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City of Fresno Ordered to Uphold the U.S. Constitution

by Mike Rhodes (MikeRhodes [at]
A report on four days of hearings that resulted in upholding the constitutional rights of homeless people in Fresno.
City of Fresno Ordered to Uphold the U.S. Constitution
By Mike Rhodes

The City of Fresno was ordered on Wednesday, November 22 to stop taking and immediately destroying homeless people’s property. United States District Judge Oliver Wanger, citing the 4th, 5th, and 14th amendment to the constitution issued a preliminary injunction against the city. Wanger said “people can not be punished because of their circumstances. They can’t be deprived of their constitutional rights.”

Throughout the hearing, the policy of the City of Fresno was described by police officers, city workers, and the city manager. They said it was their policy to notify residents of homeless encampments that a “clean up” was going to take place. They would notify the residents of the encampment both in writing and orally. The position of the city was that if they notified homeless encampment residents of the date and time of the clean up, they could then come in with bulldozers and a garbage truck, declare everything in the area that remained as trash, and destroy it. City workers claimed that they would never destroy property if it was in someone’s possession. In the last day of the hearing, it was revealed that this policy was the creation of Fresno police officer Rey Wallace. He described the policy as an “out of the box” creative solution to the problem created by homelessness in this community.

Homeless people, in their testimony before the court (see below), said they had not received notice of impending police sweeps and that their possessions are not trash. They described losing medicine, clothing, and other irreplaceable items. One person had an urn, with her granddaughter’s ashes inside, destroyed by a police raid. This happened as the person begged city workers not to destroy her property.

After four days of hearings, Wanger determined that the law provides for the homeless to have their property rights protected. The preliminary injunction will be in place until a lawsuit on this issue is resolved by the court. A conference to set up a court date for the lawsuit will be held in February 2007.

The Fresno Bee reported today that City Hall leaders plan to appeal the ruling (to issue a preliminary injunction) to the 9th U.S. Circuit Court of Appeals. See The Fresno Bee story here:
In this article, council members Dages and Perea are identified as opposing an appeal. If liberal council members Cynthia Sterling and Tom Boyajian also oppose an appeal to the 9th District Court of Appeals, the appeal will not happen.

About 20 homeless people attended the hearing on the last day and were exuberant upon hearing the news of the victory. In an impromptu meeting in the hallway of the court they thanked the attorneys and dubbed them “the dream team.”

Below are my notes from the hearings. This is not a transcript of what happened, but will provide details and insights not found anywhere else. I was the only journalist to sit through all four days of the hearings.

Day 1

A hearing was held in Federal Court yesterday to stop the City of Fresno from taking and immediately destroying homeless people’s property. Attorney’s for the homeless are seeking a preliminary injunction to stop the city from conducting sweeps in downtown Fresno, which result in the loss of homeless people’s possessions. Property taken has included blankets, tents, clothing, ID, medicine, and even an urn containing one persons grandchild. There is a Temporary Restraining Order in place, but a preliminary injunction is being sought to prevent these raids from occurring until a lawsuit can be resolved.

The lawsuit claims City of Fresno is violating the constitutional rights of homeless people by destroying their property. The complaint was filed by the Lawyers’ Committee for Civil Rights, the ACLU of Northern California and the law firm of Heller Ehrman, LLP and is being heard by judge Oliver Wanger.

The courtroom, filled with homeless and their allies, heard three witnesses on Tuesday, November 7, 2006. The first witness was Liza Apper, who works with the Saint Benedict Catholic Worker. Apper has been a homeless advocate for many years and has put herself in front of bulldozers to protect homeless peoples property. She spoke about the May 25, 2006 incident when she stopped a bulldozer from destroying a tent. The police ordered Apper to move, but she held her ground. The bulldozer eventually moved around her and destroyed other shelters. After the threat from the bulldozer was gone, Apper said that a man came out of the tent. He had been asleep and unaware of the danger. For more information about this incident, see:

Apper said that Fresno was exceptionally hostile to homeless people and on a national scale is probably one of the most unfriendly cities. James Betts, the attorney representing the City of Fresno objected repeatedly and attempted to limit Apper’s testimony. Apper said Fresno was in the top ten of US cities who are hostile to the homeless. She estimated there were 4 - 8,000 homeless on the streets of Fresno and that there are very few shelters where a homeless person can find a bed. Apper said the Fresno Rescue Mission (for men only) has between 120 - 150 beds, the Poverello House has 22 tool sheds that sleep two people each, and that the Naomi House (for women only) has 24 beds.

