Kincaid et al v. City Of Fresno et al, No. 1:2006cv01445 - Document 34 (E.D. Cal. 2006)
Court Description: STATEMENT OF DECISION and findings re: plaintiffs application for temporary restraining order. Hearing on preliminary injunction set for 11/7/2006 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. signed by Judge Oliver W. Wanger on 10/23/2006. (Lucas, G)
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Kincaid et al v. City Of Fresno et al Doc. 34 Case 1:06-cv-01445-OWW-SMS Document 34 Filed 10/24/2006 Page 1 of 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 PAMELA KINCAID, DOUG DEATHERAGE, CHARLENE CLAY, CYNTHIA GREENE, JOANNA GARCIA, AND RANDY JOHNSON, INDIVIDUALLY ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, 12 Plaintiffs, 13 v. 14 15 16 17 18 19 CITY OF FRESNO, CALIFORNIA DEPARTMENT OF TRANSPORTATION, ALAN AUTRY, JERRY DYER, GREG GARNER, REYNAUD WALLACE, JOHN ROGERS, PHILLIP WEATHERS AND WILL KEMPTON, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES; DOES 1-100, INCLUSIVE, Defendants. 20 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:06-cv-1445 OWW STATEMENT OF DECISION AND FINDINGS RE: PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER 21 22 Plaintiffs application for Temporary Restraining Order came 23 on for hearing on shortened time on October 19, 2006, in 24 Courtroom 3 of the above-captioned Court, the Honorable Oliver W. 25 Wanger presiding. 26 LLP by Paul Alexander, Esq.; Lawyers Committee for Civil Rights 27 by Oren Sellstrom, Esq.; and ACLU Foundation of Northern 28 California by Michael T. Risher, Esq. Plaintiffs were represented by Heller Ehrman 1 Dockets.Justia.com Case 1:06-cv-01445-OWW-SMS 1 Document 34 Filed 10/24/2006 Page 2 of 15 Defendant City of Fresno was represented by Betts & Wright 2 by James B. Betts, Esq., and James C. Sanchez, Esq., City 3 Attorney for the City of Fresno. 4 Plaintiffs Motion, supporting and opposing Points and 5 Authorities, accompanying Declarations under Penalty of Perjury 6 for both sides as well as the oral arguments of counsel. 7 considering all submissions in support of and opposition to the 8 motion and the arguments of counsel, the Court enters the 9 following Statement of Decision. The matter was submitted on After 10 11 BACKGROUND 12 Between 4,400 to 8,800 of the City of Fresno s approximately 13 440,000 residents are homeless. 14 11. 15 extremely scarce. 16 sheltered . . . leaving more than 98% of the homeless population 17 unsheltered and receiving no services. 18 without residences have set up temporary shelters in the 19 southwestern area of the City of Fresno on property they do not 20 own and do not maintain. 21 shelters and congregations of individuals create a risk to the 22 public health and safety and generate significant complaints from 23 surrounding residents, business and property owners. 24 Plaintiffs exhibit A, pp. 10- Services for low income people in need of shelter are [O]nly 1.4% of the homeless population [is] Id. at 13. Individuals The City asserts such temporary The City of Fresno s response to the numerous complaints has 25 been to provide advance oral and sometimes written notice, 26 ranging from one to five days, to the homeless in the area, that 27 the residents of the temporary shelters must move, and that any 28 unclaimed property will be discarded. 2 The exact timing, form, Case 1:06-cv-01445-OWW-SMS Document 34 Filed 10/24/2006 Page 3 of 15 1 and adequacy of the notice given is a materially contested fact, 2 particularly as to personal property of the homeless persons that 3 will be discarded or destroyed. 4 When the City removes a temporary settlement, a bulldozer, 5 City garbage truck, or other heavy equipment are employed to pick 6 up most of the Plaintiffs possessions and dump them in a garbage 7 truck where the property is immediately crushed by compaction. 8 There have been approximately six of these sweeps in which 9 residents of temporary shelters were required to move with their 10 property and all their property that has not been carried away by 11 the individual owners, is loaded into garbage trucks and 12 destroyed on the spot. 13 Further dispute exists to when and to what extent Plaintiffs 14 are permitted to retrieve their possessions or save them from 15 destruction before and during the sweeps. 16 efforts to save their possessions have resulted in arrest 17 threats. 18 to individuals present that once the heavy equipment and garbage 19 trucks arrive, no one, including the owners, may interfere with 20 the seizure and destruction of the property due to safety 21 concerns. Plaintiffs claim that The Fresno Police who execute the sweeps have announced 22 The following events form the basis for the complaint: 23 1. May 3, 2006. Defendants confiscated and destroyed the 24 property of homeless persons living on the west side of E 25 Street, Broadway Street, and H Street, Van Ness Street and Los 26 Angeles Street, and Santa Fe Street and Ventura Street in Fresno, 27 California. 