JOYCE v. CITY & COUNTY OF SAN FRANCISCO

Similarly, the challenged Penal Code section cannot be concluded by the Court at this time to be unconstitutionally vague. Read in conjunction with supplemental memoranda, the challenged measures appear, as a constitutional matter, sufficiently specific. Police officers were specifically cautioned in a September 17, 1993 memorandum that "the mere lying or sleeping on or in a bedroll of and in itself does not constitute a violation." See Petrini Decl., Exh. A. While plaintiffs argue the additional memoranda were circulated too late to save the enforcement measures from vagueness, see Reply at 23, and also that they do not eliminate the confusion, it is far from clear that plaintiffs could meet the requisite showing that the measure was impermissibly vague in all its applications. Accordingly, even if the limits of permissible enforcement of these sections have not been perfectly elucidated, preliminary injunctive relief is inappropriate at this stage of the litigation.

E. The Reasonableness of Police Seizures of Property

Plaintiffs contend that under the auspices of "cleaning up the streets," the City has been responsible for the confiscation and destruction of the private property of the homeless in violation of the Fourth Amendment to the United States Constitution, as well as the California Constitution and California Civil Code section 2080. Plaintiffs' Mot. at 24.

21. Under the Fourth Amendment prohibition of "unreasonable searches and seizures," U.S. Const. amend IV, a seizure has been found to occur whenever "there is some meaningful interference with an individual's possessory interests in that property." Soldal v. Cook County, --- U.S. ----, ----, 113 S.Ct. 538, 544, 121 L.Ed.2d 450 (1992). A seizure is deemed unreasonable if the government's legitimate interest in the search or seizure does not outweigh the individual's interest in the property seized. Under California law, Any person who finds and takes possession of any ... personal property ... shall, within a reasonable time, inform the owner, if known, and make restitution without compensation, except a reasonable charge for saving and taking care of the property. Cal.Civ.Code § 2080. Alternatively, a city "may adopt reasonable regulations for the care, restitution, sale, or destruction of unclaimed property in its possession." Cal.Civ.Code § 2080.6.

Police Department General Order No. Q-1, presumably enacted pursuant to Cal.Civ.Code § 2080.6, provides a detailed procedure for the identification and safekeeping of property which comes into the possession of the police. That property which is believed to be abandoned must be "returned to its rightful owner at the district station if the property cannot be connected to a crime and is otherwise legal to possess." "General Order Q-1," Rosen Decl., Exh 10 at 5.

Plaintiffs argue the City has failed to comply with the requirements of Civil Code section 2080 or with General Order Q-1, and that the resulting procedures utilized by police have effected a constitutional violation. In conjunction with their argument, plaintiffs cite numerous supporting declarations. See, e.g. T. Smith Decl. (all personal belongings including medicine confiscated and destroyed).

22. Initially, the City defends on the basis that there is no reasonable expectation of privacy when property is left unattended in public places, citing United States v. Wider, 951 F.2d 1283 (D.C.Cir.1991) (satchel left on public steps). As plaintiffs correctly argue, however, this is true only where the property is intentionally abandoned. See id. (crack cocaine intentionally abandoned by suspect fleeing from police).

23. Fourth Amendment protections therefore attach to unattended property, and a constitutional analysis is appropriate in the present case. The City argues that, while the law protects unabandoned property left in public places, see Cal.Civ.Code § 1808; San Francisco Police Code § 1400, neither state nor local laws protect abandoned property. City's Opp'n at 27 (citing Cal.Civ.Code § 2080.7); San Francisco Police Code § 1408. The City argues the distinction between abandoned and unabandoned property involves a "difficult determination", and that

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in order to insure that unabandoned property is stored and held for possible return to its owner, "the City recently has promulgated policies to address this issue." City's Opp'n at 27. Specifically, the City cites the practice of the Department of Public Works which directs that property of value found in encampment or other public places is to be bagged, tagged and held at a dispatch office for its owner within ninety days. Id. Given this new procedure, the constitutionality of which is not challenged by plaintiffs, it is clear that the Fourth Amendment argument cannot constitute the basis for injunctive relief at this time. Plaintiffs argue only that the procedure was begun belatedly--on January 3, 1994--and seemed "timed to anticipate legal action." Replay at 30 & n. 25. Plaintiffs' unsubstantiated assertion that the injunction should be granted to prevent a "likelihood of recurrence," id. at 30, is speculative. Such a likelihood is sufficiently attenuated that a grant of injunctive relief, though perhaps appropriate before the new procedure was implemented, should not issue at this time. See City of Los Angeles v. Lyons, 461 U.S. 95, 110-12, 103 S.Ct. 1660, 1670, 75 L.Ed.2d 675 (1983) (equitable relief unavailable where no showing of any real or immediate threat that plaintiff will be wronged again).

CONCLUSION

In common with many communities across the country, the City is faced with a homeless population of tragic dimension. Today, plaintiffs have brought that societal problem before the Court, seeking a legal judgment on the efforts adopted by the City in response to this problem.

The role of the Court is limited structurally by the fact that it may exercise only judicial power, and technically by the fact that plaintiffs seek extraordinary pre-trial relief. The Court does not find that plaintiffs have made a showing at this time that constitutional barriers exist which preclude that effort. Accordingly, the Court's judgment at this stage of the litigation is to permit the City to continue enforcing those aspects of the Matrix Program now challenged by plaintiffs.

The Court therefore concludes that the injunction sought, both as it stands now and as plaintiffs have proposed to modify it, is not sufficiently specific to be enforceable. Further, upon conducting the required balance of harm and merit, the Court finds that plaintiffs have failed to establish a sufficient probability of success on the merits to warrant injunctive relief. Accordingly, plaintiffs' motion for a preliminary injunction is DENIED.

IT IS SO ORDERED.

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