction sought by plaintiffs at this juncture of the litigation must be denied for each of two independent reasons. First, the proposed injunction lacks the necessary specificity to be enforceable, and would give rise to enforcement problems sufficiently inherent as to be incurable by modification of the proposal. Second, those legal theories upon which plaintiffs rely are not plainly applicable to the grievances sought to be vindicated, with the effect that the Court cannot find at this time that, upon conducting the required balance of harm and merit, plaintiffs have established a sufficient probability of success on the merits to warrant injunctive relief.
I. Enforceability Problems Inherent in the Proposed Injunction
Plaintiffs urge the Court to implement an injunction under which:
the City shall be preliminarily enjoined from enforcing, or threatening to enforce, statutes and ordinances prohibiting sleeping, "camping" or "lodging" in public parks, or the obstruction of public sidewalks against the plaintiff class of homeless individuals for life-sustaining activities such as sleeping, sitting or remaining in a public place. . . .
Plaintiffs' Proposed Order Granting Mot. for Prel. Inj. at 2.
Those problems invariably arising from attempted compliance with the proposed injunction are apparent on the face of the injunction proposed by plaintiffs. To begin with, the injunction would immunize "life-sustaining activities such as sleeping, sitting or remaining in a public place. . . ." Id. (emphasis added). Given this malleable phraseology, the proposal is fundamentally uncertain as to what conduct would be immunized from governmental prohibition. Although the language of the proposed injunction would clearly include many such activities, plaintiffs understandably exclude a variety of acts from their proffered examples of "life sustaining activities." This exclusion has the effect of removing the reductio ad absurdum of immunizing from punishment such arguably "life-sustaining activities" as urinating and defecating in public and aggressive panhandling, but it is not a limitation called for by the text of the proposed injunction. Cf. Glasheen v. City of Austin, 840 F. Supp. 62 (W.D.Tex. 1993) (upholding city ordinance designed to reduce aggressive panhandling); Young v. New York City Transit Authority, 903 F.2d 146 (2nd Cir. 1990) (reversing lower court injunction enjoining defendant from prohibiting panhandling).
The converse of this problem--the proposed injunction's protection of activities which cannot be contended to be life sustaining--constitutes an additional infirmity with the proposed relief. For example, the proposed injunction would enjoin enforcement of laws prohibiting obstruction of public sidewalks by homeless individuals. When asked by the Court about this aspect of the injunction, plaintiffs' counsel suggested that if this is seen to be a problem, the City could enact less restrictive alternatives to the present ordinances, such as a prohibition on "obstructing a sidewalk at a time when people actually want to use the sidewalk. . . . At 3:00 o'clock in the morning . . . no one would conceivably want to use that location." Transcript at 86:18-23. This postulate is not self-evident to the Court; nor can it be taken as axiomatic that preventing other persons from using public sidewalks can be said to be a life sustaining activity.
Responding at the hearing to such concerns, counsel for plaintiffs suggested the proposed injunction could be readily amended, e.g. by striking the "such as" language from the proposed injunction. Even under such an amendment, and assuming plaintiffs would now make a narrowed list of the laws they seek to enjoin, various problems remain which would frustrate or render impossible enforcement of the proposed injunction. The most weighty of these problems is plaintiffs' stated objective to enjoin only that governmental activity directed at "homeless individuals." Id. As that phrase is defined by plaintiffs, classification of a person as "homeless" would require an individualized determination whether that person possessed a "fixed, regular, and adequate nighttime residence." Plaintiffs' Mot. at 2.
By plaintiffs' reasoning, any persons who did not possess such a residence would be immunized from enforcement of camping and lodging prohibitions, while those who did possess such a residence would not. The impossibility of such enforcement is best illustrated by concrete example. When asked by the Court whether, under the proposed injunction, the City would be able to cite plaintiff Joyce for public camping, counsel for plaintiffs answered as follows: such citation might be permissible if Joyce had lodging available that night, but would be otherwise impermissible. See Transcript at 77:3-78:13.
Counsel for plaintiffs suggested at the hearing that enforcement difficulties could be mitigated if police would merely ask questions to determine whether the person is "homeless" before citing him. See Transcript at 81:3-5. This suggestion is no solution; the obvious and inevitable permutations of this contemplated enforcement scenario make it plainly unenforceable.
