Settlement Follows on the Heels of a Preliminary Injunction and Denial of Defendants’ Summary Judgment Motions.
In Fall 2006, several homeless persons, individually and on a behalf of a class of all homeless people living in the City of Fresno whose personal belongings were unlawfully taken and destroyed in sweeps, raids, or clean ups, filed a federal action alleging that the City of Fresno and certain Caltrans Defendants violated plaintiffs’ Fourth Amendment rights against unreasonable searches and seizures as well as their Fourteenth Amendment rights to due process and equal protection, under 42 U.S.C. sec. 1983 (the federal civil rights statute). The case, Kincaid v. City of Fresno, Case No. 1:06-CV-1455-OWW-SMS (E.D. Cal. 2006), was assigned to District Judge Oliver W. Wanger (who contributor Mike Hensley had the pleasure to co-counsel with in an oil/gas case dating back to the late 1980s).
On October 25, 2006, District Judge Wanger granted a temporary restraining order, which was followed by a preliminary injunction—after a full evidentiary hearing—on December 8, 2007. The detailed preliminary injunction order is fascinating reading. City of Fresno conducted 25 “clean ups” of homeless encampments each year since 2004, destroying property of the homeless in the process, although witnesses admitted they found “great things in the trash”—which Judge Wanger later described as unique, irreplaceable items such as heirlooms, medications, pets, and even an urn with the remains of a grandchild. The federal judge further found that there were alterative storage measures used by other cities, even though these options were not explored by Fresno. Judge Wanger found that the City could store property at a reasonable cost and provided no post-deprivation remedy of any sort (instead, opting to just destroy the property). He found that the property destruction impacted both the dignities and ability to live of the homeless, meaning there was no adequate remedy at law. (Sadly, lead plaintiff Kincaid died in August 2007.)
District Judge Wanger also determined the City could cite no legal authority to uphold its practices in the homeless “sweeps.” Rather, he found that other courts had found constitutional violations so as to support injunctive relief, as he did in the Kincaid case. See, e.g., Pottinger v. City of Miami, 810 F. Supp. 1551, 1556 (S.D. Fla. 1992); Justin v. City of Los Angeles, 2000 WL 1808426 (C.D. Cal. Dec. 5, 2000); compare with Love v. City of Chicago, 1996 WL 627614 (N.D. Ill. 1992) (Chicago had written sweep procedures with notice to the homeless and saved/inventoried swept items). Judge Wanger provisionally found there were constitutional violations of a nature justifying issuance of a preliminary injunction without a bond (because destitute people were involved).
On August 14, 2007, Judge Wanger granted class certification. Later, on May 12, 2008, he granted in part/denied in part plaintiffs’ summary judgment as to liability against City of Fresno and the Caltrans Defendants, and also denied Caltrans Defendants’ summary judgment motion as to their federal law defenses.
On May 20, 2008, all parties met in an all-day mediation session with Magistrate Judge Sandra M. Snyder. A settlement was reached.
City of Fresno paid a total of $1,485,000 to Plaintiffs, $485,000 in a cash fund and $1,000,000 in living allowances administered under a tiered claim process. Because 42 U.S.C. sec. 1988 allows successful civil rights plaintiffs to recover fees and costs, City of Fresno also agreed to pay Plaintiffs’ attorneys $750,000 in fees and $100,000 in costs. City of Fresno also agreed to comply with an administrative order for handling of homeless property and to abide by Judge Wanger’s preliminary injunction for another 5 years. (Caltrans settled for $85,000, inclusive of fees and costs, as well as agreed to abide by the terms of the injunction for another 5 years).
For those civil rights claimants that can prove their case (impecunious or not), this case illustrates how fees and costs of a substantial amount can be awarded for successfully vindicating constitutional rights, something we are all proud of in this country. To see a copy of the settlement, click here.