Anderson et al v. City of Portland et al
Filing
78
ORDER: Denying Plaintiffs' Motion for Summary Judgment 47 ; Granting Defendnats' Motion for Partial Summary Judgment 57 in favor of individual defendants Hurley and Fulitano; Denying Plaintiffs' Motion to Certify the Class 64 . Signed on 12/7/2011 by Chief Judge Ann L. Aiken. (lg)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARLIN ANDERSON, MARY BAILEY,
MATTHEW CHASE, JACK GOLDEN,
LEO RHODES, and JERRY BAKER,
on behalf of themselves and
all others similarly situated,
Plaintiffs,
v.
CITY OF PORTLAND; CITY OF
PORTLAND POLICE CHIEF MICHAEL
REESE, in his individual and
official capacity; CITY OF
PORTLAND POLICE OFFICER J.
HURLEY, in his individual and
official capacity; CITY OF
PORTLAND POLICE OFFICER J.
FULITANO, in his individual
and official capacity; CITY
OF PORTLAND POLICE OFFICERS
DOES 1 THROUGH 50,
Defendants.
Monica Goracke
Ed Johnson
Spencer M. Neal
Oregon Law Center
921 S.W. Washington #516
Portland, OR 97205
Attorneys for plaintiffs
1
- OPINION AND ORDER
Civ. No. 08-l447-AA
OPINION AND ORDER
David A. Landrum
Deputy City Attorney
Office of City Attorney
1221 S.W. Fourth Ave., Room 430
Portland, OR 97204
Attorney for defendants
AIKEN, Chief Judge:
Plaintiffs seek summary judgment and class certification in
this action filed against defendants pursuant to 42 U.S.C.
§
1983.
Defendants oppose plaintiffs' motions, arguing that genuine issues
of material fact preclude summary judgment, and that plaintiffs
fail to show class certification is appropriate.
Two individual
defendants, police officers Hurley and Fulitano, move for summary
judgment on qualified immunity grounds.
Plaintiffs concede that
they are entitled to qualified immunity, and the motion for partial
summary judgment as to these individual defendants is granted.
Plaintiffs' motions are denied.
BACKGROUND
Under the Portland City Code (PCC), it is unlawful "for any
person to camp in or upon any public property or public right of
way," unless otherwise authorized by the Code or the mayor in
emergency circumstances.
PCC
§
14A. 50.020
(8).
The Code defines
"to camp" as "to set up, or to remain in or at a campsite, for the
purpose of establishing or maintaining a temporary place to live."
Id.
§
14A.50.020(A) (1).
"Campsite" is defined as "any place where
any bedding, sleeping bag, or other sleeping matter, or any stove
or fire is placed, established, or maintained, whether or not such
2
- OPINION AND ORDER
place incorporates the use of any tent, lean-to, shack, or any
other
struct~re
violating
§
. .
"
Id. §14A.SO.020(A)(2).
Aconvictionfor
14A. 50.020 is punishable by a fine up to $100 and
thirty days imprisonment.
Similarly, PCC
§
Id.
§
l4A.50.020(C).
14A.SO.OSO renders it unlawful "to erect,
install, place, leave, or set up any type of permanent or temporary
fixture or structure of any material(s) in or upon non-park public
property
or
public
right-of-way
authorization from the City."
without
a
permit
or
other
Any such fixture or structure is
deemed a "public nuisance," and "[iJn addition to other remedies
provided by law," may be "summarily" abated by the police.
14A.SO.OSO(B).
Id.
Violation of the temporary structure ordinance is
punishable by a fine up to $500 and six months imprisonment, if
permitted by Oregon law.
PCC
§
14A.20.060
The Portland Police Bureau Manual of Policy and Procedure sets
forth directives when City police officers engage in a "posting" or
"clean-up" of "established campsites."
Goracke Decl.
Ex.
D.
