News

Jul 01, 2023

City's Primary Tool for Sweeping Encampments Without Notice Ruled Unconstitutional

By Erica C. Barnett King County Superior Court Judge David Keenan ruled against the city of Seattle this week in a case brought by two unsheltered Seattle residents, Bobby Kitcheon and Candace Ream,

By Erica C. Barnett

King County Superior Court Judge David Keenan ruled against the city of Seattle this week in a case brought by two unsheltered Seattle residents, Bobby Kitcheon and Candace Ream, whose tents were repeatedly swept by the city without notice.

In his ruling, Keenan found that although the city has the right to remove tents and other items without notice in some circumstances—for example, if they pose an imminent safety risk or completely block a sidewalk—the city has used an overbroad definition of “obstruction” to unconstitutionally invade people’s homes, destroy their property, and move them from place to place without offering shelter or other services. This invasion of privacy, Keenan wrote, is “no different than if one returned to their single-family stick-built house in any Seattle neighborhood after a personal errand to find that it had vanished.”

“Denying [the plaintiffs] any protected privacy in their homes would be yet one more permission slip to consider them not fully human,” Keenan added.

The ruling could force Seattle to narrow its rules for encampment removals so that they only apply to actual obstructions. (The city provides notice, information about available shelter beds, and property storage for some encampment removals, but those aren’t at issue in this lawsuit.)

“Denying [the plaintiffs] any protected privacy in their homes would be yet one more permission slip to consider them not fully human.”

Under rules established in 2017, the city can remove any “people, tents, personal property, garbage, debris or other objects related to an encampment” if those items are in a public park or on the sidewalk, on the grounds that they inherently constitute an “obstruction” to other people’s use of that public space. The city has routinely used this rule to justify sweeping encampments whether or not they actually obstruct anything—such as a handful of tents located in a secluded, heavily forested area of a public park.

“Since the definition was expanded in 2017, there has been a dramatic increase in obstruction removals, versus encampment removals that were subject to advance notice,” said Jazmyn Clark, director of the ACLU-WA’s Smart Justice Policy Program.

Removals that rely on this overbroad definition of “obstruction” constitute “cruel punishment” under the Washington state constitution, Keenan wrote, “because that definition allows the City to move unhoused people who are not actual obstructions, without offering unhoused people shelter.”

“There were circumstances in which unhoused folks would leave to, say, attend a doctor’s appointment, come back, and their entire home is just gone,” Clark said. “That is so disruptive and destabilizing— and then to have that practice continue over and over again; it just continually harms the folks that are most vulnerable because they have such limited resources to try to be able to start fresh.”

The case involved two unsheltered people who repeatedly lost all their belongings during no-notice sweeps. One of the plaintiffs, Bobby Kitcheon, described going through at least eight sweeps in less than four months, losing his wedding ring, his work boots, family heirlooms, and medication, along with the tent and camping equipment he shared with his wife. Kitcheon said losing his work boots and equipment made it impossible for him to work, and that he and his wife now “feel like they have to be on constant alert and wake up every time someone walks by their home for fear that it is the City about to threaten them with arrest and destroy their property,” according to the lawsuit.

Keenan’s summary judgment is not the end of the road for the lawsuit, which is currently scheduled for trial in September. City Attorney Ann Davison could also choose to appeal the summary judgment ruling. In response to questions, a spokesperson for Davison’s office said, “at this point, the Seattle City Attorney’s Office is evaluating next steps.”