U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:17-cv-00077-RSM

Hooper et al v. City Of Seattle, Washington et al Assigned to: Judge Ricardo S. Martinez Cause: 42:1983 Civil Rights Act

Date Filed: 01/19/2017 Date Terminated: 06/11/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Lisa Hooper

represented by Breanne Mary Schuster ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-624-2184 Email: bschuster@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Chiang ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164 206-624-2184 Email: echiang@aclu-wa.org TERMINATED: 02/05/2020 LEAD ATTORNEY

Lisa Nowlin ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-623-1900 Email: lnowlin@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Lynn Talner ACLU OF WASHINGTON 901 FIFTH AVENUE

SUITE 630 SEATTLE, WA 98164 206-682-2184 Email: talner@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Blake Edward Marks-Dias CORR CRONIN, LLP 1001 4TH AVE STE 3900 SEATTLE, WA 98154-1051 206-625-8600 Fax: 206-625-0900 Email: bmarksdias@corrcronin.com ATTORNEY TO BE NOTICED
Eric A Lindberg CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP 1001 4TH AVE STE 3900 SEATTLE, WA 98154-1051 206-625-8600 Email: elindberg@corrcronin.com ATTORNEY TO BE NOTICED
Victoria Ainsworth CORR CRONIN, LLP 1001 4TH AVE STE 3900 SEATTLE, WA 98154-1051 206-625-8600 Email: tainsworth@corrcronin.com ATTORNEY TO BE NOTICED
Todd T Williams CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP 1001 4TH AVE STE 3900 SEATTLE, WA 98154-1051 206-625-8600

Plaintiff
Brandie Osborne Individually and on behalf of a class of similarly situated individuals

Email: twilliams@corrcronin.com ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Chiang (See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY

Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Edward Marks-Dias (See above for address) ATTORNEY TO BE NOTICED

Eric A Lindberg (See above for address) ATTORNEY TO BE NOTICED

Victoria Ainsworth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff The Episcopal Diocese of Olympia

Todd T Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Real Change

Emily Chiang (See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Blake Edward Marks-Dias (See above for address) ATTORNEY TO BE NOTICED
Eric A Lindberg (See above for address) ATTORNEY TO BE NOTICED
Victoria Ainsworth (See above for address) ATTORNEY TO BE NOTICED
Todd T Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Chiang (See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Edward Marks-Dias (See above for address) ATTORNEY TO BE NOTICED

Eric A Lindberg (See above for address) ATTORNEY TO BE NOTICED

Victoria Ainsworth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kayla Willis individually and on behalf of a class of similarly situated individuals

Todd T Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Blake Edward Marks-Dias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Chiang (See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY

Eric A Lindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Nowlin (See above for address) LEAD ATTORNEY

Plaintiff Trinity Parish of Seattle

ATTORNEY TO BE NOTICED
Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Ainsworth (See above for address) ATTORNEY TO BE NOTICED
Todd T Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Blake Edward Marks-Dias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Chiang (See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY
Eric A Lindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victoria Ainsworth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Reavy Washington individually and on behalf of a class of similarly situated individuals

Todd T Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Blake Edward Marks-Dias CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP 1001 4TH AVE STE 3900 SEATTLE, WA 98154-1051 206-625-8600 Fax: 206-625-0900 Email: bmarksdias@corrcronin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Chiang (See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY

Eric A Lindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City of Seattle

Victoria Ainsworth (See above for address) ATTORNEY TO BE NOTICED
Todd T Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Thomas Myerberg SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-684-8200 Email: andrew.myerberg@seattle.gov TERMINATED: 10/24/2017
Carlton Wm Seu SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-733-9390 Email: carlton.seu@seattle.gov TERMINATED: 02/04/2020
Gary T Smith SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-733-9318 Fax: 206-684-8284 Email: gary.smith@seattle.gov ATTORNEY TO BE NOTICED
Gregory Colin Narver SEATTLE CITY ATTORNEY'S OFFICE

701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-684-8233 Email: gregory.narver@seattle.gov TERMINATED: 02/04/2020
Gregory J Wong PACIFICA LAW GROUP LLP 1191 SECOND AVENUE SUITE 2000 SEATTLE, WA 98101 206-245-1700 Fax: 206-245-1750 Email: greg.wong@pacificalawgroup.com ATTORNEY TO BE NOTICED
Matthew J Segal PACIFIC LAW GROUP LLP 1191 SECOND AVENUE SUITE 2100 SEATTLE, WA 98101 206-245-1700 Fax: FAX 623-7022 Email: matthew.segal@Pacificalawgroup.com ATTORNEY TO BE NOTICED
Patrick Downs SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-684-8616 Fax: 206-684-8284 Email: patrick.downs@seattle.gov ATTORNEY TO BE NOTICED
Taki V. Flevaris PACIFICA LAW GROUP LLP 1191 SECOND AVENUE SUITE 2000 SEATTLE, WA 98101 206-245-1700

Defendant Washington State Department of Transportation
Defendant Roger Millar Secretary of Transportation for WSDOT, in his official capacity

Email: taki.flevaris@pacificalawgroup.com ATTORNEY TO BE NOTICED
represented by Matthew D. Huot ATTORNEY GENERAL'S OFFICE (40111-OLY) COMPLEX LITIGATION DEPARTMENT 7141 CLEANWATER DRIVE SW PO BOX 40111 OLYMPIA, WA 98504-0111 360-709-6470 Email: matth4@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alicia O Young ATTORNEY GENERAL'S OFFICE (40100-OLY) PO BOX 40100 OLYMPIA, WA 98504-0100 360-586-2697 Email: AliciaO@atg.wa.gov TERMINATED: 02/04/2020
represented by Matthew D. Huot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alicia O Young (See above for address) TERMINATED: 02/04/2020

V. Interested Party YouthCare
Amicus

National Law Center on Homelessness and Poverty TERMINATED: 08/28/2017
Counter Claimant City of Seattle

represented by Craig G. Falls DECHERT LLP 1900 K STREET NW WASHINGTON, DC 20006 202-261-3300 Email: craig.falls@dechert.com TERMINATED: 08/28/2017 LEAD ATTORNEY PRO HAC VICE
John D Biancamano DECHERT LLP 1095 AVENUE OF THE AMERICAS 28TH FLOOR NEW YORK, NY 10036 212-698-3500 Email: john.biancamano@dechert.com TERMINATED: 08/28/2017 LEAD ATTORNEY PRO HAC VICE
Tristia Bauman NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY 2000 M ST. NW STE 210 WASHINGTON, DC 20036 202-638-2535 Email: tbauman@nlchp.org TERMINATED: 08/28/2017 LEAD ATTORNEY PRO HAC VICE
Joseph R Shaeffer MACDONALD HOAGUE & BAYLESS 705 SECOND AVE STE 1500 SEATTLE, WA 98104-1745 206-622-1604 Email: Joe@mhb.com TERMINATED: 08/28/2017
represented by Andrew Thomas Myerberg (See above for address)

V. Counter Defendant Lisa Hooper

TERMINATED: 10/24/2017
Carlton Wm Seu (See above for address) TERMINATED: 02/04/2020
Gary T Smith (See above for address) ATTORNEY TO BE NOTICED
Gregory Colin Narver (See above for address) TERMINATED: 02/04/2020
Gregory J Wong (See above for address) ATTORNEY TO BE NOTICED
Matthew J Segal (See above for address) ATTORNEY TO BE NOTICED
Patrick Downs (See above for address) ATTORNEY TO BE NOTICED
Taki V. Flevaris (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Chiang (See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY
Lisa Nowlin (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Edward Marks-Dias (See above for address) ATTORNEY TO BE NOTICED

Eric A Lindberg (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant
Brandie Osborne Individually and on behalf of a class of similarly situated individuals

Todd T Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Chiang (See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY

Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Edward Marks-Dias (See above for address) ATTORNEY TO BE NOTICED

Eric A Lindberg (See above for address)

ATTORNEY TO BE NOTICED

Counter Defendant Real Change

Todd T Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Chiang (See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY

Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Blake Edward Marks-Dias (See above for address) ATTORNEY TO BE NOTICED

Eric A Lindberg (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant The Episcopal Diocese of Olympia

Todd T Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Chiang

Counter Defendant Trinity Parish of Seattle

(See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Blake Edward Marks-Dias (See above for address) ATTORNEY TO BE NOTICED
Eric A Lindberg (See above for address) ATTORNEY TO BE NOTICED
Todd T Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Blake Edward Marks-Dias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Chiang (See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY
Eric A Lindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Counter Defendant
Kayla Willis individually and on behalf of a class of similarly situated individuals

Todd T Williams (See above for address) ATTORNEY TO BE NOTICED
represented by Blake Edward Marks-Dias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily Chiang (See above for address) TERMINATED: 02/05/2020 LEAD ATTORNEY

Eric A Lindberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Todd T Williams (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/19/2017
01/20/2017 01/20/2017 01/20/2017 01/20/2017 01/20/2017 01/20/2017 01/26/2017 01/26/2017 01/27/2017

# Docket Text
1 COMPLAINT Class Action for Declaratory and Injunctive Relief against All Defendants (Receipt # 0981-4739028) Attorney Todd T Williams added to party Lisa Hooper(pty:pla), Attorney Todd T Williams added to party Brandie Osborne(pty:pla), Attorney Todd T Williams added to party Real Change(pty:pla), Attorney Todd T Williams added to party The Episcopal Diocese of Olympia(pty:pla), filed by Lisa Hooper, The Episcopal Diocese of Olympia, Real Change, Brandie Osborne. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Williams, Todd) (Entered: 01/19/2017)
2 MOTION to Certify Class , filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia. (Attachments: # 1 Proposed Order) Noting Date 2/17/2017, (Williams, Todd) (Entered: 01/20/2017)
3 DECLARATION of Todd T. Williams filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 2 MOTION to Certify Class (Williams, Todd) (Entered: 01/20/2017)
4 DECLARATION of Emily Chiang filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 2 MOTION to Certify Class (Williams, Todd) (Entered: 01/20/2017)
5 PRAECIPE re 2 MOTION to Certify Class by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia (Attachments: # 1 Motion for Class Certification)(Williams, Todd) (Entered: 01/20/2017)
Judge James L. Robart added. (RE) (Entered: 01/20/2017)
6 Summons electronically issued as to defendant(s) City of Seattle, Washington, Roger Millar, Washington State Department of Transportation. (Attachments: # 1 Summons-WSDOT, # 2 Summons-Roger Millar)(RE) (Entered: 01/20/2017)
7 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by The Episcopal Diocese of Olympia (Williams, Todd) (Entered: 01/26/2017)
8 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Real Change (Williams, Todd) (Entered: 01/26/2017)
9 AFFIDAVIT of Service of Summons and Complaint on Travis Youtsey, Administrative Assistant, Person Authorized to Accept on 1/23/2017, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia. (Williams, Todd) (Entered: 01/27/2017)

01/27/2017
01/27/2017
01/31/2017 02/01/2017
02/01/2017
02/01/2017 02/01/2017 02/01/2017 02/01/2017 02/01/2017 02/01/2017
02/02/2017

10 AFFIDAVIT of Service of Summons and Complaint on Paul Triesch, Assistant Attorney General, Person Authorized to Accept on 1/23/2017, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia. (Williams, Todd) (Entered: 01/27/2017)
11 AFFIDAVIT of Service of Summons and Complaint on Paul Triesch, Assistant Attorney General, Person Authorized to Accept on 1/23/2017, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia. (Williams, Todd) (Entered: 01/27/2017)
12 MINUTE ORDER REASSIGNING CASE. Case reassigned to Judge Ricardo S Martinez for all further proceedings. All future pleadings shall bear cause number C17-77RSM by Judge James L. Robart. (RS) (Entered: 01/31/2017)
13 Per Counsel, NOTICE of Appearance by attorney Matthew J Segal on behalf of Defendants City of Seattle, only. Washington, Roger Millar, Washington State Department of Transportation. (Segal, Matthew) Modified on 2/8/2017 (vb). (Entered: 02/01/2017)
14 Per Counsel NOTICE of Appearance by attorney Taki V. Flevaris on behalf of Defendants City of Seattle, only. Washington, Roger Millar, Washington State Department of Transportation. (Flevaris, Taki) Modified on 2/8/2017 (vb). (Entered: 02/01/2017)
15 NOTICE of Appearance by attorney Gregory Colin Narver on behalf of Defendant City of Seattle, Washington. (Narver, Gregory) (Entered: 02/01/2017)
16 NOTICE of Appearance by attorney Carlton Wm Seu on behalf of Defendant City of Seattle, Washington. (Seu, Carlton) (Entered: 02/01/2017)
17 NOTICE of Appearance by attorney Gary T Smith on behalf of Defendant City of Seattle, Washington. (Smith, Gary) (Entered: 02/01/2017)
18 NOTICE of Appearance by attorney Andrew Thomas Myerberg on behalf of Defendant City of Seattle, Washington. (Myerberg, Andrew) (Entered: 02/01/2017)
19 NOTICE of Appearance by attorney Patrick Downs on behalf of Defendant City of Seattle, Washington. (Downs, Patrick) (Entered: 02/01/2017)
NOTICE of Docket Text Modification re 14 Notice of Appearance, 13 Notice of Appearance : Per Counsel, NOTICE of Appearance by attorney Matthew J Segal & Taki V. Flevaris filed on behalf of Defendants City of Seattle only (vb) (Entered: 02/08/2017)
20 NOTICE of Appearance by attorney Alicia O Young on behalf of Defendants Roger Millar, Washington State Department of Transportation. (Young, Alicia) (Entered: 02/02/2017)

02/02/2017 02/02/2017 02/03/2017 02/06/2017
02/06/2017 02/06/2017 02/06/2017 02/06/2017 02/06/2017 02/06/2017 02/06/2017 02/06/2017

21 NOTICE of Appearance by attorney Eric A Lindberg on behalf of Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia. (Lindberg, Eric) (Entered: 02/02/2017)
22 NOTICE of Appearance by attorney Blake Edward Marks-Dias on behalf of Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia. (Marks-Dias, Blake) (Entered: 02/02/2017)
Attorney Matthew D. Huot for Roger Millar and Washington State Department of Transportation added; per 20 Notice of Appearance. (CDA) (Entered: 02/03/2017)
23 MOTION for Temporary Restraining Order , filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 2/6/2017, (Williams, Todd) (Entered: 02/06/2017)
24 DECLARATION of Randi Kern filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/06/2017)
25 DECLARATION of Simon Stephens filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/06/2017)
26 DECLARATION of Alex Garland filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/06/2017)
27 DECLARATION of Lisa Hooper filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/06/2017)
28 DECLARATION of Love McCoy filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/06/2017)
29 DECLARATION of Timothy Alexander filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/06/2017)
30 DECLARATION of Jamie Fuller filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/06/2017)
31 DECLARATION of Aedan Roberts filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/06/2017)

02/06/2017 02/06/2017 02/06/2017
02/07/2017
02/07/2017 02/07/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017

32 DECLARATION of Brandie Osborne filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/06/2017)
33 DECLARATION of Breanne Schuster filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/06/2017)
34 CERTIFICATE OF SERVICE by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 31 Declaration, 30 Declaration, 32 Declaration, 29 Declaration, 26 Declaration, 2 5 Declaration, 28 Declaration, 27 Declaration, 24 Declaration, 33 Declaration (Willi ams, Todd) (Entered: 02/06/2017)
35 MINUTE ORDER by Chief Judge Ricardo S. Martinez re: 23 MOTION for Temporary Restraining Order filed by The Episcopal Diocese of Olympia, Brandie Osborne, Real Change, Lisa Hooper. Defendants' Responsive Brief due by noon on 2/9/2017. Plaintiffs' Reply Brief due by noon on 2/10/2017. TRO Hearing set for 2/13/2017 at 12:00 PM before Judge Ricardo S Martinez.(SSM) (Entered: 02/07/2017)
36 RESPONSE, by Defendants City of Seattle, Washington, Roger Millar, Washington State Department of Transportation, to 23 MOTION for Temporary Restraining Order . (Young, Alicia) (Entered: 02/07/2017)
37 NOTICE of Unavailability of counsel Alicia O Young for Defendants Roger Millar, Washington State Department of Transportation from February 15, to February 23, 2017. (Young, Alicia) (Entered: 02/07/2017)
38 RESPONSE, by Defendants Roger Millar, Washington State Department of Transportation, to 23 MOTION for Temporary Restraining Order . (Young, Alicia) (Entered: 02/09/2017)
39 DECLARATION of Jim McBride filed by Defendants Roger Millar, Washington State Department of Transportation re 23 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit)(Young, Alicia) (Entered: 02/09/2017)
40 DECLARATION of Lance Pascubillo filed by Defendants Roger Millar, Washington State Department of Transportation re 23 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit)(Young, Alicia) (Entered: 02/09/2017)
41 DECLARATION of David McCormick filed by Defendants Roger Millar, Washington State Department of Transportation re 23 MOTION for Temporary Restraining Order (Young, Alicia) (Entered: 02/09/2017)
42 RESPONSE, by Defendant City of Seattle, Washington, to 23 MOTION for Temporary Restraining Order . Oral Argument Requested. (Attachments: # 1 Proposed Order)(Segal, Matthew) (Entered: 02/09/2017)

02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/10/2017 02/10/2017 02/10/2017
02/10/2017
02/10/2017 02/10/2017

43 DECLARATION of Chris Potter filed by Defendant City of Seattle, Washington re 23 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit Ex. 113)(Segal, Matthew) (Entered: 02/09/2017)
44 DECLARATION of Jesus Aguirre filed by Defendant City of Seattle, Washington re 23 MOTION for Temporary Restraining Order (Segal, Matthew) (Entered: 02/09/2017)
45 DECLARATION of Karen Sweeny filed by Defendant City of Seattle, Washington re 23 MOTION for Temporary Restraining Order (Segal, Matthew) (Entered: 02/09/2017)
46 DECLARATION of Matthew Segal filed by Defendant City of Seattle, Washington re 23 MOTION for Temporary Restraining Order (Segal, Matthew) (Entered: 02/09/2017)
47 DECLARATION of Scott Lindsay filed by Defendant City of Seattle, Washington re 23 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit 13)(Segal, Matthew) (Entered: 02/09/2017)
48 DECLARATION of Steven Wilske filed by Defendant City of Seattle, Washington re 23 MOTION for Temporary Restraining Order (Segal, Matthew) (Entered: 02/09/2017)
49 NOTICE of Appearance by attorney Gregory J Wong on behalf of Defendant City of Seattle, Washington. (Wong, Gregory) (Entered: 02/10/2017)
50 REPLY, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, TO RESPONSE to 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/10/2017)
51 DECLARATION of Todd T. Williams filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A)(Williams, Todd) (Entered: 02/10/2017)
52 DECLARATION of Breanne Schuster filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Williams, Todd) (Entered: 02/10/2017)
53 DECLARATION of Alan Short filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/10/2017)
54 DECLARATION of Kayla Willis filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/10/2017)

02/10/2017 02/10/2017 02/10/2017 02/10/2017 02/13/2017 02/13/2017 02/13/2017
02/13/2017 02/13/2017

55 CERTIFICATE OF SERVICE by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 53 Declaration, 52 Declaration, 54 Declaration, 50 Reply to Response to Motion (Williams, Todd) (Entered: 02/10/2017)
Reset Hearings: Due to a scheduling conflict on the Court's calendar, TRO Hearing reset for 2/13/2017 at 2:30 PM before Judge Ricardo S. Martinez. (LW) (Entered: 02/10/2017)
56 STIPULATION AND PROPOSED ORDER re Motion for Class Certification and Briefing Schedule by parties re 2 MOTION to Certify Class (Attachments: # 1 Proposed Order)(Segal, Matthew) (Entered: 02/10/2017)
57 Second DECLARATION of David McCormick filed by Defendants Roger Millar, Washington State Department of Transportation re 23 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Young, Alicia) (Entered: 02/10/2017)
58 MOTION for Leave to File Supplemental Declaration, filed by Defendant City of Seattle, Washington. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order) Noting Date 2/13/2017, (Segal, Matthew) (Entered: 02/13/2017)
59 STIPULATION AND ORDER by Chief Judge Ricardo S. Martinez re 56 Stipulation on Motion for Class Certification and Proposed Briefing Schedule. No later than February 24, 2017, the parties shall submit to the Court their proposal for a briefing schedule for the motion. Motion for Class Certification RE-NOTED for 3/3/2017.(SSM) (Entered: 02/13/2017)
60 MINUTE ORDER by Chief Judge Ricardo S. Martinez re: 58 MOTION for Leave to File Supplemental Declaration filed by City of Seattle, Washington. The following MINUTE ORDER is made by direction of the Court, the Honorable Ricardo S. Martinez, Chief United States District Judge:The City of Seattle's Motion for Leave is GRANTED. The City of Seattle may file into the record the Second Declaration of Chris Potter in Support of the City's Opposition to Motion for Temporary Restraining Order. (SSM) (Entered: 02/13/2017)
61 Second DECLARATION of Chris Potter filed by Defendant City of Seattle, Washington re 58 MOTION for Leave to File Supplemental Declaration, 23 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit)(Segal, Matthew) (Entered: 02/13/2017)
62 MINUTE ENTRY for proceedings held before Judge Ricardo S Martinez- Dep Clerk: Laurie Cuaresma; Pla Counsel: Blake Marks-Dias, Nancy Talner, Breanne Schuster, Todd Williams, Eric Lindberg; Def Counsel: Taki Flevaris, Matthew Segal, Patrick Down, Alicia Young, Matt Huot; CR: Andrea Ramirez; Time of Hearing: 2:30 PM; TRO Hearing held on 2/13/2017. The Court hears argument of counsel; Court takes matter under advisement and will issue ruling as soon as possible. (LC) (Entered: 02/13/2017)

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02/14/2017 02/24/2017 02/24/2017 02/24/2017 02/27/2017 03/01/2017 03/02/2017

63 DECLARATION of Simon Stephens filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia re 23 MOTION for Temporary Restraining Order (Williams, Todd) (Entered: 02/13/2017)
64 NOTICE of Filing Flash Drive in Paper or Physical Form with the Clerk's Office by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia. inre 23 Motion for TRO. (Williams, Todd) (Entered: 02/14/2017)
65 ORDER denying 23 Motion for TRO by Chief Judge Ricardo S. Martinez. Plaintiff's concurrent motion for Preliminary Injunction will be scheduled for oral argument. No later than ten (10) days from the date of this Order, the parties shall meet and confer and submit to the Court by way of Joint Status Report a proposed briefing schedule for any supplemental briefing to be submitted by the parties and several proposed oral argument dates and times, along with a proposed Order. (SSM) (Entered: 02/14/2017)
66 NOTICE of Filing Physical Form with the Clerk's Office: Flash Drive re Motion for TRO 23 by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia. (Flash drive placed on Clerk's Office filing shelf)(PM) (Entered: 02/15/2017)
67 Joint Stipulated MOTION to Extend Deadline to Submit Joint Status Report, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia. (Attachments: # 1 Proposed Order) Noting Date 2/24/2017, (Lindberg, Eric) (Entered: 02/24/2017)
68 ORDER granting 67 Stipulated Motion extending time to submit joint status report by Judge Ricardo S Martinez.(RS) (Entered: 02/24/2017)
69 Joint Stipulated MOTION to Extend Deadline to Submit Proposed Schedule for Class Certification Briefing, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia. (Attachments: # 1 Proposed Order) Noting Date 2/24/2017, (Lindberg, Eric) (Entered: 02/24/2017)
70 ORDER granting 69 Stipulated Motion to extend deadline to submit proposed schedule for class certification briefing by Judge Ricardo S Martinez.(RS) (Entered: 02/27/2017)
71 JOINT STATUS REPORT signed by all parties (Williams, Todd) (Entered: 03/01/2017)
72 MINUTE ORDER by Chief Judge Ricardo S. Martinez. The following MINUTE ORDER is made by direction of the Court, the Honorable Ricardo S. Martinez, Chief United States District Judge: Pursuant to the parties' Joint Status Report filed on March 1, 2017 (Dkt. #71), the Court hereby sets the following motions deadlines and hearing date. Plaintiffs' Motion for Preliminary Injunction shall be filed no later than 6/14/2017. Defendants' opposition to that motion is due by 7/28/2017, and any Reply by Plaintiffs will be due by 8/11/2017. Plaintiffs' Motion for Class Certification was filed on 1/20/2017. Defendants' opposition to that motion is due by

03/02/2017 03/16/2017 03/16/2017 04/03/2017 04/04/2017
04/06/2017 04/06/2017

5/30/2017, and any Reply will be due by 6/29/2017. A hearing on both motions has been scheduled for September 7, 2017, at 09:00 AM before Chief Judge Ricardo S. Martinez. Both motions will be argued at that time, and the hearing shall last no longer than two hours. (SSM) (Entered: 03/02/2017)
73 AMENDED COMPLAINT CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF against defendant(s) All Defendants, filed by Lisa Hooper, Real Change, The Episcopal Diocese of Olympia, Brandie Osborne.(Williams, Todd) (Entered: 03/02/2017)
74 ANSWER to 73 Amended Complaint WSDOT Defendants by Roger Millar, Washington State Department of Transportation.(Huot, Matthew) (Entered: 03/16/2017)
75 ANSWER to 73 Amended Complaint, 1 Complaint,, , ANSWER to 73 Amended Complaint, 1 Complaint,, , COUNTERCLAIM against plaintiff Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Kayla Willis by City Of Seattle.(Segal, Matthew) (Entered: 03/16/2017)
76 OBJECTIONS to Subpoena to Produce Documents by Interested Party YouthCare (Lyon, Wendy) (Entered: 04/03/2017)
77 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 2/13/2017 before Judge Ricardo S. Martinez.
Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Andrea Ramirez, andrea_ramirez@wawd.uscourts.gov, 206-370-8509.
Release of Transcript Restriction set for 7/3/2017, (AR) (Entered: 04/04/2017)
78 Plaintiffs' ANSWER to 75 Answer to Amended Complaint,, Answer to Complaint,, Counterclaim, of City Of Seattle by Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Kayla Willis.(Williams, Todd) (Entered: 04/06/2017)
79 STIPULATION AND PROPOSED ORDER RE Protective Order by parties (Flevaris, Taki) (Entered: 04/06/2017)

04/07/2017 05/09/2017 05/09/2017 05/10/2017 05/22/2017 05/22/2017 05/22/2017 05/23/2017 05/24/2017
06/02/2017 06/05/2017

80 STIPULATED PROTECTIVE ORDER re 79 Stipulation, by Judge Ricardo S Martinez. (SWT) (Entered: 04/07/2017)
81 MOTION to Amend 73 Amended Complaint,, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Kayla Willis. (Attachments: # 1 Proposed Order) Noting Date 5/26/2017, (Williams, Todd) (Entered: 05/09/2017)
82 DECLARATION of Todd T. Williams filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Kayla Willis re 81 MOTION to Amend 73 Amended Complaint, (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Williams, Todd) (Entered: 05/09/2017)
83 OBJECTIONS / AMENDED Objection to Subpoena to Produce Documents by Interested Party YouthCare (Lyon, Wendy) (Entered: 05/10/2017)
84 Joint Stipulated MOTION to File Second Amended Complaint, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Kayla Willis. (Attachments: # 1 Proposed Order) Noting Date 5/22/2017, (Williams, Todd) (Entered: 05/22/2017)
85 STIPULATION AND PROPOSED ORDER Re Motion for Class Certification Briefing Schedule by parties re 2 MOTION to Certify Class (Wong, Gregory) (Entered: 05/22/2017)
86 ORDER granting parties' 84 Joint Stipulated Motion to File Second Amended Complaint ; withdrawing as moot Plaintiffs' 81 Motion to Amend Complaint, by Judge Ricardo S Martinez.(SWT) (Entered: 05/22/2017)
87 Second AMENDED COMPLAINT Class Action for Declaratory and Injunctive Relief against All Defendants, filed by Kayla Willis, Lisa Hooper, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Brandie Osborne.(Williams, Todd) (Entered: 05/23/2017)
88 STIPULATION AND ORDER by Chief Judge Ricardo S. Martinez re 85 Stipulation filed by City Of Seattle. Defendants' opposition to Plaintiffs' Motion for Class Certification shall be filed on or before June 21, 2017 and Plaintiffs' reply thereto shall be filed on or before July 21, 2017. Plaintiffs' Motion for Class Certification has been re-noted for 7/21/2017. The hearing date remains on September 7, 2017. (SSM) (Entered: 05/24/2017)
89 MOTION for Leave to File Excess Pages , filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis. (Attachments: # 1 Proposed Order) Noting Date 6/2/2017, (Williams, Todd) (Entered: 06/02/2017)
90 MINUTE ORDER by Chief Judge Ricardo S. Martinez re: 89 MOTION for Leave to File Excess Pages filed by Plaintiffs. The following MINUTE ORDER is made by direction of the Court, the Honorable Ricardo S. Martinez, Chief United States

06/06/2017 06/06/2017 06/14/2017 06/14/2017
06/14/2017 06/14/2017 06/14/2017

District Judge: Plaintiffs seek leave to file an overlength motion for preliminary injunction. They ask for up to 16 extra pages, for a total of 40 pages. The Court has reviewed the request and GRANTS IN PART AND DENIES IN PART the motion. The Court will allow Plaintiffs eight (8) additional pages, for a total of 32 pages. Accordingly, any brief in opposition will automatically be allowed an equal number of additional pages. The reply brief shall not exceed one-half the total length of the brief filed in opposition. (SSM) (Entered: 06/05/2017)
91 ANSWER to 87 Amended Complaint, WSDOT Defendants' Answer to 2nd Amended Complaint by Roger Millar, Washington State Department of Transportation.(Young, Alicia) (Entered: 06/06/2017)
92 ANSWER to 87 Amended Complaint, Answer, Affirmative Defenses and Counterclaim to Second Amended Complaint by City Of Seattle.(Wong, Gregory) (Entered: 06/06/2017)
93 MOTION for Preliminary Injunction , filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 9/7/2017, (Williams, Todd) (Entered: 06/14/2017)
94 DECLARATION of Breanne Schuster filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibits J-P, # 11 Exhibit Q, # 12 Exhibit R, # 13 Exhibit S, # 14 Exhibit T, # 15 Exhibit U, # 16 Exhibit V, # 17 Exhibit W, # 18 Exhibit X, # 19 Exhibit Y, # 20 Exhibit Z, # 21 Exhibit AA, # 22 Exhibit BB, # 23 Exhibit CC, # 24 Exhibit DD, # 25 Exhibit EE, # 26 Exhibit FF, # 27 Exhibit GG)(Williams, Todd) (Entered: 06/14/2017)
95 DECLARATION of Alicia Raftery filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
96 DECLARATION of Amanda Richer filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
97 DECLARATION of Anna Meisel Gibson filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)

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98 DECLARATION of Danielle Montrose filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
99 DECLARATION of Edward Rodriguez filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
100 DECLARATION of Garth Carroll filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
101 DECLARATION of Joe Martin filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
102 DECLARATION of Kelliegh Kinst filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
103 DECLARATION of Rebecca Massey filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
104 DECLARATION of Melvin Christian filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
105 DECLARATION of Patacara Community Services filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
106 DECLARATION of Phillip Pitts filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
107 DECLARATION of Teresa Peila filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)

06/14/2017 06/14/2017 06/14/2017 06/14/2017 06/14/2017 06/14/2017 06/14/2017 06/14/2017 06/14/2017 06/14/2017

108 DECLARATION of Thiago Cross filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
109 DECLARATION of Timothy Alexander filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
110 DECLARATION of William Daniell filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
111 Second DECLARATION of Aedan Roberts filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
112 Supplemental DECLARATION of Alex Garland filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
113 DECLARATION of Ann-Dee Levine filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
114 DECLARATION of Katarina Brunette filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
115 DECLARATION of Chris Cirillo filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
116 DECLARATION of Christine Rutan filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit, # 2 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
117 DECLARATION of Cory Potts filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy

06/14/2017 06/14/2017 06/14/2017 06/14/2017
06/14/2017 06/14/2017 06/14/2017 06/14/2017

Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
118 DECLARATION of Jon Grant filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
119 DECLARATION of Olivia Mansker-Stoker filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
120 DECLARATION of Rabi Lahiri filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
121 Third DECLARATION of Simon Stephens filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
122 DECLARATION of Reavy Washington filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
123 DECLARATION of Edward Wixler filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit, # 2 Exhibit)(Williams, Todd) (Entered: 06/14/2017)
124 NOTICE of Filing CD Containing Audio/Video Recordings in Paper or Physical Form with the Clerk's Office by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis. inre 93 Motion for Preliminary Injunction,. (Williams, Todd) (Entered: 06/14/2017)
125 CERTIFICATE OF SERVICE by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 123 Declaration, 121 Declaration,, 112 Declaration, 118 Declaration, 117 Declarat

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ion, 113 Declaration, 114 Declaration, 122 Declaration, 116 Declaration, 111 Declar ation, 119 Declaration, 115 Declaration, 120 Declaration, 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 06/14/2017)
126 RECEIPT of two (2) CD's re Plaintiffs' 124 Notice of Filing Paper or Physical Materials. Kept in Clerk's Office on shelf. (SWT) Modified docket text on 6/19/2017 (SWT). (Entered: 06/16/2017)
127 Unopposed MOTION for Entry of Order Regarding Production of Documents by Google , filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis. (Attachments: # 1 Proposed Order) Noting Date 6/20/2017, (Williams, Todd) (Entered: 06/20/2017)
128 DECLARATION of Todd T. Williams filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 127 Unopposed MOTION for Entry of Order Regarding Production of Documents by Google (Williams, Todd) (Entered: 06/20/2017)
129 ORDER granting Plaintiffs' 127 Motion for entry of order regarding production of documents by Google, signed by Judge Ricardo S Martinez. (PM) (Entered: 06/20/2017)
130 RESPONSE, by Defendants Roger Millar, Washington State Department of Transportation, to 2 MOTION to Certify Class . (Young, Alicia) (Entered: 06/21/2017)
131 DECLARATION of Alicia O. Young filed by Defendants Roger Millar, Washington State Department of Transportation re 2 MOTION to Certify Class (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Young, Alicia) (Entered: 06/21/2017)
132 RESPONSE, by Defendant City Of Seattle, to 2 MOTION to Certify Class . Oral Argument Requested. (Attachments: # 1 Proposed Order)(Wong, Gregory) (Entered: 06/21/2017)
133 DECLARATION of Catherine Lester filed by Defendant City Of Seattle re 2 MOTION to Certify Class (Attachments: # 1 Exhibit A - C)(Wong, Gregory) (Entered: 06/21/2017)
134 DECLARATION of Chris Potter filed by Defendant City Of Seattle re 2 MOTION to Certify Class (Attachments: # 1 Exhibit A - B)(Wong, Gregory) (Entered: 06/21/2017)
135 DECLARATION of August Drake-Ericson filed by Defendant City Of Seattle re 2 MOTION to Certify Class (Attachments: # 1 Exhibit A - C)(Wong, Gregory) (Entered: 06/21/2017)

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06/29/2017
06/30/2017

136 DECLARATION of Jackie St. Louis filed by Defendant City Of Seattle re 2 MOTION to Certify Class (Wong, Gregory) (Entered: 06/21/2017)
137 DECLARATION of Kenny Alcantara filed by Defendant City Of Seattle re 2 MOTION to Certify Class (Wong, Gregory) (Entered: 06/21/2017)
138 DECLARATION of Gregory J. Wong filed by Defendant City Of Seattle re 2 MOTION to Certify Class (Attachments: # 1 Exhibit A - E)(Wong, Gregory) (Entered: 06/21/2017)
139 PRAECIPE re 135 Declaration of August Drake-Ericson by Defendant City Of Seattle (Attachments: # 1 Exhibit A)(Segal, Matthew) (Entered: 06/27/2017)
140 ANSWER to Complaint; Answer to Defendant City of Seattles Counterclaim by Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis.(Williams, Todd) (Entered: 06/27/2017)
141 NOTICE of Appearance by attorney Joseph R Shaeffer on behalf of Amicus National Law Center on Homelessness and Poverty. (Shaeffer, Joseph) (Entered: 06/29/2017)
142 APPLICATION OF ATTORNEY Tristia Bauman FOR LEAVE TO APPEAR PRO HAC VICE for Amicus National Law Center on Homelessness and Poverty (Fee Paid) Receipt No. 0981-4927622 (Shaeffer, Joseph) (Entered: 06/29/2017)
143 APPLICATION OF ATTORNEY John D. Biancamano FOR LEAVE TO APPEAR PRO HAC VICE for Amicus National Law Center on Homelessness and Poverty (Fee Paid) Receipt No. 0981-4927634 (Shaeffer, Joseph) (Entered: 06/29/2017)
144 APPLICATION OF ATTORNEY Craig G. Falls FOR LEAVE TO APPEAR PRO HAC VICE for Amicus National Law Center on Homelessness and Poverty (Fee Paid) Receipt No. 0981-4927646 (Shaeffer, Joseph) (Entered: 06/29/2017)
145 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion for Preliminary Injunction, filed by Amicus National Law Center on Homelessness and Poverty. (Attachments: # 1 Exhibit A, # 2 Proposed Order) Noting Date 7/14/2017, (Shaeffer, Joseph) (Entered: 06/29/2017)
146 DECLARATION of Joe Shaeffer filed by Amicus National Law Center on Homelessness and Poverty re 145 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Shaeffer, Joseph) (Entered: 06/29/2017)
147 ORDER re 142 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Tristia Bauman for Amicus National Law Center on Homelessness and Poverty, by Clerk William M McCool. No document associated with this docket entry, text only.

06/30/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 06/30/2017)
148 ORDER re 143 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney John D Biancamano for Amicus National Law Center on Homelessness and Poverty, by Clerk William M McCool. No document associated with this docket entry, text only.

06/30/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 06/30/2017)
149 ORDER re 144 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Craig G. Falls for Amicus National Law Center on Homelessness and Poverty, by Clerk William M McCool. No document associated with this docket entry, text only.

07/10/2017 07/10/2017 07/14/2017
07/14/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 06/30/2017)
150 RESPONSE, by Defendant City Of Seattle, to 145 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion for Preliminary Injunction. (Segal, Matthew) (Entered: 07/10/2017)
151 DECLARATION of Taki Flevaris filed by Defendant City Of Seattle re 145 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Segal, Matthew) (Entered: 07/10/2017)
152 REPLY, filed by Amicus National Law Center on Homelessness and Poverty Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis, TO RESPONSE to 145 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion for Preliminary Injunction (Shaeffer, Joseph) Per Counsel, document filed on behalf of Amicus National Law Center on Homelessness and Poverty not Plaintiffs. Modified on 7/14/2017 (vb). (Entered: 07/14/2017)
NOTICE of Docket Text Modification re 152 Reply to Response to Motion,, : Per Counsel, document filed on behalf of Amicus National Law Center on Homelessness and Poverty not Plaintiffs. (vb) (Entered: 07/14/2017)

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153 MOTION for Leave to File Supplemental Declaration, filed by Counter Claimant City Of Seattle, Defendant City Of Seattle. Noting Date 7/14/2017, (Segal, Matthew) (Entered: 07/14/2017)
154 PROPOSED Second DECLARATION of Taki V. Flevaris filed by Counter Claimant City Of Seattle, Defendant City Of Seattle re 153 MOTION for Leave to File Supplemental Declaration (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Segal, Matthew) Text Modified on 7/14/2017 to indicate this is a proposed document pending ruling on the 153 Motion for leave to file supplemental declaration, per phone call from counsel (PM). (Entered: 07/14/2017)
NOTICE of Docket Text Modification re 154 PROPOSED Declaration - This Declaration is proposed pending ruling on Defendant's 153 Motion for leave to file supplemental declaration, per phone call from counsel. (PM) (Entered: 07/14/2017)
155 RESPONSE, by Amicus National Law Center on Homelessness and Poverty, to 153 MOTION for Leave to File Supplemental Declaration. (Shaeffer, Joseph) (Entered: 07/17/2017)
156 DECLARATION of John Biancamano filed by Amicus National Law Center on Homelessness and Poverty re 153 MOTION for Leave to File Supplemental Declaration (Attachments: # 1 Exhibit A to Declaration of John Biancamano)(Shaeffer, Joseph) (Entered: 07/17/2017)
157 STIPULATION AND PROPOSED ORDER re Briefing Schedule by parties re 72 Minute Order,,,, Set Deadlines/Hearings,,, (Segal, Matthew) (Entered: 07/20/2017)
158 STIPULATION AND ORDER REGARDING MOTION FOR PRELIMINARY INJUNCTION BRIEFING SCHEDULE by Judge Ricardo S Martinez. (RS) (Entered: 07/21/2017)
159 REPLY, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis, TO RESPONSE to 2 MOTION to Certify Class (Williams, Todd) (Entered: 07/21/2017)
160 DECLARATION of Breanne Schuster filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 2 MOTION to Certify Class (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Williams, Todd) (Entered: 07/21/2017)
161 NOTICE of Appearance by attorney Breanne Mary Schuster on behalf of Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis, Counter Defendants Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Kayla Willis. (Schuster, Breanne) (Entered: 07/26/2017)

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Attorney Lisa Nowlin for Lisa Hooper,Lisa Nowlin for Lisa Hooper,Lisa Nowlin for Brandie Osborne,Lisa Nowlin for Brandie Osborne,Lisa Nowlin for Real Change,Lisa Nowlin for Real Change,Lisa Nowlin for The Episcopal Diocese of Olympia,Lisa Nowlin for The Episcopal Diocese of Olympia,Lisa Nowlin for Trinity Parish of Seattle,Lisa Nowlin for Trinity Parish of Seattle,Lisa Nowlin for Reavy Washington,Lisa Nowlin for Kayla Willis,Lisa Nowlin for Kayla Willis added; per 161 Notice of Appearance,. (vb) (Entered: 07/26/2017)
162 RESPONSE, by Defendants Roger Millar, Washington State Department of Transportation, to 93 MOTION for Preliminary Injunction . (Young, Alicia) (Entered: 08/07/2017)
163 DECLARATION of Matthew D. Huot filed by Defendants Roger Millar, Washington State Department of Transportation re 93 MOTION for Preliminary Injunction (Young, Alicia) (Entered: 08/07/2017)
164 DECLARATION of Bryan Maloney filed by Defendants Roger Millar, Washington State Department of Transportation re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Exhibit 1)(Young, Alicia) (Entered: 08/07/2017)
165 DECLARATION of Jim McBride filed by Defendants Roger Millar, Washington State Department of Transportation re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Young, Alicia) (Entered: 08/07/2017)
166 DECLARATION of David McCormick filed by Defendants Roger Millar, Washington State Department of Transportation re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12)(Young, Alicia) (Entered: 08/07/2017)
167 DECLARATION of Lance Pascubillo filed by Defendants Roger Millar, Washington State Department of Transportation re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13, # 14 Exhibit Exhibit 14, # 15 Exhibit Exhibit 15)(Young, Alicia) (Entered: 08/07/2017)
168 DECLARATION of Amir Rasaie filed by Defendants Roger Millar, Washington State Department of Transportation re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Exhibit 1)(Young, Alicia) (Entered: 08/07/2017)

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169 DECLARATION of Alicia O. Young filed by Defendants Roger Millar, Washington State Department of Transportation re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11)(Young, Alicia) (Entered: 08/07/2017)
170 NOTICE of Filing Huot Decl. Exs. 1-2 (CD) in Paper or Physical Form with the Clerk's Office by Defendants Roger Millar, Washington State Department of Transportation. inre 163 Declaration. (Young, Alicia) (Entered: 08/07/2017)
171 RESPONSE, by Defendant City Of Seattle, to 93 MOTION for Preliminary Injunction . Oral Argument Requested. (Attachments: # 1 Proposed Order)(Segal, Matthew) (Entered: 08/07/2017)
172 DECLARATION of Kenny Alcantara filed by Defendant City Of Seattle re 93 MOTION for Preliminary Injunction (Segal, Matthew) (Entered: 08/07/2017)
173 CERTIFICATE OF SERVICE by Defendants Roger Millar, Washington State Department of Transportation re 163 Declaration, 166 Declaration,, 167 Declaration,, 164 Declaration, 168 Declara tion, 162 Response to Motion, 169 Declaration, 170 Notice of Filing Paper or Physical Materials, 165 Declaration (Young, Alicia) (Entered: 08/07/2017)
174 DECLARATION of David Cowan filed by Defendant City Of Seattle re 93 MOTION for Preliminary Injunction (Segal, Matthew) (Entered: 08/07/2017)
175 DECLARATION of August Drake-Ericson filed by Defendant City Of Seattle re 93 MOTION for Preliminary Injunction (Segal, Matthew) (Entered: 08/07/2017)
176 DECLARATION of Jeff Horan filed by Defendant City Of Seattle re 93 MOTION for Preliminary Injunction (Segal, Matthew) (Entered: 08/07/2017)
177 DECLARATION of James Lohman filed by Defendant City Of Seattle re 93 MOTION for Preliminary Injunction (Segal, Matthew) (Entered: 08/07/2017)
178 DECLARATION of Chris Potter filed by Defendant City Of Seattle re 93 MOTION for Preliminary Injunction (Segal, Matthew) (Entered: 08/07/2017)
179 DECLARATION of Jackie St. Louis filed by Defendant City Of Seattle re 93 MOTION for Preliminary Injunction (Segal, Matthew) (Entered: 08/07/2017)
180 DECLARATION of Taki Flevaris filed by Defendant City Of Seattle re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A - V)(Segal, Matthew) (Entered: 08/07/2017)
181 NOTICE of Filing CD containing Ex. M to Taki Flevaris Declaration in Paper or Physical Form with the Clerk's Office by Defendant City Of Seattle. inre 180 Declaration. (Segal, Matthew) (Entered: 08/07/2017)

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182 Supplemental DECLARATION of David McCormick filed by Defendants Roger Millar, Washington State Department of Transportation re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Exhibit 1)(Young, Alicia) (Entered: 08/07/2017)
183 RECEIPT of CD (originally filed at dkt 170) of Exhibits 1-2 to Declaration of Matthew D Huot; filed in expando folder (RS) (Entered: 08/08/2017)
184 RECEIPT of CD (originally filed at dkt. 181 ) Containing Exhibit M - audio recording; placed on Clerk 's filing shelf in expando folder. (PM) (Entered: 08/09/2017)
Reset Oral Argument TIME on 2 MOTION to Certify Class , and 93 MOTION for Preliminary Injunction : Motion Hearing set for 9/7/2017 at 11:30 AM before Judge Ricardo S Martinez. (LC) (Entered: 08/16/2017)
185 REPLY, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis, TO RESPONSE to 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 08/25/2017)
186 Second DECLARATION of Reavy Washington filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Williams, Todd) (Entered: 08/25/2017)
187 DECLARATION of Sarah Aitchison filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibits 1 - 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5)(Williams, Todd) (Entered: 08/25/2017)
188 DECLARATION of Christine Rutan filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit 6, # 2 Exhibit 7)(Williams, Todd) (Entered: 08/25/2017)
189 DECLARATION of Breanne Schuster filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29)(Williams, Todd) (Entered: 08/25/2017)

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190 NOTICE of Filing CD Containing Audio/Video Recordings in Paper or Physical Form with the Clerk's Office by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis. inre 187 Declaration, 93 Motion for Preliminary Injunction,. (Williams, Todd) (Entered: 08/25/2017)
191 RECEIPT re Plaintiffs' 190 Notice of Filing CD Containing Audio/Video Recordings in Paper or Physical Form; CD filed in Seattle Clerk's Office in 1 expando. (TH) (Entered: 08/28/2017)
192 ORDER denying National Law Center on Homelessness and Poverty's 145 Motion for Leave to File Amicus Brief signed by Judge Ricardo S Martinez.(RS) (Entered: 08/28/2017)
193 MINUTE ORDER directing WSDOT to re-file the video contained in Exhibit 1 of Mr Huot's Declaration by Judge Ricardo S Martinez. (RS) (Entered: 08/29/2017)
194 PRAECIPE re 189 Declaration,,, of Breanne Schuster in Support of Plaintiffs Reply in Support of Motion for Preliminary Injunction by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis (Attachments: # 1 Exhibit 10)(Williams, Todd) (Entered: 08/29/2017)
195 NOTICE of Filing Flash Drive in Paper or Physical Form with the Clerk's Office by Defendants Roger Millar, Washington State Department of Transportation. inre 163 Declaration, 193 Minute Order, 170 Notice of Filing Paper or Physical Materials. (Young, Alicia) (Entered: 08/30/2017)
196 MOTION for Leave to File Supplemental Materials, filed by Defendants City Of Seattle, Roger Millar, Washington State Department of Transportation. (Attachments: # 1 Proposed Order Proposed Order, # 2 Exhibit Potter Declaration, # 3 Exhibit Rasaie Declaration, # 4 Exhibit Flevaris Declaration) Noting Date 9/7/2017, (Young, Alicia) (Entered: 09/05/2017)
197 ORDER granting Defendants' 196 Motion for Leave to File Supplemental Materials in Opposition to Plaintiffs' Motion for Preliminary Injunction. Signed by Judge Ricardo S Martinez. (PM) (Entered: 09/06/2017)
198 Supplemental DECLARATION of Amir Rasaie filed by Defendant Washington State Department of Transportation re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Young, Alicia) (Entered: 09/06/2017)
199 Second DECLARATION of Taki Flevaris filed by Defendant City Of Seattle re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Flevaris, Taki) (Entered: 09/06/2017)
200 Second DECLARATION of Chris Potter filed by Defendant City Of Seattle re 93 MOTION for Preliminary Injunction (Flevaris, Taki) (Entered: 09/06/2017)

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201 MINUTE ENTRY for proceedings held before Judge Ricardo S. Martinez- Dep Clerk: Lowell Williams; Pla Counsel: Todd Williams, Breanne Schuster, Eric Lindberg; Def Counsel: Mattnew Segal, Taki Flevaris, Gary Smith, Alicia Young, Matthew Huot; CR: Debbie Zurn; Time of Hearing: 11:30 AM; Motion Hearing held on 9/7/2017 re 2 MOTION to Certify Class filed by The Episcopal Diocese of Olympia, Brandie Osborne, Real Change, Lisa Hooper, 93 MOTION for Preliminary Injunction filed by Trinity Parish of Seattle, The Episcopal Diocese of Olympia, Reavy Washington, Brandie Osborne, Real Change, Lisa Hooper, Kayla Willis. Court hears argument from counsel and takes matter under advisement. (LW) (Entered: 09/07/2017)
202 Supplemental DECLARATION of Breanne Schuster filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 93 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Williams, Todd) (Entered: 09/11/2017)
203 Plaintiffs Supplemental BRIEF re 93 MOTION for Preliminary Injunction Regarding Eleventh Amendment Immunity by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis (Williams, Todd) (Entered: 09/12/2017)
204 MOTION for Leave to File Supplemental Authorities and Citations, filed by Defendant City Of Seattle. (Attachments: # 1 Supplement) Noting Date 9/7/2017, (Flevaris, Taki) (Entered: 09/13/2017)
205 PROPOSED ORDER (Unsigned) re 204 MOTION for Leave to File Supplemental Authorities and Citations (Flevaris, Taki) (Entered: 09/13/2017)
206 ORDER denying Defendant City of Seattle's 204 Motion for Leave to File Supplemental Authorities and Citations, signed by Judge Ricardo S Martinez.(SWT) (Entered: 09/14/2017)
207 RESPONSIVE BRIEF of Defendants re 203 Brief, 93 MOTION for Preliminary Injunction by Defendants City Of Seattle, Roger Millar, Washington State Department of Transportation. (Young, Alicia) (Entered: 09/15/2017)
208 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 9/7/2017 before Judge Ricardo S. Martinez.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction.

