granting a temporary restraining order barring the City from, among other things, “[c]onfiscatingthe personal property of the homeless when it has not been abandoned and destroying it without notice”Summary of this case from Lavan v. City of Los Angeles
No. CV-00-12352 LGB (AIJx)
December 5, 2000
ORDER GRANTING PLAINTIFFS' EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs seek a Temporary Restraining Order ("TRO") to stop Defendants from continuing their alleged harassment of the homeless population in the downtown Los Angeles, "Skid Row," area based on a newly-initiated crime fighting campaign.
II. FACTUAL AND PROCEDURAL HISTORY
Plaintiffs are homeless individuals who are residents of the City of Los Angeles, living on the streets and in shelters located in the Downtown Los Angeles area known as "Skid Row." Defendants include the City of Los Angeles, Chief Bernard C. Parks, and Captain Stuart A. Maislin.
Plaintiffs allege that "[a]s part of an overall crime-fighting drive announced by City officials in mid-September, the Los Angeles Police Department and other City employees have initiated a widespread campaign of harassment and intimidation directed at" the Skid Row homeless population. Mem. of P. A. in Supp. of Ex Parte Application for a TRO at 1 ("TRO Mem."). The harassment purportedly consists of (1) stopping homeless individuals and demanding identification without a reasonable basis upon which to suspect that a crime has been committed; (2) threatening to arrest homeless individuals if they do not produce identification; (3) ordering homeless individuals to move from public sidewalks and streets so as to prevent loitering or street blocking; (4) arresting homeless individuals without probable cause; (5) searching and seizing the property of homeless individuals so as to find or fabricate probable cause for an arrest; and (6) issuing citations for jaywalking or blocking a sidewalk when no such violation has occurred. See id. at 1-2. This policy is allegedly driving homeless individuals away from the charities and shelters located in the Skid Row area and, thus, hindering their opportunity to receive food, assistance, and shelter. See id. Plaintiffs have filed the declarations of numerous Skid Row homeless individuals in which they testify as to their experiences with these practices. See Exs. Decls. in Supp. of Pls.' Ex Parte Application for TRO ("Decl.").
Plaintiffs allege that the police are basing their actions on the authority of two California penal codes, California Penal Code § 647(e) and Los Angeles Municipal Code § 41.18(a). See id. at 1. Plaintiffs argue that both provisions are unconstitutional "loitering" statutes. See id.
Plaintiffs expect that the alleged harassment will escalate during the upcoming holiday season. See id. at 3. They seek a temporary restraining order to enjoin Defendants' purportedly unconstitutional practices. Plaintiffs seek class-wide injunctive relief as representatives of the class of homeless people living in Skid Row.
III. LEGAL STANDARD
The purpose of the preliminary injunction is to preserve the status quo until a full trial on the merits can be conducted. See University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). The Supreme Court "has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies." Weinberger v. Romeo-Barcelo, 456 U.S. 305, 312 (1982). The limited record usually available on such motions renders a final decision on the merits inappropriate. See Brown v. Chote, 411 U.S. 452, 456 (1973).
In the Ninth Circuit, two interrelated tests exist for determining the propriety of the issuance of a preliminary injunction. Under the first test, the Court may not issue a preliminary injunction unless: (1) the moving party has established a strong likelihood of success on the merits; (2) the moving party will suffer future irreparable injury and has no adequate remedy at law if injunctive relief is not granted; (3) the balance of hardships tips in favor of the movant; and (4) granting the injunction is in the public interest. See Martin v. International Olympic Committee, 740 F.2d 670, 674-75 (1984); Greene v. Bowen, 639 F. Supp. 554, 558 (E.D. Cal. 1986). An alternative articulation of the test is whether the moving party "meet[s] its burden by demonstrating either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in its favor." Martin, 740 F.2d at 675. The two tests are not, however, separate and unrelated. Each represents the "extremes of a single continuum." Benda v. Grand Lodge of Int'l Ass'n of Machinists, 584 F.2d 308, 315 (9th Cir. 1978)
A stricter standard is applied to the required imminency of the threatened harm when injunctive relief is sought against the actions of the government or its agencies. See Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 557 (9th Cir. 1990). "[T]he injury or threat of injury must be both real and immediate, not conjectural or hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). However, when a violation of a constitutional right has been proven, the Ninth Circuit has held that no further showing of irreparable injury is required. See Associated General Contractors of California v. Coalition for Economic Equity, 950 F.2d 1401, 1410 (9th Cir. 1991).
