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February 21, 1995

STREETWATCH, et al., Plaintiffs, against NATIONAL RAILROAD PASSENGER CORPORATION, et al., Defendants.

The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY

 I. Findings of Fact and Conclusions of Law

 This case, as filed, included claims pursuant to 42 U.S.C. §§ 1983 and 1988; the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution; Article 1, Sections 8, 9 and 11 of the New York State Constitution; the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; and the common law of the State of New York.

 However, for the purpose of this motion for a preliminary injunction, the parties focussed on the rights of the individual plaintiffs who are homeless, or persons perceived by the Defendants to be homeless, to simply loiter in Penn Station.

 Plaintiffs concede that they do not have the right to seek overnight shelter in Penn Station.

 They also agree that Defendants may provide seats in Penn Station for ticketed passengers only.

 Plaintiffs do not claim freedom from arrest for probable cause while they are in Penn Station. Plaintiffs do assert, however, that Defendants' policies and practices single out Plaintiffs for harassment and ejectment from Penn Station based solely upon Defendants' perception that the named individual Plaintiffs are homeless or are merely loitering for no purpose in Penn Station.

 After hearing the evidence and after weighing the testimony, exhibits received in evidence and the credibility of the witnesses, the court makes the following findings of fact and conclusions of law:

A. The Parties.

 1. Plaintiff StreetWatch is an unincorporated membership association operating in New York City. Its purpose is to monitor police and private security forces' treatment of homeless people and people they perceive to be homeless in public areas of New York City; to interview homeless people about their experiences of harassment and abuse; to document in notes and on videotape instances of physical abuse of homeless people by police and private security; and to make residents of New York aware of the physical abuse of homeless people by police and private security through various public education efforts. StreetWatch has approximately 60 volunteer members including students, waiters, accountants, teachers, real estate brokers, lawyers, artists, and filmmakers. (Compl. P 6.)

 2. The individually named Plaintiffs, Elizabeth Beer, Brad Lichtenstein, James Gray, Ellis Neder, Emily Nussbaum, Deborah Anderson, J.J. Gilbreath, Lynn Vogelstein, Heidi Tinsman, William Broberg, and Lisa Daugaard are members of StreetWatch. (Compl. P 7.)

 3. The individually named Plaintiffs, Robert Grant, Kevin Carpenter, Al Franklin, William Wilson, Ahme Saah, Wayne Baldwin, Steve Aal, Carlos Rosado, Ray Cooper, Malcolm Dwight Scott, William Johnson, Michael Martinez, and Edwin Perez are or have been homeless. (Compl. P 8.)

 4. Defendant National Railroad Passenger Corporation ("Amtrak") is a corporation created by the Rail Passenger Service Act of 1970, 45 U.S.C. § 501 et seq. (Compl. P 9.) As provided by Congress, Amtrak's principal function is to "provide . . . modern, cost-efficient, and energy efficient intercity railroad passenger service between crowded urban areas and in other parts of the country . . . [so as to enable] travelers in America . . . [to] have the freedom to choose the mode of transportation most convenient to their needs." 45 U.S.C. § 501(a).

 5. Pursuant to 45 U.S.C. § 545(j), Amtrak maintains a Police Department whose officers are appointed by the New York Superintendent of State Police under § 88 of the New York Railroad Law. These Amtrak police officers have "all the powers of a policeman in cities and villages, for the preservation of order and of the public peace, and the arrest of all persons committing offenses upon the land of or upon property in the custody of or under the control of [Amtrak]." N.Y. R.R. Law § 88(1) (McKinney 1991).

 6. The individually named Defendants are officers in the Amtrak Police Department. (Compl. PP 10-17.)

 7. Pennsylvania Railroad Station ("Penn Station") is an important hub of interstate travel and intrastate transportation. From Penn Station, one can access Amtrak's national rail network covering at least 44 states, travel to New Jersey on New Jersey Transit, travel to points east on the Long Island Railroad and travel around New York City on a number of subway lines. (R. at 43-44, 156, 635, 652, 928.)