Because of a scheduling issue, Jim Connell the executive director of the Poverello House, was the next witness. Connell said the Poverello House complained about the homeless encampment on Santa Clara street in 2003/2004 because he believed criminal activity was taking place. To see background information about the Santa Clara encampment see:

Connell described the period leading up to the raid on the homeless encampment by saying that “the Poverello House was getting complaints, there was verbal harassment of people coming to visit our facility, sanitation problems, and that there were needles and syringes on the ground.” In late 2003 or early 2004 Captain Gardner with the Fresno Police Department called a meeting of social service groups. The purpose of the meeting was to come up with a solution to the Santa Clara encampment. Connell said that Captain Gardner told the group he would not clear the street until someone stepped forward and set up additional housing for the homeless. According to testimony, Connell was the only person at the meeting to agree to set up more shelter space. The agreement was to use a piece of land, recently purchased by the Poverello House, and set up a tent city. This has turned into the “Village of Hope” that has 44 beds in 22 tool sheds.

Connell described the Village of Hope as a self governed community that provides for its own security, has its own city council, and members are voted in and out. He complained that the occupancy rate over the summer of 2006 was only about 50-60%. He then used that figure to argue that any homeless person that wants a bed has one available. Connell said the reason homeless people are not staying at the Poverello House is because the Village of Hope has “minimal standards.” For example, residents of the Village of Hope are not allowed to bring in drugs or alcohol. Connell did not mention that these tool sheds get extremely hot in the summer or that residents must leave by 7:30 AM and can’t come back until the evening. Other problems cited at the Village of Hope are random searches of peoples property and the similarity to the TV show survivor - where people who are not liked are voted out of the community by the elite.

The issue of how many homeless are in Fresno came up several times. Connell challenged the findings of the Continuum of Care report which concluded that about 1% of the population in Fresno was homeless at any given time. The 1% figure is a national average. Some people think, because of economic conditions, the number of homeless in Fresno is higher - perhaps as high as 2%. But, Connell argued that the number was far less than the 4 - 8,000 figure cited in the Continuum of Care report. “I don’t know how many homeless there are in Fresno. It could be 200 or 2 million.”

Connell said that he does not believe any homeless people have ever had their property taken without receiving a notice that a “clean up” was about to take place. He said that the Poverello House has written, printed, and posted many of the notices preceding the raids. But, when asked if he has ever seen a notice posted in a homeless encampment he said “no.”

When asked how often he has been in the homeless encampments around the Poverello House, Connell said that he has walked through them maybe six times. Connell has worked at the Poverello House 16 years and has only walked outside where the encampments (and the homeless) are located, an estimated 6 times. The homeless and their allies in the courtroom gasped at the admission. Connell also said he was unaware of current activities in the area because he has just returned from a vacation in Europe.

The level of hostility Connell has against the homeless who refuse to subject themselves to the discipline of his Village of Hope became more apparent as he was challenged on his perception of whether or not the homeless are being treated in a compassionate manner by the police. Connell said “Captain Garner has shown compassion and patience in his work with the homeless. Officer Wallace is exceptionally compassionate.” In testimony before the court, Connell said it is compassionate to throw away homeless peoples property if they are not present when it is destroyed. Michael Risher, an attorney with the ACLU, asked Connell if it would be compassionate to throw away a bicycle that was leaning up against a fence. “Yes” was the reply. How about a shopping cart with someone’s property inside? “Yes.” Connell drew the line at destroying somebody’s property if it was clearly identifiable and could be returned to the owner. He said the Poverello House has a program that allows homeless people to store property for 30 days.

