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Case 2:20-cv-01813-RAJ Document 2 Filed 12/16/20 Page 1 of 23

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

 

 

 

 

AT SEATTLE
ADA YEAGER, an individual,
Case No.: 2:20-cv-01813
Plaintiff,
: PLAINTIFF’S MOTION FOR
‘ EMERGENCY TEMPORARY
RE
THE CITY OF SEATTLE, a municipal PRELAMN wey TUNCTION
corporation,
Defendant.
INTRODUCTION
Plaintiff seeks an emergency temporary restraining order and preliminary injunction

prohibiting Defendant from executing its pattern and practice of forcible eviction against
Plaintiff and similarly situated unhoused persons living in Cal Anderson park by displacing them
and seizing and destroying their property in violation of the U.S. Constitution and CDC
standards in the middle of global pandemic and public health crisis.
RELIEF REQUESTED

Plaintiff respectfully requests the Court to 1) hear this Motion on an emergency ex parte
basis, 2) temporarily and preliminarily restrain Defendant from enforcing Exhibit 1, an “order to
remove” persons and property from Cal Anderson park, and 3) schedule a hearing on a

preliminary injunction.

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FACTUAL BACKGROUND
I provide this recitation of neutral and reliable facts based upon the best available
knowledge, information, and ability.

1. On Monday, December 14, 2020, the City of Seattle posted a notice in Cal
Anderson park indicating the intent to forcibly evict an encampment of unhoused
people who have continuously living in the park since at least June.

2. Exhibit 1 indicates that “sweep” will occur at or anytime “after” 7:30 a.m. this
morning, December 16, 2020.

3. Since the notice was posted, many housed and unhoused people have continued to
flock to the encampment, helping unhoused people who want to leave in the face
of the threatened eviction do so, building barricades to defend against police
violence when the sweep happens, continuing to provide community-based
survival needs for unhoused people, and continuing the robust political organizing
and activism that has been a defining characteristic of the park since the
beginning of the George Floyd uprising.

4. Presently, there are approximately 50 unhoused people living in the park,
including Plaintiff.

5. Plaintiff is an unhoused individual who has lived outside on public property
continuously in Cal Anderson Park (“Cal Anderson”) in Seattle since June 2020.

6. In addition to the 50 residents, as of this writing there are approximately 200
civilians are in and around the barricades prepared to defend the encampment

from the threatened eviction. Over the past 12 hours, multiple police vehicles

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have been circling the park, this morning with lights and sirens engaged, taunting
and sarcastically blowing kisses to people on the street.

7. The proposed sweep is in clear violation of the Center for Disease Control’s
standards for the treatment of unhoused people during the still wildly out-of-
control COVID pandemic.

8. Defendant fails to provide sufficient shelter space to meet the needs of Seattle’s
unhoused population.

9. Defendant has taken active, extraordinary measures to obstruct access to the
park’s restrooms, sanitation infrastructure, running water, and electricity,
including by welding steel plates.

10. Defendant has taken active, extraordinary measures to evict the encampment over
the past six months, including repeated forcible removal of all persons and
property, each time without providing adequate notice and an opportunity to
respond, effectuating warrantless seizures and wanton destruction of property, and
resulting in police use of force and arrests.

AURTHORITY AND ARGUMENT
The “standard for issuing a temporary restraining order is essentially the same as that for
issuing a preliminary injunction.” Stuhlbarg Intern. Sales Co., Inc. vy. John D. Brush & Co., Inc.,
240 F.3d 832, 839 n.7 (9th Cir. 2001). “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.” Winter v. Natural Res. Defense Council, Inc., 555

U.S. 7, 21, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Plaintiffs are not required to show that they

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will succeed on the merits, only that they are “likely” to prevail. At a minimum, they must show
“serious questions going to the merits[,]” that the “balance of hardships tips sharply in [their]
favor, and the other two Winter factors are satisfied. Shell Offshore, Inc. v. Greenpeace, Inc., 709
F.3d 1281, 1291 (9th Cir. 2013) (internal quotation marks omitted). All four factors are met here.

