Proctor v. District of Columbia ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHANEL PROCTOR, et al.,
Plaintiffs,
v. Case No. 1:18-cv-701 (TNM)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Three current and former homeless individuals challenge the District of Columbia’s
protocol for clearing encampments located throughout the City. They contend that the District
destroys unabandoned but unattended belongings during these clearings in violation of the
Fourth Amendment. Plaintiffs also raise a Fifth Amendment claim, arguing that the District
does not provide adequate notice of clearings or the procedures. Their arguments’ Achilles
heel, however, is that the protocol has never injured them.
Both parties cross-move for summary judgment. On this record, none of the Plaintiffs
can show that the injury they fear from the District’s clearing policy—loss of wanted and
unattended property—is impending. At least four events must occur before the Plaintiffs could
possibly sustain any injury. So Plaintiffs lack standing to seek an injunction or declaratory
relief against the District’s current practices.
They also cannot recover from the District for prior clearings. Although all three
Plaintiffs have experienced multiple District clearings, only one Plaintiff claims to have lost
wanted property, once. But the undisputed record shows that the District complied with the
Fourth Amendment for that clearing because it stored her belongings. The evidence also shows
that this Plaintiff had actual notice of the clearing before it took place, which satisfies the Fifth
Amendment. In any event, there is no custom, policy, or practice to justify holding the District
liable for the claimed constitutional violations. The Court will grant the District’s motion for
summary judgment.
I.
A.
In the District, homeless individuals often create “encampments”: temporary abodes or
“accumulation[s] of personal belongings” that are located throughout the City. See Third Am.
Compl. ¶ 34, ECF No. 125 (cleaned up).
Unauthorized camping is illegal under D.C. regulations. See 24 DCMR § 121.1. But
the District does not prosecute homeless people under this code. It instead conducts “clearings”
of the encampments to address the health and safety risks that they pose and to maintain clean
public spaces. 1 Pls.’ Statement of Undisputed Material Facts (“Pls.’ SUMF”) ¶ 30, ECF No.
126-1; Dep. Tr. of Joseph Melder 143:20–22, 147:16–19, ECF No. 99-3. 2 Encampment
clearings are necessary for the public, including the homeless, because encampments may
include garbage “that attracts rodents and other vermin,” “[h]uman waste and risk of the spread
of disease,” and [p]ublic health risks from rodent urine and droppings.” Decl. of Elizabeth
1
The District employs the term “cleanings,” not “clearings.” See Def.’s Mem. of P. & A. in
Supp. Opp’n to Pls.’ Mot. Summ. J. & Cross-Mot. Summ. J. (“Def.’s Mem.”) at 12 n.11, ECF
No. 132-1 (describing disagreement with “clearing” term and noting that the “District does not
use the word ‘clearing’ because that is not what happens here”). In deference to Plaintiffs’ right
to frame their complaint, the Court will use “clearing” throughout unless quoting the District.
2
All page citations, except for deposition transcripts, refer to the page numbers that the
CM/ECF system generates. Citations for deposition transcripts refer to the page number of the
transcript.
2
Horen (“Horen Decl.”) ¶ 6, ECF No. 18-1. There also may be urine and needles found at these
sites. Pls.’ Mot. Summ. J. (“Pls.’ Mot.”) Ex. 41 at 226, ECF No. 126-44.
In 2016, the District issued procedures for these clearings in the Protocol for the
Disposition of Property Found on Public Space and Outreach to Displaced Persons (“2016
Protocol”). Pls.’ SUMF ¶¶ 1–2; see also Pls.’ Mot. Ex. 2, ECF No. 126-5. It amended the 2016
Protocol three years later to reflect its clearing practices (“2019 Protocol”). Pls.’ SUMF ¶¶ 14–
15; see also Pls.’ Mot. Ex. 1, ECF No. 126-4. The 2019 Protocol remains in effect. Pls.’
SUMF ¶ 14.
The 2019 Protocol applies to property left on District public space that “presents a
security, health, or safety risk, interferes with community use of public space, or becomes a
significant community nuisance.” Pls.’ Mot. Ex. 1 at 4–5. Under the 2019 Protocol, “[a]ny
property left on the cleanup site is subject to removal and immediate disposal.” Id. at 8.
The District conducts two types of clearings: standard and immediate dispositions. Pls.’
SUMF ¶ 17. Relevant here are the procedures for a standard disposition. 3
Two weeks before a standard disposition, the District must “post notices/signs
conspicuously throughout the immediate vicinity of the public space to cleaned.” Pls.’ Mot. Ex.
1 at 6. The notice must include the “designated area to be cleaned” and the “specific date and
time by which persons must remove their property from the site before cleanup begins.” Id.
The notice also advises (i) that “property left on site during the cleanup may be immediately
destroyed,” (ii) that “free storage of eligible property may be arranged in advance of the
3
An “immediate disposition” can only occur if “property alongside a bridge, tunnel, or other
public space must be disposed of immediately due to an emergency, security risk, health risk, or
safety risk.” Pls.’ Mot. Ex. 1 at 10. It does not require the same notice procedures as a standard
disposition. See Pls.’ SUMF ¶¶ 17, 26. Immediate dispositions are not challenged in this case.
See Pls.’ Mot. at 28 n.7.
3
cleanup,” and (iii) that “some unattended, non-hazardous property may be stored, in the
District’s discretion, and information about how to retrieve any property taken to storage after
cleanup.” Id. If the clearing is rescheduled, the notice must be updated at least 48 hours before
the new clearing date. Id.
District outreach workers “make every effort to share this information verbally with
anyone at the site and with community partners to ensure those who are unable to read or have
difficulty comprehending the information are made aware of the impending cleanup action.” Id.
They also “make clear to individuals experiencing homelessness that the only way to be sure
property is not disposed of during a cleanup is to move the property from the cleanup site before
the specified cleanup time.” Id. at 7.
The District allows individuals to store “eligible property” for free before a clearing. Id.
at 8. This category of property includes “functional, empty, and disassembled tent[s]” and
“non-commercial, functional bicycle[s] or other form[s] of motorized transport.” Id. at 8.
Unsafe items ineligible for storage include illegal items, property infested or potentially infested
with bugs, wet or soiled items, and uncapped or exposed medical syringes. Id. at 8–9.
District personnel arrive at least 30 minutes before a clearing to offer occupants storage
containers for eligible property. Id. at 9. During a clearing, District personnel must “make
reasonable efforts to collect and store” eligible items that are “in plain sight, even if they are
unattended at the time of the cleanup.” Id. This includes: certain forms of personal
identification, like drivers’ licenses; photographs; financial, legal, or medical documents;
medications; and “[o]ther property that is safe to store and of apparent value.” Id. District
personnel need not, however, “sort through piles or collections of belongings, including items
4
inside tents or containers, to identify” eligible property for storage “[d]ue to safety and other
concerns.” Id.
B.
Plaintiffs Charlaine Braxton, Rachelle Adams, and Jane Doe are current and former
homeless women in the District who have experienced clearings. 4 Third Am. Compl. ¶¶ 16–18.
Braxton currently resides in temporary housing after living in a homeless encampment.
Pls.’ SUMF ¶ 38; Def.’s Resp. to Pls.’ SUMF & Statement of Undisputed Material Facts
(“Def.’s SUMF”) ¶¶ 48–49, ECF No. 132-4. While homeless, Braxton experienced multiple
encampment clearings and moved her belongings each time, except once in May 2017. Def.’s
SUMF ¶ 57. She “usually” saw a sign about a clearing every month, prompting her to “note the
cleanup date and make sure that [she] had [her] stuff moved.” Ex. 16, Dep. Tr. of Charlaine
Braxton (“Ex. 16 Braxton Dep. Tr.”) 98:5–18, ECF No. 99-17. Braxton explained that
homeless individuals moved their belongings when the District posted signs because the “city
workers taught us . . . they came and taught us how to move the things.” Id. 99:9–13.
One day in May 2017, Braxton learned from D.C. personnel that she should move her
property because a clearing would take place the next day. Def.’s SUMF ¶ 63. Braxton told
them that she was too ill to move her belongings but still wanted them. Id. ¶ 64. They informed
her that all her belongings, except food items, would be “be taken to [Adams] Place.” 5 Id. ¶ 65
(cleaned up). Braxton left the site before the clearing and her items were gone when she
returned. Id. ¶¶ 66–67. She called someone at Adams Place, who told her “that they had all of
4
Other plaintiffs were dismissed, either voluntarily or for failure to prosecute. See Order (Nov.
18, 2019), ECF No. 84; Order (Dec. 16, 2019), ECF No. 90.
5
Adams Place is a day center “where the District provides services to people experiencing
homelessness.” Def.’s SUMF ¶ 14 n.5.
5
[her] things, even the food” after Braxton listed her belongings. 6 Id. ¶ 68 (cleaned up). When
Braxton went to Adams Place several weeks later, she found only some of her items. Id. ¶¶ 69–
70.
Doe currently occupies an encampment and has done so periodically since 2016. Pls.’
SUMF ¶ 39; Def.’s SUMF ¶¶ 72, 74. She has experienced at least 15 clearings. Pls.’ SUMF
¶ 40. Doe understands that “nothing should be on site” when workers arrive to clean, and she
agreed that notice signs are changed to reflect the clearing times. Pls.’ Reply in Supp. Mot.
