University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
Case Name Kincaid v. City of Fresno PB-CA-0005
Docket / Court 06-1445 ( E.D. Cal. )
State/Territory California
Case Type(s) Policing
Public Benefits / Government Services
Attorney Organization ACLU Chapters (any)
Lawyers Comm. for Civil Rights Under Law
Case Summary
Starting in 2005 and continuing for more than a year, the City of Fresno, CA had a policy of immediately seizing and destroying on the spot the personal possessions of homeless individuals during sweeps conducted by the City of Fresno Police Department and City of Fresno Sanitation Department. The ... read more >
Starting in 2005 and continuing for more than a year, the City of Fresno, CA had a policy of immediately seizing and destroying on the spot the personal possessions of homeless individuals during sweeps conducted by the City of Fresno Police Department and City of Fresno Sanitation Department. The City used large compactors to immediately crush the seized possessions. These sweeps were all conducted without warrants and were intended to remove homeless persons, their encampments, and their property from both public and privately owned locations within Fresno, including repeated sweeps on land owned by California Department of Transportation (Caltrans).

Several homeless individuals who had been affected by the policy filed a class-action lawsuit on behalf of themselves and others similarly situated against the City of Fresno, Caltrans, and related officials. The suit was filed in the United States District Court for the Eastern District of California on October 17, 2006. The plaintiffs were represented by attorneys from the ACLU of Northern California, the Lawyers' Committee for Civil Rights, and private counsel. The named plaintiffs had lost possessions to these sweeps, including items critical to their survival such as medication, tents, blankets, and personal documents and records, as well as other irreplaceable items such as photographs and in one instance the ashes of a deceased relative. The plaintiffs alleged that these sweeps, often conducted without any notice, were raids that had the purpose and effect of harassing and removing homeless individuals.

Plaintiffs argued that the sweeps constituted unlawful takings, in violation of the Fifth Amendment, and also violated the Fourth Amendment ban on unreasonable searches and seizures, and their Fourteenth Amendment due process and equal protection rights, 42 U.S.C § 1983, and California statutory and constitutional law. Plaintiffs sought temporary restraining orders and preliminary injunctions enjoining Fresno from conducting the sweeps, a permanent injunction preventing the practice, and a judgment declaring the sweeps and the destruction of the Plaintiffs' property unlawful. They also sought the return of whatever property had not been destroyed, damages of no less than $4000 per incident, punitive and exemplary damages, and attorneys' fees and costs.

The plaintiffs filed a motion for a temporary restraining order on the same day as their complaint. On October 25, the Court (Judge Oliver W. Wanger) granted a restraining order until hearing on the issue of a preliminary injunction could be held. He found that the City had violated the plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights and the equivalent provisions of the Constitution of California. He held therefore that the Plaintiffs' case had a strong likelihood of winning on its merits. The Judge recognized that between 4,400 and 8,800 residents of Fresno, or one to two percent of the City's population, were homeless, and shelter was available for only about 1.4% percent of these individuals, and that despite the City's arguments to the contrary, the existence of shelters did not justify the confiscation of property belonging to homeless persons camping in public. Kincaid v. City of Fresno, 2006 WL 3542732 (W.D. Cal. 2007).

On December 8, 2006, the Court ordered a preliminary injunction, enjoining the City from conducting sweeps that would result in the seizure and destruction of private property without first giving constitutionally adequate written notice of the pending sweep, seizure, and destruction, and a meaningful opportunity for individuals to be heard and to retrieve property prior to its destruction. Kincaid v. City of Fresno, 244 F.R.D. 597 (W.D. Cal. 2007).

On January 12, 2007, the Director of Caltrans, named as a defendant in his official capacity, filed a motion for the claims against her to be dismissed for, among other things, lack of jurisdiction. The Court denied this on March 19, 2007. Kincaid v. City of Fresno, 2007 WL 833058 (W.D. Cal. 2007). This was followed by several months of discovery. On August 14, 2007, the Court certified the class. Kinkaid v. City of Fresno, 244 F.R.D. 597 (N.D. Cal. 2008).

On April 25, 2008, during oral argument Judge Oliver W. Wanger declared that the City's "practice of announce, strike, seize [and] destroy immediately is against the law."

On May 12, 2008 the court issued two opinions, one of which denied various motions for summary judgment filed by both parties on a number of issues, and granted summary judgment in favor of two of the individual defendants in regard to State law claims against them for money damages. The substantial claims of the case were not decided in this opinion. Kinkaid v. City of Fresno, 2008 WL 2038386 (N.D. Cal. 2008). The other May 12 opinion granted in part and denied in part another motion for summary judgment filed by the Plaintiffs against the City defendant, holding that the City of Fresno's raids were unlawful, that any seizure and immediate destruction of property proven at trial would be held to be a violation of the Fourth and Fourteenth Amendments, and that State law established a private right of action against the City with respect to the State law claims. Kinkaid v. City of Fresno, 2008 WL 2038390 (N.D. Cal. 2008).