Declarations and evidence submitted in support of an application for a TRO do not need to conform to the standards for a summary judgment motion or to the Federal Rules of Evidence. See Flynt Distributing Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984); Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir. 1993).
"While injunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification, [citation omitted] an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit — even if it is not a class action — if such breach is necessary to give prevailing parties the relief to which they are entitled." Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996) quoting Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987) (emphasis in Bresgal).
A bond is always required upon issuance of a TRO in federal court. See FRCP 65(c). Nevertheless, a bond has been dispensed with entirely where there was no proof of likelihood of harm to the party enjoined. See Doctor's Assocs., Inc. v. Stuart, 85 F.3d 975, 985 (2nd Cir. 1996).
IV. ANALYSIS A. Standing
Plaintiffs assert that they have standing to bring the instant action. See TRO Mem. at 3. They claim to have suffered direct harm from the challenged actions of the Defendants. See Justin Decl. at ¶¶ 3-9; Troy B. Decl. at ¶¶ 4-8; Jo Jo Brown Decl. at ¶ 4; Bruce Snyder Decl. at ¶ 6; Todd P. Decl. at ¶ 3. Plaintiffs also allege that they are likely to continue to suffer from the purported violation of their civil rights as long as they remain homeless individuals on the public sidewalks of Skid Row. The Court finds the Plaintiffs' showing sufficient to assert standing to bring this action.
The five Plaintiffs also claim to have standing to request injunctive relief on behalf of all homeless persons located in the Skid Row area. See TRO Mem. at 3-4. Plaintiffs make a very cursory showing of their likelihood to achieve class certification pursuant to Federal Rule of Civil Procedure 23, but they maintain that there is a strong likelihood that repeated constitutional violations will continue as to each class member. Defendants attack Plaintiffs' showing of class standing, arguing that the class lacks sufficient definiteness and that the representatives' claims are not necessarily typical of the class at large. See Defs.' Opp'n at 4.
Although the Court agrees that Plaintiffs will have to make a more robust showing for proper class certification, the Court finds that it is likely that a class can be properly certified here. For the purpose of resolving this application for a TRO, the Ninth Circuit holding in Easyriders Freedom F.I.G.H.T. v. Hannigan is directly applicable. See 92 F.3d at 1501. The Plaintiffs in Easyriders Freedom F.I.G.H.T. sought an injunction against the California Highway Patrol's ("CHP") action against all motorcyclists, instead of an injunction that merely restricted the CHP's citations of the named Plaintiffs. See id. The Ninth Circuit agreed that the requested scope was appropriate even without proper class certification, stating "[w]hile injunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification, [citation omitted] an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit — even if it is not a class action — if such breadth is necessary to give prevailing parties the relief to which they are entitled." Id. at 1501 quoting Bresgal v. Brock, 843 F.2d at 1170-71 (emphasis in Bresgal) Similarly, the Plaintiffs in this case will not receive the complete relief to which they are entitled if the applicability of the injunction is narrowed to the named Plaintiffs. Contrary to Defendants' request, the Court refuses to narrow the scope of this injunction to the named Plaintiffs.
B. Plaintiffs' Evidence
Defendants argue that "[t]hrough Plaintiffs' defective and incomplete declarations, Plaintiffs' [sic] have failed to present credible, reliable, or complete information to this court to sustain any relief. . . ." Defs' Opp'n at 3. The Defendants request that the Court not consider the Plaintiffs' declarations or, in the alternative, to force Plaintiffs to reveal the true identities of the declarants so that Defendants have additional time to investigate their claims. See id. at 6, 7.
Declarations and evidence submitted in support of an application for a TRO do not need to conform to the standards for a summary judgment motion or to the Federal Rules of Evidence. See Flynt Distributing Co., Inc. 734 F.2d at 1394. Defects in Plaintiffs' declarations do not mandate their exclusion, but they do affect the weight to be placed on their significance.
The Plaintiffs' declarations were placed under seal to protect Plaintiffs from feared reprisals and retaliation by police officers. Plaintiffs have shown that the fear is reasonable based on past threats. See Callaghan Dec. at ¶¶ 4, 7-8; Ruiz Decl. at ¶¶ 7-8; DeBode Decl. at ¶ 12. In fact, Plaintiff Justin asserts that his prior arrest was actually executed in retaliation for expressing his disagreement with police officers. See Justin Decl. at ¶ 9. Plaintiffs are particularly vulnerable to reprisals because their access to services requires their presence in the area. At this time, the Court does not find that Defendants' interest in defending against this application for a T.R.O. outweighs the Plaintiffs' justification for maintaining their identifications under seal.
