ORDER GRANTING MOTION TO EXTEND INJUNCTION
PREGERSON, District Judge.
This matter is before the Court on Plaintiffs' motion to extend an injunction entered into between Plaintiffs and the City of Los Angeles pursuant to a settlement agreement. After reviewing the papers submitted by the parties and hearing oral argument, the Court grants the motion in the manner outlined below.
A. Settlement History
Plaintiffs are residents of Los Angeles who live in downtown Los Angeles in the area of the Central City known as Skid Row.
The matter was assigned to the Honor able Nora Manella, who issued a Temporary Restraining Order ("TRO") on March 31, 2003, enjoining Defendants from engaging in the conduct alleged by Plaintiffs and setting a hearing for a preliminary injunction. On April 14, 2003, Judge Manella issued a Preliminary Injunction identical to the TRO. Thereafter, the parties settled the case, and, on December 9, 2003, Judge Manella approved the settlement.
The settlement agreement constituted a stipulation to a permanent injunction as follows:
(Richardson Decl., Ex. 2 at 2-3.) The settlement also provided that the injunction would remain in force for 36 months from the' date on which it was signed by the court, and that:
(Id. at 3.)
Finally, the settlement stated:
(Id. at 3-4.)
B. Instant Motion
In November 2006, counsel for Plaintiffs allegedly learned that the police were purportedly engaging in a widespread practice of searching the residents of Skid Row,
Plaintiffs now move the Court to extend the injunction entered into as part of the prior settlement agreement.
A. Timeliness of Plaintiffs' Motion
As an initial matter, Defendants argue that Plaintiffs' motion was untimely filed. Pursuant to the terms of the injunction, December 9, 2006 was the latest date Plaintiffs could seek to extend the injunction. Plaintiffs submitted their motion to the Clerk's office on Friday, December 8, 2006. The motion was marked "lodged" and was not filed until Wednesday, December 13, 2006.
Plaintiffs did not fail to meet the deadline. The Clerk's office likely marked the motion as "lodged" instead of "filed" either because Judge Manella, who previously presided over the case, is no longer with the Central District, or because the case was technically "closed" at the time of the entry of the permanent injunction. But for the administrative procedures of the Clerk's Office, the motion would have been timely filed. Thus, the Court deems the motion timely.
B. Procedural Filing Requirements
Defendants also contend that Plaintiffs failed to comply with Local Rule 7-3, which requires parties to meet and confer before filing a motion. Plaintiffs claim that they did attempt to contact Defendants several times as soon as they decided to file the motion, and that they were given oral permission from Defendants to file their motion by the December 8, 2006 deadline. (Richardson Decl. ¶¶ 2-5.) They also argue that they could not have met and conferred any earlier because they only learned of the alleged violations in late November. (Id. ¶ 3.) Finally, Plaintiffs argue that, to the extent the purpose of Local Rule 7-3 is to allow nonmovants time to evaluate proposed motions and oppose or reach agreement in a considered fashion, Defendants have not been prejudiced because the Court's briefing schedule gave Defendants' more than adequate time to respond to Plaintiffs motion.
The Court understands that the unique time constraints in this case prevented Plaintiffs from meeting and conferring the required twenty days prior to the filing of the motion. The Court also understands that Plaintiffs' late notice to Defendants gave Defendants little time to familiarize themselves with this case before the December 8, 2006 deadline. (See generally Declaration of Kelly N. Kades.) However, due to the Court's management of its docket, Defendants had one month to respond to Plaintiffs' motion. Defendants took the full month to respond.
C. Plaintiffs' Burden: "Good Cause"
By the terms of the settlement, a court may extend the injunction for up to thirty-six months upon Plaintiffs' showing of "good cause." The term "good cause" is not defined in the injunction. Unsurprisingly, Plaintiffs and Defendants dispute the meaning of term "good cause" and the burden it requires Plaintiffs to satisfy before the Court may extend the injunction.