On July 25, 2008, the Court approved a class-action settlement negotiated by the parties. According to the settlement, the City of Fresno would post written notice at least three days prior to any future sweeps that would involve the removal of personal property, and will store any items of apparent value for ninety days so that might be reclaimed. Caltrans also agreed to comply with the legal principles set forth in the court's preliminary injunction throughout the state.

The Settlement divided the the class members into five subgroups, based on the value of their seized property, whether they were victims of repeated unconstitutional sweeps, whether they were present when the sweeps occurred and actively prevented from reclaiming their property, whether they suffered severe emotional distress or hardship as a result of the sweeps, and other factors.

The City of Fresno agreed to pay $1,000,000 into a Housing Allowance Fund. This fund was established to assist the lawsuit's class members with expenses related to housing, such as security deposits, first and last months rent, or rent payments, or to aid in the purchase a vehicle or medical care. Only members of the third, fourth, and fifth sub-classes would receive assistance from this fund, in amounts of $1500, $3500, or $9000.

The City also agreed to set aside $400,000 in a separate Cash Fund to compensate individuals who suffered the unconstitutional seizure of property. The settlement established a system for filing claims, accounting for the number of times claimants were subjected to the illegal sweeps and their value of the seized property. The minimum and maximum values for claims was $500 and $5000, depending on which sub-class to which the claimant belonged. Claimants could make multiple claims. Caltrans agreed to pay $85,000 into this cash fund.

The City of Fresno agreed to pay $850,000 in legal and costs fees to Plaintiffs, and Caltrans agreed to pay $85,000 of the Plaintiffs fees and costs.

At the time of the most recent report from the Settlement Administrator, March 8, 2012, there was just over $80,000 remaining in the two funds. Administrative costs were keep very low during the life of the settlement, and the funds were effectively distributed to the claimants.

The Court retained jurisdiction over the case for five years in order to assure compliance with the terms of the settlement agreement. The settlement will expire in late July 2013.

