Judge denies ACLU’s motion for temporary restraining order on sweeps

This afternoon U.S. District Court Chief Judge Ricardo Martinez issued an order denying the ACLU a temporary restraining order (TRO) to stop WSDOT and the City of Seattle from seizing and destroying personal property without due process in cleaning up unsanctioned homeless encampments in Seattle.

Here’s my previous post summarizing yesterday’s hearing on the TRO. In it, I suggested that the judge seemed to be trying to ascertain which of the four things were true:

  1. the MDAR rules are constitutional, and the city has made a handful of mistakes;
  2. the MDAR rules are constitutional, and the city is grossly incompetent at executing on them;
  3. the MDAR rules are constitutional, and the city is flat-out ignoring them and just doing what it wants;
  4. the MDAR rules are unconstitutional.

To pass the first test for getting a TRO, the ACLU needed to show that its case was likely to succeed on the merits at trial. To accomplish that, it needed to show that either the city’s MDAR rules (which WSDOT agrees to follow, at least in theory, on its property within the City of Seattle)  are unconstitutional (#4), or that their execution on those rules was so hopelessly flawed (either #2 or #3) that violated their clients’ constitutional rights.

In today’s order, which as expected leans heavily on the 9th Circuit Court’s ruling in Lavan vs. City of Los Angeles, Martinez finds that #4 is not true: the MDAR rules, in his view, are constitutional. As to the ACLU’s claims about the city and WSDOT not following their own rules, the judge concluded that ACLU had not demonstrated that they are likely to succeed on the merits. He was very clear, though, that he was making that call based solely on the extremely limited amount of evidence already in the record:

The Court is not blind to the hardships faced by the unhoused Plaintiffs under the circumstances presented in this case. The Court recognizes their constitutional property rights, and makes no final determination at this time as to whether they will ultimately be successful on their claims. Indeed, the Court emphasizes that its analysis at this stage is a preliminary one. Thus, this decision reflects the state of the record at these early stages of the proceedings and
the limited evidence before the Court at this time.

That said, Martinez found fault with many of the declarations that the ACLU had provided since some of them acknowledged that notice had, in fact, been given and other never claimed that property had been seized.

Based on the evidence in the record at this time, including the many Declarations along with their Exhibits filed by both parties, the Court cannot say that Plaintiffs have shown a likelihood of success on the merits of their constitutional claims. The City and WSDOT
officials’ declarations establish that the City and WSDOT have enforced the MDARs consistent with the procedural protections built into them. This is unlike Lavan, because there, the City of
Los Angeles did not dispute the plaintiffs’ allegations and admitted that it had a policy and practice of seizing and destroying homeless persons’ possessions when they had not been abandoned… The City of Los Angeles also conceded that it did not provide any notice or an opportunity to be heard to the plaintiffs either before or after seizing their property…

In contrast, the City of Seattle and WSDOT state that they have provided notice and followed the procedural safeguards contained in the MDARs, and have even gone beyond those safeguards in many instances…  On the other hand, Plaintiffs’ assert that the City and WSDOT do not follow their own policies and often destroy personal property without notice to be heard and without any opportunity to retrieve the seized items… Yet, many of the Declarations submitted by Plaintiffs also acknowledge that notice has been provided before property is seized, although they dispute the sufficiency of such notices… Many of the Declarations do not identify whether property was taken and/or destroyed at any particular time, and many do not address any attempt to recover the items.

The second test the ACLU had to pass was to show that their clients would incur “irreparable harm” without a TRO. Martinez reiterated the reasons given above in deciding that the ACLU had not proven this either.

The Ninth Circuit Court of Appeals has previously stated an alternate test for granting a TRO: that “a movant has shown serious questions are raised and the balance of hardships tips sharply in its favor.” Martinez found that the ACLE hadn’t proven this either.

Having found that the ACLU failed the first two tests and the alternate test, the judge denied the TRO. Instead, he ordered the two sides to confer and propose a schedule for written briefs and oral arguments so that the case may proceed on to a more in-depth consideration of a preliminary injunction. The test will be the same, but that will give the ACLU more time to gather information to present as to the reality of WSDOT’s and the ACLU’s ability to faithfully execute on its own set of rules, and it’s entirely possible that with a more comprehensive set of evidence in the record, it could successfully win a preliminary injunction. But that will take a few weeks, perhaps a couple of months, to play out.

For now, the City of Seattle and WSDOT won the day, and their cleanups of unsanctioned homeless encampments will continue.

City Attorney Pete Holmes attended yesterday afternoon’s hearing, and afterwards he told me that he spoke with the plaintiffs and encouraged them to work with the city on improving the MDAR rules and processes. He struck a conciliatory tone, admitting that getting the rules right was very challenging and stating his own belief that they needed as many smart people as possible helping with that process.

On a related note: tomorrow (February 15) is the last day to provide feedback on the draft of the new MDAR rules for homeless encampment cleanups.

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