Defendants argue that the "good cause" showing is the same as that which would be required by Plaintiffs to obtain a permanent injunction in the first instance. By contrast, Plaintiffs contend that, had the parties intended to allow for an extension only upon a showing sufficient to justify a permanent injunction in the first instance, they would have stated so in the settlement agreement. Plaintiffs also argue that where a party is subject to an injunction, a single violation of that injunction can subject that party to contempt. Thus, Plaintiffs argue, it is logical that "good cause" for an extension is satisfied by a showing that Defendants have "engaged in anything more than an isolated instance or two of violations of the injunction." (Mot. 4:5-7.)
The Court finds that the requisite burden is less than that needed for a permanent injunction. By including the extension provision in the injunction, the parties likely intended that the "good cause" burden would not be the same as that required to obtain an injunction in the first instance.
At oral argument, the parties discussed the "good cause" requirement in more detail. Plaintiffs argued that the evidence submitted by Defendants undisputably proves that violations of the injunction have occurred. Defendants disagreed with this characterization of their evidence. After listening to the parties' arguments, the Court suggested that the best way to resolve the dispute would be to treat the motion as if it were a motion for summary judgment. The parties agreed to this interpretation of the good cause standard.
Thus, the Court will apply the same standard it would apply had the Plaintiffs moved for summary judgment: viewing the evidence in the light most favorable to Defendants, have violations of the injunction occurred? If so, the Court will extend the injunction for the amount of time it deems reasonable in light of the seriousness of these violations.
D. Whether The Evidence Establishes That Violations of the Injunction Have Occurred
Plaintiffs contend that the evidence they have submitted establishes that Defendants have violated the terms of the Settlement Agreement and the Fourth Amendment by conducting suspicionless detentions and searches of pedestrians in Skid Row without legal justification. Defendants disagree with Plaintiffs' characterization of current Fourth Amendment law and object to Plaintiffs' evidence. The Court will first discuss the current state of Fourth Amendment search and seizure law and then examine whether Plaintiffs' have proven, under a summary judgment standard, that Defendants have violated that law and the settlement terms.
1. Search and Seizure Law Generally
The Fourth Amendment gives all citizens the right "to be secure in their persons . . . against unreasonable searches and seizures. . . ." U.S. Const. Amend.
By contrast, a "Terry" stop or investigative detention requires only reasonable suspicion that the detainee is engaged in criminal activity. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). "To detain a suspect, a police officer must have reasonable suspicion, or specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.'" United States v. Michael R., 90 F.3d 340, 346 (9th Cir.1996) (quoting United States v. Garcia-Camacho, 53 F.3d 244, 245 (9th Cir. 1995)). To determine whether reasonable suspicion existed, the court must consider the totality of the circumstances surrounding the stop. Id. (citing United States v. Hall, 974 F.2d 1201, 1204 (9th Cir.1992)).
2. Stops and Searches of Parolees and Probationers without Advance Knowledge of Their Parole or Probation Status
Courts have recognized that probationers and parolees have a reduced expectation of privacy by virtue of search conditions imposed on them as a result of their probation or parole status. Indeed, in Samson v. California, ___ U.S. ___, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), the Supreme. Court addressed the very issue giving rise to this motion — the legality of suspicionless parolee searches. After reviewing the legislative rationale for reducing parolees' expectations of privacy, the Supreme Court held that "the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee." Samson, 126 S.Ct. at 2202.
However, Samson did not provide that all suspicionless searches of parolees are reasonable. Instead, the Supreme Court specifically noted that, "[u]nder California precedent . . . an officer would not act reasonably in conducting a suspicionless search absent knowledge that the person stopped for the search is a parolee." Id. (citing People v. Sanders, 31 Cal.4th 318, 332-32, 2 Cal.Rptr.3d 630, 73 P.3d 496 (2003)) (emphasis added). In Sanders, the California Supreme Court explained that "a knowledge-first requirement is appropriate to deter future police misconduct and to effectuate the Fourth Amendment's guarantee against unreasonable searches and seizures." Sanders, 31 Cal.4th at 331-32, 2 Cal.Rptr.3d 630, 73 P.3d 496.