C. Likelihood of Success on the Merits 1. The Right to Loiter, Penal Code § 647(e), and Los Angeles Municipal Code § 41.18(a)
Plaintiffs assert their right to stand on public sidewalks and loiter without having Defendants repeatedly order them to move from place to place. See TRO Mem. at 5. Plaintiffs allege that Defendants are basing their orders on purported violations of California Penal Code ("CPC") § 647(e) and Los Angeles Municipal Code ("LAMC") § 41.18(a). See id. at 6. Since Plaintiffs maintain that both code sections are unconstitutional, they assert that their enforcement violates Plaintiffs' First, Fourth, and Fourteenth Amendment rights. See id.
a. Constitutional Right to Loiter
The Plaintiffs correctly note that the Supreme Court has held that there exists a fundamental freedom to stand and wander on sidewalks. In each instance, the Court has invalidated ordinances penalizing "loitering" on grounds of vagueness and in an attempt to prevent the penalization of such conduct on the whim of a police officer. See Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972). The Supreme Court recently reinforced the general right to "loiter" in City of Chicago v. Morales, stating:
[T]he freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.Ed. 186 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), or the right to move "to whatsoever place one's own inclination may direct. . . ."527 U.S. 41, 53-54 (1999).
Plaintiffs have submitted numerous declarations in which the declarants recount how police officers directed them to "move along" or to "move on" from sidewalks. Justin Decl. at ¶ 3; Earl S. Decl. at ¶¶ 3-4; Richardson Decl. at ¶¶ 3-4; Leslie S. Decl at ¶¶ 3-7; Snyder Decl. at ¶¶ 4, 9; Salas Decl. at ¶ 3. Under their general constitutionally-protected right to loiter, wander, and stand on sidewalks, the Plaintiffs have shown a likelihood of success on the merits of the claim that Defendants are violating this right.
b. Los Angeles Municipal Code § 41.18(a).
Plaintiffs argue that Los Angeles Municipal Code ("LAMC") § 41.18(a) is invalid because it is unconstitutionally vague. See id. at 8. LAMC § 41.18(a) states:
No person shall stand in or upon any street, sidewalk or other public way open for pedestrian travel or otherwise occupy any portion thereof in such a manner as to annoy or molest any pedestrian thereon or so as to obstruct or unreasonably interfere with the free passage of pedestrians.
LAMC § 41.18(a)
In their briefing, Plaintiffs specifically contested the portion of the code section that states "in such a manner as to annoy or molest any pedestrian," as vague pursuant to See Cincinnati. 402 U.S. 611 (1971). The Supreme Court struck down an ordinance in Coates that penalized the act of three or more people standing together on a public sidewalk or street corner and "there conduct themselves in a manner annoying to persons passing by." Id. at 611, fn. 1. The Court held that the language — "in a manner annoying" — of the ordinance is "unconstitutionally vague" and unconstitutionally broad because it authorizes the punishment of constitutionally protected freedom of assembly. Id. at 614. Plaintiffs analogize LAMC § 41.18(a) to the Coates ordinance because, according to Plaintiffs, "it defines the proscribed conduct in words identical to those found constitutionally impermissible in Coates." TRO Mem. at 9. Thus, Plaintiffs request that the Court declare LAMC § 41.18(a) void on its face. See id. at 10.
Plaintiffs' evidence of Defendants' enforcement of LAMC § 41.18(a) is not sufficient to show a strong likelihood of success on the merits on this claim at this time. Plaintiffs' evidence consists of one citation written by Defendants to a homeless individual for violation of § 41.18(d), not (a), for blocking the sidewalk by "sleeping, lying." See Callaghan Decl. at Ex. 3. Section 41.18(d) states that "[n]o person shall sit, lie, or sleep in or upon any street, sidewalk, or other public way." LAMC § 41.18(d). Plaintiffs did not argue in their briefing that this subsection is unconstitutional; they argued that the clause of subsection (a) that prohibits "annoying" other pedestrians is unconstitutional. Nevertheless, Plaintiffs failed to show any evidence that the Defendants are issuing citations to homeless individuals for annoying or molesting pedestrians.
