Six Feet Under Live With Full Force (Full Concert)

"It was the best of times, it was the worst of times." The contrasts of life as perceived by people in different stations of society are as vivid today as when Charles Dickens penned these words nearly one hundred fifty years ago. Order, we believe, is better than chaos predictability is more comfortable than the unknown. In a society that prizes beauty, youth, vigor, and success that is measured by accumulation of precious things; the disheveled, the aged, the weary; those whose accumulated wealth is carried in a tattered blanket, present themselves in some quarters as a distraction to a desired representation of how the "best of times" should appear. They are extremely bright; they suffer from mental illnesses. They are capable of causing serious physical injury or death; their gentleness permits them to share their meager substance with birds that find a safe harbor at their feet. In making their claim to the American Dream, they participate in publically sponsored, government-supported celebrations from distant bridges, rather than penthouses, knowing that their rights that Thomas Jefferson proclaimed inviolate, being life, liberty and the pursuit of happiness, are no less guaranteed to them than to those not so vulnerable because they carry evidence of their station in life in their wallets rather than in a bag or worn blanket. The homeless present many diverse faces. Gaining a better understanding of the daily life issues they face is necessary to judge whether relief is indicated in this case, considering at the same time the requirements law enforcement officials face in performing their lawful duties. It is beyond the scope of this Opinion to address causes as to why individuals live on the streets, or solutions that would permit exercise of their independence in making their choices while presenting themselves as less of a perceived threat to some. The facts presented to the Court reveal much about the daily struggles of the homeless. It is important to gain an understanding of the issues to be resolved after the hearing at the Temporary Restraining Order stage of this proceeding wherein Plaintiffs seek both injunctive relief and monetary damages in a separate count. The Court considers the facts adduced at that hearing, realizing that motions for such temporary relief frequently do not permit the party against whom relief is sought to fully present its case. The conclusions herein stated relate only to Plaintiffs' requests for preliminary injunctive relief contained in Counts I(b), II(b), and III(b) of their Complaint.

Six Feet Under Live With Full Force (Full Concert)

Timothy Swift has been homeless for about two and one-half years. He sleeps in abandoned cars in Opal's junkyard at Broadway and Hickory in the Soulard area. He relies on St. Patricks and the Jerry Rice facility in the winter. On July 4, 2004, Mr. Swift was sitting in a chair at Broadway and Hickory under a bridge watching the Fair's air show. Other people were across the street with chairs and coolers. They were not homeless because they had children and automobiles. Before the three police officers appeared, Mr. Swift had nothing to drink but water. When the officers first arrived in a van, Mr. Swift thought their automobile was a church van with food. He and others approached the van, then, from their badges and guns, realized the occupants were policemen, and retreated. Mr. Swift and others went back under the bridge to watch the air show after the officers told them to leave. The police then approached them and told them that they meant for them to leave, and leave the area. One officer was bald, about six feet one-inch in height and weighed about two hundred five pounds. The officer that approached Mr. Swift was blond-headed, about six feet one inches tall and weighed about one hundred seventy-five pounds. The officer that approached Mr. Swift started to pull his firearm. Mr. Swift dropped his chair and jacket. The officer told Mr. Swift he was under arrest. Mr. Swift asked, "[f]or what?" The officer responded, "I'm the police, I've got a badge and a gun and I can do what the fuck I want." The officer said "he could get [him] for drinking in public or pissing in public." All of the people with Mr. Swift were arrested, placed in plastic cuffs, put in a van and taken to Kiener Plaza where the police picked-up another "guy" who was placed in an already crowded van. He saw a white couple with a six pack of Budweiser in addition to the beers they were drinking. Several in the van asked why they were not also arrested. Mr. Swift said the police just laughed.

It is clear to the Court that Plaintiffs have suffered harm and are likely to continue to suffer harm without judicial intervention at this stage of the proceedings. Among other things, Plaintiffs appear to have been subjected to arrests made in the absence of probable cause, inaccurate or fabricated charges, and intimidation tactics such as the throwing of firecrackers by police officers. They appear to have been subjected to forced labor in the form of community service work before being found guilty of any crime and to have had their property unlawfully taken. At least one was taken from Downtown and abandoned along the river front. Further, Plaintiffs have demonstrated that these harms do not appear to be isolated incidents of constitutional deprivations. Instead, they appear to be part of a larger effort to target homeless and homeless-appearing individuals to remove them from public areas. The evidence demonstrates that these violations have been occurring for at least a year and have persisted despite notice to city and police officials. (Pl.Ex.Nos.1, 2).

Plaintiffs bring a 1983 claim, asserting violations of Fourth, Fifth, Thirteenth, and Fourteenth Amendment rights, including unlawful searches and seizures, unlawful restraints on travel, punishment without due process, and involuntary servitude. In bringing their claim, Plaintiffs assert that Defendants have a persistent custom of removing and discouraging homeless people from remaining in the Downtown area. According to Plaintiffs, this custom is the driving force behind the constitutional violations suffered by Plaintiffs. Under 1983, local governmental entities may be sued for declaratory and injunctive relief, as well as compensatory damages. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Local governments may be sued directly under 1983 where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. Local governments may also be sued for "constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. at 690-91, 98 S. Ct. 2018. A "custom or usage" is demonstrated by showing (1) the existence of "a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees"; (2) the governmental entity's "deliberate indifference to or tacit authorization of" the misconduct after receiving notice thereof; and (3) the custom was the "moving force behind the constitutional violation." Kuha v. City of Minnetonka, 365 F.3d 590, 604 (8th Cir.2003). Importantly, municipal liability cannot be based upon a respondeat superior theory. Monell, 436 U.S. at 691, 98 S. Ct. 2018.

Finally, Plaintiffs allege that forcing Plaintiff Chad Johnson and others to perform physical labor under threat of confinement constituted involuntary servitude in violation of the Thirteenth Amendment. Though its principal purpose was to abolish slavery, the prohibition extends to other forms of forced labor. The Supreme Court has defined involuntary servitude as "a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process." United States v. Kozminski, 487 U.S. 931, 952, 108 S. Ct. 2751, 101 L. Ed. 2d 788 (1988). Plaintiff Chad Johnson was compelled by the threat of continued confinement to pick up trash in Lucas Park. Thus, at this point in the proceedings, Plaintiffs have sufficiently demonstrated a likelihood of success on the merits with regard to their Thirteenth Amendment argument.

Third, the Court must balance the harm to Plaintiffs if no relief is granted with the potential harm to Defendants if an injunction is issued. See Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 489-90 (8th Cir.1993) (affirming the district court's determination that the balance of harms weighed in favor of denying injunctive relief). Defendants are bound by federal and state law, including the United States constitution, in executing their duties to protect the safety of St. Louis citizens. Defendants argue that the injunctive relief requested by Plaintiffs will prevent them from executing their duties effectively and efficiently. In the exercise of their duties, police officers must be empowered to act to preserve and protect the interests and lives of the governed. In times of emergencies, for national security, to protect the individual security of individuals under governmental protection, and for many reasons, officers must be allowed, in exercising their lawful authority, to remove people from public areas. Such power does not, however, allow police authorities to antisepticly remove persons lawfully gathered engaging in lawful behavior from public property where the individuals have a lawful right to be. The Court respects the efforts of the police and has no intent to hinder their efforts to conduct lawful arrests and other activity necessary to protect the public welfare. The Court believes that injunctive relief can be narrowly and unambiguously drawn to minimize the harm to Defendants. Thus, the great harm to Plaintiffs far outweighs any harm to Defendants, and the Court therefore *951 concludes that this factor weighs in favors of granting injunctive relief at this time. 041b061a72