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Federal Judge Rules City of Fresno Violated the Rights of Homeless Residents

by Posted by Mike Rhodes (MikeRhodes [at]
A summary judgment was issued on May 12, 2008 in the lawsuit by homeless people against the City of Fresno. The statement below is from the American Civil Liberties Union and the Lawyers’ Committee for Civil Rights, two of the law firms representing the plaintiffs in this case. The trial is scheduled to begin on June 10. The photo below is Pam Kincaid, speaking at the Press Conference at Fresno City Hall, announcing the filing of the lawsuit (October 17, 2006).
Federal Judge Rules City of Fresno
Violated the Rights of Homeless Residents

Destruction of property declared unlawful seizure

Fresno - A U.S. District Judge for the Eastern District of California has ruled that the City of Fresno’s practice of immediately seizing and destroying the personal possessions of homeless residents violates the constitutional right of every person to be free from unreasonable search and seizure.

“The question is no longer whether the City will have to pay damages to class members, but how much,” said attorney Oren Sellstrom of the Lawyer’s Committee for Civil Rights. “Given that many homeless people lost everything they owned in these illegal sweeps – including their medicines and items of tremendous sentimental value – we believe the damage award will be significant.”

“The Court’s ruling in this class-action lawsuit makes it clear that our Constitution protects the rights of everybody, rich or poor,” said attorney Michael Risher of the ACLU of Northern California. “It should send a strong message to other cities throughout our country that if they violate the rights of their most vulnerable residents, they will be held accountable.”

Six plaintiffs provided testimony in the case, Kincaid v. City of Fresno, on behalf of the entire class, which includes all homeless people in Fresno who had their property seized and destroyed by the City or by the California Department of Transportation. The case was bought by the American Civil Liberties Union of Northern California, The Lawyers’ Committee for Civil Rights, and the firm of Heller, Ehrman, LLP.

The case was filed in October 2006. The court issued a temporary restraining order against the City of Fresno two days later; in December 2006 it issued a preliminary injunction after hearing evidence from both sides over the course of five days.

During oral argument on April 25, 2008, Judge Oliver W. Wanger declared that, “…the practice of announce, strike, seize [and] destroy immediately is against the law.” (Excerpted from transcript by court reporter.)

Note to reporters and editors: Video footage and photographs of city workers using machinery and dump trucks to destroy the personal property of homeless residents are available on the ACLU-NC’s website, along with the legal documents in the case:

Synopses of plaintiffs declarations before the Court

Excerpted from declarations found here:

Lead Plaintiff Pamela Kincaid died in August of 2007. Kincaid occasionally stayed at the only women’s shelter in Fresno, but she suffered from claustrophobia, which made it difficult for her to remain there. When sanitation workers and police officers seized her belongings, Kincaid lost her birth certificate, her address book, photos of her sister, daughter and mother, and a toolbox with tools she used for the recycling and crafts work she does to earn money, among other items.

“Before I became homeless, I used to have a house and a job. I lost both when I developed injuries at work…I hope that someday I will be able to get off the streets and into permanent housing. But the fact that the city keeps taking and destroying my property makes that goal seem that much harder to achieve. I always live with the fear that the city will come and take what few possessions I have left.”
- Declaration before the court in October 2006

Charlene Clay and her husband left their apartment in 2006 because they could not afford the $850 in rent. They were camped on a hill off of G Street when City of Fresno workers destroyed their belongings – including Clay’s teeth, medications, sleeping bags, and personal papers - without warning. A second time, Clay was staying near San Benito and H Streets when police tipped her shopping cart, threw her possessions on the ground, and hauled her cart away.

“The City of Fresno has made it clear to me by destroying my property twice and by the way in which they did that, that because I am a homeless person, I will always be vulnerable to having my property taken and destroyed by City of Fresno workers and police.”

Joanna Garcia was born and raised in Fresno. She lost her job after she was mistakenly implicated in a robbery committed by her husband. She has worked at Holy Cross Women’s Shelter, earning food vouchers. City workers have seized and destroyed her property five times.
“…my belongings and my boyfriend’s belongings were on the grassy strip across the highway from E Street. They were neatly kept. My boyfriend and I had left for the day; I was working at Holy Cross. When we came back that evening, I said to my boyfriend, ‘I can’t see our home.’ All of our belongings were gone, including tents, blankets, personal papers, clothes, my pink bicycle, and irreplaceable pictures of my grandmother and my son.”

Douglas Deatherage, 43, worked part time at a trucking company. He watched as City of Fresno workers threw his belongings into a garbage truck. “My relatively small amount of personal possessions were not bothering anyone and I was ready and willing to move if the City of Fresno workers wanted to clean the area where they were. It was obvious that my property was not abandoned since I was there with it. I was given no opportunity to move my personal property in order to save it from this destruction that morning.”