28 2. May 25, 2006. Defendants confiscated and destroyed the 3 Case 1:06-cv-01445-OWW-SMS Document 34 Filed 10/24/2006 Page 4 of 15 1 property of homeless persons living on the west side at E 2 Street in Fresno, California. 3 3. June 22, 2006. Defendants confiscated and destroyed 4 the possessions of the homeless on both sides of E Street and 5 Santa Clara Street in Fresno, California. 6 4. July 1, 2006. Defendants confiscated and destroyed the 7 property of homeless persons living on the west side of E 8 Street in Fresno, California. 9 5. August 26, 2006. Defendants confiscated and destroyed 10 the property of homeless persons living on both sides of E 11 Street in Fresno, California. 12 6. October 8, 2006. Fresno Police Officers came to an 13 area near H and San Benito Streets where several homeless 14 people were found. 15 carts that they claimed were their own property they used to move 16 personal property. 17 ground, confiscated all the shopping carts and removed them. 18 7. Some of these homeless people had shopping Police dumped the possessions onto the October 11, 2006. Fresno Police Officers confronted a 19 group of homeless people in the area of H and San Benito 20 Streets, ordered them to stand in lines for a period of time, and 21 gave the people a formal warning that the police intended to 22 return very soon (the police did not say when) to destroy 23 everything homeless people owned in the area. 24 The evidentiary submissions establish: 25 1. Defendants have conducted sweeps under color of law to 26 remove the temporary settlements and homeless persons from areas 27 in the southwestern area of the City of Fresno. 28 2. During the sweeps, Defendants confiscate and destroy 4 Case 1:06-cv-01445-OWW-SMS Document 34 Filed 10/24/2006 Page 5 of 15 1 all personal property of the Plaintiffs and others as it is 2 found. 3 3. As a result of such destruction of property, Plaintiffs 4 and others have lost possessions that they own, including any 5 shelter, clothing, medication, identification documents and 6 important papers, radios, and other items of irreplaceable 7 personal value such as photographs of loved ones, a lock of 8 child s hair, and an urn containing the ashes of a close family 9 member. 10 4. The Notice and procedures utilized by the City of 11 Fresno and its Police Department have been inadequate to permit 12 Plaintiffs and others to recover and preserve their personal 13 property. 14 such property. 15 5. No post-deprivation procedure was available to recover Defendants have no apparent plan and make no effort to 16 retain or preserve any of the homeless persons property found 17 during sweeps, which is immediately confiscated and destroyed. 18 6. During the sweeps and seizure and destruction of 19 personal property, Plaintiffs and others are not permitted to 20 retrieve personal possessions, once the heavy equipment has 21 arrived due to alleged safety concerns. 22 7. Plaintiffs are not cited for violation of any ordinance 23 or law of the City of Fresno or State of California in connection 24 with their presence or the destruction of their personal 25 property. 26 8. The sweeps are intended to clean up the area by 27 removing homeless persons and their personal property, in part to 28 respond to citizen and business complaints and to address reports 5 Case 1:06-cv-01445-OWW-SMS 1 Document 34 Filed 10/24/2006 Page 6 of 15 of and observed criminal activity. 2 3 II. PLAINTIFFS CLAIMS 4 Plaintiffs claims include: violation of their rights under 5 the United States Constitution Fourth Amendment to be free from 6 unreasonable seizures and searches; the Fifth and Fourteenth 7 Amendments for deprivation and destruction of personal property 8 without due process of law without meaningful notice and the 9 opportunity to be heard at a meaningful time in a meaningful 10 manner; violation of the California Constitution Art. I, §§ 7 and 11 13, prohibiting unlawful searches and seizures of property and 12 deprivation and destruction without due processes of law; 13 violation of California Civil Code § 2080 et seq., protecting the 14 rights of owners of found property; and violation of California 15 Civil Code § 52.1 et seq., for alleged interference with rights 16 secured by the Constitution or laws of the United States or 17 rights secured by the Constitution and laws of the State of 18 California from infringement by threats, intimidation, or 19 coercion. 