Thursday, May 23, 2013


Star-Advertiser story on (de)Occupy hearings is a bit incomplete

by Larry Geller

The Star-Advertiser story (Judge won’t block seizure of belongings, Star-Advertiser p. B1, 5/23/2013) reporting on orders issued by Judge J. Michael Seabright as a result of the May 17 hearing on the (de)Occupy case against the City was not complete.

Yes, Judge Seabright declined to issue a preliminary injunction based on the “facial” claim that the City’s stored property ordinance was unconstitutional, but that was only the second half.

Earlier, the parties had reached an agreement which has the force of a court order that prevents the City from seizing and destroying property by dumping it into a garbage truck. That was the “as-applied” challenge, and it is in force right now. It was simply agreed before the May 17 hearing.

So yes, the City is able to continue the raids that Mayor Caldwell described as costing $15,000 a pop. And the City is able to continue providing what is, in effect, a free 30-day storage service. But it is effectively enjoined from seizing property not tagged and destroying the property in garbage trucks.

At the May 17 hearing, the City reported that it is not charging any fee for the impoundment and return of property as the ordinance requires because the City Council had not yet set that up. That meant that the “due process” challenge was not appropriate at this time.

As to the City’s motion to dismiss, this has got to be one of the most complicated orders I’ve seen, as reported in the court docket:

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT re [84] - Signed by JUDGE J. MICHAEL SEABRIGHT on 5/21/13. "Based on the above, the court GRANTS in part and DENIES part Defendants' Motion to Dismiss the SAC. Remaining in this action are Counts IIII, VI-IX, XI, and XII of the SAC as to all Defendants, and Counts XIII and XV as to all Defendants except Shimizu. The remaining federal claims (Counts I-III) stand as to the City to the extent they seek compensatory damages and injunctive relief only, and as to the Individual Defendants in their personal capacities to the extent they seek damages. By June 10, 2013, Plaintiffs may file a Third Amended Complaint as to Count V (conspiracy pursuant to 42 U.S.C. § 1983), Count XIV (negligent supervision and training), and Count XVI (fraud), as well as to Counts XIII (negligence) and Count XV (Trespass to Chattels) as to Shimizu. Plaintiff is notified that a Third Amended Complaint will supersede the SAC. Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the court will treat the SAC as nonexistent. Ferdik, 963 F.2d at 1262. Leave to amend is limited to the claims addressed in this Order; if Plaintiffs wish to assert any new claims, they must comply with Rules 15 and/or 16. If Plaintiffs fail to file a Third Amended Complaint by June 10, 2013, this action will proceed as to the claims remaining in the SAC.

Yikes. SAC is “second amended complaint,” if that helps any. As you see (?), the Court is giving plaintiffs the opportunity to file an amended complaint including the conspiracy charge.

Most important, and not reported in the article, the order on the motion to dismiss recognizes that the plaintiffs have a plausible claim with regard to the City’s actions during the raids:

The SAC outlines numerous alleged instances where Plaintiffs’ property was seized, stored, and/or destroyed without Defendants even following the basic notice requirements outlined in Article 19. These allegations state plausible claims that Defendants violated Plaintiffs’ Fourth Amendment rights (Count I),7 and the due process clause of the Fourteenth Amendment (Count II), and support claims for conversion (Count XI), and replevin (Count XIII).

(“Conversion” refers to an unauthorized act that deprives an owner of personal property without his or her consent. “Replevin” is a common law term for a legal action to recover the possession of items of personal property.)

You’ve probably had enough. The Court’s orders amount to 54 pages. So ok, that’s enough for now.

What the story also omitted is that Friday was just one hearing on the way to trial. It ain’t over yet, in fact, the main event has yet to begin.

In the meantime, the Mayor can continue to spend taxpayer money on his raids, as long as he obeys the law and the City’s own ordinance. But you may be thinking, “there’s a new ordinance permitting immediate seizure.” Reading the orders—if the new ordinance is ever enforced, the parties will most certainly be back in court on it.


What I do not see is the city's requirment for each department of the city to create an administrative rule for every ordinance that effects them, as per city charter. It was The Parks Department job to create the administrative rule for the ordinance.

Correct -- the new ordinance cannot yet be enforced because the administrative rules still need to be completed. One way for the City to stay out of court is to not create the rules and not implement the ordinance...

That's one of the biggest problems surrounding city ordinances. When Judge Seabright finally files his paperwork, it will mean that the City and County workers who enforce Bill 54/O. 11-029 will have to follow the rules outlined by the original bill.

So, I guess that means that the C&C can go and break all sorts of rules -until- a Federal Court tells them that they can't do that anymore. Still, unless there's some kind of independent documentation of city officials, they'll cut corners to line their pockets.

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