The facts in Coates were described by the Supreme Court as: "The record brought before the reviewing courts tells us no more than that the appellant Coates was a student involved in a demonstration and the other appellants were pickets involved in a labor dispute." 402 U.S. at 612. The facts of Coates did not include, and the Court did not discuss, obstruction of sidewalks or language similar to that found in the second clause of section 41.18(a).
Plaintiffs' evidence shows, and Defendants do not dispute, that the Defendants are issuing citations and/or asking homeless individuals to avoid blocking sidewalks, pursuant to the portion of subsection (a) that states, "so as to obstruct or unreasonably interfere with the free passage of pedestrians." Having reviewed every declaration submitted by Plaintiffs, the Court cannot find one instance where the police have asked a declarant to move off the sidewalk for annoying a pedestrian or simply loitering. In addition, there is no evidence of citations being issued for standing on public streets or loitering.
Plaintiffs appear to be making the argument that the Defendants are unlawfully using the "sidewalk obstruction" clause of section 41.18(a) as an anti-loitering provision. See Pls.' Reply to Opp'n at 12. Plaintiffs claim that their declarations highlight instances where the police directed homeless individuals to stop blocking the sidewalk when they were not actually blocking any sidewalk. See DeBode Decl. at ¶¶ 6; See also, Pls.' Reply to Opp'n at 12. The Court finds this evidence insufficient to show that there is a strong likelihood that Defendants are using section 41.18(a) for purposes other than the prevention of sidewalk obstruction. Plaintiffs state that "nearly all of the tickets issued for loitering or blocking do not support a proper enforcement of the ordinance." Pls.' Reply to Opp'n at 12. Plaintiffs, however, fail to submit these "tickets" as evidence. The Court has no way to evaluate whether the tickets were issued pursuant to section 41.18(a), the conduct for which they were issued, and the circumstances under which they were issued. Similarly, Defendants do not have an opportunity to explain to the Court their view of the circumstances preceding these citations.
Plaintiffs incorrectly place the burden of providing such information on Defendants. They state that there is no evidence before the Court to support the Defendants' defense and highlight the Defendants' failure to provide a declaration on their use of section 41.18(a). See id. The Plaintiffs, not the Defendants, are seeking the TRO and, thus, the burden to present evidence showing a strong likelihood of success on the merits rests with them. In order to defeat the TRO, Defendants are measured against a different, lesser standard than that of Plaintiffs' heavy burden to show a strong likelihood of success on the merits.
Plaintiffs have shown that Defendants are trying to prevent homeless individuals from obstructing sidewalks, pursuant to section 41.18(a), but they have not shown that Defendants are enforcing the exact clause of section 41.18(a) that Plaintiffs argue is vague and unconstitutional. Plaintiffs have succeeded in arguing that the law is on their side, such that the section's prohibition against annoying pedestrians is likely to be unconstitutional, but Plaintiffs have failed to show that Defendants are using the section at all, let alone the portion contested. Thus, Plaintiffs have failed to show a strong likelihood of success on this claim.
Furthermore, Plaintiffs' argument that the "obstruction" clause of section 41.18(a) is also unconstitutional — presented for the first time at oral argument — does not withstand the TRO standard. Plaintiffs attempt to rely on Shuttlesworth v. City of Birmingham for the proposition that an ordinance that penalizes the obstruction of a sidewalk must have a scienter element to be constitutional and section 41.18(a) does not include a scienter element. 382 U.S. 87 (1965). Shuttlesworth does not stand for this proposition.
Shuttlesworth involved an ordinance that "makes it an offense to so stand, loiter or walk upon any street or sidewalk . . . as to obstruct free passage over, on or along said street or sidewalk [and] makes it also . . . unlawful for any person to stand or loiter upon any street or sidewalk . . . after having been requested by any police officer to move on." Id. at 90. The Court was particularly bothered by the second offense in the ordinance: penalization of the refusal to heed police requests to move on. Nevertheless, the Court found the ordinance constitutional on the basis of the limiting construction given it by the Alabama Court of Appeals. See id. at 91. The Alabama Court of Appeal made clear that the offense requires "a showing of the accused's blocking free passage. . . ." Middlebrooks v. City of Birmingham, 42 Ala. App. 525, 527 (Ala.Ct.App. 1964). The Court stated, "[t]he Alabama Court of Appeals has thus authoritatively ruled that s 1142 applies only when a person who stands, loiters, or walks on a street or sidewalk so as to obstruct free passage refuses to obey a request by an officer to move on." Id. (emphasis added). "As so construed," the Court concluded, "we cannot say that the ordinance is unconstitutional though it requires no great feat of imagination to envisage situations in which such an ordinance might be unconstitutionally applied." Id. Thus, the Court allowed the Alabama Court of Appeals to save the challenged ordinance on the basis of the same language found in section 41.18(a), "so as to obstruct or unreasonably interfere with the free passage of pedestrians." LAMC § 41.18(a) (emphasis added). The language of section 41.18(a) also requires a showing of the obstruction of free passage. Therefore, contrary to their argument at the hearing, Plaintiffs have not shown a strong likelihood of proving that the "obstruction" clause of section 41.18(a) is unconstitutional pursuant to Shuttlesworth.