A. Plaintiff is likely to succeed ns the proposed sweep violates the Federal and

Washington State Constitutions
i. The proposed sweep violates the Fourth Amendment

The Fourth Amendment of the U.S. Constitution “protects the right of the people to be
secure in their persons, houses, papers and effect, against unreasonable seizures and searches.”
U.S. Const., Amend. IV. A “seizure” under the Fourth Amendment occurs “where there is some
meaningful interference with an individual’s possessory interest in that property.” Soldal v. Cook
County IIl., 506 U.S. 56, 63 (1992). A seizure without a warrant is “‘per se unreasonable. The
Government bears the burden of showing that a warrantless search or seizure falls within an
exception to the Fourth Amendment’s warrant requirement.” United States v. Cervantes, 703
F.3d 1135, 1141 (9th Cir. 2012). And even if a search or seizure is lawful at its inception, the
seizure “can nevertheless violate the Fourth Amendment because its manner of execution
unreasonably infringes possessory interests protected by the Fourth Amendment’s prohibition on
‘unreasonable seizures.’” United States v. Jacobsen, 466 U.S. 18 109, 124-25 (1984). See also
Lavan, 693 franklinshawn@example.org.

Article I, Section 7 of the Washington State Constitution provides that “No person shall
be disturbed in his private affairs, or his home invaded, without authority of law.” Both the
Fourth Amendment and Article I, section 7 of the Washington Constitution prohibit

unreasonable seizures. State v. McLean, 178 Wn. App. 236, 244 (2013). “Article I, section 7

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requires no less than the Fourth Amendment.” State v. Chesley, 158 Wn. App. 36, 45 (2010),
review granted, case remanded, 174 Wn.2d 1012 (2012) (internal quotations omitted). In fact,
Washington courts have noted that “the broad language of article I, section 7 is more protective
than the Fourth Amendment to the United States Constitution.” State v. Lyons, 174 Wn.2d 354,
359, n.1 (2012).

There should be no legal dispute that homeless individuals have a property interest in
their tents, blankets, tarps, medication, personal papers and other items, and that these enjoy state
and federal constitutional protection. This issue has already been resolved, and in Lavan the
Ninth Circuit foreclosed any argument that homeless individuals do not have a protectable
property interest in their belongings. Lavan, 693 franklinshawn@example.org. Therefore, the only question is
whether the summary destruction of Plaintiffs’ property constitutes unreasonable seizures.
Existing case law and the circumstances surrounding the seizure and destruction compel a
finding that Plaintiffs are likely to succeed on this claim. The fact that the City has proposed
rules governing sweeps demonstrates that they recognize a need to follow some degree of
process before taking the belongings of unsheltered citizens. However, they have also
demonstrated time and again that they are not willing to follow the meager protections they have
put into place.

First, the destruction of homeless people’s property is undoubtedly a deprivation that
triggers Fourth Amendment analysis. See Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th
Cir. 2005). And that deprivation—the wholesale destruction of plaintiffs’ personal belongings—
is patently unreasonable. Lavan, 693 franklinshawn@example.org. In fact, in Lavan, the Circuit noted that the
City “almost certainly could not” even argue that the summary destruction of homeless people’s

property under very similar circumstances was reasonable under the Fourth Amendment. /d.

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When the destruction occurs during Defendants’ ongoing sweeps, the Defendants know
that the property is not abandoned—in fact, it is often property that Plaintiffs have had to leave
behind after demands by Defendants to vacate on little or no notice. There is no legitimate reason
for Defendants to seize and destroy the property of unhoused residents of the Cal Anderson
encampment without adequate notice and opportunity to participate, a warrant or probable
cause, or a meaningful way to reclaim seized property, especially during the middle of winter in
a pandemic. Neither can concern for the general health and safety of the community justify these
actions: the Ninth Circuit has soundly rejected these arguments. See Lavan, 797 F. Supp. 2d at
1015 (noting that the seizure of property “threatens the already precarious existence of homeless
individuals by posing health and safety hazards” and violated the Fourth Amendment, despite
“an inherent interest in keeping public areas clean and prosperous”).

