Michael POTTINGER, Peter Carter, Berry Young, et al., Plaintiffs,

CITY OF MIAMI, Defendant
United States District Court,
S.D. Florida
810 F.Supp. 1551 (1992)

 ATKINS, Senior District Judge.

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 Plaintiffs ("plaintiffs" or "class members") filed this action in December of 1988 on behalf of themselves and approximately 6,000 other homeless people living in the [p. 1554] City of Miami.  Plaintiffs' complaint alleges that the City of Miami ("defendant" or "City") has a custom, practice and policy of arresting, harassing and otherwise interfering with homeless people for engaging in basic activities of daily life--including sleeping and eating--in the public places where they are forced to live.  Plaintiffs further claim that the City has arrested thousands of homeless people for such life-sustaining conduct under various City of Miami ordinances and Florida Statutes. . . .

 Plaintiffs allege, pursuant to 42 U.S.C. § 1983, [n. 1] that the property destruction and arrests, which often result in no criminal charges, prosecutions or convictions, violate their rights under the United States and Florida Constitutions.  Because the arrested plaintiffs are released without further official process, the argument continues, plaintiffs never have the opportunity to raise such valid defenses as necessity or duress.  [P]laintiffs do not challenge the facial validity of the ordinances or statutes under which they are arrested.  Rather, they contend that the City applies these laws to homeless individuals as part of a custom and practice of driving the homeless from public places.  Accordingly, plaintiffs do not argue that any of the ordinances should be stricken;  instead, they ask that the City be enjoined from arresting homeless individuals for inoffensive conduct, such as sleeping or bathing, that they are forced to perform in public.

1. Section 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State, or Territory, or the District of Columbia, subjects, or causes to be subjected, any Citizen of the United States or any other persons within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws,  shall be liable to the person injured in an action of law, suit in equity, or other proper proceedings for redress.
42 U.S.C. § 1983.
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 In essence, this litigation results from an inevitable conflict between the need of homeless individuals to perform essential, life-sustaining acts in public and the responsibility of the government to maintain orderly, aesthetically pleasing public parks and streets.  The issues raised in this case reveal various aspects of this conflict which, unfortunately, has become intensified by the overwhelming increase in the number of homeless people in recent years and a corresponding decrease in federal aid to cities.  Because some of these issues have arisen in prior proceedings in this case, we briefly outline the history of this litigation before turning to the merits of the present inquiries.

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C. Cruel and Unusual Punishment

 Plaintiffs contend that the City's arrests of class members under various ordinances prohibit them from lying down, sleeping, standing, sitting or performing other essential, life-sustaining activities in any public place at any time.  Plaintiffs argue that their status of being homeless is involuntary and beyond their immediate ability to alter and that the conduct for which they are arrested is inseparable from their involuntary homeless status.  Consequently, plaintiffs argue, application of these ordinances to them is cruel and unusual in violation of the eighth amendment.

 The judicial prohibition of status-based abuse of police power under the eighth amendment is not without precedent.  In a leading United States Supreme Court case addressing the issue, the Court held that punishment of a person for his involuntary status of being an addict was cruel and unusual in violation of the eighth amendment.  Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). . . .

 Based on Robinson, courts have overturned vagrancy laws because they punish status or condition.  In Wheeler v. Goodman, a district court found a vagrancy law to be constitutionally invalid because it punished mere status. 306 F.Supp. 58, 64 (W.D.N.C.1969), vacated on other grounds, 401 U.S. 987, 91 S.Ct. 1219, 28 L.Ed.2d 524 (1971).   Similarly, in Headley v. Selkowitz, 171 So.2d 368 (Fla.1965), the Florida Supreme Court stated that a vagrancy statute, even if facially valid, should not be applied to "innocent victims of misfortune" who appear to be vagrants, but "who are not such either by choice or intentional conduct."  Id. at 370;  see also Goldman v. Knecht, 295 F.Supp. 897, 907-08 (D.Colo.1969) (finding vagrancy statute that punished status unconstitutional in violation of fourteenth amendment's substantive due process limitation);  Parker v. Municipal Judge, 83 Nev. 214, 427 P.2d 642, 644 (1967) ("It is simply not a crime to be unemployed, without funds, and in a public place.  To punish the unfortunate for this circumstance debases society.");  Hayes v. Municipal Court, 487 P.2d 974, 981 (Okla.Crim.App.1971) (quoting Parker with approval);  Alegata v. Commonwealth, 353 Mass. 287, 231 N.E.2d 201, 207 (1967) ("Idleness and poverty should not be treated as a criminal offense.").  Again, voluntariness of the status or condition is the decisive factor.

 [p. 1563] Although the law is well-established that a person may not be punished for involuntary status, it is less settled whether involuntary conduct that is inextricably related to that status may be punished.  An initial reading of Powell suggests that all conduct is outside the rule of Robinson.  The plurality in Powell stated that

[t]he entire thrust of Robinson 's interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms has committed some actus reus.  It thus does not deal with the question of whether certain conduct cannot constitutionally be punished because it is, in some sense, "involuntary" or occasioned by compulsion.
 Powell, 392 U.S. at 533, 88 S.Ct. at 2154-55.

 However, the Powell 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.  Justice White identified this distinction in his concurrence:

The fact remains that some chronic alcoholics must drink and hence must drink somewhere.  Although many chronics have homes, many others do not.  For all practical purposes the public streets may become home for these unfortunates, not because their disease compels them to be there, but because, drunk or sober, they have no place else to go and no place else to be when they are drinking....  For some of these alcoholics I would think a showing could be made that resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible.  As applied to them this statute is in effect a law which bans a single act for which they may not be convicted under the Eighth Amendment--the act of getting drunk.
 Id. at 551, 88 S.Ct. at 2163-64 (White, J., concurring) (emphasis in original).  Although Justice White joined the majority in rejecting the appellant's challenge to his conviction, he did so only because he found the record insufficient to support the appellant's claim that his alcoholic condition compelled him to appear in public while drunk.  Id. at 549-50, 88 S.Ct. at 2162-63.  In contrast, as discussed below, the record in the present case amply supports plaintiffs' claim that their homeless condition compels them to perform certain life-sustaining activities in public.