After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.

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Release of Transcript Restriction set for 12/18/2017, (DZ) (Entered: 09/18/2017)
209 ORDER denying Plaintiffs' 2 Motion for Class Certification; denying Plaintiffs' 93 Motion for Preliminary Injunction signed by Judge Ricardo S Martinez. (PM) (Entered: 10/04/2017)
212 NOTICE FROM NINTH CIRCUIT COURT OF APPEALS: (17-80214) in re receipt of Petition for Permission to Appeal. (RE) (Entered: 10/20/2017)
210 MOTION to Stay Proceedings Pending Appeal, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis. (Attachments: # 1 Proposed Order) Noting Date 11/3/2017, (Williams, Todd) (Entered: 10/19/2017)
211 DECLARATION of Todd T. Williams filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 210 MOTION to Stay Proceedings Pending Appeal (Attachments: # 1 Exhibit A)(Williams, Todd) (Entered: 10/19/2017)
213 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Andrew Thomas Myerberg for Defendant City of Seattle. (Smith, Gary) (Entered: 10/24/2017)
214 Stipulated MOTION for Ten-Day Extension of Time to Respond To Plaintiffs' Motion to Stay Proceedings Pending Appeal, filed by Defendant City of Seattle. (Attachments: # 1 Proposed Order) Noting Date 10/27/2017, (Flevaris, Taki) (Entered: 10/27/2017)
215 NOTICE of Change of Address/Change of Name of Attorney Alicia O Young. Filed by Defendants Roger Millar, Washington State Department of Transportation. (Young, Alicia) Modified Address on 10/30/2017 (DS). (Entered: 10/30/2017)
216 ORDER granting 214 Stipulated Motion for Ten-Day Extension of Time to Respond to Plaintiffs' Motion to Stay. Defendants' responses to Plaintiffs' Motion to Stay due 11/9/2017; Reply due 11/17/2017. Plaintiffs' 210 MOTION to Stay Proceedings Pending Appeal is re-noted for 11/17/2017. Signed by Judge Ricardo S Martinez. (PM) (Entered: 10/30/2017)
217 RESPONSE, by Defendants City of Seattle, Roger Millar, Washington State Department of Transportation, to 210 MOTION to Stay Proceedings Pending Appeal. (Young, Alicia) (Entered: 11/09/2017)
218 DECLARATION of Jennifer D. Williams filed by Defendants City of Seattle, Roger Millar, Washington State Department of Transportation re 210 MOTION to

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Stay Proceedings Pending Appeal (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5)(Young, Alicia) (Entered: 11/09/2017)
219 REPLY, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis, TO RESPONSE to 210 MOTION to Stay Proceedings Pending Appeal (Williams, Todd) (Entered: 11/17/2017)
220 DECLARATION of Todd T. Williams filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis re 210 MOTION to Stay Proceedings Pending Appeal (Attachments: # 1 Exhibit A)(Williams, Todd) (Entered: 11/17/2017)
221 ORDER granting Plaintiffs' 210 Motion to Stay Proceedings Pending Appeal. Plaintiffs must promptly notify the Court if their Rule 23(f) petition is granted or denied. Signed by Judge Ricardo S Martinez. (PM) (Entered: 12/20/2017)
222 NOTICE OF APPEAL to Ninth Circuit (18-35053) by Plaintiff Kayla Willis et al. Petition for permission to appeal granted. Docketed for clerical purposes. (CDA) (Entered: 01/24/2018)
223 TIME SCHEDULE ORDER (18-35053) as to 222 Notice of Appeal filed by Kayla Willis (CDA) (Entered: 01/24/2018)
Appeal Fees received: fee in the amount of $ 505 (receipt # SEA088847) re 222 Notice of Appeal filed by Kayla Willis et al (CDA) (Entered: 01/24/2018)
224 OPINION FROM USCA (18-35053) (NOT THE MANDATE) as to 222 Notice of Appeal filed by Kayla Willis. AFFIRMED.. (GT) (Entered: 12/02/2019)
225 MANDATE OF USCA (18-35053) as to 222 Notice of Appeal filed by Kayla Willis, 224 Memorandum/Opinion from USCA. The Judgment from USCA takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. AFFIRMED. (CDA) (Entered: 12/23/2019)
226 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Alicia O Young for Defendants Roger Millar, Washington State Department of Transportation. (Young, Alicia) (Entered: 02/04/2020)
227 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Gregory Colin Narver for Defendant City of Seattle. (Smith, Gary) (Entered: 02/04/2020)
228 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Carlton Wm Seu for Defendant City of Seattle. (Smith, Gary) (Entered: 02/04/2020)
229 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Emily Chiang for Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia,

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Trinity Parish of Seattle, Reavy Washington, Kayla Willis. (Schuster, Breanne) (Entered: 02/05/2020)
230 MOTION for Summary Judgment Conversion of Preliminary Injunction Ruling into Final Judgment on the Merits , filed by Defendant City of Seattle. Noting Date 3/27/2020, (Flevaris, Taki) (Entered: 03/05/2020)
231 DECLARATION of Taki V. Flevaris filed by Defendant City of Seattle re 230 MOTION for Summary Judgment Conversion (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Flevaris, Taki) (Entered: 03/05/2020)
232 PROPOSED ORDER (Unsigned) re 230 MOTION for Summary Judgment Conversion (Flevaris, Taki) (Entered: 03/05/2020)
233 NOTICE of Appearance by attorney Victoria Ainsworth on behalf of Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis. (Ainsworth, Victoria) (Entered: 03/12/2020)
234 MOTION to Dismiss Plaintiffs' Claims and the City of Seattle's Counterclaim, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis. (Attachments: # 1 Proposed Order) Noting Date 4/3/2020, (Williams, Todd) (Entered: 03/12/2020)
235 RESPONSE, by Defendant Washington State Department of Transportation, to 234 MOTION to Dismiss Plaintiffs' Claims and the City of Seattle's Counterclaim, 230 MOTION for Summary Judgment Conversion. (Attachments: # 1 Proposed Order)(Huot, Matthew) (Entered: 03/16/2020)
236 RESPONSE, by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis, to 230 MOTION for Summary Judgment Conversion. (Attachments: # 1 Proposed Order)(Williams, Todd) (Entered: 03/23/2020)
237 REPLY, filed by Defendants Roger Millar, Washington State Department of Transportation, Amicus National Law Center on Homelessness and Poverty, TO RESPONSE to 230 MOTION for Conversion of Preliminary Injunction Ruling into Final Judgment on the Merits (Huot, Matthew) (Entered: 03/26/2020)
238 REPLY, filed by Counter Claimant City of Seattle, Defendant City of Seattle, TO RESPONSE to 230 MOTION for Conversion of Preliminary Injunction Ruling into Final Judgment on the Merits (Flevaris, Taki) (Entered: 03/27/2020)
239 Second DECLARATION of Taki V. Flevaris filed by Counter Claimant City of Seattle, Defendant City of Seattle re 230 MOTION for Conversion of Preliminary Injunction Ruling into Final Judgment on the Merits (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6)(Flevaris, Taki) (Entered: 03/27/2020)

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240 RESPONSE, by Counter Claimant City of Seattle, Defendant City of Seattle, to 234 MOTION to Dismiss Plaintiffs' Claims and the City of Seattle's Counterclaim and REPLY re: 230 motion re conversion to final judgment (Flevaris, Taki) Modified on 3/30/2020 to add link and language re: motion re conversion(PM). (Entered: 03/27/2020)
241 REPLY, filed by Plaintiffs Lisa Hooper, Brandie Osborne, Real Change, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, Reavy Washington, Kayla Willis, TO RESPONSE to 234 MOTION to Dismiss Plaintiffs' Claims and the City of Seattle's Counterclaim (Williams, Todd) (Entered: 04/03/2020)
242 ORDER denying Defendant City of Seattle's 230 Motion for Conversion of Preliminary Injunction Ruling into Final Judgment on the Merits; granting Plaintiffs' 234 Motion to Dismiss Plaintiffs' Claims and the City of Seattle's Counterclaim. Plaintiffs' claims and the City of Seattle's counterclaim are DISMISSED without prejudice. This case is CLOSED. Signed by Judge Ricardo S. Martinez. (PM) (Entered: 06/11/2020)

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

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11 LISA HOOPER, et al.,

Case No. C17-77RSM

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Plaintiffs,

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v.

14 CITY OF SEATTLE, et al., 15
Defendants. 16

17

ORDER DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I. INTRODUCTION

18

This matter is before the Court on Plaintiffs’ Motion for Class Certification (Dkt. #2) and

19 Plaintiffs’ Motion for Preliminary Injunction (Dkt. #93). Oral argument on this matter was heard

20 on September 7, 2017. Having considered the parties’ oral and written arguments, along with
21 the remainder of the record, the Court, for the reasons stated herein, DENIES Plaintiffs’ motions.
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II. BACKGROUND

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Plaintiffs’ suit stems from Defendant City of Seattle’s (the “City”), Defendant

25 Washington State Department of Transportation’s (“WSDOT”), and Defendant Roger Millar’s
26 (collectively “Defendants”) enforcement of rules and guidelines that authorize the removal of
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ORDER - 1

1 unauthorized encampments from City-owned and Washington State-owned property.1 See Dkt. 2 #87 ¶¶ 3, 5, 14–31, 90–96. In 2008, the City enacted rules, the Multi-Departmental

3 Administrative Rules 08-01 (“MDAR 08-01”), to establish, in part, standard procedures for the

4 removal of unauthorized encampments, camping equipment, and personal property left on City5
owned property. See id. ¶ 97; also Dkt. #33, Ex. A at 8. That same year, WSDOT also adopted 6 7 guidelines, entitled WSDOT’s Guidelines to Address Illegal Encampments within State Right of
8 Way (“WSDOT Guidelines”), establishing similar removal procedures for unauthorized

9 encampments. See Dkts. #87 ¶ 97 and #33, Ex. B.

10

When this suit was filed on January 19, 2017, the MDAR 08-01 were still in effect. See

11

Dkt. #33, Ex. A. At the time, Plaintiffs’ putative class action alleged the MDAR 08-01 and 12

13 WSDOT Guidelines were unconstitutional on their face, and as applied, because exceptions and

14 exclusions within both policies rendered their notice and storage provisions meaningless. Dkt. #1

15 ¶¶ 65–90. Specifically, the named individual plaintiffs alleged they were victims of Defendants’
16 ongoing policy and practice of seizing and destroying the property of unhoused people living 17
outside without adequate notice, an opportunity to be heard, or a meaningful way for them to 18
19 reclaim any of their undestroyed property. Id. ¶¶ 1, 5. Plaintiffs alleged Defendants’ policies,

20 and actual encampment removal practices, violated Plaintiffs’ federal and state constitutional

21 rights. Id. ¶¶ 91–137, 158–65. 22
On January 31, 2017, the City proposed two new rules to modify the MDAR 08-01. Dkt. 23 24 #87 ¶ 123; also Dkt. #33, Exs. C and D. The Finance and Administrative Services Encampment
25 Rule 17-01 (“Proposed FAS 17-01”) proposed a uniform set of rules and procedures for removing

26 encampments on City property, while the Multi-Departmental Administrative Rules (“Proposed 27

28
1 Defendant Roger Millar is WSDOT’s Secretary of Transportation; Plaintiffs bring suit against Mr. Millar in his official capacity. Dkt. #87 ¶ 74. WSDOT and Mr. Millar are referred to, collectively, as “State Defendants.”

ORDER - 2

1 MDAR 17-01”) proposed a uniform set of rules and procedures for addressing encampments on 2 City property. See id.

3

On February 6, 2017, Plaintiffs moved for a temporary restraining order (“TRO”).

4 Dkt. #23. A TRO hearing was scheduled on February 13, 2017; Plaintiffs’ TRO motion was 5
subsequently denied because Plaintiffs did not demonstrate a likelihood of success on the merits 6 7 or irreparable harm. Dkt. #65 at 14–17. Following this denial, Plaintiffs amended their initial
8 Complaint. See Dkt. #73. Subsequently, after a public comment period and revisions, the City’s

9 MDAR 08-01 was superseded by the final versions of the Proposed FAS 17-01 and the Proposed
10 MDAR 17-01. See Dkt. #94, Ex. C at 2 and Ex. D at 2. On April 3, 2017, the FAS 17-01 and 11
MDAR 17-01 (collectively the “Updated Encampment Rules”) went into effect. See id. 12 13 Plaintiffs filed a Second Amended Complaint on May 23, 2017. Dkt. #87.

14

Plaintiffs’ Second Amended Complaint raises facial and as-applied challenges to the

15 City’s Updated Encampment Rules and the WSDOT Guidelines.2 Id. ¶¶ 102, 108–109, 111–
16 115, 124–138. Plaintiffs claim Updated Encampment Rule exceptions governing “obstructions” 17
and “immediate hazards” allow the City to remove any unauthorized encampment without notice. 18
19 Id. ¶¶ 126–130. Plaintiffs also claim the City’s creation of “Emphasis Areas” force unhoused

20 persons to live in dangerous areas or leave them subject to immediate removal. Id. ¶¶ 131–134.
21 Plaintiffs also assert the Updated Encampment Rules do not contain a prior MDAR 08-01 22
requirement that allowed unhoused persons to return to an encampment location to pack up their 23 24 belongings, and thus fail to provide an opportunity for unhoused persons to contest the seizure 25 and destruction of their property. Id. ¶ 135. Finally, Plaintiffs contend the Updated Encampment

26

27
2 Plaintiffs’ Second Amended Complaint erroneously asserts the MDAR 08-01 is still in effect and constitutes the
28 City’s “only known official published policies pertaining directly to sweeps.” See Dkt. #87 ¶ 98. In reality, the
MDAR 08-01 was superseded by the MDAR 17-01. See Dkt. #94, Ex. D at 2. With this in mind, the Court will not set forth Plaintiffs’ facial challenges to the MDAR 08-01.

ORDER - 3

1 Rules do not require training for City personnel, and they claim the enforcement of the rules 2 remains discretionary. See id. ¶¶ 136–37. Plaintiffs likewise claim that exceptions and

3 exclusions to the WSDOT Guidelines “exempt many, if not most, people living outside from

4 even the most minimal of notice protections,” and they claim the WSDOT Guidelines lack

5 provisions to ensure pre- and post-deprivation due process. Id. ¶¶ 102, 108, 116.
6

7

Aside from their facial challenges, Plaintiffs also claim Defendants’ actual cleanup

8 practices are unconstitutional. Dkt. #87 ¶¶ 139–188. Plaintiffs’ Second Amended Complaint

9 identifies eight practices that allegedly result in the inadequate, inconsistent, inaccurate,
10 inaccessible, and/or misleading provision of notice. Id. ¶¶ 144–157. These practices include 11
Defendants’ alleged provision of notice less than 72-hours before a cleanup, posting notice in 12 13 inconspicuous areas, notices that fail to specify where a cleanup will occur, notices that do not

14 reflect the date a cleanup actually occurs, and notices that are inaccessible to unhoused persons

15 who cannot read written English.

16

Regarding the seizure of property, Plaintiffs’ Second Amended Complaint identifies six

17

18 practices they claim are unconstitutional. See id. ¶¶ 162–173. These practices include

19 Defendants alleged use of heavy equipment machinery to summarily seize and destroy the

20 property of unhoused persons, Defendants’ physical seizure and destruction of property on site,

21 the off-site disposal of items unilaterally determined to be garbage or of insufficient value, 22
Defendants’ practice of piling up all items at an encampment site (including garbage), 23 24 Defendants’ seizure and destruction of property without an owner’s permission (notwithstanding
25 that the owner is present), and the seizure and destruction of unabandoned property left

26 momentarily unattended. Id.

27

Plaintiffs also identify several storage and storage-retrieval practices they claim are

28 unconstitutional. See Dkt. #187 ¶¶ 174, 178–88. These practices include: (1) Defendants’

ORDER - 4

1 alleged “official sanctioned practice” of ignoring policies that govern whether an item should be 2 stored; (2) Defendants ignore policies that require them to notify unhoused persons of whether

3 their property will be stored, where it will be stored, for how long it will be stored, and how it

4 may be retrieved; (3) when Defendants provide storage information, they only provide a phone 5
number, thus leaving people without phone access or money for phone access without recourse; 6 7 (4) Defendants do not inventory or keep track of destroyed or confiscated items, thus preventing
8 unhoused persons from knowing whether their property was stored; and (5) Defendants impose

9 additional barriers—including the location of Defendants’ storage facilities and the facilities’

10 limited operating hours—that burden an unhoused person’s ability to retrieve their personal

11 property. Id.
12

13

The individual named Plaintiffs, Lisa Hooper, Brandi Osborne, Kayla Willis, and Reavy

14 Washington (collectively the “Individual Plaintiffs”), live outside, on public property, in the City

15 of Seattle. Dkt. #87 ¶¶ 34, 41, 50, 55. They allege they are victims of Defendants’ ongoing
16 policy and practice of seizing and destroying the property of unhoused people living outside 17
without adequate and effective notice, an opportunity to be heard, or a meaningful way for them 18
19 to reclaim any of their undestroyed property. Id. ¶¶ 34–59. Plaintiffs further allege they have

20 had critical personal belongings taken and destroyed during cleanups conducted by the City and

21 WSDOT, and were not given an opportunity to contest the confiscation and destruction of their 22
property. Id. ¶¶ 35–36, 42–43, 46–47, 51, 56–57. They further assert they were not given notice 23 24 or reason to believe their property would be stored and could later be retrieved. See id. ¶¶ 35–59.
25 Three organizational plaintiffs, the Diocese of Olympia, Trinity Parish of Seattle, and Real

26 Change, also join the Individual Plaintiffs’ suit. Id. ¶¶ 61–71.

27

Through this suit, Plaintiffs seek a declaratory judgment that Defendants’ alleged policy

28 and practice of confiscating and/or destroying the personal property of unhoused persons without

ORDER - 5

1 a warrant, probable cause, and the requisite due process safeguards is unlawful under federal and 2 state law. Id. at 51. Plaintiffs also seek injunctive relief. Id.

3

III. LEGAL STANDARDS

4 A. Class Certification. 5
Federal Rule of Civil Procedure 23 governs class certification. Wal-Mart Stores, Inc. v. 6 7 Dukes, 564 U.S. 338, 345 (2011). Under Rule 23(a), the party seeking certification must

8 demonstrate “(1) the class is so numerous that joinder of all members is impracticable; (2) there

9 are questions of law or fact common to the class; (3) the claims or defenses of the representative
10 parties are typical of the claims or defenses of the class; and (4) the representative parties will 11
fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a). After satisfying 12 13 the Rule 23(a) requirements, the proposed class must also satisfy at least one of the three

14 requirements listed in Rule 23(b). Dukes, 564 U.S. at 345; also Leyva v. Medline Indus. Inc.,

15 716 F.3d 510, 512 (9th Cir. 2013). In this case, Plaintiffs seek to certify a class under Rule
16 23(b)(2). Dkt. #2 at 7–8. Rule 23(b)(2) requires Plaintiffs to demonstrate “the party opposing 17
the class has acted or refused to act on grounds that apply generally to the class, so that final 18
19 injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

20 whole.” FED. R. CIV. P. 23(b)(2). “Rule 23(b)(2) applies only when a single injunction or

21 declaratory judgment would provide relief to each member of the class.” Dukes, 564 U.S. at 360. 22
Notably, Rule 23 “does not set forth a mere pleading standard.” Id. at 350. Instead, the 23 24 party seeking certification must “affirmatively demonstrate his compliance with the Rule—that
25 is, he must be prepared to prove that there are in fact sufficiently numerous parties, common

26 questions of law or fact, etc.” Id. “Certification is proper only if the trial court is satisfied, after
27 a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Id. at 350–51 28
(internal quotation omitted). “[I]t may be necessary for the court to probe behind the pleadings

ORDER - 6

1 before coming to rest on the certification question.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 2 147, 160 (1982). This is because “the class determination generally involves considerations that

3 are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id.
4 (internal quotation omitted). Nonetheless, the ultimate decision regarding class certification 5
“involve[s] a significant element of discretion.” Yokoyama v. Midland Nat'l Life Ins. Co., 594 6 7 F.3d 1087, 1090 (9th Cir. 2010).
8 B. Preliminary Injunction.

9

To obtain a preliminary injunction, Plaintiffs must establish the following: (1) their

10 likelihood to succeed on the merits; (2) that it is likely they will suffer irreparable harm in the 11
absence of preliminary relief; (3) that the balance of equities tips in their favor; and (4) that an 12
13 injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

14 Where a moving party’s assertions are “substantially controverted by counter-affidavits,” relief

15 should not be granted unless that party makes a “further showing” that it will “probably succeed

16 on the merits.” K-2 Ski Co. v. Head Ski Co., 467 F.2d 1087, 1089 (9th Cir. 1972).

17

18

IV. DISCUSSION

19 A. Class Certification Motion.

20

The Individual Plaintiffs seek certification of a class comprised of all unhoused3 people

21 who live outside4 within the City of Seattle and who keep their personal possessions on public 22
property. Dkt. #2 at 1, 8. They assert certification is proper because they satisfy the requirements 23 24 of Rule 23. Defendants do not dispute that Plaintiffs have established Rule 23(a)(1)’s numerosity
25 requirement, but disagree that Plaintiffs demonstrate the remaining requirements needed for class

26 certification. The Court addresses each requirement in turn. 27

28 3 Plaintiffs use the term “unhoused” to refer to individuals who lack fixed, stable, or adequate shelter or housing.
4 Plaintiffs indicate the phrase “people who live outside” includes Seattle residents who, for at least part of the year, sleep and keep their belongings outdoors.

ORDER - 7

1

a. Rule 23(a).

2

i. Plaintiffs Establish Numerosity.

3

Under Rule 23(a)(1), a class action may only be maintained if “the class is so numerous

4 that joinder of all members is impracticable.” Courts consider several factors to determine if 5
joinder of class members is impracticable, and plaintiffs need not demonstrate that joinder is 6 7 impossible. 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL

8 PRACTICE & PROCEDURE § 1762 (3d ed. 2017). The size of the proposed class, the location of

9 putative class members, the nature of the action and relief sought, and the class members’
10 reluctance, or inability, to sue on their own may all contribute to a court’s Rule 23(a)(1) analysis. 11
Id.; also Gray v. Golden Gate Nat. Recreational Area, 279 F.R.D. 501, 508 (N.D. Cal. 2011); 12 13 Jordan v. L.A. Cnty., 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S.

14 810 (1982).

15

Plaintiffs satisfy numerosity for three reasons. First, Plaintiffs have submitted a report

16 indicating there are at least 2,942 people in Seattle without fixed, regular, or adequate housing, 17 18 and at least 2,000 of these people live outside. See Dkt. #202, Ex. 1 at 3. Second, considering

19 that unhoused persons typically lack the financial means to pursue individual litigation, and

20 because this population may be transient, the Court agrees with Plaintiffs that individual joinder

21 is unlikely. See Dkt. #2 at 9–10. Finally, the Court also agrees that because the proposed class 22
may contain unknown members who may also be subject to Defendants’ alleged policies and 23 24 practices, joinder is impracticable. In summary, given the potential size and demographics of the
25 proposed class, the Court agrees that joinder is impracticable, if not impossible. Plaintiffs thus

26 satisfy Rule 23(a)(1)’s numerosity requirement.

27

28

ORDER - 8

1

ii. Plaintiffs Fail to Establish Commonality.

2

Commonality can be established if Plaintiffs demonstrate they and the proposed class

3 members “‘have suffered the same injury.’” Dukes, 564 U.S. at 349–50 (quoting Falcon, 457

4 U.S. at 157). This can be done if Plaintiffs raise a “common contention” between them and the 5
proposed class members of “such a nature that it is capable of classwide resolution.” Id. at 350. 6 7 A contention is capable of classwide resolution if determining its truth or falsity resolves “an

8 issue that is central to the validity of each one of the claims in one stroke.” Id. Consequently,

9 “what matters to class certification . . . is not the raising of common questions—even in droves—
10 but, rather the capacity of a classwide proceeding to generate common answers apt to drive the 11
resolution of the litigation.” Id. Commonality is thus usually satisfied where plaintiffs allege 12 13 that the same conduct or practice by the same defendant underlies their claims. 1 JOSEPH M.

14 MCLAUGHLIN, MCLAUGHLIN ON CLASS ACTIONS: LAW AND PRACTICE § 4:7, at 623 (13th ed.

15 2016). This requirement is construed permissively, and all questions of fact and law need not be
16 common to satisfy Rule 23(a)(2). See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 17
1998). “In the civil rights context, commonality is satisfied ‘where the lawsuit challenges a 18
19 system-wide practice or policy that affects all of the putative class members.’” Parsons v. Ryan,

20 289 F.R.D. 513, 516 (D. Ariz. 2013) (quoting Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir.

21 2001)). However, Plaintiffs must present “significant proof” of the alleged system-wide practice 22
or policy. Id. at 521–22 (“[T]he crucial question is whether there is sufficient evidence of 23 24 systemic issues in the provision of health care or whether Plaintiffs’ allegations are simply many
25 examples of isolated instances of deliberate indifference.”).

26

Plaintiffs do not meet the evidentiary burden necessary to demonstrate commonality. As

27 explained by the Ninth Circuit in Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014), in 28
analyzing commonality, it is critical for district courts to identify the policies and practices

ORDER - 9

1 plaintiffs allege they and the proposed class members are exposed to. By identifying these 2 policies and practices, the Court can then determine if Plaintiffs demonstrate that the proposed

3 class members are all exposed to the challenged policies, which in turn allows the Court to assess

4 whether determining common questions raised by these policies will “resolve an issue that is 5
central to the validity of each one of the [individual class members’] claims in one stroke.” 6 7 Dukes, 564 U.S. at 350.

8

Here, although Plaintiffs’ Second Amended Complaint identifies several notice, storage,

9 and storage-retrieval practices Defendants allegedly engage in, Plaintiffs’ class certification
10 motion does not try to demonstrate the existence of the practices alleged. See Dkts. #2 at 10–11 11
and #87 ¶¶ 139–188. Instead, in their Reply, Plaintiffs refer to declarations, videos, and 12 13 photographs they contend support the existence of Defendants’ alleged unlawful practices. See

14 Dkt. #159 at 2, 4. However, Plaintiffs’ conclusory statement is not supported by the evidence

15 cited. See Dkts. #94, Exs. J–R and #121. The declarations, photographs, and videos cited do
16 not provide enough context for the Court to determine at which point in the City’s multi-stage 17
cleanup process the declarants observed the alleged destruction of property. Notably, at least 18
19 one source of the videos and photographs admits not knowing this critical information, and

20 Plaintiffs’ own counsel admitted at oral argument he did not know at which stage in the cleanup

21 process the videos and photographic evidence were taken. See Dkts. #180, Ex. E at 209–211 22
and #208 at 13. This is unlike Parsons, where the plaintiffs submitted significant proof of the 23 24 existence of the systemic policies and practices alleged. 754 F.3d at 681–84. Here, Plaintiffs
25 fail to do the same.

26

Plaintiffs’ raising of five questions they claim are common to the entire proposed class

27 also fails to satisfy commonality. See Dkt. #2 at 11. Plaintiffs contend they satisfy commonality 28

ORDER - 10

1 because the proposed class members share common questions of fact and law. Plaintiffs list the 2 following as representative questions shared by the proposed class:

3

1. Whether Defendants have a practice and policy of seizing and destroying the

4

personal property of people living outside without a warrant, probable cause, adequate notice, an opportunity to have a meaningful pre- or post-deprivation

5

hearing, or an opportunity to retrieve vital personal property before its seizure

or destruction?;

6

7

2. Whether Defendants’ policy and practice violates Plaintiffs’ constitutional rights against unreasonable search and seizures under the U.S. Constitution?;

8

3. Whether Defendants’ custom, policy, or practice violates class members’ right

9

to privacy under Article I, Section 7 of the Washington State Constitution?;

10

4. Whether Defendants’ custom, policy, or practice violates class members’

11

constitutional rights to due process under the U.S. Constitution?; and

12

5. Whether Defendants’ custom, policy, or practice violates class members’

13

constitutional rights to due process under Article I, Section 3 of the Washington State Constitution?

14

Dkt. #2 at 10–11. These questions not only fail to satisfy commonality because Plaintiffs fail to 15

16 present sufficient evidence of the existence of the practices alleged—which prevents the Court

17 from determining whether the questions posed will resolve issues “central to the validity of each

18 one of the claims in one stroke”—commonality is also not established because, at their core, all
19 five questions merely ask whether Defendants’ conduct violates the law. However, to
20 21 demonstrate commonality plaintiffs must do more than merely ask whether they and the
22 proposed class have suffered violations of the same provisions of law. See Dukes, 564 U.S. at

23 349 (finding that recitation of questions, including the question “Is that an unlawful employment

24 practice?” is not enough to obtain class certification); also M.D. ex rel. Stukenberg v. Perry, 675 25
F.3d 832, 844 (5th Cir. 2012) (“mere allegations of systemic violations of the law . . . will not 26 27 automatically satisfy Rule 23(a)’s commonality requirement”) (quotation marks and citations
28 omitted).

ORDER - 11

1

The Court’s analysis is not changed by Plaintiffs’ citation to Lyall v. City of Denver, 319

2 F.R.D. 558 (D. Colo. 2017), Lehr v. City of Sacramento, 259 F.R.D. 479 (E.D. Cal. 2009),

3 Kincaid v. City of Fresno, 244 F.R.D. 497 (E.D. Cal. 2007), Justin v. City of Los Angeles, No.

4 CV0012352LGBAIJX, 2000 WL 1808426 (C.D. Cal. Dec. 5, 2000), Pottinger v. City of Miami, 5
720 F. Supp. 955, 960 (S.D. Fla. 1989), or Joyce v. City and County of San Francisco, No. C6 7 93-4149 DLJ, 1994 WL 443464 (N.D. Cal. Aug. 4, 1994). See Dkt. #159 at 3. Five of these

8 cases were decided prior to Wal-Mart v. Dukes, and do not undertake the commonality analysis

9 set forth by the Supreme Court in Dukes. Additionally, the only case decided post-Dukes is not

10 analogous because the common question set forth by plaintiffs in that case was different from

11 the questions posed by Plaintiffs here. See Lyall, 319 F.R.D at 562–64.
12

13

In summary, because Plaintiffs fail to provide significant proof of the existence of the

14 practices alleged, and because they fail to raise common questions of fact or law, they do not

15 satisfy Rule 23(a)(2)’s commonality requirement.

16

iii. Plaintiffs Fail to Establish Typicality.

17

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical 18

19 of the claims of the class.” FED. R. CIV. P. 23(a)(3). Under this requirement, the Court must

20 “focus on whether the named representatives’ claims have the same essential characteristics as

21 the claims of the class at large.” 1 JOSEPH M. MCLAUGHLIN, MCLAUGHLIN ON CLASS ACTIONS: 22
LAW AND PRACTICE § 4:16 (13th ed. 2016). To make this determination, the Court must compare 23 24 the Plaintiffs’ claims or defenses, with the claims or defenses of the class. Id.; see Parsons, 754
25 F.3d at 685 (“The test of typicality is ‘whether other members have the same or similar injury,

26 whether the action is based on conduct which is not unique to the named plaintiffs, and whether

27 other class members have been injured by the same course of conduct.’”) (quoting Hanon v. 28
Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)).

ORDER - 12

1

Notably, the “commonality and typicality requirements of Rule 23(a) tend to merge,” as

2 “both serve as guideposts for determining whether under the particular circumstances

3 maintenance of a class action is economical and whether the named plaintiff’s claim and the class

4 claims are so interrelated that the interests of the class members will be fairly and adequately 5
protected in their absence.” Falcon, 457 U.S. at 157 n.13. The Ninth Circuit has also explained 6 7 that in cases challenging policies or practices, “‘the underlying issue presented with respect to
8 typicality is similar to that presented with respect to commonality,’” and although the injuries of

9 the class representatives need not be identical to those of the proposed class members, their

10 injuries must result from the same, injurious course of conduct. Parsons, 754 F.3d at 685 11
(quoting Armstrong, 275 F.3d at 868–69). 12

13

Here, Plaintiffs’ failure to establish commonality affects their ability to demonstrate they

14 satisfy Rule 23(a)(3)’s typicality requirement. Plaintiffs contend their claims are typical of the

15 proposed class’s claims because they, like the proposed class, live in danger that their property
16 will be seized and destroyed by Defendants, they seek the same relief as the proposed class 17
members, the prosecution of individual actions against Defendants creates the risk of inconsistent 18
19 adjudications (resulting in variable standards of conduct for Defendants), and they and the

20 proposed class members will continue to suffer from Defendants’ unconstitutional policies and

21 practices until class-wide relief is granted. Dkt. #2 at 12–13. Plaintiffs’ arguments fail to

22 convince the Court.
23

24

Although Plaintiffs claim they and the proposed class are at risk of having their property

25 seized and destroyed, Plaintiffs have failed to demonstrate their risk of injury and the proposed

26 class’s risk of injury derives from the same, injurious course of conduct. And while Plaintiffs
27 claim they, like the proposed class, have not received constitutionally adequate notice, see Dkt. 28
#87 ¶¶ 34–59, Defendants have provided evidence that all four Plaintiffs have explicitly and

ORDER - 13

1 implicitly acknowledged their notice injury differs from that of the proposed class; Defendants 2 cite to deposition testimony where Plaintiffs implicitly acknowledge the notice provided by

3 Defendants was sufficient. Dkt. #130 at 8; also, e.g., Dkts. #54 ¶ 7, #122 ¶¶ 7–8, 13, #131, Ex.

4 B at 4–8, 10, Ex. C at 5–6, Ex. D at 4–5, and Ex. E at 5–6, 8–10, 13. Because Plaintiffs have 5
acknowledged receipt of constitutionally adequate notice, and because Plaintiffs only reference 6 7 isolated instances where notice was allegedly inadequate and their injuries stemmed from their

8 failure to act upon the notice given, Defendants argue that Plaintiffs cannot claim their alleged

9 injuries are typical of those suffered by the proposed class. Dkt. #130 at 7–10. Additionally,
10 Defendants argue that three of the proposed class representatives’ storage-related injuries are not 11
typical of those of the class they seek to represent because all three have testified that they either 12 13 have never or would never accept Defendants’ offers to store their property. Id. at 11–12 (citing

14 Dkt. #131, Ex. C at 12, Ex. D at 16–18, and Ex. E at 7, 11–12). Consequently, Defendants argue

15 Ms. Hooper, Ms. Osborne, and Ms. Willis do not, unlike the class they seek to represent, have a
16 stake in this aspect of the litigation. Id. The Court agrees that the named Plaintiffs’ deposition 17
testimony exposes them to unique defenses that render their claims atypical of the claims set 18
19 forth by the proposed class.

20

In summary, because Plaintiffs fail to establish the existence of a policy or practice to

21 which they and the proposed class are exposed, Plaintiffs fail to establish that the risk of injury 22
they allege is the same, or similar, to any risk of injury which the proposed class members may 23 24 be exposed to. The Individual Plaintiffs’ deposition testimony further underscores this lack of
25 typicality. Plaintiffs thus fail to satisfy Rule 23(a)(3)’s typicality requirement.

26

iv. Plaintiffs Fail to Establish Adequacy of Representation.

27

A class action will only be certified if plaintiffs can demonstrate “the representative

28 parties will fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4).

ORDER - 14

1 Representation is adequate where: (1) the class representative and their counsel do not have 2 conflicts of interest with other class members; and (2) the class representatives and their counsel

3 will “prosecute the action vigorously on behalf of the class.” Gray, 279 F.R.D. at 520. Although

4 Defendants do not challenge the adequacy of Plaintiffs’ class counsel, the City challenges the 5
adequacy of naming Ms. Hooper, Ms. Osborne, Ms. Willis, and Mr. Washington as class 6 7 representatives. Here, because Plaintiffs fail to establish commonality and typicality, the Court

8 also finds Plaintiffs fail to demonstrate they are adequate representatives. See Amchem Products,

9 Inc. v. Windsor, 521 U.S. 591, 625–26 n.20 (1997) (“The adequacy-of-representation
10 requirement ‘tend[s] to merge’ with the commonality and typicality criteria of Rule 23(a), which 11
‘serve as guideposts for determining whether . . . the named plaintiff’s claim and the class claims 12 13 are so interrelated that the interests of the class members will be fairly and adequately protected

14 in their absence.’”) (quoting Falcon, 457 U.S. at 157 n.13). Plaintiffs’ failure to establish

15 commonality and typicality leads to this conclusion because, having failed to provide significant
16 proof of the practices Plaintiffs allege they are exposed to, Plaintiffs cannot rightfully seek to 17
represent a proposed class that it has not demonstrated it shares common questions with. Nor 18
19 can Plaintiffs serve as adequate representatives considering they fail to establish their claims are

20 typical of the proposed class’s claims.

21

However, even if Plaintiffs had satisfied commonality and typicality, the Court is

22 concerned that Ms. Willis’s and Mr. Washington’s interests in bringing this suit are at odds with
23 24 the interests of the proposed class. Before certifying a class, district courts must examine

25 potential conflicts of interest. In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 942 (9th

26 Cir. 2015) (citing Hanlon, 150 F.3d at 1020). Only those conflicts “‘that are fundamental to the
27 suit and that go to the heart of the litigation prevent a plaintiff from meeting the Rule 23(a)(4) 28
adequacy requirement.’” Id. (quoting 1 WILLIAM B. RUBENSTEIN ET AL., NEWBERG ON CLASS

ORDER - 15

1 ACTIONS § 3.58 (5th ed. 2011)). Conflicts are fundamental if they go “to the specific issues in 2 controversy.” Id. Here, Plaintiffs’ Second Amended Complaint seeks declaratory and injunctive

3 relief to assure the City’s Updated Encampment Rules, and Defendants’ practices, do not violate

4 their state and federal constitutional rights. However, Defendants cite deposition testimony 5
where Ms. Willis and Mr. Washington state they hope to stop Defendants’ cleanups altogether. 6 7 See Dkts. #131, Ex. C. at 4, 7, and #138, Ex. C at 104 and Ex. D at 141–42. Plaintiffs do not
8 dispute this contention. See Dkt. #159 at 9–10. Given this distinction in their purported interests,

9 Ms. Willis and Mr. Washington are also not adequate class representatives on this basis.5 Ms.

10 Osborne is also not an adequate class representative because she has indicated she only seeks to

11 represent herself, and she cannot represent anybody else. See Dkt. #160, Ex. 7 at 24.
12

13

In summary, because Plaintiffs have not satisfied Rule 23(a)’s commonality, typicality,

14 and adequacy of representation requirements, their motion for class certification is DENIED.6

15 B. Preliminary Injunction Motion.

16

In addition to class certification, Plaintiffs also seek a preliminary injunction prohibiting

17

Defendants from seizing and summarily destroying their property without probable cause and 18

19 constitutionally adequate notice. See Dkt. #93. Defendants oppose a preliminary injunction, and

20 argue that Plaintiffs fail to demonstrate they are likely to succeed on the merits of their claims,

21 Plaintiffs cannot demonstrate irreparable harm, the balance of equities does not tip in Plaintiffs’ 22

23
5 Defendants also argue Plaintiffs are inadequate class representatives because they have provided inconsistent
24 testimony about key facts that support their suit, and because Plaintiffs’ unfamiliarity with the City’s Updated
Encampment Rules demonstrates they are not committed to fulfilling their duties as class representatives. Dkt.
25 #132 at 22–25. Because the Court finds that the named Plaintiffs are not adequate representatives on separate
grounds, the Court will not address these arguments.
26
6 Given Plaintiffs’ failure to satisfy three of Rule 23(a)’s requirements, the Court will not assess whether Plaintiffs
27 satisfy Rule 23(b)(2). However, the Court notes that because Plaintiffs have not provided significant proof of the
existence of the alleged unlawful practices, Rule 23(b)(2), which requires plaintiffs to demonstrate defendants have
28 “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole,” is likely not met. FED. R. CIV. P. 23(b)(2).

ORDER - 16

1 favor, and Plaintiffs’ proposed preliminary injunction is not in the public interest.7 See Dkts. 2 #130 and #171. The Court addresses the preliminary injunction requirements in turn.

3

a. Likelihood of Success on the Merits.

4

Plaintiffs contend they are likely to succeed on the merits of their Fourth and Fourteenth

5 Amendment claims for two reasons. Plaintiffs first argue the City’s Updated Encampment Rules
6

7 are unconstitutional on their face. To support this argument, Plaintiffs contend the Updated

8 Encampment Rules’ definitions of “personal property,” and “hazardous items,” violate the Fourth

9 Amendment. Dkt. #93 at 7–12. Plaintiffs also contend the Updated Encampment Rules are
10 facially unconstitutional under the Fourteenth Amendment because their definitions of 11
“obstruction,” “immediate hazard,” and the creation of “emphasis areas,” essentially do away 12 13 with pre-seizure notice and provide City personnel with too much discretion.8 Id. at 18–22.
14 Aside from their facial challenges, Plaintiffs next argue they are likely to succeed on the merits

15 of their Fourth and Fourteenth Amendment Claims because Defendants engage in a pattern of

16 conduct that summarily destroys personal property without the provision of the constitutionally 17 18 requisite procedural safeguards. Id. at 12–15, 17–18, 22–27.

19

The City disagrees that Plaintiffs are likely to succeed on the merits of their Fourth and

20 Fourteenth Amendment facial challenges. Dkt. #171 at 16–18. The City argues Plaintiffs’ facial

21 challenges are unlikely to succeed because its definitions of “personal property,” “hazardous 22
items,” “obstruction,” and “immediate hazard” are reasonable. Id. at 17–18. The City contends 23

24
7 The City also asks the Court to strike, or otherwise not consider, testimony allegedly containing hearsay and
25 statements made without personal knowledge in several of Plaintiffs’ declarations. Dkt. #171 at 33. Because the
Ninth Circuit has held that trial courts “may give even inadmissible evidence some weight, when to do so serves the
26 purpose of preventing irreparable harm before trial,” at this juncture the Court DENIES the City’s request. Flynt
Distributing Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (citing 11 CHARLES ALAN WRIGHT & ARTHUR R.
27 MILLER, FEDERAL PRACTICE AND PROCEDURE, CIVIL, § 2949, at 471 (1973)).
8 Notably, although Plaintiffs’ Second Amended Complaint also raises facial challenges to State Defendants’
28 WSDOT Guidelines, see Dkt. #87 ¶¶ 102, 108, 116, Plaintiffs’ Motion for Preliminary Injunction is devoid of any
argument in support of these claims. Consequently, the Court does not address Plaintiffs’ challenges to the WSDOT Guidelines.

ORDER - 17

1 that while some discretion is required in determining whether an item fits within the “personal 2 property” and “hazardous items” definitions, such discretion is inherent in cleanups. Id. at 17.

3 The City further contends that, at the very least, Plaintiffs do not demonstrate the challenged

4 definitions can never be properly applied. Id. at 17–18. The City also argues Plaintiffs are 5
unlikely to demonstrate it engages in a pattern of conduct that subjects the City to municipal 6 7 liability. Id. at 18–25. The State Defendants argue the seizure of property from Washington
8 State right of way is reasonable, and they provide adequate due process safeguards through

9 notices, and by providing unhoused persons opportunities to avoid any deprivations of property.9

10 Dkt. #162 at 12–30. 11
The Court addresses each of these arguments in turn. 12

13

i. Fourth Amendment Claims.

14

The Fourth Amendment prohibits “unreasonable” seizures of property. Lavan v. City of

15 Los Angeles, 797 F. Supp. 2d 1005, 1013 (C.D. Cal. 2011). Seizures of property occur “when
16 there is ‘some meaningful interference with an individual’s possessory interests in that 17 18 property.’” Id. (quoting Soldal v. Cook Cnty., 506 U.S. 56, 61 (1992)). Although the taking and
19 destroying of property is considered a “seizure,” this act is only unlawful if a party can

20 demonstrate unreasonableness. Id. Courts assess reasonableness by “‘balanc[ing] the nature and
21 quality of the intrusion on the individual’s Fourth Amendment interests against the importance 22
of the governmental interests alleged to justify the intrusion.’” Id. (quoting United States v. 23 24 Jacobsen, 466 U.S. 109, 113 (1984)). Here, Plaintiffs claim the City’s Updated Encampment 25 Rules violate the Fourth Amendment on their face; they also claim Defendants’ actual practices

26

27

28
9 “Right of way” refers to real property acquired by WSDOT for purposes of building, operating, and maintaining Washington State highways, bridges, and other structures that support Washington State highways. Dkt. #162 at 4.

ORDER - 18

1 in enforcing the Updated Encampment Rules violate their Fourth Amendment rights. Each claim 2 is addressed in turn.

3

A. Fourth Amendment Facial Challenges to the City’s Updated

4

Encampment Rules.

5

The Court agrees that Plaintiffs have not shown they are likely to succeed on the merits

6 of their Fourth Amendment facial challenges to the City’s Updated Encampment Rules.

