Homeless Victory in Fresno has Implications for the Nation

By Mike Rhodes
Community Alliance
July 2008

Homeless people and their allies won a legal victory in Fresno that could have nationwide implications.  The class action lawsuit against the City of Fresno resulted in a $2.3 million settlement and has stopped the city from taking and immediately destroying homeless peoples property.  City officials, including mayor Alan Autry, argued that the city had a right to keep city streets clean and that city sanitation workers were just doing their job.  Government agencies in communities throughout the country make the same argument as they conduct sweeps through homeless encampments.  The Federal Court in Fresno found that these sweeps are illegal and violate the 4th and 5th amendment of the U.S. constitution.

“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.”  The homeless plaintiffs in the lawsuit, Kincaid v. Fresno, were represented by a team of attorneys from the American Civil Liberties Union of Northern California (ACLU-NC), the Lawyers’ Committee for Civil Rights (LCCR) and the law firm of Heller Ehrman LLP.

The lawsuit began two years ago, after the City of Fresno repeatedly used bulldozers to plow through homeless encampments in the downtown area.  The city’s policy, designed by a low ranking police officer in the code enforcement division, was to provide residents of the encampments with written notice that a “clean up” was about to take place.   Many homeless people say they never received a copy of the notice.   According to the city’s policy and testimony in court, the city would deploy the sanitation department, backed up by police officers, who would then clear the area of anything that the homeless did not remove.  The city claimed that everything left was rubbish.  The problem with the policy, according to the court, was that it treated homeless peoples property differently than the property of anyone else in the community.  For example, if you loose your bike and the police find it, they do not call in a bulldozer, crush the bike, and put it in a garbage truck.  The likely policy would be to take the bike into possession and try to find the owner.

Homeless people in Fresno, during the sweeps conducted between 2004 - 2006 lost bicycles, tents, clothing, their ID, and everything of value they had in the world.  One person lost an urn that contained her grand-daughters ashes.  Al Williams, who is homeless, suffered the effects of the raids on three occasions. In addition to losing clothes and food, his wife’s wheelchair was destroyed and her medicines confiscated by Fresno police officers. “I felt like everything was taken away from me, but this settlement gives me hope for the future for myself and all the other people who suffered,” said Williams.

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.

In a declaration before the court in October 2006, Kincaid said  “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.”

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.

Clay said “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.”

Mayor Alan Autry Objects

On the day the historic settlement between the City of Fresno and the homeless was announced, mayor Autry issued a statement   Autry wrote that the “white collar exploitation of the homeless by the Court and the lawyers is unconscionable. I am calling upon the ACLU and Judge Wanger to require half of the exorbitant lawyer fees of $750,000 to be donated to homeless programs.”

Judge Oliver Wanger immediately issued an order, that was delivered to City Hall by a Federal Marshal, for mayor Autry to appear before the court and explain why he was attacking the agreement that the City of Fresno and the homeless plaintiffs had voluntarily entered into.  Speaking before judge Wanger, Autry said his problem with the settlement was that he “felt as if the homeless and all the people of Fresno had a gun to their head.” Looking at the plaintiffs legal counsel, Autry said he felt the city was up against overwhelming power - “we are up against a group that will stop at nothing to win. These lawyer fees are outrageous.”   Autry said “I believe the homeless were being taken advantage of here.”  Autry’s portrayal of big city lawyers, coming to Fresno and taking advantage of the homeless, played for days in the local media.

The mayor’s ability to shift the news away from the City of Fresno’s criminal attack on the homeless and gain traction with his attack on the ACLU and how out of town lawyers were exploiting the homeless was a tribute to his ability to manipulate corporate media and to re-frame the debate on this issue.

Attorneys for the homeless pointed out that there would not have been any legal fees if the City of Fresno had not violated homeless peoples rights by taking and destroying their property.  In a written response to the situation, published in The Fresno Bee, attorneys for the plaintiffs Alan Schlosser (ACLU) and Elisa Della- Pena (Lawyers’ Committee for Civil Rights) argued that “the city had an opportunity to avoid a lawsuit by respecting the constitutional rights of its residents.  We wrote to the city attorney shortly before filing suit and asked that the city voluntarily agree to stop breaking the law.  The city refused to cooperate.  We were forced to obtain an emergency restraining order in federal court.”

Schlosser and Della-Pena continue: “The fee settlement in this case - $750,000 - amounts to a fraction of the fees that we would have been entitled to under federal and state laws.  If this case had proceeded to trial, it is extremely likely that the fee award would have been far greater.”  The ACLU and LCCR will use the attorneys’ fees awarded in the case for programs to protect the legal rights of poor and homeless people, and to oppose the abuse of government power.

