Case: 4:20-cv-00597-SEP Doc. #: 23 Filed: 05/02/20 Page: 1 of 10 PageID #: 181

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RANATA FRANK, on behalf of herself
and all others similarly situated,
Plaintiffs,
v.
THE CITY OF ST. LOUIS,
Defendant.

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Case No. 4:20-CV-00597 SEP

MEMORANDUM AND ORDER
This case lies at the intersection of two intractable social problems: homelessness and the
Covid-19 pandemic. The parties disagree about how best to serve the needs of individuals
experiencing homelessness in downtown St. Louis, Missouri, in light of the extraordinary
complications caused by the novel coronavirus. Defendant, the City of St. Louis (“the City”),
believes that the tent encampments that have developed in the area circumscribed by 10th and
18th Streets and Market and Chestnut Streets in downtown St. Louis pose a risk to the health of
their occupants and the public, and therefore the City seeks to close those encampments and
relocate their residents. Plaintiff Ranata Frank (“Ms. Frank”), a woman who has resided in one
of the threatened encampments for the past month, believes that the City’s closure of the
encampment punishes her based on her homeless status in violation of her Eighth Amendment
right to protection from cruel and unusual punishment.
Homelessness is an exceptionally complex phenomenon even when it is not exacerbated
by a global pandemic. The Court admires all entities that work to address the scourge of
homelessness—a category that includes both Plaintiff’s counsel, the ArchCity Defenders, and
Defendant, the City of St. Louis. The Court does not doubt the depth or sincerity of either
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organization’s concern for the individuals who reside in the encampments that are at the heart of
this case. Nor does the Court express an opinion about the merits of either’s approach to
addressing those individuals’ needs. This Court’s role is not to evaluate competing policy
prescriptions.
This case is before the Court on Plaintiffs’ Motion for Temporary Restraining Order
(“TRO”). Doc. [3]. Therefore, the sole question before this Court is whether Plaintiff has met
the legal standard for obtaining the “extraordinary and drastic remedy” of an immediate
injunction against the City’s proposed course of action. King v. Blake, No. 4:08CV1050 RWS,
2009 WL 73678, at *1 (E.D. Mo. Jan. 9, 2009); see also id. (“The burden of proving that the
relief should be awarded rests entirely on the movant.”). Upon review of Plaintiff’s Class Action
Complaint (Doc. [1]) and supporting declarations; Plaintiffs’ Motion for Temporary Restraining
Order (Doc. [3]); affidavits submitted by Defendant in Opposition to Plaintiff’s Motion for
Temporary Restraining Order (Docs. [13], [18]); the City of St. Louis’s April 29, 2020, Notice of
Violations and Order to Vacate (Doc. [22], attached hereto as Exhibit A) (“Notice and Order”);
and having heard oral argument, the Court finds that Ms. Frank has not met that burden, and
therefore her motion must be denied.

I.

Standard of Review
In determining whether to issue a TRO, the Court must consider the following four

factors: (1) the threat of irreparable harm to the movant; (2) the balance between that harm and
the harm that granting the injunction will inflict on other parties; (3) the probability that movant
will prevail on the merits; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640
F.2d 109, 113 (8th Cir. 1981) (en banc); see also City of Berkeley, Missouri v. Ferguson-

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Florissant Sch. Dist., No. 4:19CV168 RLW, 2019 WL 1558487, at *2 (E.D. Mo. Apr. 10, 2019).
“While ‘no single factor is determinative,’ the probability of success factor is the most
significant.” Home Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th Cir. 2013) (quoting
Dataphase, 640 F.2d at 113 (internal citation omitted)). Therefore, the Court will begin its
analysis there.

II.