These various, inherent uncertainties militate strongly against the Court's adoption of the proposed injunction or its proposed amended text. This conclusion follows by mandate of the Federal Rules of Civil Procedure, which provide that "every order granting an injunction . . . shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained. . . ." Fed. R. Civ. P. 65(d). Various courts of review, moreover, when confronted by analogous situations in which unenforceable injunctive relief was sought, have acted in accord. See Schmidt, 414 U.S. 473, 94 S. Ct. 713, 38 L. Ed. 2d 661 (vacating order enjoining state officials from enforcing "the present Wisconsin scheme" against those in plaintiff class); De Bremaecker v. Short, 433 F.2d 733 (5th Cir. 1970) (finding too unspecific a proposed injunction against police intimidation of citizens "active in peace movement").
Given these definitional difficulties, implementation of the proposed injunction would realistically have the effect of requiring the City to altogether cease enforcing the challenged criminal laws. Plaintiffs have essentially acknowledged this result by their argument that, after enjoining enforcement of the listed criminal laws, the Court should continue on to prescribe a narrower "code of conduct" by which only the "homeless" would be immunized from various police enforcement measures. Responding to a question of the Court, counsel for plaintiffs suggested at the hearing that anyone who placed and used three tents on San Francisco's Civic Plaza for a period of three days would have engaged in unpunishable activity under the proposed injunction. See Transcript at 72:13-73:10. Plaintiffs, in sum, seek an order of this Court which would render the City altogether powerless to enforce its laws under the circumstances now challenged.
The Court cannot at this time sanction such a result. It would at a minimum be inconsistent with the underlying rationale of preliminary injunctive relief aimed at preservation of the status quo. See Chalk, 840 F.2d 701, 704 (9th Cir. 1988) (primary purpose of preliminary injunction is to preserve status quo pending determination of action on the merits). A conceivable response to this holding is that the status quo would be maintained by granting the proposed injunction, as it would preserve the ability of the homeless to continue their conduct absent the threat of adverse police activity. Such an argument would be misplaced. The City's homeless have never been altogether immunized from enforcement of the various laws at issue here, whereas the City's prerogative to lawfully enforce the challenged provisions has not been previously disturbed.
Issuance of the proposed injunction would, moreover, necessitate that affirmative steps be taken by police in order to enforce the challenged ordinances, i.e. determining whether the person had a "fixed, regular, and adequate nighttime residence." The requirement of affirmative conduct has been deemed a factor contrary to preservation of the status quo. See Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291, 296 (9th Cir. 1970) (affirming denial of injunctive relief where grant of injunction "would require that affirmative steps now be taken in the direction of the ultimate remedy sought by appellants.").
The Court also notes that denial of the injunction at this stage of the litigation is consonant with even those cases said by plaintiffs to be most supportive of their lawsuit. In Pottinger v. Miami, 810 F. Supp. 1551, 1583 (S.D. Fla. 1992) (appeal pending), the court expressly denied a proposed injunction until sufficient factual findings could be made so as to enable more precise definition of the plaintiffs' allegations. Similarly, in Church v. City of Huntsville, No. 93-C-1239-S (N.D. Ala. Sept. 23, 1993), a district court preliminarily enjoined a city from certain acts only after entering various findings of fact following trial on the evidentiary issues.
Accordingly, plaintiffs' proposed order granting injunctive relief must be denied at this time.
II. Under the Posited Legal Theories, Plaintiffs Have Not Demonstrated a Clear Probability of Success on the Merits
A. Whether the Eighth Amendment Prohibits Enforcement of Matrix as Punishing "Status"
Plaintiffs contend enforcement of the Matrix Program unconstitutionally punishes an asserted "status" of homelessness. The central thesis is that since plaintiffs are compelled to be on the street involuntarily, enforcement of laws which interfere with their ability to carry out life sustaining activities on the street must be prohibited. This argument, while arguably bolstered by decisions of courts in other jurisdictions, has not been adopted by any case within the Ninth Circuit. Moreover, it is the opinion of this Court that plaintiffs' position, if adopted, would represent an improper reach by this Court into matters appropriately governed by the State of California and the City of San Francisco.
