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 "[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). 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 (vacating order enjoining state officials from enforcing "the present Wisconsin scheme" against those in plaintiff class); DeBremaecker 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.

[5] Application of the Eighth Amendment, which is binding on states by operation of the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660, 665-67, 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, 666-68, 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, 430 U.S. at 664, 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, 430 U.S. at 667, 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.

[6] 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. "[W]hen 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.

[7] 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. "[F]ines ... traditionally have been associated with the criminal process" and subjected to the limitations provided by the Eighth Amendment. Ingraham, 430 U.S. at 664, 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

[8] 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." 370 U.S. at 660 & n. 1, 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 666, 82 S.Ct. 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. Id.

Six years later, a plurality of the Court found no Eighth Amendment infirmity in a Texas statute penalizing one for being found in a state of intoxication in a public place. Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968). Writing for the four-Justice plurality, Justice Marshall rejected the appellant's argument that he "was 'afflicted with the disease of chronic alcoholism,' [and] that 'his appearance in public [while drunk was] ... not of his own volition'." Id. In so holding, the plurality refused to adopt a "constitutional holding that 'a person may not be punished if the condition essential to constitute the defined crime is part of the pattern of his disease and is occasioned by a compulsion symptomatic of the disease.' " Id. at 521, 88 S.Ct. at 2149. Distinguishing the Court's decision in Robinson, Justice Marshall wrote,


[A]ppellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion. The State of Texas thus has not sought to punish a mere status, as California did in Robinson.... Rather, it has imposed upon appellant a criminal sanction for public behavior.... This seems a far cry from convicting one for being an addict, being a chronic alcoholic, being 'mentally ill, or a leper....' Id. at 532, 88 S.Ct. at 2154 (quoting Robinson, 370 U.S. at 666, 82 S.Ct. at 1420).

Plaintiffs argue, however, on the basis of Justice White's concurring opinion, [4] that Powell was decided as it was solely because the convicted defendant had not been shown to be on the streets involuntarily. See Plaintiffs' Mot. at 12; Plaintiffs' Reply at 12-14. In casting the fifth vote to uphold the appellant's conviction in Powell, Justice White wrote,

The fact remains that some chronic alcoholics must drink and hence must drink somewhere. Although many chronics have homes, many others do not. For all practical purposes the public streets may be home for these unfortunates, not because their disease compels them to be there, but because, drunk or sober, they have no place else to go and no place else to be when they are drinking. This is more a function of economic station than of disease, although the disease may lead to destitution and perpetuate that condition. For some of these alcoholics I would think a showing could be made that resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible. As applied to them this statute is in effect a law which bans a single act for which they may not be convicted under the Eighth Amendment-- the act of getting drunk. 392 U.S. at 551, 88 S.Ct. at 2163-64 (emphasis in original; footnote omitted).

Plaintiffs contend on the basis of this concurring opinion that, had the appellant in Powell been homeless, five justices would have voted to reverse his conviction. See Reply at 13. "Powell effectively establishes that a person who is involuntarily in public may not be punished for doing an act or being in a condition that he or she is powerless to avoid." Id.

a. Decisions Striking Vagrancy Statutes

As a threshold matter, plaintiffs' citation to various court decisions striking down statutes criminalizing vagrancy is of indirect assistance to the present analysis. See Plaintiffs' Mot. at 12-14. The statutes found offensive to the Constitution targeted, either explicitly or otherwise, "vagrancy." See, e.g., Wheeler v. Goodman, 306 F.Supp. 58, 62 (W.D.N.C.1969), vacated on other grounds, 401 U.S. 987, 91 S.Ct. 1219, 28 L.Ed.2d 524 (1971) (statute criminalizing "vagrancy" violative of Eighth Amendment); Goldman v. Knecht, 295 F.Supp. 897 (D.Colo.1969) (statute outlawing "vagrancy" violative of Due Process Clause of Fourteenth Amendment); see also Smith v. Hill, 285 F.Supp. 556, 558 (E.D.N.C.1968).