"Established campsites" are defined as "locations where a camp
structure such as a hut, lean-to or tent is set up for the purpose
of maintaining a temporary place to live and exists on public
property."
Ex.
D at 3.
"Camp clean-ups" are "any organized,
prearranged operation by or on behalf of the Bureau to remove
illegal campers,
campsite."
3
camps or camp structures from an established
Ex. D at 3.
- OPINION AND ORDER
Officers are directed to post a 24-hour
notice at the campsite prior to a camp clean-up and to notify JOIN
(a local agency that provides services to homeless persons) of the
pending clean-up.
Ex.
D at 3.
Campsi tes that are on private
property or a governmental right of way or that constitute a public
health hazard or other emergency do not require twenty-four hours
notice prior to clean-up.
Ex. D at 4.
Plaintiffs Marlin Anderson, Mary Bailey, Matthew Chase, Jack
Golden, Leo Rhodes, and Jerry Baker reside in Portland, Oregon, and
all are involuntarily homeless.
Plaintiffs contend that Portland
has far more homeless people than shelter spaces or available
housing, and that many homeless people cannot access shelters based
on their physical disabilities or mental illnesses.
Plaintiffs allege that, pursuant to the camping and temporary
structure ordinances, City police officers issue criminal citations
to homeless persons sleeping on public property, seize homeless
persons' property without providing twenty-four hours' notice, and
fail to notify social service agencies prior to and after cleanups.
Plaintiffs also allege that officers enforce the ordinances
in a manner that prohibits sleeping on public property, including
parks, at all times of the day and night.
In addition to potential
criminal sanctions, plaintiffs claim that they may be excluded from
public parks in Portland for up to 180 days for violating the
ordinances.
Plaintiffs allege that police officers
use
such
exclusions, in combination with camping and temporary structure
4
- OPINION AND ORDER
citations, to remove homeless people from public parks.
Plaintiffs
ordinances,
allege
that
defendants'
enforcement
of
the
in conj unction with other policies and practices,
violates horceless individuals' rights to be free from cruel and
unusual
punishment
under
the
Eighth
Amendment
and
to
equal
protection under the Fourteenth Amendment of the United States
Constitution.
DISCUSSION
A.
Cruel and Unusual Punishment
Plaintiffs allege that defendants' enforcement of the camping
and temporary structure ordinances essentially criminalizes the
status of homelessness in violation of the Eighth Amendment.
Ingraham v. Wright,
430 U.S.
651,
667
(1977)
~
(Eighth Amendment
"imposes substantive limits on what can be made criminal and
punished as such");
(1962).
Robinson v.
California,
370 U. S.
660,
667
Plaintiffs maintain that defendants' enforcement of the
challenged ordinances criminalizes conduct - sleeping in public that is inexplicably intertwined with their "involuntary condition"
of homelessness.
See Jones v. City of Los Angeles, 444 F.3d 1118,
1132 (9th Cir. 2006), vacated by 505 F.3d 1006 (9th Cir. 2007);
Pottinger v. City of Miami, 810 F. Supp. 1551, 1564
(S.D. Fla.
1992).'
lJones involved a similar challenge brought by homeless
persons in Los Angeles and was vacated by the Ninth Circuit after
the parties ~eached settlement. Jones, 505 F.3d 1006.
5
- OPINION AND ORDER
In a previous order denying defendants' motion to dismiss, I
declined
to
find
criminalizing
that
"mere
the
status"
Eighth
Amendment
depended
solely
limitation
on
whether
the
on
challenged law or its enforcement targets "involuntary" conduct
that is derivative of status.
Rather, I found that resolution of
plaintiffs' Eighth Amendment claim requires consideration of the
nature of the prohibited conduct and whether and to what degree
defendants'
enforcement of the camping and temporary structure
ordinances criminalizes "conduct that society has an interest in
preventing."
Powell v.