Summ. J. & Opp’n to Def.’s Cross-Mot. Summ. J. (“Pls.’ Reply”) Ex. 3, Dep. Tr. of Jane Doe
(“Doe Dep. Tr.”) 39:21–40:1, 168:19–169:3, ECF No. 136-6. Doe “would break down camp
and move everything the day before” a clearing. Id. 43:2–12; see also id. 43:22–44:8 (agreeing
that it is “fair to say” that she moves her items the night before a clearing because she “[d]idn’t
want to lose anything”). She claims to be “pretty consistent” in leaving an encampment site the
morning of a clearing and taking her items with her. Id. 132:18–22, 134.
During the first clearing she experienced, Doe “gave up [] winter stuff and just let it go.”
Id. 43:16–17. She notified no one that she wanted to retain these items, and she knew prior to
leaving the encampment that the boxes could be disposed of because “[e]verybody around told
us.” Id. 45:8–46:9.
Adams has periodically lived on the streets, occupying the same encampment since
2019. Pls.’ SUMF ¶ 35; Def.’s SUMF ¶¶ 31–32. She has experienced at least 20 clearings,
which continue every two weeks. Pls.’ SUMF ¶ 36. Adams remains at her tent 90% of the time
and otherwise is usually within a block radius. Def.’s SUMF ¶ 37 n.7. When absent, Adams
6
It is undisputed that the worker relayed this information to Braxton. Pls.’ Resp. to Def.’s
SUMF ¶ 68, ECF No. 136-1. Plaintiffs dispute, however, whether the worker actually had
Braxton’s belongings “and/or retain[ed] them in accordance with the Protocol.” Id.
6
tries “not to leave anything valuable in [her tent].” Id. (cleaned up); Ex. 15, Dep. Tr. of
Rachelle Adams (“Ex. 15 Adams Dep. Tr.”) 71:1–72:1, ECF No. 99-16.
Adams states that the District “normally” conducts a clearing “two weeks from th[e] day
that they put the sign up.” Ex. 15 Adams Dep. Tr. 57:14–58:6. And she “[k]eep[s] track of the
dates of when they’re doing clean-ups.” Id. 60:10–22; see also id. 116:11 (“I always pack up
my tent.”). Adams stated that “[e]verything has to be moved from the location at 10:00 a.m.”
for clearings, Def.’s SUMF ¶ 42 (cleaned up), and that she has moved her items the day before a
clearing “[b]ecause [she doesn’t] feel like doing it early the next morning,” Ex. 15 Adams Dep.
Tr. 154:6–15; id. 154:16–20 (testifying that it is possible to move items the day before “[i]f you
want to”). She has not lost property under the challenged practices here. See Sealed Dep. Tr. of
Rachelle Adams (“Sealed Adams Dep. Tr.”) 58–59, ECF No. 138-2 (discussing property loss
only in 2014 or 2015).
C.
Three years ago, Braxton and another plaintiff sued claiming that the District destroys
unattended, wanted property during encampment clearings in violation of the Fourth
Amendment. See Class Compl. for Inj. & Decl. Relief ¶¶ 60–64, ECF No. 1.
They sought a preliminary injunction, which the Court denied. See Proctor v. District of
Columbia, 310 F. Supp. 3d 107 (D.D.C. 2018) (“Proctor I”). The Court found that there was no
“clear showing” that the District had a practice of “destroying unattended property that has not
been abandoned” or that any destruction of property was unconstitutional. Id. at 114. The
record also did not show that any property destruction “took place under a custom of the District
of Columbia that is actionable under Section 1983.” Id. at 115. The Court noted evidence that
7
“homeless individuals often abandon property” and that the “District takes extensive
precautions to reduce the risk of destroying property that is wanted.” Id.The Court also found that any alleged property losses were not “imminent and certain
without preliminary relief.” Id. at 116. The Court reasoned that “if the District schedules
another cleanup that affects Plaintiffs, Plaintiffs can protect their property by moving it or
designating it for storage.” Id. at 117. Requiring the District to “store all unattended property
except property that poses a public health or safety risk would likely chill the exercise of
discretion inherent in determining what items pose such risks and would also impose on the
District the unnecessary and potentially significant cost of storing abandoned property.” 7 Id.Braxton and the other plaintiff amended their complaint to add a claim under the Fifth
Amendment’s Due Process Clause. See Am. Compl. ¶¶ 118–31, ECF No. 32. They alleged that
the District deprived homeless individuals of “adequate pre-clearing notice of the risk that
clearings could result in the summary destruction of their belongings.” Id. ¶ 121.
The District moved to dismiss. See Mot. to Dismiss, ECF No. 39. The Court “largely
den[ied]” the motion “[g]iven the relaxed standard of review at this stage and the fact-bound
nature of the claims at issue.” See Proctor v. District of Columbia, No. 18-cv-00701 (TNM),
2018 WL 6181739, at *1 (D.D.C. Nov. 27, 2018) (“Proctor II”). The Court also found that
Plaintiffs had standing because they “alleged enough facts to establish at the dismissal stage that
they are in immediate danger of another allegedly unconstitutional clearing.” Id. at *2.
Plaintiffs again amended their complaint—this time, to add (as relevant here) Plaintiffs
Adams and Doe. See Second Am. Compl., ECF No. 57. The District moved to dismiss for lack
7
The Court also denied class certification because Plaintiffs provided no reasonable basis to
estimate their class size. See id. at 118.
8
of standing. See Partial Mot. to Dismiss, ECF No. 60. The Court found that it “need not
resolve this issue now” because it “must review Plaintiffs’ standing again—on summary
judgment.” Order at 3 (Aug. 29, 2019), ECF No. 70. The Court noted that “Plaintiffs’ burden
to establish standing will be heavier then” and that the “District will be free to re-raise its
standing concerns at that time.” Id.
The District then published the 2019 Protocol. So Plaintiffs sought leave to amend their
complaint a third time. See Mot. for Leave to File Third Am. Compl, ECF No. 103. The Court
granted leave during a motion hearing. See Min. Entry (Aug. 21, 2020).
The Third Amended Complaint raises the same as-applied constitutional challenges to
the District’s clearing practices under 42 U.S.C. § 1983 (Counts I and II). Third Am. Compl.
¶¶ 121–36. Plaintiffs allege that the District “has implemented a policy, practice, or custom of
systematically destroying unattended personal belongings of homeless individuals in the
absence of any imminent public safety or health risk” in violation of the Fourth Amendment.
Id. ¶ 123. Under the Fifth Amendment, they claim that the District “deprives homeless
individuals of adequate pre-clearing notice of the risk that clearings could result in the summary
destruction of their belongings” and that homeless individuals “are not otherwise given a
meaningful opportunity to protect or claim their belongings following any initial deprivation
and prior to their immediate, final destruction.” Id. ¶¶ 131–32.
For the first time, Plaintiffs also assert a facial challenge (Count III). Id. ¶¶ 137–45.
They claim that the 2019 Protocol memorializes the District’s unconstitutional practices so, as
written, it violates the Fourth and Fifth Amendments. Id. ¶¶ 138–40.
9
Plaintiffs ask for declaratory relief and an injunction preventing the District from
enforcing the 2019 Protocol. Id. at 27–28. Braxton also seeks relief for her alleged property
loss from the May 2017 clearing. 8 See id.; Def.’s SUMF ¶¶ 47, 83.
The parties cross-move for summary judgment. Plaintiffs move for summary judgment
on their facial challenge to the 2019 Protocol under Count III, and the District moves for
summary judgment on all three counts. Plaintiffs also re-raise their class certification motion.
See Pls.’ Renewed Mot. for Class Certification, ECF No. 105. The motions are ripe for
disposition.9
II.
To prevail at summary judgment, a party must show that “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A factual dispute is “material” if it could alter the outcome of the suit under the
substantive governing law, and “genuine” “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The moving party “always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the [record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
8The Court commends Plaintiffs’ attorneys for their zealous advocacy on behalf of their clients
throughout this litigation. They have offered a voice to those who are not always able to raise
their own.
9
The Court has jurisdiction under 28 U.S.C. § 1331, the federal question statute. The Court
benefited from oral arguments at the preliminary injunction stage and finds that no additional
argument is necessary now. It therefore denies Plaintiffs’ request for another motion hearing.
See LCvR 7(f).
10
317, 323 (1986). Once this showing is made, the non-moving party bears the burden to identify
“specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250(cleaned up). “A party asserting that a fact cannot be or is genuinely disputed must support the
assertion” by “citing to particular parts of materials in the record” or “showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
In construing a summary judgment motion, “[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.
The non-movant’s opposition, however, must consist of more than mere unsupported
allegations or denials and must be supported by affidavits, declarations, or other competent
evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed. R.
Civ. P. 56(e).
III.
Plaintiffs raise facial and as-applied claims to the District’s clearing practices. Plaintiffs
together argue that the 2019 Protocol, as written, violates the Fourth and Fifth Amendments.
Pls.’ Mot. at 16–30. Separately, Braxton argues that the District’s actions violated her rights
under those same constitutional provisions. Pls.’ Reply at 21–37.
The Court finds (A) that Plaintiffs lack standing to raise their facial challenge to the
2019 Protocol and (B) that Braxton’s as-applied challenge to the District’s clearing practices
cannot survive summary judgment.
A.
The District first contends that Plaintiffs lack standing to seek an injunction or
declaration challenging the 2019 Protocol. See Def.’s Mem. at 27–33. The Court agrees.
11
The Constitution limits federal courts’ jurisdiction to deciding “cases” and
“controversies.” Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 597–98 (2007).