ii. The proposed sweep violates the Fourteenth Amendment

Under the Fourteenth Amendment, “No state shall . . . deprive any person of life, liberty,
or property, without due process of law.” U.S. Const., Amend. XIV. To determine whether there
has been a due process violation, the Court follows a two-step analysis: first, it determines
whether there is a property interest encompassed within the protection of the due process clause,
and if there is, what process is due. Propert v. District of Columbia, 948 F.2d 22 23
1327 (D.C. Cir. 1991). Whether there is a protected property interest requires the court to look to
“existing rules or understandings that stem from an independent source such as state-law rules or
understandings.” Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Washington additionally
recognizes the right of ownership of personal property. “Possession of personal property is prima
facie proof of ownership and is presumptive evidence that the possession is rightful.” Merinella

v. Swartz, 123 Wash. 521, 523, 212 P. 1052, 1053 (1923) (internal quotes omitted). Article I,

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Section 3 of the Washington State Constitution provides the fundamental guarantee that “[nJo

person shall be deprived of life, liberty, or property, without due process of law.” Tents, tarps,
blankets, medication, and other items are property protected by the Fourteenth Amendment and
the Washington State Constitution. See Lavan, 693 F.3d at 1032 (holding that the protections
guaranteed by the Fourteenth Amendment attach “regardless of whether the property in question
is an Escalade or an EDAR, a Cadillac or a cart’’). In many instances, the volume of what is
taken and destroyed constitutes almost everything the individual owns.

The second question is what process is due, which depends on a balance of factors
outlined in Mathews v. Eldridge: “first, the private interest affected by the government action;
second, the risk of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally, the
government’s interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirements would entail.” 424 U.S. 319, 23
335. Defendants’ policy and practice of destroying property without any process, and storing
property without sufficient notice or procedures to ensure its return, ignores these clearly
established legal standards.

The summary destruction of property, whether it is incident to an individual’s removal, or
when the individual is unable to move it during a sweep, suffers from the same constitutional
infirmity—it affords no process by which the owner of the property can challenge its destruction
before “the owner is finally deprived of a protected property interest.” Logan v. Zimmerman
Brush Co., 455 U.S. 422, 433 (1982). Such state action is anathema to the concept of due
process. “However weighty the governmental interest may be in a given case, the amount of

process required can never be reduced to zero - that is, the government is never relieved of its

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duty to provide some notice and some opportunity to be heard prior to final deprivation of a
property interest.” Propert, 948 F.2d at 1333 (citing Logan, 455 U.S. at 434),

Despite the “truism that some form of hearing is required before the owner is finally
deprived of a protected property interest,” Logan, 455 U.S. at 433, and very clear instruction to
that effect from the Court in Lavan and the preceding cases, Defendants regularly destroy
property without any opportunity to challenge the basis for the destruction. That is what
happened to Plaintiff and other Cal Anderson encampment residents in September and that is
what will happen again this week without judicial intervention.

In Lavan, the Court made it explicitly clear that “the City is required to provide
procedural protections before permanently depriving [homeless individuals] of their
possessions.” Id. at 1032. Lavan is consistent with numerous other cases, in which the Court
required due process to challenge the basis for destruction before the property was permanently
destroyed.41 As in Lavan, “the City’s decision to forego any process before permanently
depriving [homeless individuals] of protected property interests is especially troubling given the
vulnerability of [the City of Seattle’s] homeless residents.” 693 franklinshawn@example.org.

In this application for a temporary restraining order, Plaintiffs seek only what Lavan
commands: an order prohibiting Defendants from seizing and summarily destroying homeless
people’s property without probable cause and constitutionally adequate notice and opportunity to
be heard. /d. at 1033. Plaintiffs do not seek to prevent Defendants from collecting actual garbage
or waste on public property. Plaintiffs simply ask that their constitutional rights not be violated in
the process.

The sign posted at Cal Anderson on December 14 provides inadequate notice, in violation

of the City’s own policy, and does nothing to provide Plaintiff with an opportunity to be heard.