Since the Samson decision, the California Supreme Court has had the opportunity to revisit its "knowledge-first" requirement. In In re Jaime P., 40 Cal.4th 128, 139, 51 Cal.Rptr.3d 430, 146 P.3d 965 (2006), the California Supreme Court held that where the "arresting officer had neither reasonable suspicion of criminal activity nor advance knowledge of a search condition that might have justified the search . . . the totality of the circumstances amounts to very little and does not justify the officer's search." (emphasis added). With regard to the Supreme Court's Samson decision, the In re Jaime P. Court stated:
These decisions make it clear that advance knowledge of a parolee's status is critical to the constitutionality of a suspicionless search of a parolee. Thus, before a suspicionless search begins, an officer must have knowledge of the individual's probation or parole status.
3. Stops and Searches of Parolees and Probationers With Advance Knowledge of Their Parole or Probation Status
Both California and Fourth Amendment law prohibit all arbitrary or harassing searches — even of parolees and probationers. The California Supreme Court articulated this rule in People v. Reyes, 19 Cal.4th 743, 753-54, 80 Cal.Rptr.2d 734, 968 P.2d 445 (1998):
Accordingly, even when an officer knows the parole or probation status of the subject before beginning the search, that search may still be unconstitutional if the search is made at the "whim or caprice" of the law enforcement officer. Reyes, 19 Cal.4th at 754, 80 Cal.Rptr.2d 734, 968 P.2d 445.
A search of a California parolee must not only comport with California law, but — as in all jurisdictions within the Untied States and its territories — with the demands of the federal Constitution as well. United States v. Crawford, 323 F.3d 700, 708 n. 4 (9th Cir.2003). In Samson, the Supreme Court addressed the legality of arbitrary searches when explaining the limits of its holding:
126 S.Ct. at 2202. Thus, the Samson Court relied on the limitation against arbitrary searches in upholding California's system of parolee searches. This reliance indicates that a scheme permitting
4. Whether the Terms of the Injunction Comport with Current Search and Seizure Law
Defendants argue that the injunction holds the LAPD to a higher standard than current search and seizure law because "it forbids officers to detain or search persons or property without probable cause or reasonable suspicion of criminal activity or probation or parole violation, regardless of the officers' knowledge of the person's probation or parole status." (Opp. 4:10-15). The Court agrees that the cited language does not accurately reflect current search and seizure standards. However, the injunction provides for the incorporation of changes to search and seizure law: "[s]hould the standard for detention and searches of parolees or probationers be changed by the United States Supreme Court or the Ninth Circuit," then "the injunction will be modified by operation of law accordingly to incorporate the current legal standard." (Richardson Decl., Ex. 2 at 3-4.) Accordingly, the language in the injunction that Defendants argue is contrary to current law has been automatically modified to permit suspicionless searches of parolees — providing, as outlined above, that the officer has advance knowledge of parolee status and that the search is not arbitrary, capricious, or harassing. In other words, the Court reads the injunction merely as an order that Defendants conduct legal searches of Skid Row residents; it finds nothing in the injunction inconsistent with California or federal search and seizure standards.
The Court now turns to the evidence presented in the parties' papers to determine whether Plaintiffs have met their burden of proving that the LAPD's current practices violate both the terms of the settlement injunction and search and seizure law. Defendants raise several evidentiary objections to Plaintiffs' evidence; Plaintiffs do likewise. Before considering this evidence on the merits, the Court will address some of Defendants' objections.
a. Evidentiary Issues
As an initial matter, Defendants argue that there is no means of contacting the majority of Plaintiffs' declarants and that this absence of contact information prejudices the Defendants' ability to counter the allegations contained within the declarations. While the Court understands Defendants' concerns about the declarants' availability to testify, the Court notes that many of the declarants are homeless or do not have permanent addresses. The Court is not inclined to bar these declarations merely because the declarants are difficult to contact.
Defendants further argue that two of Plaintiffs' declarants alleged stops did not occur within the geographical area defined by the settlement.
Defendants also contend that one of Plaintiffs' declarants, Louis McLeod, misrepresented facts by stating he was not on parole or probation at the time of the alleged search, when he in fact is on summary probation. To, prove McLeod's probation status, Defendants have requested that the Court take judicial notice of the criminal docket from People v. Louis McLeod BA 259771. (Defs.' Req. for Judicial Notice.) However, whether or not McLeod was actually on probation at the time of the search is irrelevant because his declaration indicates that the officers who allegedly stopped and searched him were unaware of his probation status. (Declaration of Louis McLeod ("McLeod Decl.") ¶¶ 2-9.)