 As a number of expert witnesses testified, people rarely choose to be homeless.  Rather, homelessness is due to various economic, physical or psychological factors that are beyond the homeless individual's control.

 Professor Wright testified that one common characteristic of homeless individuals is that they are socially isolated;  they are part of no community and have no family or friends who can take them in.  Professor Wright also testified that homelessness is both a consequence and a cause of physical or mental illness.  Many people become homeless after losing their jobs, and ultimately their homes, as a result of an illness.  Many have no home of their own in the first place, but end up on the street after their families or friends are unable to care for or shelter them.  Dr. Greer testified that once a person is on the street, illnesses can worsen or occur more frequently due to a variety of factors such as the difficulty or impossibility of obtaining adequate health care, exposure to the elements, insect and rodent bites, and the absence of sanitary facilities for sleeping, bathing or cooking.  Both Professor Wright and Dr. Greer testified that, except in rare cases, people do not choose to live under these conditions.

 [p. 1564] According to Professor Wright's testimony, joblessness, like physical and mental illness, becomes more of a problem once a person becomes homeless. This is so because of the barriers homeless individuals face in searching for a job.  For example, they have no legal address or telephone.  Also, they must spend an inordinate amount of time waiting in line or searching for seemingly basic things like food, a space in a shelter bed or a place to bathe.

 In addition to the problems of social isolation, illness and unemployment, homelessness is exacerbated by the unavailability of many forms of government assistance.  Gail Lucy, an expert in the area of government benefits available to homeless people, testified that many homeless individuals are ineligible for most government assistance programs.  For example, Supplemental Security Income is available only to people who are sixty-five years of age or more, who are blind or disabled and who are without other resources.  Social Security Disability Insurance is available only to workers who have paid into the social security fund for five of the past ten years prior to the onset of the disability.  Aid to Families with Dependent Children is available only to low- income families with physical custody of children under the age of eighteen. The only benefit that is widely available to the homeless is food stamps.

 Another notable form of assistance that is unavailable to a substantial number of homeless individuals is shelter space.  Lucy testified that there are approximately 700 beds available in local shelters.  However, approximately 200 of these are "program beds," for which one must qualify.  In addition, some of these beds are set aside for families.  Given the estimated 6,000 individuals who were homeless at the time of trial and the untold number of people left homeless by Hurricane Andrew, the lack of adequate housing alternatives cannot be overstated.  The plaintiffs truly have no place to go.

 In sum, class members rarely choose to be homeless.  They become homeless due to a variety of factors that are beyond their control.  In addition, plaintiffs do not have the choice, much less the luxury, of being in the privacy of their own homes.  Because of the unavailability of low-income housing or alternative shelter, 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.  Consequently, arresting homeless people for harmless acts they are forced to perform in public effectively punishes them for being homeless. This effect is no different from the vagrancy ordinances which courts struck because they punished "innocent victims of misfortune" and made a crime of being "unemployed, without funds, and in a public place."  See Headley v. Selkowitz, 171 So.2d 368, 370 (Fla.1965);  Parker v. Municipal Judge, 83 Nev. 214, 427 P.2d 642, 644 (1967).  Therefore, just as application of the vagrancy ordinances to the displaced poor constitutes cruel and unusual punishment, see, e.g., Wheeler v. Goodman, 306 F.Supp. 58 (W.D.N.C.1969), vacated on other grounds, 401 U.S. 987, 91 S.Ct. 1219, 28 L.Ed.2d 524 (1971);  Headley v. Selkowitz, 171 So.2d 368 (Fla.1965), arresting the homeless for harmless, involuntary, life-sustaining acts such as sleeping, sitting or eating in public is cruel and unusual.

 The City suggests, apparently in reference to the aftermath of Hurricane Andrew, that even if homelessness is an involuntary condition in that most persons would not consciously choose to live on the streets, "it is not involuntary in the sense of a situation over which the individual has absolutely no control such as a natural disaster which results in the destruction of one's place of residence so as to render that person homeless." City's Post-Trial Proposed Findings of Fact & Conclusions of Law at 7.  The court cannot accept this distinction.  An individual who loses his home as a result of economic hard times or physical or mental illness exercises no more control over these events than he would over a natural disaster.  Furthermore, as was established at trial, the City does not have enough shelter to house Miami's [p. 1565] homeless residents.  Consequently, the City cannot argue persuasively that the homeless have made a deliberate choice to live in public places or that their decision to sleep in the park as opposed to some other exposed place is a volitional act.  As Professor Wright testified, the lack of reasonable alternatives should not be mistaken for choice.

 For plaintiffs, resisting the need to eat, sleep or engage in other life-sustaining activities is impossible.  Avoiding public places when engaging in this otherwise innocent conduct is also impossible.  Moreover, plaintiffs have 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.  To paraphrase Justice White, plaintiffs have no place else to go and no place else to be.  Powell, 392 U.S. at 551, 88 S.Ct. at 2163-64.  This is so particularly at night when the public parks are closed.  As long as the homeless plaintiffs do not have a single place where they can lawfully be, the challenged ordinances, as applied to them, effectively punish them for something for which they may not be convicted under the eighth amendment-- sleeping, eating and other innocent conduct.  Accordingly, the court finds that defendant's conduct violates the eighth amendment ban against cruel and unusual punishment and therefore that the defendant is liable on this count.

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