Rev. Floyd Harris was the next witness. Rev. Harris had participated in a clean up of the homeless encampment over the summer. See: . He described how it was possible to clean up the homeless encampment without destroying property. Rev. Harris said he went to the encampment the day before the clean up to talk with the residents. The homeless agreed to help and when Harris brought a youth group they all worked together on the clean up. Harris disputed Jim Connell’s description of the encampments as being covered with human feces and having needles and syringes all over the ground. Harris said “I’ve seen more needles north of Shields avenue than south of Shields.” Harris said he and his co-workers did not have to wear bio-hazzard suits to conduct the clean up. Harris concluded, “I wanted to show the youth group that came out that day not to be afraid of the homeless. We are all one community.”

Liza Apper returned to the stand and described the June 22 attack on the homeless encampment. Photos were shown of her struggling with officer Rey Wallace over the possession of a shopping cart. On that day, the police and sanitation had concluded their clean up on the west side of E street (south of Ventura) and the homeless had removed what they could and put it on the East side of E street. In a surprise move, the police directed city sanitation workers to start throwing entire tents and shopping carts into the garbage truck and crushing them. What was being destroyed was obviously the property that the homeless people sought to save from destruction. For more details about this incident, see: .

Apper next described the August 26 raid which ended with the city constructing a fence around the homeless encampment to keep people from returning. Photos and information about that incident can be seen here:

Day 2 and 3

The hearing continued on Thursday, November 16, 2006 at 9 AM.

Attorneys for the homeless in this community are seeking a preliminary injunction to prevent the city from taking and immediately destroying homeless peoples property during raids carried out by the Fresno Police Department (FPD) and the City Sanitation Department. The City of Fresno is not denying that they have taken homeless peoples property and destroyed it. Their justification for the practice is that they give notice of the raids and that the property they take has been abandoned. They also argue that it would be to burdensome to collect and store homeless peoples property.

Larry Arce, the CEO of the Rescue Mission (a homeless shelter in downtown Fresno), was called yesterday as a witness in support of the city’s policy. Arce said that his agency does the same thing. “We clean the street in front of the Rescue Mission every day and throw everything away that is left behind.” When asked if they would throw someone’s property away if they had left it in a cart in front of the mission while they got a warm meal, he said “if someone leaves their property in front of the Fresno Rescue Mission, they have no sense.” Arce said they have thrown many shopping carts full of homeless peoples possessions away over the last several years.

The three days of hearings have positioned the institutional homeless service providers, such as the Rescue Mission and the Poverello House, as supporters of the city’s policy of destroying homeless peoples property. Paul Stack, Poverello House facilities manager, said the homeless set up a large encampment on Santa Clara street (right in front of the Poverello House) in 2003/2004. Stack said the Poverello House received complaints about the encampment from visitors and donors who came to their facility. Rick McNeil who is also an employee at the Poverello House, did not have a problem with the destruction of homeless peoples property. He said he has never seen anyone’s property destroyed if they were with it. McNeil said the homeless are always given time to move and they always get a warning before the clean ups start.

The testimony by the homeless tells a different story. Sandra Thomas says she had her property destroyed on June 22, 2006 after being told it would be safe by officer Rey Wallace. Thomas said she moved her four shopping carts from the West side of E street to the East side because of an impending raid. The custom and practice of the FPD had been that they would direct the sanitation department to move down the strip of land on the West side of the street and the homeless people would take whatever possessions they could to the East side of the street and then return when the sweep was over. Thomas asked the home owner and officer Wallace if she could safely leave her carts on the public sidewalk in front of a house. She was promised that her carts would be safe. She then left for a short time to take a shower at the Poverello House. When she returned, all but one of her carts were gone, crushed in the back of a garbage truck. Dramatic video of the incident was shown in the courtroom. The video showed Thomas’s cart being picked up by sanitation workers and tossed into the garbage truck. Thomas cried as she told the court about what was in the carts. “I lost my ID, my grandmother’s diamond wedding ring, Social Security paperwork, clothes, and blankets,” Thomas said. Afterwards, “I had no place to sleep, no blankets, and I caught pneumonia. To see pictures of the June 22 attack, go to: .

Doug Deatherage was also affected by the June 22 attack on the homeless. Deatherage says he was told on the day of the attack that it would take place. He and his fiancee, Pamela Streeter, gathered all they could and took it to the East side of the street. Deatherage went to the grocery store while Pamela stayed with their possessions. When he got back, Pamela was crying and everything was gone. “We lost shoes, clothes, my antique stamp collection, letters and photos from my family, and worst of all, Pamela had an urn with her granddaughters ashes. We lost everything.” Deatherage said the city sanitation workers took their property over Pamela’s protest.