For more information, contact: Contact: Malik Russell, ACLU-NC, 415.621.2493, x374 Anayma DeFrias, LCCR, 415.543.9444, x223


For a list of articles and documents about the struggle for civil liberties for homeless people in Fresno, see:
§Summary Judgment
by Posted by Mike Rhodes
This is the document issued by the court.
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by From City of Fresno Press Release (PublicAffairs [at]
Statement From Mayor Autry Regarding Judgment On Homeless Area Cleanup

FRESNO, CA – The following from Mayor Alan Autry through City Attorney James Sanchez is in response to the 39 page summary judgment released yesterday by U.S. District Judge Wanger:

“The City of Fresno is committed to addressing the needs of all of our citizens, including the homeless. The homeless encampments have presented some well documented public health and safety challenges. The City has engaged in efforts to protect all residents, including the homeless, from the health and safety concerns associated with the illegal encampments. In the process of addressing these health and safety concerns, we notified homeless residents of our impending cleanup and requested they remove any personal property from the cleanup location. Therefore we continue to assert that our homeless citizens’ rights were properly addressed. The Court’s most recent ruling is substantially similar to the ruling issued by Judge Wanger eighteen months ago, and is limited to City practices occurring in 2005 and 2006. In both rulings, the Court has been critical of the City’s failure to collect and store the unattended personal property of the residents of homeless encampments which are the subject of clean up efforts.

Since the date of the Court’s initial ruling, the City has adopted executive orders to ensure that its practices in cleaning up homeless encampments strictly adhere to judicial guidelines. As a result, it is important to note that the Court’s rulings do not relate to the City’s current practices and that the Court Order does not prohibit the City from conducting clean ups of the encampments. The Court’s most recent Order dealt only with the potential liability of the City, and did not reflect any finding that Plaintiffs were actually damaged by the City’s conduct. The City continues to defend against Plaintiffs’ claims that they were damaged as a result of the City’s practices in 2005 and 2006, and we look forward to the resolution of these issues at trial.”

# # #
by John Ellis/The Fresno Bee (jellis [at]
Fresno violated rights of homeless
Judge rules city ignored 4th and 14th Amendments to Constitution in series of raids on encampments.
By John Ellis / The Fresno Bee
05/12/08 22:38:08
More information

Court ruling on Fresno homeless “cleanup.”
A federal judge ruled that Fresno violated the constitutional rights of homeless residents whose personal property was destroyed in a series of 14 city raids on makeshift encampments between February 2004 and August 2006.
The 39-page ruling issued Monday by U.S. District Judge Oliver W. Wanger found the city violated homeless residents' Fourth Amendment rights -- which protect against unreasonable searches and seizures.

Wanger also cited the homeless residents' 14th Amendment rights to due process, which an American Civil Liberties Union attorney said dealt with the city treating the property of the homeless worse than it was treating other people's property.

"This is sending a message to Fresno, and any other city, that they have to respect the constitutional rights of all their residents," said Michael Risher, a staff attorney with the ACLU of Northern California, one of two organizations that filed the suit on behalf of the homeless residents.

But Wanger's ruling left much to be decided at a jury trial on other issues in the lawsuit scheduled to begin June 10.

Among those issues are just whose rights were violated, what property was destroyed, what compensation, if any, those homeless residents are entitled to, and what role, if any, the California Department of Transportation played in the city's actions.

Some of the raids took place on Caltrans property near Highway 99.

City officials declined to comment because they did not see the ruling until late Monday afternoon and had not had a chance to review it.

Larry Arce, CEO of the Fresno Rescue Mission, a downtown ministry to the homeless, was a supporter of the city's actions and initially had chided the ACLU for filing the lawsuit. But on Monday, he said Wanger was right to rule in favor of homeless people's constitutional rights.

"Everything that's done should be done with dignity," Arce said. "We all want to see them get ahead and get out of the conditions that put them out there in the first place."

Arce still defended the city's motives behind the cleanup. "I don't believe [the city] did it maliciously," he said.

Monday's written ruling -- which followed an oral ruling issued last month by Wanger following a hearing -- is another in a string of victories for the homeless and their advocates, who sued Fresno in October 2006, alleging that city work crews illegally confiscated and destroyed personal property while raiding the settlements.

For instance, one homeless resident said his shopping cart, which contained clothing, family photographs and his blood pressure medication, was destroyed in a raid.

Attorneys for the homeless said property was seized without giving homeless residents a chance to reclaim it and the city rarely, if ever, gave notice that it was coming.

Already, Wanger granted a preliminary injunction that stopped the city from continuing the practice, and later gave class-action status to the case covering "all persons in the city of Fresno who were or are homeless, without residence, after Oct. 17, 2003, and whose personal belongings have been unlawfully taken in a sweep, raid or cleanup by any of the defendants."

When Wanger issued a preliminary injunction in November 2006, he stressed that it did not stop the city from conducting the sweeps. It only stopped it from destroying personal property unless it was contraband.

At the time, the city announced it would start cataloging and storing any items seized in future sweeps of homeless encampments.

The city said no sweeps have taken place since Wanger issued the preliminary injunction.

Bee staff writer Paula Lloyd contributed to this report. The reporter can be reached at jellis [at] or(559) 441-6320.
by newsmedia
Surely this situation and the many others that are reported to have to have taken place show that those who beieve that they live in a free society are believing an illusion.

Freedom has become the domain of the wealthy and if you are offset from that section of society you are nothing.

Fair play to all who brought and succeeded in this legal action against tryants and fascists.
Another major reason why citizens of Fresno have to get involved in local politics. Besides the human and moral damage to the city of Fresno, the citizen's tax money will go to the much deserved lawsuits that will be coming.
** Work on Boyajian, Perea, or Boswell's campaigns. If you don't have money, then take a couple hours in the evenign and do phone calling to voters, or door knocking. If you only have 5 or 10 to send.. send it. It is an investment.
*** Get the good ol' boys (and girls) out (way out) office.
** if you are not from Fresno, but have some extra cash, send it to Boyajian campaign (my favorite) to help jump start those who are apathetic in Fresno. They just need some Hope and know a better way is coming.
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