“[O]ne of the controlling elements in the definition of a case or controversy under Article III is
standing.” Id. (cleaned up). “To establish Article III standing, an injury must be concrete,
particularized, and actual or imminent; fairly traceable to the challenged action; and redressable
by a favorable ruling.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (cleaned up).
These elements are the “irreducible constitutional minimum of standing.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992). The burden to establish standing rests with Plaintiffs.
Clapper, 568 U.S. at 411–12.
Plaintiffs alleged enough facts to show standing at the dismissal stage. See Proctor II,
2018 WL 6181739, at *2. But that decision does not control here. It “does not obviate the
court’s responsibility to ensure that the [P]laintiff[s] can actually prove those allegations when
one or both parties seek summary judgment.” Scenic Am., Inc. v. U.S. Dep’t of Transp., 836
F.3d 42, 48 (D.C. Cir. 2016).
Plaintiffs’ burden to establish standing “grows heavier at each stage of the litigation.”
Osborn v. Visa Inc., 797 F.3d 1057, 1063 (D.C. Cir. 2015). At summary judgment, Plaintiffs
“can no longer rest on . . . mere allegations, but must set forth by affidavit or other evidence
specific facts.” Clapper, 568 U.S. at 412 (cleaned up); see also Cal. Cattlemen’s Ass’n v. U.S.
Fish & Wildlife Serv., 369 F. Supp. 3d 141, 145 n.3 (D.D.C. 2019) (finding earlier
determination that plaintiff “had proffered sufficient standing to overcome dismissal . . . not
dispositive” at summary judgment). “[E]ach element [of standing] must be supported in the
same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the
12
manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504
U.S. at 561.
Plaintiffs’ claims raise two standing issues that the Court must resolve: (1) whether
Plaintiffs have shown that they have standing to pursue their facial challenge to the 2019
Protocol; and (2) whether Braxton has standing to challenge the District’s clearing practices as
applied to her.
1.
The District contends that Plaintiffs cannot establish the first element of standing: injury
in fact. An injury in fact is “an invasion of a legally protected interest” that is “concrete and
particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 560 (cleaned
up).
The inquiry here hinges on whether Plaintiffs have shown their injury is “actual or
imminent.” Plaintiffs face an uphill battle to show injury from the 2019 Protocol because relief
that “aim[s] to prevent future illegal acts often will implicate standing concerns.” City of
Houston v. HUD, 24 F.3d 1421, 1429 n.6 (D.C. Cir. 1994). It is thus a “significantly more
rigorous burden to establish standing” for the prospective declaratory and injunctive relief they
request here. Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 240 (D.C. Cir. 2015) (cleaned
up). Plaintiffs “must show that there is a substantial . . . probability of injury.” Id. (cleaned up).
The Supreme Court has “repeatedly reiterated that threatened injury must be certainly
impending to constitute injury in fact.” Clapper, 568 U.S. at 409 (cleaned up) (emphasis in
original).
13
Plaintiffs contend (a) that the injury they fear under the 2019 Protocol is imminent; and
(b) that, alternatively, they can rely on a procedural right to assert standing. The Court rejects
both.
a.
Plaintiffs “fear that [the District’s] homeless encampment clearing practices will result
in the destruction of their property” because they “cannot be with [their] belongings at all
times.” Third Am. Compl. ¶¶ 100–01; Adams Discovery Resps. at 3, ECF No. 114-3; Doe
Discovery Resps. at 3, ECF No. 114-4; Pls.’ Reply Ex. 22, Decl. of Charlaine Braxton
(“Braxton Decl.”) ¶ 25, ECF No. 136-25 (“I am fearful that if I were to experience
homelessness again, the District would take and destroy my unattended belongings again.”). So
Plaintiffs claim that they face a “realistic threat of property loss” because the 2019 Protocol
authorizes the “immediate destruction of any and all unattended, non-hazardous belongings
during an encampment clearing.” Pls.’ Mot. at 32 (cleaned up).
The Supreme Court rejected a similar theory in Clapper. There, plaintiffs sought
declaratory and injunctive relief because a statute “authorizing the surveillance of individuals
who are not ‘United States persons’ and are reasonably believed to be located outside the
United States” was unconstitutional. Clapper, 568 U.S. at 401. Plaintiffs claimed standing
because their work would involve communications “with individuals who they believe are
likely targets of surveillance under [the statute].” Id. Under their standing theory, there was an
“objectively reasonable likelihood that their communications will be acquired under [the
statute] at some point in the future.” Id.The Supreme Court disagreed. The Court held that this “theory of future injury is too
speculative to satisfy the well-established requirement that threatened injury must be ‘certainly
14
impending.’” Id. (emphasis in original). It reasoned that plaintiffs’ asserted Article III injury
rested on a “highly speculative fear” that, among other things, the government would seek and
receive approval under the challenged statute to target “the communications of non-U.S.
persons with whom they communicate” and that plaintiffs would also be parties to those
targeted communications. Id. at 410. This “highly attenuated chain of possibilities” did not
constitute a “certainly impending” injury to satisfy Article III standing. Id. The Court also
found the allegations “necessarily conjectural” because the statute “at most authorizes—but
does not mandate or direct—the surveillance that respondents fear.” Id. at 412 (emphasis in
original).
Similarly, in Cruz v. American Airlines, Inc., travellers challenged an American Airlines
policy to not settle lost-baggage claims if the claimant submitted a form more than 30 days after
the loss. 356 F.3d 320, 322 (D.C. Cir. 2004). Plaintiffs sought “an injunction forbidding
American from enforcing its 30-day rule and a declaration that this rule is unlawful” after
American refused to reimburse their untimely claims under the policy. Id. at 328. The D.C.
Circuit held that they lacked Article III standing. It determined that the “likelihood that
American would, once again, lose plaintiffs’ luggage [was] minuscule.” Id. And the
“likelihood that [plaintiffs] would again file their claims late is small, given their previous
experience.” Id. Finally, the Circuit held it “unlikely that American would again reject any
late-filed claim, given the litigation its 30-day rule spawned and given that it has disavowed the
30-day rule.” Id. Plaintiffs’ “speculative interest in prospectively challenging the 30-day rule”
was not enough to establish standing. Id. at 329.
Clapper and Cruz sink Plaintiffs’ standing theory here. Take Adams and Doe first, who
remain homeless. See Def.’s SUMF ¶¶ 32, 74; Pls.’ SUMF ¶¶ 35, 39. The District does
15
“intend[] to continue conducting encampment clearings” under the 2019 Protocol, with
“multiple encampment clearings” each week. Pls.’ SUMF ¶¶ 13, 41. But consider all that must
happen before Adams or Doe come even close to sustaining the loss of wanted but unattended
property that they fear under the 2019 Protocol as written. 10
First, Doe and Adams must remain in an encampment subject to periodic clearing. Of
all the preconditions here, this much is likely based on their testimony. But that is not enough
to show that a loss of property is imminent. Second, they must miss or disregard the
“notices/signs” that would have been posted “conspicuously throughout the immediate vicinity
of the public space to be cleaned” for 14 days prior to the clearing. 11 Pls.’ Mot. Ex. 1 at 6. This
is unlikely, as both Doe and Adams admitted to regularly seeing these signs. Doe Dep. Tr.
39:21–40:1; Ex. 15 Adams Dep. Tr. 57:14–58:6. Third, they must be unable to move their
belongings at any time in the 14 days before the clearing. This is even less likely, as both
Plaintiffs indicate that they habitually pack up before the clearing date. Doe Dep. Tr. 43:2–12,
43:22–44:8; Ex. 15 Adams Dep. Tr. 154:6–15; id. 154:16–20. Fourth and finally, they must be
absent the 30 minutes before and during the scheduled clearing time to store their property. 12
See Pls.’ Mot. Ex. 1 at 8 (“The District makes available free store of property that is eligible to
10
Since Plaintiffs’ challenge to the 2019 Protocol is a facial one, the Court assumes for
standing purposes that the 2019 Protocol would be implemented as written. Cf. Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 449–50 (2008) (“In determining
whether a law is facially invalid, we must be careful not to go beyond the statute’s facial
requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.”).
11
The District offers to arrange storage and transportation before clearing under the 2019
Protocol. Pls.’ Mot. Ex. 1 at 8. Although there is also a 48-hour trigger for rescheduled
clearings, id. at 6, this would apparently be on top of the 14-day standard notice.
12
The 2019 Protocol requires District personnel to “arrive at the site at least one half hour in
advance of the posted cleanup time to confirm everyone who is interested in packing belongings
on site has the opportunity to do so.” Pls.’ Mot. Ex. 1 at 9 (emphasis in original).
16
be stored . . . for up to 60 days at a site designated by the District to any individual with
property at the cleanup site who lacks permanent shelter.”). Only if all these unlikely events
occur will Plaintiffs then confront the possibility that District workers fail to follow their
obligation under the 2019 Protocol to “make reasonable efforts to collect and store” valuables
“in plain sight, even if they are unattended at the time of the cleanup.” Id. at 9; see also Cruz,
356 F.3d at 328–29 (outlining all the events that must happen before the plaintiffs experienced a
risk of injury to their “speculative interest”).