One interesting aspect to the court proceedings was it showed the practice of destroying homeless peoples property is something not limited to the downtown area. Jeanie Nelson testified that she was homeless and living at a church near Millbrook and Shields avenue (North Central Fresno). Nelson said she had made arrangements with the church, which she attends, to stay on the property. “At 8 AM in June or July of this year and officer told me to get up and move to the canal bank (near the church),” Nelson testified. “I was told to shut up and sit down on the canal bank.” Nelson said that she had met the officer before. “The officer said ‘didn’t I tell you that I never wanted to see you again?’” Nelson said she tried to show him a paper showing she had the church’s approval to be on the property but he would not look at it. Nelson said “ he then pushed my shopping cart into the canal.” She lost her medicine, birth certificate, clothing, and bedding. The loss of her medicine resulted in a trip to the emergency room. She said the officer threatened to come back and give the church a citation for allowing a homeless person to stay there.

Alphonso Williams lives near Roeding Park, a couple miles North of the downtown area. While living there he says he has seen the FPD destroy homeless peoples property 7 or 8 times. He has had his property destroyed several times. The first time it happened, two FPD officers told him he had one hour to move. Williams managed to find a friend with a truck and they loaded it with everything he and his wife owned. Before they got a block, the police pulled them over and said the truck was going to be towed. “We were told to take our stuff out of the truck and put it on the sidewalk,” Williams said. He went to find other transportation and when he returned 30-45 minutes later, what he saw was a garbage truck driving away. “The officer told us we were too late. The took my wife’s wheelchair, her medicines, and our wedding pictures,” Williams said.

The next time Williams lost his property was when he was living on a lot, next to the old Harley Davidson store on Olive avenue. Williams said “we had the owners permission. We kept the place clean and everything was fine. I went to get a cup of coffee at McDonald’s and my wife came up and told me that city workers and the police were there and going to destroy our property.” Williams said that the shopping cart with his property was even on private land and that the person in the house had given him permission. That did not matter to the FPD who directed the sanitation department to destroy it. When Williams protested, the FPD pulled their tasers and threatened to shoot him.

Pam Kincaid (see ) said she has been homeless for 6 years. “They have taken my things six or seven times. They don’t give you any notice,” Kincaid said. She has had craft tools, tents, clothing, and been left with just the clothes on her back. “It is devastating when this happens. It is like being raped,” Kincaid said.

Jim Betts, attorney for the City of Fresno, called FPD captain Greg Garner to the stand. Garner said they always notify the homeless in writing and orally before a “clean up” is about to occur. Garner has never seen an instance when someone who was present or near by has had their property destroyed if they are present or near by. Garner said “we do not have a policy to deprive homeless people of their property or move them out of downtown. We respond to complaints. We have never cleaned up an area without a complaint from the property owner.” Standing order 3.8.12 was entered into evidence. This code is the protocol for how the FPD handles property. The procedure for what to do with found property, such as bicycles and shopping carts, does not call for their immediate destruction. Found or abandoned property is cataloged and stored for a period of time so the owner can reclaim it. Garner did not have a compelling explanation to explain the exception when dealing with poor or homeless peoples property. He repeatedly called homeless peoples property abandoned debris. Even when shown a picture of a nice bicycle being thrown into a garbage truck and crushed, he stuck with his story. Judge Wagner shook his head.

Garner claimed an October 8 raid when the FPD took numerous shopping carts from an encampment near H street (see ) was within the law because of the new City of Fresno shopping cart ordinance ( see ). When it was brought to his attention that the shopping cart ordinance was not effective until October 27, Garner became defensive and claimed he had the right to do it anyway.

Philip Weathers, with the City of Fresno Sanitation Department, said he co-ordinates the “clean ups” with FPD officer Rey Wallace. Weathers said that his department is entirely dependent on the FPD to determine when and where to go. Weathers said that his crews were not trained to collect and store homeless peoples property. According to Weathers, everything that the FPD tells them to clean up is abandoned debris and it is all destroyed. Asked under cross examination if he has ever found out what the effect is to the people whose property he destroys, Weathers looked confused. After the question was asked several times, with the same response, Weathers testimony was over.