Discussion
A. Plaintiff’s likelihood of success on the merits
Ms. Frank has not demonstrated that she is likely to succeed on the merits of her Eighth

Amendment claim. Whether a citywide ban on homelessness amounts to the de facto
criminalization of the status of being homeless, and whether such a de facto criminalization
violates the Eighth Amendment, are questions of first impression in the Eighth Circuit. But the
Court need not answer those questions here, because the City’s Notice and Order is not a
citywide ban on homelessness. Rather, it applies to only the tent encampments located near
Market Street and Chestnut Street in downtown St. Louis. See Exh. A.
Ms. Frank’s argument is grounded in the Eighth Amendment, which prohibits the use of
criminal laws to punish a person’s status as opposed to their conduct. Doc. [3-1] at 7 (citing
Robinson v. California, 370 U.S. 660, 666 (1962)). Specifically, Ms. Frank accuses the City of
punishing her for living in a public park, which, she asserts, punishes her status “of having
nowhere else to go.” Id. at 8. To support her position, Ms. Frank relies almost exclusively on
the Ninth Circuit’s holding Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019).
In Martin, six individuals experiencing homelessness brought an Eighth Amendment
challenge against two city ordinances. Martin, 920 F.3d at 1035. The first ordinance made it “a

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misdemeanor to use ‘any of the streets, sidewalks, parks, or public places as a camping place at
any time.’” Id. The second prohibited “‘[o]ccupying, lodging, or sleeping in any building,
structure, or public place, whether public or private ... without the permission of the owner or
person entitled to possession or in control thereof.’” Id. The plaintiffs alleged—and the Ninth
Circuit agreed—that the ordinances violated the Eighth Amendment “insofar as [they] impose[d]
criminal sanctions against homeless individuals for sleeping outdoors, on public property, when
no alternative shelter [was] available to them.” Id.
The Martin court based its holding on the “substantive limits on what the government
may criminalize” under the Eighth Amendment. Id. at 1046. Those substantive limits, the court
explained, make it unconstitutional for the state to punish “‘an involuntary act or condition if it is
the unavoidable consequence of one’s status or being.’” Id. at 1048 (quoting Jones v. City of Los
Angeles, 444 F.3d 1118, 1135 (9th Cir. 2006)). “[J]ust as the state may not criminalize the state
of being ‘homeless in public places,’” the court noted, “the state may not ‘criminalize conduct
that is an unavoidable consequence of being homeless—namely sitting, lying, or sleeping on the
streets.’” Id. (quoting Jones, 444 F.3d at 1137). From these principles, the court determined
that the City’s ordinances violated the Eighth Amendment’s substantive limits.
But the Martin court cautioned that its holding was “a narrow one.” Id. It held “only that
‘so long as there is a greater number of homeless individuals in [a jurisdiction] than the number
of available beds [in shelters],’ the jurisdiction cannot prosecute homeless individuals for
‘involuntarily sitting, lying, and sleeping in public.’” Id. (quoting Jones, 444 F.3d at 1137). Put
differently, the Martin holding stands only for the proposition that “as long as there is no option
of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping
outdoors, on public property, on the false premise they had a choice in the matter.” Id.

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The facts of the present case differ from Martin in several important respects. Chief
among these differences is the scope of the cities’ respective prohibitions. In Martin, the City of
Boise’s ordinance was being enforced throughout the city. Here, by contrast, the City’s Notice
and Order is expressly limited to only those encampments located near Market Street and
Chestnut Street in downtown St. Louis. The City’s Director of Health testified that several
encampments throughout the city remain open. The inhabitants of the Market and Chestnut
Street encampments are therefore free to sleep in other areas of the city without being in
violation of the City’s Notice and Order.
The City of St. Louis is therefore not criminalizing the state of being homeless or its
unavoidable consequences, such as sleeping in public. At most, the City is criminalizing
sleeping in public in a particular location. And according to Dr. Echols, as well as the Order to
Vacate itself, the City is doing so because it has identified that particular location as especially
“high risk . . for the spread of COVID-19. . . .” Exh. A. During times of public health crises,
local governments have broad latitude to institute protective measures so long as those measures
have “a ‘real or substantial relation’ to the public health crisis.” In re Rutledge, No. 20-1791,
2020 WL 1933122, at *5 (8th Cir. 2020) (quoting Jacobson v. Commonwealth of Massachusetts,
197 U.S. 11, 31 (1905)). The City’s Notice and Order unquestionably has a real and substantial
relation to the Covid-19 pandemic. See Exh. A (identifying the encampment as “a serious health
threat . . . due to the potential exposure and spread of COVID-19”).
Furthermore, it is not at all clear that the City is criminalizing homelessness anywhere,
even at the downtown encampments. At oral argument, counsel for the City repeatedly stated
that the City had no intention of arresting the individuals who have been residing at the
encampments. Rather, all evidence points to the City’s intent being to ensure that those