Opinion and Order at 15-16 (July 30, 2009); see also
Texas,
392
u.s. 514, 532 (1968)
(approving criminal
sanctions "for public behavior which may create substantial health
and safety hazards
and which offends the moral and esthetic
sensibilities of a large segment of the community").
Despite the court's guidance regarding this claim, plaintiffs
do
not
submit
evidence
of
the
specific manner
in which
the
ordinances are enforced or the specific conduct which led to the
enforcement actions.
Rather, plaintiffs rely on their declarations
generally describing various instances in which they were subjected
to warnings,
property.
citations,
and convictions for sleeping on public
See generally Baker Decl.; Golden Decl.; Rhodes Decl.
Even though plaintiffs present evidence that they were subjected to
some type of enforcement under the ordinances, they do not present
undisputed evidence of the specific conduct that was prohibited.
6
- OPINION AND ORDER
Plaintiffs further rely on a summary description of
that were issued between 2006 and 2010.
c~tations
During this time period,
124 citations were issued for unlawful camping and 331 were issued
for erecting a temporary structure.
Plaintiffs maintain that only
five camping citations were issued to non-homeless people (or whose
housing status was undetermined) and only eight temporary structure
citations we:::e issued to non-homeless people.
Goracke Decl. Ex. E.
Plaintiffs maintain that these and other City records document the
numbers of homeless people living in Portland and the lack of
available shelter space, and that enforcement of the two ordinances
is aimed almost exclusively at homeless individuals throughout the
City.
See Goracke Decl.
~
8 and Exs. A-C, E.
Defendants offer a different interpretation of the summary of
citations.
Defendants contend that the evidence shows that City
police officers issued camping citations to only ninety unique
individuals
identified
as
homeless
between
January
2006
and
September 2010 and issued temporary structure citations to only 138
unique individuals identified as homeless between January 2006 and
September 2010.
Defs.'s Exs. lB, 3.
Using a January 2009 estimate
of 1,591 unduplicated persons sleeping outside, defendants maintain
that police cited 5.66% of identified homeless persons for unlawful
camping
and
8.67%
of
such
persons
structure during that time period.
for
erecting
a
temporary
Defs.'s Exs. IB, 3.
Defendants argue that the relatively low number of citations
7
- OPINION AND ORDER
issued
for
violations
of
the
ordinances,
and
their
repeated
issuance to the same persons, undermines plaintiffs' argument that
putative class members are not given notice or an opportunity to
comply with either the ordinances or police directives.
Defendants
also emphasize that the majority of unlawful camping citations were
issued between 6:00 a.m.
and 10:00 a.m.,
thus
supporting the
inference that the City employs an informal practice of allowing
homeless people to sleep in public places during conventional
sleeping hours.
Defs.'s Exs. lC, 4.
Defendants also point to the
City's efforts to provide housing and other services for homeless
persons.
See Erickson Aff.
and attached exhibits.
Finally,
defendants emphasize that enforcement of the ordinances is driven
by legitimate government interests of public safety and sanitation.
Plaintiffs
acknowledge
that
the
City
annually on a variety of homeless programs,
. percentage of the
spends
$13 million
and that a small
identified homeless population has
citations for violating the two ordinances at issue.
received
Plaintiffs
further agree that relatively more citations are given between 6:00
a.m. and 10:00 a.m. and that the City does not have a formal policy
to relocate or drive all homeless people out of the City.
Finally,
plaintiff concede that the actual manner of enforcement varies and
that not all conduct being punished is innocent or involuntary.
However,
plaintiffs maintain that these facts do not preclude
summary judgment.
8
- OPINION AND ORDER
I disagree.
safety and
Gi ven the legitimate governmental interests of
sanitation
cited by
defendants
and
the
differing
interpretations that result from the summary of citations and the
manner of their enforcement, plaintiffs do not establish, as a
matter of law, that defendants' enforcement actions criminalize
status as opposed to conduct in violation of the Eighth Amendment.