20 21 22 III. DEFENDANTS DEFENSES The Defendants assert that they do not have any policy or 23 practice in place or that has been implemented to seek out or 24 eliminate shelters of homeless individuals and cannot be liable 25 under Monell for abridgement of federal civil rights under color 26 of state law. 27 trespass on the private property of others or provide the situs 28 for criminal activity, or lead to complaints from local When temporary shelters and homeless persons 6 Case 1:06-cv-01445-OWW-SMS Document 34 Filed 10/24/2006 Page 7 of 15 1 residents, citizens, business and property owners, the Fresno 2 Police Department responds to such calls for service. 3 The temporary shelters are sites of substance abuse, 4 prostitution, assault, and child endangerment. 5 accommodations for sewage and refuse at the sites are nonexistent 6 and the temporary shelter areas present a threat to public health 7 and safety. 8 9 Public The City alleges that it does not conduct unannounced sweeps or raids of such sites. Rather, each and every enforcement 10 action is preceded by the organized distribution of oral and 11 written notice to the inhabitants of temporary shelters that a 12 clean-up of the area will be conducted and that all trash, 13 including unattended property found without the owner to claim 14 it, will be removed. 15 in advance and are both oral and written. 16 are given three to five days in advance of the need to relocate 17 and move personal property. 18 These notices are given at least 24 hours Frequently, notices The City claims it only refuses to honor requests to remove 19 personal effects from temporary shelter areas once heavy 20 equipment, which poses an unreasonable risk of harm, has moved 21 into a sweep area. 22 As to shopping carts which accumulate around the homeless 23 shelter areas, the City has adopted a shopping cart ordinance, 24 under which it collects branded shopping carts and turns them 25 over to a private contractor for return to private business or 26 sale. 27 unbranded shopping carts. 28 Plaintiffs maintain they and others at the site own Defendants object that the City has not been properly 7 Case 1:06-cv-01445-OWW-SMS Document 34 Filed 10/24/2006 Page 8 of 15 1 served, however, Court-required notice of the hearing on 2 application for temporary restraining order was provided to 3 counsel for the City, in accordance with the Court s directions 4 and the City filed a substantial opposition, including a 5 Memorandum of Points and Authorities, numerous opposing 6 Declarations, and presented vigorous and informed oral argument 7 in opposition to the request for Temporary Injunctive Relief. 8 9 10 IV. THE LAW Injunctive relief is an equitable remedy that considers the 11 likelihood of success on the merits and the nature of harm caused 12 by challenged conduct. 13 Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003). 14 traditional test, a plaintiff must show the following for 15 injunctive relief: Clear Channel Outdoor, Inc. v. City of Under the 16 1. A strong likelihood of success on the merits; 17 2. The possibility of irreparable harm to the Plaintiff if 18 injunctive relief is not granted; 19 3. A balance of hardships favoring the public; and 20 4. Advancement of the public interest in certain cases. 21 Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir. 22 2005). 23 if Plaintiff demonstrates either a combination of probable 24 success on the merits and the possibility of irreparable injury 25 or that serious questions are raised and the balance of hardships 26 tips sharply in his favor. 27 granting a temporary restraining order is the same as for 28 granting a preliminary injunction. In the alternative, a court may grant injunctive relief 408 F.3d 1120. 8 The standard for Stuhlbarg Int l Sales Co. v. Case 1:06-cv-01445-OWW-SMS 1 Document 34 Filed 10/24/2006 Page 9 of 15 John D. Brush & Co., 240 F.3d 382, 389, n.7 (9th Cir. 2001). 2 A mandatory injunction, one that compels action, (rather 3 than a prohibitory injunction, which forbids action) goes beyond 4 simply maintaining the status quo and is disfavored. 5 Architects, Inc. v. Condordia Homes, 434 F.3d 1150, 1158 (9th 6 Cir. 2006). 7 maintain the relative positions of the parties until a trial on 8 the merits is held. 9 LGS The purpose of a temporary restraining order is to Due to the threat on October 10, 2006, of a new sweep, the 10 need for relief is urgent and immediate. Here, the Court will 11 not grant mandatory injunctive relief. 12 Court, that must establish policy, allocate resources, enforce 13 the law and determine how to address the problem of its homeless 14 population. 15 authorized to protect the legal rights of the parties, not to 16 enforce or execute the laws, which must be left to the City and 17 its Police Department. 