Alex Colbert-Taylor - 07/01/2013


compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Issues
Constitutional Clause
Due Process
Equal Protection
Unreasonable search and seizure
Content of Injunction
Develop anti-discrimination policy
Goals and Timekeeping
Implement complaint/dispute resolution process
Monitoring
Preliminary relief granted
Defendant-type
Jurisdiction-wide
Law-enforcement
Sanitation/Public Works
Transportation
General
Housing assistance
Poverty/homelessness
Plaintiff Type
Private Plaintiff
Causes of Action State law
42 U.S.C. § 1983
Defendant(s) California
City of Fresno, CA
Plaintiff Description Homeless residents of Fresno, CA who were subjected to raids in which their personal property was confiscated and immediately destroyed.
Indexed Lawyer Organizations ACLU Chapters (any)
Lawyers Comm. for Civil Rights Under Law
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Declaratory Judgment
Attorneys fees
Damages
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2008 - 2013
Case Closing Year 2008
Case Ongoing No
Docket(s)
1:06-cv-01445-LJO-SKO (E.D. Cal.) 10/17/2006
PB-CA-0005-9001.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Re: Temporary Restraining Order 10/16/2006
PB-CA-0005-0002.pdf | External Link | Detail
Re: Temporary Restraining Order 10/16/2006
PB-CA-0005-0003.pdf | External Link | Detail
Memorandum of Points and Authorities in Support of Motion for Temporary Restraining Order and for Order to Show Cause Re Issuance of a Preliminary Injunction 10/17/2006
PB-CA-0005-0005.pdf | External Link | Detail
Complaint for Declaratory and Injunctive Relief 10/17/2006
PB-CA-0005-0021.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Combined Motion for Temporary Restraining Order and Preliminary Injunction 10/17/2006
PB-CA-0005-0022.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Statement of Decision Re: Plaintiffs' Application for Temporary Restraining Order 10/24/2006 (E.D. Cal.)
PB-CA-0005-0013.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Temporary Restraining Order and Order Re Preliminary Injunction Hearing 10/25/2006 (E.D. Cal.)
PB-CA-0005-0030.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Reply Brief in Support of Motion for Preliminary Injunction 11/07/2006
PB-CA-0005-0006.pdf | External Link | Detail
Statement of Decision and Findings Re: Plaintiffs' Application for a Preliminary Injunction 12/08/2006 (2006 WL 3542732) (E.D. Cal.)
PB-CA-0005-0007.pdf | WESTLAW | External Link | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Motion to Dismiss 01/12/2007
PB-CA-0005-0024.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
First Amended Complaint for Declaratory and Injunctive Relief 02/07/2007
PB-CA-0005-0025.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint for Declaratory and Injunctive Relief and for Damages 02/22/2007
PB-CA-0005-0001.pdf | External Link | Detail
Memorandum Decision and Order Denying Defendant Kempton's Motion to Dismiss, Motion for a More Definite Statement, and Motion to Strike 03/19/2007 (2007 WL 833058) (E.D. Cal.)
PB-CA-0005-0014.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum Decision and Order Granting Plaintiffs' Motion to Certify Class 08/14/2007 (244 F.R.D. 597) (E.D. Cal.)
PB-CA-0005-0008.pdf | WESTLAW| LEXIS | External Link | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Re: Notice of Pendency of Class Action and Plan for Distribution of Class Notice 09/28/2007 (E.D. Cal.)
PB-CA-0005-0031.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Motion for Summary Adjudication as to All or Some of the Causes of Action 02/28/2008
PB-CA-0005-0015.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order 03/19/2008 (2008 WL 752668) (E.D. Cal.)
PB-CA-0005-0018.pdf | WESTLAW | Detail
Document Source: Westlaw
Order Granting in Part and Denying in Part Plaintiffs' Motion for Summary Judgment as to Liability Against the City Defendents 05/09/2008 (E.D. Cal.)
PB-CA-0005-0026.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum Decision 05/12/2008 (2008 WL 2038386) (E.D. Cal.)
PB-CA-0005-0016.pdf | WESTLAW | Detail
Document Source: Westlaw
Memorandum Decision and Order 05/12/2008 (2008 WL 2038390) (E.D. Cal.)
PB-CA-0005-0017.pdf | WESTLAW | Detail
Document Source: Westlaw
Order 05/19/2008 (E.D. Cal.)
PB-CA-0005-0027.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order 05/19/2008 (E.D. Cal.)
PB-CA-0005-0032.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Settlement Agreement Between Plaintiffs and the Plaintiff Class and Defendants City of Fresno, Alan Autry, Jerry Dyer, Greg Garner, Reynaud Wallace, John Rogers and Philip Weathers 06/05/2008
PB-CA-0005-0010.pdf | External Link | Detail
Settlement Agreement Between Plaintiffs and the Plaintiff Class and Defendants Will Kempton, James Province, and Darryl Glenn 06/05/2008
PB-CA-0005-0011.pdf | External Link | Detail
Order Preliminarily Approving Settlement Agreements, Settlement Plan, Notice and Notice Procedure 06/13/2008 (E.D. Cal.)
PB-CA-0005-0033.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Notice of Settlement 06/16/2008
PB-CA-0005-0009.pdf | External Link | Detail
Final Order Approving Settlement 07/25/2008 (E.D. Cal.)
PB-CA-0005-0028.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judgment Upon Approval of Settlement and Order for Entry of Judgment 07/29/2008 (E.D. Cal.)
PB-CA-0005-0029.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
First Report of Settlement Administrator 11/21/2008
PB-CA-0005-0012.pdf | External Link | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges O'Neill, Lawrence Joseph (E.D. Cal.) [Magistrate]
PB-CA-0005-9001
Oberto, Sheila K. (E.D. Cal.) [Magistrate]
PB-CA-0005-9001
Snyder, Sandra M. (E.D. Cal.) [Magistrate]
PB-CA-0005-0018
Wanger, Oliver Winston (E.D. Cal.)
PB-CA-0005-0007 | PB-CA-0005-0008 | PB-CA-0005-0013 | PB-CA-0005-0014 | PB-CA-0005-0016 | PB-CA-0005-0017 | PB-CA-0005-0026 | PB-CA-0005-0027 | PB-CA-0005-0028 | PB-CA-0005-0029 | PB-CA-0005-0030 | PB-CA-0005-0031 | PB-CA-0005-0032 | PB-CA-0005-0033
Monitors/Masters None on record
Plaintiff's Lawyers Alexander, Paul (California)
PB-CA-0005-0001 | PB-CA-0005-0002 | PB-CA-0005-0003 | PB-CA-0005-0005 | PB-CA-0005-0006 | PB-CA-0005-0010 | PB-CA-0005-0011 | PB-CA-0005-0021 | PB-CA-0005-0022 | PB-CA-0005-0025 | PB-CA-0005-9001
Lloyd, Eric M (California)
PB-CA-0005-9001
Risher , Michael Temple (California)
PB-CA-0005-9001
Defendant's Lawyers Bassi, Navtej Singh (California)
PB-CA-0005-9001
Beals, Ronald (California)
PB-CA-0005-0024
Behrens, Bruce A. (California)
PB-CA-0005-0024
Betts, James B (California)
PB-CA-0005-0010 | PB-CA-0005-0011 | PB-CA-0005-9001
Fellenz, Thomas C. (California)
PB-CA-0005-0024
Harris, David Paul (California)
PB-CA-0005-0015 | PB-CA-0005-0024 | PB-CA-0005-9001
Kanne, Francine (California)
PB-CA-0005-0003
McNulty, Cheryl D. (California)
PB-CA-0005-0024
Sanchez, James (California)
PB-CA-0005-0002 | PB-CA-0005-0003
Other Lawyers None on record

- click to show/hide ALL -

new search
page permalink

- top of page -