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The Defendants also violate Plaintiff's Due Process rights by providing no meaningful
notice or process to get back the few items they seize and store. Due process requires an
individual both “be given notice and an opportunity to be heard at a meaningful time and in a
meaningful manner.” Schneider, 28 franklinshawn@example.org. This process “must be tailored to the capacities
and circumstances of those who “must rely on the process.” Goldberg, 397 U.S. at 268-69. For
the notice to satisfy due process, “[t]he notice must be of such nature as reasonably to convey the
required information.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

The owners of seized property are frequently given no notice where they can pick up
their property or even if property has been preserved. If they are given notice, the notice is
inaccurate and does not outline the process actually required to get their property back. The
process itself is convoluted and does not take into account any of the “capacities and
circumstances” of the parties, as the Defendants are required to do. Goldberg, 397 U.S. at 20
268-69. Taken together, the Defendants’ policies are inadequate, given the serious deprivation to
plaintiffs. See Eldridge, 424 U.S. at 341.

First, “the nature of the interest . . . and the degree of potential deprivation that may be
created,” is significant. Eldridge, 424 U.S. at 341. Assuming, that Defendant preserves some
property, these few remaining items are frequently the last remaining belongings an individual
has. See Lavan, 693 franklinshawn@example.org. See also Memphis Light, Gas and Water Division v. Craft, 436
U.S. 1, 17-18 (1974) (holding that a deprivation for even a short period of time can threaten
health and safety and constitutes a significant interest). Moreover, if, as here, the notice and
process for getting the property back is flawed, the individual will be permanently deprived of
these items, either because they are never actually able to find them, or because it simply takes

too long. Defendants’ official policy requires property to be stored for 60 or 70 days. Yet,

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employees of Defendants estimate only | or 2 percent of it is actually retrieved; the rest is
thrown in the trash. (http://www.seattletimes.com/seattle-news/chaos-trash-and-tears-inside-
seattles-flawed-homeless) Therefore, the interest and the potential deprivation are significant.
The second Eldridge factor considers “the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or substitute

procedural safeguards.” Eldridge, 424 U.S. at 335. This factor requires the Court to weigh the

| “fairness and reliability of the existing procedures.” Nozzi, 806 franklinshawn@example.org. The Defendants’

procedures for getting property back after it taken is anything but fair and reliable. As a
preliminary matter, it is City officials, not the owners of the property, who sort through the
property and decide what to keep and what to throw away. Further, notice about how to get one’s
property back is insufficient. “To be constitutionally adequate, notice must be reasonably
calculated under all circumstances, to apprise interested parties with due regard for the
practicalities and particularities of the case.” Nozzi, 806 F.3d at 1194 (citing Mullane, 339 U.S. at
314) (internal quotations removed). The notice provided here fails this test. There is no
mechanism by which someone can challenge the taking of their property. The facility where
items deemed worthy of storage are kept is at 3807 Second Ave South, approximately an hour
and thirty-minute walk from downtown Seattle. According to the website for the storage facility,
it is temporarily closed due to COVID. One worker at the City’s storage facility estimates that
only | or 2 percent of the materials stored are ever picked up, with the rest eventually thrown
out. (http://www.seattletimes.com/seattle-news/chaos-trash-and-tears-inside-seattles-flawed-
homeless sweeps/), These failures in notice and process render the deprivation of property,
whether temporarily or permanently, unconstitutional. See Memphis Light, Gas and Water

Division v. Craft, 436 U.S. 1 (1978) (holding that a utility company violated Plaintiffs’ due

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process rights after Plaintiffs made “good faith efforts” to “straighten out the problem,” but were
never notified of a process to resolve the issue and, despite their efforts, their service was
wrongfully terminated). This is particularly true for unhoused individuals who find their
belongings taken when they are temporarily or unable to physically move all of their property in
the limited amount of time Defendants provide. They, moreover, rarely have access to reliable
transportation or a charged cell phone, and frequently have mobility challenges. The failure to

399

“take account for the ‘capacities and circumstances’” of the individuals who must traverse this
system renders an already unfair system unconstitutional. Nozzi, 806 F.3d at (quoting Goldberg,
397 U.S. at 268-69; Memphis Light, 436 U.S. at 14, n. 15).