The present efforts under the Matrix Program are dissimilar from those successfully challenged in the above cases. Matrix targets the commission of discrete acts of conduct, not a person's appearance as a vagrant vel non. To the extent plaintiffs argue that enforcement efforts pursuant to Matrix are, in practice, the equivalents of vagrancy statutes, those authorities discussed below more specifically address that particular contention.

b. Lower Court Applications of Robinson to Police Efforts Adversely Impacting the Homeless

A line of reasoning extending unconstitutional status penalizations to acts of the homeless has been adopted by at least two federal district courts and, most recently, a California court of appeal. In Pottinger v. Miami, 810 F.Supp. 1551, 1561-65 (S.D.Fla.1992) (appeal pending), a district court extended the protections of the Eighth Amendment to limit the criminal prohibition of "innocent conduct" derivative of a certified class' status as homeless. In Church v. City of Huntsville, No. 93-C-1239-S, slip op. at 2

[4 Justice White voted to affirm the conviction on the basis that the appellant had failed to prove he had been in public involuntarily. See 392 U.S. at 553-55, 88 S.Ct. at 2165. ]


(N.D.Ala. Sept. 23, 1993), a district court preliminarily enjoined a city from "harassing, intimidating, detaining or arresting members of the defined class, solely because of their status as homeless persons, for walking, talking, sleeping, or gathering in parks or other public places in the City of Huntsville." (emphasis in original). [5] Most recently, in Tobe v. City of Santa Ana, 22 Cal.App.4th 228, 27 Cal.Rptr.2d 386 (1994), a California court of appeal held, inter alia, that enforcement of a "camping ordinance" offended the protections of the Eighth Amendment.

The City emphasizes that the Matrix Program is far more comprehensive than those efforts challenged in the above cases, particularly with respect to Matrix's enforcement of numerous prohibitions against acts other than "innocent ones" such as sleeping and eating in public. [6] See City's Opp'n at 1. In any event, this distinction is of little relevance, since plaintiffs seek to enjoin only police activity prohibiting "life-sustaining activities such as sleeping, sitting or remaining in a public place...." See Plaintiffs' Proposed Order at 2.

c. Viability of Depicting Homelessness as Status

In moving the Court to implement the proposed injunctive relief, plaintiffs are unable to demonstrate a substantial likelihood of success on the merits of the underlying suit. The ultimate resolution of this lawsuit will require acceptance or rejection of the reasoning in those cases granting constitutional protection to acts derivative of a "status" of homelessness. The conclusion that such acts are protected appears, for various reasons, sufficiently problematic to discourage this Court from following at this time in its jurisprudential path.

Depicting homelessness as "status" is by no means self-evident, as the appellate court in Tobe suggests, [7] and as the court in Huntsville presumes. [8] That depiction, made upon serious analysis only in Pottinger, is a dubious extension of Robinson and Powell, and of questionable merit in light of concerns implicating federalism and the proper role of the Court in such adjudications.

Insofar as Pottinger attempts to reason from applicable Supreme Court precedent that homelessness equals a "status," and that acts derivative of such status are constitutionally protected, the reasoning of that court cannot be said at this stage of the litigation to be sufficiently persuasive to indicate a likely possibility of success on the merits of the underlying suit. Pottinger explained that, [while a]n initial reading of Powell suggests that all conduct is outside the rule of Robinson ... [the] plurality was not confronted with a critical distinguishing factor that is unique to the plight of the homeless plaintiffs in this case: that they have no realistic choice but to live in public places. Id. at 1563. Finding as a matter of fact that being homeless is only "rarely" a choice, id., and that alternative shelter was unavailable, id. at 1564, the court held that:

[5 In preliminary findings, the court found the "unannounced, but nonetheless official, policy of the City of Huntsville to isolate homeless citizens from the established residential areas ... [and] 'show these folks where the city limits are....,' i.e., to remove this class of citizens from Huntsville." Huntsville, Prelim. Fdgs. at 5 (N.D.Ala. Sept. 23, 1993).]

