JENSEN, District Judge.

Plaintiffs to this action seek preliminary injunctive relief on behalf of themselves and a class of homeless individuals alleged to be adversely affected by the City and County of San Francisco's (the "City's") "Matrix Program." While encompassing a wide range of services to the City's homeless, the Program simultaneously contemplates a rigorous law enforcement component aimed at those violations of state and municipal law which arguably are committed predominantly by the



Plaintiffs endorse much of the Program, challenging it not in its entirety, but only insofar as it specifically penalizes certain "life sustaining activities" engaged in by the homeless. Plaintiffs' Proposed Order Granting Mot. for Prel.Inj. at 2. On February 23, 1994, counsel appeared before the Court at a hearing of plaintiffs' motion for preliminary injunctive relief. Appearing for plaintiffs were Bradley S. Phillips, Stephen M. Kristovich, Jeffrey L. Bleich and Martin D. Bern of Munger, Tolles & Olson, and Marcia Rosen and Diane T. Chin of the Lawyer's Committee for Civil Rights of the San Francisco Bay Area. The City was represented by Linda M. Ross and Dennis Aftergut of the San Francisco City Attorneys' Office, and Donald J. Putterman of Farella, Braun & Martel. Having considered the arguments of counsel and the papers submitted, the Court hereby denies the requested injunction.

I. Factual Background and Procedural History
A. Law Enforcement Measures as Part of the Matrix Program

Institution of the Matrix Program followed the issuance of a report in April of 1992 by the San Francisco Mayor's Office of Economic Planning and Development, which attributed to homelessness a $173 million drain on sales in the City. Plaintiffs' Mot. at 8 & n. 6. In August of 1993, the City announced commencement of the Matrix Program, and the San Francisco Police Department began stringently enforcing a number of criminal laws. Plaintiffs' Mot. at 7.

The City describes the Program as "initiated to address citizen complaints about a broad range of offenses occurring on the streets and in parks and neighborhoods.... [The Matrix Program is] a directed effort to end street crimes of all kinds." City's Opp'n at 6. The program addresses offenses including public drinking and inebriation, obstruction of sidewalks, lodging, camping or sleeping in public parks, littering, public urination and defecation, aggressive panhandling, dumping of refuse, graffiti, vandalism, street prostitution, and street sales of narcotics, among others. Id.

An illustration of the enforcement efforts characteristic of the Program can be found in a four-page intra-departmental memorandum addressed to the Police Department's Southern Station Personnel. That memorandum, dated August 10, 1993 and signed by acting Police Captain Barry Johnson, defines "Quality of Life" violations and establishes a concomitant enforcement policy. See Plaintiffs' Mot. at 8; Rosen Decl., Exh. 7. Condemning a "type of behavior [which] tends to make San Francisco a less desirable place in which to live, work or visit", the memorandum directs the vigorous enforcement of eighteen specified code sections, including prohibitions against trespassing, public inebriation, urinating or defecating in public, removal and possession of shopping carts, solicitation on or near a highway, erection of tents or structures in parks, obstruction and aggressive panhandling. Rosen Decl., Exh. 7 at 2.

Pursuant to the memorandum, All station personnel shall, when not otherwise engaged, pay special attention and enforce observed "Quality of Life" violations.... One Officer ... shall, daily, be assigned specifically to enforce all "Quality of Life" violations.... Officers are to stop and advise all individuals pushing shopping carts that said carts are the property of local stores (Grocery/Drug etc.) and that these carts are never sold: Therefore the carts will, in the near future, be confiscated for return to their rightful owner or otherwise disposed of by the police.... Note: This phase of the "Quality of Life" operation will be implemented when appropriate containers, for the contents of the shopping carts, are available.... Id. at 2-3 (emphasis in original).

In a Police Department Bulletin entitled "Update on Matrix Quality of Life Program," dated September 17, 1993, Deputy Chief Thomas Petrini paraphrased General Order D-6, the source of the intended non-discriminatory policy of the Program's enforcement measures:


All persons have the right to use the public streets and places so long as they are not engaged in specific criminal activity. Factors such as race, sex, sexual preference, age, dress, unusual or disheveled or impoverished appearance do not alone justify enforcement action. Nor can generalized complaints by residents or merchants or others justify detention of any person absent such individualized suspicion. Petrini Decl., Exh. A at 1-2. The memorandum stated that the "[r]ights of the homeless must be preserved", and included as an attachment a Department Bulletin on "Rights of the Homeless", which stated 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.... Petrini Decl. at 2.

