Legal Victory for Homeless People in Fresno

by Mike Rhodes

Homeless residents of Fresno won a victory in federal court on October 19. A temporary restraining order (TRO) was issued that stops the City of Fresno from seizing and destroying homeless people's property. Under this ruling, the city is prevented from using their bulldozers to destroy homeless encampments, as they have done several times recently.

The practice of attacking homeless encampments was challenged in a lawsuit filed on Tuesday, October 17. The hearing was held on October 19 before Judge Oliver W. Wanger in the U.S. District Court, Eastern District of California.

The lawsuit, filed by the Lawyers' Committee for Civil Rights, the ACLU of Northern California and the law firm of Heller Ehrman, LLP, charges that raids ordered by the City of Fresno resulted in the destruction of clothing, medication, tents and blankets, as well as irreplaceable personal possessions, family photographs, personal records and documents.

Paul Alexander, an attorney with Heller Ehrman, argued that without a TRO, Fresno was likely to continue these attacks that result in the taking and destruction of homeless people's property.

In arguments before the court, Alexander said that the Fresno Police Department had lined up homeless residents on October 11, 2006, and told them they were going to return and destroy their property. He cited a declaration from Police Captain Greg Garner stating that they have had complaints about the homeless in that area, but they have not acted yet. Alexander stated that Garner's declaration does not say they won't return and destroy the homeless people's property; it only says, "we have not acted yet."

The judge asked Fresno City Attorney Jim Betts about their "found property procedure." Betts said the City does have a policy but that he did not have it available. Both Judge Wanger and Alexander said it was unlikely that the written policy would allow for the immediate destruction of people's property by the city.

Alexander cited the Pottinger case in Miami that specifically addressed the issue of the confiscation of homeless people's property by the police. A recent case in Los Angeles was also cited as evidence that the police do not have the right to take and destroy homeless persons' possessions. Alexander said California Civil Code 2080 states that if the police take a citizen's belongings, they must give the owner every opportunity to recover them. Items must be stored for at least 90 days.

Judge Wanger said that he did not think the police should be put in the position of deciding what was valuable property or not. He said, "One man's treasure is another man's junk."

City Attorney Jim Betts claimed the homeless were illegally camping on private property and that city officials have received numerous complaints. He argued that the City of Fresno always gives written and oral warnings when a "clean up" is about to take place, and that they work with the Poverello House and Rescue Mission to make sure the homeless know when the next attack is coming.

In arguing against the TRO, Betts said it "would unduly burden the city to the point that they would not be able to respond to property owners' complaints."

Judge Wanger said that the 4th and 14th amendments to the U.S. Constitution and state law protect citizens from having their property taken and destroyed without due process, and that sometimes those rights will cost the City money, in this case for storing confiscated property.

The judge did not say that the City could not take homeless people's property, but that they can't immediately destroy it. Issuing the TRO, Wanger said, "The court does find that the property rights, shelter, clothing, ID, and other items justify the intervention."

Betts then asked the court if homeless people could be made to post a bond to insure against damages incurred by the TRO, if the city ends up winning the case. Judge Wanger pointed out that the homeless have no resources to post a bond and that the public interest would be served by waiving the bond. A court date will be set to hear arguments for the preliminary injunction in the week of November 5.

Several homeless people were in the federal courtroom when the TRO was issued. They were all excited to have won a victory in this struggle for their civil rights. As news of the TRO spread to the homeless encampments in downtown Fresno, it brought hope and encouragement to those who have suffered from the City's relentless attacks.

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