A line of reasoning extending unconstitutional status
penalizations to acts of the homeless has been adopted by at
least two federal district courts and, most recently, a
California court of appeal. In Pottinger v. Miami, 810 F.Supp.
1551, 1561-65 (S.D.Fla.1992) (appeal pending), a district court
extended the protections of the Eighth Amendment to limit the
criminal prohibition of "innocent conduct" derivative of a
certified class' status as homeless. In Church v. City of
Huntsville, No. 93-C-1239-S, slip op. at 2
[4 Justice White voted to affirm the conviction on the basis
that the appellant had failed to prove he had been in public
involuntarily. See 392 U.S. at 553-55, 88 S.Ct. at 2165. ]
855
(N.D.Ala. Sept.
23, 1993), a district court preliminarily enjoined a city from
"harassing, intimidating, detaining or arresting members of the
defined class, solely because of their status as homeless
persons, for walking, talking, sleeping, or gathering in parks or
other public places in the City of Huntsville." (emphasis in
original). [5] Most recently, in Tobe v. City of Santa Ana, 22
Cal.App.4th 228, 27 Cal.Rptr.2d 386 (1994), a California court of
appeal held, inter alia, that enforcement of a "camping
ordinance" offended the protections of the Eighth Amendment.
The City emphasizes that the Matrix Program is far more
comprehensive than those efforts challenged in the above cases,
particularly with respect to Matrix's enforcement of numerous
prohibitions against acts other than "innocent ones" such as
sleeping and eating in public. [6] See City's Opp'n at 1. In
any event, this distinction is of little relevance, since
plaintiffs seek to enjoin only police activity prohibiting
"life-sustaining activities such as sleeping, sitting or
remaining in a public place...." See Plaintiffs' Proposed Order
at 2.
c. Viability of Depicting Homelessness as Status
In moving the Court to implement the proposed injunctive relief,
plaintiffs are unable to demonstrate a substantial likelihood of
success on the merits of the underlying suit. The ultimate
resolution of this lawsuit will require acceptance or rejection
of the reasoning in those cases granting constitutional
protection to acts derivative of a "status" of homelessness. The
conclusion that such acts are protected appears, for various
reasons, sufficiently problematic to discourage this Court from
following at this time in its jurisprudential path.
Depicting homelessness as "status" is by no means self-evident,
as the appellate court in Tobe suggests, [7] and as the court
in Huntsville presumes. [8] That depiction, made upon serious
analysis only in Pottinger, is a dubious extension of Robinson
and Powell, and of questionable merit in light of concerns
implicating federalism and the proper role of the Court in such
adjudications.
Insofar as Pottinger attempts to reason from applicable Supreme
Court precedent that homelessness equals a "status," and that
acts derivative of such status are constitutionally protected,
the reasoning of that court cannot be said at this stage of the
litigation to be sufficiently persuasive to indicate a likely
possibility of success on the merits of the underlying suit.
Pottinger explained that, [while a]n initial reading of Powell
suggests that all conduct is outside the rule of Robinson ...
[the] plurality was not confronted with a critical distinguishing
factor that is unique to the plight of the homeless plaintiffs in
this case: that they have no realistic choice but to live in
public places. Id. at 1563. Finding as a matter of fact that
being homeless is only "rarely" a choice, id., and that
alternative shelter was unavailable, id. at 1564, the court held
that:
[5 In preliminary findings, the court found the "unannounced,
but nonetheless official, policy of the City of Huntsville to
isolate homeless citizens from the established residential areas
... [and] 'show these folks where the city limits are....,' i.e.,
to remove this class of citizens from Huntsville." Huntsville,
Prelim. Fdgs. at ¶ 5 (N.D.Ala. Sept. 23, 1993).]
[6 For example, the programs operated by Miami and San
Francisco are not, as plaintiffs suggest, "virtually identical."
In Pottinger, the court found the Eighth Amendment violated when
the City punished "sleeping, eating and other innocent conduct."
