Judge: Save belongings of homeless

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A federal class action lawsuit concerning those who lost property during homeless encampment sweeps in Minneapolis is permitted to go forward in part. Minnesota District Judge Wilhelmina Wright concluded that police cannot trash belongings of people living in homeless encampments, even though the government has a legal right to remove the people living there.

Plaintiffs are nine people experiencing unsheltered homelessness in Hennepin County. They were ejected from public parks and allege that they had their personal property destroyed without adequate notice, just compensation, or due process protections, in violation of the Fourth and 14th Amendments of the U.S. Constitution and the Minnesota Constitution.

In a press release, ACLU-MN Legal Director Teresa Nelson stated, “People who are unhoused have the same rights to be free from unreasonable search and seizure, to privacy and to due process, and those rights must be respected.”

Rebecca Stillman, staff attorney at Mid-Minnesota Legal Aid, told Minnesota Lawyer: “Every person, including persons living in homeless encampments, has constitutional rights that need to be respected. These spaces are people’s homes and communities, and the residents deserve to be treated with dignity. They should not be forced to watch as everything they own, including IDs, medications, family photos, and heirlooms, are scooped up by bobcats and thrown in a dumpster before their eyes, which only results in the repeated traumatizing of these communities.

“And this happens without the Defendants ensuring that the residents have anywhere else to go. As a policy matter, this case also highlights the need for safe and affordable housing that is also accessible and meets people’s needs.”

As a result of the encampment sweeps, the plaintiffs assert that they then had either nowhere to go or were forced to move into crowded shelter spaces where they were at high risk of catching COVID-19.

In 2020, Gov. Tim Walz issued an executive order prohibiting encampment sweeps as it would increase the potential risk and spread of COVID-19. Walz issued a second executive order allowing the government to close homeless encampments if those encampments are threatening health, safety, or security of residents.

In 2020, an encampment at Powderhorn Park swelled to a few hundred residents. It was shut down due to concerns about violence and drug use. The park was cleared up by skid steer, scooping up remaining items and disposing of them in a garbage truck.

One of the plaintiffs, Dennis Barrow, began living in Powderhorn Park because his previous home was crowded and he feared contracting COVID-19. Although he was given notice that he had 72 hours to leave the park, officers allegedly came with a bulldozer just 24 hours later. Although Barrow attempted to gather as many items as he could, he ended up losing his tent, clothing, medications, and court documents. According to the original complaint: “Watching his property destroyed by a bulldozer was traumatizing for Mr. Barrow. He realized, while watching the bulldozer roll over his tent, that he would have to start all over again.”

When the lawsuit was originally filed, Justin Perl, director of litigation at Mid-Minnesota Legal Aid, said, “The city and county’s bulldozer approach is not only cruel, it is shortsighted, counterproductive, and a waste of taxpayers’ dollars. We need a real plan to help these Minnesotans who have nowhere else to go.”

The lawsuit, filed by the ACLU of Minnesota, Mid-Minnesota Legal Aid and Ballard Spahr, was originally filed in October 2020 against a number of defendants including the Minneapolis Park and Recreation Board (MPRB). On Aug. 19, 2022, Judge Wright dismissed claims against the MPRB superintendent and MPRB police chief. She also dismissed a claim that the MPRB violated substantive due process rights, finding that plaintiffs cited no legal authority recognizing a privacy right to sleep on public land when there is no other alternative.

However, Wright denied MPRB’s motion to dismiss on the other claims: that there was unlawful seizure of personal property and a violation of procedural due process. Wright noted that a person living in encampment did not have an objectively reasonable expectation of privacy in their property so they would not be subjected to an encampment sweep. While Wright noted that the government could seize property, she stopped short of allowing those possessions to be thrown into the garbage.

“A temporary deprivation of personal property is different from a permanent deprivation,” Wright wrote. “MPRB Defendants could have achieved their legitimate public welfare goals if they had cleared the homeless encampments without permanently depriving Individual Plaintiffs of their personal property by destroying that property.”

Wright also kept the procedural due process claim alive: Plaintiffs alleged they were not given adequate notice, an opportunity to be heard, or a mechanism to challenge or reclaim their property.

In addition to compensatory and punitive damages, and attorney fees, requested relief includes permanent injunctive relief enjoining defendants from continuing the practice of throwing homeless individuals’ items away during encampment sweeps. The question, then, is what to do in the alternative.

In 2022, state Rep. Aisha Gomez, DFL-Minneapolis, introduced HF 4225. It would require cities to develop policies — such as posting public notice at least 72 hours before an encampment is removed and store personal property from closed encampments for at least 30 days — to deal with homeless encampments in a way that she avows is more humane.

“We have to put some thought and put some parameters in place to make decisions about how to deal with unsheltered homelessness, and really to have policies that treat people humanely even when they’re in really difficult spots in their lives,” Gomez said as she introduced the bill on March 16, 2022.

However, House Deputy Minority Leader Anne Neu Brindley, R-North Branch, raised a concern about how municipalities would deal with storing items, particularly in ones with smaller police departments. “One of the things that I am concerned about is the requirements for local cities to adopt these policies,” she said. That bill did not advance.

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