Finally, Defendants also object to the declarations Plaintiffs submitted in conjunction with their Reply — specifically the declarations of Alice Callaghan and Casey Horan — because they could have been filed with Plaintiffs' original motion. See, e.g., Lujan v. National Wildlife Fed, 497 U.S. 871, 894-95, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). As it appears that most of the information contained in these declarations was available to Plaintiffs at the time they originally filed their motion, the Court will not consider these declarations in deciding the motion.
Plaintiffs have submitted the declarations of sixteen search subjects in conjunction with their motion. Although the declarations are not identical, they each tell a similar story: A Skid Row resident
Defendants have also submitted several declarations in opposition to the motion. Several are made by police officers assigned to the Skid Row area. These officers
In essence, Plaintiffs' evidence and Defendants' evidence tell two different stories about the searches that occur on Skid Row. Although the Court may find certain accounts more plausible than others, it cannot say, as a matter of law, that one version of the facts must be believed over the other. During oral argument, however, Plaintiffs identified certain portions of Defendants' evidence which they contend demonstrate, as a matter of law, that Defendants have violated the injunction on at least a few occasions. The Court will now address those specific pieces of evidence to determine whether, even viewing the evidence in the light most favorable to Defendants, violations of the settlement and the law have in fact occurred.
1. Detention of Paul Johnson
Plaintiffs argue that Defendants have conceded that Declarant Paul Johnson was detained unconstitutionally. In support of this argument, Plaintiffs point to the declaration of Officer Sucha Singh, the patrol officer who detained Paul Johnson. In his declaration, Officer Singh states that he was working Central Division patrol when he "came upon a Paul Johnson." He does not recall why he stopped Paul Johnson: "At this time, I cannot independently recall the basis for detaining Paul Johnson. However, I cannot and would not place an individual up against a wall without a legal basis for doing so."
Singh has stated that he cannot currently recall the basis for detaining Paul Johnson. Plaintiffs argue that, pursuant to the Ninth Circuit decision in Dubner v. City and County of San Francisco, 266 F.3d 959 (9th Cir.2001), Defendants have undeniably failed to meet their burden of production on the issue of whether the warrantless arrest of Paul Johnson was in fact lawful. In Dubner, the court explained the burden-shifting analysis on the issue of unlawful arrests:
Dubner, 266 F.3d at 965 (internal citations omitted) (emphasis added).
It is clear from Singh's declaration that he did not have a warrant for Paul John son's arrest.
2. Los Angeles Municipal Code ("LAMC") Section 41.18(d)
Plaintiffs also argue that the only evidence of criminal activity that Defendants have submitted to justify the detentions and searches are the alleged violations by declarants Chester Cox and Shawn Robertson of LAMC 41.18(d).
(Declaration of David Azevedo ("Azevedo Decl.") ¶¶ 2-5.)
Officer Donna Shoates gives a very similar account of her detention of Chester Cox:
(Declaration of Donna Shoates ("Shoates Decl.") ¶¶ 2-5.)
The Court also notes that Officer Azevedo does not indicate whether he actually searched Robertson. This is curious considering that Robertson describes being handcuffed and searched by Azevedo's partner in his declaration.
Finally, the Court notes that Azevedo's declaration describes stopping a Mr. Robertson on November 26, 2007. By contrast, the Mr. Robertson who filed a declaration in this case describes a search that occurred on Wednesday, November 29, 2007. Thus, it is possible that the search described by Azevedo did not involve the Mr. Robertson who filed a declaration.
Assuming that the Azevedo did search Robertson for violating § 41.18(d), it is relatively clear that those searches were unconstitutional. The United States Supreme Court has noted that police may not conduct a search based on probable cause to believe a crime has been committed when no physical evidence exists for that crime. See Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) ("Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car."). There is no physical evidence necessary to prove a violation of § 41.18(d). Therefore, even presuming that the declarants were violating § 41.18(d), it was unconstitutional to search them in connection with that offense.