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. When, in mid-August of 1993, concerns were raised by interests outside the Department about proper enforcement of the ordinances prohibiting lodging and sleeping in public parks, the Department issued a clarification of its policies. See id.; Petrini Decl. at 3, Exh. B. Again, in mid-November of 1993, inquiries were made of the Police Department concerning the confiscation of grocery store shopping carts. See City's Opp'n at 8; Petrini Decl. at 5. Police Chief Anthony Ribera responded with the issuance of a Department Bulletin establishing topical guidelines. See Petrini Decl. at Exh. D.

Since implementation of the Matrix Program, the City estimates that "[a]ccording to unverified statistics kept by the Department", City's Opp'n at 6, approximately sixty percent of enforcement actions have involved public inebriation and public drinking, and that other "significant categories" include felony arrests for narcotics and other offenses, and arrests for street sales without a permit. Id. at 7. Together, enforcement actions concerning camping in the park ..., sleeping in the park during prohibited hours ..., and lodging ... have constituted only approximately 10% of the total. City's Opp'n at 7.

Plaintiffs, pointing to the discretion inherent in policing the law enforcement measures of the Matrix Program, allege certain actions taken by police to be "calculated to punish the homeless." Plaintiffs' Mot. at 9. As a general practice, the Program is depicted by plaintiffs as "target[ing] hundreds of homeless persons who are guilty of nothing more than sitting on a park bench or on the ground with their possessions, or lying or sleeping on the ground covered by or on top of a blanket or cardboard carton." Id. at 20. On one specific occasion, according to plaintiffs, police "cited and detained more than a dozen homeless people, and confiscated and destroyed their possessions, leaving them without medication, blankets or belongings to cope with the winter cold." Plaintiffs' Mot. at 9; T. Smith Decl. at 5-10; Homeless Decls. at 13, 56, 96.

B. Non-Punitive Aspects of the Matrix Program

The City contests the depiction of Matrix as a singularly focused, punitive effort designed to move "an untidy problem out of sight and out of mind." City's Opp'n at 1. Instead, the City characterizes the Matrix Program as "an interdepartmental effort ... [utilizing] social workers and health workers ... [and] offering shelter, medical care, information about services and general assistance. Many of those on the street refuse those services, as is their right; but Matrix makes the choice available." City's Opp'n at 1.

The operation of the Matrix Program involves the Department of Social Services, the Department of Public Health, the Police Department and the Department of Public Works. City's Opp'n at 2-3. The City claims it has attempted to conjoin its law enforcement efforts with referrals to social service agencies. City's Opp'n at 8. One specific element of the Program seeks to


familiarize the homeless with those services and programs available to them. City's Opp'n at 5. This is accomplished by the dispersal of Department of Social Service social workers throughout the City in order to contact homeless persons. Id. Another element of the Matrix Program--the Night Shelter Referral Program-- attempts to provide temporary housing to those not participating in the longer- term housing program. This effort was begun in December of 1993, and is designed to offer the option of shelter accommodations to those homeless individuals in violation of code sections pertaining to lodging, camping in public parks and sleeping in parks during prohibited hours. Id. at 5-6. The Night Referral Program operates by referring women to a women's shelter at St. Paulus, and by offering to men transportation and a referral slip to the Salvation Army Lifeboat Lodge; both shelters are located within the San Francisco area.

By prior arrangement, the Lodge agreed to set aside a certain number of beds for those referred individuals. Id. at 6. The City contends that, of 3,820 referral slips offered to men, only 1,866 were taken, and only 678 actually utilized to obtain a shelter bed reserved for Police referrals. By the City's reckoning, "[t]hese statistics suggest that some homeless men may prefer to sleep outdoors rather than in a shelter." Id.