7 Plaintiffs contend the Updated Encampment Rules’ definitions of “personal property,” and 8
“hazardous items,” violate the Fourth Amendment because they are vague and provide 9 10 Defendants with an impermissible amount of discretion that allows them to summarily destroy
11 the property of unhoused persons. Dkt. #93 at 7–12. To succeed on their Fourth Amendment

12 facial challenge, Plaintiffs must demonstrate the definitions of “personal property” and
13 “hazardous items” result in unreasonable seizures. See Lavan, 797 F. Supp. 2d at 1013 (“While 14
taking and destroying property is a seizure, such seizures are only unlawful if they are 15
16 unreasonable.”) (internal citation omitted). The Updated Encampment Rules define “personal

17 property” as “an item that: is reasonably recognizable as belonging to a person; has apparent

18 utility in its present condition and circumstances; and is not hazardous.” Dkt. #94, Ex. C at 3
19 and Ex. D at 7. Any doubts regarding the classification of an item are to be resolved in favor of
20 21 treating the item as personal property. Id. “Hazardous items” are defined, in part, as “item[s]
22 that reasonably appear[] to pose a health or safety risk to members of the public or to City

23 employees or to other authorized personnel.” Id. Ex. D at 6.

24

Plaintiffs fail to demonstrate they are likely to succeed on their Fourth Amendment facial

25 challenge because they do not explain why seizures caused by the alleged vagueness of the
26

27 definitions of “personal property,” and “hazardous items,” are unreasonable. See Dkt. #93 at 7–

28 12. Instead, Plaintiffs cite to deposition testimony, cite to the minimal training the City’s

ORDER - 19

1 employees allegedly receive on the Updated Encampment Rules, and cite to a 2016 Seattle Office 2 for Civil Rights report, to support the position that seizures of property occur as a result of the

3 Updated Encampment Rules’ vagueness. Id. However, citing to evidence that purportedly
4 demonstrates the definitions of “personal property” and “hazardous items” allow Defendants a 5
degree of discretion, does not by itself demonstrate that exercise of that discretion is 6 7 unreasonable. Additionally, the Updated Encampment Rules place limits on that discretion by
8 directing that any dispute about the status of an item be resolved in favor of treating the item as

9 personal property. See Dkt. #94, Ex. C at 3 and Ex. D at 7.

10

The Court’s analysis is unchanged by Plaintiffs’ argument that the definitions of

11 “personal property” and “hazardous items” impermissibly allow Defendants to refuse to store
12

13 wet items, muddy items, items in less than perfect condition, items near drug paraphernalia, and

14 items near urine.10 Plaintiffs contend the City’s reasons for refusing to store urine-contaminated

15 items do not outweigh Plaintiffs’ property interests because those reasons are not supported by
16 scientific evidence. See Dkt. #93 at 15–16. To support this position, Plaintiffs rely on the 17 18 declaration of Dr. William Daniell, a physician and epidemiologist. See Dkt. #110. Dr. Daniell
19 explains that certain viral agents (including hepatitis B and C) are “not linked to urine

20 transmission, unless the urine is grossly contaminated with blood.” Id. ¶ 14. However, as the
21 City points out, Dr. Daniell also acknowledges that diseases can in fact be transmitted by urine 22
from infected persons (and animals), and he further indicates that protective measures can reduce, 23 24 but not eliminate, the risk of disease posed by contaminated urine. See Dkt. #171 at 27–28; also 25 Dkt. #110 ¶¶ 12–13, 19–23. Notably, the City also provides the declaration of an expert,

26 Dr. David Cowan, who explains the increased risk of disease transmission present in 27

28 10 Under the Updated Encampment Rules the City has no obligation to store hazardous items (which may include
needle-strewn tents), as well as items that may become hazards (such as wet bedding materials). Dkt. #94, Ex. C at 7.

ORDER - 20

1 unauthorized encampments. See Dkt. #174, Ex. B at 31–32. Dr. Cowan, unlike Dr. Daniell, 2 visited unauthorized encampments in order to prepare his declaration. Compare Dkt. #174 ¶ 8,

3 with Dkt. #110 ¶¶ 5–7. Given Plaintiffs’ and the City’s expert declarations on this matter, the

4 Court is not convinced that the City’s policy with respect to urine-contaminated items or wet

5 items is “not grounded in fact.” See Dkt. #93 at 15.
6

7

In summary, Plaintiffs fail to show how the definitions of “personal property” and

8 “hazardous items” allow Defendants to engage in the unreasonable seizure of property. Plaintiffs

9 thus fail to demonstrate they are likely to succeed on the merits of their Fourth Amendment facial

10 challenge to the Updated Encampment Rules.

11

B. Plaintiffs’ Fourth Amendment Challenge to Defendants’ Enforcement

12

of the City’s Updated Encampment Rules.

13

The Court also agrees that Plaintiffs have not shown they are likely to succeed on the

14

merits of their Fourth Amendment challenge to the City’s cleanup practices. To succeed on their 15

16 Section 1983 claims against the City, Plaintiffs must show their injury is caused by “action

17 pursuant to official municipal policy.” Monell v. New York City Dep’t of Soc. Servs., 436 U.S.

18 658, 690–91 (1978); also L.A. Cnty., Cal. v. Humphries, 562 U.S. 29, 31 (2010) (“The question
19 presented is whether the ‘policy or custom’ requirement also applies when plaintiffs seek
20 21 prospective relief, such as an injunction or a declaratory judgment. We conclude that it does so
22 apply.”). Practices that are “so persistent and widespread as to practically have the force of law,”

23 are considered official municipal policy. Connick v. Thompson, 563 U.S. 51, 61 (2011).
24 Existence of a practice is not established where plaintiffs can only demonstrate “isolated or 25
sporadic” instances. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“Liability for 26 27 improper custom may not be predicated on isolated or sporadic incidents . . . . ”). Aside from
28 demonstrating the existence of a policy or practice, Plaintiffs must also demonstrate that “through

ORDER - 21

1 its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bd. 2 of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (emphasis in original). Here, Plaintiffs

3 have not demonstrated they are likely to succeed in demonstrating the existence of a policy or

4 practice that is “so persistent and widespread as to practically have the force of law.” 5
The Court is not convinced the evidence cited by Plaintiffs evinces the City’s engagement 6 7 in a persistent and widespread practice of summarily destroying the property of unhoused
8 persons. Citing to declarations, a spreadsheet that purportedly demonstrates the City did not store

9 property in nearly 30 percent of cleanups occurring between February 22, 2017, and May 1, 2017,
10 videos, photographs, and the deposition testimony of a WSDOT employee, Plaintiffs contend the 11
City fails to store property. Dkt. #93 at 12–13; also Dkts. #94, Exs. A and S, #95, #111, #113, 12 13 #118, #119, and #122. Plaintiffs argue this failure to store property demonstrates the City

14 engages in the summary destruction of property. The Court is not convinced.

15

As an initial matter, Plaintiffs’ attempt to use the deposition testimony of a WSDOT

16 employee to bolster their claim is unavailing. Although the City coordinates with WSDOT to 17
clean dangerous encampments off of WSDOT right of way, for most of the cleanups the City, 18

19 not WSDOT, coordinates and carries out storage efforts. See Dkts. #162 at 11 and #167 ¶¶ 4, 15–

20 26. Indeed, even in the deposition testimony cited by Plaintiffs, Lance Pascubillo, the WSDOT

21 employee deposed, indicates that the City’s cleanup coordinator, not he, is best suited to answer 22
questions about the provision of storage. See Dkt. #94, Ex. A at 8–9. Additionally, on those 23 24 occasions when WSDOT has not partnered with the City, WSDOT has submitted
25 counterevidence, a declaration by Mr. Pascubillo, which demonstrates WSDOT has stored

26 property found on its right of way. Dkt. #167 ¶¶ 5–15. Given that Mr. Pascubillo—a WSDOT
27 employee—is not involved with the City’s storage efforts, the Court would be remiss to conclude 28

ORDER - 22

1 that his testimony serves as proof that the City summarily destroys the property of unhoused 2 persons.

3

The Court is equally unconvinced that Plaintiffs’ citation to a spreadsheet documenting

4 cleanups between February 22, 2017, and May 1, 2017, establishes the existence of a widespread 5
and persistent pattern of the summary destruction of unhoused individuals’ property. That the 6 7 City may not have stored property in 30 percent of cleanups between this timeframe does not
8 automatically indicate the City summarily destroys property. Plaintiffs acknowledge as much

9 when they admit that the spreadsheet does not indicate what happens to property that is not stored.
10 See Dkt. #93 at 13. Considering the number of reasons why property may not be stored— 11
including that property may have been abandoned—the Court is not convinced that citation to a 12 13 statistic derived from a two-month period demonstrates the City’s widespread engagement in a

14 pattern of summarily destroying property.

15

Plaintiffs’ citation to declarations, videos, and photographs likewise fail to demonstrate

16 that the City engages in a widespread and persistent pattern of summarily destroying the property 17
of unhoused individuals. Although the videos and photographs submitted by Plaintiffs appear to 18

19 show the destruction of property, Plaintiffs do not provide the Court with sufficient context to

20 determine at what stage in the City’s cleanup process these photographs and videos were taken.

21 See Dkts. #94, Exs. J–R, and #121. Plaintiffs’ declarations likewise fail to provide the Court 22
with sufficient context to determine at which point in the cleanup process the declarants observed 23 24 the alleged wanton destruction of property. Consequently, the Court is not convinced that
25 Plaintiffs are likely to succeed in establishing the existence of a persistent and widespread City

26 practice that violates their Fourth Amendment rights. 27

28

ORDER - 23

1

The Court is likewise unconvinced that Plaintiffs have demonstrated they are likely to

2 succeed on their Fourth Amendment claims against Defendant Millar and Defendant WSDOT11.

3 Not only do Plaintiffs not dispute the State Defendants’ contention that WSDOT was only
4 involved in ten cleanups cited by Plaintiffs to support the assertion that Defendants summarily 5
destroy property, Plaintiff Brandi Osborne’s deposition testimony also demonstrates that State 6 7 Defendants engaged in the opposite of summary destruction—WSDOT employees waited for
8 Ms. Osborne to remove her property before they conducted their cleanup, and none of Ms.

9 Osborne’s property was summarily destroyed. See Dkt. #164 ¶¶ 8–21, and Ex. 1; also Dkt. #169, 10 Ex. 4 at 22–26. This, coupled with the State Defendants contention that they provide notice and 11
otherwise allow unhoused persons opportunities to avoid any property deprivation, lead the Court 12 13 to conclude that Plaintiffs have not demonstrated they are likely to demonstrate that the State
14 Defendants’ seizure of property on Washington State right of way is unreasonable.

15

In summary, Plaintiffs have not demonstrated they are likely to succeed on the merits of

16 their Fourth Amendment claims against Defendants.

17

18

ii. Fourteenth Amendment Claims.

19

Under the Fourteenth Amendment “[n]o state shall . . . deprive any person of life, liberty,

20 or property, without due process of law.” U.S. CONST. amend. XIV. The possessions of unhoused
21 persons are considered “property” for due process analysis purposes. See Lavan, 797 F. Supp. 22
2d at 1016 (unhoused persons’ possessions considered “property” in due process analysis) 23 24 (citing, e.g., Fuentes v. Shevin, 407 U.S. 67, 84 (1972)). Consequently, the Fourteenth 25 Amendment requires the City to provide unhoused persons with notice, and an “‘opportunity to

26 be heard at a meaningful time and in a meaningful manner,’” before their property can be seized 27

28 11 At this juncture, the Court will not examine the propriety of Plaintiffs’ Section 1983 claims against
WSDOT.

ORDER - 24

1 and destroyed. Id. at 1016–17 (quoting Mathews v. Eldridge, 424 U.S. 319, 339–43 (1976)). 2 However, a hearing may be postponed in “‘extraordinary situations, where some valid

3 government interest is at stake that justifies the postponing.’” Id. (quoting United States v. James

4 Daniel Good Real Prop., 510 U.S. 43, 53 (1993)). To determine if the basic procedural due

5 process requirements have been met, the Court must consider the following three factors:
6

7

(1) The private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the

8

probable value, if any, of additional or substitute procedural safeguards; and (3) the

Government’s interest, including the fiscal and administrative burdens that

9

additional or substitute procedural requirements would entail.”

10 Mathews, 424 U.S. at 321. 11
Plaintiffs not only contend the Updated Encampment Rules are facially unconstitutional 12
13 under the Fourteenth Amendment, they also claim Defendants, in practice, do not provide

14 unhoused persons with the requisite procedural safeguards to prevent deprivations of property.

15 Dkt. #93 at 16–20. The Court addresses each claim in turn.

16

A. Fourteenth Amendment Facial Challenges to the City’s Updated

17

Encampment Rules.

18

Plaintiffs do not demonstrate they are likely to succeed on their Fourteenth Amendment

19 facial challenges to the City’s Updated Encampment Rules. Plaintiffs first contend the Updated
20
21 Encampment Rules are facially unconstitutional because they allow for the immediate removal

22 of “obstructions” and “immediate hazards” without the provision of pre-seizure notice. Dkt. #93

23 at 18–19. However, while it is true that failure to provide pre-seizure notice has the potential to

24 fail a Mathews v. Eldridge analysis, Plaintiffs fail to acknowledge that the Updated Encampment 25
Rules not only require the City to store personal property removed from encampments 26 27 categorized as “obstructions” and “immediate hazards,” they also require the City to provide
28 post-seizure notice at these sites to notify unhoused persons of a cleanup, and to provide

ORDER - 25

1 unhoused persons with information on how to recover property seized and stored. See Dkt. #94, 2 Ex. C at 3–4. Given Plaintiffs’ failure to explain how these safeguards do not provide sufficient

3 due process, Plaintiffs do not demonstrate they are likely to succeed on the merits of their

4 Fourteenth Amendment facial challenge to the Updated Encampments Rules’ provisions 5
governing “obstructions” and “immediate hazards.” For this same reason, Plaintiffs also fail to 6 7 demonstrate the insufficiency of the process the Updated Encampment Rules provide in
8 “emphasis areas.” See Dkt. #94, Ex. C at 8.

9

Plaintiffs claim the City’s creation of “emphasis areas” coupled with the City’s

10 “obstruction” and “immediate hazard” categories, leave very few areas throughout the City of 11
Seattle that actually require Defendants to provide pre-cleanup notice. Dkt. #93 at 21–22. 12
13 However, as with “obstruction” and “immediate hazard” cleanups, the Updated Encampment

14 Rules provide for post-seizure notice after encampments are removed from “emphasis” areas.

15 See Dkt. #94, Ex. C at 8. Given the Updated Encampment Rules’ inclusion of these procedural

16 safeguards, the Court cannot conclude that Plaintiffs are likely to succeed on their claim that the 17
provisions governing “obstructions” and “immediate hazards” are unconstitutional on their face. 18

19

Plaintiffs also fail to demonstrate they are likely to succeed on their Fourteenth

20 Amendment claim that the terms “obstruction” and “immediate hazard” are defined so broadly12,

21 and ambiguously, that “they eliminate virtually any requirement of notice,” and provide City 22
personnel with “unbounded discretion” to decide when to move an encampment without notice. 23 24 Dkt. #93 at 18–20. To succeed on a Fourteenth Amendment facial challenge claiming a rule is
25 vague, a party must “demonstrate that ‘the enactment is impermissibly vague in all of its

26 applications.’” Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 971–72 (9th 27

28 12 The Court notes that while a First Amendment overbreadth argument appears to be raised by Plaintiffs’ motion
for preliminary injunction, Plaintiffs do not set forth this claim in their Second Amended Complaint. See Dkt. #87. Consequently, the Court will only address Plaintiff’s facial vagueness challenge under the Fourteenth Amendment.

ORDER - 26

1 Cir. 2003) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 2 495 (1982)). Here, Plaintiffs point out that the City classified the twenty-eight cleanups it carried

3 out between February 22, 2017, and May 1, 2017, as “obstructions” or “immediate hazards.”

4 Dkt. #93 at 19. This statistic, without more, does not demonstrate why the definitions of

5 “obstruction” and “immediate hazard” are impermissibly vague.
6

7

Plaintiffs’ citation to two Spokane Street cleanups likewise fails to demonstrate

8 impermissible vagueness. See id. at 20. Plaintiffs contend the City’s reasons for classifying the

9 encampments located on Spokane Street (near the West Seattle Bridge) as an “obstruction” did

10 not comport with the definition of that term. The Updated Encampment Rules define an

11 “obstruction” as:
12

13

[P]eople, tents, personal property, garbage, debris or other objects related to an encampment that: are in a City park or on a public sidewalk; interfere with the

14

pedestrian or transportation purposes of public rights-of-way; or interfere with

areas that are necessary for or essential to the intended use of a public property or

15

facility.

16 Dkt. #94, Ex. C at 3. Plaintiffs conclude that Defendants’ purported justifications for this 17
classification—which allegedly included Defendants’ need to replace copper wire, RV fires, and 18
19 the alleged “confrontation” of a pedestrian on a nearby trail—do not fall within the “obstruction”

20 definition. Plaintiffs’ conclusion is not only unpersuasive because of its failure to engage in

21 legal analysis, it is also belied by Defendants’ counterevidence, which demonstrates that 22
Spokane Street encampment tents were located on bike paths and posed collision threats, while 23 24 fires, which occurred several days prior to the April 11, 2017, removal of another Spokane Street
25 encampment, threatened the structural integrity of the West Seattle bridge. See Dkt. #98 ¶¶ 7–

26 14.

27

In summary, Plaintiffs fail to demonstrate they are likely to succeed on their Fourteenth

28 Amendment facial challenges.

ORDER - 27

1

B. Plaintiffs’ Fourteenth Amendment Challenge to Defendants’ Enforcement of the City’s Updated Encampment Rules.

2 Aside from their facial challenges, Plaintiffs also contend they are likely to succeed on
3 4 the merits of their Fourteenth Amendment claims because Defendants engage in a pattern of

5 conduct that deprives them of constitutionally requisite procedural safeguards. Dkt. #93 at 16–

6 18, 22–27. Plaintiffs contend they are deprived of due process in four ways. Plaintiffs first argue

7 Defendants’ “wholesale” destruction of unhoused persons’ property deprives them of the 8
opportunity to recover their property. Id. at 17. Plaintiffs next contend Defendants do not 9 10 provide them with an opportunity to object to the destruction of their property. Id. at 18.
11 Plaintiffs also contend Defendants’ notice provision practices fail to meet minimum due process

12 standards, and finally, Plaintiffs contend Defendants’ post-seizure, storage process is
13 inconsistent, inadequate, and fails to assure the storage of property. Id. at 22–27. 14
The City opposes Plaintiffs’ Fourteenth Amendment claims on the ground that Plaintiffs 15
16 are unlikely to demonstrate their injuries are caused by “action pursuant to official municipal

17 policy.” See Dkt. #171 at 18–23 (quoting Monell, 436 U.S. at 690–91). The State Defendants

18 oppose Plaintiffs’ Fourteenth Amendment claims on the ground that their processes provide
19 unhoused persons with multiple opportunities to prevent the deprivation of personal property.
20 21 Dkt. #162 at 28–30. The Court agrees that Plaintiffs have not demonstrated they are likely to
22 succeed on the merits of their Fourteenth Amendment claims.

23

First, as with their Fourth Amendment Monell claims, to succeed on this Section 1983

24 claim against the City, Plaintiffs must show their Fourteenth Amendment injuries are caused by 25
“action pursuant to official municipal policy.” Monell, 436 U.S. at 690–91. Here, Plaintiffs 26 27 again fail to demonstrate that the pre-seizure and post-seizure conduct Defendants allegedly

28 engage in is “so persistent and widespread as to practically have the force of law.” Connick, 563

ORDER - 28

1 U.S. at 61. Plaintiffs cite to three cleanups where unhoused persons were not given notice, they 2 also cite a couple of instances where they claim an inadequate description of a cleanup location

3 was provided, and they cite to five instances where notice was posted less than 72-hours in

4 advance. See Dkt. #93 at 22–26. The Court is not convinced these instances have occurred to 5
such a degree that they can be considered persistent and widespread. On the contrary, 6 7 considering that the City conducted 136 cleanups between January 2017 and August 2017, the
8 examples provided by Plaintiffs appear to be isolated and sporadic instances, and do not establish

9 the existence of a pattern of unconstitutional conduct. See Dkt. #200 at 3–4.

10

Notably, although Plaintiffs attempt to rely on two spreadsheets they claim demonstrate

11 Defendants did not provide notice in sixty percent of cleanups, see Dkt. #185 at 2, n.1, the City
12

13 offers counterevidence which demonstrates that Plaintiffs’ counsel was aware that these

14 spreadsheets list complaints, not separate cleanups, and “may in many cases include multiple

15 references for the same cleanup (i.e., not each entry represents a separate cleanup).” See Dkt.
16 #199, Ex. A. at 2, 4. Plaintiffs’ counsel was also aware that the spreadsheets cited in Plaintiffs’ 17
motion, and at oral argument, contain instances where a complaint did not accrue into a cleanup. 18
19 See Dkt. #199, Ex. A. at 2, 4. Given this knowledge, the Court is troubled by Plaintiffs’ counsel’s

20 representations about the data in these spreadsheets.

21

The Court is equally troubled by Plaintiffs’ similar mischaracterizations of a Seattle

22 Office for Civil Rights report which they claim indicates the City only complied with the MDAR
23 24 08-01 in two-thirds of cleanups conducted in 2016. See Dkt. #93 at 25 (citing Dkt. #94, Ex. F).

25 Contrary to Plaintiffs’ assertions, the Seattle Office for Civil Rights report cited presented

26 findings on 59 cleanups conducted between September 12, 2016, through December 20, 2016,
27 and the report only found that fourteen percent, not one-third, of those cleanups did not comply 28
with the MDAR 08-01. Dkt. #94, Ex. F at 2–3. Additionally, Defendants submit

ORDER - 29

1 counterevidence which demonstrates the report relied on by Plaintiffs was eventually revised to 2 reflect that the Seattle Office for Civil Rights only monitored 50 cleanups. See Dkt. #178 ¶ 21

3 and Ex. A. The revised Seattle Office for Civil Rights Report indicates that only four of seven

4 cleanups were halted or called off by the Seattle Office for Civil Rights due to Defendants’ failure

5 to provide adequate notice. See Id. Ex. A at 15–17.
6

7

Plaintiffs also fail to demonstrate they are likely to succeed on the merits of their

8 Fourteenth Amendment claims against the State Defendants. As the State Defendants point out,

9 they provide Plaintiffs with the ability to avoid property deprivations through the following: (1)
10 the use of notices notifying individuals they have no right to be on WSDOT right of way; (2) 11
when possible, 72-hour, written notice that an encampment will be removed; (3) additional, oral 12 13 notice, along with an opportunity to remove items, at the time of cleanup; and (4) storage of non-

14 hazardous item for at least 70 days before the property is destroyed. Dkt. #162 at 29. Here,

15 Plaintiffs fail to explain why WSDOT’s provision of these due process safeguards fails the
16 Mathews v. Eldridge test. And to the extent Plaintiffs allege WSDOT employees do not comport 17
with these rules, they fail to demonstrate that WSDOT employees fail to do so based on 18
19 established state procedure. See Zinermon v. Burch, 494 U.S. 113, 127–30 (1990) (explaining

20 that tort remedies “are the only remedies the State could be expected to provide” where State-

21 provided procedural safeguards could not have addressed the risk of the deprivation 22
experienced). Plaintiffs also do not explain why Washington State’s tort remedies do not provide 23 24 sufficient due process in instances where WSDOT employees do not act in accordance with
25 WSDOT’s established procedures. See id.

26

In summary, Plaintiffs fail to demonstrate they are likely to succeed on the merits of their

27 Fourteenth Amendment claims.
28 iii. Plaintiffs’ State Constitutional Claims.

ORDER - 30

1

Plaintiffs also fail to show they are likely to succeed on the merits of their state

2 constitutional claims. In their Second Amended Complaint, Plaintiffs claim Defendants’ alleged

3 policy, pattern, and/or custom of seizing and destroying their property violates Article I, Sections

4 3 and 7 of the Washington State Constitution. Dkt. #87 ¶¶ 218–21. However, Plaintiffs do not 5
address their State Constitutional claims in their Motion for Preliminary Injunction (Dkt. #93), 6 7 nor do they explain why they are likely to succeed on the merits of those claims. Plaintiffs thus
8 fail to demonstrate they are likely to succeed on the merits of their State-law claims.

9

b. Irreparable Harm

10

Plaintiffs seeking a preliminary injunction must demonstrate they will be exposed to

11 irreparable harm absent the issuance of the preliminary injunction. Caribbean Marine Servs.
12

13 Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (citing L.A. Mem’l Coliseum Comm’n v.

14 Nat’l Football League, 634 F.2d 1197, 1202–03 (9th Cir. 1980)). Speculative injuries are not

15 enough to warrant granting a preliminary injunction, and plaintiffs “must demonstrate immediate
16 threatened injury as a prerequisite to preliminary injunctive relief.” Id. (emphasis in original). 17
Thus, if a party fails to demonstrate a sufficient likelihood of success on the merits of their 18
19 constitutional claims they may also fail to demonstrate the possibility of irreparable harm. See

20 Associated Gen. Contractors of Cal., Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1410–12 (9th

21 Cir. 1991) (finding that irreparable injury was not shown where plaintiffs did not demonstrate a

22 sufficient likelihood of success on the merits of their constitutional claims).
23

24

Considering that Plaintiffs have failed to demonstrate they are likely to succeed on the

25 merits of their constitutional claims, the Court finds that Plaintiffs have not demonstrated they

26 are likely to suffer irreparable harm if the Court does not grant their motion for preliminary
27 injunction. 28

ORDER - 31

1

c. Balance of Equities and the Public Interest

2

Plaintiffs fail to demonstrate the balance of equities tips in their favor, or that issuing a

3 preliminary injunction is in the public interest. In determining whether to issue a preliminary

4 injunction, Courts must “balance the interests of all parties and weigh the damage to each, 5
mindful of the moving party's burden to show the possibility of irreparable injury to itself and 6 7 the probability of success on the merits.” L.A. Mem’l Coliseum, 634 F.2d at 1203. Here,
8 Plaintiffs contend the balance of equities tips in their favor because Defendants seize and destroy

9 the only property the Individual Plaintiffs own, and they argue that Defendants’ justifications for
10 seizing this property are “nebulous.” Dkt. #93 at 33–34. Plaintiffs reason that while they will 11
continue to suffer irreparable harm if an injunction is not granted, the City will not be harmed if 12 13 it is ordered to limit its cleanups to those which pose immediate public health and safety risks.

14 Id. Plaintiffs further contend a preliminary injunction is reasonable because the “‘public has a

15 fundamental interest in the protection of all people’s constitutional rights.’” Id. at 34 (quoting
16 Klein v. City of Laguna Beach, 381 F. App’x 723, 727 (9th Cir. 2010)). 17
In response, WSDOT argues the balance of equities tips in favor of allowing them to 18
19 continue removing items left on Washington State right of way because Plaintiffs can avoid, or

20 minimize, potential harms caused by the deprivation of their property by not trespassing on

21 WSDOT’s property, moving their property when notice is provided, or by reclaiming their 22
property after WSDOT stores it. Dkt. #162 at 32. WSDOT explains that if a preliminary 23 24 injunction is issued, the harm caused to WSDOT will be significantly worse, as it would
25 “severely restrain” WSDOT from performing necessary maintenance, construction, and

26 operation of State right of way. Id. at 4. WSDOT also argues that a preliminary injunction will
27 unconstitutionally convert State right of way into a housing and storage facility; this will not only 28
interfere with public transportation and the construction and maintenance of transportation

ORDER - 32

1 infrastructure, it will also pose risks to unhoused persons, motorists, and WSDOT workers. Id. 2 at 32. WSDOT further contends that restricting its ability to maintain Washington State right of

3 way might expose it to liability claims for hazards posed by encampments. For the same reasons,

4 State Defendants argue Plaintiffs’ proposed preliminary injunction is not in the public interest. 5
WSDOT explains that Washington State right of way “provides important infrastructure to the 6 7 travelling public,” and allowing items to remain on this property hampers its ability to maintain
8 these spaces, and its statutory duty to anticipate and address reasonably foreseeable hazards. Id.

9 at 32–33.

10

The City contends the balance of equities tips in its favor because, even though it respects

11 and accommodates Plaintiffs’ property rights (and even invited Plaintiffs’ input on the Updated
12

13 Encampment Rules), Plaintiffs have refused the City’s offers of alternative shelter, submitted

14 inaccurate and exaggerated declarations to the Court, and are using this lawsuit as a way to

15 pressure the City to stop cleanups altogether. Dkt. #171 at 32–33. Relying on Veterans for Peace
16 Greater Seattle, Chapter 92 v. City of Seattle, 2009 WL 224 3796, at *5 (W.D. Wash. July 24, 17
2009), in which this Court acknowledged the City has a “substantial interest in protecting its 18
19 public spaces,” the City argues that it is acting in the public interest, is responding to a genuine

20 crisis, and that the Court should “defer to government officials’ ‘specific, predictive judgments

21 about how [a] preliminary injunction would reduce the effectiveness’ of their programs.” Id. at

22 33.
23

24

The Court agrees that Plaintiffs have not demonstrated the balance of equities tip in their

25 favor. Given that Plaintiffs have failed to demonstrate they are likely to succeed on the merits of

26 their claims, the Court cannot find that the speculative harm Plaintiffs claim outweighs
27 Defendants’ interest in maintaining its property free of items that may pose threats to motorists, 28

ORDER - 33

1 pedestrians, City and WSDOT workers, and other unhoused persons. For the same reason, 2 Plaintiffs also fail to demonstrate the preliminary injunction is in the public interest.

3

V. CONCLUSION

4

The Court continues to recognize the hardships faced by Plaintiffs, and it acknowledges

5 their constitutional property rights. The optimum solution for the difficult issues raised in this
6

7 lawsuit may, ultimately, only be found outside of a courtroom. However, having reviewed

8 Plaintiffs’ Motion for Class Certification, Plaintiffs’ Motion for Preliminary injunction, the

9 corresponding responses and replies, along with the declarations and exhibits submitted by the

10 parties, and the remainder of the record, the Court hereby finds and ORDERS:

11 1) Plaintiffs’ Motion for Class Certification (Dkt. #2) is DENIED.
12

13

2) Plaintiffs’ Motion for Preliminary Injunction (Dkt. #93) is DENIED.

14

3) The Clerk of the Court is directed to forward a copy of this Order to all

counsel of record. 15

16

DATED this 4 day of October, 2017.

17

18 19

A

RICARDO S. MARTINEZ

20

CHIEF UNITED STATES DISTRICT JUDGE

21

22

23

24

25

26

27

28

ORDER - 34

 </s> Case 2:17-cv-00077-RSM Document 224 Filed 11/29/19 Page 1 of 19

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

KAYLA WILLIS; REAVY WASHINGTON; LISA HOOPER; BRANDIE OSBORNE, individually and on behalf of a class of similarly situated individuals; THE EPISCOPAL DIOCESE OF OLYMPIA; TRINITY PARISH OF SEATTLE; REAL CHANGE,
Plaintiffs-Appellants,

No. 18-35053 D.C. No.
2:17-cv-00077RSM
OPINION

v.

CITY OF SEATTLE; WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; ROGAR MILLAR, Secretary of Transportation for WSDOT, in his official capacity,
Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted February 4, 2019 Seattle, Washington
Filed November 29, 2019

Case 2:17-cv-00077-RSM Document 224 Filed 11/29/19 Page 2 of 19

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WILLIS V. CITY OF SEATTLE

Before: Sandra S. Ikuta and Morgan Christen, Circuit Judges, and Jennifer Choe-Groves,* Judge.

Opinion by Judge Choe-Groves; Partial Concurrence and Partial Dissent by Judge Christen

SUMMARY**

Civil Rights
The panel affirmed the district court’s denial of class certification in an action challenging the procedures by which the City of Seattle and the Washington State Department of Transportation remove unauthorized encampments, camping equipment, and personal property left on city-owned property.
Appellants asserted in their motion for class certification that the City and the Department of Transportation engaged in an alleged policy and practice of “sweeps” that destroyed property, violating the unreasonable seizure and due process clauses under both the U.S. Constitution and the Washington State Constitution.
The panel held that Appellants failed to proffer sufficient evidence and articulate a practice that was common to the

* The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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WILLIS V. CITY OF SEATTLE

3

claims of the proposed class in their motion for class certification. The panel concluded that it was not an abuse of discretion for the district court to hold that an alleged practice affecting each of the Appellants was not discernable from the record and to deny Appellants’ class action certification accordingly. The panel disagreed with the dissent’s assertion that Appellants’ motion for class certification raised a facial challenge to defendants’ policies as a basis for establishing commonality for purposes of Fed. R. Civ. P. 23(a).

Concurring in part and dissenting in part, Judge Christen agreed, under the circumstances of this case, that plaintiffs failed to show that their as-applied claims posed common questions for purposes of Fed. R. Civ. P. 23(a). Judge Christen stated, however, that plaintiffs also presented distinct facial challenges to defendants’ camp cleanup policies and the order denying class certification did not address these policies. Because the order denying class certification made no mention of plaintiffs’ facial claims, Judge Christen would remand for the district court to consider this issue in the first instance.

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WILLIS V. CITY OF SEATTLE

COUNSEL

Toby J. Marshall (argued), Terrell Marshall Law Group PLLC, Seattle, Washington; Emily Chiang, Nancy Talner, and Breanne Schuster, ACLU of Washington Foundation, Seattle, Washington; Eric A. Lindberg, Kristina Markosova, and Todd T. Williams, Corr Cronin Michelson Baumgardner Fogg & Moore, Seattle, Washington; for PlaintiffsAppellants.

Matthew J. Segal (argued), Taki V. Flevaris, and Athanasios P. Papailiou, Pacific Law Group LLP, Seattle, Washington; Patrick Downs, Gregory Narver, Carlton Seu, and Gary Smith, Seattle City Attorney’s Office, Seattle, Washington; for Defendant-Appellee City of Seattle.

Alicia O. Young (argued) and Matthew D. Huot, Assistant Attorneys General; Robert W. Ferguson, Attorney General; Office of the Attorney General, Olympia, Washington; for Defendants-Appellees Washington State Department of Transportation and Rogar Millar.

J. Dino Vasquez and Joshua Howard, Karr Tuttle Campbell, Seattle, Washington; Eric Tars, National Law Center on Homelessness & Poverty, Washington, D.C.; for Amici Curiae Disability Rights of Washington, et al.

Shenoa Payne and Zachariah Allen, Richardson Wright LLP, Portland, Oregon, for Amici Curiae Civil Procedure Professors.

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WILLIS V. CITY OF SEATTLE

5

OPINION

CHOE-GROVES, Judge:

Multi-Departmental Administrative Rules 08-01 (“MDAR 08-01”), enacted by the City of Seattle in 2008, establish, in part, standard procedures for the removal of unauthorized encampments, camping equipment, and personal property left on city-owned property. The City of Seattle amended its encampment rules in 2017 by promulgating MultiDepartmental Administrative Rules 17-01 (“MDAR 17-01”). The Washington State Department of Transportation (“WSDOT”) has adopted guidelines instituting similar removal procedures for unauthorized encampments on state property, titled “WSDOT’s Guidelines to Address Illegal Encampments within State Right of Way” (“WSDOT Guidelines”). Kayla Willis, Lisa Hooper, Brandie Osborne, and Reavy Washington (collectively, “Appellants”) are four individuals who live outside on public property and seek to represent a class of approximately 2,000 other people similarly situated. They appeal the district court’s order denying a motion for class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure.

Referencing the MDARs and the WSDOT Guidelines (collectively, “Defendants’ written policies”), Appellants asserted in their motion for class certification that the City of Seattle and WSDOT engaged in an alleged policy and practice of “sweeps” that destroyed property, violating the unreasonable seizure and due process clauses under both the U.S. Constitution and the Washington State Constitution. By bringing this action on behalf of themselves and all others similarly situated, Appellants sought declaratory and injunctive relief from the “sweeps.” The district court found

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WILLIS V. CITY OF SEATTLE

that Appellants satisfied the numerosity requirement of Rule 23, but concluded that Appellants failed to establish sufficiently the existence of a practice that applied uniformly to all proposed class members and was subject to resolution in a single action. The district court denied the motion for class certification for failure to satisfy all the requirements of Rule 23(a).

We have jurisdiction pursuant to 28 U.S.C. § 1292(e) and Rule 23(f) of the Federal Rules of Civil Procedure, and review a district court’s order on class certification for an abuse of discretion. Parra v. Bashas’, Inc., 536 F.3d 975, 977 (9th Cir. 2008) (citing Molski v. Gleich, 318 F.3d 937, 946 (9th Cir. 2003)).

To receive class action treatment, the proposed lead plaintiffs must meet the four requirements of Rule 23(a) and at least one requirement of Rule 23(b). Under Rule 23(a), a party must show: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). To meet the second prong, commonality, a party must demonstrate that they and the proposed class members have suffered the same injury and have claims that depend on a common contention capable of class-wide resolution. WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011). Capable of class-wide resolution “means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 350. The commonality element may be fulfilled if the court can determine “in one stroke” whether a single policy or practice

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WILLIS V. CITY OF SEATTLE

7

which the proposed class members are all subject to “expose them to a substantial risk of harm.” Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014). “These policies and practices are the ‘glue’ that holds together the putative class . . . either each of the policies and practices is unlawful as to every [proposed member] or it is not.” Id. Allegations of individual instances of mistreatment, without sufficient evidence, do not constitute a systemic deficiency or overarching policy of wrongdoing. See id. at 683–84 & n.28 (stating that “precedent does not hold that utterly threadbare allegations that a group is exposed to illegal policies and practices are enough to confer commonality,” and concluding that inmates provided “sufficient evidence of systemic and centralized policies or practices in a prison system that allegedly expose all inmates in that system to a substantial risk of serious future harm” to meet the requirements of Rule 23(a)).

Here, Appellants failed to proffer sufficient evidence and articulate a practice that was common to the claims of the proposed class in their motion for class certification. Appellants presented five bases for commonality before the district court in their motion, and each basis relates to whether Defendants’ course of conduct, such as failing to provide adequate notice and removing or destroying personal property, raises a common question. Although the record contains voluminous declarations, photographs, and videos in support of a broad description of “sweeps,” Appellants notably do not point to a specific practice that applies uniformly to all proposed class members. Despite the broad allegations in their complaint, there is no evidence that every Appellant has experienced the same challenged practice or suffered the same injury due to the implementation of the MDARs or the WSDOT Guidelines. In fact, Appellants

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WILLIS V. CITY OF SEATTLE

themselves acknowledged that “each sweep is different.” We conclude that it was not an abuse of discretion for the district court to hold that an alleged practice affecting each of the Appellants was not discernable from the record and to deny Appellants’ class action certification accordingly.

We cannot agree with our dissenting colleague that Appellants’ motion for class certification raises a facial challenge to the MDARs or the WSDOT Guidelines as a basis for establishing commonality for purposes of Rule 23(a). “A facial challenge is an attack on a law itself as opposed to a particular application.” City of Los Angeles v. Patel, ___U.S. ___, ___, 135 S. Ct. 2443, 2449 (2015). Such challenges are considered the most difficult to mount successfully. See id. A facial challenge is a claim that a law or policy is unconstitutional in all of its applications. See id. at 2451. When assessing whether a law or policy meets this standard in the context of a Fourth Amendment challenge, a court considers only those applications of the law in which it actually authorizes conduct. See id.

Appellants articulated only the following five questions of fact and law in support of their commonality argument in their motion for class certification:

(1) whether Defendants have a practice and policy of seizing and destroying the personal property of people living outside without a warrant, probable cause, adequate notice, an opportunity to have a meaningful pre- or postdeprivation hearing, or an opportunity to retrieve vital personal property before its seizure or destruction; (2) whether Defendants’ policy and practice violates

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WILLIS V. CITY OF SEATTLE

9

Plaintiffs’ constitutional rights against unreasonable search and seizures under the U.S. Constitution; ([3]) whether Defendants’ custom, policy, or practice violates class members’ right to privacy under Article I, Section 7 of the Washington State Constitution; and ([4]) whether Defendants’ custom, policy, or practice violates class members’ constitutional rights to due process under the U.S. Constitution; and ([5]) whether Defendants’ custom, policy, or practice violates class members’ constitutional rights to due process under Article I, Section 3 of the Washington State Constitution.

None of these five questions of fact or law challenges a written law or policy as unconstitutional. The “practice and policy” to which these questions allude is Defendants’ alleged pattern of destroying personal property “with utter disregard of even their own regulations.”1 Appellants have not suggested that an attack on the regulations themselves supplies a common question of fact or law.

In making their commonality argument, Appellants also did not claim that Defendants’ policies are unconstitutional in

1 In their motion for class certification, Appellants claimed that “Defendants have conducted these sweeps sporadically, unpredictably, and with utter disregard of even their own regulations . . . . Defendants have failed to follow any consistent procedure . . . . Rather, Defendants frequently intentionally and summarily seize and/or destroy personal property and possessions within a targeted area, without a warrant or probable cause, without providing adequate and effective notice, without affording an opportunity to be heard, and without providing a meaningful opportunity for people to retrieve their belongings.”

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WILLIS V. CITY OF SEATTLE

all relevant applications, which is required for a facial challenge. See Patel, ___ U.S. at ___, 135 S. Ct. at 2451. On the contrary, Appellants acknowledge that Defendants’ allegedly unconstitutional “pattern or practice is a usual course of conduct, and the fact that Defendants may have occasionally deviated from that course does not defeat certification.”

Appellants themselves have dismissed the relevance of a facial challenge as a basis for commonality, stating that “[t]he City’s argument that Plaintiffs have not facially challenged Defendants’ policies or practices is irrelevant to class certification because Plaintiffs have shown that Defendants’ conduct places all unhoused persons in Seattle at risk.”

Because Appellants’ commonality argument before the district court rested upon extra-regulatory conduct, we decline to read Appellants’ argument as premised upon a facial challenge. We also decline to rewrite Appellants’ commonality argument for them to include a facial challenge. See Just Film, Inc. v. Buono, 847 F.3d 1108, 1115 (9th Cir. 2017) (“The party seeking class certification bears the burden of demonstrating that the class meets the requirements of Federal Rule of Civil Procedure 23.”). Doing so would run contrary to the fundamental principle that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. See Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008).

The dissent cobbles together statements from the “Factual Background” section of Appellants’ motion for class

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WILLIS V. CITY OF SEATTLE

11

certification to argue that Appellants adequately presented a facial challenge to the MDAR and WSDOT Guidelines as a basis for establishing commonality. We disagree. Appellants mention in passing in their motion that sweeps were conducted “pursuant to official policies,” and later that the policies “fail on their face to provide requisite procedural safeguards.” The Appellants’ Second Amended Complaint also makes general and conclusory statements about the Guidelines’ deficiencies, without arguing that a single policy would be unconstitutional in all its applications.2 But when Appellants actually provide their argument to the district court regarding why class members share common questions of law and fact, Appellants do not explain how any alleged facial deficiencies in the Guidelines raise such common questions, or how any such deficiencies caused class members to suffer the “same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Because it was not presented with a distinct argument regarding how facial deficiencies in the Guidelines raise questions of law or fact common to the class, the district court did not err in declining to rule on this issue when deciding the motion for class certification. Instead, it properly addressed arguments relating to facial challenges only when ruling on the Appellants’ motion for preliminary injunction, where such facial challenges were raised.

Even if the isolated statements that the dissent has plucked from the Appellants’ motion had been argued in the motion as a basis for commonality, Appellants’ claim would

2 The dissent claims that the Appellants argue that “the policy allowing the destruction of property valued at less than $100 cannot be carried out in a constitutional manner.” No such cognizable argument appears in the operative complaint.

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WILLIS V. CITY OF SEATTLE

not present a cognizable facial challenge. Appellants’ arguments primarily focus on how the Guidelines give employees too much discretion, rather than identify how any alleged deficiency resulted in a common injury to the constitutional or statutory rights of all class members. Under Dukes, such challenges do not “provide the commonality needed for a class action.” Id. at 355.

Based upon Appellants’ failure to proffer sufficient evidence of a practice that was common to the claims of the proposed class members or lodge a facial challenge in satisfaction of the Rule 23(a) commonality requirement, we readily conclude that the district court’s refusal to grant class certification was not an abuse of discretion.

AFFIRMED.

CHRISTEN, Circuit Judge, concurring in part and dissenting in part:
Under the circumstances of this case, I agree that plaintiffs failed to show their as-applied claims pose common questions for purposes of Fed. R. Civ. P. 23(a), but plaintiffs also presented distinct facial challenges to defendants’ camp cleanup policies and the order denying class certification did not address them. My colleagues respond to plaintiffs’ facial challenges in two ways. First, they decide plaintiffs failed to present any. Then, they pivot and acknowledge plaintiffs raised facial arguments but decide that the district court was not required to rule on them. Because the record plainly shows that plaintiffs brought facial challenges, and because

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13

I know of no authority allowing the claims to be overlooked, I respectfully dissent.

* * *

Plaintiffs filed a motion for class certification and a motion for preliminary injunction. Plaintiffs based both motions on the allegations found in the Second Amended Complaint. The motions were argued simultaneously and the district court issued one order. The transcript of the hearing, as well as the district court’s order, confirm that the court recognized plaintiffs presented facial challenges.

The written order denying plaintiffs’ motions discussed and summarized plaintiffs’ facial constitutional claims:

Plaintiffs contend they are likely to succeed on the merits of their Fourth and Fourteenth Amendment claims for two reasons. Plaintiffs first argue the City’s Updated Encampment Rules are unconstitutional on their face. To support this argument, Plaintiffs contend the Updated Encampment Rules’ definitions of “personal property,” and “hazardous items,” violate the Fourth Amendment. Plaintiffs also contend the Updated Encampment Rules are facially unconstitutional under the Fourteenth Amendment because their definitions of “obstruction,” “immediate hazard,” and the creation of “emphasis areas,” essentially do away with pre-seizure notice and provide City personnel with too much discretion.

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(emphasis added). The district court inquired about these claims at the hearing on plaintiffs’ motions. The district court stated, “plaintiffs’ concern is . . . based on the city’s policies,” correctly observed that “Plaintiffs are basically raising an official challenge to the MDARs,” and asked the City why that claim was not “common to all the proposed class members here[.]” Leaving no doubt that facial challenges were on the table, the City conceded “a facial challenge would be common[,]” but urged the district court to deny plaintiffs’ motion for class certification because there was “really essentially no merit to the facial challenge” plaintiffs asserted. The City was right to concede the existence of the facial claims, but it badly missed the mark when it conflated the merits of the facial claims with whether the claims presented a common question. Whether a facial challenge is meritorious is the answer to a common question; it is not a reason to deny class certification. See Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013) (“Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.”).

A cursory review of plaintiffs’ motion for class certification shows that they did indeed articulate distinct facial challenges to defendants’ cleanup policies. Plaintiffs argued that the City’s “official policies fail on their face to provide requisite procedural safeguards to ensure that the rights of people living outside are not violated when a sweep is conducted[,]” and “Defendants’ policies contemplate on their face arbitrary enforcement and unbridled employee discretion, and lack meaningful oversight and enforcement mechanisms.” (emphasis added). The majority initially asserts that plaintiffs did not raise a facial challenge at all.

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Majority Opinion at 8 (“We cannot agree . . . that Appellants’ motion for class certification raises a facial challenge . . . .”).1

After denying that plaintiffs raised facial challenges, the majority retreats, acknowledges that plaintiffs did raise such claims, but decides the court was not obliged to rule on them. The majority contends that plaintiffs’ facial arguments were made in the wrong section of plaintiffs’ motions, or were made only in passing. Majority Opinion at 10–11. The salient point is that the district court correctly recognized that plaintiffs raised facial challenges in the operative complaint and in connection with their motion for class certification. Despite the majority’s attempts to wave these arguments away, I know of no rule permitting them to be brushed aside without a ruling.