Accordingly, plaintiffs' motion is denied on this claim.
B.
Equal Protection
Plaintiffs next move for summary judgment on their equal
protection claim,
arguing that defendants'
enforcement of the
ordinances is enforced selectively against the homeless, and that
defendants intentionally target the homeless population and treat
them
differently
from
non-homeless
persons
through
their
enforcement actions.
Where a plaintiff alleges selective enforcement of criminal
laws,
the "plaintiff must
discriminatory
effect
and
demonstrate
the
that
police
enforcement had a
were
motivated
by
a
discriminatory purpose," and that "the police misconduct is part of
a 'policy, plan, or a pervasive pattern.'"
Cnty. of San Francisco,
Rosenbaum v. City and
484 F.3d 1142, 1152-53
(9th Cir. 2007)
(quoting Thomas v. Cnty. of Los Angeles, 978 F.2d 504, 509 (9th
Cir. 1993)).
Notably, "the availability of such a claim has never
been limited only to those groups accorded heightened scrutiny
under
9
equal
protection
- OPINION AND ORDER
jurisprudence."
Stemler
v.
City
of
Florence, 126 F.3d 856, 874 (6th Cir. 1997).
~Instead,
a plaintiff
makes out a selective-enforcement claim if she shows that the state
based its
e~forcement
decision on an 'arbitrary classification,'
that .
. gives rise to an inference that the state 'intended to
accomplish some forbidden aim' against that group through selective
application of the laws."
Id.
(quoting Oyler v. Boles, 368 U. S.
448, 456 (1962) and Futernick v. Sumpter Twp., 78 F.3d 1051, 1056
(6th Cir. 1996)).
Plaintiffs
claim
that
the
enforcement
data
shows
that
defendants have targeted homeless individuals for simply being
outside in public places with gear necessary for their survival.
However, plaintiffs fail to present or cite specific evicence to
support these assertions.
Instead, plaintiffs rely on the citation
summary showing that homeless persons constitute the majority of
persons cited under the camping and temporary structure ordinances.
Plaintiffs further emphasize that citations are not issued to nonhomeless persons camping on City streets and sidewalks the night
before the Rose Parade or annual sales events,
or near sports
stadiums and concert venues such as the Rose Quarter,
Field, and Roseland.
Jeld-Wen
Plaintiffs assert that in the few instances
in which enforcement occurred against a non-homeless person, such
as a business owner or employee, the action taken by defendants was
strikingly less punitive and less severe than that taken against
homeless people.
10
Plaintiffs thus argue that they sufficiently
- OPINION AND ORDER
extrapolate evidence of a selective enforcement policy from the
enforcement data.
(9th Cir. 2011)
See Hoye v. City of Oakland, 653 F.3d 835, 855
("Often, the only way to establish whether such a
policy exists is to extrapolate from enforcement data,
in many
cases a formidable task.").
Defendants again contend that they have legitimate safety and
sanitation concerns, and that the ordinances are enforced to ensure
consistent access to rights of way as well as the safety of all
persons.
For example, defendants maintain that in every instance
where an a homeless
individual was cited under the temporary
structures ordinance, the structure was erected on a public right
of way and obstructed the use of a sidewalk or street by other
members of the public.
Defs.'s Ex. lC, IE.
Defendants further maintain that the lack of citations for
events such as the Rose Parade does not unequivocally establish a
policy or practice to target homeless people, that enforcement of
the ordinances at issue is confined to homeless persons, or that
non-homeless persons are exempt from enforcement.
To illustrate,
defendants emphasize that no citations were issued to anyone for
violating the ordinances in 2006, 2007, 2008, 2009, or 2010 during
the days and evenings leading up to the Rose Parade.
Defs.'s Ex.
2.
Finally, defendants argue that plaintiffs offer no undisputed
evidence showing that non-homeless persons are allowed to sleep
11
- OPINION AND ORDER
outdoors or erect temporary structures on public property with
impunity.
