Removals of homeless encampments, often called “sweeps,” cause both economic harm and severe emotional trauma for people who are living unsheltered. Sadly, while encampment removals have been defended as a way to protect homeless people from crime and predation, the removals themselves have often violated the very civil liberties that our government officials are charged with protecting.

But that could change if a new bill before Seattle City Council is passed into law. Council Bill 119796 aims to rein in encampment cleanup procedures, and comes on the heels of a number of high profile encampment removals.

While the practice of clearing encampments has been going on for years, it has drawn increased public backlash in recent weeks due to circumstances surrounding the COVID-19 pandemic. Recent encampment removals in Ballard and Chinatown-International District were carried out despite guidance by the CDC to avoid such removals and despite Mayor Jenny Durkan’s own policy stating encampment removals would be suspended.

The proposed legislation to curb encampment cleanups is sponsored by Councilmember Tammy Morales (District 2) and would prevent the City’s Navigation Team from clearing encampments not meeting a narrow set of criteria. Chief among those criteria is a requirement that public health resources be provided to encampment residents before that encampment is removed on the grounds that it constitutes a “public health threat.”

The Mayor’s office has voiced strong opposition to the bill, signalling that it would be dead on arrival if passed. During Council’s deliberations on the bill this past Wednesday at a meeting of the Select Committee on Homelessness Strategies and Investments, Senior Deputy Mayor Mike Fong was asked by committee chair Andrew Lewis (District 7) how the bill’s language could be amended to gain the executive’s support. Fong made it clear that the Mayor’s office was unlikely to support any legislation related to encampment removals saying, “Fundamentally we simply don’t believe that this particular issue with regard to encampment removals is something that should be legislated.”

Without the Mayor’s support, Councilmember Morales’ bill is unlikely to become law. Under the rules of the current emergency proclamation, Council is unable to override a veto by the Mayor, even with a unanimous vote.

In response to the executive’s outright opposition to any legislation that would constrain their current practices, Councilmember Lewis suggested that members of City Council meet with the Mayor’s office to review the administrative rules governing encampment removals. “I want us to dive into and look at a plan or a path to having some kind of consultative conversation about the Multi-Departmental Administrative Rules that currently undergird the Navigation Team: how we can evaluate how they are working; where there’s room for improvement of those rules; and what changes we can make to improve and fix those rules along the lines of the posture that this Council had adopted in the early spring.”

The administrative rules that Councilmember Lewis is referring to are Multi-Departmental Administrative Rule 17–01 (MDAR 17–01) and Department of Finance and Administrative Services Rule 17–01 (FAS 17–01). MDAR 17–01 establishes the legal basis for prohibiting camping within the City while FAS 17–01 defines protocols that the City must follow when conducting an encampment removal.

Councilmember Lewis is right to focus attention on MDAR 17-01 and FAS 17-01 as these two documents have enabled a vast expansion of encampment removals in recent years, an expansion that has been marked by an abject failure to protect the civil rights and basic human dignity of people living unsheltered. And it’s important to stress that the deficiency of the City’s current practices is fundamentally due to the vague and permissive language of the rules and not simply poor enforcement. It is the administrative rules themselves that criminalize homelessness and fail to uphold due process rights, and they serve as an example of what happens when those who are enforcing the law — and not democratically elected representatives — get to write their own regulations.

One of the most egregious sections in the City’s administrative rules creates a loophole that exempts the City from virtually all of the regulations on encampment removals–regulations that exist in the first place to protect the rights of people experiencing homelessness. According to this loophole, if the City deems an encampment to be an “obstruction” then encampment residents can be forced to move with no advanced notice, with no offer of shelter, and with a reduced standard of care being used when storing or disposing of their personal belongings.

This provision would be problematic even if it only applied to legitimate obstructions, but the City has made the situation worse by defining the word “obstruction” vaguely and interpreting it broadly. Under Mayor Jenny Durkan the vast majority of encampment removals have been classified as “obstruction” removals, exempting them from provisions that protect the rights of encampment residents: according to the most recent Navigation Team quarterly report, “obstruction” removals accounted for 278 of the 303 encampments that were removed in Q4 of 2019.

At issue here is not whether an encampment should or should not be removed at all–it’s whether the residents of that encampment have any right to due process. An individual’s right to due process before the law is guaranteed by the United States Constitution, and a number of high profile court cases in recent years have upheld these rights for all people regardless of housing status.

A 2012 ruling by the Ninth Circuit Court of Appeals in the case of Lavan v. The City of Los Angeles concluded that: “The Fourth and Fourteenth Amendments protect homeless persons from government seizure and summary destruction of their unabandoned, but momentarily unattended, personal property.”

More recently, the Ninth Circuit Court of Appeals held in 2018 in the case of Martin v. Boise that “the Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter.” And yet, in spite of this ruling the City’s administrative rules still allow the Navigation Team to clear an “obstruction” encampment with no offer of shelter.