Finally, the third Eldridge factor also weighs in favor of a due process violation. The
burden of providing adequate process, including immediate access to property and notice that
effectively spells out the process to get the property back, would be minimal, since the
Defendants have more than enough resources to return property to individuals, particularly when
balancing their rights and the franklinshawn@example.org. See Prophet, 948 franklinshawn@example.org.

ill. The proposed sweep violates the First Amendment

The right to free speech and peaceful assembly is guaranteed by the Ist Amendment to
the U.S. Constitution and Article I, Sections 5 and 7 of the Washington Constitution’s
Declaration of Rights. Public parks are quintessential traditional public forums for the exercise off
political speech and assembly. Hague v. CIO, 307 U.S. 496, 515-16 (1939). Because of the
special status of traditional public fora in our constitutional form of government, “the

government must bear an extraordinarily heavy burden to regulate speech in such locales.”

NAACP Western Region v. City of Richmond, 743 F.2d 1346, 1355 (9th Cir. 1984) (emphasis

added).
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Tents and structures are well-established as viable instruments of political speech, and
maintaining tents and temporary structures continuously have acknowledged speech value. See,
e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984); Students Against 6
Apartheid Coalition v. O'Neil, 660 F.Supp. 333 (W.D. Va. 1987); ACORN v. City of Tulsa, 835
F.2d 735, 742 (10th Cir. 1987) (recognizing speech value of symbolic structures in parks);
University of Utah Students Against Apartheid y. Peterson, 649 S. Supp. 1200, 1204-1205 (D.
Utah 1986) (students maintained continuous presence with shanties over many months,
enhancing their expressive character). Two federal district courts have held that “tenting and
sleeping” in a public park as part of a political demonstration unquestionably is expressive
conduct implicating the protections of the First Amendment. Occupy Minneapolis v. County of
Hennepin, __ F. Supp. 2d ___, 2011 WL 5878359, *4 (D. Minn. 2011) (sleeping and
overnight occupation of tents in a park was expressive conduct protected by the First
Amendment, though it could be regulated by a permit scheme that functioned as a valid time
place and manner restriction); Occupy Fort Myers v. City of Fort Myers,___ F. Supp. 2d __,
2011 WL 5554034, *5 (M.D. Florida 2011) (same).

Cal Anderson park has been the undisputable hub of the recent civil rights uprising in the
wake of the death of George Floyd. From nightly protests at the East Precinct, to the creation of
the Capitol Hill Autonomous Zone, to the current nightly meet-ups in the park, Cal Anderson is
the epicenter of the movement in Seattle. Many of the unhoused residents of the park are also
activists. The park is filled with political signs and slogans. Mutual Aid stations that have sprung
up at the park are also an essential component of the current movement
(https://www.theverge.com/2 1377132/mutual-aid-solidarity-protests-food-assistance-police-

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Defendant has obviously targeting the Cal Anderson encampment for special
enforcement. The City has forcibly evicted the encampment multiple times while leaving many
other encampments alone. The City has taken extraordinary measures to retaliate against this
particular encampment because of the content of the speech and political activity it supports,
much of which is very critical to the City. The threatened eviction is more likely about political
repression that it is about any desire to preserve public health because it violates the City’s own
publicly-announced policy in response to the COVID crisis and CDC standards. Mayor Durkan’s
public comments about the threatened eviction shows that Cal Anderson eviction policy is linked
to the barricades at the East Precinct and the still-on-going Black Lives Matter protests in an

interview with the Capitol Hill Blog (https://Awww.capitolhillseattle.com/2020/12/its-urgent-

 

mayor-says-launching-initiatives-to-open-cal-anderson-remove-east-precinct-wall-amid-

 

encampments-and-ongoing-protests/).

 

iv. The proposed sweep violates the Eighth Amendment

In Martin v. Boise, 920 F.3d 584 (2019), the Ninth Circuit held that it was
unconstitutional for a local government to criminalize the act of survival. In that case, a local
government that failed to provide adequate shelter for its unhoused population attempted to
enforce criminal statutes targeting unhoused people living on public property. The court struck
down criminal statutes. The Ninth Circuit held the statutes unconstitutional.

