JOYCE v. CITY & COUNTY OF SAN FRANCISCO

The Court must approach with hesitation any argument that science or statistics compels a conclusion that a certain condition be defined as a status. The Supreme Court has determined that drug addiction equals a status, and this Court is so bound. But the Supreme Court has not made such a determination with respect to homelessness, and because that situation is not directly analogous to drug addiction, it would be an untoward excursion by this Court into matters of social policy to accord to homelessness the protection of status. In addition to the fact that homelessness does not analytically fit into a definition of a status under the contours of governing case law, the effects which would ensue from such a determination by this Court would be staggering. Courts seeking analytical consistency with such a holding would be required to provide constitutional protection to any condition over which a showing could be made that the defendant had no control. The natural consequence of such a recognition was clear to Justice White, who wrote that "[i]f it is 'cruel and unusual punishment' to convict appellant for addiction [i.e. status], it is difficult to understand why it would be any less offensive ... to convict him for use on the same evidence of use which proved he was an addict. [i.e. acts derivative of status]." Robinson, 370 U.S. at 688, 82 S.Ct. at 1431-32 (dissenting opn.).

Consistent with these concerns is the devastating impact on state and local law enforcement efforts which a declaration of status would effect. As Justice Marshall wrote in Powell, recognition by federal courts of such status would create a "constitutional doctrine of criminal responsibility" in conflict with "essential considerations of federalism...." 392 U.S. at 535, 88 S.Ct. at 2155. In the same vein, Justice Black in his concurring opinion in Powell declined to erect the constitutional barrier sought by the defendant, explaining that, To adopt this position would significantly limit the States in their efforts to deal with a widespread and important social problem and would do so by announcing a revolutionary doctrine of constitutional law that would also tightly restrict state power to deal with a wide variety of other harmful conduct. Id. at 537, 88 S.Ct. at 2156-57. By parity of reasoning, this Court is convinced that adopting the central thesis of plaintiffs in this case would be an equally revolutionary doctrinal decision and would be an equally inappropriate intrusion into state and local authority. Although the plaintiffs' Eighth Amendment challenge to the Matrix Program law enforcement activities will appropriately be subject to further scrutiny in this case, on this record the plaintiffs have not demonstrated a probability of success on the merits of this claim.

B. Whether Matrix Violates the Equal Protection Clause

[10,11] Predicate to an equal protection clause violation is a finding of governmental action undertaken with an intent to discriminate against a particular individual or class of individuals. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-72, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). Such intent may be evinced by statutory language, see, e.g., Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), or in instances where an impact which cannot be explained on a neutral ground unmasks an invidious discrimination. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Feeney, 442 U.S. at 274-76, 99 S.Ct. at 2294. Under the latter approach, a neutral law found to have a disproportionately adverse effect upon a minority classification will be deemed unconstitutional only if that impact can be traced to a discriminatory purpose. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Feeney, 442 U.S. at 272, 99 S.Ct. at 2292 ("When the basic classification is rationally related, uneven effects upon particular groups within a class are ordinarily of no constitutional concern.").

[12] In the present case, plaintiffs have not at this time demonstrated a likelihood of success on the merits of the equal protection claim, since the City's action has not been taken with an evinced intent to discriminate against an identifiable group. As discussed

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above, various directives issued within the Police Department mandate the non-discriminatory enforcement of Matrix. See, e.g., "Update on Matrix Quality of Life Program," Petrini Decl., Exh. A at 1-2 (providing that "[r]ights of the homeless must be preserved"); Department Bulletin on "Rights of the Homeless", discussed in Petrini Decl. at ¶ 2 (stating that "[all members of the Department] are obligated to treat all persons equally, regardless of their economic or living conditions. The homeless enjoy the same legal and individual rights afforded to others. Members shall at all times respect these rights...."). Further, the Police Department has, during the pendency of the Matrix Program, conducted continuing education for officers regarding non-discriminatory enforcement of the Program. City's Opp'n at 8.

