by Erica C. Barnett
(This article was originally published on PubliCola and has been reprinted under an agreement.)
Last Friday, a state appeals court issued a ruling staying any enforcement of a King County Superior Court decision finding Seattle's rules on "obstruction" encampment removals unconstitutional. The City defines an "obstruction" as any encampment, tent, person, or property that is located in virtually any public space, including remote areas of public parks. The stay comes in response to an appeal filed by City Attorney Ann Davison's office on Friday, and allows the City to continue its practice of no-notice sweeps, which have ramped up dramatically under the Harrell administration. Attorneys for the plaintiffs in the case have until Aug. 11 to respond to the City's appeal.
As PubliCola reported last month, two formerly homeless people, Bobby Kitcheon and Candace Ream, sued the City, with the help of the ACLU of Washington, after the City subjected them to repeated sweeps. According to the lawsuit, both Kitcheon and Ream lost all their possessions, including irreplaceable family mementos as well as IDs, insulin and other medications, and food, each time the city arrived to remove their tents from a new location.
In his order, Superior Court Judge David Keenan found that the City's rule violates people's privacy and constitutes "cruel punishment" under the state constitution because the City's definition of "obstruction" — which includes any tent or person sleeping in any area of a public park, for example — "allows the City to move unhoused people who are not actual obstructions, without offering unhoused people shelter." Under a Ninth Circuit ruling called Martin v. Boise, cities are not allowed to remove homeless people from a location without offering them shelter except in certain circumstances, including when a tent or person is blocking others from using a public space, such as a sidewalk.
The City's appeal of the superior court ruling rests on the argument that the City's rule allowing no-notice removals of encampments when they are "obstructions" can't be "facially" invalid—that is, unenforceable on its face — because the rules can be applied constitutionally; in other words, because there are cases where a tent is actually obstructing the public use of a space, such as a sidewalk, the City is claiming the law can't be invalid in its entirety.
The City Attorney's Office, using outside attorneys, is also arguing that because the two plaintiffs are now housed and were never subject to civil or criminal charges, they lack standing to challenge the City. It's worth noting that as a matter of practice, the City does not fine or charge people for sleeping in public; instead, it conducts sweeps.
Additionally, according to the City's appeal, "even if respondents had standing, Mr. Kitcheon and Ms. Ream were not involuntarily homeless because they were repeatedly offered shelter by the City and voluntarily left City-funded shelter." As we have reported many times, people often decline shelter or leave the shelter beds the City assigns them because the beds are not appropriate for their circumstances; in Kitcheon's case, according to the lawsuit, the only shelters that were generally available were single-gender and would have forced him and his wife to separate.
Davison's office also argued that people have no right to privacy inside their tents when those tents are located on public property. PubliCola is not a lawyer, but this does raise an obvious question about how far the City's right to invade people's personal space extends.
Over the weekend, for example, housed people camped out along Lake Washington during Seafair; would Davison claim a right to send workers to barge into those tents and seize everything inside them, since they are, according to the City's own rules, obstructing the use of public space? Or does the City's "heightened interest in protecting the health and safety of the community (both housed and unhoused) and accessible use of public property and rights of way" only apply when the people camped out in public space have nowhere else to go?
PubliCola has received the second of 10 "deliverables" provided by former KCRHA director Marc Dones as part of their ongoing $60,000 contract with the City of Seattle, which involves researching how Medicaid funding might be used to pay for homeless services.
The document, which — according to Dones' contract — represents 10 hours' worth of work, is a spare timeline and 375-word summary of the work Dones is supposed to do, including "framework development," interviews with stakeholders, and "iterating the framework report" with Harrell's office. The City is paying Dones through December.
As we've reported, Dones left the KCRHA at a time when many agency staffers and government officials with oversight authority over the agency had begun to express a lack of confidence in their leadership. The contract is worth three months' salary for Dones — the minimum they would have been likely to receive in severance if they had been fired instead of leaving voluntarily.
Erica C. Barnett is a feminist, an urbanist, and an obsessive observer of politics, transportation, and the quotidian inner workings of City Hall.
Featured Image: Workers toss tents into the back of a dump truck on Fourth Avenue in downtown Seattle in 2022. (Photo: Erica C. Barnett, courtesy of PubliCola)
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