As emphasized during oral argument, defendants present
evidence that
camping and temporary structures citations were
issued to non-homeless persons in 2007, 2008, 2009 and 2010.
~
Defs.'s Ex. 2.
I
agree
with
defendants
that
the
evidence,
at
minimum,
reflects genuine issues of material fact regarding the selective
enforcement of the ordinances and the intent of the City and the
Police Bureau.
to
homeless
The fact that the majority of citations are issued
persons
may
suggest
a
discriminatory
effect
of
enforcement, but it does not necessarily establish a discriminatory
purpose of the part of defendants.
for
summary
judgment
is
denied
Therefore, plaintiffs' .motion
with
respect
to
their
Equal
Protection claim.
B.
Motion to Certify Class
Plaintiffs also move to certify the following class under
Federal Rule of Civil Procedure 23:
[AlII persons who (a) are, or will be homeless in that
they are, or will be, without fixed nighttime shelter
because they lack the financial resources or have other
problems that prevent them from being able to provide for
their own food, shelter and other essentials; (b) reside
within the City of Portland; and (c) were cited or
excluded, or will be cited or excluded, under the City
ordinances applied to the class pursuant to the City
policies, practices or customs of enforcement challenged
by this action.
A court may certify a class if a plaintiff demonstrates that
all of the p=erequisites of Rule 23(a) have been met, and that at
12
- OPINION AND ORDER
least one of the requirements of Rule 23(b) have been met.
Fed. R. Ci v.
P. 23; Valentino v. Carter-Wallace,
1227, 1234 (9th Cir. 1996).
Inc.,
See
97 F. 3d
Rule 23(a) imposes four requirements:
(1) the class is so numerous that joinder of all members
is impracticable;
(2) there are questions of law or fact common to the
class:
(3) the claims or defenses of the representative parties
are typical of the claims or defenses of the class: and
the representative parties will fairly and adequately
protect the interests of the class.
(4)
Fed. R. Civ. P. 23(a).
Generally,
I
fourth elements.
find that plaintiffs meet the first, third and
Given the numbers of homeless persons in Portland
and the number who have been cited and the difficulty in joining
them all,
the numerosity requirement likely is met.
Further,
plaintiffs' claims are typical of the class, in that they assert
defendants'
enforcement
actions
criminalize
discriminates against them for being homeless.
homelessness
and
Finally, I find no
reason that plaintiffs cannot adequately and fairly represent the
interests
of the
class ,
given their
continued appearance
and
participation as plaintiffs since the case was filed and their
counsel's experience and expertise.
However, I do not find common questions of fact that meet the
second
element,
given
the
breadth
of
the
proposed
class.
Plaintiffs identify putative class members as those who are or will
13
- OPINION AND ORDER
be homeless and cited under the ordinances "pursuant to the City
policies, practices or customs of enforcement challenged by this
action."
As a practical matter,
the fact that future,
as yet
unidentified persons are included in the proposed class raises an
issue as to how such persons will be identified or given notice.
Moreover,
the
proposed
class
does
not
define
what
precise
"policies, practices, or customs of enforcement" class members must
be subjected to in order to fit within the class definition, given
the breadth of enforcement actions that are chall~nged.
Plaintiffs themselves admit that police officers have enforced
the ordinances in different ways in response to varying actions:
Some homeless individuals' actions seems to be affected
by substance addiction or mental illness. Some homeless
individuals are rude or threatening toward Police
Officers. Some individuals' conduct before or after they
are contacted by Police Officers results in their being
charged wi th additional crimes. Some homeless individuals
block the sidewalk and/or create a mess while sleeping
wi th their belongings, drawing complaints from other
citizens and businesses. Some individuals are given
multiple opportunities to comply with the law before
being cited; others are given mUltiple citations. Many
Officers seem to give citations only after an individual
has not voluntarily complied with a warning or order to
move. Some Police Officers inform individuals that
shel ters or other forms of emergency assistance are
available to them.