That is speculation atop speculation. Doe and Adams confront “precisely the kind of
‘highly attenuated chain of possibilities’ that is insufficient to establish standing.” de Ramirez
v. Barr, No. 18-cv-1516 (PLF), 2019 WL 4750373, at *3 (D.D.C. Sept. 30, 2019) (finding no
standing for challenge of immigration policy because plaintiff’s standing theory “depend[ed] on
an injury that she can only anticipate”). The 2019 Protocol “at most authorizes—but does not
mandate or direct”—the destruction of unabandoned but unattended property that Plaintiffs
fear. Clapper, 568 U.S. at 412 (emphasis in original). As in Clapper then, the alleged injury is
too attenuated to satisfy Article III.
Braxton’s feared injury is even more notional. She is not now homeless but instead lives
in subsidized housing. Pls.’ SUMF ¶ 38; Def.’s SUMF ¶¶ 49, 86. Braxton, though, argues that
the “temporary housing is entirely dependent on her ability to pay rent.” Pls.’ Mot. at 31. And
her ability to pay rent rests on continued employment, which is tenuous during the COVID-19
pandemic. Id.; see also Pls.’ SUMF ¶ 38 (“Especially in light of the uncertainty caused by the
COVID-19 pandemic, Ms. Braxton is in danger of having to return to the streets.”); but see
Def.’s SUMF ¶ 86 (undisputed that Braxton “makes rent payments based on a sliding scale”
relating to her ability to pay). So, unlike Adams and Doe, two more events must happen before
17
Braxton is even at risk of losing property in an encampment clearing: she must lose her job and
be unable to find another to keep making flexible rent payments. So at least six events (the two
just mentioned and the chain of events described above) must take place before Braxton faces a
realistic threat of her feared injury. The Court declines to stretch Article III standing this far.
See Clapper, 568 U.S. at 409 (“[T]hreatened injury must be certainly impending to constitute
injury in fact.” (emphasis in original) (cleaned up)).
Plaintiffs suggest that the risk of their feared injury is higher because they “cannot
always be present at the time of a scheduled clearing because they might need to step away from
their tents to obtain food, seek medical attention, [or] use or access other services.” Pls.’ SUMF
¶ 37; see also Pls.’ Reply at 17. But even assuming this is true, it would make property loss
only slightly more imminent. For Adams and Doe, three of the four events described above
would still have to occur before they are even close to being at risk of losing their property—
they must remain in an encampment, miss or disregard the notices 14 days before, and not move
their belongings at any time in that period. And as to Braxton, she must lose her job, become
unable to keep paying rent, and become homeless, after which the same chain of possibilities
for Adams and Doe must still happen.
Plaintiffs’ own experiences with clearings show that not being present the morning of a
clearing does not necessarily lead to property loss. Recall that the 2019 Protocol requires
written notice at least 14 days before a clearing (or 48 hours before a rescheduled clearing).
Pls.’ Mot. Ex. 1 at 6. So Plaintiffs can move their belongings any time before then, not just the
morning of the clearing. Indeed, Adams and Doe—the only two currently homeless Plaintiffs—
do just that. They have moved their belongings the day before the scheduled clearing. Adams
testified that she has moved her items before “[b]ecause [she does not] feel like doing it early
18
the next morning.” Ex. 15 Adams Dep. Tr. 154:6–15; id. 154:16–20 (testifying that it is
possible to move items the day before “[i]f you want to”). 13 And Doe has a process to “break
down camp and move everything the day before” a clearing. Doe Dep. Tr. 43:2–12; see also id.43:22–44:8 (agreeing that it is “fair to say” that she moves her items the night before a clearing
because she does not “want to lose anything”). She is “pretty consistent” in leaving
encampments the morning of a clearing and taking her items with her. Id. 132:18–22.
It is thus unsurprising that neither Doe nor Adams has lost unattended property under the
District’s challenged clearing practices. Cf. Biggerstaff v. FCC, 511 F.3d 178, 183 (D.C. Cir.
2007) (“[A] prediction of injury based on experience suffices to show injury in fact to the extent
that past wrongs are evidence bearing on whether there is a real and immediate threat of
repeated injury.” (cleaned up)). Adams claims that she lost property around 2015. See Sealed
Adams Dep. Tr. 58–59. But she does rely on that property loss to challenge the District’s
clearing practices here. Indeed, her purported loss happened before the District implemented
the 2016 Protocol, which preceded the 2019 Protocol at issue. See Cruz, 356 F.3d at 328 (“[A]
prospective injunction against future applications of the 30-day rule will do nothing to remedy
that past harm.”).
Doe “gave up [] winter stuff and just let it go” during the first clearing she experienced.
Doe Dep. Tr. 43:16–17. She had a chance to pack them but “let it go,” and she knew before
leaving that the items could be discarded because “[e]verybody around told us.” Id. 45:8–46:9.
That Doe and Adams have yet to lose unattended property under the clearing practices in the
2019 Protocol “substantially undermines their standing theory.” Clapper, 568 U.S. at 411.
13
Plaintiffs rely on testimony from Adams in which she described two times that she lost items
during a clearing. Sealed Adams Dep. Tr. 58–59. But both incidents occurred in 2014 or 2015,
before the 2016 and 2019 Protocols at issue. Id.19
Perhaps recognizing their uphill battle, Plaintiffs argue that destroying their property “is
catastrophic, lessening the burden on [them] to demonstrate ‘imminence.’” Pls.’ Mot. at 33.
Plaintiffs claim that the “more drastic the injury that government action makes more likely, the
lesser the increment in probability necessary to establish standing.” Id. (quoting Mountain
States Legal Found. v. Glickman, 92 F.3d 1228, 1234 (D.C. Cir. 1996)). In Mountain States,
the Circuit considered when probabilistic injuries in the environmental context suffice to
establish imminent injury under an “increased risk of harm” standing theory. 92 F.3d at 1235(finding incremental risk in wildfire “enough of a threat of injury to entitle plaintiffs to be
heard”).
The Court does not doubt the personal value of Plaintiffs’ property. But that is not
enough. Even if Plaintiffs do pursue increased-risk-of-harm standing here (which is not
apparent), they still must show “at least both (i) a substantially increased risk of harm and (ii) a
substantial probability of harm with that increase taken into account.” See Pub. Citizen, Inc. v.
Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1295 (D.C. Cir. 2007) (Kavanaugh, J.)
(emphasis in original). And courts still must be “mindful . . . that the constitutional requirement
of imminence as articulated by the Supreme Court . . . necessarily compels a very strict
understanding of what increases in risk and overall risk levels can count as ‘substantial.’” Id. at
1296. The task remains to decide whether “the increased risk of such harm makes injury to an
individual citizen sufficiently ‘imminent’ for standing purposes.” Id. at 1298.
So the “strict understanding” of what constitutes “substantial” compels the same
conclusion here. The evidence does not show that Plaintiffs face a “substantial probability of
harm” given all that must happen before they suffer property loss under the District’s clearing
practices. As explained, the only two Plaintiffs still subject to potential clearings have yet to
20
experience the harm they fear. It seems unlikely they ever will. This route thus does not help
Plaintiffs establish standing.
In sum, Plaintiffs have failed to show that their asserted injury is “imminent,” Lujan,
504 U.S. at 560, or “certainly impending,” Clapper, 568 U.S. at 409. They therefore cannot
show an injury in fact.
b.
Plaintiffs raise an alternative argument too. They contend that “because [they] seek to
vindicate procedural rights under both the Fourth and Fifth Amendments, they need not
demonstrate imminent injury or redressability.” Pls.’ Mot. at 35.
But Plaintiffs offer little more. They do not elaborate on these “procedural rights.” Or
how they establish standing here. Plaintiffs instead claim that they have procedural standing
“given the procedural nature of the constitutional rights they assert.” Id. at 34. Plaintiffs must
do more than just raise a Fourth or Fifth Amendment claim to establish procedural standing.
Accord Common Cause v. Biden, 909 F. Supp. 2d 9, 19 (D.D.C. 2012) (“[N]ot all procedural-
rights violations are sufficient for standing[.]”), aff’d on other grounds, 748 F.3d 1280 (D.C.
Cir. 2014). They fail to meet their burden here. Clapper, 568 U.S. at 411–12 (“The party
invoking federal jurisdiction bears the burden of establishing standing[.]” (cleaned up)).
Even if the Court considered their procedural standing theory, it would fail. To establish
procedural standing, Plaintiffs still must show not only that “the defendant’s acts omitted some
procedural requirement, but also that it is substantially probable that the procedural breach will
cause the essential injury to the plaintiff’s own interest.” Ctr. for Law & Educ. v. Dep’t of
Educ., 396 F.3d 1152, 1159 (D.C. Cir. 2005) (emphasis added) (quoting Fla. Audubon Soc’y v.
Bensten, 94 F.3d 658, 664–65 (D.C. Cir. 1996) (en banc)). There must be “injury beyond mere
21
procedural misstep per se to satisfy standing in a procedural-rights case.” Id. at 1160. The
“chain of causation between the procedural violation and the concrete interest may not be
merely speculative.” VioPharma, Inc. v. Hamburg, 777 F. Supp. 2d 140, 145 (D.D.C. 2011)
(cleaned up).
In Center for Law and Education, for example, the Circuit held that plaintiffs
challenging the composition of a rulemaking committee did not have procedural standing. 396
F.3d at 1157–60. The court reasoned that the “chain of causation between the alleged
procedural violation and the concrete interest is speculative at best.” Id. at 1159. Plaintiffs thus
failed to “demonstrate the necessary causal connection between the challenged agency action—
here, the promulgation of final rules—and the alleged injury.” Id. at 1160. The challenged
agency action and plaintiffs’ alleged injury stood at “opposite ends of a long chain.” Id. at
1160–61.