 8. Penn Station is also far more than just a transportation facility. (R. at 999-1000.) A myriad of services entice the general public to enter and remain in Penn Station. In addition to rail transportation on Amtrak, New Jersey Transit, the Long Island Railroad, and the subway, the Penn Station complex houses commercial establishments, including a number of restaurants, bars, fast food outlets, newsstands, electronics stores, beeper stores, and other commercial establishments. (R. at 17-18, 155-56, 391-92.) Public telephones and public restrooms are available. (R. at 1000.) The concourses of Penn Station are laid out and used as walkways to subway stops and provide sheltered access from one part of the City to another. (R. at 156.) Penn Station is continuously open to the public until 12:00 A.M. (R. at 156, 741-42, 752-53, 1003.) Upwards of 200,000 people pass through it every day. (R. at 1070-71.)

B. Amtrak's Rules of Conduct Affecting the Homeless in Penn Station.

 9. Amtrak has adopted Rules of Conduct to govern public access to and conduct in Penn Station. See Pls.'s Ex. 6. The Preamble to these Rules of Conduct defines "public areas" of the Station as those "which are intended for use by the public in accessing transportation, arcades, restaurants, shops, offices and other businesses in the facility, in traveling through the station, from one point to another, in waiting for transportation, and in using public lavatory facilities and public pay telephones or other services as may be permitted pursuant to these Rules." (Pls.'s Ex. 6 at 1.) (emphasis added). Under the heading "Prohibited Uses," the Rules list a number of specific activities; however, this section concludes with a catch-all prohibition against "otherwise engag[ing] in any activity which interferes with the commercial activities of lessees, tenants and their customers." (Pls.'s Ex. 6 at 2.) This general clause is based on the New York State Penal Code, the Preamble to the Rules, and Amtrak's officials' perceptions of common sense. (R. at 947-48, 951, 1001.)

 10. Amtrak officials maintain that walking around or "hanging out" in Penn Station hour after hour does not constitute a legitimate business purpose and is not a designated use as set forth in the Preamble of the Rules of Conduct. (R. at 947-55.) However, the Rules of Conduct do not expressly forbid walking or wandering around the Station, nor do they prohibit anyone from being there for more than a specified period of time. (R. at 840.)

 11. Among the purposes Amtrak cites for its Rules of Conduct are reducing congestion, maintaining cleanliness, consistency with the rules used by the Long Island Railroad, providing a comfortable and safe environment for travelers and preventing crime. (R. at 179, 806-07, 809-10, 845-46, 929-31, 941, 954-55, 979, 1060-65.) However, the Rules of Conduct evolved from, and are a continuation of, an earlier policy of ejecting the homeless from Penn Station as "undesireables." (Pls.'s Ex. 2; Pls.'s Ex. 5; R. at 804, 812-13, 819, 823, 825, 945, 1017-25.) An Amtrak internal memorandum lists as groups of undesireables the "homeless, pan handlers, ticket scalpers, and thieves." (Pls.'s Ex. 13; see also Pls.'s Ex. 14.)

 12. Amtrak police officers rely on the Rules of Conduct, the New York Penal Law, and the officers' own experience and discretion in determining whether a given individual has a legitimate business purpose for being in Penn Station. (R. at 259, 804, 844, 1005-07, 1011, 1013-15, 1025, 1066-67.) Among the factors that officers consider in making such determinations are the condition, conduct, and location of the individual, the time of day, and the length of the individual's stay. (R. at 179-81, 804-06, 844.) Other than the Rules of Conduct discussed above, there are no written guidelines to govern or contain any aspect of how these officers exercise their discretion. (R. at 844, 849-50, 1003, 1006, 1010-11, 1015, 1025-27.)

 13. Amtrak specifies procedures for its officers to follow in ejecting individuals from Penn Station. Before ejecting an individual from Penn Station, an officer is required to warn that individual that he or she has no right to remain in the Station and that he or she should leave voluntarily. (R. at 972.) If the individual refuses to leave the Station voluntarily, the officer is instructed to give him or her a five-minute cooling off period which often results in the individual leaving on his or her own. (Defs.'s Ex. Q; R. at 972.) If, after the five minutes, the individual still refuses to leave voluntarily, then a supervisor is to be called to the scene to evaluate whether or not the individual should be ejected or, instead, arrested. (Defs.'s Ex. Q; R. at 804-06, 856-57, 924, 972, 1034-35.) The supervisors make these determinations based on the particular circumstances of each case, including the time, the condition and the location of the individual. (R. at 804-06, 856-57, 972.)

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