Can the city impound a homeless man’s vehicle if he is living in it?

Last Friday, King County Superior Court Judge Catherine Shaffer ruled on the case of Steven Long, a homeless man who had been living in his truck after he was evicted from his apartment because he couldn’t pay the rent. When his truck stopped running, he left it parked on a Seattle street longer than the allowed 72 hours, and after being warned about it, a few days later the city impounded it and called Lincoln Towing to take it away. Lincoln’s charge to retrieve his truck was hefty (on top of the city’s fine for exceeding the 72-hour parking restriction), and he decided to go to court over it — represented by local nonprofit legal services provider and homeless advocate Columbia Legal Services.

This case has received a fair amount of press attention this week, but it’s been difficult to report on accurately for lack of good information on the judge’s ruling. Shaffer ruled “from the bench” last Friday, and her scrawled-out written ruling basically says “what I said in court on Friday” and points to the transcript of the hearing, which hadn’t yet been produced.  That transcript finally became available this afternoon (here it is); it’s a pretty free-wheeling discussion of the case but paints a more nuanced version of the judge’s ruling than what was portrayed in the Stranger (who mostly got it right) and the Seattle Times (who got much of it wrong).

The case presented three issues for the judge:

1. Did the city impounding Long’s truck violate his due process rights?
2. Did the impounding of Long’s truck and large towing fee violate his 8th Amendment protections against excessive fines?
3. While Long is living in his truck, does the Homestead Act protect him from having liens attached to his truck for the fines and towing fee?

Let’s take these one at a time.

The judge disposed of the first issue fairly quickly, ruling in favor of the city. She found that Long had not told any of the city officials he had interacted with that he was living in his truck until after it was impounded, and there was no obvious signs in observing the truck itself that would have suggested to police that he was living there. So without any reason to believe this was anything other than an illegally parked vehicle, the city could not have violated his due process rights by knowingly depriving him of shelter. In the Judge’s words:

The argument is that the officers, especially I think the parking enforcement officer, violated his substantive due process rights by exposing him to a known and obvious danger with deliberate indifference to the danger they were creating…
This is not anybody who’s an official deliberately exposing Mr. Long to anything. Really from their point of view, it probably looked most likely that this truck had been abandoned with lots of stray property dumped in it. Only Mr. Long knew the true value of what was taken away.
So I am truly sorry, Mr. Long. I apologize on behalf of the government that this happened to you, but I don’t see a violation of your substantive due process rights because I don’t see that any official acted here with deliberate indifference to the plight you were in.

On the second issue, the judge separated out the impoundment from the fine and fee. This is a very important point, as there has been much concern over whether impounding a vehicle that someone is living in could be considered “cruel and unusual punishment,” which is prohibited under the 8th Amendment. However, the judge found that the city has the right to impound vehicles that are parked illegally.

I don’t mean to suggest to the City that they can never impound. I mean, that would be ridiculous… I don’t think it’s unreasonable for the City to impound, and I don’t think there’s any Eighth Amendment provision forbidding them to do it.

She was much more concerned about the large towing fee, however, and found that to be excessive.

I’m upholding the Eighth Amendment claim, but I’m only upholding it as to the payment plan that Mr. Long was required to enter into, not as to the claim as to the impound. I don’t think it’s unreasonable for the City to impound, and I don’t think there’s any Eighth Amendment provision forbidding them to do it. What I am complaining about here under the Eighth Amendment is the willingness to apply a towing fee of this size to somebody of Mr. Long’s circumstances without adjustment of a greater amount than I see here. I don’t think $50 is a reasonable payment plan for someone in Mr. Long’s position either. His income per month is something like $300 at best.

And that brings us to the third issue: whether Long is protected under the Homestead Act.

Article 19 of the Washington State Constitution says:

The legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families.

The point of this was to prevent the government from taking away essential possessions, and in particular someone’s residence, by attaching liens to the property so that the person is forced to sell it to pay off the money owed. The legislature responded to this mandate by passing (and amending several times) the Homestead Act (RCW 6.13).  It defines a “homestead” as:

The homestead consists of real or personal property that the owner uses as a residence. In the case of a dwelling house or mobile home, the homestead consists of the dwelling house or the mobile home in which the owner resides or intends to reside, with appurtenant buildings, and the land on which the same are situated and by which the same are surrounded, or improved or unimproved land owned with the intention of placing a house or mobile home thereon and residing thereon. A mobile home may be exempted under this chapter whether or not it is permanently affixed to the underlying land and whether or not the mobile home is placed upon a lot owned by the mobile home owner. Property included in the homestead must be actually intended or used as the principal home for the owner.

The Homestead Act goes on to specify that with certain exceptions and limits,

the homestead is exempt from attachment and from execution or forced sale for the debts of the owner

The judge found that under a plain reading of the definition of “homestead,” Long’s truck clearly was his homestead and thus was protected from having the towing fee attached to it as a lien.

And in fact, this is something the legislature recognized in 1993, noting that because some Washington citizens live on their boats or in their cars or vans, it was recommended expressly to incorporate any real property or personal property that a person used as a residence.

She did note, however, that the Homestead Act required Long to declare to the city that he was living in his truck in order for it to be illegal to attach liens to it.

This dances close to the big legal issue: when a homeless person is living on public property — in a tent, a vehicle, or some other makeshift shelter — does their shelter become their “home” or their “house?” If it does, then it confers rights under the state Constitution, which says under Article I Section 7: (my emphasis)

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

And the Fourth Amendment of the US Constitution says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There is a 9th Circuit Court of Appeals case that also touches on this. The court found that a homeless person’s encampment doesn’t become “abandoned” if left uninhabited for short periods of time (just as your car doesn’t become abandoned when you legally park on the street and leave it to shop at a grocery store), so the City of Los Angeles couldn’t simply seize and destroy it and its contents without due process. That falls short of saying “a homeless person’s camp is a home.” And in Long’s case, Judge Shaffer doesn’t go there either. Last year the ACLU tried to argue directly that a camp is a home in its lawsuit over Seattle’s “sweeps,” but didn’t make much headway either. As far as Long’s case goes, the Homestead Act defines a “homestead” for the purposes of the protections granted by the Act, but probably doesn’t set a precedent for defining a “home” that would apply to the rest of state law. Judge Shaffer certainly didn’t seem inclined to stretch it further.

Where does this leave us? Despite concerns in the press, Shaffer’s ruling in the Long case doesn’t actually move the city closer to establishing a legal “right to camp” on public property. It says that the city can still impound illegally parked vehicles, but puts limits on fines and towing fees: they need to be minimal, and they can’t be attached by lien to a vehicle that the owner is living in. That said, simply towing away someone’s residence is a pretty significant punishment, even without fines and fees on top of it.

That means we’re back to the “sweeps” controversy: the city can sweep illegally parked vehicles, which will make neighbors happier and potentially reduce hazards. But at the same time it will destabilize vulnerable homeless people and probably set them back in their efforts to emerge from homelessness. To date the City Council has been unwilling to directly address vehicle camping on public streets, though it is well aware that it is an issue in several neighborhoods.

Judge Shaffer’s ruling, which was on appeal from an earlier Municipal Court trial, is narrow and doesn’t set much precedent for how the city handles homeless people living in vehicles on the city’s streets. However, she knew she was simply setting the stage for a further appeal up the line. Note the last line of the transcript: “give me an order, and then on your way to Division I you go.”  (Division I is the state Court of Appeals)  And earlier this week, the City announced that they were indeed appealing the case. So the argument goes on.