The trauma caused by “obstruction” removals, their likely unconstitutionality, and their blatant disregard for basic civil rights should lead us to demand that such removals only be used in the most extreme of circumstances, if at all. And even then alternatives should exist to a total encampment removal. If the “obstruction” can be cleared without a complete removal of the encampment, then every effort should be made to do so.

If members of City Council and members of the executive are serious about making reforms to the encampment removal process, then they must revisit the language of the administrative rules, word by word. In revisiting these rules, our lawmakers must ensure that human lives and human rights are not just protected but enshrined.

The post is adapted and abbreviated from Anton Dekom’s medium post on the topic. Read that post for more specifics about the administrative changes needed.

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Anton is an architect at Neiman Taber Architects, a mission-based design and development firm that specializes in microhousing and multifamily residential buildings in Seattle. He is also a co-creator of Mighty House, a free, open source tiny house shelter. Anton is a member of AIA Seattle's Public Policy Board and a former co-chair of the Committee on Homelessness. He writes about homelessness on Medium (@adekom).
The Urbanist encourages dialogue on important urban issues through guest contributions. Over the years, we've had dozens of guest authors share their opinions and insights ranging from commentary on current events to community interviews and researched think pieces. If you would like to see your name behind a byline on The Urbanist, feel free to reach out to our Editorial Team at editorial[at]theurbanist[dot]org.

3 COMMENTS

  1. Jules, Thanks for your comments.

    MDAR 17-01 and SMC 18.12 are in agreement with your first point: camping in a public right-of-way is an unauthorized “use” of public land. I don’t dispute that that is the law. The key question for me is what is the appropriate response given that 1) the encampment resident’s intent is not to harm the public welfare and 2) the encampment resident literally has no other options and nowhere else to go.

    In my view, the appropriate response simply cannot be to remove encampments outright, especially when we know full well that encampment residents will just move to a new location. This approach accomplishes nothing other than inflicting trauma, and someone who is forcibly displaced under the current system of removals is likely to continue to live under similar conditions over the long term unless they get the appropriate services… and the City’s own data show that the Navigation Team has an abysmal record for connecting people with those services.

    Encampment removals fail to address the core issues facing people who are living unsheltered, and as such they are a drain on resources that we could be investing in solutions that actually work. You mentioned sanitation and waste–I’m curious if you support efforts to address these issues through the provision of additional public restrooms, waste removal services, and hygiene stations. These interventions would seem to address the root of your concerns in a way that encampment removals do not.

    But these are arguments as to the relative efficacy of encampment outreach and enforcement approaches. My article makes the case that whatever the policy response, at a bare minimum we need to ensure that basic civil rights are not being trampled. And I do believe that such rights are protected, even for those who may have committed a crime. The US Constitution upholds the rights of the accused, whether that be right to counsel, miranda rights, or protections from unreasonable search and seizure. The act of camping on public land doesn’t nullify these rights.

    I mention the Lavan appellate court case, and in the extended version of this article I talk about summary seizure and destruction of property. There’s case law and Constitutional clarity on property rights, but not so much on the idea of a “right to advance notice of an encampment removal” or a “right to an offer of a shelter bed.” The authors of FAS 17-01 clearly thought these were basic protections we should afford to homeless people, but under the current mayor such protections have been bypassed through the use of the “obstruction” loophole. We need clarity here, not administrative rules that are written so as to allow anything and everything. In my view the current system does not adequately protect the rights of people who are living unsheltered, but I don’t expect everyone to share that view. That said, I’ll do what I can to make the case.

  2. The intent of someone camping on public property is the private use of public property. Quibbling about the technicalities is fine — the letter of the law is what we must and should live to. But I do not believe good public policy can be promulgated by ignoring intent. An illegal encampment on public property is an environmental haz-mat site. Urban dwellers created modern plumbing, sewage and garbage disposal systems not for convenience, but out of necessity. My focus will always be to work through the technicalities to remove illegal encampments, rather than empowering and entrenching illegal self-harming behavior by way of convoluted logic. sorry. Disagreeing with your premise that there are civil rights to be protected within the committing of a criminal act.

    • I agree, and I’m also concerned that if the city has no power to remove an encampment, you’ll just see more and more people pitch up tents in more and more places, and it will quickly get out of control. The Fremont Troll, for example, used to be completely filled with tents until one day, the police came in and cleaned them out. Now, it’s a park you can actually walk through.

      Of course, people removed have to have somewhere to go. That’s what shelters are for. If shelters are crowded hotbeds for the coronavirus to spread, there are alternative arrangements the city could do. Empty parking lots could be repurposed as designated camping sites, as could empty parking garages. There are ways to spread out the crowd without allowing people to just set up camp anywhere, with no enforceable rules to stop them.

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