Terms of the Settlement

The settlement agreement contains a series of procedures created to ensure that the violations against the homeless will not recur. The City of Fresno will require authorities to post written notice at least three days before clearing any personal property from an encampment area, and items of apparent value will be stored for 90 days. The Department of Transportation has also agreed to comply with the legal principles set forth in the Court’s preliminary injunction, throughout the state. The Court will retain jurisdiction over the case for five years to ensure that the City complies with this agreement.

Damages awarded by the Court total $1,485,000, to be allocated as follows:

The City of Fresno will pay $1,000,000 into a Housing Allowance Account. Funds from the account will assist the approximately 225 class members in the lawsuit to meet costs related to housing including security deposits, first and last months rent, or monthly rental payments, or to purchase a vehicle or medical care. The money will be issued by the Settlement Administrator to landlords or other providers of basic goods or services.

The City and Caltrans will set aside $485,000 in cash to compensate a pool of individuals who suffered harm as a result of the unconstitutional seizure of property. Individuals will file claim forms describing the extent of their losses and the number of times they were subjected to the illegal sweeps. Disbursements from this portion of the settlement will range from $500 - $5000, and will be paid over time in currency or by check, or be deposited into plaintiff’s individual bank accounts.  The court finalized the agreement on July 25, 2008.

Where do we go from here?

In addition to the lawsuit against the City of Fresno, homeless people and their allies held a sleep in at City Hall, the Homelessness Marathon radio show was broadcast from Fresno putting a national spotlight on this city’s illegal practices, and intense pressure was brought upon city government to end their attacks on the homeless.  The efforts have had an effect and mayor Autry has declared the city’s previous policy a failure.  Earlier this year, Autry said "we have failed, government has failed on this issue. We are the status quo that has chosen through our wisdom over the last 40 or 50 years to pick the most expensive and ineffective, dis-compassionate way to address the homeless situation."

Autry admitted this failure while addressing the joint meeting of leadership and planning councils of the County/City of Fresno as they established a task force that was empowered to develop a 10 year plan to end chronic homelessness.  Autry told the task force that he wanted them to come up with a blueprint for how to develop a Housing First model that will provide homeless people a place to live without pre conditions. The mayor said "I’m having to change my thinking because we are talking about a home in a neighborhood where a guy comes up and passes out on the front yard. That is part of the process of getting well. There is no requirement on those individuals. I’m ready to go there."

The task force, which started in mid April, was given 100 days to formulate a plan to provide homeless people decent and affordable housing.  Proponents of the Housing First model, including mayor Autry, claim that it will be less expensive to provide homeless people with housing than to maintain the failed model (Rescue Mission, Poverello House, etc) that currently addresses homeless needs.  But, Al Williams who is homeless and a member of the task force, has his doubts that things will change anytime soon.  Williams says the task force is dominated by builders/developers, other business interests, & social service providers from the Rescue Mission and Poverello House.  Williams says that “there are powerful forces that want to maintain business as usual and the poverty pimps have too much influence in the group.”

Proponents of the Housing First model say it costs up to $100,000 a year for each homeless person under the failed social service model currently in use.  The cost is high because homeless people use the emergency room for most medical care they receive, they stay in the hospital longer, return frequently, and interact with law enforcement more than people with permanent housing.  For the amount of money used to maintain business as usual, every homeless person could be given a luxury apartment and limo service and it would cost less than what is being spent now.

Why then did the City of Fresno put $3 million into this year’s city budget to buy property to address the homeless issue and not spend a dime of it?  Gregory Barfield, City Council member Cynthia Sterling’s aide, told me it was because they are waiting for the plan from the task force so that the use of funds are coordinated for maximum utilization.  Perhaps that is why the city also did not spend $1 million that was designated for the Spirit of Women, to provide shelter and services for homeless women.  A more cynical analyst might conclude that the city put millions of dollars into the budget to give the appearance that they are spending money on the issue, but the reality is the money gets re-allocated to other departments - like the police.    

The task force to end homelessness is due to release the results of their recommendations in July.  The Community Alliance wants to see a plan presented that provides the homeless with decent/affordable housing and a way out of the intense poverty they currently live in.  We demand an end to all attacks against the homeless community, plots of public land where the homeless can live safely (with drinkable water, toilets, and trash bins), more shelter space (particularly for homeless women), and a rapid transition to a Housing First program that provides the homeless with safe and secure housing.

For a list of articles and documents about the struggle for civil liberties for homeless people in Fresno, see: http://www.fresnoalliance.com/home/homelessness.htm