Additionally, Azevedo specifically stated that he "did not cite Mr. Robertson for violating LAMC § 41.18(d)." (Azevedo Decl. ¶ 5.) Accordingly, Plaintiffs argue that Defendants cannot justify the search of Robertson as a "search incident to an arrest" because Azevedo did not arrest Robertson. In Menotti v. City of Seattle, 409 F.3d 1113, 1153 (9th Cir.2005), the Ninth Circuit addressed whether a warrantless search or seizure could be justified as a "search incident to arrest" where no arrest was made:
The Ninth Circuit also explained the policy considerations of its reasoning:
As in Menotti, Azevedo did not arrest Robertson. Therefore, Azevedo's stop of Robertson for § 41.18(d) cannot have provided grounds for the full search of Robertson and his belongings that Robertson alleges occurred and that, pursuant to Dubner, this court must believe occurred. Thus, even viewing the evidence in the light most favorable to Defendants, the Court finds that Plaintiffs have met their burden of proving that certain unconstitutional searches and seizures occurred.
3. Whether California Law Permits Suspicionless Searches of All Parolees or of Any Probationers
Plaintiffs argue that California law prohibits suspicionless searches of all probationers. Plaintiffs also argue that California law prohibits suspicionless searches of some parolees. Because Plaintiffs contend that Defendants have admitted they have a policy of conducting suspicionless searches of any individual who they know to be on probation or parole, Plaintiffs believe that Defendants have admitted to an unconstitutional policy.
In Samson, the question before the Supreme Court was whether a suspicionless search, conducted under the authority of [California Penal Code § 3067(a)], violated the United States Constitution. Samson, 126 S.Ct. at 2196. In holding that it did not, the Court accounted for the California Legislature's § 3067(a) requirement that every prisoner eligible for release on state parole in California "shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." Id. at 2199. The Court considered the mandatory search condition for parolees as a factor that weighed in favor of its finding that the suspicionless search of the California parolee did not violate the Fourth Amendment.
Probation is addressed in a separate statute, California Penal Code § 1203.1. In contrast to § 3067, § 1203.1 does not impose an explicit search condition on probationers. Instead, it gives trial judges discretion to impose probation conditions. See generally § 1203.1.
Thus, on its face, § 1203.1 does not impose a mandatory search condition on all probationers. Defendants contend, however, that California case law expressly permits suspicionless probationary searches of all probationers. Plaintiffs argue that this contention is not true and that Defendants overstate and mischaracterize the authority on which they rely: People v. Reyes, 19 Cal.4th 743, 80 Cal.Rptr.2d 734, 968 P.2d 445 (1998), People v. Woods, 21 Cal.4th 668, 88 Cal.Rptr.2d 88, 981 P.2d 1019 (1999), People v. Sanders, 31 Cal.4th 318, 333-35, 2 Cal.Rptr.3d 630, 73 P.3d 496 (2003), and In re Jaime P., 40 Cal.4th 128, 51 Cal.Rptr.3d 430, 146 P.3d 965 (2006).
The Court now turns to these cases to resolve the dispute. In 1998, the California Supreme Court decided Reyes. The Reyes court did not discuss the permissibility of suspicionless searches of probationers generally; rather, it held that "particularized suspicion is not required in order to conduct a search based on a properly imposed search condition." Reyes, 19 Cal.4th at 753, 80 Cal.Rptr.2d 734, 968 P.2d 445. One year later, in Woods, the California Supreme Court explained that "[i]n California, probationers may validly consent in advance to warrantless searches in exchange for the opportunity to avoid service of a state prison term." Woods, 21 Cal.4th at 674-75, 88 Cal.Rptr.2d 88, 981 P.2d 1019. The Woods court upheld a suspicionless search of the probationer, but specifically noted that "in all cases, a search pursuant to a probation search clause may not exceed the scope of the particular cause relied on." Id. at 682, 88 Cal.Rptr.2d 88, 981 P.2d 1019. (emphasis added).