Here, although the eviction action threatened by the City against Plaintiff and the protest
encampment at Cal Anderson does not take the immediate form of a criminal statute, experience
demonstrates that this is a distinction without a difference. The reality is that every past eviction
at Cal Anderson has involved police action, the use force, arrests, and booking unhoused people

into jail as a direct result of their providing for their own alternative housing on public property.

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Past arrests have been based upon asserted probable cause for “trespassing” on public property.
Thus, while the eviction is not based upon a criminal law, it nonetheless constitutes the pretense
for enforcement of facially-neutral criminal laws, resulting in the same outcome: the
criminalization of survival under a government that does not provide sufficient resources to
allow survival. This is a clear violation of Martin v. Boise. Because the City does not provide
sufficient resources to ensure that its unhoused population has access to shelter, it cannot take
enforcement action against unhoused people when providing their own alternative housing on
public property. Thus, Plaintiff is likely to prevail on the merits.
A. Plaintiffs and Similarly-Situated Individuals Have And Will Continue To Suffer
Substantial Injury and Irreparable Harm As A Result of Defendants’ Unlawful Acts
Plaintiffs contacts with outreach workers has been disrupted by past sweeps. Plaintiff
desires long-term housing and has attempted to find such accommodations without success. The
City simply does not provide adequate resources to shelter its unhoused population, including
Plaintiff. Of the two numbers listed on the City’s notice, one is a general information line (211)
and the other is for mental health crisis care and has nothing to do with housing. If the Cal
Anderson encampment is swept on or “after” December 16, 2020, Plaintiff and other similarly
situated class members will not be given housing, but instead will be displaced onto yet another
encampment elsewhere in the City where they do not have relationships or connections.
Plaintiff's past experience shows that all of their belongings will be seized and either
immediately destroyed or thrown haphazardly and without adequate identification and cataloging
into temporary storage before being destroyed. Nor does the Notice provide information about
how to retrieve belongings that are placed into storage. By being forced to respond to the City’s

threat to evict, and even more so when they are evicted, Plaintiff, similarly-situated persons, and

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their supporters have been placed at an increased danger of COVID infection. Plaintiff and
others living at the park are essentially a COVID “pod” or family. They have well-ventilated
outdoor space, use recommended masks, and are exposed to one another on a regular basis. By
threatening to evict the encampment, the City has caused hundreds of additional people to come
to the park. By evicting the encampment, the City will cause Plaintiff and others to be spread out
far and wide across the city, increasing contacts with other encampments and the community.
The park at Cal Anderson has also become a crucial hub of Seattle’s free speech activity.
Another forcible eviction will severely chill and disrupt on-going political expression and
organizing activities. All of these issues constitute severe and irreparable harm that will and
already have begun to result from the City’s threatened eviction.
i. Defendants have disregarded policies that protect plaintiffs from
irreparable harm

The Defendant enacted “FAS 17-01” in April 2017, to formalize rules around
encampment removals. The rules require, among other things, the City to offer alternative
housing/shelter for encampment occupants, a daily list of open shelter beds, “no fewer than 72-
hours’ notice” before an encampment removal, oral notice to anyone present at the encampment,
and notice on each tent or structure at the encampment. The Defendant followed none of these
rules for past sweeps of the protest encampment at Cal Anderson. Despite posting notice after
the sweep of a location where residents could recover their belongings, we have no indication
that Plaintiff anyone else living at encampment were able to recover any personal property after
any of these sweeps.

For the proposed sweep on December 16, 2020, the City provided fewer than 48-hours’

notice. Notice was via two paper signs posted at the park. No notice was posted at individual

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tents and no oral notice was given. Plaintiff is aware that one or two people have been provided
with the opportunity to accept housing and have done so, but Plaintiff has not been offered

housing and it is a poorly kept secret that the City does not provide adequate housing resources

 

for its homeless population.