The majority cites City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015), and concludes that plaintiffs must not have raised facial challenges because they “did not claim Defendants’ policies are unconstitutional in all relevant applications, [as] required for a facial challenge.” Majority Opinion at 9–10. But the complaint alleged precisely that. Specifically, plaintiffs alleged “[e]ven if Defendants’ sweeps were conducted fully in accordance with both the MDAR and the WSDOT Guidelines, they would still be unconstitutional.” (emphasis added). There is no way to read this allegation as anything other than a contention that defendants’ policies are unconstitutional no matter how they are applied. In the

1 The majority also argues that “[n]one of the[] five questions of fact or law [presented by plaintiffs] challenges a written law or policy as unconstitutional.” Majority Opinion at 8–9. This is puzzling, as the majority makes this assertion after enumerating several practices, policies, and customs challenged by plaintiffs as unconstitutional.

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language of Patel, this was an unambiguous assertion that defendants’ policies are unconstitutional “in all of [their] applications.” Patel, 135 S. Ct. at 2451 (quotation marks omitted). Plaintiffs were not required to incant magic words, and the pleading undoubtedly gave defendants fair notice of plaintiffs’ facial claims.

Plaintiffs’ facial challenges were not afterthoughts raised for the first time in their motions for class certification or preliminary injunction; they were included in the operative complaint. See Updike v. Multnomah Cty., 870 F.3d 939, 952 (9th Cir. 2017) (observing that Fed. R. Civ. P. 8(a)(2) requires only that “allegations in the complaint give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests” (internal quotation marks omitted)). Plaintiffs’ Second Amended Complaint includes the allegation that defendants’ policy allowing the destruction of property valued at less than $100 cannot be carried out in a constitutional manner—i.e., the policy is unconstitutional in all relevant applications. See Brief of Civil Procedure Professors as Amici Curiae In Support of PlaintiffsAppellants, at 7 (citing Mathews v. Eldridge, 424 U.S. 319 (1976), and observing “due process challenges to government policies . . . lend themselves to class certification because they often raise generic questions about how system-wide procedures impact a group of people who depend on those procedures for relief”). Plaintiffs’ due process argument is certainly colorable. Whether plaintiffs could ultimately prevail is beside the point. Rule 23(a)’s commonality inquiry is concerned with whether the facial validity of the policy raises a common question that can be resolved in one stroke, and this one plainly can.

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The majority contends that “[n]o such cognizable argument [concerning the $100 policy] appears in the operative complaint.” Majority Opinion at 11 n.2. Unquestionably, it does. In a section of the complaint entitled “Defendants’ Official Policies Governing Sweeps are Unconstitutional,” the complaint identifies a laundry list of policies that plaintiffs contend violate due process even if “conducted fully in accordance with” defendants’ official policies. In a subsection entitled “Defendants’ Official Policies Fail to Provide for Adequate and Effective Notice,” the complaint describes how the notice requirements of the MDAR and WSDOT Guidelines were constitutionally deficient. There, the complaint specifically identifies the policy allowing for the destruction of property valued at less than $100 as an exception to the guidelines’ notice requirements that “on [its] face make[s] it impossible for people living outside to safely live and store their belongings without constant risk that everything will be taken from them with no notice.”

The majority takes issue with plaintiffs’ contention that defendants’ policies grant too much discretion to employees tasked with clearing camps. But it does not adequately explain why a facial challenge alleging that public officials have been given too much discretion cannot supply a common question for purposes of Rule 23(a). See Brief of Civil Procedure Professors as Amici Curiae In Support of Plaintiffs-Appellants, at 9 (observing that plaintiffs contend defendants’ policies are impermissibly vague and opining that this case “raises system-wide questions about the constitutionality of a government policy, [and] is precisely the kind of suit that will allow the court to answer . . . claims ‘in one stroke’”). The majority relies on a flawed extension of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).

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Majority Opinion at 11–12. In Dukes, the plaintiffs did not allege the corporate policy granted managers too much discretion; they alleged that store managers discriminated on the basis of sex. 564 U.S. at 343–45. Their attempt to certify a class failed because there was no common issue regarding the managers’ individual decisions. Id. at 349–55. Here, plaintiffs do not allege the discriminatory application of a discretionary policy; they allege—among other things—that defendants’ official policy fails to satisfy due process regardless of how it is applied. Plaintiffs’ contentions were not so indistinct that they did not warrant consideration.

Rule 23 provides a “means of vindicating the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Benjamin Kaplan, A Prefatory Note, 10 B.C. Indus. & Com. L. Rev. 497, 497 (1969). It provides a critical procedural device for important cases like this one. Among other allegations, plaintiffs argue their due process rights were violated by a written policy providing that seized property did not need to be stored if it was valued at less than $100. Plaintiffs’ asapplied challenges illustrated this policy’s real world consequences, including examples in which putative class members were left without their identification or medication—including insulin. It is not hard to imagine the Catch-22 nightmare of being denied life-sustaining benefits for failure to show proof of identification, and being unable to obtain replacement identification because all of one’s worldly possessions were lost in a camp sweep.

In recent years, class action litigation has more often been initiated to vindicate large numbers of small-dollar consumer claims, but as the amici curiae civil procedure professors explain, courts have long recognized that facial constitutional

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19

challenges present the archetypal common question for class certification. See Brief of Civil Procedure Professors as Amici Curiae In Support of Plaintiffs-Appellants, at 7–9. Where a proposed class faces substantial harm caused by a governmental policy, Rule 23 can provide an effective vehicle for determining whether the policy, on its face, violates the federal Constitution. Such facts present issues ripe for class action resolution because they can “resolve an issue that is central to the validity of each one of the claims in one stroke.” See Dukes, 564 U.S. at 350.

The district court concluded that plaintiffs were not likely to succeed on the merits of their facial challenges and denied plaintiffs’ motions in an order that focused entirely on their failure to offer evidence of the common practices they challenged on an as-applied basis. The court did not rule on the antecedent question posed by plaintiffs’ motion to certify the proposed class: whether plaintiffs’ facial claims presented common questions for Rule 23(a) purposes. Because the order denying class certification made no mention of plaintiffs’ facial claims, I would remand for the district court to consider this issue in the first instance. See Edwards v. First Am. Corp., 798 F.3d 1172, 1177 (9th Cir. 2015) (legal errors in class certification orders are “per se” abuses of discretion).

 </s> Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 1 of 52

1

THE HONORABLE RICARDO S. MARTINEZ

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 LISA HOOPER, BRANDIE OSBORNE,

KAYLA WILLIS, REAVY WASHINGTON, No. 2:17-cv-00077-RSM

10 individually and on behalf of a class of

similarly situated individuals; THE

SECOND AMENDED COMPLAINT—

11 EPISCOPAL DIOCESE OF OLYMPIA;

CLASS ACTION FOR DECLARATORY

TRINITY PARISH OF SEATTLE; REAL

AND INJUNCTIVE RELIEF

12 CHANGE,

13

Plaintiffs,

14

vs.

15 CITY OF SEATTLE, WASHINGTON; WASHINGTON STATE DEPARTMENT OF
16 TRANSPORTATION; ROGER MILLAR, SECRETARY OF TRANSPORTATION FOR
17 WSDOT, in his official capacity,

18

Defendants.

19

20

21

22

23

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 2 of 52

1

I. INTRODUCTION

2

1. Plaintiffs Lisa Hooper, Brandie Osborne, Kayla Willis, Reavy Washington, the

3 Episcopal Diocese of Olympia, Trinity Parish of Seattle, and Real Change, by and through

4 counsel, bring this class action challenging the ongoing policy and practice of the City of Seattle

5 (the “City”) and the Washington State Department of Transportation (“WSDOT”) (together the

6 “Defendants”) of seizing and destroying the property of people who are living outside without

7 adequate and effective notice, an opportunity to be heard, or a meaningful way to reclaim any

8 property that was not destroyed. This practice is commonly referred to as “sweeping” or

9

“sweeps.”1

10

2. Each year, more and more City of Seattle residents are forced to live outside on

11 public property. According to the Seattle/King County Coalition on Homelessness

12 (“SKCCH”), on a given night in January 2016, more than 2,942 Seattle residents were found

13 trying to survive one of the coldest months of the year outdoors. Of this population,

14 approximately 900 had a vehicle to sleep in, leaving roughly 2,000 Seattle residents with no

15 shelter but what they could build for themselves or find in the form of existing structures, such

16 as under roadways. It is estimated that even more individuals are forced to live outside on

17 public property in 2017.

18

3. Pursuant to official policies and longstanding practice sanctioned by their

19 policymakers, Defendants have embarked upon a program of seizing and destroying the

20 property of people living outside, in a process referred to as “sweeps,” or “clean ups.”

21 Defendants conducted more than 1000 of these sweeps in the past two years alone.

22

4. These sweeps target Plaintiffs and the communities in which they live.

23

24

1 “Sweeping” or “sweeps” refers to Defendants’ act of removing and/or destroying the property of people

25

who live outside.

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 1 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 3 of 52

1

5. Pursuant to these policies and practices, Defendants remove and destroy

2 unhoused peoples’ property without a warrant, probable cause, adequate notice, an ability to be

3 heard, or a meaningful opportunity for people to retrieve their possessions.

4

6. Defendants’ actions deprive people living outside of personal belongings that

5 are critical to their survival, such as: clothing, tents, cooking utensils, and medication; important

6 personal possessions, such as identification documents; tools necessary for their profession; and

7 irreplaceable mementos, including family photographs and heirlooms.

8

7. For example, Plaintiff Lisa Hooper has suffered the loss of irreplaceable family

9 photos and mementoes, important legal paperwork, a mattress, clothing, and several shoes—

10 leaving her without a matching pair—because of previous sweeps conducted by Defendants

11 pursuant to a policy with no end in sight.

12

8. Plaintiff Brandie Osborne has also suffered the loss of medication, cooking

13 utensils, clothing, blankets, sleeping bags, and important documents like applications for work

14 and housing as well as medical paperwork.

15

9. Plaintiff Kayla Willis has suffered the loss of clothing, tents, blankets, and

16 cooking utensils.

17

10. Plaintiff Reavy Washington has suffered the loss of clothing, tents, a grill and

18 stove, kitchen utensils, tools, eye glasses, electronics, and jewelry.

19

11. Other individuals living outside have lost nearly everything they own but the

20 belongings on their back as a result of Defendants’ sweeps.

21

12. The consequences are devastating. Defendants’ conduct leaves an already

22 vulnerable population at imminent and significantly increased risk of harm from exposure and

23 want. It makes it more difficult for people living outside to break out of the cycle of

24 homelessness, as time they could spend working or looking for employment or taking care of

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 2 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 4 of 52

1 their affairs is by necessity spent instead on replacing essential items like identification and

2 bedding. It also makes it harder for people living outside to keep appointments for housing

3 programs and other services, especially when they lose legal papers and housing application

4 forms in sweeps, causing individuals to suffer additional delay in their ability to get housing

5 and other services. And it takes a substantial emotional toll.

6

13. Plaintiffs live in constant fear that all of their remaining possessions will be

7 seized by Defendants, who have publicly committed to not only continuing their on-going

8 policies and practices, but expanding their authority to engage in sweeps throughout the City

9 without notice.

10

14. Defendants’ policies and practices are not only unnecessarily cruel, they are also

11 illegal: they violate Plaintiffs’ (1) right to protection from unreasonable search and seizure

12 under the Fourth Amendment of the U.S. Constitution; (2) right to protection from invasion of

13 homes and privacy under Article I, Section 7 of the Washington State Constitution; (3) right to

14 procedural due process under the Fourteenth Amendment of the U.S. Constitution; and (4) right

15 to procedural due process under Article I, Section 3 of the Washington State Constitution.

16

15. Despite this pending litigation, Defendants have doubled down on their

17 unconstitutional actions and policies.

18

16. Rather than taking time to evaluate their policies and practices, or to provide

19 necessary training for their employees, Defendants have conducted numerous sweeps

20 throughout the City since this lawsuit was filed on January 19, 2017.

21

17. These sweeps include one on January 26, 2017, in which Defendants arrived at

22 Plaintiff Brandie Osborne’s home without any notice, and gave her 30 minutes to pack up

23 everything she owned. Defendants told Ms. Osborne that not only were they not required to

24 provide her any notice, but that any belongings she was not able to move immediately would

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 3 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 5 of 52

1 be considered garbage. As a result, Ms. Osborne lost even more of her property at the hands of

2 WSDOT and the City, such as clothing, food, tools, dishes, a fire pit and firewood, a tent, tarps,

3 blankets, and sleeping bags.

4

18. Defendants have conducted a number of other sweeps without providing

5 adequate or effective notice of the pending sweep since this litigation was filed. This has

6 included failing to conduct sweeps on the day and time they were posted, giving less than 72

7 hours’ notice prior to a sweep, providing conflicting forms of notice or information, posting

8 retroactive notice, and neglecting to provide any notice at all prior to a sweep.

9

19. During a number of the sweeps conducted after this lawsuit was filed,

10 Defendants also failed to provide notice regarding the storage of property and instead posted

11 notices that all property in the area was subject to destruction if not removed prior to the sweep.

12

20. During multiple sweeps, Defendants also destroyed property of unhoused

13 residents living outside by slashing tents and physically breaking belongings.

14

21. On January 31, 2017, the City proposed new rules that enable Defendants to

15 more frequently engage in sweeps, with greater discretion and fewer controls than provided for

16 by their previous official policies. The City drafted these proposed rules without seeking any

17 input from Plaintiffs or their counsel.

18

22. These new rules were ultimately adopted on March 15, 2017 and allegedly

19 implemented on April 3, 2017.

20

23. Defendants’ new rules, coupled with their repeated and ongoing conduct even

21 in the face of pending litigation demonstrates that they will continue to violate Plaintiffs’

22 constitutional rights unless and until a Court intervenes. Indeed, Defendants’ Replies in

23 Opposition to Plaintiffs’ Motion for a Temporary Restraining Order explicitly concede that “the

24 City does not contend that each and every clean-up over a multi-year period has been conducted

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 4 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 6 of 52

1 perfectly,” (pg. 18, City’s Opposition to Motion for Temporary Restraining Order and

2 Preliminary Injunction). Defendants further note that the City finds it “difficult to discern

3 whether a given item remaining on-site is trash or intended for future use,” (pg. 17, City’s

4 Opposition to Motion for Temporary Restraining Order and Preliminary Injunction) that

5 “Plaintiffs appear to have a fundamental disagreement with WSDOT and the City about what

6 is trash and what is property,” (pg. 13, WSDOT’s Opposition to Motion for Temporary

7 Restraining Order and Preliminary Injunction).

8

24. Additionally, WSDOT notes that it routinely disposes of “dirty clothing” and

9 “urine soaked or infested bedding, and moldy clothing.” (pg. 10 WSDOT’s Opposition to

10 Motion for Temporary Restraining Order and Preliminary Injunction), and that WSDOT threw

11 away items belonging to Ms. Osborne that included “wet, dirty clothes, [and] an old pan.” (pg.

12 8, WSDOT’s Opposition to Motion for Temporary Restraining Order and Preliminary

13 Injunction). The City has also clarified that it considers “an unorganized pile of bagged and

14 unbagged wet debris, kitchen and paper waste . . . refuse, without opening each closed bag,”

15 that it will not store “soaking wet fabrics,” that “the entire contents of a disorganized dry tent

16 littered with hypodermic needles, bedding and clothing would not be stored because it would

17 not be safe to handle soft objects with sharps in them,” and that “depending upon the condition

18 of the tent, it might be stored or it might disposed of.” (Declaration of C. Potter In Support of

19 City’s Opposition to Plaintiff’s Motion for Temporary Restraining Order at ¶ 19).

20

25. WSDOT has also stated that it routinely disposes of items including “bed bug

21 ridden wet mattresses, scrap metal parts from bicycles, . . . broken wicker baskets, broken milk

22 crates, moldy clothing, smashed corrugated boxes and box parts, soiled and ripped tarps, soiled

23 carpet remnants, ripped plastic sheets, wet clothing, wet tents, and plastic containers filled with

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 5 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 7 of 52

1 stagnant water.” (Declaration of L. Pascubillo In Support of WSDOT’s Response to Plaintiff’s

2 Motion for Temporary Restraining Order ¶ 5).

3

26. The fact that the belongings of Plaintiffs and others who are also unhoused are

4 not pristinely clean or brand new from the sporting goods store; that their clothing and bedding

5 are often wet from exposure to the elements (and may mold as a result); and that their cooking

6 utensils are old, their tents are tattered, and many items are broken or otherwise in poor

7 condition should not come as a surprise: they are, after all, living outside.

8

27. Defendants’ submissions in this case confirm what Plaintiffs have long known,

9 that Defendants have no respect for their property rights because they view these possessions

10 as nothing more than garbage. The City’s apparent concession that it has not conducted every

11 sweep “perfectly” is of little consolation to those who have lost their life’s possessions in a

12 process that systematically and routinely permits sweeps that result in the summary destruction

13 of personal property.

14

28. Plaintiffs seek a declaratory judgment that Defendants’ policy and practice of

15 confiscating and/or destroying the personal property of people living outside without a warrant,

16 probable cause, an opportunity to be heard, a meaningful opportunity to reclaim property,

17 and/or requisite procedural due process is unlawful under the federal and state constitutions.

18

29. Plaintiffs also seek appropriate injunctive relief enjoining Defendants’ use of

19 sweeps until Defendants adopt and implement procedures that respect Plaintiffs’ constitutional

20 rights.

21

30. If Defendants insist upon seizing and destroying personal property of unhoused

22 people living outside in Seattle, Plaintiffs—like all property owners in this country—have a

23 right to adequate and effective notice and an opportunity to be heard before their property is

24 taken by the government. These rights are not implicated by policies and procedures that

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 6 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 8 of 52

1 provide true “clean up” services, such as regularly scheduled garbage pickups from designated

2 garbage bins (like those provided to other City residents) that do not involve the seizure and

3 destruction of personal property.

4

31. Plaintiffs have no adequate remedy at law and are at imminent risk of subsequent

5 rights violations. Defendants know or should know that their actions violate the constitutional

6 rights of people living outside, but have made it clear they intend to continue the unlawful

7 conduct described herein.

8

II. JURISDICTION & VENUE

9

32. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

10 §§ 1331, and 1343(a)(3). Plaintiffs seek declaratory relief under 28 U.S.C. §§ 2201-2202.

11

33. This Court has supplemental jurisdiction over Plaintiffs’ claims for violation of

12 the Washington State Constitution pursuant to 28 U.S.C. § 1367. Venue is appropriate in this

13 District because all parties reside or are present in, and the causes of action occurred in the

14 Western District of Washington. 28 U.S.C. § 1391(b).

15

III. PARTIES

16 A. Individual Plaintiffs

17

34. Plaintiff Lisa Hooper is unhoused and lives outside in Seattle, Washington. Ms.

18 Hooper has lived outside for approximately two years, and maintains a home with her male

19 partner. Ms. Hooper and her partner will continue to live outside for the foreseeable future.

20

35. Defendants have conducted multiple sweeps where Ms. Hooper and her partner

21 live. Defendants have, on a number of occasions, conducted sweeps of the area without notice.

22 Ms. Hooper has had many of her possessions confiscated and/or destroyed during Defendants’

23 sweeps.

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 7 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 9 of 52

1

36. For example, during a sweep in May of 2015, Defendants gave Ms. Hooper

2 minimal to no notice, forcing her to scramble to pack up her entire home and quickly determine

3 which items were absolutely necessary for survival to take with her, and which she had to leave.

4 Defendants seized and/or destroyed the property Ms. Hooper was forced to leave behind,

5 including the only photos she had of her three daughters, her children’s baby teeth that she had

6 been saving for about 20 years, important legal paperwork, a mattress, clothing, matching shoes,

7 antibiotics, and a family Bible that had information on her family history going many

8 generations back, among other items.

9

37. Having to repeatedly and on short or no notice move all her belongings to avoid

10 their confiscation and destruction has imposed significant hardship upon Ms. Hooper and limits

11 her ability to be away from her property to deal with personal affairs for fear that the property

12 will have been seized by Defendants in her absence.

13

38. Defendants’ refusal to provide effective and adequate notice has left Ms. Hooper

14 with great uncertainty as to where it is safe to live and keep her belongings. For example, in

15 January 2017, WSDOT and City personnel conducted a sweep of the area where Ms. Hooper

16 and her partner live. Defendants posted no prior notice in the area, posting only a single notice

17 far north of where Ms. Hooper lived. WSDOT then cleared only part of the area the notice

18 described, and refused to provide information about whether and/or when the area she lived in

19 would be swept.

20

39. Ms. Hooper lives in constant fear that she will lose her home and everything she

21 owns in one of Defendants’ future sweeps.

22

40. Ms. Hooper is even more fearful now than when the original complaint was filed

23 that she will lose her home and everything she owns in one of Defendants’ future sweeps

24 without any notice. Defendants’ newly adopted rules enable the City to designate particular

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 8 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 10 of 52

1 areas that have been previously swept as “emphasis areas,” wherein camping is completely

2 prohibited and Defendants are not required to provide any notice before removing people and

3 their property from the area. Ms. Hooper’s home has been subject to sweeps repeatedly in the

4 past few months.

5

41. Plaintiff Brandie Osborne is unhoused and lives outside in Seattle, Washington.

6 For approximately one year and a half, Ms. Osborne resided up the hill from the intersection of

7 Dearborn Street and the ramp to I-5 North. Ms. Osborne has been forced to move from there

8 and a multiple other locations in the past few months as a result of Defendants’ sweeps. Ms.

9 Osborne will continue to live outside for the foreseeable future.

10

42. Defendants have conducted roughly four sweeps where Ms. Osborne lives.

11 Defendants have, on a number of occasions, conducted sweeps of the area without notice. Ms.

12 Osborne has had possessions confiscated and/or destroyed during these sweeps.

13

43. Because Ms. Osborne has had minimal to no notice of Defendants’ sweeps, she

14 has had to scramble to pack up her entire home and quickly determine which items were

15 absolutely necessary for survival to take with her, and which she had to leave. Defendants

16 seized and/or destroyed the property she was forced to leave behind, including important

17 personal property like tents, tarps, plywood, and landscaping tools; clothing, sleeping pads, and

18 blankets; a bike and Orca card, an EBT card, important paperwork like phone numbers and

19 business cards, applications for work and housing and medical paperwork as well as

20 medication; a Holy Bible, books, reading glasses, and hygiene items; pots and pans, a water

21 jug, dishes, and food items; a cell phone, flashlights, phone chargers and batteries, garbage

22 cans, and jewelry. Ms. Osborne’s tent was also damaged beyond repair after having to move it

23 so many times.

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 9 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 11 of 52

1

44. Having to repeatedly move all of her belongings to avoid their confiscation and

2 destruction has imposed significant hardship on Ms. Osborne, and limits her ability to be away

3 from her property to deal with personal affairs for fear that the property will have been seized

4 by Defendants in her absence.

5

45. Defendants’ refusal to provide effective and adequate notice has also left Ms.

6 Osborne with great uncertainty as to where it is safe to live and keep her belongings. For

7 example, in December of 2016, WSDOT provided notice of a sweep that would affect the area

8 where she lives. Ms. Osborne, with the assistance of her neighbors and volunteers, moved most

9 of her belongings. WSDOT then cleared only part of the area the notice described, not including

10 the area where Ms. Osborne lived, and refused to provide information about whether and/or

11 when the area she lived in would itself be swept.

12

46. Over the Martin Luther King holiday weekend in January 2017, Ms. Osborne

13 saw a notice that the location of her home could be swept on January 19, 2017, and was forced

14 to move her home again. When Ms. Osborne’s partner was moving their camp however, their

15 tent was taken. The only other individuals present on that day, aside from Ms. Osborne and her

16 partner, were employees and/or agents of WSDOT.

17

47. Just one week later, on January 26, 2017, WSDOT showed up again at Ms.

18 Osborne’s home, this time without providing any notice. WSDOT employees yelled at Ms.

19 Osborne outside her tent that she had 30 minutes to move everything she owned from the area;

20 anything she left behind would be considered garbage. Ms. Osborne replied that it was not

21 possible to move all of her property in 30 minutes, but was told that it did not matter. When

22 Ms. Osborne told WSDOT she never received notice that her home would be swept, she was

23 told that it did not matter, and that Defendants were not required to provide notice. Ms. Osborne

24 was able to secure help in moving a number of her belongings from a friends’ mother, but was

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 10 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 12 of 52

1 still forced to leave many of her possessions behind, including a bike, clothing, food, dishes

2 and tools, a fire pit and firewood, tent, tarps, blankets and sleeping bags. These items were

3 destroyed by WSDOT.

4

48. Ms. Osborne lives in constant fear that she will lose her home and everything

5 she owns in one of Defendants’ future sweeps.

6

49. Ms. Osborne is even more fearful now than when the original complaint was

7 filed that she will lose her home and everything she owns in one of Defendants’ future sweeps

8 without any notice. This is because of Defendants’ newly adopted rules enable the City to

9 designate particular areas that have been previously swept as “emphasis areas,” wherein

10 camping is completely prohibited and Defendants are not required to provide any notice before

11 removing people and their property from the area. Ms. Osborne’s home has been subject to

12 sweeps repeatedly in the past few months and she has had to move to another outdoor location

13 at least three times since this original complaint was filed.

14

50. Plaintiff Kayla Willis is unhoused and lives outside in Seattle, Washington. Ms.

15 Willis maintains a home with her male partner. Ms. Willis has lived outside for approximately

16 three years in the City. Ms. Willis and her partner will continue to live outside for the

17 foreseeable future.

18

51. Defendants have conducted approximately eight sweeps in locations where Ms.

19 Willis and her partner have lived. Defendants have, on a number of occasions, conducted

20 sweeps of the area without adequate notice. Ms. Willis has had many of her possessions

21 confiscated and/or destroyed during Defendants’ sweeps, including clothing, tents, blankets,

22 and cooking utensils.

23

52. Having to repeatedly and on short or inadequate notice move all her belongings

24 to avoid their confiscation and destruction has imposed significant hardship upon Ms. Willis.

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 11 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 13 of 52

1 For example, Ms. Willis has epilepsy, and the stress of having to pack everything she owns and

2 prepare for pending sweeps frequently triggers seizures. Ms. Willis and her partner also both

3 have disabilities that make it difficult to move all of their property, particularly with only a few

4 days notice or less.

5

53. Defendants’ refusal to provide effective and adequate notice has left Ms. Willis

6 with great uncertainty as to where it is safe to live and keep her belongings.

7

54. Ms. Willis lives in constant fear that she will lose her home and everything she

8 owns in one of Defendants’ future sweeps.

9

55. Plaintiff Reavy Washington is unhoused and lives outside in Seattle,

10 Washington. Mr. Washington has lived outside in Seattle on and off for approximately 8 years

11 and will continue to live outside for the foreseeable future.

12

56. Defendants have conducted multiple sweeps where Mr. Washington lives. In

13 the past 2 months alone, Defendants have conducted 3 sweeps in the area where Mr.

14 Washington has lived. Defendants have, on at least one occasion, conducted a sweep of the

15 area without adequate notice. Mr. Washington has had many of his possessions confiscated

16 and/or destroyed during Defendants’ sweeps.

17

57. For example, during a sweep in March of 2017, Mr. Washington was unable to

18 move his tent and all of his belongings before the sweep. Mr. Washington watched Defendants

19 physically destroy his tent, with the belongings he was unable to move himself inside, piling it

20 into a heap for the dumpster. The property Defendants destroyed included Mr. Washington’s

21 grill, stove, boom-boxes, home docking station stereo, DVD player and DVDs, clothing,

22 including work gear, tools, tents, bed, kitchen utensils, jewelry, and other miscellaneous items.

23

58. Having to repeatedly (and on short or no notice) move all his belongings to avoid

24 having them confiscated and destroyed by Defendants has imposed significant hardship upon

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 12 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 14 of 52

1 Mr. Washington and has limited his ability to be away from his property to deal with personal

2 affairs for fear that the property will have been seized by Defendants in his absence.

3

59. Mr. Washington is temporarily residing in an area that the City has sanctioned

4 for camping, however he remains subject to Defendants’ ongoing sweeps and fears building his

5 home or storing his belongings elsewhere on public property because of Defendants’ ongoing

6 sweeps. Mr. Washington was not residing in an area that the City has sanctioned for camping

7 until recently. In addition to the sweeps that Mr. Washington has already been subject to, Mr.

8 Washington will continue to be subject to Defendants’ sweeps to the extent that the City

9 changes the status or location of sanctioned encampments, to the extent that Mr. Washington is

10 compelled to live somewhere else, or to the extent Mr. Washington decides to move to a

11 different location on public property.

12

60. Plaintiffs bring this suit on behalf of themselves and all other similarly situated

13

unhoused persons who live outside.2

14 B. Organizational Plaintiffs

15

61. Plaintiff Diocese of Olympia is a diocese of The Episcopal Church in

16 Washington State. It is comprised of “more than 26,000 Episcopalians in more than 100

17 worshiping communities throughout Western Washington.” Diocese congregations include

18 numerous members who are unhoused. The mission of the Diocese of Olympia is to “build

19 strong communities of faith.” To accomplish its mission, among other things, the Diocese of

20 Olympia assists congregations with their development and work, including strengthening the

21 stewardship of available resources. For example, the Diocese offers training, grants, resources,

22 and other programs to its member churches.

23

2 “Unhoused” refers to all individuals who lack fixed, stable, or adequate shelter or housing. While the

24

term “homeless” is often utilized to refer to this population, we use the term “unhoused” because people

who lack permanent or stable housing still have homes in which they sleep and go about their private

25

affairs.

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 13 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 15 of 52

1

62. There are a number of churches in the City of Seattle that are members of the

2 Episcopal Diocese, including St. Luke’s Episcopal Church and Trinity Parish of Seattle. Many

3 of these churches, as an integral part of their mission and ministry, provide services to unhoused

4 people in Seattle.

5

63. For example, St. Luke’s Episcopal Church in Ballard operates a Meals Ministry

6 called Edible Hope, wherein the church and its congregation serve a hot breakfast five days a

7 week to approximately 150-180 people each day, 90 to 95 percent of whom are homeless. The

8 church also co-sponsors a program called the Bridge Drop In which offers a number of drop in

9 services to unhoused individuals, including counseling, and stations for people to charge their

10 electronics, and operates a shelter on site.

11

64. The confiscation and destruction of the belongings of people living outside has

12 affected the church’s operation in a number of ways. Since Defendants have increased their

13 use of sweeps, the church has had significantly more unhoused people needing its meal and

14 Bridge Drop In services. This increased demand has put additional burden on the church’s

15 facilities, and required significant additional church resources. The church is also affected by

16 Defendants’ actions through its membership: approximately 20 percent of the church’s

17 congregation is unhoused.

18

65. Plaintiff Trinity Parish of Seattle is also a member of the Diocese of Olympia.

19 As a part of its mission, Trinity Parish offers a number of services for unhoused individuals in

20 Seattle, including a thrift shop in First Hill.

21

66. Trinity Parish operates the Thrift Shop, which receives donations from

22 community members and also purchases many of the items it sells and/or gives away, as well

23 as contracts with other entities to meet the needs of the Thrift shop’s clientele. In addition to

24 selling items, the Thrift Shop operates a voucher program for the store wherein people can get

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 14 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 16 of 52

1 clothing and other necessities they might need, like blankets, coats, sleeping bags, and socks to

2 survive the cold weather for free. Unhoused residents who live outside throughout the City rely

3 upon the Thrift Shop to meet their basic needs. The Thrift Shop hands out approximately 80 to

4 100 vouchers per week to individuals, many of whom are unhoused and living outside. In

5 recent years, it has been more difficult for the Thrift Shop to keep up with the number of

6 individuals who rely on it, and the Thrift Shop frequently runs low or is unable to keep up with

7 the items many unhoused community residents rely upon, such as blankets, sleeping bags, and

8 socks. The demand for these types of items has increased in tandem with the City and

9 WSDOT’s increased used of sweeps. The Thrift Shop has seen numerous individuals who have

10 come in over the last couple of years who have lost everything as a result of Defendants’

11 sweeps. The Thrift Shop can occasionally provide emergency vouchers for individuals, or

12 clothing items and necessities, but is often unable to meet the increased demand for such items.

13 This strain on resources is made all the more difficult by the fact that the items that the Thrift

14 Shop is able to provide to unhoused individuals are frequently seized and destroyed by

15 Defendants. The Thrift Shop has had countless individuals return to their shop after having been

16 provided with clothing or other items who say they have lost everything in a sweep.

17

67. Plaintiff Real Change exists to provide opportunity and a voice for low-income

18 and unhoused people while taking action for economic, social and racial justice. Tim Harris

19 founded Real Change in 1994 and has served as its director since. Real Change’s mission is to

20 offer immediate employment options for the poor and unhoused and challenge the structures

21 that create poverty. Real Change publishes a weekly newspaper of the same name that provides

22 employment to about 800 poor and unhoused people annually, who sell the papers throughout

23 the greater Seattle area. At any given time, about half of Real Change’s vendors are unhoused,

24 and one-third of Real Change’s vendors live outside, many in greenbelts and other

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 15 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 17 of 52

1 encampments throughout the City. The employment that Real Change provides to unhoused

2 people, including those living outside, gives them the income they need to buy food, medicines,

3 clothes, sleeping bags, tents, and other necessaries.

4

68. Many of the unhoused vendors living outside who work for Real Change have

5 been victimized by Defendants’ sweeps, which have seized and destroyed valuables like

6 sleeping bags, medicines, and clothing—items that were purchased with the income they earned

7 as Real Change newspaper vendors. City and WSDOT employees have also seized and

8 destroyed irreplaceable mementos and photographs belonging to Real Change vendors,

9 essential identification papers, and the Real Change newspapers that provide the basis of their

10 income.

11

69. Defendants’ actions have severely disrupted the lives of Real Change vendors,

12 who are unable to sell papers and earn an income after their property is seized and destroyed

13 because they must instead devote their time to replacing lost articles. As a result, some vendors

14 have become unable to work for Real Change, which reduces the organization’s presence on

15 the streets and negatively impacts its fulfillment of its mission, and deprives the vendors of

16 much needed income.

17

70. To allay the disruption and dislocation that Real Change vendors have suffered

18 and will continue to suffer as a result of Defendants’ sweeps, Real Change staff collects

19 replacement sleeping bags, coats, and other necessities to give to those Real Change vendors

20 whose property has been seized by Defendants. Real Change staff also helps those impacted

21 by the sweeps by connecting them to social service organizations that can help them replace

22 lost identification and other essential paperwork. Real Change also assists its unhoused vendors

23 living outside who are caught up in sweeps by providing them access to community space where

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 16 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 18 of 52

1 they receive emotional and physical support from other vendors, and to computers where they

2 can begin the process of replacing their identification and other documents.

3

71. Real Change has been impacted by Defendants’ actions both by and through its

4 vendors and because it has had to divert organizational resources as a result of Defendants’

5 sweeps.

6 C. Defendants

7

72. Defendant City of Seattle is a political subdivision and municipal corporation

8 organized under the laws of the State of Washington. The City is a legal entity with the capacity

9 to sue and be sued. The City of Seattle is sued in its own right and on the basis of the acts or

10 omissions of its officials, agents, and employees who were following the City’s policies.

11

73. Defendant Washington State Department of Transportation is an agency and

12 instrumentality of the State of Washington.

13

74. Defendant Roger Millar is the Secretary of Transportation for WSDOT.

14 Defendant Millar is responsible for implementing and carrying out WSDOT’s programs and

15 policies and is joined to this action in his official capacity only.

16

IV. CLASS ACTION ALLEGATIONS

17

75. Pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), the named Plaintiffs bring this

18 action individually and on behalf of all other persons similarly situated. The proposed Plaintiff

19 Class consists of

20

All unhoused persons who live outside within the City of Seattle, Washington and

who keep their belongings on public property.

21 76. The requirements of Rule 23(a) are met because the members of the proposed

22 Plaintiff Class are so numerous that joinder is impracticable; there are questions of law and fact

23 common to all members of the proposed Plaintiff Class; the claims of the named Plaintiffs are

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 17 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 19 of 52

1 typical of those of the proposed class members; and the named Plaintiffs will fairly and

2 adequately protect the interests of the proposed Plaintiff Class.

3

77. The defined class is so numerous that joinder of all plaintiffs is impracticable.

4 While it is impossible to know the exact number of people living outside in the City of Seattle,

5 SKCCH found that on a given night, in January 2016, at least 2,000 individuals were sleeping

6 outside within the City limits. Even more individuals cycle through emergency and temporary

7 shelters and may find themselves temporarily living outside. Further, in part due to Defendants’

8 practices and policies, the population of people living outside is transient, making it difficult to

9 find and identify all class members individually.

10

78. There are questions of law and fact common to the class. These include:

11

a. Whether Defendants have a practice and policy of seizing and destroying the

12

personal property of people living outside without a warrant, probable cause,

13

adequate notice, an opportunity to have a meaningful pre- or post-deprivation

14

hearing, or an opportunity to retrieve vital personal property before its seizure

15

or destruction;

16

b. Whether Defendants’ custom, policy, or practice violates Plaintiffs’

17

constitutional rights against unreasonable search and seizures under the Fourth

18

Amendment of the U.S. Constitution;

19

c. Whether Defendants’ custom, policy, or practice violates class members’

20

right to privacy under Article I, Section 7 of the Washington State Constitution;

21

d. Whether Defendants’ custom, policy, or practice violates class members’

22

constitutional rights to procedural due process under the Fourteenth Amendment

23

of U.S. Constitution; and

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 18 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 20 of 52

1

e. Whether Defendants’ custom, policy, or practice violates class members’

2

constitutional rights to procedural due process under Article I, Section 3 of the

3

Washington State Constitution.

4

79. The claims of the named Plaintiffs are typical of the claims of the Class. The

5 named Plaintiffs’ claims arise from the same conduct—Defendants’ sweeps—that gives rise to

6 the absent members’ claims, and the declaratory and injunctive relief requested applies equally

7 to all members of the Class.

8

80. The named Plaintiffs will fairly and adequately protect the interests of the Class.

9 Plaintiffs seek to ensure that Defendants respect the constitutional rights of all people who live

10 outside and/or maintain their belongings on public property. The relief they seek will benefit

11 all members of the class. The named Plaintiffs have no interests antagonistic to the interests of

12 the Class.

13

81. Plaintiffs are represented by the ACLU of Washington, which has extensive

14 experience in civil-rights and class-action litigation and has sufficient resources to diligently

15 prosecute the claims of the class. Plaintiffs are also represented by the law firm of Corr Cronin

16 Michelson Baumgardner Fogg & Moore LLP.

17

82. Class certification is proper under Rule 23(b)(2). Defendants have acted in an

18 unlawful manner generally applicable to all proposed Plaintiff Class members by conducting

19 sweeps of areas where people living outside reside without a warrant, probable cause, adequate

20 and effective notice, an opportunity to be heard, or a meaningful opportunity to retrieve

21 belongings. Defendants’ unlawful acts have caused irreparable injury to Plaintiffs and the Class

22 including but not limited to the loss of property and emotional damage, and placed Plaintiffs

23 and the Class at imminent risk of further such injury. Injunctive and declaratory relief with

24 respect to the entire class is therefore appropriate.

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 19 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 21 of 52

1

V. FACTUAL ALLEGATIONS

2 A. The City’s Homeless Population

3

83. On November 2, 2015, the City of Seattle Mayor, Edward Murray, declared a

4 State of Emergency (“Declaration”) on homelessness, seeking outside assistance to deal with

5 the alarming number of Seattle residents living without fixed, regular, or adequate housing.

6 Since the Mayor’s Declaration, the number of people living outside in the City has only

7 increased.

8

84. On January 29, 2016, SKCCH counted approximately 2,942 Seattle residents

9 sleeping and living outside. An estimated 914 of these individuals were found trying to survive

10 the harsh January weather in a car or truck. Shelter for the remaining 2,028 consisted of that

11 which they built for themselves or could find in the form of existing structures such as under

12 roadways. These numbers are always assumed to be an undercount, as they do not include

13 those who have taken great care to stay out of sight, as well those living in encampments

14 SKCCH deemed unsuitable for volunteers to count and other spaces volunteers simply did not

15 get to.

16

85. The numbers of unhoused individuals and Seattle residents sleeping and living

17 outside are expected to be even higher in 2017. Another count was conducted on January 27,

18 2017, however the results of this count will not be released until the spring.

19

86. Unhoused Seattle residents who live outside have homes. They look different

20 than brick and mortar houses but serve the same purposes. They are often made of tents, tarps,

21 blankets, poles, and other materials to create safe, dry, insulated, and private shelter. And, like

22 everyone else’s homes, they contain most if not all of the owner’s possessions. These

23 belongings are often critical to survival or of particular psychological value, including

24 medication, hearing aids, respirators, wheelchairs, and canes; blankets, a sleeping bag, or

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 20 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 22 of 52

1 clothing to stay warm; tents or tarps to provide shelter; cookware, eating utensils, and food;

2 identification, immigration, or court documents; bikes or other modes of transportation; work

3 tools; schoolbooks and materials; and family photos and mementos.

4

87. People living outside frequently build their homes on public property and in

5 areas that provide some shelter from the elements, such as under bridges or roadways, and offer

6 some privacy from the public to keep themselves and their possessions safe. Many live near

7 and among other people, in communities, much as those who live in houses do. These

8 communities (often referred to as encampments) offer an increased sense of safety, community,

9 and stability. In fact, individuals living outside frequently stay in their place of residency for

10 many months, or even years.

11

88. These communities also provide the unhoused with a place to leave their

12 belongings while they go about their daily lives. Like all members of society, people living

13 outside have personal and business affairs to attend to during the day, including working or

14 searching for employment; attending school; visiting lawyers, doctors, social workers, or other

15 service providers; and obtaining food, clean water, and other necessities of survival. Having a

16 stable place to live and store belongings makes it easier for people living outside to find a job

17 and obtain employment, and meet with service providers to take the requisite steps to secure

18 more permanent housing.

19

89. Like all people, those living outside also generate waste and garbage. The City

20 provides containers for disposal, regularly scheduled garbage pickup, and a sewer system for

21 those living in houses, but people living outside often have no option other than to place their

22 garbage near their homes. In areas where multiple people live, this garbage accumulates more

23 quickly. Many residents try to keep the area they live clean—including keeping their garbage

24 in discreet piles away from their homes, or disposing of it in garbage bins or cans they are able

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 21 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 23 of 52

1 to secure. Defendants have taken these items during their sweeps. Residents have additionally

2 asked the City for assistance in these areas—requesting garbage pick-up and assistance in

3 dealing with vermin—to no avail.

4

B. Defendants Have An Ongoing Policy and Practice of Sweeping Unhoused People

and Their Possessions from Public Property

5 90. As an integral part of its strategy to address homelessness, Defendants have a

6 longstanding and ongoing policy and practice of conducting sweeps of people living outside.

7 Defendants often refer to this conduct as “cleanups” of “unauthorized,” “unsanctioned,” or

8 “illegal” encampments. Defendants claim the sweeps are necessary to ensure that public

9 property is used as it was intended to be used, and/or that sweeps are necessary for the public

10 health and safety of both Seattle’s housed and unhoused residents. Defendants have

11 additionally asserted that these sweeps will help connect people living outside with the services

12 they need to get off the streets.

13 91. The reality is that these sweeps are conducted in a manner that violates

14 Plaintiffs’ constitutional rights and causes them irreparable harm.

15 92. Defendants’ sweeps target only areas in which unhoused people have built their

16 homes and maintain their possessions, not any public property where garbage, waste, or

17 hazardous materials have accumulated.

18 93. In fact, housed Seattle residents are encouraged to report unauthorized

19 encampments to the City, either online, via phone, or through the City’s “Find It, Fix It” phone

20 app. WSDOT additionally receives and responds to complaints regarding use of its public

21 property by unhoused individuals.

22 94. Defendants are deeply committed to conducting these sweeps, sharply

23 increasing the number of sweeps conducted in the last several years. In 2012, Defendants

24 conducted 80 sweeps of people living outside and their belongings; in 2014, Defendants

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 22 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 24 of 52

1 conducted 351 sweeps, exceeding any prior year on record. Defendants’ use of sweeps has

2 only continued to grow—in 2015, Defendants conducted more than 500 sweeps. Since the

3 City’s Declaration on November 2, 2015, Defendants have conducted approximately 600

4 sweeps, averaging nearly eleven a week. Defendants have conducted numerous sweeps since

5 this lawsuit was filed.

6

95. Defendants have devoted significant money, resources, and time to planning and

7 conducting these sweeps. Approximately one third of the more than $7 million the City secured

8 as a result of its State of Emergency Declaration was spent removing the homes of people living

9 outside and seizing and destroying their property. WSDOT has also devoted considerable

10 resources on sweeps, noting it spends approximately $250,000 a year removing unhoused

11 people’s property in recent years and calling its activities “evictions.”

12

96. The sweeps are carried out by the City and/or WSDOT personnel, overseen by

13 City and/or WSDOT personnel, and conducted pursuant to policies approved by Defendants’

14 most senior decision makers.

15 C. Defendants’ Official Policies Governing Sweeps are Unconstitutional

16

97. In 2008, shortly after a WSDOT contractor killed a man with a brush cleaning

17 tractor during a sweep, Defendants adopted official policies and guidelines to govern sweeps

18 of areas where people live outside on public property. The City promulgated the Multi-

19 Departmental Administrative Rules 08-01 (“MDAR”), and WSDOT adopted the “Guidelines

20 to Address Illegal Encampments” (“WSDOT Guidelines”).

21

98. Both the MDAR and the WSDOT Guidelines are still in effect and constitute

22 Defendants’ only known official published policies pertaining directly to sweeps.

23

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 23 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 25 of 52

1

99. Although Defendants may have modified some of their regulations, these

2 modifications have not been formally adopted, are not enforceable, and are subject to

3 inconsistent implementation at best.

4

100. Although the MDAR and WSDOT Guidelines purport to offer more procedural

5 safeguards than previously existed, they were largely intended to address the patchwork system

6 of rules and agencies previously responsible for the sweeps, and do not ensure that sweeps are

7 conducted in compliance with the constitution.

8

101. Even if Defendants’ sweeps were conducted fully in accordance with both the

9 MDAR and the WSDOT Guidelines, they would still be unconstitutional.

10

1. Defendants’ Official Policies Fail to Provide for Adequate and Effective

Notice

11 102. Both the MDAR and the WSDOT Guidelines lack sufficient requirements for

12 notice to protect the rights of unhoused residents living outside in Seattle. Although both

13 require 72-hour notice prior to the removal of property and storage of such property for 60 days

14 (MDAR) or 70 days (WSDOT Guidelines), the requirements are so filled with exceptions and

15 exclusions as to make them meaningless. The requirements exempt many, if not most, people

16 living outside from even the most minimal of notice protections.

17 103. For example, the notice requirements under the MDAR apply only to

18 “encampments,” defined as three or more or more unauthorized structures within an identifiable

19 area or within 300 feet of another encampment. This means that under its own rules, the City

20 does not have to provide any notice to individuals camping alone or in pairs or to those who do

21 not live in structures (like tents or lean-tos) before seizing and destroying all of their

22 possessions.

23 104. The notice requirements of the MDAR additionally do not apply to “recurring

24 encampments,” which are sites where an encampment has been observed three or more times

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 24 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 26 of 52

1 within any 60 day period. This exception essentially excludes all long-term encampments from

2 any notice requirement before all of the residents’ property is seized and destroyed, as long as

3 notice had at some point since 2008 been posted for the encampment. This exception applies

4 even if none of the current residents lived there within the prior 60 days, or were otherwise

5 unaware that a notice for the area had been posted at some point within the last 8 years.

6

105. In these situations, the City’s own written policy also does not require it to

7 provide any storage of any property seized during the sweep unless the property has the name

8 of the owner on it, and is valued at over $100. The determination of value is made on the spot

9 by Defendants’ employees and is not appealable. This provision authorizes the City to

10 immediately remove and discard any other property on site.

11

106. The exceptions to Defendants’ rules on their face make it impossible for people

12 living outside to safely live and store their belongings without constant risk that everything will

13 be taken from them with no notice.

