On July 13, the King County Superior Court ruled that major parts of Seattle’s current sweeps policy are unconstitutional. The American Civil Liberties Union of Washington (ACLU-WA), which brought the case, alleged that sweeps constitute a violation of encampment residents’ rights to privacy and, in certain cases, are cruel and unusual punishment.
The court ruled that the city’s sweeps policies “are not carefully tailored in some circumstances to pursue the City’s valid governmental interests and require more disclosure than is reasonably necessary, because the Rules define ‘Obstruction’ so broadly that the City can invade unhoused people’s privacy rights without notice, offers of shelter, and property preservation[.]”
While it represents a major victory for the ACLU-WA, this decision is not the end of sweeps. The court specifically targeted the city’s justification for so-called “no-notice” sweeps. The city has been claiming that any encampment considered to be an obstruction can be removed immediately, without following the stipulations within the city’s Multi-Departmental Administrative Rules (MDAR), which require providing 72 hours’ notice, offering a shelter placement and storing important personal property.
“No-notice” sweeps are a major part of Mayor Bruce Harrell’s aggressive sweeps policy. As Real Change reporter Guy Oron wrote in an article breaking down the 943 sweeps conducted by the city in 2022, “The vast majority of these removals — 771 — were classified as ‘obstruction’ sweeps, meaning that staff were not required to provide any notice to camp residents before initiating the sweep.”
Advocates have long complained that the definition of an obstruction is too broad, allowing city staff to conduct “no-notice” sweeps with impunity. The new ruling on summary judgment agreed, describing the city’s interpretation of obstructions as “overbroad,” and should put the brakes on what has been an escalating number of encampment removals under Harrell’s leadership.
“The Rules do constitute cruel punishment to the extent that they rely on the overbroad ‘Obstruction’ definition, because that definition allows the City to move unhoused people who are not actual obstructions, without offering unhoused people Shelter,” the Court found.
While the court did not get into the nitty gritty of what a “true obstruction” is, it did offer some guidance, according to La Rond Baker, the ACLU-WA’s legal director in charge of the case.
“The Court did not define true obstruction, but it addressed examples of circumstances that might constitute a true obstruction relating to public health and safety and interference with the public’s ability to access property,” she wrote in response to emailed questions. “For example, a true obstruction could exist where people in wheelchairs and walkers might have to use the street because the sidewalk is obstructed. The Court found that the City’s policy covered encampments and shelters that did not provide actual obstructions, like in the case of a tent in a large public park.”
As Baker pointed out in a previous interview with Real Change, the watershed decision in Martin v. Boise, where the U.S. Court of Appeals for the Ninth Circuit ruled that it was unconstitutional to criminalize people for sleeping on public property if there were no available shelter beds, left a lot of unanswered questions. Under what circumstances is it allowed to sweep homeless people? What constitutes adequate shelter?
While the King County Superior Court’s decision helps to define a key piece of local sweeps policy, it does not rule on the biggest unanswered question under Martin v. Boise: What constitutes adequate shelter?
Most cities have interpreted it to mean “any open shelter bed in the area,” whether or not that bed is suitable for the individual being swept. Many advocates have argued that offering shelter that an individual is unlikely to accept is the same as not offering shelter, but it has yet to be argued in front of a judge.
This decision did, however, rule on another open question from Martin v. Boise: Does a civil citation count as criminalizing homelessness? In that previous interview, Baker noted that many cities and counties have opted to issue civil citations when sweeping recalcitrant encampment residents, in hopes of avoiding anything that would be unconstitutional under Martin v. Boise.
“[T]he Court followed existing law that recognizes the issuance of civil citations can result in criminal charges. The Court noted the City’s rules provide for the enforcement of civil and criminal penalties,” Baker wrote.
The city can still appeal, Baker said. As of this writing, the mayor’s office did not respond to an emailed request for comment.
What it can’t do, in the meantime, is “no-notice” sweeps, she said. While the court ruled that some cases still exist where such sweeps are allowable, the city will have to tread very carefully.
“No injunction has [been] issued,” Baker wrote, “but it is difficult to imagine that the City would expose itself to further liability by continuing to operate a policy that has been declared unconstitutional by sweeping individuals and property who are not actually obstructions without offers of shelter.”
Tobias Coughlin-Bogue is the associate editor at Real Change.
Read more of the July 26-Aug. 1, 2023 issue.