Id. at 1565. The court emphasized that "plaintiffs [had] not
argued that the City should not be able to arrest them for public
drunkenness or any type of conduct that might be harmful to
themselves or to others." Id. Similarly, the court in Tobe was
exclusively concerned with a "camping ordinance" limiting the
permissible uses of public streets and areas. In contrast to
these measures, the Matrix Program is addressed in large part at
prohibiting such conduct which is unmistakably "harmful" to
plaintiffs or others. See supra at 846-47.]
[7 In Tobe, the court engaged in an abbreviated policy analysis
yielding the conclusion that homelessness is a status; the
court's citations to Robinson and Powell were no more than
ornamental.]
[8 Neither the preliminary injunction nor the preliminary
findings issued by the court in Huntsville cites to a single case
or engages in any analysis with respect to the legal issues
presented.]
856
plaintiffs have no choice but to conduct involuntary,
life-sustaining activities in public places. The harmless
conduct for which they are arrested is inseparable from their
involuntary condition of being homeless. Id. The Court concluded
that the City of Miami was liable to a class of homeless
plaintiffs for "effectively punish[ing] them for something for
which they may not be convicted under the eighth amendment." Id.
at 1565.
This Court is unable to conclude at this time that the extension
of the Eighth Amendment to the "acts" at issue here is warranted
by governing authorities. Plaintiffs argue that the failure of
the City to provide sufficient housing compels the conclusion
that homelessness on the streets of San Francisco is cognizable
as a status. This argument is unavailing at least for the
fundamental reason that status cannot be defined as a function of
the discretionary acts of others. [9]
On no occasion, moreover, has the Supreme Court invoked the
Eighth Amendment in order to protect acts derivative of a
person's status. Robinson prohibited penalizing a person based
on their status as having been addicted, whereas the plurality in
Powell approved a state's prosecution of the act of appearing
intoxicated in public. What justified invocation of the Eighth
Amendment in one case and not the other was not the difference
between drug and alcohol addiction; such distinction is without
analytical difference. Rather, the different results were
reached because of the distinct targets of the challenged
laws--one punished a status, the other an act. Justice Black,
concurring in the plurality opinion in Powell, explained, [In
Robinson, we] explicitly limited our holding to the situation
where no conduct of any kind is involved.... [A]ny attempt to
explain Robinson as based solely on the lack of voluntariness
encounters a number of logical difficulties.... 392 U.S. at 542,
88 S.Ct. at 2159 (Black, J., concurring).
Plaintiffs' argument that Powell would have been differently
decided had the defendant been homeless does not reflect the
holding of the case and is sheer speculation. While language in
Justice White's concurrence can be argued to support that
contention, such language was dicta. One can only hypothesize
that Justice White would actually have cast his vote differently
had the defendant been homeless. Nothing underscores this point
more vividly than the fact that Justice White was one of two
vigorous dissenters in Robinson.
[9] As an analytical matter, more fundamentally, homelessness is
not readily classified as a "status." Rather, as expressed for
the plurality in Powell by Justice Marshall, there is a
"substantial definitional distinction between a 'status' ... and
a 'condition,'...." 392 U.S. at 533, 88 S.Ct. at 2155. While
the concept of status might elude perfect definition, certain
factors assist in its determination, such as the involuntariness
of the acquisition of that quality (including the presence or not
of that characteristic at birth), see Robinson, 370 U.S. at
665-69 & n. 9, 82 S.Ct. at 1420-21 & n. 9, and the degree to
which an individual has control over that characteristic.
Examples of such "status" characteristics might include age,
race, gender, national origin and illness. The reasoning of the
Court in including drug addiction as status involved the analogy
of drug addiction to a disease or an illness which might be
contracted involuntarily. See id. While homelessness can be
thrust upon an unwitting recipient, and while a person may be
largely incapable of changing that condition, the distinction
between the ability to eliminate one's drug addiction as compared
to one's homelessness is a distinction in kind as much as in
degree. To argue that homelessness is a status and not a
condition, moreover, is to deny the efficacy of acts of social
intervention to change the condition of those currently homeless.
[9 As the Supreme Court has declined to find any
"constitutional guarantee of access to dwellings of a particular
quality," Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874,
31 L.Ed.2d 36 (1972), the housing provided to the City's homeless
is a matter for the discretion of the City and State.]
857
Opinion Continued
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