14

107. Defendants have conducted over 1000 sweeps in the City in the past two years

15 alone in neighborhoods across Seattle. If an unhoused person living outside happens to have

16 their home in or within 300 feet one of those encampments, they are not entitled to any notice

17 under the MDAR before their property is taken and destroyed. But neither can an individual

18 move their home away from an encampment to protect their property from seizure because the

19 MDAR does not require notice or storage for property not within an encampment.

20

108. The WSDOT Guidelines include just as many exceptions to the notice

21 requirement, allowing WSDOT to justify the immediate removal of property where it is not

22 “practical” or “feasible” to post notice because of “[c]rew scheduling, emergency repairs and

23 removal of nuisances,” or other situations “where the maintenance activity cannot wait or be

24 predicted.” In addition, the Guidelines specify that “[s]ites where maintenance occurs on a

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 25 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 27 of 52

1 frequent but random basis will be posted ‘No Trespassing,’” implying that in such cases, no 72-

2 hour notices will be posted. The Guidelines also exclude recurring encampments from notice

3 protections, providing that previously cleared encampment sites will be revisited by WSDOT

4 and, if encampments are again found, “No Trespassing” signs will be posted “and removal

5 efforts may proceed without 72 hour notification.”

6

109. Further, both the MDAR and the WSDOT Guidelines lack notice requirements

7 to ensure that notice is actually effective.

8

110. The City’s policymakers have themselves noted that the notices are difficult to

9 understand; one councilmember stated, “I can barely understand these postings, and I have a

10 law degree.”

11

111. Neither the MDAR nor the WSDOT Guidelines take into account people with

12 limited English proficiency, limited literacy, or disabilities (such as blindness).

13

112. Neither the MDAR nor the WSDOT Guidelines require Defendants to actually

14 conduct the sweep on any particular date or time, including that which is stated in the notice;

15 or to update the notice if they cancel, prolong, put off the sweep, or limit it to a different area

16 than posted.

17

113. Neither the MDAR nor the WSDOT Guidelines provide for any training to

18 Defendants’ employees and staff as to what constitutes constitutionally adequate and effective

19 notice or how to provide such notice.

20

114. In fact, both the MDAR and the Guidelines explicitly contemplate uneven and

21 unpredictable enforcement. For example, the Guidelines are not binding on WSDOT crews:

22

23

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 26 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 28 of 52

These Guidelines form the basis for WSDOT work on state-owned right of

1

way, and will be revised as necessary to meet the current situation and to

2

reflect the available resources, including budget and staffing. Each Region

may exercise its discretion to deviate from these Guidelines if the Region

3

determines that coordination with a local jurisdiction on a specific clean-up

activity is the best course of action under the circumstances. However, the

4

activity shall be at least as effective as the provisions contained in these

Guidelines. 5

Similarly, the implementation and enforcement of the MDAR are solely at the discretion of the 6

Executive, enabling vast deviation from the rules without consequence. 7

115. These various deficiencies, when coupled with Defendants’ actual practice and 8

policy discussed infra, make it impossible to predict when a sweep will occur and renders any 9

notices that are posted meaningless. 10
2. Defendants’ Official Policies Fail to Provide Constitutionally Required Due

11

Process

12

116. The MDAR and WSDOT Guidelines similarly lack provisions to ensure pre- or

13 post-deprivation due process. Once a sweep has begun, the MDAR and WSDOT Guidelines

14 only require Defendants to store property that Defendants unilaterally determine fits within an

15 enumerated list or are of a particular value, enabling the destruction of countless items that are

16 necessary for unsheltered people’s survival and daily activities, or are otherwise of significant

17 personal value.

18

117. Although the MDAR requires the storage of personal property, personal property

19 is limited to items which have “apparent utility,” are defined by example, or “have a reasonable

20 value of more than $25.” The MDAR does not consider building materials to be personal

21 property, nor items that are “hazardous,” which can include items that are wet or muddy because

22 they are kept outside.

23

118. The WSDOT Guidelines similarly define personal property by example, and

24 provide minimal criteria for determining whether an item should be stored.

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 27 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 29 of 52

1

119. As a result, City and WSDOT personnel have almost complete discretion to

2 determine whether an item should be stored, regardless of its worth, necessity, or significance

3 to its owner.

4

120. Even if property is stored, neither regulation ensures that people have any

5 meaningful opportunity to retrieve their seized property. Neither contains requirements for

6 property storage that assure storage facilities are in accessible locations or open at regular hours

7 and neither requires Defendants to adequately notify owners as to how to reclaim their

8 belongings.

9

121. Neither the MDAR nor the Guidelines contemplate that compensation will be

10 paid to people to replace property seized and/or destroyed during the sweeps.

11

122. Neither the MDAR nor the Guidelines require adequate training for Defendants’

12 personnel on the procedural due process rights implicated by government seizure of personal

13 property. Defendants’ Newly Proposed Official Policies Do Nothing to Ensure Defendants Will

14 Conduct Constitutional Sweeps in the Future

15

123. On January 31, 2017, the City proposed a new set of rules that would modify the

16 MDAR 08-01. These rules, entitled the Financial Administrative Services Encampment and

17 the Multi Departmental Administrative Rules Regarding Unauthorized Camping on City

18 Properties; Enforcement Procedures; and Removal of Unauthorized Property (the “MDAR 17-

19 01”) not only fail to address deficiencies in existing rules, but in many ways are even worse.

20

124. In their motion for a Temporary Restraining Order and submission of an

21 amended complaint, Plaintiffs articulated a number of constitutional concerns with the newly

22 proposed rules. Without notifying Plaintiffs, on March 15, 2017, the City adopted the MDAR

23 17-01, with an effective date of April 3, 2017. The adopted rules contain nearly all of the same

24 constitutional inadequacies as those proposed on January 31, 2017.

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 28 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 30 of 52

1

125. In fact, as the rules themselves state, the MDARs are not intended to provide

2 constitutional protections for individuals living outside; rather, the general purpose of the rules

3 is to “establish uniform rules and procedures for addressing encampments” as part of the City’s

4 “Encampment Abatement Program.” Nowhere in MDAR 17-01 is the stated intent to protect

5 the constitutional rights of unhoused individuals mentioned.

6

3. The MDAR 17-01 Enable Defendants to Sweep Virtually Any Area Without

Adequate and Effective Notice

7 126. First, the new rules enable the City to remove without notice the belongings of

8 virtually any unhoused person on City-owned property or City-controlled property, including

9 many of the areas where unhoused people currently live.

10 127. The City would be allowed to immediately and without notice remove

11 encampments where unhoused people pose a “hazard,” defined as situations in which the City

12 unilaterally determines people are “at risk of injury or death beyond that caused by increased

13 exposure to the elements; or their presence creates a risk of injury or death to others, including

14 but not limited encampments at highway shoulders and off-ramps, areas exposed to moving

15 vehicles, area that can only be accessed by crossing driving lands outside of a legal crosswalk,

16 and landslide-prone areas.” This definition encompasses a significant number of existing

17 encampments within the City.

18 128. The City is additionally allowed, pursuant to the new MDARs, to immediately

19 and without notice remove encampments that are considered obstructions, defined as “people,

20 tents, personal property, garbage, debris or other objects related to an encampment that: are in

21 a City park or on a public sidewalk; interfere with the pedestrian or transportation purposes of

22 public rights-of-way; or [the City unilaterally determines] interfere with areas that are necessary

23 for or essential the intended use of a public property or facility.” This definition similarly

24 encompasses a significant number of existing encampments within the City. These two

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 29 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 31 of 52

1 exceptions to any notice requirements on their own, and in conjunction with each other, would

2 allow the City to sweep virtually any encampment without notice.

3

129. Further, Defendants contend that virtually all unauthorized encampments on

4 public property impede the normal use of the area and are inherently dangerous. There is no

5 reason to believe Defendants will not continue to use these justifications to sweep unhoused

6 people from public grounds, immediately and without notice seizing and destroying their

7 property.

8

130. The rules would also prevent Defendants from taking into account the particular

9 needs of the unhoused population by prohibiting the City from providing notice to individuals

10 living outside more than a week in advance.

11

4. The MDAR 17-01 Forces Unhoused Individuals to Areas Dangerous for

Camping or Subject to Immediate Removal

12 131. The rules additionally allow the City to declare “emphasis areas” wherein

13 camping is prohibited at all times. The rules provide no criteria for what can constitute an

14 emphasis area: one can be of any size and anywhere within the City limits, as long as it is

15 somewhere an unauthorized encampment has previously existed and been swept.

16 132. The emphasis areas by definition can only be created where people already live,

17 and coupled with Defendants’ conduct and frequent sweeps of particular areas, will likely be

18 where many if not most unhoused people currently live.

19 133. These rules would have a tremendous impact on people living outside, many of

20 whom have been living in the same or a neighboring location for months, if not years, and will

21 be left with nowhere safe to go and store their belongings. In fact, the rules would prohibit

22 camping from otherwise reasonable places, pushing individuals to public spaces that in turn

23 may be unsuitable or unsafe for camping, and thus further subject to immediate removal per the

24 City’s rules.

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 30 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 32 of 52

1

134. According to the City’s website, as of April 21, 2017, the City has designated 6

2 areas as emphasis areas thus far. Some of these areas encompass miles of square footage, and

3 there is nothing stopping the City from expanding each emphasis area. See

4 http://www.seattle.gov/homelessness/unauthorized-encampments/emphasis-map. In fact,

5 according to the City’s own criteria the City could close virtually all otherwise suitable areas in

6 the City for camping by unhoused Seattle residents.

7

135. The rules still fail to provide an opportunity for Plaintiffs to contest the seizure

8 and destruction of their property; eliminating the prior existing requirement in the MDAR 08-

9 01 that unhoused people will be allowed to return to the site to pack up their belongings.

10

136. The proposed MDAR 17-01 additionally fails to provide for any training in

11 conducting sweeps that respect the constitutional rights of people living outside, despite

12 Defendants’ own recognition that they have difficulty determining what items are property

13 verses trash, and would additionally have difficulty in determining whether an encampment

14 posed an immediate public health or safety hazard (even though the new MDARs would require

15 Defendants to make both determinations).

16

137. Finally, the enforcement of the new rules remains solely at the discretion of the

17 executive, and aside from brief mention that Defendants may collaborate with one another to

18 conduct sweeps, provide no requirements for how that coordination will occur or to ensure

19 sweeps are done constitutionally.

20

138. Multiple organizations and agencies submitted similar and additional concerns

21 on the MDAR 17-01. For example, as SKCCH noted in its public comment on the MDAR 17-

22 01, “[s]ince 2008, when the City of Seattle created its first MDARs, the rules as written have

23 been followed inconsistently if at all, sometimes ignored, subject to multiple and various and

24 frequently arbitrary interpretations, and generally proven to be a poor tool for creating a city-

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 31 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 33 of 52

1 wide policy that responds to homelessness. They will never address the fundamental crisis that

2 leads to thousands of people being forced to seek rest and temporary cover from the elements

3 in doorways, on loading docks, in parks, under bridges, and on sidewalks.”

4

D. Defendants’ Actual Practice of Conducting Sweeps Violates Both Their Own Rules

and the U.S. and Washington State Constitutions

5 139. Not only are Defendants’ official policies and proposed rules unconstitutional as

6 written, but Defendants have conducted and approved of longstanding and ongoing practices

7 that violate even the most basic portions of their own rules, along with the U.S. and Washington

8 State constitutions.

9 140. Even if Defendants were to adopt official policies and procedures that comply

10 with the constitutional rights of Seattle residents living outside, there is no guarantee that

11 Defendants would follow them absent a court order.

12 141. For decades—and in the 8 years since the MDAR and WSDOT Guidelines were

13 adopted—Defendants have conducted sweeps sporadically, unpredictably, and with utter

14 disregard of even their own (wholly inadequate) regulations. In the hundreds if not thousands

15 of sweeps conducted by Defendants across the City in recent years, they have failed to follow

16 any consistent procedure with regards to notice to people living outside of impending sweeps,

17 the disposal or storage of seized property, or the opportunity for people to reclaim their

18 belongings.

19 142. Although each sweep is different, the following policy and practice has been

20 implemented on multiple occasions since November 2, 2015 and is ongoing:

21 143. Prior to conducting a sweep, Defendants target areas where people living outside

22 have set up homes and communities. Defendants frequently refer to these sweeps as “clean

23 ups”—implying that their goal is to merely clear the area of trash, debris, waste, and/or other

24 hazardous materials—but target only areas where unhoused people have set up their homes.

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 32 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 34 of 52

1

144. Although Defendants’ target particular areas, knowing well in advance where a

2 sweep will be conducted, their officially sanctioned practices are wholly ineffective at providing

3 constitutionally adequate notice before a sweep occurs.

4

145. Even when Defendants do provide some form of notice, it is typically

5 inadequate, inconsistent, inaccurate, inaccessible, and/or misleading—rendering every notice

6 constructively ineffective.

7

146. Notice of a sweep is often provided less than 72 hours in advance, and sometimes

8 even after the fact, depriving people living in the area of any meaningful opportunity to make

9 other arrangements for their belongings.

10

147. Notice is frequently only posted in inconspicuous areas that people living outside

11 do not actually walk past or cannot easily see.

12

148. Notice frequently neglects to specify exactly where a sweep will occur—listing

13 merely a single street name with no cross street boundaries or other descriptors.

14

149. Although notice is sometimes attached to individual tents, it is just as often

15 posted to trees, fences, or other structures on the border of an area to be swept. This

16 inconsistency leaves unhoused people with no idea of the type of notice to expect, if any, before

17 their property will be seized and destroyed by Defendants.

18

150. Many of the notices merely state that property will be seized after 72 hours,

19 without specifying a date or time.

20

151. Regardless of the dates on a posted notice, sweeps are often conducted at widely

21 varying intervals after the notices are posted.

22

152. By way of example, this photo was taken of a notice posted on a tree, allegedly

23 on December 27, 2016. It offers no description of the actual area to be swept, nor a time when

24 it was posted.

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 33 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 35 of 52

1

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13

14

15

16

17

18

19

20

21

153. Even signs that do provide more specific information, such as a date and time,

22

often provide inconsistent information, such as days of the week that do not correspond to the

23

dates listed.

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 34 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 36 of 52

1

154. By way of example, this photo was taken of a notice allegedly provided before

2 a sweep in September of 2016.

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18 155. Sweeps are routinely conducted at different dates and times than those indicated
19 on the notice.
20 156. Thus, even when Defendants have provided some sort of notice, residents do not
21 receive actual and effective notice as required by the Constitution because they still do not know
22 whether or when a sweep will actually occur. Defendants have functionally deprived Plaintiffs
23 of notice altogether.
24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 35 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 37 of 52

1

157. Defendants make minimal to no accommodations to reach people who cannot

2 read English—people who are also constitutionally entitled to notice. Notice is only

3 occasionally provided in Spanish (WSDOT provided notices generally include both; City

4 provided notices are frequently in English only) and is generally only given in written format.

5 People who do not speak English or Spanish, who are blind, who cannot read, and who may

6 have other cognitive disabilities or mental illnesses that make written notice difficult to fully

7 comprehend are deprived of notice.

8

158. Further, because minimal justification is proffered by Defendants prior to

9 conducting a sweep, it is impossible for Plaintiffs even to guess whether their homes will be

10 targeted. Defendants have conducted sweeps in clean and well-maintained encampments, as

11 well as encampments of the type they promised would not be swept. Some encampments have

12 been swept multiple times; others’ homes have presumably never been touched.

13

159. Forcing people to guess whether and/or when a seizure and destruction of

14 property might occur does not constitute constitutionally adequate provision of notice.

15

160. Plaintiffs’ constitutional rights are implicated because Defendants’ “clean up”

16 strategy does not entail merely disposing of trash, debris, waste, and/or hazardous materials, or

17 taking affirmative government action to resolve the safety or public health risk allegedly posed

18 by the residents, such as by providing portable restrooms or garbage disposal services.

19

161. Instead, Defendants’ “clean up” strategy is to seize and destroy the possessions

20 of people who live outside.

21

162. Defendants often clear entire sites, indiscriminately removing the visible

22 property and personal belongings either by hand or with heavy machinery like bulldozers and

23 backhoes.

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 36 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 38 of 52

1

163. When a bulldozer or backhoe is used, the property is immediately destroyed. By

2 way of example, the picture below was taken on September 14, 2016 at one of Defendants’

3 sweeps conducted at the location where Plaintiff Hooper lives.

4

5

6

7

8

9

10

11

12

13

14

15

16 164. In addition to using heavy machinery, Defendants sometimes physically destroy
17 property on site, including slashing tents and tarps, and smashing property before removing it.
18 165. Defendants throw away things that they unilaterally determine to be garbage or
19 of insufficient value to be stored. Often these items will be taken offsite for disposal.
20 166. Defendants also frequently gather up all items—mixing actual garbage with
21 personal belongings—and just leave them in a pile.
22 167. Sometimes Defendants only shift the actual garbage and waste to another area
23 rather than removing it.
24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 37 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 39 of 52

1

168. Defendants conduct these sweeps without warrants to seize and destroy

2 property, or permission from the property owners.

3

169. Defendants seize and destroy property regardless of whether the owner is

4 present.

5

170. Defendants frequently seize property that they know is not abandoned but rather

6 left unattended momentarily while the person living outside attends to other activities or

7 responsibilities.

8

171. Many residents ask their neighbors to watch over their belongings when they

9 momentarily step away, but even this will not save their property from destruction. Defendants

10 inform residents that they are not allowed to pack up or save anyone else’s belongings once a

11 sweep has begun.

12

172. Even an owner’s presence may not save the property from destruction. People

13 have literally wept and begged Defendants not to seize and destroy their property as Defendants

14 seize and destroy it, to no avail.

15

173. People living outside are frequently forced to scramble to gather as many of their

16 belongings as possible to prevent the destruction of all of their property. Defendants seize and

17 often destroy whatever is left, even when they are informed that the owners will return for their

18 items.

19

174. Defendants routinely and as an officially sanctioned practice ignore their own

20 policies and procedures for determining whether an item should be held in storage for the

21 owner.

22

175. Defendants deny Plaintiffs any opportunity, either before or after the fact, to

23 contest the confiscation or destruction of their property before an impartial decision maker.

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 38 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 40 of 52

1

176. Property that is disposed of immediately is impossible to retrieve - often crushed

2 inside a garbage truck.

3

177. Property that is comingled by Defendants with actual garbage, debris, or waste

4 is also immediately destroyed from being soiled.

5

178. Property that is stored is destroyed after 60 days and impossible to retrieve

6 because Defendants fail to observe appropriate procedures regarding storage of personal

7 property.

8

179. For example, Defendants fail to notify people whether their property will be

9 stored, where it will be stored, for how long, or how the property may be retrieved. WSDOT’s

10 posted notices state only: “THIS IS NOT AN AUTHORIZED AREA FOR STORAGE OR

11 SHELTER. All material will be disposed of in 72 hours.”

12

180. The City of Seattle’s notices regarding pending sweeps similarly fail to provide

13 any information regarding storage, and both the written notice they do provide coupled with

14 their conduct suggests to individuals living outside that all of their property will be destroyed,

15 not stored. By way of example, the below photo is of a notice provided to unhoused individuals

16 prior to a sweep conducted on February 10, 2017. The posting merely states that on February

17 10, 2017, all property left in the area will be thrown away.

18 ///

19 ///

20 ///

21 ///

22 ///

23 ///

24 ///

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 39 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 41 of 52

1

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181. On the rare occasion they do provide information regarding storage, Defendants

16 generally only give a phone number, which a person living outside must call to get specific

17 information. Those living outside who do not have a phone or money to pay for a phone call

18 (or those whose phone and/or money was taken during the sweep) are left without recourse, as

19 are those who cannot read the notice.

20

182. Aside from sporadic written notices, Defendants offer zero to minimal

21 information regarding the actual property retrieval process following a sweep. WSDOT and

22 City employees answering the phone are unwilling or unable to say where items are stored or

23 when they can be picked up. On at least one occasion, a City employee answering the telephone

24 at the number listed on the notices posted at a sweep site was unable to identify where stored

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 40 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 42 of 52

1 belongings are kept. For example, over a period of 15 months, the City only had inventory

2 records for approximately 7 percent of the sweeps it conducted.

3

183. Defendants routinely fail to inventory or otherwise keep track of items that are

4 confiscated or destroyed, leaving people with no way of knowing whether their property was

5 even kept.

6

184. Defendants impose other barriers to property retrieval as well. People living

7 outside must find a way to not only get to the facility where items are being stored, but figure

8 out a method to transport any items stored at the facility back to their current place of residence.

9 The facility where items deemed worthy of storage are kept is at 4200 Airport Way South,

10 approximately an hour walk from downtown Seattle, making it difficult to access without a car

11 from many Seattle neighborhoods, and far away from where a lot of people living outside

12 reside. It becomes even harder to access if Defendants took or destroyed a method of

13 transportation, like a bicycle or bus pass.

14

185. The storage facility additionally has limited operating hours, rendering it

15 impractical or impossible for Plaintiffs and other people living outside to retrieve their property,

16 even if they are able to discover whether and where the property is being stored.

17

186. In the lucky event someone is able to confirm that their property is being stored

18 and can make it to the facility during operating hours, Defendants may require them to show

19 government identification and describe all the seized belongings. Neither requirement may

20 seem overly onerous on its face, unless the identification is precisely the item that was seized,

21 and until one considers the difficulty of detailing all of one’s worldly possessions.

22

187. As a result, one worker at the City’s storage facility estimates that only 1 or 2

23 percent of the materials stored are ever picked up, with the rest eventually thrown out. The

24 worker additionally noted that “Obviously, for people that don’t have anything, this stuff here

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 41 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 43 of 52

1 [at the storage facility] is their everything.” He concluded, “That’s very difficult – to throw

2 things away that probably mean something to people is probably the toughest part [of his job].”

3

188. Plaintiffs are informed and believe and on such basis allege that at all times

4 relevant to this action, each of the individuals who seized and destroyed their property were the

5 agents, and/or employees of the Defendants and were acting at all times within the scope of

6 their agency and employment and with the knowledge and consent of their principal and

7 employer, WSDOT or the City.

8 E. Defendants Know Or Should Know That Their Conduct is Unconstitutional and Refuse to Remedy It
9 189. Defendants have been on notice for years that their policy and practice of
10 evicting people living outside from their homes, and intentionally taking and destroying their
11 property violates the U.S. and state constitutions. They nevertheless persist in violating
12 Plaintiffs’ rights.
13 190. State and local advocates and organizations have repeatedly warned Defendants
14 of the unconstitutional nature of their conduct. For example, after a meeting with the City in
15 November of 2015, Columbia Legal Services and the ACLU wrote a letter to the City
16 expressing their concerns that Defendants’ current practice and policy violated the Fourth and
17 Fourteenth Amendments of the U.S. Constitution, as well as Washington State law, reminding
18 the City that “[s]weeps conducted with adequate notice to the people living in the identified
19 locations and/or without adequate procedures to safeguard their property violate civil and
20 property rights guaranteed by the constitution.”
21 191. Defendants’ policies and practices have also been condemned by a number of
22 courts. Most recently, the Ninth Circuit made it explicitly clear that the government cannot
23 “seize and destroy with impunity the worldly possessions of a vulnerable group in our society.”
24 Lavan v. City of Los Angeles, 693 F.3d 1022, at 1033 (9th Cir. 2012). The Court further
25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 42 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 44 of 52

1 underscored that “[a]s [the courts] have repeatedly made clear, the government may not take

2 property like a thief in the night; rather it must announce its intentions and give the property

3 owner a chance to argue against the taking. This simple rule holds regardless of whether the

4 property in question is an Escalade, or [a temporary shelter], a Cadillac, or a cart.” Id. at 1032

5 (internal citations omitted).

6

192. The media has amply documented the illegality of the sweeps. For example, a

7 Seattle Times report observed that “sweeps of encampments have been plagued by

8 disorganization and miscommunication that has often resulted in homeless residents losing their

9 possessions.” The report further noted that outreach workers were often not available, showing

10 up after a sweep had taken place or not at all, due to miscommunications between cleanup crews

11 and outreach staff.

12

193. Even the City’s own departments have warned Defendants that their policies and

13 practices are ineffective, inconsistent, and deprive people living outside of effective notice, an

14 opportunity to be heard, or a meaningful opportunity to retrieve their property.

15

194. For example, on August 31, 2016 the City implemented a Task Force to study

16 the sweeps. Although the Task Force found Defendants’ “approach has negatively impacted

17 homeless individuals and neighborhoods,” it proffered no solutions.

18

195. In September 2016, the City hired the Seattle Office of Civil Rights (“OCR”) to

19 monitor the sweeps. Monitors regularly reported back to Defendants that the sweeps were

20 traumatizing to observe and that Defendants failed to give appropriate notice of the sweeps.

21 One note from OCR observes “WSDOT a hott [sic] mess!”

22

196. The Seattle Human Rights Commission also wrote to the Mayor and the City in

23 September 2016, noting that Defendants are “inconsistent in . . . removal and notification

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 43 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 45 of 52

1 procedures,” “forcibly displac[ing] individuals from their homes and disconnect[ing] them from

2 their personal property.”

3

197. Defendants have ignored these concerns. For example, despite the “positive

4 impact” the City admits OCR monitors have had, it has transferred on-the-ground oversight of

5 its sweeps to the City’s office of Finance and Administrative Services (FAS), with the explicit

6 goal of “operationaliz[ing] and routiniz[ing]” sweeps.

7

198. As recently as December 23, 2016, the Seattle Human Rights Commission

8 additionally expressed concern with this switch, writing that “[t]he continued presence of OCR

9 (Office of Civil Rights) monitors is vital to ensuring that encampment sweeps do not further

10 violate encampment residents’ civil rights.” The City responded that FAS has demonstrated it

11 performs robust and responsible management of the City’s encampment clean-up efforts.

12

199. Yet on the day the letter was issued (January 4, 2017), Defendants conducted a

13 sweep without providing residents adequate and effective notice, and despite being informed

14 notice had not been provided, only stopped the sweep after an hour of operating heavy

15 equipment. Defendants’ pattern and practice of behavior coupled with statements by official

16 policymakers and written procedures make clear they will persist in using sweeps without the

17 required constitutional protections, making Plaintiffs only recourse this Court.

18

200. In fact, Defendants have additionally proposed rules that would grant themselves

19 even greater authority to conduct sweeps without notice, and immediately and/or permanently

20 remove unhoused people living outside from public property.

21

201. In fact, when Ms. Osborne was swept on January 26, she was told that

22 Defendants were not required to give notice pursuant to the mayor’s “new executive order.”

23

202. Further, rather than halting the sweeps to consider the constitutional violations

24 inherent in their policies and practices, Defendants have continued with their use of sweeps

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 44 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 46 of 52

1 unfettered. Numerous sweeps have been conducted since the filing of this lawsuit, a number

2 of which either occurred without notice, and/or resulted in the immediate and summary

3 destruction of all property onsite.

4

203. Defendants’ ongoing policy and practice has continued even after this lawsuit

5 was filed. For example, on February 10, 2017, Defendants used a box cutter to slash the tent of

6 an unhoused individual living outside when conducting a sweep of the Ballard Locks. On

7 February 13, 2017, Defendants slashed the tents of unhoused residents living in the area, threw

8 belongings down the hill into the mud, and physically broke property when conducting a sweep

9 on Galer and Eastlake. Defendants posted a notice for a sweep of the Ballard Locks on February

10 10, 2017, but according to their own declarations continued the sweep days later without posting

11 a multi-day notice. Defendants similarly posted a notice for a sweep under the Ballard Bridge

12 and Emerson Overpass for February 27, 2017 but did not show up until February 28, 2017. No

13 notice was reposted. Around 10:00 am on February 28, 2017, Defendants conducted

14 approximately 10 minutes of clean-up before stopping. The remainder of time was spent sitting

15 in a truck, walking around or standing in the area, or talking to individuals who had come to

16 observe the sweep. Defendants offered conflicting information as to whether an un-abandoned

17 tent full of belongings would be taken and when the sweep would actually occur or be

18 completed. Information regarding if and/or when the area would actually be swept was not

19 provided until March 9, 2017.

20

204. Defendants have also swept an area called the “Field” or “Field of Dreams” on

21 Airport Way S. and Royal Brougham, where at least 50-60 residents lived. Since the Jungle

22 was cleared in the Fall of 2016, Defendants told unhoused individuals that the Field would not

23 be swept, at least until the City’s new Navigation Center was established. The Navigation

24 Center has not opened yet. Defendants cleared the area on March 7, 2017, slashing numerous

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 45 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 47 of 52

1 tents and summarily destroying the property of many unhoused residents. This site is now one

2 of the City’s emphasis areas.

3

205. Since the City’s new rules have been adopted, Defendants have continued to

4 conduct sweeps without adequate and effective notice and destroy property of unhoused

5 residents.

6

206. Whether pursuant to the MDARs , or pursuant to Defendants’ longstanding and

7 ongoing policy and practice of immediately seizing and destroying the property of people living

8 outside, it is clear this conduct will continue absent court intervention.

9

F. Plaintiffs Have Suffered and are at Continued Imminent Risk of Suffering

Irreparable Harm as a Result of Defendants’ Actions

10 207. As a direct and proximate result of Defendants’ unconstitutional practices and

11 policies, Plaintiffs have suffered and will continue to suffer serious irreparable harm, including

12 but not limited to the destruction of personal property. Defendants’ actions have resulted in the

13 loss of essential personal property for many residents living outside including but not limited

14 to medication, respirators, wheelchairs, canes, blankets, sleeping bags, clothing, tents, tarps,

15 cookware, eating utensils, food, identification, immigration and court documents, and

16 irreplaceable family heirlooms. The loss of these items is not only an emotional blow, as it

17 would be to anyone, but also threatens the physical safety, health, and well-being of people

18 living outside—particularly in the inclement weather of the Seattle winter. In many cases,

19 Defendants’ actions have deprived people living outside of everything they own.

20 208. Defendants’ actions deprive people of the few possessions they have, forcing

21 them to survive days or weeks after a sweep without medication, shelter, sufficient food,

22 essential hygiene items, and transportation. Many people lack the resources to replace items

23 destroyed by Defendants. In the event a person is able to replace items, it takes significant time.

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 46 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 48 of 52

1 It can take local outreach organizations a year to get someone an ID, and when that ID is taken

2 or destroyed in a sweep, it can take another year to get a replacement.

3

209. The sweeps create massive disruption in people’s lives; rather than trying to

4 break out of the cycle of homelessness, Defendants’ actions force people living outside to spend

5 their time and resources replacing what has been destroyed. Time that could be spent looking

6 for housing, employment, or accessing medical care is now spent replacing belongings and

7 documents necessary for survival. That burden is further exacerbated by Plaintiffs’ fear that

8 what remaining possessions they have cannot ever be left unattended.

9

210. Defendants’ actions also have a severe emotional impact. Much like those

10 whose houses have been destroyed by natural disasters or violated by burglars, people who have

11 their homes swept report feeling degraded, scared, destabilized, anxious, angry, and

12 traumatized. Those feelings are amplified by the knowledge that the loss was the result of state

13 action sanctioned and approved of by Defendants pursuant to an active and on-going policy

14 without foreseeable end.

15

211. Even individuals who have not yet been swept by Defendants, but live outside

16 are impacted by Defendants’ ongoing and unconstitutional sweeps. Individuals are unable to

17 work or leave their belongings, and their mental and physical disabilities have been exacerbated

18 by repeatedly moving all of their belongings and living in constant fear of the pending seizure

19 and destruction of their property without notice.

20

212. In addition to the injuries Defendants’ policies and practices inflict on

21 individuals, Defendants have directly and proximately increased the burden on the facilities and

22 services provided by organizations such as the Episcopal Diocese and its member churches and

23 Real Change. Defendants’ unlawful actions have additionally also caused irreparable harm to

24 members of both organizations.

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 47 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 49 of 52

1

213. The losses and injuries that Plaintiffs have suffered and are at imminent risk of

2 suffering cannot be adequately compensated by monetary damages.

3

214. Plaintiffs seek a declaratory judgment that Defendants’ policy and practice of

4 confiscating and/or destroying the personal property of people living outside without a warrant,

5 without probable cause, without a meaningful opportunity to reclaim property, and/or without

6 requisite procedural due process is unlawful under the federal and state constitutions.

7

215. Plaintiffs further seek appropriate injunctive relief enjoining Defendants’ use of

8 sweeps unless and until Defendants have adopted and implemented policies and procedure that

9 ensure that the constitutional rights of people living outside are not violated by the sweeps.

10

VI. CAUSES OF ACTION

11

FIRST CLAIM

Right to Be Secure From Unreasonable Seizures

12

Fourth Amendment of the U.S. Constitution

13

216. Plaintiffs reallege and incorporate the allegations of the preceding paragraphs as

14

if fully set forth herein.

15

217. Defendants’ policy, pattern, and/or custom of seizing the individual Plaintiffs’

16

property without a valid warrant or probable cause is unreasonable and contrary to the Fourth

17

Amendment of the U.S. Constitution, as applied to the states by the Fourteenth Amendment to

18

the U.S. Constitution and 42 U.S.C. § 1983.

19

SECOND CLAIM

20

Right to Privacy and Protection From Invasion of Home

Article I, Section 7 of the Washington State Constitution

21

218. Plaintiffs reallege and incorporate the allegations of the preceding paragraphs as

22

if fully set forth herein.

23

219. Defendants’ policy, pattern, and/or custom of seizing the individual Plaintiffs’

24

property without a valid warrant are unlawful disturbances of the individual Plaintiffs' private

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 48 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 50 of 52

1 affairs and invasions of their homes, contrary to Article I, Section 7 of the Washington

2 Constitution.

3

THIRD CLAIM

Right to Due Process of Law

4

Fourteenth Amendment of the U.S. Constitution

5

220. Plaintiffs reallege and incorporate the allegations of the preceding paragraphs as

6

if fully set forth herein.

7

221. Defendants' policy, pattern, and/or custom of seizing and destroying the

8

individual Plaintiffs’ property without adequate notice and opportunity to be heard prior to

9

destruction of their property violates the individual Plaintiffs' right to due process of law

10

protected by the Fourteenth Amendment to the U.S. Constitution.

11

FOURTH CLAIM

12

Right to Due Process of Law

Article I, Section 3 of the Washington Constitution

13

222. Plaintiffs reallege and incorporate the allegations of the preceding paragraphs as

14

if fully set forth herein.

15

223. Defendants' policy, pattern, and/or custom of seizing and destroying the

16

individual Plaintiffs' property without adequate notice and opportunity to be heard prior to

17

destruction of their property violates the individual Plaintiffs' right to due process of law

18

protected by Article I, Section 3 of the Washington Constitution.

19

///

20

///

21

///

22

///

23

///

24

///

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 49 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 51 of 52

1

VII. PRAYER FOR RELIEF

2

WHEREFORE, Plaintiffs pray for relief as follows:

3

1. For declaratory and injunctive relief as the court deems appropriate.

4

2. For an award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

5

3. For such further relief as is just and appropriate.

6

DATED this 23rd day of May, 2017.

7

CORR CRONIN MICHELSON

BAUMGARDNER FOGG & MOORE LLP 8

9

s/ Todd T. Williams

Blake Marks-Dias, WSBA No. 28169

10

Todd T. Williams, WSBA No. 45032

Eric A. Lindberg, WSBA No. 43596

11

1001 Fourth Avenue, Suite 3900

Seattle, Washington 98154-1051

12

Telephone: (206) 625-8600

Email: bmarksdias@corrcronin.com

13

twilliams@corrcronin.com

elindberg@corrcronin.com 14

AMERICAN CIVIL LIBERTIES UNION

15

OF WASHINGTON FOUNDATION

16

s/ Emily Chiang

Emily Chiang, WSBA No. 50517

17

Nancy Talner, WSBA No. 11196

Breanne Schuster, WSBA No. 49993

18

901 Fifth Avenue, Suite 630

Seattle, Washington 98164

19

Telephone: (206) 624-2184

Email: echiang@aclu-wa.org

20

talner@aclu-wa.org

bschuster@aclu-wa.org 21

Attorneys for Plaintiffs 22

23

24

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 50 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077-RSM Document 87 Filed 05/23/17 Page 52 of 52

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 23, 2017, I electronically filed the foregoing with the Clerk

3 of the Court using the CM/ECF system, which will send notification of such filing to the

4 following:

5

Attorneys for Defendant City of Seattle:

6

Matthew J. Segal, WSBA No. 29797

Gregory J. Wong, WSBA No. 39329

7

Taki V. Flevaris, WSBA No. 42555

8

PACIFICA LAW GROUP LLP 1191 2nd Avenue, Suite 2000

9

Seattle, WA 98101

matthew.segal@pacificalawgroup.com

10

greg.wong@pacificalawgroup.com

taki.flevaris@pacificalawgroup.com 11

12

Patrick Downs, WSBA No. 25276 Andrew T. Myerberg, WSBA No. 47746

13

Gregory C. Narver, WSBA No. 18127

Carlton W.M. Seu, WSBA No. 26830

14

Gary T. Smith, WSBA No. 29718

SEATTLE CITY ATTORNEY

15

701 Fifth Avenue, Suite 2050

16

Seattle, WA 98104-70197 patrick.downs@seattle.gov

17

andrew.myerberg@seattle.gov

gregory.narver@seattle.gov

18

carlton.seu@seattle.gov

gary.smith@seattle.gov 19

Attorneys for Defendants Washington State Department of Transportation and Roger Millar, Secretary of Transportation for WSDOT:
Alicia O. Young, WSBA No. 35553 Assistant Attorney General ATTORNEY GENERAL OF WASHINGTON P.O. Box 40126 Olympia, WA 98504-0126 AliciaO@atg.wa.gov
Matthew D. Huot, WSBA No. 40606 Assistant Attorney General ATTORNEY GENERAL OF WASHINGTON P.O. Box 40113 Olympia, WA 98504-0113 MattH4@atg.wa.gov

20

CORR CRONIN MICHELSON

21

BAUMGARDNER FOGG & MOORE LLP

22

s/ Todd T. Williams Todd T. Williams, WSBA No. 45032

23

1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051

24

Telephone: (206) 625-8600 Email: twilliams@corrcronin.com

25

SECOND AMENDED COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 51 (2:17-cv-00077-RSM)

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

 </s> Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 1 of 37

1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 LISA HOOPER, BRANDIE OSBORNE,

10

individually and on behalf of a class of similarly situated individuals; THE

11

EPISCOPAL DIOCESE OF OLYMPIA; REAL CHANGE,

12

Plaintiffs,

No.
COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

13

vs.

14 CITY OF SEATTLE, WASHINGTON;

15

WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; ROGER MILLAR,

16

SECRETARY OF TRANSPORTATION FOR WSDOT, in his official capacity,

17

Defendants.

18

19 20 21 22 23 24 25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 2 of 37

1

I.

INTRODUCTION

2

1. Plaintiffs Lisa Hooper, Brandie Osborne, the Episcopal Diocese of Olympia,

3 and Real Change, by and through counsel, bring this class action challenging the ongoing

4 policy and practice of the City of Seattle (the “City”) and the Washington State Department of

5 Transportation (“WSDOT”) (together the “Defendants”) of seizing and destroying the

6 property of people who are living outside without adequate and effective notice, an

7 opportunity to be heard, or a meaningful way to reclaim any property that was not destroyed.

8

This practice is commonly referred to as “sweeping” or “sweeps.”1

9

2. Each year, more and more City of Seattle residents are forced to live outside on

10 public property. According to the Seattle/King County Coalition on Homelessness

11 (“SKCCH”), on a given night in January 2016, more than 2,942 Seattle residents were found

12 trying to survive one of the coldest months of the year outdoors. Of this population,

13 approximately 900 had a vehicle to sleep in, leaving roughly 2,000 Seattle residents with no

14 shelter but what they could build for themselves or find in the form of existing structures,

15 such as under roadways.

16

3. Pursuant to official policies and longstanding practice sanctioned by their

17 policymakers, Defendants have embarked upon a program of seizing and destroying the

18 property of people living outside, in a process referred to as “sweeps, ”or “clean ups.”

19 Defendants conducted more than 1000 of these sweeps in the past two years alone.

20

4. These sweeps target Plaintiffs and the communities in which they live.

21

5. Pursuant to these policies and practices, Defendants remove and destroy

22 peoples’ property without a warrant, probable cause, adequate notice, an ability to be heard,

23 or a meaningful opportunity for people to retrieve their possessions.

24

1 “Sweeping” or “sweeps” refers to Defendants’ act of removing and/or destroying the property of

25

people who live outside.

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 1

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 3 of 37

1

6. Defendants’ actions deprive people living outside of personal belongings that

2 are critical to their survival, such as: clothing, tents, cooking utensils, and medication;

3 important personal possessions, such as identification documents; tools necessary for their

4 profession; and irreplaceable mementos, including family photographs and heirlooms.

5

7. For example, Plaintiff Lisa Hooper has suffered the loss of irreplaceable family

6 photos and mementoes, important legal paperwork, a mattress, clothing, and several shoes—

7 leaving her without a matching pair—because of previous sweeps conducted by Defendants

8 pursuant to a policy with no end in sight.

9

8. The consequences are devastating. Defendants’ conduct leaves an already

10 vulnerable population at imminent and significantly increased risk of harm from exposure and

11 want. It makes it more difficult for people living outside to break out of the cycle of

12 homelessness, as time they could spend looking for employment or taking care of their affairs

13 is by necessity spent instead on replacing essential items like identification and bedding. And

14 it takes a substantial emotional toll.

15

9. Plaintiffs live in constant fear that their few remaining possessions will be

16 seized by Defendants, who have publicly committed to continuing their on-going policies and

17 practices.

18

10. Defendants’ policies and practices are not only unnecessarily cruel, they are

19 also illegal: they violate Plaintiffs’ (1) right to protection from unreasonable search and

20 seizure under the Fourth Amendment of the U.S. Constitution; (2) right to protection from

21 invasion of homes and privacy under Article I, Section 7 of the Washington State

22 Constitution; (3) right to procedural due process under the Fourteenth Amendment of the U.S.

23 Constitution; and (4) right to procedural due process under Article I, Section 3 of the

24 Washington State Constitution.

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 2

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 4 of 37

1

11. Plaintiffs seek a declaratory judgment that Defendants’ policy and practice of

2 confiscating and/or destroying the personal property of people living outside without a

3 warrant, probable cause, an opportunity to be heard, a meaningful opportunity to reclaim

4 property, and/or requisite procedural due process is unlawful under the federal and state

5 constitutions.

6

12. Plaintiffs also seek appropriate injunctive relief enjoining Defendants’ use of

7 sweeps until Defendants adopt and implement procedures that respect Plaintiffs’

8 constitutional rights.

9

13. If Defendants insist upon seizing and destroying personal property, Plaintiffs—

10 like all property owners in this country—have a right to adequate and effective notice and an

11 opportunity to be heard before their property is taken by the government. These rights are not

12 implicated by policies and procedures that provide true “clean up” services, such as regularly

13 scheduled garbage pickups from designated garbage bins (like those provided to other City

14 residents) that do not involve the seizure and destruction of personal property.

15

14. Plaintiffs have no adequate remedy at law and are at imminent risk of

16 subsequent rights violations. Defendants know or should know that their actions violate the

17 constitutional rights of people living outside, but have made it clear they intend to continue

18 the unlawful conduct described herein.

19

II. JURISDICTION & VENUE

20

15. This Court has subject matter jurisdiction over this action pursuant to 28

21 U.S.C. §§ 1331, and 1343(a)(3). Plaintiffs seek declaratory relief under 28 U.S.C. §§ 2201-

22 2202.

23

16. This Court has supplemental jurisdiction over Plaintiffs’ claims for violation of

24 the Washington State Constitution pursuant to 28 U.S.C. § 1367. Venue is appropriate in this

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 3

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 5 of 37

1 District because all parties reside or are present in, and the causes of action occurred in the

2 Western District of Washington. 28 U.S.C. § 1391(b).

3

III. PARTIES

4 A. Individual Plaintiffs

5

17. Plaintiff Lisa Hooper is unhoused and lives outside in Seattle, Washington, on

6 the hill on the west side of Rainier Avenue South near I-90. Ms. Hooper has lived outside in

7 that location for approximately two years, and maintains a home with her male partner. Ms.

8 Hooper and her partner will continue to live outside for the foreseeable future.

9

18. Defendants have conducted multiple sweeps where Ms. Hooper and her partner

10 live. Defendants have, on a number of occasions, conducted sweeps of the area without

11 notice. Ms. Hooper has had many of her possessions confiscated and/or destroyed during

12 Defendants’ sweeps.

13

19. For example, during a sweep in May of 2015, Defendants gave Ms. Hooper

14 minimal to no notice, forcing her to scramble to pack up her entire home and quickly

15 determine which items were absolutely necessary for survival to take with her, and which she

16 had to leave. Defendants seized and/or destroyed the property Ms. Hooper was forced to

17 leave behind, including the only photos she had of her three daughters, her children’s baby

18 teeth that she had been saving for about 20 years, important legal paperwork, a mattress,

19 clothing, matching shoes, antibiotics, and a family Bible that had information on her family

20 history going many generations back, among other items.

21

20. Having to repeatedly and on short or no notice move all her belongings to

22 avoid their confiscation and destruction has imposed significant hardship upon Ms. Hooper

23 and limits her ability to be away from her property to deal with personal affairs for fear that

24 the property will have been seized by Defendants in her absence.

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 4

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 6 of 37

1

21. Defendants’ refusal to provide effective and adequate notice has left Ms.

2 Hooper with great uncertainty as to where it is safe to live and keep her belongings. For

3 example, in January 2017, WSDOT and City personnel conducted a sweep of the area where

4 Ms. Hooper and her partner live. Defendants posted no prior notice in the area, posting only a

5 single notice far north of where Ms. Hooper lived. WSDOT then cleared only part of the area

6 the notice described, and refused to provide information about whether and/or when the area

7 she lived in would be swept.

8

22. Ms. Hooper lives in constant fear that she will lose her home and everything

9 she owns in one of Defendants’ future sweeps.

10

23. Plaintiff Brandie Osborne is unhoused and lives outside in Seattle,

11 Washington, up the hill from the intersection of Dearborn Street and the ramp to I-5 North.

12 Ms. Osborne has lived there for approximately one year and a half. Ms. Osborne will

13 continue to live outside for the foreseeable future.

14

24. Defendants have conducted roughly four sweeps where Ms. Osborne lives.

15 Defendants have, on a number of occasions, conducted sweeps of the area without notice.

16 Ms. Osborne has had possessions confiscated and/or destroyed during these sweeps.

17

25. Because Ms. Osborne has had minimal to no notice of Defendants’ sweeps, she

18 has had to scramble to pack up her entire home and quickly determine which items were

19 absolutely necessary for survival to take with her, and which she had to leave. Defendants

20 seized and/or destroyed the property she was forced to leave behind, including important

21 personal property like clothing, tarps, and batteries. Ms. Osborne’s tent was also damaged

22 beyond repair after having to move it so many times.

23

26. Having to repeatedly move all of her belongings to avoid their confiscation and

24 destruction has imposed significant hardship on Ms. Osborne, and limits her ability to be

25

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1 away from her property to deal with personal affairs for fear that the property will have been

2 seized by Defendants in her absence.

3

27. Defendants’ refusal to provide effective and adequate notice has also left Ms.

4 Osborne with great uncertainty as to where it is safe to live and keep her belongings. For

5 example, in December of 2016, WSDOT provided notice of a sweep that would affect the

6 area where she lives. Ms. Osborne, with the assistance of her neighbors and volunteers,

7 moved most of her belongings. WSDOT then cleared only part of the area the notice

8 described, not including the area where Ms. Osborne lived, and refused to provide

9 information about whether and/or when the area she lived in would itself be swept.

10

28. Over the Martin Luther King holiday weekend in January 2017, Ms. Osborne

11 saw a notice that the location of her home may be swept on January 19, 2017.

12

29. Ms. Osborne lives in constant fear that she will lose her home and everything

13 she owns in one of Defendants’ future sweeps.

14

30. Plaintiffs bring this suit on behalf of themselves and all other similarly situated

15

unhoused persons who live outside.2

16 B. Organizational Plaintiffs

17

31. Plaintiff Diocese of Olympia is a diocese of The Episcopal Church in

18 Washington State. It is comprised of “more than 26,000 Episcopalians in more than 100

19 worshiping communities throughout Western Washington.” Diocese congregations include

20 numerous members who are unhoused. The mission of the Diocese of Olympia is to “build

21 strong communities of faith.” To accomplish its mission, among other things, the Diocese of

22 Olympia assists congregations with their development and work, including strengthening the

23

2 “Unhoused” refers to all individuals who lack fixed, stable, or adequate shelter or housing. While

24

the term “homeless” is often utilized to refer to this population, we use the term “unhoused” because

people who lack permanent or stable housing still have homes in which they sleep and go about their

25

private affairs.

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1 stewardship of available resources. For example, the Diocese offers training, grants,

2 resources, and other programs to its member churches.