It has not been proven at this time that Matrix was implemented with the aim of discriminating against the homeless. That enforcement of Matrix will, de facto, fall predominantly on the homeless does not in itself effect an equal protection clause violation. See City's Opp'n at 22. Notably, the absence of such a finding of intentional discrimination at this time distinguishes the present case from United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (invalidating federal statute that excluded recipients living with unrelated individuals from participation in food stamp program, where legislative history evinced intent to prevent "hippies" and "hippie communities" from participating), City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 437, 105 S.Ct. 3249, 3253, 87 L.Ed.2d 313 (1985) (overturning city's decision, taken pursuant to zoning ordinance, denying permit for a home for mentally retarded where "motivated primarily by the fact that the residents [were] mentally retarded"), and Parr v. Municipal Court, 3 Cal.3d 861, 863, 92 Cal.Rptr. 153, 479 P.2d 353, cert. denied, 404 U.S. 869, 92 S.Ct. 46, 30 L.Ed.2d 113 (1971) (finding unconstitutional a city ordinance enacted with an accompanying declaration condemning "undesirable and unsanitary visitors ... sometimes known as 'hippies' "). In each of these cases, either the statutory language or the legislative history underlying the challenged measure revealed an intent to discriminate against a particular group. See City's Opp'n at 22-23.

[13] Even were plaintiffs able at this time to prove an intent to discriminate against the homeless, the challenged sections of the Program might nonetheless survive constitutional scrutiny. Only in cases where the challenged action is aimed at a suspect classification, such as race or gender, or premised upon the exercise of a fundamental right, will the governmental action be subjected to a heightened scrutiny. See Feeney, 442 U.S. at 271- 74, 99 S.Ct. at 2292-93.

[14] Counsel for plaintiff proposed at the hearing that this Court should be the first to recognize as a fundamental right the "right to sleep." See Transcript at 35:4-16. This is an invitation the Court, in its exercise of judicial restraint, must decline. Despite the seeming innocence of a right so defined, the natural corollary to recognition of a right is an obligation to enforce it. The discovery of a right to sleep concomitantly requires prohibition of the government's interference with that right. This endeavor, aside from creating a jurisprudential morass, would involve this unelected branch of government in a legislative role for which it is neither fit, nor easily divested once established.

[15] It is accordingly likely that a classification of the homeless would be subjected only to a rational basis review, which the City might well prove in this instance. As the Court has declined to find suspect classifications on the basis of either wealth, Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988), or housing, Lindsey, 405 U.S. 56, 92 S.Ct. 862, the challenged Program would likely be tested only against a rational basis. Moreover, the very fact of a discriminatory purpose may not invalidate a measure otherwise subject to rational basis review. In Parr, a four-three decision adjudicating an equal protection claim on federal constitutional grounds, the dissenting opinion noted: 'the consideration of motive is complicated by the fact that it is altogether possible for a law which is the expression of a forbidden motive to be a good law. What is to

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be done with a law which, passed with the most questionable of motives, still makes a positive contribution to the public good? ...' ... [E]ven if we assume [the challenged ordinance was motivated by a discriminatory intent], that ordinance by its terms applies to 'any person' violating its provisions. In spite of its assuredly improper motives, it is a 'good law.' 3 Cal.3d at 872, 92 Cal.Rptr. 153, 479 P.2d 353 (Burke, J., dissenting) (emphasis in original; citations omitted). Because the challenged Program might therefore be determined to be rationally related to assertedly legitimate interests of protecting public safety and health, and preserving parks for their intended purposes, see City's Opp'n at 22, a finding by the Court that plaintiffs had proved a substantial likelihood of success on the merits of the equal protection claim is not proper on this record.

C. Whether the Matrix Program Impermissibly Burdens the Right to Travel

[16] This argument proffered by plaintiffs is essentially a subset of equal protection analysis, in which the right to travel is deemed a fundamental right which a state government may not abridge unless necessary to achieve a compelling state interest. See Shapiro v. Thompson, 394 U.S. 618, 627-35, 89 S.Ct. 1322, 1328-31, 22 L.Ed.2d 600 (1969). The right to travel has found its strongest expression in the context of attempts by states to discourage the immigration of indigents. The application of strict scrutiny to such laws, however, has been limited to those which are facially discriminatory. See id. (holding unconstitutional statutory provision requiring welfare assistance applicants to reside in state at least one year immediately preceding application for assistance); Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941) (curtailing immigration of new residents); Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974) (denying medical services to new residents).