 

 

 

Absent the Court’s intervention, Plaintiffs and members of the proposed class will
continue to suffer irreparable harm from the Defendants’ policies and practices because they
violate their constitutional rights. “An alleged constitutional infringement will often alone
constitute irreparable harm.” Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997)
(internal citation omitted). “Unlike monetary injuries, constitutional violations cannot be
adequately remedied through damages and therefore generally constitute irreparable harm.”
Nelson v. Nat’! Aeronautics & Space Admin., 530 F.3d 865, 882 (9th Cir. 2008), rev’d on other
grounds and remanded, 562 U.S. 134 (2011). No countervailing interest of the Defendants
outweighs the dire impact on Plaintiffs and members of the proposed class, who are unhoused
and live outside during even the most severe weather. The loss of essential possessions is
“devastating” and clearly constitutes irreparable harm. Lavan, 693 F.3d at 1032 (internal
citations omitted); Lavan, 79 F.Supp. franklinshawn@example.org.

Plaintiff and other residents of the Cal Anderson encampment are doing their best to
survive during the most trying of circumstances — living unhoused in winter in the middle of a
global pandemic. Plaintiff's contacts with outreach workers has been disrupted by past sweeps.
Plaintiff desires long-term housing and has attempted to find such accommodations without
success, The City simply does not provide adequate resources to shelter its unhoused population,
including Plaintiff. Of the two numbers listed on the City’s notice, one is a general information

line (211) and the other is for mental health crisis care and has nothing to do with housing. If the

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Cal Anderson encampment is swept on or “after” December 16, 2020, Plaintiff and other
similarly situated individuals will not be given housing, but instead will be displaced onto yet
another encampment elsewhere in the City where they do not have relationships or connections.
Plaintiff's past experience shows that all of their belongings will be seized and either
immediately destroyed or thrown haphazardly and without adequate identification and cataloging
into temporary storage before being destroyed. Nor does the Notice, Exhibit 1, provide
information about how to retrieve belongings that are placed into storage. By being forced to
respond to the City’s threat to evict, and even more so when they are evicted, Plaintiff, similarly-
situated persons, and their supporters have been placed at an increased danger of COVID
infection. Plaintiff and others living at the park are essentially a COVID “pod” or family. They
have well-ventilated outdoor space, use recommended masks, and are exposed to one another on
a regular basis. By threatening to evict the encampment, the City has caused hundreds of
additional people to come to the park. By evicting the encampment, the City will cause Plaintiff
and others to be spread out far and wide across the city, increasing contacts with other
encampments and the community. The park at Cal Anderson has also become a crucial hub of
Seattle’s free speech activity. Another forcible eviction will severely chill and disrupt on-going
political expression and organizing activities. All of these issues constitute severe and irreparable
harm that will and already have begun to result from the City’s threatened eviction.

B. The Balance of Equities is in the plaintiff’s favor

Where Plaintiffs show the likelihood of success on the merits and irreparable harm, “the
balance of equities and public interest tip in favor of Plaintiffs.” Los Padres Forestwatch v. U.S.
Forest Service, 776 F. Supp. 2d 1042, 1052 (N.D. Cal. 2011). The more permanent Plaintiffs’

harm if relief is denied and the more temporary Defendant’s harm if it is not, the greater the

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balance tips toward Plaintiffs. League of Wilderness Defenders, 752 franklinshawn@example.org. The District
Court in Lavan agreed that the balance of equity tipped in Plaintiffs’ favor: “The City’s interest
in clean streets is outweighed by Plaintiffs’ interest in maintaining the few necessary personal
belongings they might have.” Lavan, 797 F. Supp. franklinshawn@example.org.

C. Temporary Restraining Order is in the Public Interest

The fourth element considers how an injunction will impact non-parties. League of
Wilderness Defenders, 752 franklinshawn@example.org. This prong, too, is in Plaintiffs’ favor since “[i]t is
always in the public’s interest to prevent the violation of a party’s constitutional rights”, and all
the more so when the violation is being done in the name of their own government. Melendres v.
Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). The unhoused individuals affected by the
Defendants’ unlawful acts are part of the public and are directly harmed by the sweeps. Further,
the proposed sweep will drive a community of individuals that have had contact with one another]
into spaces with additional people — shelters, other encampments, the streets. The sweep itself
will bring the residents of the encampment into contact with Parks employees and police
officers. They will have to have further contact with City employees if they are to get their
belongings back at some future point. This is the exact situation that the CDC was concerned
about when issuing guidance to allow encampments of unsheltered individuals to remain intact
during COVID. The City itself recognized these concerns when it indicated in March that it
would not sweep homeless encampments during the pandemic. In the midst of a surging
pandemic, it is in the best interest of the public for the community at Cal Anderson to remain in
place.

