What is the plain English version of this? 4. At a City Council meeting on June 10, 1993, Councilman Kling proposed amending the Citys zoning ordinance to isolate group dwellings, such as homeless shelters, away from residential areas. However, even if we were to accept the plaintiffs implausible suggestion that such a change would violate their constitutional rights, cf. Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) (upholding a zoning ordinance that restricted land use to single-family residences), the mere proposal by one council-member of such a change does not indicate a municipal policy. In any event, Council President Saunders pretermitted discussion of Klings proposal saying, I think changing the law is not the answer at this particular time; no vote was taken on the proposal. 5. The Huntsville City Council has five members. President Saunders and Councilman Putnam are no more final policymakers than is Councilman Kling. However, their statements demonstrate both that Kling was not the final policymaker on homeless issues and that the Council was, at most, divided over the course of action to pursue. Their statements also suggest that the City had not authorized any violation of the plaintiffs rights. The other two councilmembers said nothing during that meeting, or at any other time insofar as the record shows, to indicate that they disagreed with the sentiments expressed by Saunders and Putnam. 6. There was some testimony that City police officers participated in the process of determining which property should be destroyed as unsanitary, and which property should be kept by the State to be reclaimed by the bridge people. However, there is no evidence that this aspect of the police activity was authorized by a final policymaker. 7. Named plaintiff Michael Dooly testified that he had been arrested for public intoxication several times, and admitted that he had been intoxicated on all but one of those occasions. Robert Lee Turner also testified that the police had harassed him by arresting him for public intoxication when he was admittedly drunk. Named plaintiff Frank Chisom testified that he had been arrested for public intoxication on numerous occasions, but that City police officers [say] youre drunk when youre not drunk. Whether youre drunk or not. However, Chisoms testimony is not inconsistent with the existence of probable cause; police detention of an individual for probable cause does not violate the Fourth Amendment. See Marx v. Gumbinner, 905 F.2d 1503, 1505-06 (11th Cir.1990) (The existence of probable cause, however, is an absolute bar to a section 1983 action for false arrest.). 8. The plaintiffs complain that they are frequently arrested for intoxication, detained overnight, and then released without ever seeing a magistrate or having an opportunity to raise any of their valid and substantial defenses to these charges. We have previously noted that [t]he government possesses broad discretion in determining whom to prosecute, subject to constitutional constraints prohibiting the exercise of such discretion based on race or other invidious grounds. United States v. Petit, 841 F.2d 1546, 1554 (11th Cir.), cert. denied, 487 U.S. 1237, 108 S.Ct. 2906, 101 L.Ed.2d 938 (1988). That the City prosecutor declines to prosecute the homeless for public intoxication does not divest the City police of the authority to arrest individuals whom they have probable cause to suspect have violated the law. We do not question the power of the [government] to remove a helplessly intoxicated person from a public street, although against his will, and to hold him until he has regained his powers. The persons own safety and the public interest require this much. A [public intoxication] statute ... is constitutional insofar as it authorizes a police officer to arrest any seriously intoxicated person when he is encountered in a public place. Powell v. Texas, 392 U.S. 514, 554 n. 5, 88 S.Ct. 2145, 2165 n. 5, 20 L.Ed.2d 1254 (1968) (White, J., concurring in the result). 9. For instance, witness Robert Lee Turner testified that when he was homeless in 1991, City police, on two occasions, took him into custody for public intoxication, transported him beyond the City limits, and released him. Named plaintiff Michael Dooly testified that one night in 1988, City police had twice picked him up and then released him at other locations in Huntsville. No evidence was offered to connect these stale incidents, or to link them to more recent incidents of a similar nature. Although Dooly testified that he had been barred from a public park since 1988, he did not explain the circumstances surrounding his expulsion. We therefore cannot determine whether any of his constitutional rights were infringed. Furthermore, homeless witnesses Jordan and Chisom testified that they had never been asked to leave a public park. Their testimony belies the existence of a pervasive practice or City custom of excluding the homeless from public parks. 10. Because the plaintiffs evidence fails to establish a City policy or practice of removing the homeless, we do not address the plaintiffs novel (and poorly briefed) arguments concerning the impact of the alleged City policy on their rights to vote and to travel. Similarly, we will not review any issues involving the class definition adopted by the district court, because such review is not necessary to our review of the preliminary injunction. Three other circuits have held that a pendent class certification order is not appealable under section 1292(a)(1) unless the preliminary injunction issue cannot properly be decided without reference to the class certification question. Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir.1982) (en banc); see also Port Auth. Police Benevolent Assn v. Port Auth., 698 F.2d 150, 152 (2d Cir.1983) (holding that a class certification order is reviewable on interlocutory appeal if it is substantially interdependent with an appealable ruling); Payne v. Travenol Lab., Inc. 673 F.2d 798, 807-08 (5th Cir.) (holding that a court may review a class certification order on interlocutory appeal when it shape[s] the contours of [the appealable] injunctive relief), cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605, and cert. denied, 459 U.S. 1038, 103 S.Ct. 452, 74 L.Ed.2d 605 (1982). Moreover, even if we have pendent appellate jurisdiction over the class certification issue, we decline to exercise it in this case. Cf. Swint v. City of Wadley, 5 F.3d 1435, 1449 (11th Cir.1993) (We have stated repeatedly that whether to exercise pendent appellate jurisdiction is discretionary.), modified on other grounds, 11 F.3d 1030 (11th Cir.), cert. granted on other grounds, ___ U.S. ___, 114 S.Ct. 2671, 129 L.Ed.2d 808 (1994). 11. The City urges us to dismiss the case with prejudice because the plaintiffs remaining legal theories are incapable of success. However, the City never moved for summary judgment in the district court, and we cannot transform our review of the preliminary injunction into a de facto motion for summary judgment. See Latecoere Intl, Inc. v. United States Dept of the Navy, 19 F.3d 1342, 1365-66 (11th Cir.1994).
Posted on: Fri, 01 Nov 2013 10:18:19 +0000
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