ACLU files class-action lawsuit against Seattle and WSDOT for homeless sweeps

Today a class-action lawsuit was filed in U.S. District Court by the ACLU on behalf of Seattle’s homeless, against the City of Seattle and the Washington State Department of Transportation (WSDOT). The suit charges that the city and WSDOT’s “sweeps” of homeless encampments violate the constitutional rights of the encampments’ residents by

seizing and destroying the property of people who are living outside without adequate and effective notice, an opportunity to be heard, or a meaningful way to reclaim any property that was not destroyed.

Caveat emptor: I’m not a lawyer; these are my personal observations from reading the briefs and the judicial opinions.

ACLU and other advocacy groups have been pushing throughout the last year to reform the city’s encampment cleanup protocols, including proposing an ordinance to the City Council that would codify a new set of rules.

Today’s complaint names two people as plaintiffs who live in Seattle and are currently homeless and have been subject to sweeps of their camp, through which they lost personal possessions. It argues that they are representative of a general class who should be represented as co-plaintiffs:

All unhoused persons who live outside within the City of Seattle, Washington and who keep their belongings on public property.

Joining in the lawsuit as additional plaintiffs are two organizations: the Episcopal Diocese of Olympia, which includes several Episcopal churches in Seattle; and Real Change, which employs homeless people as vendors to sell newspapers in order to improve the economic outcomes for those vendors, and to raise fund to help the organization advocate for the homeless in the city.  Both organizations claim to have been hurt by the sweeps: the Episcopal Diocese argues that goods it has provided to homeless individuals have been confiscated, and Real Change claims that the sweeps make it difficult for their vendors to do their job both because of the general hardship it imposes but also in some cases by seizing the vendors’ supply of newspapers that they sell.

The plaintiffs claim that the city’s sweeps violate several Constitutions provisions:

Defendants’ policies and practices are not only unnecessarily cruel, they are also illegal: they violate Plaintiffs’ (1) right to protection from unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution; (2) right to protection from invasion of homes and privacy under Article I, Section 7 of the Washington State Constitution; (3) right to procedural due process under the Fourteenth Amendment of the U.S. Constitution; and (4) right to procedural due process under Article I, Section 3 of the Washington State Constitution.

For the two claim that relate to violations of the Fourth and Fourteenth Amendment of the U.S. Constitution, there is a clear and binding precedent from the 9th Circuit Court of Appeals: Lavan vs. the City of Los Angeles, in which the city was seizing and destroying personal possessions of homeless people living on public property. The Court ruled that the city had, in fact, had violated both the Fourth and Fourteenth Amendments by not providing adequate notice, by destroying property, and by not providing a means for the owners to reclaim seized property. Of particular note in the Court’s opinion:

Let us be clear about the property interest at stake in this appeal: The district court did not recognize, and we do not now address, the existence of a constitutionally-protected property right to leave possessions unattended on public sidewalks. Instead, the district court correctly recognized that this case concerns the most basic of property interests encompassed by the due process clause: Appellees’ interest in the continued ownership of their personal possessions…

As we have repeatedly made clear, “[t]he government may not take property like a thief in the night; rather, it must announce its intentions and give the property owner a chance to argue against the taking.” Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th Cir.2008). This simple rule holds regardless of whether the property in question is an Escalade or an EDAR, a Cadillac or a cart. The City demonstrates that it completely misunderstands the role of due process by its contrary suggestion that homeless persons instantly and permanently lose any protected property interest in their possessions by leaving them momentarily unattended in violation of a municipal ordinance. As the district court recognized, the logic of the City’s suggestion would also allow it to seize and destroy cars parked in no-parking zones left momentarily unattended…

Because homeless persons’ unabandoned possessions are “property” within the meaning of the Fourteenth Amendment, the City must comport with the requirements of the Fourteenth Amendment’s due process clause if it wishes to take and destroy them. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 48, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) (“Our precedents establish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property.”). The City admits that it failed to provide any notice or opportunity to be heard for Tony Lavan and other Appellees before it seized and destroyed their property. The City’s decision to forego any process before permanently depriving Appellees of protected property interests is especially troubling given the vulnerability of Skid Row’s homeless residents: “For many of us, the loss of our personal effects may pose a minor inconvenience. However, ․ the loss can be devastating for the homeless.”