~
Goracke Decl.
~
8.
Thus, plaintiffs fail to present facts that are common to all
members of the proposed class.
limit the proposed class
For example, plaintiffs do not
to those who were cited for merely
sleeping in public with a bedroll or bedding, or to those whose
14
- OPINION AND ORDER
property was confiscated without warning or notice.
See Lehr v.
City of Sacramento, 259 F. R. D. 479, 481-84 (E. D. Cal. 2009) (court
allowed class certification of homeless persons who alleged that
police
officers
confiscated
their property without
notice
or
hearing when enforcing a no-camping ordinance); Kincaid v. City of
Fresno, 244 F.R.D. 597, 602 (E.D. Cal. 2007)
of fact and law arise from Defendants'
("[Clommon questions
alleged destruction of
Plaintiffs' personal property without notice pursuant to the duly
adopted and regularly established practice of the City. H).
While
plaintiffs'
legal
claims
violations are typical of one another,
alleging
plaintiffs here do not
allege a common pattern of conduct or enforcement.
find
that
plaintiffs'
proposed
class
constitutional
meets
Thus,
the
I
cannot
commonality
requirement of Rule 23(a) (2).2
Plaintiffs also must meet at least one requirement of 23(b).
2Defendants also argue that plaintiffs must establish facts to
support the merits of their claims in order to obtain class
certification. See Wal-Mart v. Dukes, 131 S. Ct. 2541, 2551 (2011)
("A
party seeking class certification must
affirmatively
demonstrate his compliance with the Rule - that is, he must be
prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact .
[and] frequently
that 'rigorous analysis' will entail some overlap with the merits
of the plaintiffs' underlying claim.").
Defendants contend that
plaintiffs cannot show by a preponderance that police officers
selectively enforce the ordinances or are motivated by a
discriminatory City policy when doing so, the standard of proof
that defendants argue was set forth in Wal-Mart.
I do not
necessarily agree with defendants' interpretation that Wal-Mart
requires plaintiffs to prove their claims to a certain degree
before certification. Regardless, given the lack of commonality,
I need not address this issue.
15
- OPINION AND ORDER
Plaintiffs
23 (b) (2).
initially
sought
certification
pursuant
to
Rule
However, plaintiffs agree that because they seek damages
as well as injunctive relief, certification must be sought under
Rule 23(b) (3), which requires:
·[Tlhat the questions of law or
fact
predominate
common
to
class
members
affecting only individual members,
over
any
questions
and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy."
Fed. R. Civ. P. 23(b) (3).
The predominance inquiry tests ·whether proposed classes are
sufficiently cohesive to warrant adjudication by representation."
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997) (citation
omitted).
For the same reasons discussed above with respect to the
element of commonality, I find that plaintiffs fail to meet the
predominance inquiry of Rule 23(b) (3).
Given the various fact
patterns relevant to putative class members, and in particular, the
various methods of enforcement actions taken by police officers
when enforcing the camping and temporary structure ordinances, it
is
difficult
to
find
that
common
predominate over individual issues.
question
of
law
or
fact
Thus, certification of the
class as proposed by plaintiffs is denied.
CONCLUSION
Defendants' Motion for Partial Summary Judgment (doc. 57) is
GRANTED in favor of individual defendants Hurley and Fulitano.
For
the reasons stated above, plaintiffs' motions for summary judgment
16
- OPINION AND ORDER
and to certify class (doc. 47, 64) are DENIED.
As noted during
oral argument, this case cries out for a political solution rather
than a legal one, and the court strongly urges the decision makers
in this
case to consider realistic and practical measures to
resolve plaintiffs' claims.
IT IS SO ORDERED.
Dated
thiS~y of
December, 2011.
Ann Aiken
United States District Judge
17
- OPINION AND ORDER
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