18 supervision of an injunction, a further reason for injunctive 19 relief to be specific, prohibitory, and self-executing. It is the City, not the The Court has no legislative function and is only Equity also abhors the Court s need for 20 21 22 A. PROBABILITY OF SUCCESS ON THE MERITS The Fourth Amendment to the United States Constitution 23 protects against unreasonable seizures and searches. Menotti v. 24 City of Seattle, 409 F.3d 1113, 1152 (9th Cir. 2005). A seizure 25 occurs when there is some meaningful interference with an 26 individual s possessory interests in property. 27 County, Ill., 506 U.S. 56, 63 (1992). 28 when it is more intrusive than necessary. 9 Soldal v. Cook A seizure becomes unlawful San Jose Charter of Case 1:06-cv-01445-OWW-SMS Document 34 Filed 10/24/2006 Page 10 of 15 1 the Hell s Angels Motorcycle Club v. City of San Jose, 402 F.3d 2 962, 975 (9th Cir. 2005). 3 individual s property in a public area may seize it only if 4 Fourth Amendment standards are satisfied - for example, if the 5 items are evidence of a crime or contraband. 6 68; San Jose Chapter of the Hell s Angels, 402 F.3d at 975 7 ( [t]he destruction of property by State officials poses as much 8 of a threat, if not more, to people s right to be secure . . . 9 in their effects as does the physical taking of them. ). An officer who comes across an Soldal, 506 U.S. at 10 11 12 B. SEIZURE OF THE PROPERTY OF THE HOMELESS Pottinger v. City of Miami, 810 F.Supp. 1551, 1556 (S.D. 13 Fla. 1992) cited with approval in U.S. v. Gooch, 6 F.3d 673, 677 14 (9th Cir. 1993), found Fourth Amendment and Due Process 15 violations where City of Miami employees routinely seized and 16 destroyed the possessions of the homeless in addressing its 17 homeless problem, where such property included personal 18 identification, medicine, clothing, and a Bible, by use of front- 19 end loaders and dump trucks to destroy the property of the 20 homeless, and threatened with arrest those who attempted to 21 retrieve belongings. 22 keeping areas sanitary, orderly, and law-abiding, such interests 23 did not outweigh or justify violations of fundamental 24 constitutional rights under the Fourth, Fifth and Fourteenth 25 Amendments to the United States Constitution. 26 that the value of personal property of the homeless is in the 27 eye of the beholder, as one man s junk is another man s 28 treasure. Although the City has an interest in Id. at 1556. The Court observed Injunctive relief was issued against 10 Case 1:06-cv-01445-OWW-SMS 1 2 Document 34 Filed 10/24/2006 Page 11 of 15 the City of Miami. In Justin v. City of Los Angeles, CV012352 LGB AIJX, 2000 WL 3 1808426 (C.D. Cal. Dec. 5, 2000), the Plaintiffs who were 4 homeless individuals, charged the Los Angeles Police Department 5 and other City officials with unlawful searches and seizures, 6 including the destruction of the homeless persons personal 7 property. 8 to keep its streets safe and clean, the Justin court held: 9 In rejecting the City s argument that it had the right 13 Here, Defendants may be slowed in their efforts to keep the City, and especially the downtown area, clean and safe. This injunction may disturb their new initiative to revitalize and uplift communities, to improve the streets and sidewalks, and to diminish the crime rate. Plaintiffs, however, risk a greater harm if the injunction is not granted. The violation of their First, Fourth, and Fourteenth Amendment rights. Id. at *11. 14 In this case, the balance of hardships of the Plaintiffs 10 11 12 15 interest in protecting against immediate, irrevocable destruction 16 of their personal property, some of which is so unique and of 17 such sentimental value as not to be replaceable by money, against 18 the City s need to destroy that property as part of its law 19 enforcement efforts, weighs heavily in favor of Plaintiffs. 20 City can enforce the laws, remove the homeless from private 21 property or other areas where they unlawfully congregate, and 22 otherwise enforce public health and safety laws, including 23 criminal laws necessary to protect the public, if there is 24 probable cause to believe such laws are violated. 25 and permanent destruction of personal property without a method 26 to reclaim or to assert the owner s right, title and interest to 27 recover such personal property, in a pre- or post-seizure 28 hearing, without any showing that there is no feasible 11 The The immediate Case 1:06-cv-01445-OWW-SMS Document 34 Filed 10/24/2006 Page 12 of 15 1 alternative; and without probable cause for seizure and immediate 2 destruction of such property, violates the Fourth, Fifth and 3 Fourteenth Amendments to the United States Constitution in Art. 4 I, §§ 13 and 7(A) of the California Constitution. 5 The public interest is served in the interim by issuance of 6 injunctive relief to maintain the status quo, by requiring the 7 City to take custody of and maintain homeless persons property 8 it seizes, pending a full evidentiary hearing in this matter. 