3

32. There are a number of churches in the City of Seattle that are members of the

4 Episcopal Diocese, including St. Luke’s Episcopal Church and Trinity Parish of Seattle.

5 Many of these churches, as an integral part of their mission and ministry, provide services to

6 unhoused people in Seattle.

7

33. For example, St. Luke’s Episcopal Church in Ballard operates a Meals

8 Ministry called Edible Hope, wherein the church and its congregation serve a hot breakfast

9 five days a week to approximately 150-180 people each day, 90 to 95 percent of whom are

10 homeless. The church also co-sponsors a program called the Bridge Drop In which offers a

11 number of drop in services to unhoused individuals, including counseling, and stations for

12 people to charge their electronics, and operates a shelter on site.

13

34. The confiscation and destruction of the belongings of people living outside has

14 affected the church’s operation in a number of ways. Since Defendants have increased their

15 use of sweeps, the church has had significantly more unhoused people needing its meal and

16 Bridge Drop In services. This increased demand has put additional burden on the church’s

17 facilities, and required significant additional church resources. The church is also affected by

18 Defendants’ actions through its membership: approximately 20 percent of the church’s

19 congregation is unhoused.

20

35. Trinity Parish of Seattle is also a member of the Diocese of Olympia. As a part

21 of its mission, Trinity Parish offers a number of services for unhoused individuals in Seattle,

22 including a food bank and thrift shop in First Hill. The food bank, operated by Northwest

23 Harvest, but located at Trinity Parish, provides food three days a week to residents in need,

24 with approximately 3,000-5,000 instances of giving food each week. Many people living

25

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CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
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1 outside in the area depend on this food bank to survive. Trinity Parish also operates a Thrift

2 Store, and a voucher program for the store wherein people can get clothing and other items

3 they might need, like blankets or coats to survive the cold weather for free. Trinity is near an

4 encampment area that is swept frequently, and a number of those residents utilize Trinity’s

5 services. Trinity has reason to believe that items it has provided to the unhoused have been

6 seized and destroyed by Defendants.

7

36. Plaintiff Real Change exists to provide opportunity and a voice for low-income

8 and unhoused people while taking action for economic, social and racial justice. Tim Harris

9 founded Real Change in 1994 and has served as its director since. Real Change’s mission is

10 to offer immediate employment options for the poor and unhoused and challenge the

11 structures that create poverty. Real Change publishes a weekly newspaper of the same name

12 that provides employment to about 800 poor and unhoused people annually, who sell the

13 papers throughout the greater Seattle area. At any given time, about half of Real Change’s

14 vendors are unhoused, and one-third of Real Change’s vendors live outside, many in

15 greenbelts and other encampments throughout the City. The employment that Real Change

16 provides to unhoused people, including those living outside, gives them the income they need

17 to buy food, medicines, clothes, sleeping bags, tents, and other necessaries.

18

37. Many of the unhoused vendors living outside who work for Real Change have

19 been victimized by Defendants’ sweeps, which have seized and destroyed valuables like

20 sleeping bags, medicines, and clothing—items that were purchased with the income they

21 earned as Real Change newspaper vendors. City and WSDOT employees have also seized

22 and destroyed irreplaceable mementos and photographs belonging to Real Change vendors,

23 essential identification papers, and the Real Change newspapers that provide the basis of their

24 income.

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 8

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
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1

38. Defendants’ actions have severely disrupted the lives of Real Change vendors,

2 who are unable to sell papers and earn an income after their property is seized and destroyed

3 because they must instead devote their time to replacing lost articles. As a result, some

4 vendors have become unable to work for Real Change, which reduces the organization’s

5 presence on the streets and negatively impacts its fulfillment of its mission, and deprives the

6 vendors of much needed income.

7

39. To allay the disruption and dislocation that Real Change vendors have suffered

8 and will continue to suffer as a result of Defendants’ sweeps, Real Change staff collects

9 replacement sleeping bags, coats, and other necessities to give to those Real Change vendors

10 whose property has been seized by Defendants. Real Change staff also helps those impacted

11 by the sweeps by connecting them to social service organizations that can help them replace

12 lost identification and other essential paperwork. Real Change also assists its unhoused

13 vendors living outside who are caught up in sweeps by providing them access to community

14 space where they receive emotional and physical support from other vendors, and to

15 computers where they can begin the process of replacing their identification and other

16 documents.

17

40. Real Change has been impacted by Defendants’ actions both by and through its

18 vendors and because it has had to divert organizational resources as a result of Defendants’

19 sweeps.

20 C. Defendants

21

41. Defendant City of Seattle is a political subdivision and municipal corporation

22 organized under the laws of the State of Washington. The City is a legal entity with the

23 capacity to sue and be sued. The City of Seattle is sued in its own right and on the basis of the

24

25

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1 acts or omissions of its officials, agents, and employees who were following the City’s

2 policies.

3

42. Defendant Washington State Department of Transportation is an agency and

4 instrumentality of the State of Washington.

5

43. Defendant Roger Millar is the Secretary of Transportation for WSDOT.

6 Defendant Millar is responsible for implementing and carrying out WSDOT’s programs and

7 policies and is joined to this action in his official capacity only.

8

IV. CLASS ACTION ALLEGATIONS

9

44. Pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), the named Plaintiffs bring this

10 action individually and on behalf of all other persons similarly situated. The proposed

11 Plaintiff Class consists of

12

All unhoused persons who live outside within the City of Seattle, Washington and

who keep their belongings on public property.

13 45. The requirements of Rule 23(a) are met because the members of the proposed

14 Plaintiff Class are so numerous that joinder is impracticable; there are questions of law and

15 fact common to all members of the proposed Plaintiff Class; the claims of the named

16 Plaintiffs are typical of those of the proposed class members; and the named Plaintiffs will

17 fairly and adequately protect the interests of the proposed Plaintiff Class.

18 46. The defined class is so numerous that joinder of all plaintiffs is impracticable.

19 While it is impossible to know the exact number of people living outside in the City of

20 Seattle, the Seattle/King County Coalition on Homelessness found that on a given night, in

21 January 2016, at least 2,000 individuals were sleeping outside within the City limits. Even

22 more individuals cycle through emergency and temporary shelters and may find themselves

23 temporarily living outside. Further, in part due to Defendants’ practices and policies, the

24

25

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1 population of people living outside is transient, making it difficult to find and identify all class

2 members individually.

3

47. There are questions of law and fact common to the class. These include:

4

a. Whether Defendants have a practice and policy of seizing and destroying

5

the personal property of people living outside without a warrant, probable

6

cause, adequate notice, an opportunity to have a meaningful pre- or post-

7

deprivation hearing, or an opportunity to retrieve vital personal property before

8

its seizure or destruction;

9

b. Whether Defendants’ custom, policy, or practice violates Plaintiffs’

10

constitutional rights against unreasonable search and seizures under the Fourth

11

Amendment of the U.S. Constitution;

12

c. Whether Defendants’ custom, policy, or practice violates class members’

13

right to privacy under Article I, Section 7 of the Washington State

14

Constitution;

15

d. Whether Defendants’ custom, policy, or practice violates class members’

16

constitutional rights to procedural due process under the Fourteenth

17

Amendment of U.S. Constitution; and

18

e. Whether Defendants’ custom, policy, or practice violates class members’

19

constitutional rights to procedural due process under Article I, Section 3 of the

20

Washington State Constitution.

21

48. The claims of the named Plaintiffs are typical of the claims of the Class. The

22 named Plaintiffs’ claims arise from the same conduct—Defendants’ sweeps—that gives rise

23 to the absent members’ claims, and the declaratory and injunctive relief requested applies

24 equally to all members of the Class.

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 11

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1

49. The named Plaintiffs will fairly and adequately protect the interests of the

2 Class. Plaintiffs seek to ensure that Defendants respect the constitutional rights of all people

3 who live outside and/or maintain their belongings on public property. The relief they seek will

4 benefit all members of the class. The named Plaintiffs have no interests antagonistic to the

5 interests of the Class.

6

50. Plaintiffs are represented by the ACLU of Washington, which has extensive

7 experience in civil-rights and class-action litigation and has sufficient resources to diligently

8 prosecute the claims of the class. Plaintiffs are also represented by the law firm of Corr

9 Cronin Michelson Baumgardner Fogg & Moore LLP.

10

51. Class certification is proper under Rule 23(b)(2). Defendants have acted in an

11 unlawful manner generally applicable to all proposed Plaintiff Class members by conducting

12 sweeps of areas where people living outside reside without a warrant, probable cause,

13 adequate and effective notice, an opportunity to be heard, or a meaningful opportunity to

14 retrieve belongings. Defendants’ unlawful acts have caused irreparable injury to Plaintiffs

15 and the Class including but not limited to the loss of property and emotional damage, and

16 placed Plaintiffs and the Class at imminent risk of further such injury. Injunctive and

17 declaratory relief with respect to the entire class is therefore appropriate.

18

V. FACTUAL ALLEGATIONS

19 A. The City’s Homeless Population

20

52. On November 2, 2015, the City of Seattle Mayor, Edward Murray, declared a

21 State of Emergency (“Declaration”) on homelessness, seeking outside assistance to deal with

22 the alarming number of Seattle residents living without fixed, regular, or adequate housing.

23 Since the Mayor’s Declaration, the number of people living outside in the City has only

24 increased.

25

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CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
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1

53. On January 29, 2016, SKCCH counted approximately 2,942 Seattle residents

2 sleeping and living outside. An estimated 914 of these individuals were found trying to

3 survive the harsh January weather in a car or truck. Shelter for the remaining 2,028 consisted

4 of that which they built for themselves or could find in the form of existing structures such as

5 under roadways. These numbers are always assumed to be an undercount, as they do not

6 include those who have taken great care to stay out of sight, as well those living in

7 encampments SKCCH deemed unsuitable for volunteers to count and other spaces volunteers

8 simply did not get to.

9

54. Unhoused Seattle residents who live outside have homes. They look different

10 than brick and mortar houses but serve the same purposes. They are often made of tents,

11 tarps, blankets, poles, and other materials to create safe, dry, insulated, and private shelter.

12 And, like everyone else’s homes, they contain the owner’s possessions. These belongings are

13 often critical to survival or of particular psychological value, including medication, hearing

14 aids, respirators, wheelchairs, and canes; blankets, a sleeping bag, or clothing to stay warm;

15 tents or tarps to provide shelter; cookware, eating utensils, and food; identification,

16 immigration, or court documents; bikes or other modes of transportation; work tools;

17 schoolbooks and materials; and family photos and mementos.

18

55. People living outside frequently build their homes on public property and in

19 areas that provides some shelter from the elements, such as under bridges or roadways, and

20 offer some privacy from the public to keep themselves and their possessions safe. Many live

21 near and among other people, in communities, much as those who live in houses do. These

22 communities (often referred to as encampments) offer an increased sense of safety,

23 community, and stability. In fact, individuals living outside frequently stay in their place of

24 residency for many months, or even years.

25

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CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
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1

56. These communities also provide the unhoused with a place to leave their

2 belongings while they go about their daily lives. Like all members of society, people living

3 outside have personal and business affairs to attend to during the day, including working or

4 searching for employment; attending school; visiting lawyers, doctors, social workers, or

5 other service providers; and obtaining food, clean water, and other necessities of survival.

6 Having a stable place to live and store belongings makes it easier for people living outside to

7 find a job and obtain employment, and meet with service providers to take the requisite steps

8 to secure more permanent housing.

9

57. Like all people, those living outside also generate waste and garbage. The City

10 provides containers for disposal, regularly scheduled garbage pickup, and a sewer system for

11 those living in houses, but people living outside often have no option other than to place their

12 garbage near their homes. In areas where multiple people live, this garbage accumulates more

13 quickly.
14 B. Defendants Have An Ongoing Policy and Practice of Sweeping Unhoused People and Their Possessions from Public Property
15 58. As an integral part of its strategy to address homelessness, Defendants have a
16 longstanding and ongoing policy and practice of conducting sweeps of people living outside.
17 Defendants often refer to this conduct as “cleanups” of “unauthorized,” “unsanctioned,” or
18 “illegal” encampments. Defendants claim the sweeps are necessary to ensure that public
19 property is used as it was intended to be used, and/or that sweeps are necessary for the public
20 health and safety of both Seattle’s housed and unhoused residents. Defendants have
21 additionally asserted that these sweeps will help connect people living outside with the
22 services they need to get off the streets.
23 59. The reality is that these sweeps are conducted in a manner that violates
24 Plaintiffs’ constitutional rights and causes them irreparable harm.
25

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1

60. Defendants’ sweeps target only areas in which unhoused people have built

2 their homes and maintain their possessions, not any public property where garbage, waste, or

3 hazardous materials have accumulated.

4

61. In fact, housed Seattle residents are encouraged to report unauthorized

5 encampments to the City, either online, via phone, or through the City’s “Find It, Fix It”

6 phone app. WSDOT additionally receives and responds to complaints regarding use of its

7 public property by unhoused individuals.

8

62. Defendants are deeply committed to conducting these sweeps, sharply

9 increasing the number of sweeps conducted in the last several years. In 2012, Defendants

10 conducted 80 sweeps of people living outside and their belongings; in 2014, Defendants

11 conducted 351 sweeps, exceeding any prior year on record. Defendants’ use of sweeps has

12 only continued to grow—in 2015, Defendants conducted more than 500 sweeps. Since the

13 City’s Declaration on November 2, 2015, Defendants have conducted approximately 600

14 sweeps, averaging nearly eleven a week.

15

63. Defendants have devoted significant money, resources, and time to planning

16 and conducting these sweeps. Approximately one third of the more than $7 million the City

17 secured as a result of its State of Emergency Declaration was spent removing the homes of

18 people living outside and seizing and destroying their property. WSDOT has also devoted

19 considerable resources on sweeps, noting it spends approximately $250,000 a year removing

20 unhoused people’s property in recent years and calling its activities “evictions.”

21

64. The sweeps are carried out by the City and/or WSDOT personnel, overseen by

22 City and/or WSDOT personnel, and conducted pursuant to policies approved by Defendants’

23 most senior decision makers.

24

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1 C. Defendants’ Official Policies Governing Sweeps are Unconstitutional

2

65. In 2008, shortly after a WSDOT contractor killed a man with a brush cleaning

3 tractor during a sweep, Defendants adopted official policies and guidelines to govern sweeps

4 of areas where people live outside on public property. The City promulgated the Multi-

5 Departmental Administrative Rules 08-01 (“MDAR”), and WSDOT adopted the “Guidelines

6 to Address Illegal Encampments” (“WSDOT Guidelines”).

7

66. Both the MDAR and the WSDOT Guidelines are still in effect and constitute

8 Defendants’ only known official published policies pertaining directly to sweeps.

9

67. Although Defendants may have modified some of their regulations, these

10 modifications have not been formally adopted, are not enforceable, and are subject to

11 inconsistent implementation at best.

12

68. Although the MDAR and WSDOT Guidelines purport to offer more

13 procedural safeguards than previously existed, they were largely intended to address the

14 patchwork system of rules and agencies previously responsible for the sweeps, and do not

15 ensure that sweeps are conducted in compliance with the constitution.

16

69. Even if Defendants’ sweeps were conducted fully in accordance with both the

17 MDAR and the WSDOT Guidelines, they would still be unconstitutional.

18

1. Defendants’ Official Policies Fail to Provide for Adequate and Effective

Notice

19 70. Both the MDAR and the WSDOT Guidelines lack sufficient requirements for

20 notice to protect the rights of unhoused residents living outside in Seattle. Although both

21 require 72-hour notice prior to the removal of property and storage of such property for 60

22 days (MDAR) or 70 days (WSDOT Guidelines), the requirements are so filled with

23 exceptions and exclusions as to make them meaningless. The requirements exempt many, if

24 not most, people living outside from even the most minimal of notice protections.

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1

71. For example, the notice requirements under the MDAR apply only to

2 “encampments,” defined as three or more or more unauthorized structures within an

3 identifiable area or within 300 feet of another encampment. This means that under its own

4 rules, the City does not have to provide any notice to individuals camping alone or in pairs or

5 to those who do not live in structures (like tents or lean-tos) before seizing and destroying all

6 of their possessions.

7

72. The notice requirements of the MDAR additionally do not apply to “recurring

8 encampments,” which are sites where an encampment has been observed three or more times

9 within any 60 day period. This exception essentially excludes all long-term encampments

10 from any notice requirement before all of the residents’ property is seized and destroyed, as

11 long as notice had at some point since 2008 been posted for the encampment. This exception

12 applies even if none of the current residents lived there within the prior 60 days, or were

13 otherwise unaware that a notice for the area had been posted at some point within the last 8

14 years.

15

73. In these situations, the City’s own written policy also does not require it to

16 provide any storage of any property seized during the sweep unless the property has the name

17 of the owner on it, and is valued at over $100. The determination of value is made on the spot

18 by Defendants’ employees and is not appealable. This provision authorizes the City to

19 immediately remove and discard any other property on site.

20

74. The exceptions to Defendants’ rules on their face make it impossible for

21 people living outside to safely live and store their belongings without constant risk that

22 everything will be taken from them with no notice.

23

75. Defendants have conducted over 1000 sweeps in the City in the past two years

24 alone in neighborhoods across Seattle. If an unhoused person living outside happens to have

25

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1 their home in or within 300 feet one of those encampments, they are not entitled to any notice

2 under the MDAR before their property is taken and destroyed. But neither can an individual

3 move their home away from an encampment to protect their property from seizure because

4 the MDAR does not require notice or storage for property not within an encampment.

5

76. The WSDOT Guidelines include just as many exceptions to the notice

6 requirement, allowing WSDOT to justify the immediate removal of property where it is not

7 “practical” or “feasible” to post notice because of “[c]rew scheduling, emergency repairs and

8 removal of nuisances,” or other situations “where the maintenance activity cannot wait or be

9 predicted.” In addition, the Guidelines specify that “[s]ites where maintenance occurs on a

10 frequent but random basis will be posted ‘No Trespassing,’” implying that in such cases, no

11 72-hour notices will be posted. The Guidelines also exclude recurring encampments from

12 notice protections, providing that previously cleared encampment sites will be revisited by

13 WSDOT and, if encampments are again found, “No Trespassing” signs will be posted “and

14 removal efforts may proceed without 72 hour notification.”

15

77. Further, both the MDAR and the WSDOT Guidelines lack notice requirements

16 to ensure that notice is actually effective.

17

78. The City’s policymakers have themselves noted that the notices are difficult to

18 understand; one councilmember stated, “I can barely understand these postings, and I have a

19 law degree.”

20

79. Neither the MDAR nor the WSDOT Guidelines take into account people with

21 limited English proficiency, limited literacy, or disabilities (such as blindness).

22

80. Neither the MDAR nor the WSDOT Guidelines require Defendants to actually

23 conduct the sweep on any particular date or time, including that which is stated in the notice;

24

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1 or to update the notice if they cancel, prolong, put off the sweep, or limit it to a different area

2 than posted.

3

81. Neither the MDAR nor the WSDOT Guidelines provide for any training to

4 Defendants’ employees and staff as to what constitutes constitutionally adequate and effective

5 notice or how to provide such notice.

6

82. In fact, both the MDAR and the Guidelines explicitly contemplate uneven and

7 unpredictable enforcement. For example, the Guidelines are not binding on WSDOT crews:

8

These Guidelines form the basis for WSDOT work on state-owned right of

way, and will be revised as necessary to meet the current situation and to

9

reflect the available resources, including budget and staffing. Each Region

may exercise its discretion to deviate from these Guidelines if the Region

10

determines that coordination with a local jurisdiction on a specific clean-up

11

activity is the best course of action under the circumstances. However, the activity shall be at least as effective as the provisions contained in these

12

Guidelines.

13

Similarly, the implementation and enforcement of the MDAR are solely at the discretion of

14

the Executive, enabling vast deviation from the rules without consequence.

15

83. These various deficiencies, when coupled with Defendants’ actual practice and

16

policy discussed infra, make it impossible to predict when a sweep will occur and renders any

17

notices that are posted meaningless.

18

2. Defendants’ Official Policies Fail to Provide Constitutionally Required Due Process

19

84. The MDAR and WSDOT Guidelines similarly lack provisions to ensure pre- or

20

post-deprivation due process. Once a sweep has begun, the MDAR and WSDOT Guidelines

21

only require Defendants to store property that Defendants unilaterally determine fits within an

22

enumerated list or are of a particular value, enabling the destruction of countless items that are

23

necessary for unsheltered people’s survival and daily activities, or are otherwise of significant

24

personal value.

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1

85. Although the MDAR requires the storage of personal property, personal

2 property is limited to items which have “apparent utility,” are defined by example, or “have a

3 reasonable value of more than $25.” The MDAR does not consider building materials to be

4 personal property, nor items that are “hazardous,” which can include items that are wet or

5 muddy because they are kept outside.

6

86. The WSDOT Guidelines similarly define personal property by example, and

7 provide minimal criteria for determining whether an item should be stored.

8

87. As a result, City and WSDOT personnel have almost complete discretion to

9 determine whether an item should be stored, regardless of its worth, necessity, or significance

10 to its owner.

11

88. Even if property is stored, neither regulation ensures that people have any

12 meaningful opportunity to retrieve their seized property. Neither contains requirements for

13 property storage that assure storage facilities are in accessible locations or open at regular

14 hours and neither requires Defendants to adequately notify owners as to how to reclaim their

15 belongings.

16

89. Neither the MDAR nor the Guidelines contemplate that compensation will be

17 paid to people to replace property seized and/or destroyed during the sweeps.

18

90. Neither the MDAR nor the Guidelines require adequate training for

19 Defendants’ personnel on the procedural due process rights implicated by government seizure

20 of personal property.
21 D. Defendants’ Actual Practice of Conducting Sweeps Violates Both Their Own Rules and the U.S. and Washington State Constitutions
22 91. Not only are Defendants’ official policies unconstitutional as written, but
23 Defendants have conducted and approved of longstanding and ongoing practices that violate
24

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 20

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 22 of 37

1 even the most basic portions of their own rules, along with the U.S. and Washington State

2 constitutions.

3

92. Even if Defendants were to adopt official policies and procedures that comply

4 with the constitutional rights of Seattle residents living outside, there is no guarantee that

5 Defendants would follow them absent a court order.

6

93. For decades—and in the 8 years since the MDAR and WSDOT Guidelines

7 were adopted—Defendants have conducted sweeps sporadically, unpredictably, and with utter

8 disregard of even their own (wholly inadequate) regulations. In the hundreds if not thousands

9 of sweeps conducted by Defendants across the City in recent years, they have failed to follow

10 any consistent procedure with regards to notice to people living outside of impending sweeps,

11 the disposal or storage of seized property, or the opportunity for people to reclaim their

12 belongings.

13

94. Although each sweep is different, the following policy and practice has been

14 implemented on multiple occasions since November 2, 2015 and is ongoing:

15

95. Prior to conducting a sweep, Defendants target areas where people living

16 outside have set up homes and communities. Defendants frequently refer to these sweeps as

17 “clean ups”—implying that their goal is to merely clear the area of trash, debris, waste, and/or

18 other hazardous materials—but target only these areas.

19

96. Although Defendants’ target particular areas, their officially sanctioned

20 practices are wholly ineffective at providing constitutionally adequate notice before a sweep

21 occurs.

22

97. Even when Defendants do provide some form of notice, it is typically

23 inadequate, inconsistent, inaccurate, inaccessible, and/or misleading—rendering every notice

24 constructively ineffective.

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 21

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 23 of 37

1

98. Notice of a sweep is often provided less than 72 hours in advance, and

2 sometimes even after the fact, depriving people living in the area of any meaningful

3 opportunity to make other arrangements for their belongings.

4

99. Notice is frequently only posted in inconspicuous areas that people living

5 outside do not actually walk past or cannot easily see.

6

100. Notice frequently neglects to specify exactly where a sweep will occur—listing

7 merely a single street name with no cross street boundaries or other descriptors.

8

101. Although notice is sometimes attached to individual tents, it is just as often

9 posted to trees, fences, or other structures on the border of an area to be swept. This

10 inconsistency leaves unhoused people with no idea of the type of notice to expect, if any,

11 before their property will be seized and destroyed by Defendants.

12

102. Many of the notices merely state that property will be seized after 72 hours,

13 without specifying a date or time.

14

103. Regardless of the dates on a posted notice, sweeps are often conducted at

15 widely varying intervals after the notices are posted.

16

104. By way of example, this photo was taken of a notice posted on a tree, allegedly

17 on December 27, 2016. It offers no description of the actual area to be swept, nor a time

18 when it was posted.

19 ///

20 ///

21 ///

22 ///

23 ///

24 ///

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 22

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 24 of 37

1

2

3

4

5

6 7 8 9 10 11 12 13 14

15

16

17

18

19

20

21

22

105. Even signs that do provide more specific information, such as a date and time,

23

often provide inconsistent information, such as days of the week that do not correspond to the

24

dates listed.

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 23

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 25 of 37

1

106. By way of example, this photo was taken of a notice allegedly provided before

2 a sweep in September of 2016.

3

4

5

6 7 8 9 10 11 12 13 14

15

16

17

18 107. Sweeps are routinely conducted at different dates and times than those
19 indicated on the notice.
20 108. Thus, even when Defendants have provided some sort of notice, residents do
21 not receive actual and effective notice as required by the Constitution because they still do not
22 know whether or when a sweep will actually occur. Defendants have functionally deprived
23 Plaintiffs of notice altogether.
24
25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 24

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 26 of 37

1

109. Defendants make minimal to no accommodations to reach people who cannot

2 read English—people who are also constitutionally entitled to notice. Notice is only

3 occasionally provided in Spanish (WSDOT provided notices generally include both; City

4 provided notices are frequently in English only) and is generally only given in written format.

5 People who do not speak English or Spanish, who are blind, who cannot read, and who may

6 have other cognitive disabilities or mental illnesses that make written notice difficult to fully

7 comprehend are deprived of notice.

8

110. Further, because minimal justification is proffered by Defendants prior to

9 conducting a sweep, it is impossible for Plaintiffs even to guess whether their homes will be

10 targeted. Defendants have conducted sweeps in clean and well-maintained encampments, as

11 well as encampments of the type they promised would not be swept. Some encampments

12 have been swept multiple times; others’ homes have presumably never been touched.

13

111. Plaintiffs’ constitutional rights are implicated because Defendants’ “clean up”

14 strategy does not entail merely disposing of trash, debris, waste, and/or hazardous materials,

15 or taking affirmative government action to resolve the safety or public health risk allegedly

16 posed by the residents, such as by providing portable restrooms or garbage disposal services.

17

112. Instead, Defendants’ “clean up” strategy is to seize and destroy the possessions

18 of people who live outside.

19

113. Defendants often clear entire sites, indiscriminately removing the visible

20 property and personal belongings either by hand or with heavy machinery like bulldozers and

21 backhoes.

22

114. When a bulldozer or backhoe is used, the property is immediately destroyed.

23 By way of example, the picture below was taken on September 14, 2016 at one of

24 Defendants’ sweeps conducted at the location where Plaintiff Hooper lives.

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 25

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 27 of 37

1

2

3

4

5

6
7
8
9
10
11
12
13 115. In addition to using heavy machinery, Defendants sometimes physically
14 destroy property on site, including slashing tents and tarps, and smashing property before
15 removing it.
16 116. Defendants throw away things that they unilaterally determine to be garbage or
17 of insufficient value to be stored. Often these items will be taken offsite for disposal.
18 117. Defendants also frequently gather up all items—mixing actual garbage with
19 personal belongings—and just leave them in a pile.
20 118. Sometimes Defendants only shift the actual garbage and waste to another area
21 rather than removing it.
22 119. Defendants conduct these sweeps without warrants to seize and destroy
23 property, or permission from the property owners.
24
25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 26

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 28 of 37

1

120. Defendants seize and destroy property regardless of whether the owner is

2 present.

3

121. Defendants frequently seize property that they know is not abandoned but

4 rather left unattended momentarily while the person living outside attends to other activities

5 or responsibilities.

6

122. Many residents ask their neighbors to watch over their belongings when they

7 momentarily step away, but even this will not save their property from destruction.

8 Defendants inform residents that they are not allowed to pack up or save anyone else’s

9 belongings once a sweep has begun.

10

123. Even an owner’s presence may not save the property from destruction. People

11 have literally wept and begged Defendants not to seize and destroy their property as

12 Defendants seize and destroy it, to no avail.

13

124. People living outside are frequently forced to scramble to gather as many of

14 their belongings as possible to prevent the destruction of all of their property. Defendants

15 seize and often destroy whatever is left, even when they are informed that the owners will

16 return for their items.

17

125. Defendants routinely and as an officially sanctioned practice ignore their own

18 policies and procedures for determining whether an item should be held in storage for the

19 owner.

20

126. Defendants deny Plaintiffs any opportunity, either before or after the fact, to

21 contest the confiscation or destruction of their property before an impartial decision maker.

22

127. Property that is disposed of immediately is impossible to retrieve - often

23 crushed inside a garbage truck.

24

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 27

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 29 of 37

1

128. Property that is stored is destroyed after 60 days and impossible to retrieve

2 because Defendants fail to observe appropriate procedures regarding storage of personal

3 property.

4

129. For example, Defendants fail to notify people whether their property will be

5 stored, where it will be stored, for how long, or how the property may be retrieved.

6 Defendants’ posted notices state only: “THIS IS NOT AN AUTHORIZED AREA FOR

7 STORAGE OR SHELTER. All material will be disposed of in 72 hours.”

8

130. On the rare occasion they do provide information regarding storage,

9 Defendants generally only give a phone number, which a person living outside must call to

10 get specific information. Those living outside who do not have a phone or money to pay for a

11 phone call (or those whose phone and/or money was taken during the sweep) are left without

12 recourse, as are those who cannot read the notice.

13

131. Aside from sporadic written notices, Defendants offer zero to minimal

14 information regarding the actual property retrieval process following a sweep. WSDOT and

15 City employees answering the phone are unwilling or unable to say where items are stored or

16 when they can be picked up. On at least one occasion, a City employee answering the

17 telephone at the number listed on the notices posted at a sweep site was unable to identify

18 where stored belongings are kept.

19

132. Defendants routinely fail to inventory or otherwise keep track of items that are

20 confiscated or destroyed, leaving people with no way of knowing whether their property was

21 even kept.

22

133. Defendants impose other barriers to property retrieval as well. People living

23 outside must find a way to not only get to the facility where items are being stored, but figure

24 out a method to transport any items stored at the facility back to their current place of

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 28

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 30 of 37

1 residence. The facility where items deemed worthy of storage are kept is at 4200 Airport

2 Way South, approximately an hour walk from downtown Seattle, making it difficult to access

3 without a car from many Seattle neighborhoods, and far away from where a lot of people

4 living outside reside. It becomes even harder to access if Defendants took or destroyed a

5 method of transportation, like a bicycle or bus pass.

6

134. The storage facility additionally has limited operating hours, rendering it

7 impractical or impossible for Plaintiffs and other people living outside to retrieve their

8 property, even if they are able to discover whether and where the property is being stored.

9

135. In the lucky event someone is able to confirm that their property is being

10 stored and can make it to the facility during operating hours, Defendants may require them to

11 show government identification and describe all the seized belongings. Neither requirement

12 may seem overly onerous on its face, unless the identification is precisely the item that was

13 seized, and until one considers the difficulty of detailing all of one’s worldly possessions.

14

136. As a result, one worker at the City’s storage facility estimates that only 1 or 2

15 percent of the materials stored are ever picked up, with the rest eventually thrown out. The

16 worker additionally noted that “Obviously, for people that don’t have anything, this stuff here

17 [at the storage facility] is their everything.” He concluded, “That’s very difficult – to throw

18 things away that probably mean something to people is probably the toughest part [of his

19 job].”

20

137. Plaintiffs are informed and believe and on such basis allege that at all times

21 relevant to this action, each of the individuals who seized and destroyed their property were

22 the agents, and/or employees of the Defendants and were acting at all times within the scope

23 of their agency and employment and with the knowledge and consent of their principal and

24 employer, WSDOT or the City.

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 29

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 31 of 37

1 E. Defendants Know Or Should Know That Their Conduct is Unconstitutional and Refuse to Remedy It
2 138. Defendants have been on notice for years that their policy and practice of
3 evicting people living outside from their homes, and intentionally taking and destroying their
4 property violates the U.S. and state constitutions. They nevertheless persist in violating
5 Plaintiffs’ rights.
6 139. State and local advocates and organizations have repeatedly warned
7 Defendants of the unconstitutional nature of their conduct. For example, after a meeting with
8 the City in November of 2015, Columbia Legal Services and the ACLU wrote a letter to the
9 City expressing their concerns that Defendants’ current practice and policy violated the
10 Fourth and Fourteenth Amendments of the U.S. Constitution, as well as Washington State
11 law, reminding the City that “[s]weeps conducted with adequate notice to the people living in
12 the identified locations and/or without adequate procedures to safeguard their property violate
13 civil and property rights guaranteed by the constitution.”
14 140. Defendants’ policies and practices have also been condemned by a number of
15 courts. Most recently, the Ninth Circuit made it explicitly clear that the government cannot
16 “seize and destroy with impunity the worldly possessions of a vulnerable group in our
17 society.” Lavan v. City of Los Angeles, 693 F.3d 1022, at 1033 (9th Cir. 2012). The Court
18 further underscored that “[a]s [the courts] have repeatedly made clear, the government may
19 not take property like a thief in the night; rather it must announce its intentions and give the
20 property owner a chance to argue against the taking. This simple rule holds regardless of
21 whether the property in question is an Escalade, or [a temporary shelter], a Cadillac, or a
22 cart.” Id. at 1032 (internal citations omitted).
23 141. The media has amply documented the illegality of the sweeps. For example, a
24 Seattle Times report observed that “sweeps of encampments have been plagued by
25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 30

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 32 of 37

1 disorganization and miscommunication that has often resulted in homeless residents losing

2 their possessions.” The report further noted that outreach workers were often not available,

3 showing up after a sweep had taken place or not at all, due to miscommunications between

4 cleanup crews and outreach staff.

5

142. Even the City’s own departments have warned Defendants that their policies

6 and practices are ineffective, inconsistent, and deprive people living outside of effective

7 notice, an opportunity to be heard, or a meaningful opportunity to retrieve their property.

8

143. For example, on August 31, 2016 the City implemented a Task Force to study

9 the sweeps. Although the Task Force found Defendants’ “approach has negatively impacted

10 homeless individuals and neighborhoods,” it proffered no solutions.

11

144. In September 2016, the City hired the Seattle Office of Civil Rights (“OCR”)

12 to monitor the sweeps. Monitors regularly reported back to Defendants that the sweeps were

13 traumatizing to observe and that Defendants failed to give appropriate notice of the sweeps.

14 One note from OCR observes “WSDOT a hott [sic] mess!”

15

145. The Seattle Human Rights Commission also wrote to the Mayor and the City

16 in September 2016, noting that Defendants are “inconsistent in . . . removal and notification

17 procedures,” “forcibly displac[ing] individuals from their homes and disconnect[ing] them

18 from their personal property.”

19

146. Defendants have ignored these concerns. For example, despite the “positive

20 impact” the City admits OCR monitors have had, it has transferred on-the-ground oversight of

21 its sweeps to the City’s office of Finance and Administrative Services (FAS), with the explicit

22 goal of “operationaliz[ing] and routiniz[ing]” sweeps.

23

147. As recently as December 23, 2016, the Seattle Human Rights Commission

24 additionally expressed concern with this switch, writing that “[t]he continued presence of

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 31

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 33 of 37

1 OCR (Office of Civil Rights) monitors is vital to ensuring that encampment sweeps do not

2 further violate encampment residents’ civil rights.” The City responded that FAS has

3 demonstrated it performs robust and responsible management of the City’s encampment

4 clean-up efforts.

5

148. Yet on the day the letter was issued (January 4, 2016), Defendants conducted a

6 sweep without providing residents adequate and effective notice, and despite being informed

7 notice had not been provided, only stopped the sweep after an hour of operating heavy

8 equipment.

9

149. Defendants’ pattern and practice of behavior coupled with statements by

10 official policymakers and written procedures make clear they will persist in using sweeps

11 without the required constitutional protections, making Plaintiffs only recourse this Court.
12 F. Plaintiffs Have Suffered and are at Continued Imminent Risk of Suffering Irreparable Harm as a Result of Defendants’ Actions
13 150. As a direct and proximate result of Defendants’ unconstitutional practices and
14 policies, Plaintiffs have suffered and will continue to suffer serious irreparable harm,
15 including but not limited to the destruction of personal property. Defendants’ actions have
16 resulted in the loss of essential personal property for many residents living outside including
17 but not limited to medication, respirators, wheelchairs, canes, blankets, sleeping bags,
18 clothing, tents, tarps, cookware, eating utensils, food, identification, immigration and court
19 documents, and irreplaceable family heirlooms. The loss of these items is not only an
20 emotional blow, as it would be to anyone, but also threatens the physical safety, health, and
21 well-being of people living outside—particularly in the inclement weather of the Seattle
22 winter. In many cases, Defendants’ actions have deprived people living outside of everything
23 they own.
24

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 32

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 34 of 37

1

151. Defendants’ actions deprive people of the few possessions they have, forcing

2 them to survive days or weeks after a sweep without medication, shelter, sufficient food,

3 essential hygiene items, and transportation. Many people lack the resources to replace items

4 destroyed by Defendants. In the event a person is able to replace items, it takes significant

5 time. It can take local outreach organizations a year to get someone an ID, and when that ID

6 is taken or destroyed in a sweep, it can take another year to get a replacement.

7

152. The sweeps create massive disruption in people’s lives; rather than trying to

8 break out of the cycle of homelessness, Defendants’ actions force people living outside to

9 spend their time and resources replacing what has been destroyed. Time that could be spent

10 looking for housing, employment, or accessing medical care is now spent replacing

11 belongings and documents necessary for survival. That burden is further exacerbated by

12 Plaintiffs’ fear that what remaining possessions they have cannot ever be left unattended.

13

153. Defendants’ actions also have a severe emotional impact. Much like those

14 whose houses have been destroyed by natural disasters or violated by burglars, people who

15 have their homes swept report feeling degraded, scared, destabilized, anxious, angry, and

16 traumatized. Those feelings are amplified by the knowledge that the loss was the result of

17 state action sanctioned and approved of by Defendants pursuant to an active and on-going

18 policy without foreseeable end.

19

154. In addition to the injuries Defendants’ policies and practices inflict on

20 individuals, Defendants have directly and proximately increased the burden on the facilities

21 and services provided by organizations such as the Episcopal Diocese and its member

22 churches and Real Change. Defendants’ unlawful actions have additionally also caused

23 irreparable harm to members of both organizations.

24

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 33

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 35 of 37

1

155. The losses and injuries that Plaintiffs have suffered and are at imminent risk of

2 suffering cannot be adequately compensated by monetary damages.

3

156. Plaintiffs seek a declaratory judgment that Defendants’ policy and practice of

4 confiscating and/or destroying the personal property of people living outside without a

5 warrant, without probable cause, without a meaningful opportunity to reclaim property, and/or

6 without requisite procedural due process is unlawful under the federal and state constitutions.

7

157. Plaintiffs further seek appropriate injunctive relief enjoining Defendants’ use

8 of sweeps unless and until Defendants have adopted and implemented policies and procedure

9 that ensure that the constitutional rights of people living outside are not violated by the

10 sweeps.

11

VI. CAUSES OF ACTION

12

FIRST CLAIM

Right to Be Secure From Unreasonable Seizures

13

Fourth Amendment of the U.S. Constitution

14

158. Plaintiffs reallege and incorporate the allegations of the preceding paragraphs

15

as if fully set forth herein.

16

159. Defendants’ policy, pattern, and/or custom of seizing the individual Plaintiffs’

17

property without a valid warrant or probable cause is unreasonable and contrary to the Fourth

18

Amendment of the U.S. Constitution, as applied to the states by the Fourteenth Amendment to

19

the U.S. Constitution and 42 U.S.C. § 1983.

20

SECOND CLAIM

21

Right to Privacy and Protection From Invasion of Home

Article I, Section 7 of the Washington State Constitution

22

160. Plaintiffs reallege and incorporate the allegations of the preceding paragraphs

23

as if fully set forth herein.

24

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 34

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 36 of 37

1

161. Defendants’ policy, pattern, and/or custom of seizing the individual Plaintiffs’

2 property without a valid warrant are unlawful disturbances of the individual Plaintiffs' private

3 affairs and invasions of their homes, contrary to Article I, Section 7 of the Washington

4 Constitution.

5

THIRD CLAIM

Right to Due Process of Law

6

Fourteenth Amendment of the U.S. Constitution

7

162. Plaintiffs reallege and incorporate the allegations of the preceding paragraphs

8

as if fully set forth herein.

9

163. Defendants' policy, pattern, and/or custom of seizing and destroying the

10

individual Plaintiffs’ property without adequate notice and opportunity to be heard prior to

11

destruction of their property violates the individual Plaintiffs' right to due process of law

12

protected by the Fourteenth Amendment to the U.S. Constitution.

13

FOURTH CLAIM

14

Right to Due Process of Law

Article I, Section 3 of the Washington Constitution

15

164. Plaintiffs reallege and incorporate the allegations of the preceding paragraphs

16

as if fully set forth herein.

17

165. Defendants' policy, pattern, and/or custom of seizing and destroying the

18

individual Plaintiffs' property without adequate notice and opportunity to be heard prior to

19

destruction of their property violates the individual Plaintiffs' right to due process of law

20

protected by Article I, Section 3 of the Washington Constitution.

21

///

22

///

23

///

24

///

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 35

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

Case 2:17-cv-00077 Document 1 Filed 01/19/17 Page 37 of 37

1

VII. PRAYER FOR RELIEF

2

WHEREFORE, Plaintiffs pray for relief as follows:

3

1. For declaratory and injunctive relief as the court deems appropriate.

4

2. For an award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

5

3. For such further relief as is just and appropriate.

6

Respectfully submitted this 19th day of January, 2017.

7

s/ Emily Chiang

8

Emily Chiang, WSBA No. 50517

9

s/ Nancy Talner

Nancy Talner, WSBA No. 11196

10

s/ Breanne Schuster

11

Breanne Schuster, WSBA No. 49993

12 AMERICAN CIVIL LIBERTIES UNION

13

OF WASHINGTON FOUNDATION

901 Fifth Avenue, Suite 630

14

Seattle, Washington 98164

Telephone: (206) 624-2184

15

Email: echiang@aclu-wa.org

16

ntalner@aclu-wa.org

bschuster@aclu-wa.org

17

18

s/ Todd T. Williams

Todd T. Williams, WSBA No. 45032 19

20

CORR CRONIN MICHELSON

BAUMGARDNER FOGG & MOORE LLP

21

1001 Fourth Avenue, Suite 3900

Seattle, Washington 98154-1051

22

Telephone: (206) 625-8600

Email: twilliams@corrcronin.com 23

24

Attorneys for Plaintiffs

25

COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF - 36

CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP
1001 Fourth Avenue, Suite 3900 Seattle, Washington 98154-1051
Tel (206) 625-8600 Fax (206) 625-0900

 </s> Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 1 of 18

1

2

3

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5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7

)

LISA HOOPER, et al.,
8

) CASE NO. C17-0077RSM )

9

Plaintiffs,

)

) ORDER DENYING PLAINTIFFS’

10

v.

) MOTION FOR TEMPORARY

) RESTRAINING ORDER 11 CITY OF SEATTLE, WASHINGTON, et )

12 al.,

)

)

13

Defendants.

)

14
I. INTRODUCTION
15
This matter comes before the Court on Plaintiffs’ Motion for Temporary Restraining
16
17 Order (“TRO”). Dkt. #23. Oral argument occurred on February 13, 2017. The Court has

18 considered the written and oral arguments of the parties, along with the remainder of the

19 record. For the reasons set forth below, the Court now DENIES Plaintiffs’ motion.
20
II. BACKGROUND
21
This case arises out of the City of Seattle’s management of homeless1 encampments
22
23 located on City and other public property. Plaintiffs allege that Defendants City of Seattle (the

24 “City”) and the Washington State Department of Transportation (“WSDOT”) regularly conduct

25
26 1 Plaintiffs use the term “unhoused” rather than homeless in this litigation. “Unhoused” refers to all individuals who lack fixed, stable, or adequate shelter or housing. Dkt. #1 at ¶ 30, fn.2.
27 While the term “homeless” is often utilized to refer to this population, Plaintiffs use the term 28 “unhoused” because people who lack permanent or stable housing still have homes in which
they sleep and go about their private affairs. Id.
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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 2 of 18

“sweeps” where they seize and destroy the property of unhoused people living within the City
1
2 without constitutionally-required notice, without a warrant or probable cause, and without

3 providing an opportunity to be heard, or a meaningful way to reclaim any property that was not

4 destroyed. Dkt. #23 at 1.
5
The individual Plaintiffs in this litigation are two unhoused women who currently live
6
outside on public property in the City of Seattle. Dkt. #1 at ¶ ¶ 17 and 23. Plaintiffs allege that
7
8 over the past 18 months, they have had critical personal belongings taken and destroyed during

9 sweeps conducted by the City and WSDOT. Dkt. #1 at ¶ ¶ 18-22 and 24-29. They assert that
10
neither was ever given an opportunity to contest the confiscation and destruction of their
11
property. Id. Further, they assert that neither was ever given notice or any reason to believe
12
13 that any of their property would be stored and could be later retrieved. Id.

14

Plaintiff Diocese of Olympia is a diocese of The Episcopal Church in Washington State.

15 Dkt. #1 at ¶ 31. It is comprised of more than 26,000 Episcopalians in more than 100
16
worshiping communities throughout Western Washington. Id. Diocese congregations include
17
numerous members who are unhoused. Id. The mission of the Diocese of Olympia is to build
18
19 strong communities of faith. Id. There are a number of churches in the City of Seattle that are

20 members of the Episcopal Diocese, including St. Luke’s Episcopal Church and Trinity Parish

21 of Seattle. Id. at ¶ 32. Plaintiffs assert that these churches, as an integral part of their mission
22
and ministry, provide services to unhoused people in Seattle. Id. For example, St. Luke’s
23
Episcopal Church in Ballard operates a Meals Ministry called Edible Hope, wherein the church
24
25 and its congregation serve a hot breakfast five days a week to approximately 150-180 people

26 each day, 90 to 95 percent of whom are unhoused. Id. at ¶ 33. The church also co-sponsors a
27
program called the Bridge Drop In which offers a number of drop in services to unhoused
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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 3 of 18

individuals, including counseling, and stations for people to charge their electronics, and
1
2 operates a shelter on site. Dkt. #1 at ¶ 33.