California Penal Code ("CPC") § 647(e) was declared impermissibly vague and unconstitutional by the Supreme Court in Kolender v. Lawson. 461 U.S. 352, 361-62 (1983). Plaintiffs claim that Defendants are relying on this provision to justify ordering Plaintiffs to move from public sidewalks on Skid Row. See TRO Mem. at 7-8. The only evidence submitted in support of this allegation is the declaration of a shelter director in which the declarant states that a police officer directed her to a sign on a building in Skid Row that said "No Loitering" and that cited to a code provision, which she believes was § 647(e). See Callaghan Decl. at ¶ 6.
Plaintiffs' reply includes an article from the Los Angeles Daily Journal that includes a picture of a building in the Skid Row area that bears a sign warning "No Loitering" and citing § 647(e). See Pls.' Reply to Opp'n, Ex. 2 at 18. The article also mentions that the signs are posted by building owners. See id. In order for the Court to grant the extraordinary relief of a TRO, the facts must point to a "strong likelihood of success on the merits." Martin International Olympic Committee, 740 F.2d at 674-75 (emphasis added). Having considered this evidence, the Court does not find it sufficient to show a strong likelihood of success on the merits. At this time, Plaintiffs have not put forth the evidence necessary to effectively connect the § 647(e) signs, or other evidence of the provision's enforcement, to the Defendants.
Defendants agree that the provision is unconstitutional but deny the allegation that they are enforcing the provision. See Defs.' Opp'n at 7. Defendants have submitted a declaration of a Captain of the Los Angeles Police Department. See Maislin Decl. The Captain has conducted a search of citations issued during the year 2000 and has not uncovered any citations issued under section 647(e). See id. at ¶ 9.
Although CPC section 647(e) is undoubtedly unconstitutional and its use impermissible, the Plaintiffs have failed to show that they are likely to prove that Defendants are enforcing the provision. Thus, Plaintiffs have failed to show a likelihood of success on the merits of this claim.
Having found that Plaintiffs have failed to meet their burden for a TRO enjoining Defendants from using LAMC § 41.18(a) or CPC § 647(e) in asking homeless individuals to move along, the Court denies the application as to that portion of the TRO.
2. Stops, Demands For Identification, and Threats of Arrest
Plaintiffs allege that Defendants are stopping homeless individuals without any reasonable suspicion of criminal activity, demanding their identification, and threatening them with arrest. Lee TRO Mem. at 11. The allegation is supported by declarations attesting to random stops, demands for identification, and threats of arrest in order to compel compliance with identification requests. See Troy B. Decl. at ¶ 4; Jo Jo Brown Decl. at ¶ 4; Bunnell Decl. at ¶¶ 3-5.
The Supreme Court has held that such police conduct is unconstitutional. First, in Brown v. Texas, the Supreme Court held that it is unconstitutional to arrest a person for his failure to identify himself after police detained and searched him without a reasonable basis upon which to suspect criminal conduct. 443 U.S. 47, 53 (1979). The Court began its analysis with the proposition that
[T]he Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.
Id. at 51. The Court then noted that the fact that "the neighborhood [was] frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. . . ." Id. at 52. Finally, the Court concluded that:
In the absence of any basis for suspecting appellant of misconduct, the balance between public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference. . . . The Texas statute . . . is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming this purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it.
Second, even when an officer stops an individual on the basis of a reasonable suspicion of criminal activity, the Supreme Court has ruled that such a Terry stop may involve only brief questioning and "the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for arrest." Terry v. Ohio, 392 U.S. 1, 34 (1968); see also Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984) ("[t]he detainee is not obliged to respond. And, unless the detainees' answers provide the officer with probable cause to arrest him, he must then be released."). The Ninth Circuit has ruled accordingly. "[A]rrest of a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment's proscription against unreasonable searches and seizures." Martinelli v. City of Beaumont, 820 F.2d 1491, 1494 (9th Cir. 1987).