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individuals move from the encampments to safer alternative housing options. For example, the
Notice and Order itself says nothing about criminal liability or penalties. Rather, after describing
the risks associated with life in the encampment, it states:
Through outreach over a period of two weeks, shelter and housing has [sic] been offered
to individuals in the encampment and forty individuals have been placed in housing.
Enough housing/shelter openings are available to house the approximately fifty
individuals who have been sleeping in the tents in the current encampment. I encourage
each individual to work with the Department of Health and the Department of Human
Services to avail themselves of these no cost housing opportunities.
Exh. A at 1.
That brings the Court to its final point on this factor: the availability of alternative
housing. Even if this Court were to follow the Ninth Circuit’s holding in Martin, that holding
would not compel the issuance of a TRO in this case. As previously explained, the Martin
opinion is limited to instances where “there is no option of sleeping indoors.” Martin, 920 F.3d
at 1048. Here, the Notice and Order posted at the downtown encampments clearly states that
sufficient alternative housing is available for everyone still sleeping there. Exh. A at 1. Dr.
Echols reiterated that claim throughout his testimony, at one point noting that there were roughly
95 beds available this morning for the roughly 50 people remaining at the encampment. While
Plaintiff’s counsel expressed skepticism of that claim based on data relating to the St. Louis
community more broadly, none of their arguments cast doubt on Dr. Echols’s claim that the City
had deliberately expanded its capacity and reserved spaces for the residents of the encampments
in order to comply with the CDC’s guidance that encampments should not be cleared “[u]nless
individual housing units are available.” Doc. [3-1] at 2 (citing People Experiencing
Homelessness and COVID-19: Interim Guidance, Centers for Disease Control (Mar. 22, 2020)).

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The available evidence therefore suggests that alternative housing is available to Plaintiff and the
other current residents of the encampments. 1
Because the City’s order to vacate is limited in scope, because there is no evidence that
Ms. Frank faces a genuine threat of criminal punishment, and because the City has represented
that it is capable of housing every resident of the current encampment, the Court cannot find that
Ms. Frank is likely to succeed on her Eighth Amendment claim.
B. Threat of irreparable harm to Plaintiff
The next TRO factor the Court considers is the threat of irreparable harm to Ms. Frank if
her request for a temporary restraining order is denied. “To succeed in demonstrating a threat of
irreparable harm, a party must show that the harm is certain and great and of such imminence
that there is a clear and present need for equitable relief.” Powell v. Noble, 798 F.3d 690, 702
(8th Cir. 2015) (quoting S.J.W. ex rel. Wilson v. Lee’s Summit R–7 Sch. Dist., 696 F.3d 771, 778
(8th Cir. 2012) (internal quotation marks omitted)).
Ms. Frank lists four potential harms she believes she will suffer unless the Court grants
her request for a TRO. First, she claims she will suffer the deprivation of her constitutional
rights. Doc. [3-1] at 10. Second, she claims she will be forcefully removed from the
encampment, separated from her belongings, and cited for ordinance violations. Id. at 11. Third,
she claims she will be exposed to increased risk of contracting Covid-19. Id. Finally, she claims

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Plaintiff does aver that she has sought accommodation in a shelter unsuccessfully several times since
November 2019, and that she recently sought a room in a hotel but no one ever followed up with her,
despite promising that they would. See Doc. [1-5]. In response, the City includes an affidavit from the
Chief Program Manager of the City of St. Louis Department of Human Services attesting that she
arranged a hotel room for Ms. Frank and her partner but was unable to locate her thereafter. See Doc.
[18-1]. Therefore, notwithstanding Ms. Frank’s past inability to find shelter, the evidence still supports
the City’s claim to have space for her now.