Plaintiffs appear to ask the Court to scrap two of the three elements of the “irreducible”
constitutional minimum of standing. Lujan, 504 U.S. at 560. To be sure, procedural standing
may “loosen[] the strictures of the standing inquiry, by relaxing the immediacy and
redressability requirements.” In re Endangered Species Act Section 4 Deadline Litigation-MDL
No. 2165, 704 F.3d 972, 976–77 (D.C. Cir. 2013) (cleaned up). But it “does not—and cannot—
eliminate any of the irreducible elements of standing.” Fla. Audubon Soc’y, 94 F.3d at 664
(cleaned up).
With little to go on, the Court assumes that the District’s “procedural breach” is
insufficient notice about the “consequences of a clearing.” Pls.’ Reply at 31. But Plaintiffs still
have not shown that “it is substantially probable that the procedural breach will cause the
essential injury to the plaintiff’s own interest.” Ctr. for Law & Educ., 396 F.3d at 1159
22
(emphasis in original). Recall that Plaintiffs “fear that [the District’s] homeless encampment
clearing practices will result in the destruction of their property” because they “cannot be with
[their] belongings at all times.” Third Am. Compl. ¶¶ 100–01; see also Adams Discovery
Resps. at 3; Doe Discovery Resps. at 3; Braxton Decl. ¶ 25. But the facts remain that Plaintiffs
have 14 days to move their belongings before the clearing, and the only two Plaintiffs currently
experiencing encampment clearings have typically moved their belongings the day before a
clearing anyways. See Ex. 15 Adams Dep. Tr. 154:6–18; Doe Dep. Tr. 43:2–12; id. 43:22–
44:8. So even if the District should provide more information in its notice about the
“consequences of a clearing,” Plaintiffs’ feared loss of property still stands at “opposite ends of
a long chain” from this procedural breach. Ctr. for Law & Educ., 396 F.3d at 1160.
Plaintiffs cannot establish standing through any procedural right.
* * *
In sum, none of the Plaintiffs has standing to seek declaratory and injunctive relief
against the District’s current clearing practices. The Court will therefore grant summary
judgment for the District on Count III. The Court will also deny Plaintiffs’ renewed class
certification motion as moot. 14 See O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (“[I]f none of
the named plaintiffs purporting to represent a class establishes the requisite of a case or
controversy with the defendants, none may seek relief on behalf of himself or any other member
of the class.”).
14
Plaintiffs only seek to certify a class for prospective relief, not damages. See Pls.’ Reply in
Supp. Renewed Mot. Class Certification at 16 n.8, ECF No. 121 (“The District is correct in
noting that Plaintiffs have declined to seek certification of a damages class, and Plaintiffs do not
intend to do so.”).
23
2.
All that remains is Braxton’s as-applied claims under the Fourth and Fifth Amendments
for past harm (Counts I and II). The others do not pursue this relief. See Def.’s SUMF ¶ 47
(“Ms. Adams does not seek damages for alleged property loss in this lawsuit.”); id. ¶ 83 (“Ms.
Doe does not seek damages for alleged property loss in this lawsuit.”). The District does not
contest Braxton’s standing to raise her as-applied challenge. But the Court is “obliged to
consider the issue sua sponte.” Catholic Serv. v. Shalala, 12 F.3d 1123, 1125 n.2 (D.C. Cir.
1994).
The Court is satisfied that Braxton can proceed. She offers evidence of alleged property
loss from a District clearing in May 2017, including a specific description of the items she
claims went missing. See Braxton Decl. ¶ 21; Ex. 16 Braxton Dep. Tr. 109–10. Braxton thus
can raise “a claim for damages against the [District] that appears to meet all Article III
requirements,” even if she cannot pursue prospective relief. See City of Los Angeles v. Lyons,
461 U.S. 95, 109 (1983).
B.
Whether Braxton’s as-applied claims under the Fourth and Fifth Amendments survive
summary judgment is a separate question. See Def.’s Mem. at 40–51.
Section 1983 allows Braxton to sue the District for constitutional violations. But
“Congress did not intend municipalities to be held liable unless action pursuant to official
municipal policy of some nature caused a constitutional tort.” Monell v. Dep’t of Soc. Servs. of
City of N.Y., 436 U.S. 658, 691 (1978). The Court thus conducts a two-step inquiry. Baker v.
District of Columbia, 326 F.3d 1302, 1306 (2003). First, there must be a predicate
constitutional violation. Id. Second, a District custom or policy must serve as the “affirmative
24
link” to that constitutional violation, “such that [it] was the moving force behind the
constitutional violation.” Id. (cleaned up).
The Circuit has articulated a “number of ways” a municipal policy can establish § 1983
liability: “the explicit setting of a policy by the government that violates the Constitution”; “the
action of a policy maker within the government”; “the adoption through a knowing failure to act
by a policy maker of actions by his subordinates that are so consistent that they have become
‘custom’”; “or the failure of the government to respond to a need . . . in such a manner as to
show ‘deliberate indifference’ to the risk that not addressing the need will result in
constitutional violations.” Id.
1.
The Court first considers whether Braxton has shown a predicate constitutional
violation. She asserts that the District destroyed her wanted, unattended property during a May
2017 clearing in violation of the Fourth Amendment. Pls.’ Reply at 23.
The Fourth Amendment secures the “right of people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend.
IV. A seizure “occurs when there is some meaningful interference with an individual’s
possessory interests in that property.” Soldal v. Cook Cnty., 506 U.S. 56, 61 (1992) (cleaned
up). And “[d]estroying property meaningfully interferes with an individual’s possessory
interest in that property.” Proctor I, 310 F. Supp. 3d at 114 (cleaned up).
The seizure also must be unreasonable to violate the Fourth Amendment. “To assess the
reasonableness of a seizure, “[the Court] must balance the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the importance of the governmental
25
interests alleged to justify the intrusion.” Johnson v. District of Columbia, 528 F.3d 969, 974
(D.C. Cir. 2008) (cleaned up).
The Fourth Amendment does not prohibit seizure of property that has been
“abandoned.” United States v. Thomas, 864 F.2d 843, 845 (D.C. Cir. 1989). The abandonment
inquiry depends on the intent of the person alleged to have abandoned the property. Id. at 846.
It is an objective test, and courts may infer intent from “words spoken, acts done, and other
objective facts.” Id.The undisputed record shows that the District did not destroy Braxton’s property during
the May 2017 clearing. District personnel informed “Braxton that all her belongings, except for
food items, would be subject to be taken to [Adams] Place.” Def.’s SUMF ¶ 65 (cleaned up).
After the clearing, someone at Adams Place confirmed to Braxton that all her items were in fact
stored:
I called directly to Adam’s Place and whoever was answering their phone at the
time told me that they had -- they got my name. They had my name on my things.
I told them I had a tent. I told them I had plastic bins with clothing, plastic bins
with food. I had water. I had jewelry. I had electronics. I had cleaning things. I
had suitcases. I had all that stuff. And they said they had it all, every single thing.
Ex. 16 Braxton Dep. Tr. 109:7–16; see also Def.’s SUMF ¶ 68. As Braxton admits, “[t]hey
didn’t say they destroyed anything.” Ex. 16 Braxton Dep. Tr. 109:17–20. The District thus
complied with the Fourth Amendment by storing Braxton’s property. See Lavan v. City of Los
Angeles, 693 F.3d 1022, 1030 (9th Cir. 2012) (“the seizure of the property would have been
deemed reasonable had the City held it for return to its owner instead of immediately destroying
it”).
Upon learning that Adam’s Place had her items, however, Braxton did not retrieve them.
Rather, she waited several weeks to visit the storage facility. Def.’s SUMF ¶ 69. By that time,
26
Braxton claims that “she was only able to recover a few of her items.” Id. ¶ 70. The only
reasonable inference from this evidence is that her items were destroyed, mislaid, or taken by
someone else while in storage, not destroyed during the clearing. Braxton does not challenge
the District’s storage policies under the Fourth Amendment. So it would be inappropriate for
the Court to assess whether the District’s storage policies and actions here violated her
constitutional rights. Indeed, Braxton wants more storage options from the District, not less.
See Pls.’ Reply at 36 (“Given these inadequate notice and outreach procedures, the District
could lower the risk of erroneous deprivation by storing more property.”).
Even if the District did destroy Braxton’s property during the clearing, Plaintiffs offer
little evidence to show that the destruction was unreasonable. Braxton refers to the “sound
condition of her belongings.” Id. at 23. But the evidence is lacking. 15 Her declaration states
only that the food in her tent “was in good condition and not rotten.” Braxton Decl. ¶ 15. Even
so, food was not eligible for storage then (and still is not). Pls.’ Mot. Ex. 1 at 9; id. Ex 2 at 7.
Braxton does not describe elsewhere in her declaration the conditions of the other items she
sought to reclaim at Adams Place. So the Court has no basis to conclude that items such as
Braxton’s mattress or clothing were otherwise eligible for storage in the first place—that they
were not hazardous, wet or soiled, infested or potentially infested with bugs. Hr’g Tr. 12:4–13,
ECF No. 130 (Plaintiffs’ counsel agreeing that “District would have a legitimate health and
safety concern in removing sharps, soiled clothing, buckets of urine . . .”); see also Sullivan v.
City of Berkeley, 383 F. Supp. 3d 976, 986 (N.D. Cal. 2019) (“[T]he City has a legitimate
interest in . . . removing unsafe or hazardous conditions from its public spaces.”); Lavan v. City
15
Braxton offers evidence of the market value for her lost items. See Sealed Expert Report of
Archan H. Ruparel, ECF No. 107. But this market value does not establish the condition of the
lost items.
