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Judge denies ACLU’s request to stop encampment sweeps

One of the growing number of encampments in Seattle. Credit: Matt Mills McKnight

Seattle officials can continue to clean up homeless encampments while a suit challenging the city’s practices works its way toward a trial.

U.S. District Court Judge Ricardo Martinez on Tuesday refused to grant a request for a temporary restraining order that would have prevented the city and state from seizing property inside the hundreds of homeless encampments across the city. In refusing to grant the restraining order, Martinez was apparently unconvinced, at least for now, that the city’s current practices were violating the constitutional rights of people living on the streets.

The request for the restraining order is part of a larger lawsuit against the city, brought last month by the ACLU on behalf of two people with histories of homelessness, Lisa Hooper and Brandie Osborne. The Episcopal Diocese of Olympia and Real Change, an advocacy newspaper for people experiencing homelessness, are also parties. The suit claims that the city is violating the Fourth and 14th amendments — related to property seizure and due process — by seizing and often destroying the property of people living in so-called “unsanctioned encampments” without sufficient notice.

The plaintiffs sought the temporary restraining order while both the full lawsuit and the city’s new rules for handling encampments are still pending. To grant the order, Judge Martinez would need to determine that the ACLU and its co-parties were likely to succeed in the lawsuit, something he declared himself “a little skeptical” of during a hearing on Monday.

Attorney Todd Williams, arguing on behalf of the ACLU, said the restraining order would not preclude the city from conducting the sweeps. “They can do all the things they’re currently doing, they just have to do it constitutionally,” he said, which would mean separating out property from trash and more consistently providing notice.

But this argument has not gone over well in the offices of the mayor and the city attorney. For one, representatives from both fiercely reject the idea that the city is behaving unconstitutionally. Opponents of the sweeps have leaned heavily on a case out of Los Angeles that found the city was violating the constitution when it seized the belongings of people living on the streets. Seattle city officials roll their eyes at the comparison, arguing that, unlike LA, Seattle fully acknowledges people’s constitutional rights to their belongings. “It’s not gone perfectly,” said attorney Matt Segal, representing the city, “but [the city’s] making every effort. The policy and practice … of ignoring these rights is not present here.”

The Mayor’s Office also rejects that this restraining order would be anything but a massive and unprecedented block on the city’s ability to address what top officials view as a widespread threat to public health and safety they say is present in some encampments. The presence in the courtroom of City Attorney Pete Holmes and several of Mayor Ed Murray’s top advisers hinted at how seriously they’re taking the suit.

The cleanups or sweeps of these unsanctioned encampments — often on city- or state-owned land — have been the subject of intense scrutiny for years now. Last summer, the debate over how best to address these gatherings of tents, sprouting by the hundreds, reached a fever pitch as the ACLU and others homeless advocates introduced proposed city ordinances to dramatically reshape how the city should respond. Stories of botched or poorly coordinated sweeps added to the pressure on the city and state to overhaul their approaches.

The advocates threatened legal action throughout the city council process, but held off as proposed changes seemed to be moving forward. But progress stalled and they filed the lawsuit at the beginning of 2017.

Complaining that people’s belonging rarely are properly catalogued and stored, ACLU attorney Williams cited the rising number of homeless in Seattle and the number of sweeps to “tell a story of personal property loss and destruction.” While the city would be allowed to immediately remove items in cases of emergency under the proposed order, he said, most property seizures should be halted until the city clarifies its rules and proves it can follow them.

Judge Martinez questioned the plaintiff’s numbers and the cleanup workers’ ability to separate personal items from waste and also highlighted the city and state’s obligations to react to unsafe encampments. He even offered a personal anecdote of seeing homeless encampments and wondering about the safety of the people who lived there.

Attorney Segal sought to discredit the ACLU’s numbers and much of the evidence as anecdotal. He also argued that, unlike how LA had operated, Seattle’s policy of providing notice and outreach when conducting cleanups respects people’s constitutional rights to their belongings.

Martinez also pushed Segal, questioning how well the notices were displayed and whether people living in the encampments were able to properly locate their things.

Martinez, in the end, sided with the city and state, saying the LA case is not like the situation in Seattle. “As an initial matter, nobody disputes that the individual Plaintiffs have certain rights in their personal property,” he wrote. “However, as the Ninth Circuit stated in [the LA case], ‘[t]he question then becomes whether the City, in seizing [Appellees’] property, acted reasonably under the Fourth Amendment.’ Thus, this Court must look at whether the City’s and WSDOT’s actions meet the Fourth Amendment’s reasonableness requirement. A seizure is deemed unreasonable if the government’s legitimate interest in the search or seizure does not outweigh the individual’s interest in the property seized.”

Martinez continued to say, as Segal argued, that LA had a “a policy and practice of seizing and destroying homeless persons’ possessions when they had not been abandoned.” That is not the case in Seattle, he wrote.

In a statement, the ACLU responded forcefully. “While the judge did not grant a motion for immediate action by the court, our lawsuit seeking to stop the unconstitutional seizure and destruction of property owned by people who live outdoors in Seattle continues to move forward,” said Emily Chiang, Legal Director of the ACLU of Washington. “Protecting the rights of homeless people not to have their vital possessions destroyed by public officials remains urgent.”

The lawsuit will move forward, but the plaintiffs have not done enough, at this point, to convince the judge that the messy situation in and around Seattle is in fact unconstitutional. And Martinez’s rejection of the LA case as precedent could put the ACLU and its co-parties at a serious disadvantage going in.

This series made possible with support from Northwest Harvest. The views and opinions expressed in the media, articles, or comments on this article are those of the authors and do not reflect or represent the views and opinions held by Northwest Harvest.

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