C. The City's Efforts in Dealing With Homelessness

The City emphasizes its history as one of the largest public providers of assistance to the homeless in the State, asserting that "individuals on general assistance in San Francisco are eligible for larger monthly grants than are available almost anywhere else in California." City's Opp'n at 1. Homeless persons within the City are entitled to a maximum general assistance of $345 per month--an amount exceeding the grant provided by any of the surrounding counties. Id. at 4. General assistance recipients are also eligible for up to $109 per month in food stamps. Id. According to the City, some 15,000 City residents are on general assistance, of whom 3,000 claim to be homeless. Id. at 4 n. 1.

The City's Department of Social Services encourages participation in a Modified Payments Program offered by the Tenderloin Housing Clinic. Id. at 4. Through this program, a recipient's general assistance check is paid to the Clinic, which in turn pays the recipient's rent and remits the balance to the recipient. The Clinic then negotiates with landlords of residential hotels to accept general assistance recipients at rents not exceeding $280 per month. Id. at 5.

By its own estimate, the City will spend $46.4 million for services to the homeless for 1993-94. Id. at 1, 4. Of that amount, over $8 million is specifically earmarked to provide housing, and is spent primarily on emergency shelter beds for adults, families, battered women and youths. Id. at 4. An additional $12 million in general assistance grants is provided to those describing themselves as homeless, and free health care is provided by the City to the homeless at a cost of approximately $3 million. Id.

D. Enforcement and Effects of the Matrix Program

The City contends that "few of the Matrix-related offenses involve arrest." City's Opp'n at 7. Those persons found publicly inebriated, according to the City, are taken to the City's detoxification center or district stations until sober. Id. "Most of the other violations result in an admonishment or a citation." Id.

Since its implementation, the Matrix Program has resulted in the issuance of over 3,000 citations to homeless persons. Plaintiffs' Mot. at 8. Plaintiffs contend these citations have resulted in a cost to the City of over $500,000. Id. Citations issued for encampment and sleeping infractions are in the amount of $76, according to Alissa Riker, Director of the Supervised Citation Release Program ("SCRP") with the Center for Juvenile and Criminal Justice. See Riker Decl. at 1. Those cited must pay or contest the citation within twenty-one days; failure to do so results in a $180 warrant for the individual's arrest, which is issued approximately two months after citation of the infraction. Id. at


3. Upon the accrual of $1,000 in warrants, which equates roughly to the receipt of six citations, an individual becomes ineligible for citation release and may be placed in custody. Id. The typical practice, however, is that those arrested for Matrix-related offenses are released on their own recognizance or with "credit for time served" on the day following arrest. [1] Plaintiffs characterize the system as one in which "homeless people are cycled through the criminal justice system and released to continue their lives in the same manner, except now doing so as 'criminals'." Plaintiffs' Mot. at 9.

According to plaintiffs, the City has conceded the inadequacy of shelter for its homeless. Plaintiffs' Mot. at 9. Plaintiffs have cited as supporting evidence an application made to the State Department of Housing and Community Development in which the City's Director of Homeless Services described an "emergency situation" created by the closure of the Transbay Terminal, which had served as "the largest de facto shelter for homeless individuals." Plaintiffs' Mot. at 9. Plaintiffs have proffered estimates as to the number of homeless individuals unable to find nightly housing. Plaintiffs cite to a survey conducted by Independent Housing Services, a non-profit agency which among its aims seeks the improvement of access to affordable housing for the homeless. See Plaintiffs' Mot. at 10; Park Decl. at 2. Begun in July of 1990 and conducted most recently in August of 1993, Park Decl. at 4, 6, the survey tracks the number of homeless individuals turned away each night from shelters in the San Francisco area due to a lack of available bed space. Based on the data of that survey, plaintiffs contend that from January to July of 1993, an average of 500 homeless persons was turned away nightly from homeless shelters. Plaintiffs' Mot. at 10. That number, according to plaintiffs, increased to 600 upon the closing of the Transbay Terminal. Plaintiffs' Mot. at 10. E. Plaintiffs to the Present Action The named plaintiffs to this action have been exposed differently to the enforcement of the Matrix Program and to the rigors of a life of homelessness. Plaintiffs assert they are "homeless" individuals since they lack a "fixed, regular, and adequate nighttime residence." [2] Plaintiffs' Mot. at 2. Conversely, the City contests the extent to which each plaintiff is actually homeless, citing the following evidence:

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.]


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).



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."


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

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