The Matrix Program does not facially discriminate between those who are, and those who might be, the City's residents. Accordingly, the application of strict scrutiny to the Program would be unwarranted. See City's Opp'n at 20. Again, plaintiffs cite Pottinger, Huntsville and Tobe in support of their argument; this Court cannot conclude at this time that each case is sufficiently persuasive that it should now be followed.

As Huntsville does not even discuss the right to travel, see Plaintiffs' Mot. at 19-20, it cannot be deemed supporting authority. Pottinger and Tobe, conversely, address the issue squarely, but in a manner which is not necessarily persuasive to the Court. Applying strict scrutiny to the challenged enforcement efforts, the court in Pottinger found the City's arrests violative of the right to travel: [E]nforcement of the challenged ordinances against homeless individuals significantly burdens their freedom of movement. It has the effect of preventing homeless people from coming into the City. Primarily, however, it has the effect of expelling those already present and of significantly burdening their freedom of movement within the City and the state. 810 F.Supp. at 1581.

These decisions constitute extensions of the right to travel which may well be unwarranted under governing Supreme Court precedent. Initially, to the extent these cases apply strict scrutiny to facially neutral laws impacting intrastate travel, they may be wrongly decided. Assuming the right to travel encompasses protection to intrastate travel, [10] it is nevertheless doubtful that facially neutral laws impacting intrastate travel should be subjected to such strict scrutiny. "Both the United States Supreme Court and [the California Supreme Court] have refused to apply the strict construction test to legislation ... which does not penalize travel and

[10 The Supreme Court has not directly addressed whether the right to travel includes intrastate travel. See Pottinger 810 F.Supp. at 1579. The Court has suggested, however, that such a broad reading is permissible. See Kolender v. Lawson, 461 U.S. 352, 355-56, 103 S.Ct. 1855, 1857, 75 L.Ed.2d 903 (1983) (law prohibiting wandering the streets at night without identification implicated "consideration of the constitutional right to freedom of movement."). Moreover, the federal circuit courts of appeals have uniformly held that the right encompasses intrastate travel. See Plaintiffs' Mot. at 19 n. 10.]

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resettlement [through disparate treatment] but merely makes it more difficult for the outsider to establish his residence in the place of his choosing." Associated Home Builders v. Livermore, 18 Cal.3d 582, 603, 135 Cal.Rptr. 41, 557 P.2d 473 (1976). Insofar as the courts in Pottinger and Tobe invalidate not facially discriminatory measures, but police efforts adversely impacting the homeless, those decisions are not sufficiently persuasive to convince this Court of any likelihood of success on the merits of the right to travel claim.

D. Whether the Matrix Program Violates Plaintiffs' Rights to Due Process of Law

Plaintiffs contend the Matrix Program has been enforced in violation of the due process clauses of the United States and California Constitutions. Since plaintiffs have not specifically identified any authority supporting a broader reading of due process protections on independent state constitutional grounds, see Cal. Const., art. 1, § 7(a), the Fourteenth Amendment to the United States Constitution provides the appropriate analysis. Plaintiffs specifically argue that due process has been violated by employing punitive policing measures against the homeless for sleeping in public parks; plaintiffs also argue that certain state codes are unconstitutionally vague.

1. Punishing the Homeless for Sitting or Sleeping in Parks

Plaintiffs claim that San Francisco Park Code section 3.12 has been applied by police in an unconstitutional manner. That section provides, No person shall construct or maintain any building, structure, tent or any other thing in any park that may be used for housing accommodations or camping, except by permission from the Recreation and Park Commission. San Francisco, Cal., Park Code s 3.12 (1981). Plaintiffs contend the Police Department has impermissibly construed this provision to justify citing, arresting, threatening and "moving along" those "persons guilty of nothing more than sitting on park benches with their personal possessions or lying on or under blankets on the ground." Plaintiffs' Mot. at 21-22. Plaintiffs have submitted declarations of various homeless persons supporting the asserted application of the San Francisco Park Code section. See, e.g., Homeless Decls. at 34 (lying down atop blankets eating lunch), 121 ("sleeping on bench"), 125 ("sleeping on boxes").