Fresno City manager Andrew Souza was the last person on the stand Friday. Souza said the city conducts these “clean ups” because of complaints from the public. He said they receive complaints in many different city departments and they need to respond. Souza said he considers city policy to be fair because they have notified the homeless that they are coming and the debris left behind is abandoned. However, he said that because of the current controversy, “my recommendation to the mayor is that we do not do any more sweeps.” Souza said that the city has looked into the cost of storing homeless peoples property, rather than destroying it, but there are significant problems with a policy that included those elements. Souza said it would cost $50,000 to train sanitation workers in the procedures. In addition, Souza has concerns about liability issues that could result if somebody claimed property (taken and stored by the city) that was not theirs.

To summarize - The city’s position is that they should be allowed to keep the streets of Fresno clean. They argue that because they notify the homeless of the clean ups, both with a written notice and orally, that they have been warned. Homeless peoples property will not be destroyed if they are in possession of it or nearby. Anything left behind is debris and will be destroyed.

The position of the homeless and their advocates is that the city does not have the right to declare their possessions debris, take, and immediately destroy it. Homeless peoples property, if taken, should be stored so it can be reclaimed by the owner. Because there is not adequate shelter for the homeless in this community, the raids should cease and a more humane policy adopted.

Day 4

The hearing continued on Wednesday, November 22, 2006 at 9 AM.

The day began with Fresno City Manager Andy Souza on the stand. Souza was asked if he has ever called the city manager of another city to ask them how they deal with the homeless. He said “no,” that he has never talked to any other city manager about this issue. Paul Alexander, one of the attorneys for the plaintiffs asked Souza about Community Development Block Grant (CDBG) funding. This is money that the Federal Government gives to Fresno, some of which is designated for addressing homeless issues. Souza said the City of Fresno gives this CDBG funding to Code Enforcement and the Fresno Police Department. When asked if the money could have been used to gather and store homeless peoples property (rather than destroy it) he said “yes,” but that the city had not designated CDBG money for that purpose. Alexander asked Souza if the homeless have a “safe place” to go. In other words, is there anywhere in Fresno the homeless could go where they would not be subjected to police sweeps? The answer was “no.”
Souza had said the City of Fresno only engages in sweeps after receiving complaints from the owner of the property. He was asked if Caltrans, the owner of the property on E street and Ventura where many of the sweeps has taken place, had complained. “Do you have an email or letter regarding complains from Caltrans, Alexander asked. Souza’s response, “no.”

Re-direct by City of Fresno attorney Jim Betts.

He argued that the city receives complaints about the obstruction of city sidewalks, that many of these complaints are received by phone, and that the city has to respond. Betts and Souza say that sorting and storing homeless peoples possessions would require negotiations with organized labor because it would be an expansion of their duties. Souza says that the shopping carts that were destroyed in the sweeps were done so properly and handled according to the city policy.

Rey Wallace was called to the stand. Wallace is a specialist (roughly equivalent to a corporal) in the South West division of the Fresno Police Department. He described his duties as interacting with the homeless on a daily basis. He says “everyone of them knows my name,” and that being on the street regularly builds trust. He says that he “clears encampments because of complaints.” He receives all of the complaints. Wallace said that after receiving a complaint, that he visits the site. He talks to the residents and asks for their cooperation in cleaning up the area. If things do not improve “I set up a clean up.” Wallace then described the process - He would coordinate the clean up date with the city sanitation department. He would then print up a written notice of the clean up and pass them out from one shelter (tent) to another. If someone was not at their shelter, he would post it on the tent. He would tell residents to tell their neighbors about the upcoming clean up. Then, on the day of the clean up, he would come by one hour before the event and remind everyone it was about to happen. Wallace said he always gave people time to remove their property. He said he directed the clean ups. In other words, he would direct the city sanitation workers where to go. Wallace said that he has never thrown away any person’s property if they were in possession of it. Any unattended carts were considered trash and thrown away.

Wallace discussed the incident (described above) where he attempted to take the shopping cart away from Liza Apper. He said the carts were abandoned and just because there was a homeless advocate trying to save the cart, it did not change the law.

