Where Fresno leads, will Santa Cruz follow?
27 Dec 2012

Santa Cruz authorities now claim that they are “storing” seized homeless property.  However, many accounts from homeless people whose property has been seized in the “surge” of anti-homeless “camping” (i.e. survival sleeping) tickets over the last year.  Activists peacefully protesting these activities or trying to find alternatives have themselves been the subject of criminal prosecutions under PC 647e (“lodging”).  Others, like myself, face actual felony charges for reporting on or supporting the 3-day occupation of a vacant Wells Fargo bank building last year.  Local Santa Cruz attorneys and activists need to be aware of this successful Fresno lawsuit–and the earlier one in 2007.  Hard to believe that Fresno is more liberal than Santa Cruz.

From: Mike Rhodes
Subject: [FresnoHomelessAdvocates] Lawsuit by Fresno homeless survives challenge

Mike Rhodes
Editor
Community Alliance Newspaper
PO Box 5077
Fresno Ca 93755
(559) 978-4502 (cell)
(559) 226-3962 (fax)
editor@fresnoalliance.com
www.fresnoalliance.com

A lawsuit filed by several homeless Fresno residents claiming the city violated terms of a 2008 federal-court settlement over cleanup sweeps has withstood a significant legal challenge.
In a 53-page ruling issued Wednesday, U.S. District Court Judge Lawrence J. O’Neill struck down some of the lawsuit. He also dismissed other parts but gave the plaintiffs the right to refile those claims.
The heart of the lawsuit, however, survives.
The city had asked O’Neill to throw out the entire lawsuit.
Instead, the judge allowed some arguments to continue — including whether the city put homeless in danger when it destroyed some shelters just as the winter of 2011-12 was beginning.
“I think it was a very thoughtful decision,” said Paul Alexander, the Palo Alto-based attorney who is leading the effort on behalf of the homeless. “We view all of the claims that have been upheld as very important. Judge O’Neill’s decision has also added clarity to the case, which is also important and which we appreciate.”
Francine Kanne, Fresno’s interim city attorney, said Wednesday that she hasn’t had a chance to analyze the ruling. But she noted that the court did “pare down a portion of the complaint and simplified some of the claims.”
She said the city should have a better idea where it stands after seeing if the plaintiffs address issues O’Neill threw out, but where he allowed amended claims to be filed.
O’Neill didn’t rule on the merits of the claims — only which claims can proceed.
The legal arguments moving forward could be similar to those of a 2006 lawsuit filed against the city by several homeless residents. In that lawsuit, the two sides reached a $2.3 million settlement over allegations that the city’s cleanup sweeps violated homeless residents’ Fourth Amendment rights, which protect against unreasonable searches and seizures, and their 14th Amendment rights to due process.
That initial suit arose after the city immediately destroyed possessions of homeless who weren’t present during the sweeps.
In this latest ruling — in which the city sought a dismissal — O’Neill acknowledges the ties to the earlier suit, saying this new lawsuit “cannot be understood in a vacuum, as the city of Fresno and its homeless population have a history of conflict and litigation.”
As part of that earlier settlement, the city agreed that for five years, it would adhere to an order that laid out in detail how and when the city could clean up homeless encampments. Part of the order said the city could not destroy “materials of apparent value which appear to be the property of any individual.”
The latest lawsuit alleges that homeless residents suffered financial, physical and emotional damage from the destruction of their tents and personal items, and that the city didn’t properly store property of the homeless.
It also says city officials didn’t properly notify the homeless for some cleanups.
In its motion for summary judgment, the city sought to kill the lawsuit, or to at least chip away at its foundation. Besides the city, Mayor Ashley Swearengin, City Manager Mark Scott, police Chief Jerry Dyer and others are named.
But Alexander said the important parts are still in play. Those include not only claims that the city seized and unlawfully destroyed homeless residents’ property, but also a due process claim that the city’s actions threatened “the safety and ability to survive of the homeless people whose shelters were destroyed just as the winter of 2011-12 began.”
In permitting that due process claim to stand, O’Neill’s ruling cites “danger creation” liability.
The ruling cites a case in which a state trooper determined that the driver of an automobile was intoxicated. The trooper arrested the driver and impounded the car. A woman passenger was left stranded at the scene late at night in a known high-crime area. She accepted a ride from a passing car and was raped.
Since that case, the ruling notes, the 9th Circuit U.S. Court of Appeals has held state officials liable “in a variety of circumstances for their roles in creating or exposing individuals to danger they otherwise would not have faced.”
The case O’Neill ruled on is one of 33 similar cases filed by 38 homeless people in Fresno’s federal court. The cases have been consolidated as they make their way through the court system.
What is still unknown is whether any of the homeless plaintiffs have any evidence to back up their legal claims. Fresno sought to have the case dismissed on legal grounds before any evidence has been presented.