Plaintiffs' declarations illustrate the likelihood of their proving that Defendants are stopping homeless individuals and demanding identification without a reasonable basis upon which to suspect criminal activity. See Justin Dec.; Clover T. Decl. There is no evidence in the record to suggest that the conduct is "based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure [was] carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Brown, 443 U.S. at 51. In fact, the Defendants have not expressed any reasonable basis for this conduct, other than their interest in protecting the homeless population from crime and generally decreasing the crime rate in the Skid Row area. See Maislin Decl. at ¶ 3. As the Supreme Court made clear in Brown, the Defendants' interest in fighting crime is outweighed by the Plaintiffs' Fourth Amendment rights. 443 U.S. at 52. Furthermore, had Defendants attempted to show that the alleged stops were lawful Terry stops, Defendants would still be prohibited from demanding identification and answers to their questions under threat of arrest. Accordingly, Plaintiffs have succeeded in showing a likelihood of success on the merits on this claim.
3. Search and Seizure of Property
Plaintiffs allege that Defendants are searching, seizing, and, at times, destroying the Plaintiffs' property. Defendants' reply to this accusation is that "Plaintiffs have not shown that personal property was taken and destroyed in violation of the law or without consent." Defs.' Opp'n at 12.
Plaintiffs have submitted declarations confirming that Plaintiffs' property has been searched. See Troy B. Decl. at ¶ 8; Jo Jo Brown Decl. at ¶ 4. The Plaintiffs claim the searches were unreasonable because the Defendants lacked the probable cause necessary under the Fourth Amendment.
Plaintiffs have a legitimate expectation of privacy in their property and, thus, the property is protected by the Fourth Amendment. See United States v. Gooch, 6 F.3d 673, 677 (9th Cir. 1993) ("We hold that Gooch had a reasonable expectation of privacy such that the warrantless search of his tent violated the Fourth Amendment."). Plaintiffs' expectations of privacy must be balanced against the Defendants' interest in a search and seizure. See id. The Defendants have not proposed any reason, legitimate or otherwise, for the searches and seizures alleged.
The Defendants' opposition claims that Defendants are unable to defend themselves against declarations by anonymous persons. See Defs.' Opp'n at 13. Defendants also argue that the declarations do not allege that the property was actually claimed by someone or was in a condition that would lead one to believe it was someone's personal property.
Plaintiffs claim that Defendants are seizing and destroying Plaintiffs' property when left momentarily. Plaintiffs have submitted declarations that describe how and when their property was seized. See DeBode Decl. at ¶ 13; Phillip Decl. W. at ¶ 9. The Declaration of Todd P. alleges that the declarant informed the Defendants that the property was not abandoned but he was not given the opportunity to claim and remove the property. See Todd P. Decl. at ¶ 3.
Having reviewed the declarations, the Court does not agree with Defendants' defenses. First, Defendants do not deny the incidents described in the declarations and do not purport to have investigated them. The Court does not find the anonymity of the declarants to be a sufficient basis for not responding to the accusations. Second, as noted above, the declaration of Todd P. is clear; the declarant claimed ownership and was purportedly deprived of an opportunity to salvage the property. See Todd P. Decl. at ¶ 3. Also, considering the relatively large population of homeless individuals in the Skid Row area, their known practice of leaving possessions momentarily, and the value they place on the few possessions they have, the declarations are not defective for failing to allege the condition of their property or that Plaintiffs have advised City workers of their ownership.
As Plaintiffs point out, Defendants should store property they believe abandoned. See TRO Mem. at 19, fn. 14. California Civil Code § 2080.2 provides that lost or stolen property is to be stored for a minimum of 90 days. Cal.Civ.Code. § 2080.2.
In Pottinger v. City of Miami, the City was seizing homeless persons' personal belongings and forcing them to abandon their property at arrest sites. 810 F. Supp. 1551, 1573 (S.D.Fla. 1992). The homeless individuals brought a class action and the Court held that property of homeless individuals is protected by the Fourth Amendment. "In sum, the property of the homeless individuals is due no less protection under the fourth amendment than that of the rest of society," wrote the Court. Id. at 1573. The Court also ruled that "the City's interest in having clean parks is outweighed by the more immediate interest of the plaintiffs in not having their personal belongings destroyed." Id.
