This afternoon, U.S. District Court Judge Richard Martinez had his first hearing on the ACLU’s lawsuit on behalf of Seattle’s homeless to try to stop the so-called “sweeps” of unsanctioned homeless encampments. It didn’t go well for the ACLU.

For background, here’s my previous writeup of the lawsuit.

Today’s hearing was on the ACLU’s motion for a temporary restraining order (TRO) prohibiting the city and WSDOT from conducting cleanups where they remove personal property from people who are homeless.

Plaintiffs can ask for three things at different times in a case like this: a TRO, a preliminary injunction, and a final injunction. Working backwards: a final injunction is a remedy that resolves the case (at least at that level) with a specific remedy to a harm that was proven at trial. A preliminary injunction is a ruling by a judge that stops a specific action by the defendant while the trial is proceeding to a final judgement. And a TRO is an emergency action put in place quickly after a case is filed until a judge can rule on a preliminary injunction. The bar for granting a preliminary injunction is high:

A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.

Essentially the same standard applies for a TRO, but without the opportunity to put forth large amounts of evidence, provide more than written declarations from witnesses and the two sides, and write long briefs on the issues. In other words: it needs to be a very strong case based on very shallow information, and very easy to argue. Martinez didn’t seem convinced by the ACLU’s filings and presentation, and in fact declared himself “skeptical.”

Much of the weakness in the ACLU’s case was in the evidence they chose to introduce. They provided ten written declarations from homeless people who had been subjected to sweeps and their friends and family members. Many of the declarations were what Martinez called “form-filling,” where they were essentially the same structure with blanks filled in but not personalized to their own stories. Also some — particularly from the friends and family — could be seen as more “hearsay” than actual evidence, which is allowable at the judge’s discretion at this stage of the case but might not be given much weight.

The ACLU also quoted numbers they had pulled from the city’s “SERIS” database of cleanup activities: 968 sweeps in a 21-month period starting in January 2015, and according to them only 7% of those resulted in materials being stored. They argued this showed that the city had no commitment to preserving personal belongings. The city took issue with those numbers: they said that since SERIS is a management system for the cleanup activities and not an accounting system, there are duplications where more than one person entered information about the same encampment. SERIS also includes details of cleanups on private property, as well as instances of people “camping” in cars or RVs. The city also suggested that in most cases when given prior notice, people who are homeless move their own belongings somewhere else before the cleanup, so to the extent the number is low it means that the 72-hour notification system is working, not that the city isn’t committed to storing belongings.

ACLU also made reference to a video of a cleanup in Ballard this morning, in which a city staff person used a box cutter to cut open a tent — again demonstrating the city’s lack of commitment to preserving personal belongings. But neither the judge nor the city had seen the video and couldn’t say anything useful about it other than that if it were an accurate reflection of what happened it was not appropriate.

All of the arguing back and forth on the “facts” as both sides saw them points to the challenges of TROs: the facts need to be clear and convincing, and on short notice that can be difficult to achieve. The city poked enough holes to undermine the judge’s faith that he had a clear picture of what was happening. It could be any of four different things:

the MDAR rules are constitutional, and the city has made a handful of mistakes; the MDAR rules are constitutional, and the city is grossly incompetent at executing on them; the MDAR rules are constitutional, and the city is flat-out ignoring them and just doing what it wants; the MDAR rules are unconstitutional.

The question of whether the MDAR rules themselves are constitutional was discussed briefly as it relates to the closest binding case law: Lavan vs. City of Los Angeles, which was decided by the 9th Circuit Court of Appeals. In that case, LA argued that since the homeless were trespassing, it had the right to seize and destroy anything on that property. But the Court decided that this was the equivalent of arguing that the city could seize and destroy your car, without any due process, if you parked it illegally. It argued that unless clearly abandoned, the city can’t seize and destroy property left on public land without due process. The ACLU argues that this applies directly here in Seattle, while the City says that this case is different because they aren’t claiming the right to seize and destroy property, just to seize and store it — and that’s what the MDAR rules say. ACLU counters that in practice as executed by the city and WSDOT, it really is “seize and destroy.”

ACLU’s case is a bit confusing because at various times they argue #2, #3, and #4. The city and WSDOT are arguing #1: they don’t claim to be perfect, and ask for understanding that in many cases trash and personal belongings are mixed together. Based on what he was presented in briefs and today, Martinez seemed to believe the truth might be somewhere in between #1 and #2: he didn’t seem to be buying the argument that the MDRAR rules are flat-out unconstitutional, but he didn’t have a clear picture as to how often the cleanups were collecting and throwing away belongings to know whether a pattern existed that pointed to widespread incompetence or willful negligence.

In the end, Martinez said that he was “skeptical” of the case for a TRO with “so many issues of fact” still outstanding and suggested he would prefer to deny it and move on to considering a preliminary injunction, with more in-depth briefs and presentation (and vetting) of facts. But he wanted to think about it some more, and committed to ruling quickly on the TRO motion.

Martinez did make one other interesting comment, in response to the suggestion by the ACLU lawyer that the city’s current process of updating the MDAR rules for cleanups is “a political process, not one designed to protect people’s constitutional rights.” The judge noted that whether a “political response” is appropriate is a difficult question. He acknowledged — as did all parties — the right to personal property, but also pointed out that “you can’t put your stuff anywhere.” In a nod to judicial restraint, he ended the hearing by suggesting that a judicial solution might not be the best answer; and perhaps a political one is better.

Expect a ruling from Martinez on the TRO quickly.

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