3

The Diocese alleges that the confiscation and destruction of the belongings of people

4 living outside has affected the church’s operation in a number of ways. Id. at ¶ 34. It further
5
alleges that since Defendants have increased their use of sweeps, the church has had
6
significantly more unhoused people needing its meal and Bridge Drop In services. This
7
8 increased demand has put additional burden on the church’s facilities, and required significant

9 additional church resources. Id. The Diocese also alleges that the church is affected by
10
Defendants’ actions through its membership, as approximately 20 percent of the church’s
11
congregation is unhoused. Id. Trinity Parish of Seattle is also a member of the Diocese of
12
13 Olympia. Id. at ¶ 35. As a part of its mission, Trinity Parish offers a number of services for

14 unhoused individuals in Seattle, including a food bank and thrift shop in First Hill. Id. The

15 food bank, operated by Northwest Harvest, but located at Trinity Parish, provides food three
16
days a week to residents in need, with approximately 3,000-5,000 instances of giving food each
17
week. Id. Trinity Parish also operates a Thrift Store, and a voucher program for the store
18
19 wherein people can get clothing and other items they might need, like blankets or coats to

20 survive the cold weather for free. Id. Trinity is near an encampment area that is swept

21 frequently, and a number of those residents utilize Trinity’s services. Id. Plaintiffs allege that
22
Trinity has reason to believe that items it has provided to the unhoused have been seized and
23
destroyed by Defendants. Id.
24

25

Plaintiff Real Change states that it exists to provide opportunity and a voice for low-

26 income and unhoused people while taking action for economic, social and racial justice. Id. at
27
¶ 36. Tim Harris founded Real Change in 1994 and has served as its director since. Id. Real
28

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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 4 of 18
Change’s mission is to offer immediate employment options for the poor and unhoused and
1
2 challenge the structures that create poverty. Dkt. #1 at ¶ 36. Real Change publishes a weekly
3 newspaper of the same name that provides employment to about 800 poor and unhoused people 4 annually, who sell the papers throughout the greater Seattle area. Id. At any given time, about
5
half of Real Change’s vendors are unhoused, and one-third of Real Change’s vendors live
6
outside, many in greenbelts and other encampments throughout the City. Id. Real Change
7
8 alleges that many of the unhoused vendors living outside who work for it have been victimized
9 by Defendants’ sweeps, which have seized and destroyed valuables like sleeping bags,
10
medicines, and clothing – items that were purchased with the income they earned as Real
11
Change newspaper vendors. Id. Real Change further alleges that City and WSDOT employees
12
13 have also seized and destroyed irreplaceable mementos and photographs belonging to Real
14 Change vendors, essential identification papers, and the Real Change newspapers that provide
15 the basis of their income. Id. As a result, Real Change alleges that Defendants’ actions have
16
severely disrupted the lives of Real Change vendors, who are unable to sell papers and earn an
17
income after their property is seized and destroyed because they must instead devote their time
18
19 to replacing lost articles. Id. Thus, some vendors have become unable to work for Real
20 Change, which reduces the organization’s presence on the streets and negatively impacts its 21 fulfillment of its mission, and deprives the vendors of much needed income. Id. In addition,
22
Real Change alleges that it has been impacted by Defendants’ actions both by and through its
23
vendors and because it has had to divert organizational resources as a result of Defendants’
24
25 sweeps.
26 ///
27
///
28
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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 5 of 18

III. DISCUSSION
1

2

A federal court may issue a TRO “with or without written or oral notice to the adverse

3 party” only if “specific facts in the affidavit . . . clearly show that immediate and irreparable

4 injury, loss, or damage will result to the movant before the adverse party can be heard in
5
opposition” and the moving party “certifies in writing any efforts made to give notice and the
6
reasons why it should not be required.” Fed. R. Civ. P. 65(b). The standards for issuing a TRO
7
8 are similar to those required for a preliminary injunction. Lockheed Missile & Space Co., Inc.

9 v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D. Ca. 1995).

10
The Ninth Circuit has described the standards for deciding whether to grant a motion for

11
a preliminary injunction:
12

13

To obtain a preliminary injunction, the moving party must show either (1) a

combination of probable success on the merits and the possibility of

14

irreparable injury, or (2) that serious questions are raised and the balance of

hardships tips sharply in its favor. These formulations are not different tests

15

but represent two points on a sliding scale in which the degree of irreparable

16

harm increases as the probability of success on the merits decreases. Under

either formulation, the moving party must demonstrate a significant threat

17

of irreparable injury, irrespective of the magnitude of the injury.

18 Big Country Foods, Inc. v. Bd. of Educ. of Anchorage Sch. Dist., 868 F.2d 1085, 1088 (9th Cir.
19
1989) (citations omitted). The speculative risk of a possible injury is not enough; the
20
threatened harm must be imminent. Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d
21
22 668, 674 (9th Cir. 1988); Fed. R. Civ. Proc. 65(b)(1)(A).

23

The Ninth Circuit has recently reiterated that courts analyzing TRO requests are

24

guided by four questions: ‘(1) whether the stay applicant has made a strong

25

showing that he is likely to succeed on the merits; (2) whether the applicant

will be irreparably injured absent a stay; (3) whether issuance of the stay

26

will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.’ Lair v. Bullock, 697 F.3d 1200, 1203
27
(9th Cir. 2012) (quoting Nken, 556 U.S. at 434). ‘The first two factors . . .

28

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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 6 of 18

are the most critical,’ Nken, 556 U.S. at 434, and the last two steps are

1

reached ‘[o]nce an applicant satisfies the first two factors.’ id. at 435.

2
State of Washington v. Trump, __ F.3d __, 2017 U.S. App. LEXIS 2369, *21 (9th Cir. Feb. 9,
3
2017).
4

5

A. Likelihood of Success on the Merits

6

In this application for a temporary restraining order, Plaintiffs seek an Order prohibiting

7
Defendants from seizing and summarily destroying unhoused people’s property without
8
probable cause and constitutionally adequate notice. There are significant factual disputes
9
10 between the parties, both with respect to the way the various policies and procedures are

11 followed in general, and with respect to the interactions between the parties on the specific

12 dates discussed in the Complaint and in the motion. Nonetheless, Plaintiffs argue that they

13
have demonstrated a likelihood of success on the merits of both their Fourth and Fourteenth
14
Amendment claims. The Court disagrees.
15

16

The Fourth Amendment “protects two types of expectations, one involving ‘searches,’

17 the other ‘seizures.’ A ‘search’ occurs when the government intrudes upon an expectation of

18 privacy that society is prepared to consider reasonable. A ‘seizure’ of property occurs when
19
there is some meaningful interference with an individual's possessory interests in that
20
property.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85
21
22 (1984); see also Lavan v. City of L.A., 693 F.3d 1022, 1027-28 (9th Cir. 2012). As the Ninth

23 Circuit Court of Appeals has stated, the movants need not show a reasonable expectation of
24 privacy to enjoy the protection of the Fourth Amendment against seizures of their unabandoned
25
property. Lavan, 693 F.3d at 1027-28. Instead, the constitutional standard is whether there was
26
“some meaningful interference” with Plaintiffs’ possessory interest in the property. Id.
27

28

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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 7 of 18
The Fourteenth Amendment provides that no State shall “deprive any person of life,
1
2 liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. “Any
3 significant taking of property by the State is within the purview of the Due Process Clause.” 4 Fuentes v. Shevin, 407 U.S. 67, 86, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). “Application of
5
this prohibition requires the familiar two-stage analysis: We must first ask whether the asserted
6
individual interests are encompassed within the Fourteenth Amendment’s protection of ‘life,
7
8 liberty or property’; if protected interests are implicated, we then must decide what procedures
9 constitute ‘due process of law.’” Ingraham v. Wright, 430 U.S. 651, 672, 97 S. Ct. 1401, 51 L.
10
Ed. 2d 711 (1977). See also Lavan, 693 F.3d at 1031.
11
Relying primarily on Lavan, supra, Plaintiffs argue that the Fourth and Fourteenth
12
13 Amendments protect unhoused persons from government seizure and summary destruction of
14 their unabandoned, but momentarily unattended, personal property. Dkt. #23 at 12-21. They
15 argue that there is no legitimate reason for Defendants to seize and destroy the property of
16
unhoused Seattle residents without adequate notice, a warrant or probable cause, an opportunity
17
to be heard, or a meaningful way to reclaim seized property. Id. They further argue that
18
19 concern for the general health and safety of the community cannot justify Defendant’s actions.
20 Id. Plaintiffs also assert that Defendants’ policy and practice of destroying property without 21 any process, and storing property without sufficient notice or procedures to ensure its return,
22
ignores clearly established legal standards. Id. Further, they assert that Defendants violate
23
individuals’ rights when they provide no meaningful notice or process to get back the few items
24
25 they seize and store, let alone challenge the underlying seizure. Id. Plaintiffs claim that the
26 owners of property are frequently given no notice where they can pick up their property or even
27
if property has been preserved. See Dkts. #25-#32. If they are given notice, the notice is
28
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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 8 of 18

inaccurate and does not outline the process actually required to get their property back. See
1
2 Dkts. #25-#32. Further, they assert that the process itself is convoluted and does not take into

3 account any of the “capacities and circumstances” of the parties, as the Defendants are required

4 to do. Accordingly, Plaintiffs assert that, taken together, the Defendants’ policies are
5
inadequate, given the serious deprivation to Plaintiffs, and that they are likely to succeed on the
6
merits of their claims under the Fourth and Fourteenth Amendments. Dkt. #23 at 12-21.
7

8

WSDOT asks this Court to deny Plaintiffs’ Motion for a Temporary Restraining Order

9 and Preliminary Injunction. Dkt. #38. WSDOT asserts that the Order sought by Plaintiffs
10
would completely prohibit Defendants from removing unauthorized objects from public areas
11
like highways and bridge structures unless Defendants can demonstrate that the property
12
13 presents an “immediate threat to public health or safety,” or is abandoned, evidence of a crime,

14 or contraband. See Dkts. #38 at 10-14, #39, #40 and #41. WSDOT argues that this is

15 unworkable for many reasons. First, WSDOT has the statutory authority to build, operate, and
16
maintain state highways, including bridges and other structures that support state highways.
17
Dkt. #38 at 2 (citing RCW 47.01).260. Within Seattle city limits, WSDOT owns a substantial
18
19 amount of real property that constitutes the right-of-way for Interstates 5 (I-5) and 90 (I-90).

20 Dkt. #38 at 2-3. This includes the area underneath overpasses that support those highways,

21 including associated interchanges and on- and off- ramp facilities. Id. Second, WSDOT is
22
required to maintain right-of-way for the benefit of the traveling public. Id. It must ensure the
23
area remains free of debris and the right-of-way’s slope maintains its designed grade for
24
25 erosion control purposes. Debris within WSDOT’s right-of-way poses a risk to the traveling

26 public if it finds its way onto the roadway or a nearby street. Id. at 2-3 and Dkts. #39 and #41.
27
Debris that is comprised of human or animal waste, toxic chemicals, or illegal drugs poses a
28

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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 9 of 18

health hazard to WSDOT personnel performing maintenance or any members of the public who
1
2 finds themselves on WSDOT right-of-way, lawfully or not. Dkt. #38 at 2-3 and Dkts. #39 and

3 #41. Similarly individuals occupying the right-of-way during maintenance or repair operations

4 presents a safety risk not only to the individual, but to WSDOT personnel or its contractors. Id.
5
Finally, these rights-of-way were not designed to be easily accessible by pedestrians;
6
individuals that attempt to gain access to the right-of-way from surrounding neighborhoods
7
8 have been observed crossing parts of the interstate, which is dangerous to both the individuals

9 and the traveling public. Id. Moreover, I-5 as it passes through the downtown Seattle area is
10
largely comprised of a series of bridges from the Corson Avenue Interchange up to and beyond
11
I-5’s interchange with I-90. Numerous bridges support I-90 in this vicinity as well. Many of
12
13 these bridges are located in areas that are the subject of this lawsuit. Id. WSDOT is required to

14 inspect these bridges on a regular basis in order to comply with federal regulations. Id. Critical

15 components of each bridge must be carefully examined, including its support columns,
16
pedestrian rails and sidewalks (if any), and expansion joints. WSDOT must also ensure the
17
highway’s drainage system is properly conveying stormwater runoff from the highway, so that
18
19 WSDOT remains in compliance with all relevant stormwater discharge permits. Id.

20 Specifically, WSDOT is required to comply with a stormwater permit issued by the

21 Washington Department of Ecology (WDOE) pursuant to section 402 of the Clean Water Act.
22
That permit requires WSDOT to implement and enforce a stormwater management program,
23
reduce the discharge of pollutants from the highway system, and protect water quality. Id.
24

25

WSDOT argues that it has not violated either the Fourth or Fourteenth Amendments

26 because, in order to address encampments within its right-of-way, WSDOT drafted guidelines
27
that set forth procedures for the removal of personal property from the right-of-way. See Dkt.
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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 10 of 18

#33, Exhibit B. These Guidelines apply state-wide. The Guidelines specifically outline
1
2 procedures for WSDOT to implement prior to any scheduled clean-up of right-of-way. The

3 Guidelines provide that before any scheduled cleanup takes place, WSDOT posts notices of the

4 upcoming clean-up at least 72 hours in advance. Id., sec. 3B; 5. The notice shall include the
5
identification of WSDOT as the agency of the cleanup, the date the notice was posted, and the
6
date the clean-up will occur. Id. The Guidelines set forth examples of lost personal property
7
8 that may need to be stored, including but not limited to tents, sleeping bags, stoves and cooking

9 utensils, blankets, pillows, personal papers, medication, and books. Id. Any personal property
10
item that is not refuse, contaminated, illegal, or hazardous shall be stored in large transparent
11
bags and will be inventoried, including the date, location and brief description of the bag’s
12
13 contents. Id.

14

In the event that WSDOT acquires personal property for storage, the Guidelines provide

15 that WSDOT shall “use reasonable efforts to protect the personal property from adverse
16
weather conditions.” Id., at sec. 6. The Guidelines describe procedures for an individual to
17
identify and retrieve their personal property, and to notify potential owners of the lost property
18
19 for a period of ten (10) days after acquisition. Id. If the property is not retrieved within another

20 sixty (60) days, WSDOT may dispose of the property as it deems appropriate. Id.

21

The Guidelines also set forth WSDOT policy that not all cleanup activities can be

22
posted with 72 hours’ advance notice. For example, emergency repairs may require WSDOT to
23

clear the right-of-way without notice, for the safety of WSDOT personnel and anyone within
24

25 the right-of-way at that time. Id., at sec. 3A. Also, for cleanups in areas where maintenance

26 occurs on a frequent but random basis, that area will be posted “No Trespassing” and WSDOT
27
will clean-up illegal encampments upon arrival. Id.
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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 11 of 18

As the WSDOT Guidelines apply state-wide, they also recognize that processes may
1
2 require variance depending on the jurisdiction. Accordingly, each region is authorized to

3 coordinate with local jurisdictions to determine a process that makes sense for the particular

4 circumstances, as long as those processes are “at least as effective as the provisions contained
5
in these Guidelines.” Id., at 1.
6
Specifically as it relates to this case, WSDOT coordinates with the City of Seattle (City)
7
8 for all scheduled cleanups involving WSDOT property in City limits. Dkt. #38 at 9-14. At

9 least for the past year, and for the foreseeable future, WSDOT has agreed that the City’s
10
protocols will be followed for such cleanups, and follows the City’s lead in accomplishing
11
those processes. Id. In practice, this results in the City handling pre-cleanup outreach,
12
13 identification, and storage of personal property, and WSDOT performing cleanup of the

14 remaining refuse. Id. WSDOT argues that because it acts reasonably in removing

15 unauthorized materials from its property, there is no Fourth Amendment violation. With
16
respect to the Fourteenth Amendment claim, WSDOT argues that its and the City’s processes
17
contain several safeguards to prevent the erroneous deprivation of property, and therefore due
18
19 process is satisfied. Id.

20

Likewise, the City of Seattle argues that Plaintiffs cannot show a likelihood of success

21 on the merits of their constitutional claim. Dkt. #42. Specifically, it asserts that ever since
22
adopting the current Multi-Departmental Administrative Rules (“MDARs”) in 2008, the City
23
has not only complied with “baseline” Fourth Amendment constitutional requirements, it has
24
25 also steadily increased the additional protections and services that it provides. Dkt. #42 at 11-

26 19. Per the MDARs, the City has always provided notice at least 72 hours in advance of its
27
clean-ups. The City has also inspected all on-site materials, stored any personal property left
28

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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 12 of 18

behind, and posted notice that such property can be recovered. The City submits a Declaration
1
2 representing that the City’s Director of Operations for the Department of Finance and

3 Administrative Services has confirmed, “City employees follow City encampment procedures

4 at all sites . . . .” Dkt. #42 at 11-19.
5
Seattle further asserts that over time, the City has steadily added to the MDARs’
6
baseline procedures. Dkts. #42 at 6-9 and 11-19 and #43-#48. For example, 72-hour notice is
7
8 provided, except in emergencies, to encampments of any size, not just encampments with three

9 or more tents, as required in the original MDARs. Id. The City now provides notice of the
10
particular dates scheduled for any clean-up (rather than merely a 72-hour deadline for removing
11
property), and re-notices any clean-up that is not conducted on schedule. Id. The City also
12
13 provides individualized notice, both orally to any individuals present at the time and by placing

14 stickers on each tent and structure at the site. Id. In addition, the City sends outreach staff

15 prior to each and every clean-up in order to offer shelter alternatives to all persons at the
16
encampment. Id. The outreach staff are present the day before the clean-up and during the
17
entire clean-up. Further, City staff will provide bags and containers for storage purposes and
18
19 will work with anyone on-site to facilitate the storage of his or her belongings if desired. Id.

20 The City continues to refine and strengthen its approach; some of the City’s supplemental

21 practices have been adopted within the past six months. The City’s current protocols are
22
already among the most compassionate and respectful in Washington and of any major city in
23
the United States. Id.
24

25

The City also notes that in its continuing efforts to refine its practices in this area, the

26 City is in the process of updating the MDARs it adopted in 2008. Id. The City initially
27
convened a Task Force to develop recommendations and guidance for revising the MDARs.
28

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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 13 of 18

The Task Force included homeless advocates, neighborhood advocates, service providers,
1
2 business interests, and public property managers. The ACLU Foundation of Washington was

3 invited to join the Task Force, but it chose not to participate. The Task Force meetings were

4 public and included the opportunity for public comment. Based on numerous
5
recommendations from the Task Force, the City developed its proposed set of new MDARs.
6
Dkts. #42 at 6-9 and 11-19 and #43-#48
7

8

The City of Seattle asserts that Lavan is inapplicable to the instant matter because that

9 case addressed entirely different circumstances than those before the Court here. Dkt. #42 at
10
11-19. The issue in Lavan was whether the City of Los Angeles could, without any notice,
11
remove and in all cases destroy property left on public sidewalks. Lavan, 693 F.3d at 1024
12
13 (“We conclude that the Fourth and Fourteenth Amendments protect homeless persons from

14 government seizure and summary destruction of their unabandoned, but momentarily

15 unattended, personal property.”). The court disapproved of “summary” and “on-the-spot”
16
destruction of belongings – a practice Los Angeles did not even attempt to defend as
17
reasonable. Id. at 1031, 1032-33 (internal quotations omitted); see also Lavan v. City of Los
18
19 Angeles, 797 F. Supp. 2d 1005, 1019 (C.D. Cal. 2011) (“The City will still be able to lawfully

20 seize and detain property, as well as remove hazardous debris and other trash; issuance of the

21 injunction would merely prevent it from unlawfully seizing and destroying personal property
22
that is not abandoned without providing any meaningful notice and opportunity to be heard.”).
23
The City asserts that, in contrast, and consistent with the specific holding of Lavan, a city may
24
25 clean up encampments consistent with the Fourth and Fourteenth Amendments so long as the

26 city provides notice beforehand and a reasonable opportunity for retrieval of the property that is
27
removed. Dkt. #42 at 11-19.
28

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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 14 of 18

The City of Seattle further argues that its current MDARs provide for adequate notice
1
2 and an opportunity for retrieval, consistent with applicable constitutional requirements. Dkt.

3 #42 at 11-19. In addition, the City states that it has followed its rules in actual practice. In

4 sum, the City asserts that because the City follows the MDARs, which are constitutionally
5
valid; because the City is continuing its efforts to enhance the protections afforded by the
6
MDARS; and because the record does not demonstrate the City’s liability, Plaintiffs have failed
7
8 to show they are likely to prevail on the merits. Id.

9

The Court agrees with the City at this time. As an initial matter, nobody disputes that

10
the individual Plaintiffs have certain rights in their personal property. However, as the Ninth
11
Circuit stated in Lavan, “‘[t]he question then becomes whether the City, in seizing [Appellees’]
12
13 property, acted reasonably under the Fourth Amendment.’” Lavan, 693 F.3d at 1030 (quoting

14 Lavan, 797 F. Supp. 2d at 1013). Thus, this Court must look at whether the City’s and

15 WSDOT’s actions meet the Fourth Amendment’s reasonableness requirement. See Lavan, 693
16
F.3d at 1030-31 (citing to Miranda v. City of Cornelius, 429 F.3d at 864). A seizure is deemed
17
unreasonable if the government’s legitimate interest in the search or seizure does not outweigh
18
19 the individual’s interest in the property seized.

20

Based on the evidence in the record at this time, including the many Declarations along

21 with their Exhibits filed by both parties, the Court cannot say that Plaintiffs have shown a
22
likelihood of success on the merits of their constitutional claims. The City and WSDOT
23
officials’ declarations establish that the City and WSDOT have enforced the MDARs consistent
24
25 with the procedural protections built into them. This is unlike Lavan, because there, the City of

26 Los Angeles did not dispute the plaintiffs’ allegations and admitted that it had a policy and
27
practice of seizing and destroying homeless persons’ possessions when they had not been
28

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Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 15 of 18

abandoned. Lavan, 693 F.3d at 1025. The City of Los Angeles also conceded that it did not
1
2 provide any notice or an opportunity to be heard to the plaintiffs either before or after seizing

3 their property. Id. at 1032.

4

In contrast, the City of Seattle and WSDOT state that they have provided notice and

5
followed the procedural safeguards contained in the MDARs, and have even gone beyond those
6

safeguards in many instances. See Dkts. #39-#41, #43-#48, #57 and #61. On the other hand,
7

8 Plaintiffs’ assert that the City and WSDOT do not follow their own policies and often destroy

9 personal property without notice to be heard and without any opportunity to retrieve the seized
10
items. See Dkts. #24-#32. Yet, many of the Declarations submitted by Plaintiffs also
11
acknowledge that notice has been provided before property is seized, although they dispute the
12
13 sufficiency of such notices. See, e.g., Dkts. #25, #27 and #32. Many of the Declarations do not

14 identify whether property was taken and/or destroyed at any particular time, and many do not

15 address any attempt to recover the items.2
16
The Court recognizes that “‘[t]he government may not take property like a thief in the
17
night; rather, it must announce its intentions and give the property owner a chance to argue
18
19 against the taking.’” Lavan, 693 F.3d at 1032 (quoting Clement v. City of Glendale, 518 F.3d

20 1090, 1093 (9th Cir. 2008)). The Court further recognizes that because unhoused persons’

21 unabandoned possessions are “property” within the meaning of the Fourteenth Amendment, the
22
City must comport with the requirements of the Fourteenth Amendment’s due process clause if
23
it wishes to take and destroy them. See United States v. James Daniel Good Real Prop., 510
24
25 U.S. 43, 48, 114 S. Ct. 492, 126 L. Ed. 2d 490 (1993); Lavan, 693 F.3d at 1032-33. However,

26 unlike Lavan, here the City and WSDOT have not admitted that it fails to provide any notice or
27 2 Plaintiffs have offered statistical evidence of the percentage of sweeps in which personal 28 property is retained and catalogued. However, given the opposing explanation of the data by
the City of Seattle, the Court finds Plaintiffs’ purported statistics to be unreliable at this time.
ORDER PAGE - 15

Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 16 of 18

opportunity to be heard for Ms. Hooper, Ms. Osborne, or any other unhoused person, before it
1
2 seizes and/or destroys their property. Rather, they have presented evidence to the contrary.

3 While sympathetic to the circumstances in which these Plaintiffs find themselves, the Court

4 ultimately concludes that on this record Plaintiffs have not satisfied their burden to show a high
5
likelihood of success on the merits of their constitutional claims at this time.
6
B. Irreparable Harm
7

8

Turning to the element of irreparable harm, Plaintiffs argue that absent the Court’s

9 intervention, Plaintiffs and members of the proposed class will continue to suffer irreparable

10
harm from the Defendants’ policies and practices because they violate their constitutional

11
rights. Dkt. #23 at 21-22.
12

13

WSDOT responds that Plaintiffs cannot establish irreparable harm is likely for two

14 reasons. Dkt. #38 at 14-15. First, neither Plaintiffs Hooper nor Osborne has put forth sufficient

15 evidence in their declarations that they reside in an area that has been posted as an area subject
16
to cleanup in the near future. Second, WSDOT’s policy is to give at least 72 hours written
17
notice when possible before the removal of unauthorized property stored on its facilities, and as
18
19 much notice as practicable when 72 hours’ notice is not practicable. In practice, WSDOT

20 provides over one week’s notice before conducting scheduled clean-up activities. Id.

21

Similarly, the City of Seattle asserts that, given the absence of any constitutional

22
violation, the Plaintiffs cannot demonstrate cognizable harm. Dkt. #42 at 19-20. Moreover, the
23

City contends that it continues to provide more robust procedural protections to mitigate any
24

25 potential harm. Id. The City allows for personal property to “be recovered,” for example, and

26 summarily disposes only of property that “poses a risk to the health and safety of the
27
community” (such as “syringes” or “garbage”), all of which “does not support a finding of a
28

ORDER PAGE - 16

Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 17 of 18

likelihood of irreparable harm to the Plaintiffs. Dkt. #42 at 20. Likewise, under the new
1
2 MDARs, the Plaintiffs will receive individualized notice, additional outreach, and the ability to

3 have confiscated property delivered to them anywhere in the City. Id.

4

For the reasons discussed by Defendants, the Court agrees that Plaintiffs have failed to

5
demonstrate irreparable harm should the Court decline to enter a temporary restraining order at
6

this time.
7

8

C. Balance of Equities and the Public Interest

9

Given that this Court has determined that Plaintiffs fail to meet the first two

10
requirements for injunctive relief, the Court need not reach the remaining elements. State of

11
Washington v. Trump, __ F.3d __, 2017 U.S. App. LEXIS 2369, *21 (9th Cir. Feb. 9, 2017).
12

13

D. Alternate Test

14

Under the Ninth Circuit’s alternative test for injunctive relief – that a movant has shown

15 serious questions are raised and the balance of hardships tips sharply in its favor – the Court

16
would reach the same conclusion as stated above for the same reasons. Accordingly, the Court
17
concludes that Plaintiffs have failed to meet either standard for injunctive relief at this time.
18

19

IV. CONCLUSION

20

The Court is not blind to the hardships faced by the unhoused Plaintiffs under the

21 circumstances presented in this case. The Court recognizes their constitutional property rights,
22
and makes no final determination at this time as to whether they will ultimately be successful
23
on their claims. Indeed, the Court emphasizes that its analysis at this stage is a preliminary one.
24
25 Thus, this decision reflects the state of the record at these early stages of the proceedings and

26 the limited evidence before the Court at this time. Accordingly, having reviewed Plaintiffs’
27
motion, the oppositions thereto, the reply in support thereof, along with the Declarations and
28

ORDER PAGE - 17

Case 2:17-cv-00077-RSM Document 65 Filed 02/14/17 Page 18 of 18

Exhibits submitted by the parties and the remainder of the parties, the Court hereby finds and
1
2 ORDERS:

3

1. Plaintiffs’ Motion for Temporary Restraining Order (Dkt. #23) is DENIED.

4

2. Plaintiff’s concurrent motion for Preliminary Injunction will be scheduled for oral

5
argument. No later than ten (10) days from the date of this Order, the parties
6

shall meet and confer and submit to the Court by way of Joint Status Report a
7

8

proposed briefing schedule for any supplemental briefing to be submitted by the

9

parties and several proposed oral argument dates and times, along with a proposed

10
Order.
11
DATED this 14 day of February, 2017.
12

13 14

A

RICARDO S. MARTINEZ

15

CHIEF UNITED STATES DISTRICT JUDGE

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER PAGE - 18

 </s> Case 2:17-cv-00077-RSM Document 75 Filed 03/16/17 Page 1 of 34

1 Honorable Ricardo S. Martinez
2

3

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8

9 LISA HOOPER, BRANDIE OSBORNE, KAYLA WILLIS, individually and on behalf
10 of a class of similarly situated individuals; THE EPISCOPAL DIOCESE OF OLYMPIA;
11 TRINITY PARISH OF SEATTLE; REAL 12 CHANGE,

13

Plaintiffs,

No. 2:17-cv-00077-RSM
DEFENDANT CITY OF SEATTLE'S ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM TO AMENDED COMPLAINT

14

v.

15 CITY OF SEATTLE, WASHINGTON;

16

WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; ROGER MILLAR,

17 SECRETARY OF TRANSPORTATION FOR WSDOT, in his official capacity,
18

Defendants. 19

20

21

Defendant City of Seattle (the “City”) answers the Complaint of Plaintiffs Lisa Hooper,

22 Brandie Osborne, and Kayla Willis; the Episcopal Diocese of Olympia; Trinity Parish of Seattle;
23 and Real Change (collectively “Plaintiffs”) as follows: 24
1. The City denies the allegations in paragraph 1 to the extent they attempt to 25
describe the City’s policies toward homelessness and more specifically encampment clean-ups. 26

27

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1 The allegations in paragraph 1 otherwise constitute legal conclusions and legal argument to

2 which no response is required. To the extent a response is required, the City denies the same.

3

2. The issues of homelessness and encampments on public property are complex and

4 defy generalized descriptions or explanations. The allegation in the first sentence of paragraph 2
5 is ambiguous, especially the use of the word “forced,” and the City thus denies the same. The
6

7 remaining allegations in paragraph 2 relate to a report of the Seattle/King County Coalition on

8 Homelessness. The City responds that the report speaks for itself, and otherwise denies the

9 allegations contained in paragraph 2.

10

3. The City denies the allegations in paragraph 3, particularly to the extent they

11 attempt to describe the City’s policies and practices.
12 4. The City denies the allegations in paragraph 4.
13 5. The allegations in paragraph 5 constitute legal conclusions to which no response
14
15 is required. To the extent a response is required, the City denies the same.

16

6. The City admits that when it cleans up problematic encampments on its property,

17 items left on the property may be removed from the premises and, depending on the
18 circumstances, might be stored or discarded. The City otherwise denies the allegations in 19
paragraph 6. 20
7. To the extent the allegations in paragraph 7 are based on prior denied allegations, 21
including attempts to describe the City’s policies or practices, the City denies the same. The City 22
23 otherwise lacks sufficient knowledge or information to form a belief about the truth of the
24 remaining allegations in paragraph 7 and therefore denies the same.

25

8. To the extent the allegations in paragraph 8 are based on prior denied allegations,

26 including attempts to describe the City’s policies or practices, the City denies the same. The City 27

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1 otherwise lacks sufficient knowledge or information to form a belief about the truth of the

2 remaining allegations in paragraph 8 and therefore denies the same.

3

9. To the extent the allegations in paragraph 9 are based on prior denied allegations,

4 including attempts to describe the City’s policies or practices, the City denies the same. The City
5 otherwise lacks sufficient knowledge or information to form a belief about the truth of the
6

7 remaining allegations in paragraph 9 and therefore denies the same.

8

10. To the extent the allegations in paragraph 10 are based on prior denied

9 allegations, including attempts to describe the City’s policies or practices, the City denies the

10 same. The City denies the remaining allegations in paragraph 10.

11

11. To the extent the allegations in paragraph 11 are based on prior denied

12 allegations, including attempts to describe the City’s policies or practices, the City denies the
13
same. The City admits that homelessness is a serious and complex problem. The City otherwise 14

15 denies the allegations in paragraph 11.

16

12. To the extent the allegations in paragraph 12 are based on prior denied

17 allegations, including attempts to describe the City’s policies or practices, the City denies the
18 same. The City otherwise lacks sufficient knowledge or information to form a belief about the 19
truth of the allegations in paragraph 12 and therefore denies the same. 20
13. To the extent the allegations in paragraph 13 are based on prior denied 21
allegations, including attempts to describe the City’s policies or practices, the City denies the 22
23 same. The allegations in paragraph 13 otherwise constitute legal conclusions and legal argument
24 to which no response is required. To the extent a response is required, the City denies the same.

25

14. The City denies the allegations in paragraph 14.

26

27

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1

15. The City admits that it has conducted clean-ups of encampments on public

2 property after this lawsuit was filed, which have complied with applicable legal requirements.

3 The City denies the remaining allegations in paragraph 15.
4 16. The City denies that it conducted the referenced clean-up on January 26, 2017.
5 The City otherwise lacks sufficient knowledge or information to form a belief about the truth of
6
7 the remaining allegations in paragraph 16 and therefore denies the same.

8

17. The City admits that it has conducted clean-ups of encampments on public

9 property after this lawsuit was filed, which have complied with applicable legal requirements.
10 The City further admits that in some cases, clean-ups may last longer than expected or work may
11 be delayed by unexpected circumstances, and items not suitable for storage may be broken down 12
to be discarded. The City denies the remaining allegations in paragraph 17. 13
18. The City admits that it has adopted new administrative rules (a Multi Department 14 15 Administrative Rule and a Department of Finance and Administrative Services rule, collectively
16 called “MDARs”) that govern encampment clean-ups and become effective April 3, 2017. The

17 City further responds that public notice of the MDARs was given to allow for public comment.

18 The City further responds that the prior and new MDARs speak for themselves, and that the City

19 urged Plaintiffs and their counsel on multiple occasions to submit comments on the MDARs, but
20 neither Plaintiffs nor their counsel submitted any comments. The City denies the remaining
21
allegations in paragraph 18. 22

23

19. The first sentence in paragraph 19 consists of legal argument and conclusions to

24 which no response is required. To the extent a response is required, the City denies the same.

25 The remaining allegations in paragraph 19 reference filings with the Court. The City responds 26

27

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1 that those filings speak for themselves and otherwise denies the characterizations of the filings to

2 the extent they comprise allegations in paragraph 19.

3

20. The allegations in paragraph 20 reference filings with the Court. The City

4 responds that those filings are by WSDOT not the City and speak for themselves, and the City
5 otherwise denies the attempted characterizations of the filings to the extent they comprise
6

7 allegations in paragraph 20.

8

21. The allegations in paragraph 21 reference a declaration on file with the Court.

9 The City responds that the declaration speaks for itself and otherwise denies the attempted

10 characterizations of the filings to the extent they comprise allegations in paragraph 21.

11

22. The allegations in paragraph 22 reference a declaration submitted by WSDOT and

12 on file with the Court. The City responds that the declaration speaks for itself and otherwise
13
denies the attempted characterizations of the filings to the extent they comprise allegations in 14

15 paragraph 22.

16

23. The City admits that persons living outside often gather and camp on public

17 property amongst items that are unclean, moldy, or in poor condition. The City denies the

18 remaining allegations in paragraph 23.
19 24. To the extent the allegations in paragraph 24 are based on prior denied
20 allegations, including attempts to describe the City’s policies or practices, the City denies the
21 same. The allegations in paragraph 24 otherwise constitute legal conclusions and legal argument
22
23 to which no response is required. To the extent a response is required, the City denies the same.

24

25. The allegations in paragraph 25 constitute a request for relief to which no

25 response is required. To the extent a response is required, the City denies the same. 26

27

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1

26. The allegations in paragraph 26 constitute legal conclusions and legal argument to

2 which no response is required. To the extent a response is required, the City denies the same,

3 except that the City admits that certain policies and procedures do not implicate the rights

4 described.
5 27.
6

The allegations in paragraph 27 constitute legal conclusions and legal argument to

7 which no response is required. To the extent a response is required, the City denies the same.

8

28. The City admits the first sentence of paragraph 28. The second sentence of

9 paragraph 28 constitutes a request for relief to which no response is required. To the extent a

10 response is required, the City denies any relief should be granted.

11

29. The City admits the allegations in the first sentence of paragraph 29. The City

12 also admits that it resides in the Western District of Washington. The City lacks sufficient
13
knowledge or information to form a belief about the truth of the remaining allegations in 14

15 paragraph 29, and therefore denies the same.

16

30. The City lacks sufficient knowledge or information to form a belief about the

17 allegations in paragraph 30 and therefore denies the same.

18

31. The allegations in paragraph 31 are vague, and the City otherwise lacks sufficient

19 knowledge or information to form a belief about the truth of the allegations and therefore denies
20 the same.
21
32. To the extent the allegations in paragraph 32 are based on prior denied 22

23 allegations, including attempts to describe the City’s policies or practices, the City denies the

24 same. The allegation in the first sentence of paragraph 32 that the City gave “minimal to no

25 notice” is compound and ambiguous, and also fails to specify which Defendant is at issue, and 26 the City thus denies the same. The City otherwise lacks sufficient knowledge or information 27

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1 sufficient to form a belief about the truth of the allegations in paragraph 32 and therefore denies

2 the same.

3

33. To the extent the allegations in paragraph 33 are based on prior denied

4 allegations, including attempts to describe the City’s policies or practices, the City denies the
5 same. The City otherwise lacks sufficient knowledge or information to form a belief about the
6

7 truth of the allegations in paragraph 33 and therefore denies the same.

8

34. To the extent the allegations in paragraph 34 are based on prior denied

9 allegations, including attempts to describe the City’s policies or practices, the City denies the

10 same. The allegation in the third sentence of paragraph 34 that the City posted no prior notice

11 “in the area” is ambiguous, and the City thus denies the same. Based in part on the lack of

12 specificity provided, the City lacks sufficient knowledge or information to form a belief about
13
the truth of the remaining allegations in paragraph 34 and therefore denies the same. 14

15

35. The City lacks sufficient knowledge or information to form a belief about the

16 truth of the allegations in paragraph 35 and therefore denies the same.

17

36. To the extent the allegations in paragraph 36 are based on prior denied

18 allegations, including attempts to describe the City’s policies or practices, the City denies the
19 same. The City otherwise lacks sufficient knowledge or information to form a belief about the
20 truth of the allegations in the first and last sentences of paragraph 36 and therefore denies the
21 same. The City further responds that the new MDARs speak for themselves and otherwise
22
23 denies the attempted characterizations of the rules to the extent they comprise allegations in

24 paragraph 36.

25

37. To the extent the allegations in paragraph 36 are based on prior denied

26 allegations, including attempts to describe the City’s policies or practices, the City denies the 27

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1 same. The City otherwise lacks sufficient knowledge or information to form a belief about the

2 truth of the allegations in paragraph 37 and therefore denies the same.

3

38. To the extent the allegations in paragraph 38 are based on prior denied

4 allegations, including attempts to describe the City’s policies or practices, the City denies the
5 same. Based primarily on the lack of specificity provided, the City otherwise lacks sufficient
6

7 knowledge or information to form a belief about the truth of the allegations in paragraph 38 and

8 therefore denies the same.

9

39. To the extent the allegations in paragraph 39 are based on prior denied

10 allegations, including attempts to describe the City’s policies or practices, the City denies the
11 same. The allegation in the first sentence of paragraph 39 that the City gave “minimal to no 12
notice” is compound and ambiguous, and the sentence is also ambiguous as to the time and 13
location referred to, and the City thus denies the same. The City otherwise lacks sufficient 14
15 knowledge or information to form a belief about the truth of the allegations in paragraph 39 and
16 therefore denies the same.

17

40. The City lacks sufficient knowledge or information to form a belief about the

18 truth of the allegations in paragraph 40 and therefore denies the same.
19 41. To the extent the allegations in the first sentence of paragraph 41 are based on
20 prior denied allegations, including attempts to describe the City’s policies or practices, the City
21 denies the same. Based in part on the lack of specificity provided, the City otherwise denies the
22
23 allegations in the first sentence of paragraph 41. The remaining allegations in paragraph 41 are

24 not about the City, and the City lacks sufficient knowledge or information to form a belief about

25 the truth of those allegations and therefore denies the same. 26

27

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1

42. The City lacks sufficient knowledge or information to form a belief about the

2 truth of the allegations in paragraph 42 and therefore denies the same.

3

43. The City lacks sufficient knowledge or information to form a belief about the

4 truth of the allegations in paragraph 43 and therefore denies the same.
5 44. The City lacks sufficient knowledge or information to form a belief about the
6

7 truth of the allegations in paragraph 44 and therefore denies the same.

8

45. To the extent the allegations in paragraph 45 are based on prior denied

9 allegations, including attempts to describe the City’s policies or practices, the City denies the

10 same. The City otherwise lacks sufficient knowledge or information to form a belief about the

11 truth of the allegations in the first and last sentences of paragraph 45 and therefore denies the
12 same. The City further responds that the new MDARs speak for themselves and otherwise
13 denies the attempted characterizations of the rules to the extent they comprise allegations in
14
15 paragraph 45.

16

46. The City lacks sufficient knowledge or information to form a belief about the

17 truth of the allegations in paragraph 46 and therefore denies the same.

18

47. To the extent the allegations in paragraph 47 are based on prior denied

19 allegations, including attempts to describe the City’s policies or practices, the City denies the
20 same. To the extent the allegations in paragraph 47 constitute legal argument or conclusions, no
21
response is required. To the extent a response is required, the City denies the same. The City 22

23 otherwise lacks sufficient knowledge or information to form a belief about the truth of the

24 remaining allegations in paragraph 47 and therefore denies the same.

25

48. To the extent the allegations in paragraph 48 are based on prior denied

26 allegations, including attempts to describe the City’s policies or practices, the City denies the 27

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1 same. The City lacks sufficient knowledge or information to form a belief about the truth of the

2 remaining allegations in paragraph 48 and therefore denies the same.

3

49. The City denies the allegations in paragraph 49.

4 50. To the extent the allegations in paragraph 50 are based on prior denied
5 allegations, including attempts to describe the City’s policies or practices, the City denies the
6

7 same. The City lacks sufficient knowledge or information to form a belief about the truth of the

8 remaining allegations in paragraph 50 and therefore denies the same.

9

51. The allegations in paragraph 51 constitute legal conclusions to which no response

10 is required. To the extent a response is required, the City denies the same.

11

52. The City lacks sufficient knowledge or information to form a belief about the

12 truth the allegations in paragraph 52 and therefore denies the same.
13
53. The City commends and supports community-based efforts to address problems 14

15 associated with homelessness. The City otherwise lacks sufficient knowledge or information to

16 form a belief about the truth of the allegations in paragraph 53 and therefore denies the same.

17

54. The City lacks sufficient knowledge or information to form a belief about the

18 truth of the allegations in paragraph 54 and therefore denies the same.
19 55. To the extent the allegations in paragraph 55 are based on prior denied
20 allegations, including attempts to describe the City’s policies or practices, the City denies the
21 same. The City lacks sufficient knowledge or information sufficient to form a belief about the
22
23 truth of the remaining allegations in paragraph 55 and therefore denies the same.

24

56. The City commends and supports community-based efforts to address problems

25 associated with homelessness. Otherwise, the City lacks sufficient knowledge or information to 26 form a belief about the truth of the allegations in paragraph 56 and therefore denies the same. 27

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1

57. The City commends and supports community-based efforts to address problems

2 associated with homelessness. To the extent the allegations in paragraph 57 are based on prior

3 denied allegations, including attempts to describe the City’s policies or practices, the City denies

4 the same. Otherwise, the City lacks sufficient knowledge or information to form a belief about
5 the truth of the remaining allegations in paragraph 57 and therefore denies the same.
6

7

58. The City commends and supports community-based efforts to address problems

8 associated with homelessness. To the extent the allegations in paragraph 58 are based on prior

9 denied allegations, including attempts to describe the City’s policies or practices, the City denies
10 the same. Otherwise, the City lacks sufficient knowledge or information to form a belief about
11 the truth of the remaining allegations in paragraph 58 and therefore denies the same. 12
59. To the extent the allegations in paragraph 59 are based on prior denied 13
allegations, including attempts to describe the City’s policies or practices, the City denies the 14 15 same. Based in part on the lack of specificity provided, the City otherwise lacks sufficient
16 knowledge or information to form a belief about the truth of the allegations in paragraph 59 and

17 therefore denies the same.

18

60. To the extent the allegations in paragraph 60 are based on prior denied

19 allegations, including attempts to describe the City’s policies or practices, the City denies the
20 same. Based in part on the lack of specificity provided, the City otherwise lacks sufficient
21
knowledge or information to form a belief about the truth of the allegations in paragraph 60 and 22

23 therefore denies the same.

24

61. To the extent the allegations in paragraph 61 are based on prior denied

25 allegations, including attempts to describe the City’s policies or practices, the City denies the 26

27

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1 same. The City otherwise lacks sufficient knowledge or information to form a belief about the

2 truth of the allegations in paragraph 61 and therefore denies the same.

3

62. To the extent the allegations in paragraph 62 are based on prior denied

4 allegations, including attempts to describe the City’s policies or practices, the City denies the
5 same. The City otherwise lacks sufficient knowledge or information to form a belief about the
6

7 truth of the allegations in paragraph 62 and therefore denies the same.

8

63. To the extent the allegations in paragraph 63 are based on prior denied

9 allegations, including attempts to describe the City’s policies or practices, the City denies the

10 same. The City admits it is a municipal corporation organized under the laws of the State of

11 Washington with the capacity to sue and be sued. The City lacks sufficient knowledge or
12 information to form a belief about the truth of the allegations in paragraph 63 regarding the
13 capacity in which the plaintiffs purport to sue the City, and therefore denies the same. To the
14
15 extent paragraph 63 also purports to allege legal conclusions, the City denies the same.

16

64. The City admits the factual allegations in paragraph 64. To the extent paragraph

17 64 also purports to allege legal conclusions, the City denies the same.

18

65. The City admits that Roger Millar is the current Secretary of Transportation for

19 WSDOT. The City otherwise lacks sufficient knowledge or information to form a belief about
20 the truth of the allegations in paragraph 65 and therefore denies the same. To the extent
21
paragraph 65 also purports to allege legal conclusions, the City denies the same. 22

23

66. The allegations in paragraph 66 consist of legal conclusions to which no response

24 is required. To the extent a response is required, the City denies the same.

25

67. The allegations in paragraph 67 constitute legal conclusions and legal argument to

26 which no response is required. To the extent a response is required, the City denies the same. 27

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1

68. The allegations in the first sentence of paragraph 68 constitute legal conclusions

2 and legal argument to which no response is required. To the extent a response is required, the
3 City denies the same. The allegations in the second and third sentences of paragraph 68 relate to 4
a report of the Seattle/King County Coalition on Homelessness. The City responds that the 5
report speaks for itself, and otherwise denies the allegations. To the extent the allegations in the 6 7 fourth sentence of paragraph 68 are based on prior denied allegations, including attempts to
8 describe the City’s policies or practices, the City denies the same. The City admits that it can in

9 certain circumstances be difficult to find and identify transient individuals but denies that any

10 such difficulty is due to the City’s policies or practices, and otherwise denies the remaining

11 allegations.

12 69. The allegations in paragraph 69 constitute legal conclusions and legal argument to
13
which no response is required. To the extent a response is required, the City denies the same. 14

15

70. The allegations in paragraph 70 constitute legal conclusions and legal argument to

16 which no response is required. To the extent a response is required, the City denies the same.

17

71. The allegations in paragraph 71 constitute legal conclusions and legal argument to

18 which no response is required. To the extent a response is required, the City denies the same.

19 72. The City admits the allegations in paragraph 72, with the exception that the City
20 lacks knowledge as to the specific resources available to the ACLU of Washington, and as a
21
result denies the allegation with respect to that issue. 22

23

73. The allegations in paragraph 73 constitute legal conclusions and legal argument to

24 which no response is required. To the extent a response is required, the City denies the same.

25

26

27

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1

74. The City admits that in November 2015 Mayor Murray declared a State of

2 Emergency on homelessness, the content of which otherwise speaks for itself. The City is

3 awaiting the results of recent data collection with respect to the number of persons living outside.
4 75. The allegations in paragraph 75 relate to a report of the Seattle/King County
5 Coalition on Homelessness. The City responds that the report speaks for itself, and otherwise
6
7 denies the allegations.

8

76. The City admits that homelessness is a crisis. In response, the Mayor has

9 declared a state of emergency with regard to homelessness, established some authorized tent

10 encampments, devoted increased funds to this issue, and continues to develop policies and

11 practices to address the crisis. The City further admits that a count of homeless persons in the
12 City was conducted earlier this year and the results will be released this spring. The City
13 otherwise lacks sufficient knowledge or information to form a belief about the truth of the
14
15 allegations in paragraph 76 and therefore denies the same.

16

77. The City admits that unhoused persons may have homes and personal possessions

17 of including possessions with psychological value. The City otherwise denies the allegations in
18 paragraph 77 as overly generalized and unqualified. 19
78. The City admits that unhoused persons sometimes set up encampments on public 20
property. The City otherwise denies the allegations in paragraph 77 as overly generalized. 21
79. The City admits that unhoused persons may engage in the activities listed in 22
23 paragraph 79 and that having a stable place to live is important. The City otherwise denies the
24 allegations in paragraph 79 as overly generalized.

25

80. The City admits the first sentence of paragraph 80. The City admits that it offers

26 disposal and retrieval services and operates a sewer system. The City admits that garbage 27

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1 accumulates quickly in encampments. The allegations in paragraph 80 regarding taken property

2 are vague. The City lacks sufficient knowledge or information to form a belief about the truth of
3 the allegations as to whether items being referred to were taken during clean ups, and otherwise 4
denies the remaining allegations in paragraph 80. 5
81. To the extent the allegations in paragraph 81 are based on prior denied 6 7 allegations, including attempts to describe the City’s policies or practices, the City denies the
8 same. Based on Plaintiffs’ definition of “sweeps”, the City denies the allegations of paragraph

9 81.

