A federal judge ruled Oct. 4 that sweeps of homeless people and their belongings may continue as a lawsuit challenging the constitutionality of the city of Seattle’s rules regarding the practice moves through the court.

Judge Ricardo Martinez denied motions filed by attorneys representing the plaintiffs — four homeless individuals impacted by sweeps, the Real Change Homeless Empowerment Project, Trinity Parish of Seattle and the Episcopal Diocese of Olympia — that could have paused the sweeps until the conclusion of the lawsuit and allowed the suit to go forward as a class action lawsuit covering the homeless population of Seattle.

In his ruling Martinez expressed sympathy for the plight of the plaintiffs, but suggested that they pursue other avenues to stopping the sweeps than the courtroom.

“The Court continues to recognize the hardships faced by the Plaintiffs, and it acknowledges their constitutional property rights,” Martinez wrote. “The optimum solution for the difficult issues raised in this lawsuit may, ultimately, only be found outside of the courtroom.”

Attorneys for the plaintiffs tried to show the court that an injunction was needed because the city’s policies of sweeping unsheltered people violate property and due process rights guaranteed to them by the Fourth and Fourteenth amendments of the constitution. They aimed to demonstrate that this would be the case if city officials followed the rules to the letter, and also that the rules are subjective and not followed in every case. They also attempted to show that people would suffer “irreparable harm” if the judge did not intervene.

Attorneys submitted photographic and video evidence of sweeps, including the destruction of a tent with box cutters. They obtained testimony from homeless people who have experienced the sweeps. They pointed to the city officials’ own records of encampments reported and sweeps executed. They told the judge that only 12 people had been able to reclaim their stored property in the past two years. They showed specific instances in which people were given no warning before their belongings were seized, sweeps that fell within the rules.

They submitted testimony that a man died of diabetic shock because he was deprived of his insulin by a sweep. The stories were not enough to convince the court.

They submitted testimony that a man died of diabetic shock because he was deprived of his insulin by a sweep. The stories were not enough to convince the court.

Plaintiffs did not show him that the definitions used to determine whether or not to store items — if something was “personal property” or “hazardous items” — were too vague. Martinez concluded that items contaminated with urine, for instance, could be deemed hazardous and therefore tossed.

The judge dismissed the plaintiffs’ attorneys’ concerns over sufficient notice before a sweep because the city has policies in place to store items and let people know if their possessions have been stored. Attorney Todd Williams described the rules as having loopholes big enough to drive a truck through.

Martinez also found that the plaintiffs did not show that the city engaged in “a persistent and widespread practice of summarily destroying property of unhoused persons” because information presented by the plaintiffs that purported to show that the city did not store property in 30 percent of cleanups covered only a two-month period. It did not document whether property was destroyed in those instances.

Similarly, Martinez found that arguments to extend the scope of the lawsuit to a class action suit failed to meet two parts of a three-part test. In January 2016, a census of homeless people found 2,945 on the streets of Seattle. This year, volunteers counted 3,857.

So, while he decided that the four homeless people who had been swept could not stand for all the folks living outside, he did agree that there are a lot of homeless people in Seattle, which satisfied one of the three tests: numerosity. It was the only point of agreement among all sides.

The city was represented outside counsel because the assistant city attorney with experience of the constitutional issues raised in the case had represented Real Change in a lawsuit five years earlier, according to the City Attorney’s Office.
Attorneys for the plaintiffs elected not to waive potential conflicts of interest, and the city’s attorney could not work on the case. To date, the city has spent $535,000 on the lawsuit, according to the City Attorney’s office.

According to an evaluation of permitted encampments released in June 2017, the city spent $559,600 for the operations and case management costs for the city-authorized tent encampments in Ballard, Interbay and Othello.

Ashley Archibald is a Staff Reporter covering local government, policy and equity.

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