27
of Los Angeles, 797 F. Supp. 2d 1005, 1019 (C.D. Cal. 2011) (“The City will still be able to . . .
remove hazardous debris and other trash.”).
As Braxton admits, “[s]ome of [her] most important belongings were not in plain sight.”
Braxton Decl. ¶ 5. Under current policy, District personnel need not “sort through piles or
collections of belongings, including items inside tents or containers” to identify eligible
property to store. Pls.’ Mot. Ex. 1 at 9.16 This limitation is “[d]ue to safety and other
concerns.” Id. Obvious safety issues could include secreted sharps, biohazards, and weapons.
Rummaging through unattended items could also presumably raise privacy concerns. So there
are both private and governmental interests that make this proviso eminently reasonable under
the Fourth Amendment. See Johnson, 528 F.3d at 974.
There is no predicate Fourth Amendment violation to establish District liability under §
1983.
2.
The Court turns next to whether Braxton can prove a predicate violation of her Fifth
Amendment rights under Count II. She claims that the District violated her procedural due
process rights because the District’s written notice signs are “not reasonably calculated to
inform encampment residents about the likely destruction of their unattended property or
provide them the information necessary to protect their property.” Pls.’ Reply at 30–31. Not
so.
“The Fifth Amendment’s Due Process Clause prohibits the District of Columbia from
depriving persons of ‘property without due process of law.’” Wash. Legal Clinic for the
16
The 2019 Protocol reflects the District’s actual encampment clearing practices. Pls.’ SUMF
¶ 15. So the Court refers to it here when discussing the clearing practices in May 2017.
28
Homeless v. Barry, 107 F.3d 32, 36 (D.C. Cir. 1997) (quoting U.S. Const. amend. V). “[D]ue
process requires the government to provide notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.” Jones v. Flowers, 547 U.S. 220, 226 (2006) (cleaned
up). The Court must weigh “the risk of an erroneous deprivation” against any “additional or
substitute procedural safeguards.” See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Recall that only Braxton claims property loss under the District’s clearing practices.
The undisputed record shows that the District did not violate Braxton’s Fifth Amendment rights
during the May 2017 clearing. “District personnel informed [Braxton] that the District would
be conducting a clearing the next day.” Def.’s SUMF ¶ 63; see also Ex. 16 Braxton Dep. Tr.
93:7–94:2. Those same personnel also told Braxton “that she would have to move her
belongings off M Street for the cleaning.” Def.’s SUMF ¶ 63. And Braxton told them that she
wanted her items stored, which she invoked and which they agreed to do. Id. ¶¶ 64–65. It is
undisputed then that Braxton received actual notice of the clearing and that her belongings must
be moved beforehand—more than the Fifth Amendment requires. See Small v. United States,
136 F.3d 1334, 1336 (D.C. Cir. 1998) (“[T]he Due Process Clause does not demand actual,
successful notice[.]”). So the District did not violate Braxton’s procedural due process rights.
See United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010) (“actual notice of the
filing and contents of [debtor’s] plan . . . more than satisfied [petitioner’s] due process rights”
under the Fifth Amendment).
29
More, the District announced the clearing with a sign. See Horen Decl. ¶ 61; id. Ex. 7,
ECF No. 18-7. 17 The sign included the date and time of the clearing and stated that “[p]ersonal
belongings, in plain sight, considered to be of obvious value” “will be temporarily placed in
storage.” Id. Ex. 7. It also cautioned that “[a]ll other items visible from this location and not
removed from this public space by the above stated scheduled cleanup time are subject to
removal and disposal.” 18 Id.And at the time of the May 2017 clearing, Braxton already knew about “the Adams
Place storage facility from the posted sign and previous written letters [she] had received.”
Braxton Decl. ¶ 11. Adams Place confirmed for Braxton after the clearing that all her items
were stored there, consistent with the notice. Def.’s SUMF ¶ 68; see also Ex. 16 Braxton Dep.
Tr. 109:7–16 (“They had my name on my things. I told them I had a tent. I told them I had
plastic bins with clothing, plastic bins with food. I had water. I had jewelry. I had electronics.
I had cleaning things. I had suitcases. I had all that stuff. And they said they had it all, every
single thing.”). 19
17
The clearing was originally scheduled for May 11, but the District rescheduled it for a week
later and updated the notice “at least 48 hours prior to the cleanup.” Horen Decl. ¶ 61.
18
Braxton suggests in her declaration that “the posted sign did not indicate any clearing
scheduled for the following day.” Braxton Decl. ¶ 12. It is unclear whether Braxton is referring
to a different sign or the one the District submitted photographic evidence of, which shows a
May 18, 2017 clearing date. If she is referring to the sign depicted in the photo, the
“photographic evidence belies [her] claims” that the sign did not have the correct date and time.
Thorp v. District of Columbia, 319 F. Supp. 3d 1, 15–16 (D.D.C. 2018), aff’d, 788 F. App’x 8
(D.C. Cir. 2019). It is thus appropriate to rely on the photographic evidence at summary
judgment, not Braxton’s declaration. Cf. Scott v. Harris, 550 U.S. 372, 380 (2007) (“When
opposing parties tell two different stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.”).
19
There is a reasonable inference that some of Braxton’s items were destroyed or mislaid
between the time when Braxton called Adams Place and when she went to retrieve them weeks
later. But Plaintiffs’ Fifth Amendment claim does not challenge the adequacy of the District’s
30
On this record, the District “more than satisfied [Braxton’s] due process rights.” United
Student Aid Funds, Inc., 559 U.S. at 272. Plaintiffs therefore cannot establish a predicate
violation of the Fifth Amendment.
3.
Even if Braxton had shown a predicate constitutional violation, she fails to identify a
District custom, policy, or practice that acted as the “affirmative link” to any destruction of her
property during the May 2017 clearing. Baker, 326 F.3d at 1306. Tellingly, Braxton does not
rely on examples of homeless individuals who lost wanted, unattended property during District
clearings to establish the District’s liability here. She instead cites “a consistent pattern of
conduct evidenced in policy documents, statements by District officials, and the District’s own
clearing records.” Pls.’ Reply at 47.
The strongest evidence are two documents stating that “[i]f an owner cannot be
identified, items are determined abandoned and disposed of.” See Pls.’ Reply Ex. 28 at 2, ECF
No. 136-31; id. Ex. 37 at 14, ECF No. 136-40. Braxton characterizes them as “[i]nternal
guidance documents pertaining to encampment clearings.” Pls.’ Reply at 47. But it is unclear
how these documents can be considered “internal guidance.” The first document is “Appendix
C: Encampment Talking Points.” Id. Ex. 28 at 1. As the District points out, there is no author
or date provided for this document, and Plaintiffs offer no further explanation for how the
District used it, if at all. The second document is a 2017 presentation called “Homeless
Encampments.” Id. Ex. 37 at 2. Braxton suggests that this document is a “Homeless
procedures for post-clearing storage. It focuses on lack of notice before any clearing, which
explains why Plaintiffs seek more storage. See Pls.’ Reply at 36 (“Given these inadequate
notice and outreach procedures, the District could lower the risk of erroneous deprivation by
storing more property.”).
31
Encampment Training.” Pls.’ Reply at 47 n.20. No evidence shows that this was a “training.”
This presentation went to “non-District-employees through the District’s Department of Small
and Local Business Development.” Def.’s Reply in Supp. Cross-Mot. Summ. J. at 12, ECF No.
140 (citing Ex. 16, ECF No. 114-16). Even drawing all reasonable inferences in her favor,
without more, the Court cannot find that either document qualifies as a “policy document”
sufficient to impose liability on the District. See Connick v. Thompson, 563 U.S. 51, 61 (2011)
(“Official municipal policy includes the decisions of a government’s lawmakers, the acts of its
policymaking officials, and practices so persistent and widespread as to practically have the
force of law.”).
Braxton also identifies a “memorandum issued by the official overseeing encampment
engagements,” which notes that “unattended belongings need to be consistently discarded in
order for consumers to take the protocol seriously.” Pls.’ Reply at 47 (cleaned up). There is no
evidence, however, that the District ever issued or implemented this memorandum. Indeed, its
file name suggests that it was “never sent.” See Def.’s Reply in Supp. Mot. Dismiss & Mot.
Summ. J. Ex. F at 2, ECF No. 114-7.
Plaintiffs thus fail to “produce evidence sufficient to support a finding” that these
documents reflect a District policy to establish § 1983 liability. See Fed. R. Evid. 901(a).
Braxton next offers statements from “District policy officials,” including former
Encampment Coordinator Elizabeth Horen and Deputy Chief of Staff and Acting Encampment
Coordinator Jessica Smith. Pls.’ Reply at 47–48. She does not elaborate more on how either is
a “final policymaker” who can trigger municipal liability. See Thompson v. District of
Columbia, 832 F.3d 339, 348 (D.C. Cir. 2016) (emphasis in original). She does not show, for
example, that either “speak[s] with final policymaking authority” for encampment clearings.
32
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). And neither is “an agency head or
the governing body of an agency.” Allen-Brown v. District of Columbia, 54 F. Supp. 3d 35, 42
(D.D.C. 2014) (“[C]ourts in this district have held that a final policy maker typically must be at
least an agency head or the governing body of an agency.” (cleaned up)).
