Court Steps Up to Protect Property of Homeless

On Aug. 26, homeless people living next to a freeway in Fresno returned to their tents after breakfast at a nearby shelter to find their little community surrounded by police and city workers, accompanied by a bulldozer and garbage truck. The city was there to build a fence around this narrow strip of land, and the dozens of people who had been living there - in some cases for months - had just minutes to gather up everything they owned and leave.

The residents hurried to strike their tents and pack their belongings under the watchful eyes of the police. Soon, however, the police were done waiting. Starting at one end of the strip, they began ordering the residents away. City workers and the bulldozer then began scooping up everything that was left and dropping it the waiting garbage truck, where it was immediately crushed. The city made no attempt to distinguish people's valuable possessions from trash; tents, bedding, food, personal papers, medicine and everything else that had not been removed was summarily destroyed. Workers then began building a chain-link fence where minutes before there had been the tents, and the police moved onto the next area, ordering people to move along as the bulldozer drew near.

By early afternoon, the homeless who had been living on this vacant land were left even more destitute than they had been the day before. When they and the advocates for the homeless asked the police where they were supposed to live, how they were supposed to find shelter without their tents and how they were to eat, they were told to go to a nearby shelter. Those who took that advice found it was closed for the day. In any event, there are fewer than 220 shelter beds in downtown Fresno.

The August raid was not unusual. Over the last three years, the city of Fresno has conducted scores of similar operations in the downtown area and elsewhere in the city, albeit without building fences. Sometimes, the city provides some sort of notice. Other times, the police and workers arrive without warning and start seizing and destroying people's possessions. When the property owners are present, they are given little or no time to move their things. If they are not present, they return to find their possessions destroyed and their shelters gone. Even when people receive warning and move their property away from the cleanup site, the city takes and destroys the property unless the owner is physically present to stop it.

For those who have so little, losing it all is devastating.

The most recent raid occurred Oct. 11, at another encampment, this one under an overpass next to a set of train tracks, where many people displaced by the Aug. 26 sweep had relocated. This time, the police were alone, and rather than seizing property, they delivered threats. After rousting residents from their tents, they lined them up, searched them and made them stand there for most of an hour, without telling them why. Eventually, the police said they would be back. They wouldn't say when, but when they returned, they would destroy all the property they found, no questions asked or answered.

Six days later, the Lawyer's Committee for Civil Rights, the law firm of Heller Ehrman and the American Civil Liberties Union of Northern California filed a class action in federal court in Fresno requesting a temporary restraining order to stop these abuses, as well as compensation for the property the city has destroyed. Kincaid v. City of Fresno, 06CV-1445. The complaint argues that the seizure and destruction of private property violates the Fourth Amendment's prohibition against illegal seizures, the 14th Amendment's guarantee that no person shall be deprived of property without due process of law, corresponding provisions of the California Constitution, and a state statute (Code of Civil Procedure Section 1280) that requires the government to safeguard property that comes into its possession.

On Oct. 25, following a hearing, the court issued a temporary restraining order prohibiting the city from seizing and destroying homeless people's property without giving them adequate notice and an opportunity to be heard. The court also decided to hold an evidentiary hearing on the question of whether to issue a preliminary injunction. Over the four days of testimony at that hearing, it became clear that the city has an explicit policy that any property found during these sweeps is considered trash and summarily destroyed unless the owner is there to claim it. This policy had led to the seizure and destruction of all types of property simply because it was in the area of a sweep and appeared to belong to homeless people.

A videotape of one of the raids showed the police officer in charge of the operation trying to pull a neatly packed shopping cart from the grasp of a local advocate for the homeless in order to destroy it. The officer admitted that the other carts nearby - carts that had been packed with personal property and moved across the street from the site of the cleanup operation to try to preserve what was in them - had been summarily crushed, even though the advocate had been asking the police not to do so. And all of this was done without any judicial or statutory authorization or even any written policy, based on a convoluted notion that everything that the homeless possessed - even, in the words of a city sanitation supervisor, "functionally great things" - was by definition trash if it was in the area without its owner there to say otherwise.

None of the city personnel who have been involved in the operations wanted to take responsibility for the destruction. The police captain in charge of the area claimed that city sanitation workers made the decisions about what to destroy, and the sanitation supervisor claimed he destroyed only what the police told him to.

After hearing the evidence, the court ruled that the city's action violated the rights of the homeless under the Fourth and 14th Amendments. Characterizing the city's policies toward homeless people's property - and its justifications of its actions - as "dishonest and demeaning" to homeless people and based on a "woefully mistaken understanding of the law," the court issued a preliminary injunction to stop the unlawful seizure and destruction of property.

This ruling is consistent with bedrock constitutional principles. The Fourth Amendment prohibits both unreasonable searches (invasions of privacy) and unreasonable seizures (interference with property). A warrantless seizure is unreasonable unless the government can show that its need to take the property outweighs the owners' possessory interests and that the method of seizure is itself reasonable. For example, the police legitimately may need to seize evidence of a crime, or contraband, or to tow unattended illegally parked cars to keep the streets clear. So long as the police conduct these types of seizures in a reasonable manner, they do not violate the Fourth Amendment.

But courts have held that the amendment prohibits the government from seizing and immediately destroying "junk" vehicles from public roads, from uprooting a mobile home as part of an unauthorized eviction or from using excessive force to seize a person or animal.

Similarly, the city's indiscriminate seizure and destruction of the property of its homeless residents violates the Fourth Amendment, because there are reasonable alternatives to such drastic tactics: provide sufficient notice of an impending operation, give people time to remove their belongings, tell them where they can safely store them during the operation, and enact a storage policy to allow people to reclaim property that the city does seize (as required by state statute). Other cities, including Oakland, the District of Columbia, and Pittsburgh have developed appropriate notice-and-storage procedures.

Fresno, in contrast, failed to provide adequate notice and has no provisions for storing any property, instead making a deliberate choice to destroy it all on the spot. Because Fresno's sweeping seize-and-destroy policy went far beyond what is necessary to carry out its asserted goal of cleaning up rubbish, it violates the Fourth Amendment.

The raids also violated the 14th Amendment, because they deprived the homeless of property without due process of law. As every law student knows, the essence of due process is notice and an opportunity to be heard at a meaningful time and in a meaningful way. Outside of emergency situations, the government must provide notice before it seizes property. When an emergency makes pre-seizure notice impossible, the government must provide a post-seizure opportunity to reclaim the property. Our clients often did not receive any notice before their belongings were taken and destroyed. When they did receive notice, it often provided the wrong date for the upcoming raid or did not accurately state where the operations were to take place, which meant that even people who received notice and moved their property would find that the city nonetheless had destroyed it. Such inaccurate notice does not satisfy due process. And because the city's policy was to seize and immediately destroy property, they had no opportunity to reclaim anything. Thus, both the seizures and the subsequent destruction violated due process.

The court's ruling that homeless people have the same constitutional rights to property as anybody else was a victory for the homeless people of Fresno, a particularly important one with the approach of winter's cold and rain, when clothing and shelter are crucial to survival. It is not, however, a panacea. The homeless need homes. And although, under the injunction, the city will no longer be dragging them back from this goal by destroying their property - and even though some people may receive compensation for the losses they suffered in the past - there is simply not enough affordable housing in Fresno or in this state.

As the court made clear in its ruling, the question of how to house the homeless is one for our elected officials and the voters. We can only hope that the court's ruling, by reaffirming the basic humanity of those among us who are homeless, will help spur the government and all of us to ensure that none of us is denied a place to live.

Michael Risher is staff attorney at the ACLU of Northern California.