[17] It appears, if plaintiffs have accurately depicted the manner in which the section is enforced, that the section may have been applied to conduct not covered by the section and may have been enforced unconstitutionally. The City's initial defense, which is wrongly invoked, is that the defendant to this action is not an individual officer, but the City itself, which will not be found liable unless its officers committed an act pursuant to a "formal policy" or a "longstanding practice or custom which constitutes the 'standard operating procedure' of the local governmental entity." Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.1992). The City argues that because its police officers were continually educated in the proper enforcement of the camping ordinance, see, e.g., Petrini Decl., Exh. A (instructing police officers that "[t]he mere lying or sleeping on or in a bedroll in and of itself does not constitute a violation"), plaintiffs would be unable to succeed on the merits of this claim. This defense misreads governing law. Where prospective relief only is sought, the Ninth Circuit has provided that the "official policy or custom requirement" does not apply. See Chaloux v. Killeen, 886 F.2d 247, 250-51 (9th Cir.1989); Reply at 27.

[18] Issuance of the remedy sought by plaintiffs would nevertheless be premature at this stage of the litigation. Police have been continually and increasingly educated in proper enforcement of the measures. Moreover, as it appears many of the alleged violations occurred prior to such instructions, it has not been sufficiently demonstrated by plaintiffs that the problematic enforcement continues, such that the continuing injury predicate to issuance of injunctive relief still exists. See Pomerantz v. County of Los Angeles, 674 F.2d 1288 (9th Cir.1982) (finding

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of mootness generally bars a court from considering claim for injunctive relief).

2. Overbreadth and Vagueness Challenges to Enforcement Measures

Plaintiffs also contend that San Francisco Park Code section 3.12, discussed supra, and California Penal Code Section 647(i) [11] are unconstitutionally overbroad and vague. "[A] court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications.... A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) (emphasis added; footnote omitted).

[19] It is unlikely that the overbreadth and vagueness challenges can be maintained. Overbreadth is a challenge which may be successfully leveled only where First Amendment concerns are at stake. See Schall v. Martin, 467 U.S. 253, 268 n. 18, 104 S.Ct. 2403, 2412 n. 18, 81 L.Ed.2d 207 (1984) ("[O]utside the limited First Amendment context, a criminal statute may not be attacked as overbroad."). The applicability of the First Amendment to the present case has not been suggested by any of the parties, nor would such an argument strike the Court as a meritorious one. Accordingly, sufficient problems attach to the overbreadth challenge that it cannot support plaintiffs' request for injunctive relief.

[20] The possible success of the vagueness challenge is also in doubt, as it seems readily apparent the measure is not "impermissibly vague in all of its applications...." Village of Hoffman Est., 455 U.S. at 495, 102 S.Ct. at 1191. This likely failing follows from plaintiffs' inability to prove at this stage that police have been granted an excess of discretion pursuant to the statute. Plaintiffs assert vagueness in the San Francisco Park Code prohibition against maintaining "any other thing" that "may be used for ... camping", and in enforcing the Penal Code prohibition against one "who lodges in ... public," Plaintiffs' Mot. at 23-24, claiming "[t]he vagueness of these [Park Code] terms has apparently allowed San Francisco police officers to determine that blankets or possessions in carts are sufficiently connected to 'camping' to violate the ordinance." Id. at 23. Plaintiffs have also submitted declarations of homeless persons supporting these assertions, and a concession by Assistant District Attorney Paul Cummins to the effect that the standards for enforcement are vague. See id. at 24.

In consideration of plaintiffs' burden to prove the section "impermissibly vague in all of its applications," Village of Hoffman Est., 455 U.S. at 495, 102 S.Ct. at 1191, it is not clear to the Court that plaintiffs can make this showing with respect to the challenged ordinance. A decision of persuasive authority supports this "common-sense understanding of camping." See United States v. Thomas, 864 F.2d 188, 196 (D.C.Cir.1988) (upholding camping regulations against vagueness challenge). Moreover, numerous directives within the Police Department defend the measures against the charge of problematic enforcement. The City contends that the Police Department's enforcement memoranda limit application of the ordinance to situations where the person has set up living accommodations. See City's Opp'n at 25; Petrini Decl., Exh. C ("indicia of camping may include the accoutrements of a campsite, such as cooking utensils, clothing hung out, groups of sleeping bags and bedding in a cluster, etc.").

[11 That section provides: Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:
... Who lodges in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control thereof. Cal. Penal Code s 647(i).]

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Opinion Continued

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