1. Applicability of the Eighth Amendment to the Present Action
As a threshold matter, the City argues the Eighth Amendment is not implicated by those enforcement actions taken by the San Francisco Police Department under the Matrix Program. The City argues that the protections of the Eighth Amendment are invoked only when a party has been convicted of a criminal offense, and is therefore not applicable to the present case since none of the four named plaintiffs has been so convicted. This argument is unavailing.
Application of the Eighth Amendment, which is binding on states by operation of the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 1420, 8 L. Ed. 2d 758 (1962), principally limits the types of punishment that can be imposed on those convicted of crimes. Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 1410, 51 L. Ed. 2d 711 (1977). Although the City claims the protections of the Eighth Amendment are limited "only to 'those convicted of crimes'," City's Opp'n at 10 (emphasis in original) (quoting Ingraham, 97 S. Ct. at 1409), this proposition is refuted by the express language of Ingraham. In describing the breadth of application of the Eighth Amendment, the Court provided that, in addition to proscribing certain types of punishments to those convicted of crimes, the amendment "imposes substantive limits on what can be made criminal." Ingraham 97 S. Ct. at 1410 (acknowledging "[this] limitation as one to be applied sparingly." Id.). Accordingly, the protections of the Eighth Amendment cannot be deemed wholly inapplicable to the controversy now before the Court.
Separately, it is nevertheless appropriate for the Court to consider that members of the proposed class have actually been criminally convicted of committing Matrix-related infractions--a fact sufficient in itself to invoke consideration of the Eighth Amendment. The City argues the scope of the Court's inquiry is limited to injuries incurred by the four named plaintiffs, and that because none of the named plaintiffs to this action has been so convicted, the Eighth Amendment is entirely inapplicable. As support for this assertion, the City cites to Zepeda v. United States Immigration and Naturalization Service, 753 F.2d 719 (9th Cir. 1983) (vacating class-wide grant of relief by district court after denial of class certification).
This argument is misplaced; it is instead the case that grievances of all proposed class members are properly in the purview of the Court at this time. "When the determination of the class action issue is delayed, a suit brought under Rule 23 should be treated as a class action . . . until there is a determination that the action may not proceed under the rule." 7B Wright, Miller & Kane, Federal Practice and Procedure § 1785, at 106-07 (1986); see also N.Y. State Nat. Organization for Women v. Terry, 697 F. Supp. 1324, 1336 & n.16 (S.D.N.Y. 1988) (permitting class wide relief before class is certified; distinguishing Zepeda as a case in which district court had already denied certification of class). Since a determination has not yet been made whether plaintiffs can proceed as a class, it is appropriate at this stage that the Court consider the injuries alleged to individuals within the entire, proposed class. Since those injuries indisputably include criminal convictions of Matrix-related offenses, the applicability of the Eighth Amendment to this action can be considered to be established.
Finally, even in the event the Court were to restrict its inquiry in the manner the City contends is required, those injuries alleged by the named plaintiffs would suffice to invoke consideration of the Eighth Amendment. "Fines . . . traditionally have been associated with the criminal process" and subjected to the limitations provided by the Eighth Amendment. Ingraham, 97 S. Ct. at 1408. As it is the case that plaintiff O'Halloran has paid a fine imposed by citation, see Plaintiffs' Reply at 6; Bleich Decl., Exh. 2, the City's argument as to the wholesale inapplicability of the Eighth Amendment must be rejected.
2. Whether Homelessness is a "Status," so that Certain Acts of the Homeless are Protected from Penal Enforcement
Two Supreme Court decisions guide a determination of which behavior is to be deemed derivative of one's status, and therefore accorded constitutional protection from criminal prohibition. In Robinson, the Supreme Court held violative of the Eighth Amendment a California statute making it a criminal offense to "be addicted to the use of narcotics." 82 S. Ct. at 1417 & n.1. The Court explained that conviction under the statute was predicated not on the commission of any particular act, but merely on the "'status' of narcotic addiction." Id. at 1420. Equating narcotic addiction with illness, the Court wrote,
It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. . . . But . . . a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment of the Eighth and Fourteenth Amendments.