In 2003, the California Supreme Court revisited this issue in Sanders:
Id. at 333, 2 Cal.Rptr.3d 630, 73 P.3d 496. With respect to suspicionless probationer searches, the Court also noted that "if an officer is unaware that a suspect is on probation and subject to a search condition, the search is not justified by the
Finally, on November 30, 2006, the California Supreme Court in In re Jaime P. reiterated and clarified its position on suspicionless searches in light of the Samson decision. The Court overruled its earlier decision in In re Tyrell J., 8 Cal.4th 68, 32 Cal.Rptr.2d 33, 876 P.2d 519 (1994) that an officer's prior knowledge of a probation condition was not necessary in a juvenile case. In re Jaime P., 40 Cal.4th at 139, 51 Cal.Rptr.3d 430, 146 P.3d 965. In so doing, the Court observed that "Samson involved a parolee search conducted by officers aware of the parolee's consent-to-search condition." Id. at 136, 51 Cal.Rptr.3d 430, 146 P.3d 965. The Court further noted that "Samson appears to support [the] view that the high court approves of our Sanders holding requiring prior knowledge of the search condition as a protection against harassing searches." Id. at 137, 51 Cal.Rptr.3d 430, 146 P.3d 965. Thus, the Court concluded, where an arresting officer has neither reasonable suspicion of any criminal activity nor advance knowledge of a search condition that might justify a search, the officer's search is not justified. Id. at 139, 51 Cal.Rptr.3d 430, 146 P.3d 965.
In sum, it is clear from the case law that Defendants are incorrect: the California Supreme Court has not endorsed all suspicionless probationary searches. Instead, the California Supreme Court has explicitly and repeatedly held that an officer conducting a suspicionless search of an adult must be aware of a search condition before conducting the search. Accordingly, if, as Plaintiffs argue, Defendants have in fact admitted a policy of searching all probationers based on their probationer status alone, then they have admitted to an unconstitutional policy.
Here, there is evidence that Defendants have a policy of searching Skid Row residents when they are aware of their parolee or probationer status. Defendants have submitted the declaration of Michael O'Donnell, the LAPD officer assigned as the "Officer in Charge of Central Area Safer Cities Initiative." (Declaration of Michael O'Donnell ("O'Donnell Decl.") ¶ 1.) O'Donnell's duties include directing the activities of the officers assigned to the Safer Cities Initiative and providing training to officers in the field. (O'Donnell Decl. ¶¶ 1-2.) In describing officer training on constitutional searches, O'Donnell states the following:
(O'Donnell Decl. ¶ 5.) (emphasis added). This is a direct admission, from the Officer in Charge of the Safer Cities Initiative, that Defendants have a policy of searching Skid Row residents solely on the basis of the resident's parolee or probationer status without knowledge of any search conditions imposed. The law does not allow such searches. Accordingly, the Court finds that, even viewing the evidence in the light most favorable to Defendants, they have admitted to an unconstitutional policy.
Based on the evidence submitted by the parties, the Court finds that Plaintiffs have established that some violations of the injunction have occurred and are likely still occurring. In light of this evidence, the Court grants the motion to extend the injunction for a period of four months (120 days) from the issuance of this order. This should provide the LAPD ample time to review its policies and practices to ensure that they comply with current Fourth Amendment law as outlined in this order.
If, at the end of the four month period, Plaintiffs believe that violations of the injunction are still occurring, they may move for another extension of the injunction and the Court will consider their evidence. Similarly, if Defendants believe that there is cause to vacate the injunction before the four month period has expired, they may move accordingly.
IT IS SO ORDERED.
(Declaration of Paul Johnson, ¶ 4.)
Interestingly, the Ninth Circuit has recently held, with respect to § 41.18(d), that "just as the Eighth Amendment prohibits the infliction of criminal punishment on an individual for being a drug addict . . . [it] prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in  Los Angeles." Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir.2006). The challenge in Jones, however, was not a facial challenge to § 41.18(d); the plaintiffs in that case made an "as-applied" challenge to the nighttime enforcement of 41.18(d), arguing that sleeping on the sidewalk becomes an essentially "involuntary" act for the homeless at night. The Court does not resolve here whether § 41.18(d) is facially unconstitutional; it merely notes that its constitutionality appears dubious.
(Declaration of Shawn A. Robertson, III ("Robertson Decl.") ¶¶ 2-7.)