Plaintiff O'Halloran testified that his daughter invited him to
live with her, but that he declined because he feels she cannot
afford to shelter him. City's Opp'n at 14; O'Halloran Dep.,
Putterman Decl., Exh. A at 37:8-39:7. O'Halloran has also had
housing available to him through the Tenderloin Housing Clinic,
but found it unsatisfactory. City's Opp'n at 15; O'Halloran
Dep., Putterman Decl., Exh. A at 82:5-85:25; 87:18-89:13.
Though willing to share an apartment with a roommate, he claims
none of his acquaintances is "suitable." Id. at 86:7-87:17.
Finally, O'Halloran claims he refuses to sleep at a drop-in
shelter. "These people that you're laying next to, they're not
saints. They're all homeless...." Id. at 121:21-122:23.
Plaintiff Joyce receives general assistance payments from the
City and presently has
[1 According to Riker, seventeen homeless persons were held in custody as a result of high bail amounts accruing from
Matrix-identified infraction warrants. Riker Decl. at ¶ 4. In
each instance, the individual was released after being sentenced
to "credit for time served." Id.]
[2 This definition is borrowed from Congressional legislation
commonly referred to as the Stewart B. McKinney Homeless
Assistance Act. See 42 U.S.C. s 11301 et seq. The Act defines a
"homeless individual" to include: (1) an individual who lacks a
fixed, regular, and adequate nighttime residence; and (2) an
individual who has a primary nighttime residence that is-- (A) a
supervised publicly or privately operated shelter designed to
provide temporary living accommodations (including welfare
hotels, congregate shelters, and transitional housing for the
mentally ill); (B) an institution that provides a temporary
residence for individuals intended to be institutionalized; or
(C) a public or private place not designated for, or ordinarily
used as, a regular sleeping accommodation for human beings.]
849
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,
Putterman 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
[1] 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 s 2942, at 368 (1973);
Rizzo v. Goode, 423 U.S. 362, 376-78, 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).
[2,3] 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
"[e]very 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....
[B]asic fairness requires that those enjoined receive explicit
notice of precisely what conduct is outlawed." Schmidt v.
Lessard, 414 U.S. 473, 476, 94 S.Ct. 713, 715, 38 L.Ed.2d 661
(1974).
850
DISCUSSION
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.
[4] 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.... [A]t 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."
851
Plaintiffs' Mot. at 2. [3]
[3 The McKinney Act, which provides this definition, has among
its aims the federal funding of various programs of assistance to
the homeless. The Act's terms and definitions were not intended
by Congress to apply in circumstances not considered by Congress,
nor does this Court find Congress' definition an appropriate one
under which to view the present claims. As counsel for
plaintiffs contended at the hearing, a person living in a housing
clinic would generally be considered "homeless" for purposes of
the McKinney Act since many clinics are "inadequate." See
Transcript at 21:3-23:7.]
Order Continued
Case Listing --- Proposition One ---- Peace Park