Cross examination by ACLU attorney Michael Risher

Risher asked about the destruction of homeless peoples property. Wallace answers that the carts he has ordered destroyed are all abandoned. “They are all abandoned, if they are not in someone’s possession,” Wallace said. He has seen hundreds of shopping carts destroyed over the last two years. Wallace declares that he has “determined that unclaimed property is trash.” He says that this was an “out of the box” solution that emerged to deal with the issue of homelessness in Fresno.

The Apper/Wallace video was shown again. This video shows officer Wallace and Liza Apper in a tug of war with one of the shopping carts on E street. Wallace claimed that “the carts were not in her possession. She attempted to assert was trash, there was no owner present.” Risher said “You knew they belonged to somebody?” Wallace’s response, “it was trash it was left abandoned. The video showed neatly stacked possessions stacked in four shopping carts. The police destroyed three of the four carts.

A brief oral summation was given before the judges ruling.

Paul Alexander, on behalf of the homeless:

The 4th amendment limits governments ability to seize and destroy someone’s property. The immediate destruction of homeless peoples property violates the 4th and 14th amendment to the U.S. constitution and California civil law. Alexander argues that we are a nation of laws and “we can’t make up rules as we go.” The judge, when issuing a Temporary Restraining Order in this case said “one mans trash is another mans treasure,” and Alexander reminds the court of this fact. The City of Fresno, in a report it issued (The Consolidated Plan) says there are 8,824 homeless. There are nowhere near that many homeless shelter beds in this community, therefore it is inevitable that some homeless people will have to sleep outside. The Rescue Mission has beds, but in order to stay, you have to prey. There are a few beds in the tool sheds at the Poverello House, but not everyone wants to stay there, even if they could. The city’s policy says you have to be in possession of your property or it will be taken and destroyed. Rey Wallace created this policy and Souza (the City Manager) agreed it was the city policy. They say this policy is fair because they give a notice that they are going to come and destroy homeless people’s property. And yet, the only notice they could show the court had the wrong date on it! Let’s look at the balance of hardship - the homeless have their shelters destroyed, clothing, tools, an urn, grandmothers wedding ring, lock of sons hair, ID, birth certificate, and their constitutional rights destroyed. The cost to the city in this balance of hardship - it might cost them $50,000 to train workers in how to handle property and find a place to put it.

Jim Betts for the city

The homeless could have moved their property to the Poverello House (they have some storage facilities). Betts then asks the court if they could discuss the terms of the Preliminary Injunction (he seemed to assume he was going to lose the case) and the judge said he would be given an opportunity to be heard after his ruling. Betts summation seemed a little defeatist to me. He seemed to have thrown in the towel and asked for the mercy of the court.

Oliver Wanger’s decision

Wanger says the testimony shows there is a lack of available shelter space in this community. But, he is not here to force the city to provide more shelter for the homeless. This is a narrowly defined case. The court recognizes that the city has a duty to make calls for service, health and safety issues, and to clear obstructions from the sidewalks. However, he said “people can’t be punished because of their circumstances. They can’t be deprived of their constitutional rights.” Law enforcement and the police must do their jobs.

Wanger said the City of Fresno has no written policy on how to deal with the homeless during these sweeps. He said specialist Wallace has created the policy out of whole cloth and his policy has transmogrified homeless people’s property into trash. Wanger said the City of Fresno takes property into possession all of the time. Why should the policy on how to deal with homeless peoples property be different from that of anyone else? With an $800+ million budget, the city should be able to do better than this.

The judge said officer Wallace has a “woefully mistaken understanding of the law.” It is dishonest and demeaning to identify someone’s property as trash. The 4th, 5th, and 14th amendment is being violated because property is being taken without the opportunity to be heard.

Wanger said the city is being disingenuous when it argues that it can’t clean these sites without destroying the property. They (the city) deals with this all the time - crack houses, meth labs, etc. The police and fire department are capable of dealing with hazardous clean ups.

In the end the balance does not compute. The constitution of the United States is on the one side and the City of Fresno’s need to clean up a street on the other. Wanger issues a Preliminary Injunction that stops to City of Fresno from taking and immediately destroying homeless peoples property.

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