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she will be “forced into further homelessness.” Id. at 12. The Court will consider each claim in
turn.
While the deprivation of Eighth Amendment rights certainly would constitute irreparable
harm, the Court has already explained that it is doubtful Ms. Frank will succeed in showing a
violation of her Eighth Amendment rights. Accordingly, Ms. Frank cannot rely on that claim to
demonstrate a threat of irreparable harm. Powell, 798 F.3d at 702 (“[A]s we have concluded
Powell is unlikely to succeed in showing his First Amendment rights have been violated, we
agree with the district court that Powell has not shown a threat of irreparable harm that warrants
preliminary injunctive relief.”).
The Court is not persuaded that Ms. Frank is at risk of forceful removal, separation from
her belongings, or citation. Ms. Frank cites no evidence that those outcomes are likely, and the
Notice and Order and hearing testimony both suggest that they are not. See Section III.A, supra;
see also, e.g., Exh. A at 2 (ordering that residents’ personal items be stored at a secure location
for up to 30 days with instructions for how to retrieve them). Those harms are therefore not
“certain and great and of such imminence that there is a clear and present need for equitable
relief.” Powell, 798 F.3d at 702.
The third harm Ms. Frank lists is likewise contradicted by testimony from the City’s
public health expert, Dr. Echols. As noted above, while the Centers for Disease Control has
counseled against disbanding homeless encampments in general, that advice is subject to a
critical exception: “[u]nless individual housing units are available.” Here, the City has taken
pains to bring its public health initiative in line with the CDC’s guidance by ensuring that it has
an individual housing unit available for every displaced resident of the encampments. The Court
is hesitant to use its equitable powers to second-guess the reasonable and informed decisions of

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public health experts. See also McDougall v. County of Ventura California, No. 20-CV-02927CBM-(ASx), 2020 WL 2078246, at *2 (C.D. Cal. Apr. 1, 2020) (deferring to county
government’s determination as to how to combat the spread of Covid-19).
The final harm Ms. Frank lists is also contrary to the weight of the evidence. Rather than
forcing her further into homelessness, the evidence presented suggests Ms. Frank’s access to
“food, clothing, sanitation, [and] care” (Doc. [3-1] at 12) would be improved by the City’s
Notice and Order. Therefore, the Court cannot find that this harm is certain or imminent.
C. & D. Potential harm to the City and the public interest
The City’s interest in this case is the effective containment of the Covid-19 virus and the
protection of public health. Thus, the Court’s analysis of the third and fourth factors converge.
There can be little doubt that the public interest heavily favors the City’s ability to take steps to
prevent the spread of this deadly disease. As the Eighth Circuit recently observed, the world “is
in the midst of an unprecedented health crisis occasioned by the worldwide COVID-19
pandemic. Every day, the number of people infected with COVID-19 continues to rise, along
with the virus’s death toll.” In re Rutledge, 2020 WL 1933122, at *1. The Court cannot say that
a temporary restraining order prohibiting the City from taking the steps it reasonably deems
necessary to slow the spread of Covid-19 serves the public interest.

III.

Conclusion
Because none of the four Dataphase factors weighs in Ms. Frank’s favor, the Court finds

that she has not met her burden to justify the “extraordinary and drastic remedy” of a temporary
restraining order. King, 2009 WL 73678, at *1.

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Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Temporary Restraining Order
(Doc. [3]) is DENIED.
IT IS FURTHER ORDERED that this matter is set for a preliminary injunction hearing
on Tuesday, May 12, 2020, at 10 AM.
Dated this 2nd day of May, 2020.

Sarah E. Pitlyk
United States District Judge

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