Sullivan v. City of Berkeley

383 F. Supp. 3d 976
CourtDistrict Court, N.D. California
DecidedApril 19, 2019
DocketNo. C 17-06051 WHA
StatusPublished
Cited by1 cases

This text of 383 F. Supp. 3d 976 (Sullivan v. City of Berkeley) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan v. City of Berkeley, 383 F. Supp. 3d 976 (N.D. Cal. 2019).

Opinion

William Alsup, United States District Judge *979INTRODUCTION

In this action for violations of constitutional rights, defendant City of Berkeley moves for summary judgment on all of plaintiffs' claims. For the reasons herein, the motion is GRANTED IN PART AND DENIED IN PART .

STATEMENT

At all material times, on any given night, nearly one thousand individuals experienced homelessness in Berkeley. Most were unsheltered and living on public streets, sidewalks, and parks. The City of Berkeley received frequent complaints regarding the encampments, including complaints concerning rodents, garbage, and illegal dumping. Businesses claimed that encampments discouraged patronage. Encampments on roadways and medians risked interfering with the visibility of traffic, thereby putting both homeless residents and drivers at risk. Encampments on sidewalks also interfered with access to public facilities and created liability for the City under the Americans with Disabilities Act. For these reasons and more, the City regularly removed homeless encampments located on its property, with the City Manager's Office directing large-scale removals (Williams-Ridley Decl. ¶¶ 3-5, Exh. 1).

At all relevant times, the City Manager's Office had a policy of distributing a written "Public Notice" prior to removing an encampment. The content of these notices evolved over time. Beginning in 2016, the notice listed (1) a distribution date, (2) sections of municipal and penal statutes that an encampment may be violating, (3) a list of services available to the homeless, and (4) instructions on how to find information on Berkeley's housing options. Beginning in December 2017, the notice began to include the following:

Any property which is left unattended will be handled in accordance with City policy regarding temporary storage of unattended property. Individuals who wish to reclaim their property may contact 311 Customer Service Center during regular business hours (Monday-Friday 8:00 AM to 5:00 PM): (510) 981-2489.

Since at least March 2018, the notice has also stated: "Alternatively, information regarding retrieval of unattended property is available in the lobby of the Berkeley Civic Center, 2180 Milvia Street, Berkeley, during regular business hours." The notice has never explained precisely what types of unattended property would be stored or where it would be stored. Nor did it ever contain the date upon which the City would return to enforce the encampment's removal. The notice instead directed homeless residents to move immediately (Hynes Decl. ¶ 6; Slimick Dep. 13:2-27:2; Williams-Ridley Dep. 51:22-52:9; Johns Decl. Exh. C).

The City had a general policy of distributing the written notice at least 72 hours prior to the removal of an encampment, although less notice was given where an immediate health or safety risk was implicated. City employees posted the notices on unoccupied tents and on nearby telephone poles or other available surfaces. Some notices were torn down but plaintiffs always received some amount of prior notice that their encampment would be the subject of an enforcement action (Hynes Decl. ¶¶ 6-8; Slimick Dep. 27:19-31:2; Zint Dep. 132:20-23).

*980The City also had a policy regarding the storage of unattended property collected during the removal of homeless encampments. Under the policy revised in 2006, City employees stored unattended property for 14 or 90 days depending on the property's value. The policy directed employees to keep together all property collected from the same location, to bag any loose items, and to fill out a storage tag. The storage tag included the date and location of the pickup, the staff name or employee number, and a notation indicating whether to store the property for 14 or 90 days. One copy of the tag stayed with the property and another copy went into a binder maintained by a supervisor. The policy also provided that the tag be faxed to the City's Mental Health division, which division coordinated retrieval of property with the public. "Representatives" of the property's owner could retrieve it on their behalf, which property the City stored at the Transfer Station on Second Street (Yavneh Decl. ¶¶ 3-11, Exh. 1; Hurtado Decl. ¶¶ 4-8).

Under this policy, the municipal homeless outreach worker, Eve Ahmed, coordinated the retrieval of property. When Ahmed or her staff received an inquiry from the public about missing property, they would cross check the provided information with the information on the storage tags. If the information matched, Ahmed would make an appointment to meet at the City's storage container on Second Street. Ahmed regularly drove people who lacked transportation to the storage container, even when the tags in the binder did not indicate a match, so that the person could check for their property. If anyone complained that their property had been damaged or lost, they received a claim form to seek reimbursement from the City (Yavneh Decl. ¶¶ 3-11; Ahmed Decl. ¶¶ 5-11).

In June 2017, the City revised its policies and practices with respect to the collection and storage of unattended property and memorialized the changes in Administrative Regulation 10.1 (AR 10.1). During an enforcement action, it provided occupied encampments with "a reasonable time to remove their property, as determined by the Berkeley Police Department." AR 10.1 stated that unattended property removed by the City would be held for at least 14 days. The policy required property to be held for longer if it had an apparent value of one hundred dollars or more or if the items appeared usable for shelter. Unattended property that was "clearly refuse or garbage," however, would be disposed of immediately. City staff were directed to photograph unattended property before removal, regardless of whether the property would be disposed of or stored. Moreover, when removing property, the City had to utilize an inventory form to list the collected property either as individual items or by the quantity of bags removed. Items of value had to be inventoried and the inventory form noted whether the item was stored or disposed of. AR 10.1 also required items to be "secured in a locked, covered, storage container located at the Corporation Yard at 1326 Allston Way" (Hurtado Decl. ¶¶ 14-17, Exh. 6).

* * *

In October 2016, plaintiff Benjamin Royer joined a homeless community in Berkeley called "First They Came for the Homeless" or FTCftH. That winter, FTCftH started the "Poor Tour," whereby they camped in visible places to demonstrate the plight of the homeless and "make a statement" about their treatment by the City. While he lived with FTCftH, Royer experienced nine encampment removals. During a December 2016 removal, the City collected certain of Royer's property, including a tarp, sleeping pad and bag, clothing, and a therapy tool. At that time, the written notice distributed by the City did *981not inform Royer how to retrieve his property. And, because Royer did not have a cell phone, he could not call 311 to try and find information about collecting his property (Dkt. No. 121 ¶¶ 7-8; Royer Dep. 94:24-99:20).

Plaintiff Clark Sullivan, a homeless member of FTCftH since November 2016, experienced seven encampment removals that winter. During two incidents, the City seized Sullivan's tent and a suitcase containing clothing, respectively.

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Bluebook (online)
383 F. Supp. 3d 976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-city-of-berkeley-cand-2019.