The Defendants in the instant case have not put forth any justification for or interest in seizing and destroying Plaintiffs' property. The Court agrees with the analysis and conclusion of the Southern District of Florida in Pottinger Plaintiffs' property is protected by the Fourth Amendment and Plaintiffs have shown a likelihood of succeeding on the merits of this claim.
D. Irreparable Harm
The Ninth Circuit has held that no further showing of irreparable injury is required when a violation of a constitutional right has been proven. See Associated General Contractors of California, 950 F.2d at 1410. As discussed above, Plaintiffs have shown the likelihood of proving past constitutional violations and the potential for continuing violations. Money damages would be inadequate to relieve Plaintiffs from the harm caused by such violations. Thus, the Court finds that Plaintiffs have succeeding in showing that they will suffer irreparable injury and have no other adequate remedy at law if injunctive relief is not granted.
E. Balance of Equities and Public Interest
Before issuing a preliminary injunction, the Court must identify the harm which the injunction might cause the Defendants and weigh it against the injury threatening the Plaintiffs. See Armstrong v. Mazurek, 94 F.3d 566, 568 (9th Cir. 1996)
Here, Defendants may be slowed in their efforts to keep the City, and especially the downtown area, clean and safe. This injunction may disturb their new initiative to revitalize and uplift communities, to improve the streets and sidewalks, and to diminish the crime rate. See Defs.' Opp'n at 2 ("The Los Angeles Police Department has stepped up enforcement in the entire Central Area in an effort to bring down crime.") Plaintiffs, however, risk a greater harm if the injunction is not granted: the violation of their First, Fourth, and Fourteenth Amendment rights. The Court in Pottinger eloquently expressed the dangers homeless individuals face in analogous situations:
The court recognizes the City's interest in keeping its parks and public areas clear of unsightly and unsafe items. However, the City's interest in having clean parks is outweighed by the more immediate interest of the plaintiffs in not having their personal belongings destroyed. As this court previously found, the loss of such items such as clothes and medicine threatens the already precarious existence of homeless individuals by posing health and safety hazards.
Pottinger, 810 F. Supp. at 1573. Similarly, Defendants' actions are likely to displace homeless individuals and threaten their ability to access charities for food, shelter, and assistance in Skid Row. As the Pottinger Court stated, Defendants' actions are likely to "threaten the already precarious existence of homeless individuals by posing health and safety hazards." Plaintiffs will suffer a great irreparable harm in comparison if the injunction is not granted here.
After carefully weighing the injuries to all parties, the Court finds that the balance of hardships tips in favor of the Plaintiffs.
F. TRO Language
The Federal Rules of Civil Procedure require that "[e]very order granting an injunction . . . shall be specific in terms; shall describe in reasonable detail . . . the act or acts sought to be restrained. . . ." Fed.R.Civ.P. 65(d). Thus, the Court is to consider the clarity of the terms of the injunction when determining its propriety. The purpose of the rule is "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" because "basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed." Schmidt v. Lessard, 414 U.S. 473, 476 (1974).
Defendants argue that the terms of the injunction proposed by Plaintiffs are not sufficiently clear. In particular, Defendants rely on Joyce v. San Francisco for its holding that the term "homeless individual" is vague because it requires an "individualized determination." Defs.' Opp'n at 8; Joyce v. San Francisco, 846 F. Supp. 843 (N.D.Cal. 1994). In Joyce the Plaintiffs, on behalf of a class of homeless individuals, sought a preliminary injunction to prevent implementation of a program of enforcement of state and municipal laws which were violated by the City's homeless residents. See Joyce, 846 F. Supp. at 845-46. The Court denied the injunction on the ground of an incurable lack of clarity. See id. at 851. The Court found the term "homeless individuals" particularly troublesome, stating, "[a]s 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." Id. The Court determined that this "individualized determination" would frustrate or render impossible the enforcement of the injunction. See id. at 851-52.
The Court disagrees with the analysis and holding of Joyce. A logical extension of the holding in Joyce would mean that homeless individuals would be permanently barred from obtaining an injunction because their identification would always pose incurable obstacles to granting the relief sought, regardless of the grave nature of the alleged acts against them. Although Defendants urge the Court to follow Joyce, the Court refuses to adopt that holding here. Ambiguities do not invalidate an injunction unless the terms are so vague as to provide "no reasonable specific meaning." Portland Feminist Women's Health Center v. Advocates for Life, Inc., 859 F.2d 681, 685 (9th Cir. 1988). The Court finds "homeless" to be sufficiently clear in the instant case so as "to prevent uncertainty and confusion on the part of those faced with injunctive orders." Schmidt, 414 U.S. at 476.