10

82. The allegations in paragraph 82 constitute legal conclusions and legal argument to

11 which no response is required. To the extent a response is required, the City denies the same.
12 83. The City denies the allegations of paragraph 83.
13 84. The City admits that it facilitates the reporting of unauthorized encampments
14
15 whether by phone, online, or app, and otherwise denies the allegations in the first sentence of

16 paragraph 84. The second sentence of paragraph 84 is addressed to another party, and the City

17 lacks sufficient knowledge or information to form a belief about the truth of those allegations
18 and therefore denies the same. 19
85. To the extent the allegations in paragraph 85 are based on prior denied 20
allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’ 21
definition of “sweeps”, the City denies the same. The City also denies the allegations in 22
23 paragraph 85 to the extent they are based on misinterpretation of data from the Seattle
24 Encampment Response Information System (SERIS), as explained in the Second Declaration of

25 Chris Potter in Support of the City’s Opposition to Plaintiffs’ Motion for Temporary Restraining 26

27

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1 Order. The City admits that it has conducted lawful clean-ups, including some after this lawsuit

2 was filed, and otherwise denies the remaining allegations in paragraph 85.

3

86. To the extent the allegations in paragraph 86 are based on prior denied

4 allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’
5 definition of “sweeps”, the City denies the same. The City admits that it has devoted meaningful
6

7 resources to conducting lawful clean-ups as part of its broader strategy and efforts at addressing

8 issues related to homelessness. The last sentence of paragraph 86 is addressed to another party,

9 and the City lacks sufficient knowledge or information to form a belief about the truth of those

10 allegations and therefore denies the same.

11

87. The allegations in paragraph 87 appear to be based on prior denied allegations,

12 including attempts to describe the City’s policies or practices and the Plaintiffs’ definition of
13
“sweeps”, and the City therefore denies the same. 14

15

88. The City admits that it has adopted the original MDARs in 2008. The remaining

16 allegations in paragraph 88 are addressed to another party, and the City lacks sufficient

17 knowledge or information to form a belief about the truth of those allegations and therefore
18 denies the same. 19
89. To the extent the allegations in paragraph 89 are based on the Plaintiffs’ definition 20
of “sweeps”, the City denies the same. The City admits that the MDARs (now updated) 21
represent the City’s uniform rules and procedures for cleaning up encampments on public 22
23 property. The remaining allegations in paragraph 89 are addressed to another party and the City
24 lacks sufficient knowledge or information to form a belief about the truth of those allegations

25 and therefore denies the same.

26

90. The City denies the allegations in paragraph 90.

27

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1

91. To City denies the allegations in paragraph 91.

2

92. The allegations in paragraph 92 constitute legal conclusions and legal argument to

3 which no response is required. To the extent a response is required, the City denies the same.
4 93. The allegations in paragraph 93 constitute legal conclusions and legal argument to
5 which no response is required. To the extent a response is required, the City denies the
6
7 allegations.

8

94. The City denies the allegations in paragraph 94.

9

95. The City denies the allegations in paragraph 95.

10

96. The City denies the allegations in paragraph 96.

11

97. The City denies the allegations in paragraph 97.

12 98. To the extent the allegations in paragraph 98 are based on prior denied
13
allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’ 14

15 definition of “sweeps”, the City denies the same. The remaining allegations in paragraph 98

16 constitute legal conclusions and legal argument to which no response is required. To the extent a

17 response is required, the City responds that the MDARs speak for themselves and otherwise

18 denies the allegations.

19 99. The allegations in paragraph 99 constitute legal conclusions and legal argument to
20 which no response is required. To the extent a response is required, the City responds that the
21
WSDOT Guidelines speak for themselves and otherwise denies the allegations. 22

23

100. The City denies the allegations in paragraph 100.

24

101. The City admits that policymakers have expressed various views on the City’s

25 clean-up process, including prior versions of its notices. The City admits that one 26 councilmember, in a council briefing in January of 2016, stated: “These postings, I imagine, are 27

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1 ones that I could probably barely understand with a law degree.” The City otherwise denies the

2 allegations in paragraph 101.

3

102. The City denies the allegations in paragraph 102.

4 103. The City denies the allegations in paragraph 103.
5 104. The City responds that it trains staff on appropriate implementation of the
6

7 MDARs. The City admits that the MDARs do not reference training. The City further responds

8 that the WSDOT Guidelines speak for themselves and otherwise denies the allegations.

9

105. The City denies the allegations in the first and last sentences of paragraph 105.

10 The City admits that the WSDOT Guidelines contain the quoted language and denies the

11 remaining allegations in paragraph 105.

12 106. The City denies the allegations in paragraph 106.
13
107. The City denies the allegations in paragraph 107. 14

15

108. The City denies the allegations in paragraph 108.

16

109. The allegations in paragraph 109 constitute legal conclusions and legal argument

17 to which no response is required. To the extent a response is required, the City responds that the
18 WSDOT Guidelines speak for themselves and otherwise denies the allegations. 19
110. The City denies the allegations contained in paragraph 110. 20
111. The City denies the allegations in paragraph 111. 21
112. The City admits that the MDARs do not refer to payment of compensation. The 22
23 City otherwise responds that the MDARs and WSDOT Guidelines speak for themselves and
24 otherwise denies the allegations.

25

113. The City denies the allegations in paragraph 113.

26

27

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1

114. The City admits that it has new MDARs and received public comment on those

2 rules, but not from Plaintiffs or their counsel. The City denies the remaining allegations in

3 paragraph 114.

4 115. The City denies the allegations in paragraph 115.
5 116. The City denies the allegations in paragraph 116.
6

7

117. The City denies the allegations in paragraph 117.

8

118. The City denies the allegations in paragraph 118.

9

119. The City denies the allegations in paragraph 119.

10

120. The City denies the allegations in paragraph 120.

11

121. The City admits that the new MDARs contain a provision for “emphasis areas”,

12 but denies the remaining allegations in paragraph 121.
13
122. The City denies the allegations in paragraph 122. 14

15

123. The City denies allegations in paragraph 123.

16

124. The City admits that the new MDARs amended the prior MDARs and otherwise

17 denies allegations in paragraph 124.

18

125. The City denies that it does not provide for training as it trains staff on

19 appropriate implementation of the MDARs. The City denies the remaining allegations in
20 paragraph 125.
21
126. The allegations in paragraph 126 constitute legal conclusions and legal argument 22

23 to which no response is required. To the extent a response is required, the City otherwise denies

24 the allegations in paragraph 126.

25

127. The City admits that numerous individuals and organizations submitted comments

26 on the new MDARs, but the Plaintiffs and their counsel did not. The City further responds that 27

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1 the wording of the comments received speaks for itself and otherwise denies the allegations in

2 paragraph 127.

3

128. The allegations in paragraph 128 constitute legal conclusions and legal argument

4 to which no response is required. To the extent a response is required, the City denies the same.
5 129. The City denies the allegations in paragraph 129.
6

7

130. To the extent the allegations in paragraph 130 are based on prior denied

8 allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’

9 definition of “sweeps”, the City denies the same. To the extent the allegations in paragraph 130
10 are addressed to another party, the City lacks sufficient knowledge or information to form a
11 belief about the truth of those allegations and therefore denies the same. The City denies the 12
remaining allegations in paragraph 130. 13
131. To the extent the allegations in paragraph 131 are based on prior denied 14 15 allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’
16 definition of “sweeps”, the City denies the same. The City admits different clean-ups it conducts

17 may have some differences (and some similarities) in comparison to any other clean-up. The

18 City otherwise denies the allegations in paragraph 131.

19 132. The City admits it uses the word “clean up” and that part of its goal is to remove
20 trash, debris, waste, and hazardous materials. The City denies the remaining allegations in
21
Paragraph 132. 22

23

133. The allegations in paragraph 133 constitute legal arguments or conclusions, to

24 which no response is required. To the extent a response is required, the City denies the same.

25

134. The City denies the allegations in Paragraph 134.

26

135. The City denies the allegations in paragraph 135.

27

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1

136. The City denies the allegations in paragraph 136.

2

137. The City denies the allegations in paragraph 137.

3

138. The City admits that for clean-ups it attaches notices to individual tents and in the

4 surrounding area to be cleaned up. The City denies the remaining allegations in paragraph 138.
5 139. The City denies the allegations in paragraph 139.
6

7

140. The City denies the allegations in paragraph 140.

8

141. The City lacks sufficient knowledge or information to form a belief about the

9 truth of the allegations in paragraph 141 and therefore denies the same.

10

142. The City denies the allegations in paragraph 142.

11

143. To the extent the allegations in paragraph 143 are based on prior denied

12 allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’
13
definition of “sweeps”, the City denies the same. Otherwise, the City lacks sufficient knowledge 14

15 or information to form a belief about the truth of the allegations in paragraph 143 and therefore

16 denies the same.

17

144. The City denies the allegations in paragraph 144.

18

145. To the extent the allegations in paragraph 145 constitute legal arguments or

19 conclusions, no response is required. To the extent a response is required, the City denies those
20 allegations. The City denies the remaining allegations in paragraph 145.
21
146. The City denies the allegations in paragraph 146. 22

23

147. The City denies the allegations in paragraph 147.

24

148. To the extent the allegations in paragraph 148 are based on prior denied

25 allegations, including attempts to describe the City’s policies or practices, the City denies the 26

27

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1 same. The allegations in paragraph 148 are otherwise legal argument and conclusions, to which

2 no response is required. To the extent a response is deemed required, the City denies the same.

3

149. The City admits that it conducts both clean ups and targeted outreach when

4 encampments on its public property raise significant public health or safety concerns, obstruct
5 the intended use of public facilities, or otherwise necessitate intervention in furtherance of the
6

7 public interest. The allegations in paragraph 149 are otherwise legal argument and conclusions,

8 to which no response is required. To the extent a response is deemed required, the City denies

9 the same.

10

150. The City denies the allegations in paragraph 150.

11

151. The City denies the allegations in Paragraph 151.

12 152. To the extent the allegations in paragraph 152 are based on prior denied
13
allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’ 14

15 definition of “sweeps”, the City denies the same. The City denies the allegations in the first

16 sentence of paragraph 152. The City lacks sufficient knowledge or information to form a belief

17 about the truth of the remaining allegations in paragraph 152 and therefore denies the same.

18

153. The City admits that it uses various tools and equipment to clean up unauthorized

19 encampments and that some objects, including hazardous items, may be manipulated, cut, and/or
20 discarded as part of the clean-up. The City otherwise denies the allegation in paragraph 153.
21
154. The City admits that when it cleans up problematic encampments on its property, 22

23 items left on the property may be removed from the premises and, depending on the

24 circumstances, might be stored or discarded. The City otherwise denies the allegations in

25 paragraph 154.

26

155. The City denies the allegations in paragraph 155.

27

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1

156. The City denies the allegations in paragraph 156.

2

157. To the extent the allegations in paragraph 157 are based on prior denied

3 allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’
4 definition of “sweeps”, the City denies the same. The City admits that it conducts clean-ups on
5 its property without obtaining a warrant to do so, and denies that a warrant is required. The
6
7 remaining allegations in paragraph 157 constitute legal arguments or conclusions, to which no

8 response is required. To the extent a response is required, the City denies those allegations.

9

158. The City admits that it sometimes gathers and stores items as part of a clean-up on

10 its property when no one present asserts ownership over the item. The City denies the remaining

11 factual allegations in paragraph 158. To the extent the allegations in paragraph 158 constitute

12 legal arguments or conclusions, no response is required. To the extent a response is required, the
13
City denies those allegations. 14

15

159. The City denies the allegations in paragraph 159.

16

160. The City denies the allegations in paragraph 160.

17

161. The City admits that the clean-up process can be stressful. The City further

18 admits it might not store an item remaining at a clean-up site notwithstanding a request that the

19 item be stored, for example, if the item is hazardous. The City otherwise lacks sufficient
20 knowledge or information sufficient to form a belief about the truth of the remaining allegations
21
in paragraph 161 and therefore denies the same. 22

23

162. The City denies the allegations in paragraph 162.

24

163. The City denies the allegations in paragraph 163.

25

164. The City denies the allegations in paragraph 164.

26

27

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1

165. To the extent the allegations in paragraph 165 are based on prior denied

2 allegations, including attempts to describe the City’s policies or practices, the City denies the

3 same. The City admits that items that are identified as garbage may be destroyed. The City

4 otherwise lacks sufficient knowledge or information sufficient to form a belief about the truth of
5 the remaining allegations in paragraph 165 and therefore denies the same.
6

7

166. The allegations in paragraph 166 are ill-formed and ungrammatical. To the extent

8 a response is deemed required, the City denies the allegations.

9

167. The City denies the allegations in paragraph 167.

10

168. The City denies the allegations in paragraph 168.

11

169. The City denies the allegations in paragraph 169. The City further responds that

12 the pictured sticker is presented out of context. For a more accurate understanding, refer to the
13
Second Declaration of Chris Potter in Support of the City’s Opposition to Plaintiffs’ Motion for 14

15 Temporary Protective Order.

16

170. The City denies the allegations in paragraph 170.

17

171. The City denies the allegations in the first and second sentences of paragraph 171.

18 The City lacks sufficient knowledge or information sufficient to form a belief about the truth of

19 the allegations in the third sentence of paragraph 171 and therefore denies the same. The City
20 denies the remaining allegations in paragraph 171 and refers to the Second Declaration of Chris
21
Potter regarding this issue. 22

23

172. The City denies the allegations in paragraph 172.

24

173. The City admits that it stores at 4200 Airport Way South personal property left on

25 the City’s property after notice was given that a clean-up would be conducted. The City also 26 admits that this property is available for retrieval at that storage facility. The City notes that its 27

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1 new MDARs provide for free delivery of stored items. The City otherwise denies the allegations

2 in paragraph 173.

3

174. The City denies the allegations in paragraph 174.

4 175. The City denies the allegations in paragraph 175.
5 176. The City lacks knowledge or information sufficient to form a belief about the
6

7 truth of the allegations in paragraph 176, which do not specify information regarding the quoted

8 material, and therefore denies the same.

9

177. The allegations in paragraph 177 are non-specific and as a result the City lacks

10 knowledge or information sufficient to form a belief about the truth of those allegations and

11 therefore denies them.
12 178. To the extent the allegations in paragraph 178 constitute legal arguments or
13 conclusions, no response is required. To the extent a response is required, the City denies those
14
15 allegations. The City denies the remaining allegations in paragraph 178.

16

179. The City admits that it received a letter from Columbia Legal Services and the

17 American Civil Liberties Union in 2015. The City responds that the letter speaks for itself and

18 otherwise denies the allegations in paragraph 179.
19 180. The City denies the allegations in the first sentence of paragraph 180. The
20 remaining allegations in paragraph 180 constitute legal conclusions to which no response is
21 required. To the extent a response is required, the City responds that the text of the Lavan
22
23 opinion speaks for itself and otherwise denies the allegations.

24

181. The allegations in paragraph 181 relate to a Seattle Times report. The City

25 responds that the text of the report speaks for itself, and otherwise denies the allegations 26 contained in paragraph 181. 27

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1

182. The allegations in paragraph 182 are non-specific and as a result the City lacks

2 knowledge or information sufficient to form a belief about the truth of those allegations and
3 therefore denies them. 4
183. To the extent the allegations in paragraph 183 are based on prior denied 5
allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’ 6 7 definition of “sweeps”, the City denies the same. The remaining allegations in paragraph 183
8 relate to a Task Force report. The City responds that the text of the report speaks for itself, and

9 the City otherwise denies the allegations contained in paragraph 183.

10

184. To the extent the allegations in paragraph 184 are based on prior denied

11 allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’
12 definition of “sweeps”, the City denies the same. The remaining allegations in paragraph 184
13 relate to monitor reports. The City responds that the text of the reports speak for themselves, and
14
15 the City otherwise denies the allegations contained in paragraph 184.

16

185. The allegations in paragraph 185 reference a letter sent from the Seattle Human

17 Rights Commission to the Mayor and City in September 2016. The City responds that the text of
18 the letter speaks for itself and otherwise denies the allegations in paragraph 185. 19
186. The City denies the first sentence of paragraph 186. The City admits that its 20
Department of Finance and Administrative Services (“FAS”) is charged with administering the 21
City’s clean-ups. The remaining allegations in paragraph 186 relate to a written communication; 22
23 the City responds that the text of the communication speaks for itself and otherwise denies the
24 allegations in paragraph 186.

25

187. The allegations in the first sentence of paragraph 187 relate to statements made by

26 the Seattle Human Rights Commission. The City responds that the text of those statements 27

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Case 2:17-cv-00077-RSM Document 75 Filed 03/16/17 Page 27 of 34

1 speak for themselves and otherwise denies the allegations in that sentence. The City admits that

2 FAS performs robust and responsible management of the City’s clean-up efforts.

3

188. The City admits that it commenced a clean-up on January 4, 2016 that was called

4 off for safety reasons. The City otherwise denies the allegations in paragraph 188.
5 189. The City denies the allegations in paragraph 189.
6

7

190. The City admits that it has adopted new MDARs. The City denies the remaining

8 allegations in paragraph 190.

9

191. The City lacks sufficient knowledge or information to form a belief about the

10 truth of the allegations in paragraph 191 and therefore denies the same.

11

192. The City admits that it has lawfully cleaned up encampments since Plaintiffs filed

12 this lawsuit. The City otherwise denies the allegations in paragraph 192.
13
193. The City admits that it has conducted lawful clean-ups of hazardous encampments 14

15 on public property after this lawsuit was filed. The City further admits that in some cases, clean-

16 ups may last longer than expected (as with the February 10 clean-up) or work may be delayed by

17 unexpected circumstances (as with the February 27 clean-up), and items not suitable for storage
18 may be broken down to be discarded. The City further responds that the text of the declaration 19
referred to in the fourth sentence of paragraph 193 speaks for itself. 20
194. The City admits that it provided substantial prior written and oral notice of a 21
clean-up at the area called the “Field”, provided substantial outreach efforts to residents of the 22
23 encampment, and commenced a clean-up of that area on March 7, 2017. The City otherwise
24 denies the allegations in paragraph 194.

25

195. The City denies the allegations in paragraph 195.

26

27

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1

196. To the extent the allegations in paragraph 196 are based on prior denied

2 allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’

3 definition of “sweeps”, the City denies the same. The remaining allegations in paragraph 196

4 constitute legal conclusions and legal argument, to which no response is required. To the extent
5 a response is required, the City denies those allegations.
6

7

197. To the extent the allegations in paragraph 197 are based on prior denied

8 allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’

9 definition of “sweeps”, the City denies the same. The City admits that in general unhoused
10 persons may face difficulties replacing items that are lost or in replacing items. The City
11 otherwise denies the allegations in paragraph 197. 12
198. To the extent the allegations in paragraph 198 are based on prior denied 13
allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’ 14 15 definition of “sweeps”, the City denies the same. The City denies the first sentence of paragraph
16 198. The City admits that in general unhoused persons can face difficulties in obtaining housing,

17 employment, or medical care, and otherwise denies the allegations in the second sentence of
18 paragraph 198. The City lacks knowledge or information sufficient to form a belief about the 19
truth of the allegations in the third sentence of paragraph 198 and therefore denies them. 20
199. To the extent the allegations in paragraph 199 are based on prior denied 21
allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’ 22
23 definition of “sweeps”, the City denies the same. The City admits that unhoused persons face
24 difficult circumstances and otherwise denies the allegations in paragraph 199.

25

200. To the extent the allegations in paragraph 200 are based on prior denied

26 allegations, including attempts to describe the City’s policies or practices, or the Plaintiffs’ 27

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1 definition of “sweeps”, the City denies the same. The first sentence of paragraph 200 consists of

2 legal argument and conclusions, to which no response is required. To the extent a response is

3 deemed required, the City denies the same. The City admits that unhoused persons face difficult

4 circumstances but denies that those circumstances are caused by the City’s clean-ups.
5 201. The City denies the allegations in paragraph 201.
6

7

202. The allegations in paragraph 202 constitute legal conclusions and legal argument

8 to which no response is required. To the extent a response is required, the City denies the same.

9

203. The allegations in paragraph 203 constitute legal conclusions and legal argument

10 to which no response is required. To the extent a response is required, the City denies the same.

11

204. The allegations in paragraph 204 constitute legal conclusions and legal argument

12 to which no response is required. To the extent a response is required, the City denies the same.
13
205. The City reincorporates its responses as set forth above. 14

15

206. The allegations in paragraph 206 constitute legal conclusions and legal argument

16 to which no response is required. To the extent a response is required, the City denies the same.

17

207. The City reincorporates its responses as set forth above.

18

208. The allegations in paragraph 208 constitute legal conclusions and legal argument

19 to which no response is required. To the extent a response is required, the City denies the same.
20 209. The City reincorporates its responses as set forth above.
21
210. The allegations in paragraph 210 constitute legal conclusions and legal argument 22

23 to which no response is required. To the extent a response is required, the City denies the same.

24

211. The City reincorporates its responses as set forth above.

25

212. The allegations in paragraph 212 constitute legal conclusions and legal argument

26 to which no response is required. To the extent a response is required, the City denies the same. 27

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Case 2:17-cv-00077-RSM Document 75 Filed 03/16/17 Page 30 of 34

1

RESPONSE TO PRAYER TO RELIEF

2

The remaining allegations in Plaintiffs’ Amended Complaint constitute a request for

3 relief to which no response is required. To the extent a response is required, the City denies the
4 same.
5 Unless specifically admitted above, the City denies each and every remaining allegation
6
7 in Plaintiff’s Complaint. The City specifically reserves the right to amend its answer by adding

8 defenses, affirmative defenses, counterclaims, cross claims, or by instituting third party actions,

9 as additional facts are obtained through discovery.

10

AFFIRMATIVE DEFENSES OF THE CITY

11

The City incorporates its admissions, denials, and allegations above as though fully set

12 forth herein. Without conceding which party bears the burden of proof and without admitting
13
allegations previously denied, the City asserts the following defenses: 14

15

FIRST AFFIRMATIVE DEFENSE—MOOTNESS

16

1. Plaintiffs’ claims should be barred in whole or in part as moot.

17

18

SECOND AFFIRMATIVE DEFENSE—RIPENESS

19 2. Plaintiffs’ claims should be barred in whole or in part as unripe.
20 THIRD AFFIRMATIVE DEFENSE—STANDING
21
3. At least certain of the Plaintiffs lack standing. 22

23

FOURTH AFFIRMATIVE DEFENSE—SOVEREIGN IMMUNITY

24

4. Plaintiffs’ claims are barred by sovereign immunity.

25

FIFTH AFFIRMATIVE DEFENSE—STATUTE OF LIMITATIONS

26

5. Plaintiffs’ claims are barred by the applicable statute of limitations.

27

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Case 2:17-cv-00077-RSM Document 75 Filed 03/16/17 Page 31 of 34

1

SIXTH AFFIRMATIVE DEFENSE—

FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

2

3

6. Plaintiffs have failed to state a claim upon which relief can be granted.

4

SEVENTH AFFIRMATIVE DEFENSE—ILLEGALITY

5

7. Plaintiffs’ claims should be barred by illegality.

6

EIGHTH AFFIRMATIVE DEFENSE—ASSUMPTION OF THE RISK

7

8. Plaintiffs’ claims should be barred by assumption of risk.

8 The City reserves the right to amend this Answer to assert additional defenses and
9 affirmative defenses as additional facts are obtained through further investigation and discovery
10

11

COUNTERCLAIM

12

FIRST COUNTERCLAIM—DECLARATORY JUDGMENT

13

1. The City incorporates by reference herein all allegations set out above.

14

2. In recent years, the City has been faced with substantially increasing numbers of

15 unhoused individuals residing on public property in unauthorized encampments. The Mayor has
16 declared a state of emergency with regard to homelessness, established some authorized tent
17
encampments, and devoted increased funds to addressing this issue. The City has adopted a 18

19 multi-faceted approach, including the City’s Pathways Home Plan and the investment of

20 substantial funds for prevention, intervention, and permanent housing.

21

3. As part of these comprehensive efforts, the City also conducts clean-ups at

22 encampments on its public property that raise significant public health or safety concerns,

23 obstruct the intended use of public facilities, or otherwise necessitate intervention in furtherance

24
of the public interest. 25

26

4. The MDARs govern the City’s clean-up procedures and policies. As this lawsuit

27 demonstrates, Plaintiffs have claimed there is a substantial controversy regarding the MDARs.

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Case 2:17-cv-00077-RSM Document 75 Filed 03/16/17 Page 32 of 34

1

5. Plaintiffs oppose the City’s ongoing clean-up efforts. As a result, the parties have

2 genuine and adverse legal interests.

3

6. This controversy is of sufficient immediacy and reality to warrant the issuance of

4 a declaratory judgment declaring the MDARs constitutional.
5 7. The MDARs provide for notice and retrieval of property. The new MDARs
6

7 provide even more robust protections, including individualized notice and free delivery of stored

8 property for retrieval.

9

8. The City will follow the new MDARs.

10

9. A judicial determination that the City’s clean-up procedures and practices are

11 constitutional would provide a final and conclusive adjudication.
12 10. The City is therefore entitled to a declaratory judgment, under 28 U.S.C. § 2202
13 and RCW 7.24.010, that its clean-up policies and practices, including the prior and new MDARs,
14
15 are lawful and constitutional.

16

17

18

The City requests that judgment be entered in its favor and against Plaintiffs as follows:

19 1. Entry of judgment in favor of the City and against Plaintiffs declaring the City’s
20 policies and practices lawful and constitutional.
21
2. An award of reasonable attorney fees, expenses, and costs, to the fullest extent 22

23 allowed by law and equity.

24

3. Such other and further relief as the Court deems proper.

25

26

27

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Case 2:17-cv-00077-RSM Document 75 Filed 03/16/17 Page 33 of 34

1

DATED this 16th day of March, 2017.

2

3 SEATTLE CITY ATTORNEY’S OFFICE 4

5

By s/ Gregory Narver

6

Patrick Downs, WSBA #25276

7

Andrew Myerberg, WSBA #47746 Gregory Narver, WSBA #18127

8

Carlton Seu, WSBA #26830

Gary Smith, WSBA #29718

9

Attorneys for Defendant City of Seattle 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

PACIFICA LAW GROUP LLP
By s/ Matthew J. Segal Matthew J. Segal, WSBA #29797 Gregory J. Wong, WSBA #39329 Taki V. Flevaris, WSBA #42555
Co-Counsel for Defendant City of Seattle

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1

2

CERTIFICATE OF SERVICE

3

I hereby certify that on this 16th day of March, 2017, I electronically filed the foregoing

4 document with the United States District Court ECF system, which will send notification of such

5 filing to the following:

Emily Chiang 6 Nancy Talner

7

Breanne Schuster ACLU of Washington

8 901 Fifth Avenue, Suite 630 Seattle, WA 98164

9 Email: echiang@aclu-wa.org

Email: Talner@aclu-wa.org 10 Email: bschuster@aclu-wa.org

11 Attorneys for Plaintiffs 12

Blake Edward Marks-Dias Eric Lindberg Todd T. Williams CORR CRONIN MICHELSON BAUMGARDNER FOGG & MOORE LLP 1001 - 4th Avenue, Suite 3900 Seattle, WA 98154 Email: bmarksdias@corrcronin.com Email: elindberg@corrcronin.com Email: twilliams@corrcronin.com
Attorneys for Plaintiffs

13 Patrick Downs

Andrew Thomas Myerberg 14 Gregory Colin Narver

15

Carlton Seu Gary Smith

16 SEATTLE CITY ATTORNEY’S OFFICE 701 Fifth Avenue, Suite 2050

17 Seattle, WA 98104-7097

Email: Patrick.downs@seattle.gov 18 Email: Andrew.myerberg@seattle.gov

19

Email: Gregory.narver@seattle.gov Email: carlton.seu@seattle.gov

20 Email: gary.smith@seattle.gov

21 Co-Counsel for Defendant City of Seattle

22

Matthew D. Huot Alicia O. Young ATTORNEY GENERAL’S OFFICE TRANSPORTATION & PUBLIC CONSTRUCTION 7141 Cleanwater Drive SW PO Box 40113 Olympia, WA 98504-0113 Email: matth4@atg.wa.gov Email: aliciaO@atg.wa.gov
Attorneys for WA State Dept. of Transportation and Roger Millar, Secretary of Transportation for WSDOT, in his official capacity

23

Dated this 16th day of March, 2017.

24

25

______________

26

Sydney Henderson

27

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 </s> Case 2:17-cv-00077-RSM Document 242 Filed 06/11/20 Page 1 of 8

1

2

3

4

UNITED STATES DISTRICT COURT

5

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

6

7 LISA HOOPER, et al.,

8

Plaintiffs,

9

) ) CASE NO. C17-0077RSM ) ) ) ORDER DENYING DEFENDANT’S

v.

) MOTION FOR FINAL JUDGMENT ON

10

) THE MERITS AND GRANTING

11 CITY OF SEATTLE, WASHINGTON, et ) PLAINTIFFS’ MOTION FOR

al.,

) VOLUNTARY DISMISSAL

12

)

Defendants.

)

13

14

I. INTRODUCTION

15

This matter comes before the Court on Defendant City of Seattle’s Motion for

16 Conversion of Preliminary Injunction Ruling into Final Judgment on the Merits, Dkt. #230, and
17
Plaintiffs’ Motion to Dismiss Plaintiffs’ Claims and the City of Seattle’s Counterclaim Without
18
Prejudice Pursuant to Federal Rule of Civil Procedure 41(a)(2), Dkt. #234. Oral argument has
19
20 not been requested. For the reasons set forth below, the Court now DENIES Defendant’s

21 Motion and GRANTS Plaintiffs’ Motion.

22

II. BACKGROUND

23
This case, originally filed in January 2017, arises out of the City of Seattle’s
24

25 management of homeless1 encampments. The background facts were previously set forth in

26 two prior Court Orders and are incorporated here by reference. See Dkts. #65 and #209.

27
28 1 Plaintiffs use the term “unhoused” rather than homeless in this litigation. “Unhoused” refers to all individuals who lack fixed, stable, or adequate shelter or housing. Dkt. #1 at ¶ 30, n.2.
ORDER PAGE - 1

Case 2:17-cv-00077-RSM Document 242 Filed 06/11/20 Page 2 of 8

The Plaintiffs in this action are four unhoused individuals, Lisa Hooper, Brandie
1
2 Osborne, Kayla Willis, and Reavy Washington (“Individual Plaintiffs”), and three 3 organizations, The Episcopal Diocese of Olympia, Trinity Parish of Seattle, and Real Change.

4 Plaintiffs are represented by the ACLU of Washington and other counsel. Plaintiffs’ amended
5
complaint alleges four causes of action against Defendants City of Seattle, Washington State
6
Department of Transportation (“WSDOT”), and Roger Millar, the Secretary of Transportation
7
8 for WSDOT. See Dkt. #87. Specifically, Plaintiffs allege that Defendants’ policy and practice

9 of seizing and destroying the property of people who are living outside (“sweeping” or
10 “sweeps”) violates their right to be secure from unreasonable seizures under the Fourth
11
Amendment to the U.S. Constitution; their right to privacy and protection from invasion of
12
13 their homes under Article I, Section 7 of the Washington State Constitution; and their right to
14 due process of law under both the Fourteenth Amendment to the U.S. Constitution and Article

15 I, Section 3 of the Washington State Constitution. Id.
16
The City of Seattle asserted a counterclaim for declaratory judgment in its Answer,
17
hoping that the Court would declare its sweep policies and practices lawful. Dkt. # 92. No
18
19 other Defendant has asserted a counterclaim.

20

On October 4, 2017, the Court denied Plaintiffs’ Motions for Class Certification and

21 Preliminary Injunction. Dkt. #209. Plaintiffs appealed to the Ninth Circuit and this Court
22
granted Plaintiffs’ Motion to stay proceedings pending the appeal. Dkt. #221.
23
On October 1, 2019, the ACLU, including some of the same attorneys representing
24
25 Plaintiffs in this case, filed a lawsuit against the City of Seattle in state court on behalf of three

26 other unhoused persons and a hair salon. Dkt. #231-1. Those plaintiffs assert a similar claim
27 While the term “homeless” is often utilized to refer to this population, Plaintiffs use the term 28 “unhoused” because people who lack permanent or stable housing still have homes in which
they sleep and go about their private affairs. Id.
ORDER PAGE - 2

Case 2:17-cv-00077-RSM Document 242 Filed 06/11/20 Page 3 of 8

under Article I, Section 7 of the Washington Constitution over the disposition of property at
1
2 encampments as well as state law claims for cruel punishment and conversion. See id. at 27-29.

3

In 2019 the Ninth Circuit affirmed this Court’s denial of class certification and issued

4 its mandate on December 23, 2019. Dkt. #225.
5
On March 5, 2020, the City of Seattle filed a “Motion for Conversion of Preliminary
6
Injunction Ruling into Final Judgment on the Merits.” Dkt. #230. The City argues that “[s]uch
7
8 a conversion is the functional equivalent of granting summary judgment “on the basis of the

9 factual record available at the preliminary injunction stage.” Id. at 5. On March 12, Plaintiffs

10 moved for voluntary dismissal without prejudice. Dkt. #234. Plaintiffs’ counsel state they
11
have been unable to contact some of their unhoused clients. Id. at 1 n.1. Both sides oppose
12
13 each other’s motions and essentially present the Court with only these two options to proceed.

14

While these Motions were awaiting their noting dates for consideration, Washington

15 State and indeed the entire world has had to respond to the COVID-19 pandemic. This

16
pandemic has apparently affected Plaintiffs’ counsel’s ability to communicate with their clients,

17
see Dkt. #241 at 4–5.
18

19

III. DISCUSSION

20

A. City of Seattle’s Motion for Final Judgment on the Merits

21

A district court may convert its ruling on a preliminary injunction motion into a “final

22
adjudication on the merits . . . so long as the procedures do not result in prejudice to either
23
party.” Glacier Park Found’n v. Watt, 663 F.2d 882, 886 (9th Cir. 1981) (citing Fed. R. Civ.
24

25 Pro. 65(a)(2)). However, “…it is generally inappropriate for a court to issue such a final

26 judgment on the merits of a claim at the preliminary injunction stage, because it is unlikely that
27 the merits of a claim will be fully ventilated at the early stage of a litigation at which a
28

ORDER PAGE - 3

Case 2:17-cv-00077-RSM Document 242 Filed 06/11/20 Page 4 of 8

preliminary injunction is normally addressed.” Arce v. Douglas, 793 F.3d 968, 976 (9th Cir.
1
2 2015) (citing Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 3 175 (1981)). The court should provide the parties with “clear and unambiguous notice [of the

4 court's intent to consolidate the trial and the hearing] either before the hearing commences or at
5
a time which will afford the parties a full opportunity to present their respective cases.” Univ.
6
of Texas v. Camenisch, 451 U.S. at 395. A district court can also convert a decision on a
7
8 preliminary injunction into a final disposition of the merits by granting summary judgment on

9 the basis of the factual record available at the preliminary injunction stage. However, “a court

10 could not properly enter summary judgment where the notice and hearing requirements of Fed.
11
R. Civ. P. 56 have not been followed.” Air Line Pilots Ass’n, Intern. v. Alaska Airlines, Inc.,
12
13 898 F.2d 1393, 1397, n.4 (9th Cir. 1990).

14

Given the timing of this Motion well after the preliminary injunction hearing, Plaintiffs’

15 desire to withdraw from this case, the confusion created by the format of Defendants’ Motion,
16
and the alleged inability of Plaintiffs’ counsel to reach certain Plaintiffs, the Court is not
17
inclined to find that sufficient notice has been provided to all parties under rules 65 or 56.
18
19 Defendants’ Motion seeks both to convert the preliminary injunction hearing into a final
20 judgment on the merits and seeks summary judgment prior to the closing of discovery in this

21 case. Even if notice were properly provided under rule 56, summary judgment would not be
22
appropriate at this time because prior discovery was focused on the issues facing the parties at
23
the preliminary injunction stage, and because new discovery would be necessary to cover the
24
25 events of the last two years. Accordingly, the City of Seattle’s Motion will be denied. The

26 Court notes that, even if there was a solid legal basis for entering a final judgment at the time
27

28

ORDER PAGE - 4

Case 2:17-cv-00077-RSM Document 242 Filed 06/11/20 Page 5 of 8

this Motion was initially brought, the ongoing COVID-19 pandemic would likely serve as a
1
2 basis for requiring further discovery.

3

B. Motion for Voluntary Dismissal

4

Rule 41(a)(2) provides, in pertinent part:

5

…an action may be dismissed at the plaintiff’s request only by

6

court order, on terms that the court considers proper. If a defendant

has pleaded a counterclaim before being served with the plaintiff's

7

motion to dismiss, the action may be dismissed over the

8

defendant's objection only if the counterclaim can remain pending

for independent adjudication. Unless the order states otherwise, a

9

dismissal under this paragraph (2) is without prejudice.

10 This rule “allows a plaintiff, pursuant to an order of the court, and subject to any terms and
11
conditions the court deems proper, to dismiss an action without prejudice at any time.”
12
13 Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th Cir. 1996) (citing Stevedoring

14 Servs. of Am. v. Armilla Int'l B.V., 889 F.2d 919, 921 (9th Cir. 1989)). When ruling on a

15 motion to dismiss without prejudice, “the district court must determine whether the defendant
16
will suffer some plain legal prejudice as a result of the dismissal.” Id. (citing Hyde & Drath v.
17
Baker, 24 F.3d 1162, 1169 (9th Cir. 1994); Hamilton v. Firestone Tire & Rubber Co., 679 F.2d
18
19 143, 145 (9th Cir. 1982)). Legal prejudice has been defined as “prejudice to some legal

20 interest, some legal claim, some legal argument…. [u]ncertainty because a dispute remains

21 unresolved is not legal prejudice.” Id. at 97. “[T]he expense incurred in defending against a
22
lawsuit does not amount to legal prejudice.” Id.
23
Plaintiffs argue that Defendants will not be prejudiced by voluntary dismissal merely
24
25 because this dispute remains unresolved or because Defendants may have to defend against

26 similar claims in the future, or concurrently in state court. Dkt. #234 at 3–5. Plaintiffs indicate

27 that a motion for voluntary dismissal can be granted over the objection of defendants even
28

ORDER PAGE - 5

Case 2:17-cv-00077-RSM Document 242 Filed 06/11/20 Page 6 of 8

when a counterclaim is pending. Id. at 4 (citing Smith v. Lenches, 263 F.3d 972, 975 (9th Cir.
1
2 2001)). Plaintiffs advocate for concurrent dismissal of the City of Seattle’s counterclaim for 3 declaratory judgment, arguing that the counterclaim would amount to an advisory opinion in

4 the absence of a substantial controversy and require this Court to make decisions of state law
5
that are better adjudicated in state court. Id. at 6–11.
6
As noted above, there is parallel litigation in state court asserting that the City’s sweeps
7
8 of encampments violates provisions of the Washington State Constitution. “[W]hen a state

9 court action is pending presenting the same issue of state law as is presented in a federal
10 declaratory suit, ‘there exists a presumption that the entire suit should be heard in state court.’”
11
Cont'l Cas. Co. v. Robsac Indus., 947 F.2d 1367, 1370–71 (9th Cir. 1991), overruled on other
12
13 grounds by Gov't Employees Ins. Co. v. Dizol, 133 F.3d 1220 (9th Cir. 1998)). In determining
14 whether to exercise its jurisdiction under the Declaratory Judgment Act in these circumstances,

15 a Court should consider the following factors: (1) whether a refusal to entertain the request for

16
declaratory relief avoids needless decisions of state law by the federal court; (2) whether the
17
action is a means of forum shopping; and (3) whether dismissal of the claim for declaratory
18
19 relief would avoid duplicative litigation. Smith, 263 F.3d at 977 (cited source omitted).

20

The City of Seattle argues legal prejudice from Plaintiffs’ apparent forum shopping,

21 delay in bringing this Motion, the risk of duplicative litigation, and “the public interest in final
22
resolution of such disputes and the distinct potential for foul play.” Dkt. #240 at 10–13. The
23
Washington State Department of Transportation and Roger Millar, Secretary of Transportation,
24
25 also argue that they face prejudice from voluntary dismissal, mainly in the form of having had

26 to devote “considerable resources to this case.” Dkt. #235 at 4.
27

28

ORDER PAGE - 6

Case 2:17-cv-00077-RSM Document 242 Filed 06/11/20 Page 7 of 8

The Court finds that Defendants have failed to set forth some plain legal prejudice that
1
2 would result from this voluntary dismissal. The Court agrees with Plaintiffs that voluntary 3 dismissal now does not in any way alter the City of Seattle’s legal interests of claims, and they

4 are free to continue removing encampments. See Dkt. #241 at 3. As noted above, uncertainty
5
because a dispute remains unresolved is not legal prejudice. The Court finds that there has not
6
been inordinate delay on Plaintiffs’ part in bringing this Motion considering the time spent up
7
8 on appeal. As stated above, the expense incurred in defending against a lawsuit does not

9 constitute legal prejudice. The Court is concerned by the accusations of forum shopping, but
10 ultimately concludes that such has not been demonstrated in this case, in part because the state
11
court lawsuit has been brought by different plaintiffs and in part because the factual allegations
12
13 in that case will be separated by several years from those brought in this case. Accordingly,
14 voluntary dismissal is permitted.

15

Dismissal of the City of Seattle’s declaratory judgment counterclaim is also appropriate

16
as continuing with that claim alone would amount to an advisory opinion in the absence of a
17
substantial controversy and would require this Court to make decisions of state law that are
18
19 better adjudicated in the state court action.

20

IV. CONCLUSION

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Having reviewed the above Motions, related briefing, and the remainder of the record,

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the Court hereby finds and ORDERS:
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1. Defendant City of Seattle’s Motion for Conversion of Preliminary Injunction Ruling
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into Final Judgment on the Merits (Dkt. #230) is DENIED.

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Case 2:17-cv-00077-RSM Document 242 Filed 06/11/20 Page 8 of 8

2. Plaintiffs’ Motion to Dismiss Plaintiffs’ Claims and the City of Seattle’s
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Counterclaim (Dkt. #234) is GRANTED. Plaintiffs’ claims and the City of Seattle’s

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counterclaim are DISMISSED without prejudice.

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3. This case is CLOSED.

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DATED this 11th day of June, 2020.
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A

RICARDO S. MARTINEZ

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CHIEF UNITED STATES DISTRICT JUDGE

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ORDER PAGE - 8


[CONTENT] Seattle | Washington ||| two | the Episcopal Diocese | Olympia | January 19, 2017 | the U.S. District Court | the Western District | Washington ||| ACLU | Washington | the City of Seattle | the Washington State Department of Transportation | Transportation | 42 | Article 1 | Article 1 | 3 | the Washington Constitution | the Fourteenth Amendment ||| the Multi-Departmental Administrative | 08-01 | WSDOT | the Guidelines to Address Illegal Encampments |||  |||  ||| The District Court | Ricardo Martinez ||| the Fourth Amendment | the Fourteenth Amendment | the Washington State Constitution | the Washington State Constitution |||  |||  ||| the City of Seattle ||| A day ||| the City of Seattle ||| February 6, 2017 ||| Martinez | February 14, 2017 ||| 2017 WL 591112 ||| March 2, 2017 | Parish | Seattle ||| the City of | Seattle | March 16, 2017 ||| April 2, 2017 ||| second | May 23, 2017 ||| June 14, 2017 ||| Martinez | October 4, 2017 ||| 2017 | 4410029 ||| Martinez ||| Martinez ||| Martinez ||| January 23, 2018 | the Ninth Circuit ||| Sandra Ikuta | Morgan Christen | Jennifer Choe-Groves ||| November 29, 2019 | the District Court’s ||| 943 | 882 ||| Christen ||| the Ninth Circuit | the District Court | the City of | Seattle | March 5, 2020 ||| March 12, 2020 ||| June 11, 2020 | Martinez ||| 2020 ||| WL 3100855 |||  [SUMMARY] This case deals with the legality of seizing the property of unhoused individuals by the city of Seattle, Washington without adequate notice. 

The plaintiffs - initially consisting of two individuals, the Episcopal Diocese of Olympia, and the organization Real Change - filed this lawsuit on January 19, 2017, in the U.S. District Court for the Western District of Washington. Represented by the ACLU of Washington and private counsel, the plaintiffs sued the City of Seattle, the Washington State Department of Transportation (WSDOT), and the Secretary of Transportation for WSDOT under 42 U.S.C. § 1983, Article 1, § 7 and Article 1, § 3 of the Washington Constitution, and the Fourteenth Amendment of the United States Constitution, on their policy of “sweeping.” The City rules governing the sweeps were promulgated as the Multi-Departmental Administrative Rules 08-01 (MDARs), while WSDOT adopted the Guidelines to Address Illegal Encampments.  The plaintiffs claimed that the practice of sweeping seized or destroyed their property without adequate notice, an opportunity to be heard, or a meaningful remedy to reclaim undestroyed property.  The plaintiffs sought class certification, declaratory relief that federal and state constitutions forbid the policies of defendants, injunctive relief forbidding sweeps until constitutionally respective procedures are adopted, and attorney fees. The District Court assigned the case to Judge Ricardo Martinez.
 
In the complaint, the plaintiffs alleged that the policies of the City violated protections from unreasonable search and seizure under the Fourth Amendment, right to due process under the Fourteenth Amendment, the right to protection from invasion of home under the Washington State Constitution, and the right to due process under the Washington State Constitution. The City viewed the policies themselves, also referred to as “cleanups,” as necessary for public health and safety. In contrast, the plaintiffs contended that the policy of the City violated constitutional notice requirements for the residents of these encampments and others who lacked a permanent home. Furthermore, the plaintiffs alleged that items the City of Seattle viewed as “garbage” were in fact constitutionally protected property, thus requiring both due process protections and recovery protections. 

A day after filing the complaint, the plaintiffs filed a motion for class certification.  The proposed class included all unhoused persons who lived outside within the City of Seattle and who keep their belongings on public property. 

On February 6, 2017, the plaintiffs filed a motion for a temporary restraining order (TRO) against the practice of sweeping. Judge Martinez denied the motion for the TRO on February 14, 2017, finding that the plaintiffs inadequately satisfied their burdens of success on the merits and irreparable harm, but allowed the plaintiffs' concurrent but unfiled motion for a preliminary injunction to proceed. 2017 WL 591112.

The plaintiffs filed an amended complaint on March 2, 2017, adding another individual and the Trinity Parish of Seattle as plaintiffs.  In response, the City of Seattle filed a counterclaim on March 16, 2017, seeking a declaratory judgment that the City’s newly adopted MDARs was sufficiently constitutional. The new MDARs was set to go into effect on April 2, 2017. The plaintiffs then filed a second amended complaint on May 23, 2017, adding an additional individual plaintiff.

The plaintiffs filed a motion for a preliminary injunction on June 14, 2017.  Reviewing the motions for preliminary injunction and class certification in tandem, Judge Martinez denied both motions on October 4, 2017. 2017 WL 4410029. Judge Martinez denied the class certification because the plaintiffs failed to establish commonality, typicality, and adequacy of representation.  Judge Martinez denied the preliminary injunction because he found plaintiffs failed to demonstrate irreparable harm because speculative injuries are not immediate, threatened injury. Judge Martinez found that the balance of equities and the validity of the public interest weighed in favor of defendants because the speculative claims of plaintiffs did not outweigh the defendants' interest in maintaining public property free of items that may pose a threat to citizens. 

On January 23, 2018, the plaintiffs appealed the denial of the class certification to the Ninth Circuit. Judge Sandra Ikuta, Judge Morgan Christen, and Judge Jennifer Choe-Groves heard the case. The panel affirmed the denial of class certification on November 29, 2019, finding the lack of sufficient evidence and commonality dispositive enough to warrant the District Court’s denial of the class certification. 943 F.3d 882. Concurring in part and dissenting in part, Judge Christen found that the plaintiffs presented distinct facial challenges to the cleanup policies. 

With the Ninth Circuit finding no abuse of discretion by the District Court, the City of Seattle filed a motion to convert the preliminary injunction into a final judgment on the merits on March 5, 2020. The plaintiffs responded on March 12, 2020, by filing a motion to voluntarily dismiss their claims and the City’s counterclaim. On June 11, 2020, Judge Martinez denied the City’s motion for conversion and granted the plaintiff’s motion to dismiss without prejudice. 2020 WL 3100855. This case is closed. 