This was a devastating defeat for the City of Los Angeles, and it’s an equally powerful hammer with which to bludgeon the City of Seattle and WSDOT.  One might argue — and the City certainly will try  —  that it provides advance notice, stores personal possessions, and provides a means to retrieve them at a later date. But there is ample evidence that even if it’s protocol is legal, its execution has been deeply flawed. Worse, the Court of Appeals suggests that homeless people need to have a meaningful opportunity to challenge the seizure and/or destruction of their property before it happens — and neither the City of Seattle nor WSDOT are currently doing that.

The Lavan case, originating in California, can’t speak to the applicability of the Washington State Constitution. But the state constitution’s “due process” clause is word-for-word the same as the federal one, so if Seattle and WSDOT are violating one, they’re violating both.

Article I, Section 7 is trickier. It reads:

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

And the state Constitution doesn’t define a “home.” So this is where today’s lawsuit plays some interesting word-games, by claiming that the plaintiffs are “unhoused” but still have a “home.”

“Unhoused” refers to all individuals who lack fixed, stable, or adequate shelter or housing.  While the term “homeless” is often utilized to refer to this population, we use the term “unhoused” because people who lack permanent or stable housing still have homes in which they sleep and go about their private affairs.

They go on:

Unhoused Seattle residents who live outside have homes.  They look different than brick and mortar houses but serve the same purposes.  They are often made of tents, tarps, blankets, poles, and other materials to create safe, dry, insulated, and private shelter.  And, like everyone else’s homes, they contain the owner’s possessions.  These belongings are often critical to survival or of particular psychological value, including medication, hearing aids, respirators, wheelchairs, and canes; blankets, a sleeping bag, or clothing to stay warm; tents or tarps to provide shelter; cookware, eating utensils, and food; identification, immigration, or court documents; bikes or other modes of transportation; work tools; schoolbooks and materials; and family photos and mementos.   

People living outside frequently build their homes on public property and in areas that provides some shelter from the elements, such as under bridges or roadways, and offer some privacy from the public to keep themselves and their possessions safe.  Many live near and among other people, in communities, much as those who live in houses do.  These communities (often referred to as encampments) offer an increased sense of safety, community, and stability.  In fact, individuals living outside frequently stay in their place of residency for many months, or even years.

They are making this distinction for one simple reason: so they can invoke the use of the word “home” in Article I, Section 7 of the state Constitution. And this frames up the most interesting legal question raised by this case (since Laval takes care of pretty much everything else): is an illegal encampment on public property a “home” that is protected from invasion?  The plaintiffs cite no precedents for that claim (though there will no doubt be more legal briefs filed in the weeks to come that will argue that point of law). But the implications of that are pretty staggering: if I were to set up a tent in a public park and declare it to be my home, under what circumstances is the government allowed to “invade” it? Further, if the city passively allows unsanctioned encampments to exist, is it strengthening the argument that they are “homes” for their occupants?  It’s curious that they decided to argue this point, given that their other three points look like slam-dunks.

The relief they are asking for is pretty straightforward:

Plaintiffs seek a declaratory judgment that Defendants’ policy and practice of confiscating and/or destroying the personal property of people living outside without a warrant, probable cause, an opportunity to be heard, a meaningful opportunity to reclaim property, and/or requisite procedural due process is unlawful under the federal and state constitutions.

Plaintiffs also seek appropriate injunctive relief enjoining Defendants’ use of sweeps until Defendants adopt and implement procedures that respect Plaintiffs’ constitutional rights. 

What’s more interesting is what they are NOT asking for: they are not asking for compensation for personal possessions seized and/or destroyed. They are also not asking for a preliminary injunction — at least not yet. That means that this will take a while to drag through the court system: the class of plaintiffs (i.e. all the “unhoused” in Seattle) needs to be certified, briefs need to volleyed back and forth, and hearings need to be scheduled. In other words, this will take months, if not years.

In the meantime, the city is working on a new version of its protocol for clearing unsanctioned encampments. That will also take weeks, perhaps months, to play out since they need to publish the new rules and have a comment period and public hearing before they can be finalized. They also believe they need to do a SEPA review (though possibly not a full EIS) as part of revising the rules.

It’s hard to tell which process will play out first. If the city gets its rules changed and can show that the new rules are compliant with constitutional requirements (and that they can execute them faithfully), they may make the case moot — though that doesn’t help WSDOT, which has its own process.

Stay tuned.