Horen, for example, was a Program Analyst in the Office of the Deputy Mayor for
Health and Human Services “responsible for scheduling and coordinating cleanups.” Horen
Decl. ¶¶ 1–2. Perhaps she had discretion to implement the 2016 Protocol. But that is not
enough to establish final policymaking authority. See City of St. Louis v. Praprotnik, 485 U.S.
112, 126 (1988) (plurality opinion) (“If the mere exercise of discretion by an employee could
give rise to a constitutional violation, the result would be indistinguishable from respondeat
superior liability.”).
In any event, Horen’s isolated statements are not dispositive. Horen states that “[i]tems
. . . are deemed abandoned when the owners leave after the cleanup team is already on site,
indicating that he or she is abandoning the property.” Horen Decl. ¶ 52. At most, this comment
supports a District practice to consider property abandoned if an owner leaves after the clearing
has begun.
The Court doubts that this creates municipal liability under the Fourth Amendment in
the first place. See Proctor I, 310 F. Supp. 3d at 115 (agreeing that the “District could
reasonably conclude Plaintiffs had abandoned their property” because “Braxton walked away
from it at the beginning of a cleanup, despite having more than two-weeks’ notice that the
cleanup would take place”). And elsewhere Horen describes a “consultation process to
determine whether property has been abandoned,” which includes input from District “outreach
workers, third-party outreach providers, and other individuals with tents or other property at the
33
location.” Horen Decl. ¶ 47. These statements reflect a deliberative process, not—as Plaintiffs
suggest—a custom to uniformly destroy unattended belongings.
Smith stated that “[i]f property is left within the cleanup zone after the time of a posted
cleanup, it is subject to disposal, and I am assuming that it is abandoned property.” Pls.’ Reply
Ex. 8, Dep. Tr. of Jessica Smith 26:16–27:4, ECF No. 136-11. But she elaborated on all that
must happen before the District determines property like a “functional tent” is abandoned:
Yeah. Hypothetically, if there was a functional tent left within the cleanup zone
after the time of the cleanup which has been properly noticed, 14 days, and no one
is there to claim the tent and I have talked with outreach workers about the notice
that they have provided and I have talked with other residents about if they
know . . . whose this tent is and it is still there and no one has moved it, yes, it
would be abandoned.
Id. 27:14–22 (emphasis added); see also id. 29:16–23 (“[She] would have talked to an outreach
worker. [She] would have talked to other residents there, and [she] would assume that if it was
left in that area, that they did not want it. Therefore, they must not have thought that it was of
obvious value.”). Smith also stated that the District would store electronics and identification
cards, even if they were considered abandoned. See id. 28:5–11. On the whole then, Smith’s
testimony does not support a blanket policy to destroy all unattended property during a clearing.
Finally, Braxton points to the District’s clearing records. She claims that the “records
support an inference that the District summarily disposed of some or all of encampment
residents’ property in 82 of 102 cases involving unattended belongings (approximately 80%).”
Pls.’ Reply at 48. She invites the Court to infer that the “disparity in destruction versus storage”
reflects a policy to discard all unattended belongings during clearings. Id. at 37.
The Court declines to rely on these statistics. They offer no insight into whether
unattended belongings were wanted and of a class of items that the District should have
stored—not soiled, hazardous, or bug-infested—but did not. Accord Hooper v. City of Seattle,
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No. C17-0077RSM, 2017 WL 591112, at *11 (W.D. Wash. Feb. 14, 2017) (rejecting evidence
of “spreadsheet documenting cleanups” to “establish[] the existence of a widespread and
persistent pattern of the summary destruction of unhoused individuals’ property” because
“[c]onsidering the number of reasons why property may not be stored—including that property
may have been abandoned—the Court is not convinced that citation to a statistic derived from a
two-month period demonstrates the City’s widespread engagement in a pattern of summarily
destroying property”), aff’d sub nom. Willis v. City of Seattle, 943 F.3d 882 (9th Cir. 2019).
Consider the following painstaking summary of an August cleanup:
In total, three of the four tents were disposed of. The burnt tent and all the destroyed
items that were inside were thrown out, as well as another tent belonging to the
woman (she no longer wanted it). Another larger tent was also on site, but the
owner was not. OHS [Occupational Health and Safety] confirmed that they were
unsuccessful in making contact with the owner over the two weeks the notification
signs were posted and were unsure the owner was still around. OM HHS [Health
and Human Services] also asked the other individuals on location if they had seen
the owner of the tent. The individuals reported to OM HHS that they like to keep
to themselves, and thus were unsure of who owned the tent and did not really keep
track of when they saw the occupants (when asked if the last time they saw the
owners of the other tent, they said it hadn’t been too recent). At this point, OM
HHS made the determination that the tent was unclaimed and gave OPW [Public
Works] the okay to dispose of it. The fourth tent was disassembled by its owner
and moved off site.
Pls.’ Mot. Ex. 41 at 12. Statistics in the context of this August cleanup would be misleading.
They would show that three tents were discarded. But two were not even among the class of
items that could be stored—one was burnt and the other abandoned. And District personnel
conducted a careful inquiry to determine whether the final tent was still wanted. Accord
Proctor I, 310 F. Supp. 3d at 116 (“When District employees encounter unattended property,
they consider many factors and consult several sources, including other encampment residents,
to make what appears to be a good-faith determination about whether the property is
35
abandoned.”). So the Court declines to rely on raw numbers as proof of the District’s alleged
policy of destroying unabandoned but unattended belongings.
Braxton also notes “that only 10% of clearings identified in the District’s list of 2019
encampment clearings were designated as ‘trash collection only,’” which she argues “supports
an inference that in the other 90% of cases, the District discarded items that were not ‘trash.’”
Pls.’ Reply at 48 (citing Ex. 39, ECF No. 136-42). The Court disagrees. The District may
conduct a clearing for reasons other than collecting trash, including when an encampment
“interferes with community use of public space” or “becomes a significant community
nuisance.” Pls.’ Mot. Ex. 1 at 5; id. Ex. 2 at 4 (same). That does not mean trash removal does
not occur during these other clearings. For instance, the District did not designate a July 2019
clearing as “trash collection only.” See Pls.’ Reply Ex. 39 at 2. But the report for that clearing
reveals that “[t]he team removed all of [the] trash and debris from the site.” Pls.’ Mot. Ex. 41 at
226. It notes that “there were many biohazards on site such as urine in open containers and
used needles in thin plastic bottles.” Id. These naked statistics cannot establish a District
custom or policy under § 1983.
The evidence is even less convincing to establish municipal liability under the Fifth
Amendment. Recall, for example, the “Encampment Talking Points” Plaintiffs identified. See
Pls.’ Reply Ex. 28 at 2. Even if they do reflect a District “policy”—which Plaintiffs have not
established—these “talking points” undermine the policy Braxton seeks to establish in pursuit
of her Fifth Amendment claim. The talking points provide that the District will “post signs at
least 14 days [in] advance . . . of an upcoming cleanup event.” Id. They also state that
“[o]utreach teams also conduct final outreach to locations at least 48 hours in advance of a
cleanup event to remind individuals of the upcoming cleanup.” Id.; see also Pls.’ Reply Ex. 37
36
at 11 (noting signs posted “allowing at least 14 days advance notice of an upcoming cleanup
event.”). So the “policy” reflected, if any, is that the District notifies homeless individuals of a
clearing using signs and outreach. This two-pronged approach is “reasonably calculated” to
provide notice under the Fifth Amendment. Accord Love v. City of Chicago, No. 96 C 0396,
1998 WL 60804, at *11 (N.D. Ill. Feb. 6, 1998) (finding written and oral notice “reasonably
calculated” to notify homeless individuals of clearing).
Plaintiffs also contend that “[t]here is a genuine factual dispute over whether the District
has consistently failed to inform encampment residents of a clearing and its consequences
before destroying their un-abandoned property.” Pls.’ Reply at 27–28. The Court disagrees.
Plaintiffs do not dispute that the District had to “post notices of cleanings 14 days prior
to the cleaning to afford individuals affected by the cleaning time to voluntarily remove their
property.” Pls.’ Resp. Def.’s SUMF ¶ 7, ECF No. 136-1. And that District outreach staff had to
“reach[] out to encampment occupants to let them know the cleaning would occur.” Id. ¶ 13.
To start, the two-week notice is more extensive than other cities’ policies that survived
similar constitutional challenges. See, e.g., Sullivan, 383 F. Supp. 3d at 982 (rejecting argument
at summary judgment that the Constitution required city to “disclose the precise date and time at
which it will return to enforce the encampment’s removal” after “provid[ing] 72-hours’ notice
that a removal action is imminent”); Hooper, 2017 WL 591112, at *5, *7 (finding plaintiffs
failed to show success on the merits where notice of clearing posted “at least 72 hours in
advance”); De-Occupy Honolulu v. City & Cnty. of Honolulu, No. 12-cv-00668 JMS, 2013 WL
2285100, at *6 (D. Haw. May 21, 2013) (same for 24-hours’ notice); Love v. City of Chicago,
No. 96 C 0396, 1996 WL 627614, at *4 (N.D. Ill. Oct. 25, 1996) (rejecting contention that
37
additional procedures were needed where city provided 12-hour notice and “[t]he 48-hour
advance notice . . . would not be much more valuable”).