E. A Temporary Restraining Order Should Apply to the entire Cal Anderson

encampment
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An injunction may extend beyond the named plaintiffs if it “is necessary to give
prevailing parties the relief to which they are entitled.” Easyriders Freedom F.I.G.H.T. v.
Hannigan, 92 F.3d 1486, 1501B02 (9th Cir. 1996) (internal citation and emphasis omitted);
“Class-wide relief may be appropriate even in an individual action.” Bresgal v. Brock, 843 F.2d
1163, 1171 (9th Cir. 1987) (noting that “The district court has the power to order nationwide
relief where it is required.”). Defendants seize and discard property of all individuals present at al
location during a sweep. It is not possible, practical, or effective to limit the relief to only certain
individuals. The injunction must extend to all unhoused people currently living in the Cal
Anderson encampment. See, e.g., Lavan, 693 F.3d at 1026, 1033 (injunction applies to “all
unabandoned property on Skid Row” because “it would likely be impossible for the City to
determine whose property is being confiscated”).

F. The Requirement of a Bond Should be Waived

Federal courts may exercise their discretion under FRCP 65(c) to waive the bond
requirements in suits to enforce important federal rights of public interest. Barahona-Gomez v.
Reno, 167 f.3d 1228, 1237 (9th Cir. 1999); Cal. ex rel. Van de Kamp v. Tahoe Reg’! Planning
Agency, 766 F.2d 1319, 1325 (9th Cir. 1985) (no bond required for non profit group). This Court
should do so here.

IV. CONCLUSION

This action challenges a proposed sweep of an established encampment of unsheltered
citizens living in Cal Anderson in the middle of a raging pandemic — flinging them far and wide
into a community that does not have sufficient shelter or housing for them. This sweep will

deprive them of their possession, likely permanently. For the aforementioned reasons, Plaintiffs

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and members of the proposed class are entitled to injunctive relief to prevent their property from

being destroyed. A proposed order is submitted herewith.

RESPECTFULLY SUBMITTED this 16" day of December, 2020.

MAZZONE LAW FIRM, PLLC
Attorney for Plaintiff

By: s/Braden Pence

Braden Pence, WSBA #43495
bradenp@ mazzonelaw.com
3002 Colby Ave., Ste. 302
Everett, WA 98201

 

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CERTIFICATE OF SERVICE
I hereby certify that on the December 16, 2020, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system which will send notification of such filing to the
attorney(s) and persons of record. I hereby certify that I have served all non CM/ECF

participants via United States Postal Service.

s/ Elizabeth Crafton

Elizabeth Crafton

Paralegal

Mazzone Law Firm, PLLC
3002Colby Avenue, Suite 302
Everett, WA 98201
859.633.0635 (voice)
859.633.0635 (fax)

franklinshawn@example.org

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EXHIBIT 1
Case 2:20-cv-01813-RA

 

AS Or DESDE TIME/ HORA. LOCATION/ UBICACION

J 2/16/20 : 7 7 E|grAnderson Park

 

 

 

 

 

 

Materials in this area are an 9 str ae of the intended use of this property, are
in a hazardous location or pre hazard. This is not an authorized area for
storage or shelter. Any m s left here will be removed by the City on or after
the date and time posted yan belongings found by the City and
authorized for storage will be ke t for 70 days at no charge. / Los materiales en
esta zona son un obstdculg para el uso previsto de esta propiedad, estan en un lugar

ro. Esta no es una zona autorizada para

tir de la fecha y hora publicadas anteriormente,

: aqui sera retirado por la Ciudad, y las pertenencias
orizadas para el almacenamiento se guardaran

 

859.633.0635

 

 

red belongings to you, Belongings are stored at: 3807 2" Ave $ / La
enencias almacenadas. Las pertenencias se almacenan en: 3807 2” Ave S.

JTREACH AND HOUSING SUPPORT CALL:

ncia sobre contactos con la comunidad y sobre la vivienda, llame al:

211 or 859.633.0635

 

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