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Homeless Lawsuit against the City of Fresno Ends in Settlement
by Mike Rhodes (mikerhodes [at] comcast.net)
Monday Nov 3rd, 2014 9:42 AM
This article first appeared in the November 2014 issue of the Community Alliance newspaper. The Community Alliance is an alternative/independent newspaper based in Fresno California.
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The smile on the faces of homeless people as they cashed their checks left no doubt about who was victorious in the lawsuit against the City of Fresno. The lawsuits, filed by 36 homeless people, followed the October and November 2011 bulldozing of homeless encampments in the downtown area.

Angelita Soto was one of the homeless people who filed a lawsuit and received a check in October. Soto had lived in an encampment near E and Santa Clara streets. On the morning of Nov. 7, 2011, city crews arrived at Soto’s shelter. After forcing her out, they searched inside her shelter, removed her chest of drawers, a chair, a bookshelf and other household furnishings. Those items were put on the curb next to the road. Soto watched as a bulldozer drove by, grabbed her furniture and put it into a garbage truck. Next, the bulldozer returned and destroyed her shelter.

As a result of being without shelter and sleeping on the street in November and December, Soto contracted pneumonia. During this time, several homeless women died in the area. Big Sue, a well-known homeless woman, died on the sidewalk in front of the Poverello House. Her shelter had also been destroyed by city workers, and she suffered because of her exposure to the cold.

Central California Legal Services and the Arnold & Porter LLP law firm represented the homeless in this case.

Chris Schneider, executive director of Central California Legal Services, said, “My hope is that the settlement represents the city recognizing that the Kincaid v. City of Fresno case made clear that all residents of Fresno, including the homeless, have constitutional rights, and that if those rights are violated, there will be consequences.

“The city clearly hoped to wear down the plaintiffs and their attorneys through tens of thousands of pages of discovery demands, hundreds of hours of depositions and the passage of time. The city wanted to send a message that it is futile for homeless residents to insist on their rights and to demand dignity. They were unsuccessful in that.”

Homeless people harmed by the city’s bulldozing of the encampments that I talked to said they would use the money to get an apartment, a couple of them will use the money to continue their education and at least one will buy a used car so he can get back and forth to work.

The city’s defense of its actions largely consisted of claims that everything destroyed was trash. Attorney James Betts, who represented the city in this case, attended the 2011 demolitions and inspected many of the shelters before they were destroyed. In video of these “cleanups,” city workers can often be heard saying that homeless people’s property was trash and smelled of urine or feces. City video also documented the destruction of Soto’s property.

The definition of what property is of value and what is trash was a critical factor in the recently settled lawsuit. The Kincaid decision mandated that the city save any property found during these “cleanups” and store it for 90 days. Was the city’s uncertainty about its ability to convince a jury that Soto’s furniture was trash a factor in its willingness to settle? To prevail, the city would have had to convince juries in 30+ trials that no property of any value was destroyed. That is a pretty high bar to clear.

I asked Schneider if there were any surprises in this lawsuit. He said, “I was shocked to find that a number of the city officials believe that the Poverello House, is ‘part of the problem’ of homelessness in Fresno. They basically view the Pov as a magnate for the homeless and think that if the Pov was closed the homeless would magically disappear.

“I was also surprised to find out how adamantly opposed they are to even consider any idea about addressing homelessness other than Mayor [Ashley] Swearengin’s ‘First Steps Home’ program. It seems that city and Housing Authority officials both have an inability to recognize that the housing first approach at its present pace can only help a few dozen individuals per year or they know its limitations and just don’t care about the thousands of people who will continue to be on the streets for decades.”

Paul Alexander is senior counsel with Arnold & Porter and the lead attorney representing the homeless. I asked him the same question. He said, “There were two surprises for most of us on the legal team. The first of these centered on the Renaissance at Santa Clara. This is a project developed by Penstar Corporation and its executives basically using federal money. It houses only 69 homeless residents, but the total cost of this project exceeded $14,000,000. What’s more, of this enormous amount, the Penstar Corporation took $1,000,000 off the top in a ‘consulting fee.’

“It isn’t hard to imagine how much good could really be done for this enormous expenditure of federal money, and how little was actually done. Maybe we shouldn’t have been surprised. The rich do get richer.

“Second, some of us were surprised that the City of Fresno’s executives testified that making some provision, however small, for the homeless is ‘not our job.’ The city leaves this to others, such as the Penstar executives, while turning its back on far less expensive and more meaningful alternatives such as the Eco Village concept.

“What this means is that, for the most part, the city provides no sanitation facilities, no garbage pickup, no fresh water, not even a porta potty, much less any shelter, for any of its homeless residents. All this does is make the problem worse. Then, the City spends large sums, including Sanitation Department overtime, police supervision, extra heavy machinery and the like, to destroy homeless encampments.

“Fresno can do better, spend less, and over time have a positive impact in reducing homelessness and its impact on the community. This should be the job of city government.”

It is probably not a coincidence that Penstar CEO Tom Richard is a big contributor to Swearengin’s campaign for state controller, giving $6,800 in 2014. Other Penstar executives made significant contributions to Swearengin’s run for mayor in 2012.

The mayor’s Housing First program, which is intended to benefit the homeless, ends up enriching wealthy developers and not surprisingly, some of that money ends up back in Swearengin’s campaign accounts. It is a small world after all.

Since the demolition of the homeless encampments in 2011, city policy has shifted. There is a dedicated Fresno Police Department task force that focuses on preventing the reemergence of groups of homeless people living together in encampments. The police issue citations to homeless people for a wide array of alleged crimes (like having property, which they claim is littering the streets), and they have removed an enormous number of shopping carts from the possession of homeless people.

When an officer in the homeless task force sees a shopping cart without the owner nearby, the city’s Sanitation Department is called, which then confiscates the cart and the property inside it , and takes it to a storage facility. A notice is put up nearby advising the owner how to reclaim the property. Homeless people now can’t go into the Poverello House to get a meal, with their shopping cart outside the gate, without it being confiscated by city employees.

The outcome of this pressure on homeless people in the downtown area is that many of them are moving to other parts of the city. There are now large numbers of homeless people throughout Fresno, but without someplace for them to live, ending homelessness will remain an elusive goal.

Housing First is only able to provide housing for a lucky few; local government has no plan for how to humanely meet the needs of the homeless living on the streets of Fresno, and more people will probably die this winter from a lack of shelter and public services.

Progressive homeless advocates say that a policy shift toward establishing safe and legal locations for the homeless to live would be a move in the right direction. If those places have drinking water, trash pickup and bathrooms, homeless people could survive and live with some decency.

Alexander, the lead attorney representing the homeless, says the legal team has “learned what we always knew—that litigation is long, difficult and expensive for all concerned. The city was well represented and fought hard. In the end, the city was wise to settle. We would all be better off if this process did not repeat itself. We don’t get paid for bringing this litigation. We do it only when we feel it is absolutely necessary. Who knows—maybe everyone involved can learn some lessons for the future. Hope springs eternal.”

Schneider said, “I would hope that city officials have this time actually learned a lesson and will pursue a proactive approach to addressing homelessness. Such an approach would cost the city a lot less both financially and morally. The city needs to realize that there are plenty of people and organizations in the community ready to work together to find collaborative solutions. We would much prefer that over further lawsuits.”
*****
Mike Rhodes is a frequent contributor to the Community Alliance newspaper and Indymedia. Contact him at mikerhodes [at] comcast.net.

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