Still, Braxton proffers reasons why the District’s notice might not work. For example,
Braxton claims that the notice “contains vague and ambiguous language that leads to confusion
and inconsistent implementation”; that “encampment residents may still struggle to comprehend
the notice due to illiteracy, or mental illness”; that “encampment residents who do not speak
English or who speak English only as a second language may have an especially difficult time
comprehending the English-only signage”; and that “signs are typically posted out of ordinary
view and may blend in with other signs.” Pls.’ Reply at 32 (cleaned up). She also contends that
the District’s outreach efforts do not reach every resident. Id. at 34.
But recall that the District’s notice need only be “reasonably calculated.” Jones, 547
U.S. at 226. Plaintiffs themselves show that the District’s notice practices pass muster under
this standard. They confirmed that the District had a consistent practice of notifying individuals
of clearings. Adams explained that “normally” the District conducts a clearing “two weeks
from th[e] day that they put the sign up.” 20 Ex. 15 Adams Dep. Tr. 57:14–58:6. Braxton also
noted that she “usually” saw a notice sign every month prompting her to “note the cleanup date
and make sure that [she] had [her] stuff moved.” Ex. 16 Braxton Dep. Tr. 98:5–18. She also
explained that “city workers taught us . . . they came and taught us how to move the things.” Id.99:9–13. Braxton knew about “the Adams Place storage facility from the posted sign and
20
Plaintiffs point to other testimony from Adams in which she testified that the District is
“supposed to give us two-week notice, but they don’t have to” if someone complains about the
encampment. Ex. 15 Adams Dep. Tr. 76:19–22. But she conceded that the District has yet to
conduct a clearing without notice based on complaints. Id. 77:20–22.
38
previous written letters [she] had received.” Braxton Decl. ¶ 11. And Doe similarly testified
that workers update notice signs to reflect clearing times. Doe Dep. Tr. 39:21–40:1.
Each Plaintiff also understands that she must remove property before the clearing.
Having experienced “at least 15 cleanings,” Pls.’ SUMF ¶ 40, Doe stated that “nothing should
be on site” when District personnel arrive to clean, Doe Dep. Tr. 169:1–3. Adams has
participated in around 20 encampment clearings. Def.’s SUMF ¶ 39; Pls.’ SUMF ¶ 36. She
“[k]eep[s] track of the dates when they’re doing clean-ups” to be prepared, Ex. 15 Adams Dep.
Tr. 60:10–22, and knows that “[e]verything has to be moved from the location at 10:00 a.m.,”
Def.’s SUMF ¶ 42 (cleaned up). Braxton “note[d] the cleanup date and ma[d]e sure that [she]
had [her] stuff moved.” Ex. 16 Braxton Dep. Tr. 98:8–18. Braxton explained that “city
workers . . . came and taught us how to move the things.” Id. 99:9–13.
Plaintiffs also try to show that the District has conducted clearings without sufficient
notice before. But their efforts fall short.
Plaintiffs submit evidence that the District “may have” posted signs listing the wrong
date, Pls.’ Reply Ex. 9, Dep. Tr. of Kangeun Kelly Jeong-Olson 193:2–4, ECF No. 136-12, or
that “[s]ometimes the clearing notices have not been accurate,” id. Ex. 2, Dep. Tr. of Judy
Williams (“Williams Dep. Tr.”) 39:20–22, ECF No. 136-5. But there is little evidence that
clearings took place under these deficient notices. If anything, the record shows the opposite—
that when notices were deficient, the District cancelled cleanups. In one instance of improper
notice, for example, the report states that “CLEAN UP CANCELLED DUE TO SIGNS NOT
BEING POSTED IN CORRECT LOCATIONS.” Pls.’ Mot. Ex. 29 at 3, ECF No. 126-32; see
also id. Ex. 27, ECF No. 126-30 (no indication that clearing went forward); id. Ex. 28 at 2, ECF
No. 126-31 (stating that “[t]his camp has not been properly posted” and “[p]lease review and
39
advise of next steps”); Williams Dep. Tr. 40:5–20 (D.C. Homeless Service Coordinator
testifying that she was unaware of clearings that occurred under erroneous notices).
One clearing apparently happened when the sign contained the incorrect date. See Pls.’
Mot. Ex. 30, ECF No. 126-33. But the evidence also shows that “numerous engagements with
the individuals from this location” occurred in the days before the clearing and that “they were
all aware that the cleanup was scheduled.” Id. District personnel arrived an hour before this
clearing “to once again inform the residents about what was going to occur and what courses of
action were available to them.” Id. Even with the defective sign then, the District did provide
notice “reasonably calculated” to homeless individuals about this clearing. Accord Sullivan,
383 F. Supp. 3d at 984 (finding no triable issue on due process claim where “encampment did,
in fact, receive notice and a reasonable opportunity to pack up their belongings before the City
collected any remaining unattended property”). And even if they did not, “[o]ne instance,
however, egregious, does not a pattern or practice make.” 21 Martin v. Malhoyt, 830 F.2d 237,
255 (D.C. Cir. 1987).
* * *
In sum, after three years of litigation, not one Plaintiff has experienced a surprise
encampment clearing or the destruction of unabandoned property during a clearing. They thus
fail to show a predicate violation of their Fourth or Fifth Amendment rights to support a § 1983
claim against the District. Even if they did, the record does not establish any District custom,
21
Similarly, Plaintiffs suggest that the District has conducted re-clearings without notice. See
Pls.’ Reply Ex. 9, Dep. Tr. of Kangeun Kelly Jeong-Olson 196:12–24 (stating that “District has
authority to perform recleaning”). The Court does not construe the Plaintiffs’ filings as
challenging the District’s re-clearing practices. But in any event, evidence that the District “has
authority to perform recleaning” without notice is insufficient to establish municipal liability. It
does not show that the District does in fact consistently conduct re-cleanings without sufficient
notice.
40
policy, or practice that served as the “affirmative link.” The District thus is entitled to summary
judgment on Counts I and II.
IV.
The Court recognizes that Plaintiffs have an interest in protecting their unabandoned
property at these encampments, which may represent their only possessions. But the District
has an equally salient interest in ensuring the health, safety, and well-being of all City residents,
including the homeless. On its face, the 2019 Protocol contrasts with other cities’ policies that
did not survive constitutional scrutiny.
For example, the Ninth Circuit struck down a Los Angeles policy that provided only a
general notice that cleanups could happen anywhere in Skid Row between 8 and 11 a.m. on any
week day, which prevented homeless residents from anticipating when or where the cleanup
would take place. See Lavan, 693 F.3d at 1034 (Callahan, J., dissenting). Los Angeles also
admitted that it had “a policy and practice of seizing and destroying homeless persons’
unabandoned possessions.” Id. at 1025.
A court recently invalidated Denver’s policy, which provided morning-of notice of
clearings, because the plaintiffs “had little time to collect and remove their belongings prior to
the commencement of the sweeps.” Denver Homeless Out Loud v. Denver, --- F. Supp. 3d ---,
2021 WL 243450, at *7 (D. Colo. Jan. 25, 2021). The court noted that “[i]f Denver provided
homeless individuals with additional advance notice of sweeps, it would allow Plaintiffs a better
chance to protect the property critical to their survival.” Id. at *8.
And in Kincaid v. City of Fresno—a favorite case for Plaintiffs—the court found
unconstitutional a city policy to “immediately destroy[] all of the property that it seizes in its
sweeps.” No. 106CV-1445 OWW SMS, 2006 WL 3542732, at *36 (E.D. Cal. Dec. 8, 2006).
41
There, Fresno made “no effort to separate and store for later retrieval items that are clearly
owned and are valuable, not trash.” Id. The city also “offered limited evidence of any pre-
deprivation notice” and only “some evidence of oral notice before some of the City’s sweeps.”
Id. at *38.
By contrast, consider the 2019 Protocol’s terms. It requires 14-days’ notice before a
standard clearing, with “notices/signs conspicuously throughout the immediate vicinity of the
public space to be cleaned.” Pls.’ Mot. Ex. 1 at 6. The notice warns that “property left on site
during the cleanup may be immediately destroyed,” but that “some unattended, non-hazardous
property may be stored, in the District’s discretion.” Id. More, outreach workers must “make
every effort to share this information verbally with anyone at the site and with community
partners to ensure those who are unable to read or have difficulty comprehending the
information are made aware of the impending cleanup action.” Id. They also must “make clear
to individuals experiencing homelessness that the only way to be sure property is not disposed
of during a cleanup is to move the property from the cleanup site before the specified cleanup
time.” Id. at 7.
The District allows homeless individuals to store their belongings before a clearing
begins. Id. at 8–9. And District personnel “make reasonable efforts to collect and store”
eligible items that are “in plain sight, even if they are unattended at the time.” Id. at 9. They
even provide complimentary transportation to the storage facility. Id. at 8.
After three years of litigation, it is time to put this case to rest. The record shows that
none of the Plaintiffs has standing to raise a facial challenge to the District’s practices under the
Fourth or Fifth Amendment. And the undisputed record shows that the only Plaintiff to have
lost her wanted, unattended property during a clearing (once), did not suffer a constitutional
42
violation. Even if she had, the evidence does not support a custom, policy, or practice to
impose liability on the District for that violation. The Court thus finds that the District is
entitled to summary judgment on Plaintiffs’ constitutional challenges to its clearing practices.
Plaintiffs’ motion for summary judgment will be denied and Defendant’s cross-motion
for summary judgment will be granted. A separate Order will issue.
2021.03.31
18:25:04 -04'00'
Dated: March 31, 2021 TREVOR N. McFADDEN, U.S.D.J.
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