At the hearing, Defendants requested that the TRO language not restrain them from "consensual encounters," as established in People v. Bouser. 26 Cal.App.4th 1280 (Cal.Ct.App. 1994). In Bouser, the Court found that the encounter between Defendant and a police officer was consensual because the officer did not draw his weapon, make threatening gestures, or ask questions related to a specific criminal activity. See id. at 1287. Thus, the Court ruled that it was not a seizure under the Fourth Amendment. See id. at 1287-88. The Bouser Court followed the standard established by the Supreme Court, "in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Id. at 1283 quoting Florida v. Bostick, 501 U.S. 429, 439 (1991). Thus, the Court considered the circumstances surrounding the encounter and made a decision specific to the facts of that case. Based on the incomplete record inherent in an application for a TRO, the Court cannot make a similar finding at this time.
G. Rationale of Preliminary Injunctive ReliefThe Defendants also argue that, pursuant to Joyce, the TRO sought by Plaintiffs is inconsistent with the underlying rationale of preliminary injunctive relief. See Defs.' Opp'n at:
5. In denying injunctive relief, the Joyce Court stated,
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 the enforcement of various laws at issue here, whereas the City's prerogative to lawfully enforce the challenged provisions has not been previously disturbed.
Joyce, 846 F. Supp. at 852.
The Court does not agree that this reasoning applies to the instant case. The instant request for an injunction does not seek to immunize Plaintiffs from the Defendants' lawful enforcement of constitutional laws, but rather seeks to stop recent civil rights violations. The Joyce Court premised its reasoning on its finding that the injunction would "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" and injunctions are not meant to require affirmative conduct. Id. at 852-53. As discussed above, the Court does not adopt the premise that the instant injunction would require affirmative conduct by the Defendants. Accordingly, the Court does not find Joyce applicable. Furthermore, the Court agrees with Plaintiffs' characterization of Defendants' argument that "adopting defendants' argument would mean that, whenever a government entity violates constitutional rights, no immediate relief may issue to prevent further violations pending a disposition on a fully developed record." Pls.' Reply to Opp'n at 14. Considering the nature of the alleged constitutional violations, the instant injunction would not be inconsistent with the underlying rationale of preliminary injunctive relief.
Petitioner's ex parte application for a temporary restraining order is GRANTED.
IT IS SO ORDERED.
TEMPORARY RESTRAINING ORDER AND/OR ORDER TO SHOW CAUSE RE: ISSUANCE OF A PRELIMINARY INJUNCTION TO DEFENDANTS AND THEIR COUNSEL OF RECORD:
After considering the Complaint, Plaintiffs' Ex Parte Application for a Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction, the accompanying Memorandum of Points and Authorities. Exhibits and Declarations, the Court finds that there is a substantial likelihood that Plaintiffs will prevail on the merits of their claims, will suffer irreparable harm, and that the balance of equities tips in their favor.
IT IS ORDERED THAT, pending hearing and determination of the Order to Show Cause Re: Issuance of Preliminary Injunction, the Defendants and their agents, servants, employees and successors are hereby restrained and enjoined from:
1. Stopping the homeless without reasonable suspicion while they are simply standing or walking on public streets and sidewalks, and not obstructing such streets or sidewalks;
2. Demanding production of identification on threat of arrest, and arresting individuals if no identification is produced;
3. Searching the possessions of those homeless without reasonable suspicion;
4. Ordering the homeless to move along from where they are standing unless they are obstructing or blocking the free passage of pedestrians;
5. Confiscating the personal property of the homeless when it has not been abandoned and destroying it without notice; and
6. Issuing citations to the homeless for loitering.
At the hearing, Defendants waived their right to a hearing on the preliminary injunction within 10 days after the entry of this TRO, pursuant to Local Rule 7.17 of the Central District of California. The Court ORDERS a telephone status conference on December 12, 2000, at 5:30 p.m. in order to set future dates for a hearing.
Pending a hearing on the merits, Plaintiffs are exempted from the requirement to post a bond as this case poses no risk of pecuniary injury to Defendants from being restrained and enjoined from the above unconstitutional conduct.