- en  Ol  u..  s:  I- <(  13  UJ  ()  <(  UJ   0  L()  ('")  17   The San Diego City Council did not design or intend for Municipal Code  18  19  §54.0110 ("Illegal Encroachment" or "MC §54.011 O") to be used against people  20  living on the street. It is an obscure ordinance intended to address trash cans and  21  dumpsters left on the sidewalks too long after trash pickup. The City's  22  23  Environmental Services Department recommended MC §54.01 lO's adoption, and  24  an October 18, 2007 Authorizing Ordinance reveals that it was intended to address  25  "unauthorized solid waste or recycling dumpsters and bins discovered in the public  26  27  right-of-way or on public property." No community participation took place before  28  MC §54.0llO's enactment, and there was no public discussion or written record  - 19 - Plaintiffs bring this action on their own behalves and on behalf of all other  - _J  cc  0  cc  I- CJ  14  UJ  en  UJ  I  I  - UJ  en  0  15  cc  <( z  persons similarly situated. The Class of people that Plaintiffs represent consists of  0  <(  s:  en  16  all those persons in the City of San Diego who are homeless and ( 1) have nowhere  0  L()  C')  17  to place themselves or their belongings other than in public; (2) who fear being  18  19  ticketed for violation of MC §54.0110 ("encroachment") if they set anything down;  20  (3) who have been issued one or more citations for "encroachment;" (4) who have  21  become the subject of"stay away" orders resulting from an "encroachment" citation;  22  23  and/or (5) have been arrested or jailed for violating MC §54.0110.  24   The members of the Class are so numerous that individual joinder of all  25  members is impracticable. Fed. R. Civ. P. 23(a)(l). The Class is comprised of  26  27  thousands of individuals who are homeless in the City of San Diego, and who are  28  potentially committing a crime every time they place their belongings on public  - 4 - Plaintiffs incorporate the allegations in paragraphs 1-43 above.   42 U.S.C. §1983 provides that, "[e]very 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 other person within the jurisdiction thereof to the deprivation of any rights,  privileges, or immunities secured by the Constitution and laws, shall be liable to the  party injured in an action at law, suit in equity, or other proper proceeding for  d  "  re ress ....   efendants' actions violate Plaintiffs' civil and constitutional rights,  including, but not limited to, Plaintiffs' rights under the Fourth, Eighth and  Fourteenth Amendments to the United States Constitution, and Article 1, §7, Article  1, § 15; and Article 1, § 1 7 of the California Constitution.  - 26 - Plaintiffs incorporate the allegations in paragraphs 1-43 above.   Forces beyond Plaintiffs' control, such as unemployment, poverty, medical  conditions, and the failure of the Defendant to provide alternatives, including but not  limited to those which may be mandated by law, have compelled Plaintiffs and  others to live and place their belongings in public.   Because of Plaintiffs' status as homeless and unsheltered, Plaintiffs must  carry their belongings-including items necessary for their health, safety, and  security-with them in their daily lives. Plaintiffs must set themselves and their  belongings down on public property because they do not have access to private  shelter or storage. Placing belongings on public property constitutes an involuntary  and unavoidable manifestation of the Plaintiffs' status as homeless. Plaintiffs may  not avoid committing acts that violate MC §54.0110, which criminalizes placing any  object on public property, at any time for any length of time, even a moment, ever. 14  14 In a Statement of Interest of the United States in Bell v. City of Boise 834  F.Supp.2d  1103,  filed  August  6,  2015  (available  at:  htfps:l/wwwjustice.gov/crt/fi,_le/761211rdownloa~ the U.S. Department of Justice  clarified its recommended framework for analyztng Eighth Amendment claims  relating to criminalization of homelessness:  "If sufficient shelter space is unavailable because a) there are  inadequate beds for the entire population, orb) there are restrictions on those  - 27 - Plaintiffs incorporate the allegations in paragraphs 1-43 above.  b~ds tqat disqualify certau~ groups_ of homeless in.dividuals (e.g., _because of  disability access or exceeding maxunum stay requirements), then 1t would be  impossiole for some .homeless tndividuals to comply with these ordiµances.  As set forth below, m those circumstances enforcement of the ordinances  am.aunts to the criminalization of homelessness, in violation of the Eighth  Amendment."  - 28 - Cruel and Unusual Punishment in Violation of the  United States and California Constitutions   Violation of 42 U.S.C. §1983   Violation of Due Process Under the  United States and California Constitutions  