9 the City needs to conduct sweeps or take other law enforcement 10 action against homeless individuals in the interim period, the 11 City will suffer negligible hardship in having to store property 12 seized, as opposed to the irrevocable destruction of the 13 Constitutional rights and property of affected homeless 14 individuals. If 15 Absent further evidentiary showing, the City has not 16 established that its seizures and destruction of the property 17 here complained of are lawful and not more intrusive than 18 necessary. 19 Club, 402 F.3d at 975. 20 way hinder the City s necessary law enforcement efforts in 21 addressing any violations of City ordinances, local, or State law 22 by the homeless. 23 State laws, do not per se, justify the immediate wholesale 24 destruction of Plaintiffs personal property, which is not 25 contraband. San Jose Chapter of the Hell s Angels Motorcycle Temporary injunctive relief will in no Even actual violations of ordinances, local, or 26 27 28 C. DUE PROCESS VIOLATIONS Before the government seizes an individuals property, even 12 Case 1:06-cv-01445-OWW-SMS Document 34 Filed 10/24/2006 Page 13 of 15 1 temporarily, it must provide notice and an opportunity to be 2 heard prior to the seizure, except in extraordinary situations 3 where some valid governmental interest is at stake, that 4 justifies the postponing of the hearing until after the event. 5 United States v. James Daniel Good Real Prop., 510 U.S. 43, 53 6 (1993). 7 the property. 8 Property v. District of Columbia, 948 F.2d 1327, 1334 (D.C. Cir. 9 1991) (government must provide adequate notice to owners of 10 11 Pre-seizure notice is not dependent upon the value of Fuentes v. Shevin, 407 U.S. 67, 84-87 (1972); parked cars before it tows them as junk. ). The notice must be meaningful. Where personal property 12 destroyed includes the necessities of life, identification 13 documents, shelter, medicine and clothing, and personal effects 14 of unique and sentimental value, a means to provide an 15 opportunity to be heard either before or after the seizure of the 16 property is an irreduceable right that is being violated. 17 v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982); see also, Wong 18 v. City & County of Honolulu, 333 F.Supp.2d 942, 945 (D. Hawaii 19 2004); Schneider v. County of San Diego, 28 F.3d 89, 93 (9th Cir. 20 1994) (notice insufficient). Logan 21 22 V. CONCLUSION 23 The peremptory destruction of all personal property of 24 homeless persons during law enforcement sweeps to remove homeless 25 persons temporary shelters and homeless persons from areas in 26 the southwest City of Fresno in the manner proved, violates the 27 Fourth, Fifth and Fourteenth Amendments of the United States 28 Constitution, California Constitution, Article 1, Section 13 13 Case 1:06-cv-01445-OWW-SMS Document 34 Filed 10/24/2006 Page 14 of 15 1 (unlawful searches and seizures), and California Constitution, 2 Article 1, Section 7(A) (due process). 3 4 A. 5 RELIEF Pending development of a full evidentiary record at a 6 hearing on motion for preliminary injunction, the City of Fresno, 7 and its Police Department, and all those acting for, under and/or 8 in concert with them or who have actual notice of this order, are 9 temporarily restrained and enjoined from immediately destroying 10 the property of homeless persons during protective sweeps, 11 activities to remove homeless persons from temporary shelter 12 sites, or other activities to seize the personal property of 13 homeless persons, without providing constitutionally adequate 14 notice and meaningful opportunity to be heard concerning the 15 seizure and destruction of such personal property. 16 17 B. 18 DURATION OF ORDER This Order shall remain in effect through November 7, 2006, 19 for good cause due to unavailability of counsel and need to 20 prepare for a hearing on November 7, 2006, or further order of 21 this Court. 22 the dissolution or modification of this Temporary Restraining 23 Order. The Defendant City may, on two days notice, move for 24 25 26 C. BOND Because the Plaintiffs are indigent, their attorneys are 27 acting pro bono, and they are without financial or other 28 resources which would permit them to post a bond, the requirement 14 Case 1:06-cv-01445-OWW-SMS Document 34 Filed 10/24/2006 Page 15 of 15 1 of a monetary undertaking is waived. Jorgensen v. Cassiday, 320 2 F.3d 906, 919 (9th Cir. 2003). 3 likelihood of compensable harm to Defendants during the term of 4 this temporary restraining order. There appears to be no realistic 5 6 7 D. HEARING ON PRELIMINARY INJUNCTION A hearing on Plaintiffs Application for a Preliminary 8 Injunction shall be held on November 7, 2006, at 9:00 a.m. in 9 Courtroom 3 of the above-captioned court. 10 11 Dated: October 23, 2006 at 4:33 p.m. 12 13 /s/ OLIVER W. WANGER 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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