[6 For example, the programs operated by Miami and San Francisco are not, as plaintiffs suggest, "virtually identical." In Pottinger, the court found the Eighth Amendment violated when the City punished "sleeping, eating and other innocent conduct." Id. at 1565. The court emphasized that "plaintiffs [had] not argued that the City should not be able to arrest them for public drunkenness or any type of conduct that might be harmful to themselves or to others." Id. Similarly, the court in Tobe was exclusively concerned with a "camping ordinance" limiting the permissible uses of public streets and areas. In contrast to these measures, the Matrix Program is addressed in large part at prohibiting such conduct which is unmistakably "harmful" to plaintiffs or others. See supra at 846-47.]

[7 In Tobe, the court engaged in an abbreviated policy analysis yielding the conclusion that homelessness is a status; the court's citations to Robinson and Powell were no more than ornamental.]

[8 Neither the preliminary injunction nor the preliminary findings issued by the court in Huntsville cites to a single case or engages in any analysis with respect to the legal issues presented.]


plaintiffs have no choice but to conduct involuntary, life-sustaining activities in public places. The harmless conduct for which they are arrested is inseparable from their involuntary condition of being homeless. Id. The Court concluded that the City of Miami was liable to a class of homeless plaintiffs for "effectively punish[ing] them for something for which they may not be convicted under the eighth amendment." Id. at 1565.

This Court is unable to conclude at this time that the extension of the Eighth Amendment to the "acts" at issue here is warranted by governing authorities. Plaintiffs argue that the failure of the City to provide sufficient housing compels the conclusion that homelessness on the streets of San Francisco is cognizable as a status. This argument is unavailing at least for the fundamental reason that status cannot be defined as a function of the discretionary acts of others. [9]

On no occasion, moreover, has the Supreme Court invoked the Eighth Amendment in order to protect acts derivative of a person's status. Robinson prohibited penalizing a person based on their status as having been addicted, whereas the plurality in Powell approved a state's prosecution of the act of appearing intoxicated in public. What justified invocation of the Eighth Amendment in one case and not the other was not the difference between drug and alcohol addiction; such distinction is without analytical difference. Rather, the different results were reached because of the distinct targets of the challenged laws--one punished a status, the other an act. Justice Black, concurring in the plurality opinion in Powell, explained, [In Robinson, we] explicitly limited our holding to the situation where no conduct of any kind is involved.... [A]ny attempt to explain Robinson as based solely on the lack of voluntariness encounters a number of logical difficulties.... 392 U.S. at 542, 88 S.Ct. at 2159 (Black, J., concurring).

Plaintiffs' argument that Powell would have been differently decided had the defendant been homeless does not reflect the holding of the case and is sheer speculation. While language in Justice White's concurrence can be argued to support that contention, such language was dicta. One can only hypothesize that Justice White would actually have cast his vote differently had the defendant been homeless. Nothing underscores this point more vividly than the fact that Justice White was one of two vigorous dissenters in Robinson.

[9] As an analytical matter, more fundamentally, homelessness is not readily classified as a "status." Rather, as expressed for the plurality in Powell by Justice Marshall, there is a "substantial definitional distinction between a 'status' ... and a 'condition,'...." 392 U.S. at 533, 88 S.Ct. at 2155. While the concept of status might elude perfect definition, certain factors assist in its determination, such as the involuntariness of the acquisition of that quality (including the presence or not of that characteristic at birth), see Robinson, 370 U.S. at 665-69 & n. 9, 82 S.Ct. at 1420-21 & n. 9, and the degree to which an individual has control over that characteristic.

Examples of such "status" characteristics might include age, race, gender, national origin and illness. The reasoning of the Court in including drug addiction as status involved the analogy of drug addiction to a disease or an illness which might be contracted involuntarily. See id. While homelessness can be thrust upon an unwitting recipient, and while a person may be largely incapable of changing that condition, the distinction between the ability to eliminate one's drug addiction as compared to one's homelessness is a distinction in kind as much as in degree. To argue that homelessness is a status and not a condition, moreover, is to deny the efficacy of acts of social intervention to change the condition of those currently homeless.

[9 As the Supreme Court has declined to find any "constitutional guarantee of access to dwellings of a particular quality," Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972), the housing provided to the City's homeless is a matter for the discretion of the City and State.]

Opinion Continued

Case Listing --- Proposition One ---- Peace Park