Seattle Must Reform Homeless Encampment Rules

People camping underneath Interstate 5 in Seattle’s Chinatown-International District. An encampment was recently removed just blocks from this location. Photo by the author.

Removals of homeless encampments, often called “sweeps,” cause both economic harm and severe emotional trauma for people who are living unsheltered. Here in Seattle, the controversial practice is carried out by the Human Services Department and the Navigation Team and has not proven to be effective at connecting people with shelter or other services. 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 local government is charged with protecting.

A new bill before City Council aims to address such encampment cleanup procedures, and comes on the heels of a number of high profile encampment removals. The practice of clearing encampments has been going on for years but has drawn public backlash in recent weeks due to circumstances surrounding the COVID-19 pandemic. Recent encampment removals in the Ballard and the Chinatown-International District neighborhoods 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 the practice is sponsored by Council member Tammy Morales (D2) and co-sponsored by Council member Kshama Sawant (D3). The bill would prevent the City 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 Council member Andrew Lewis (D7) 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 reining in 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, Council member 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, Council member Andrew 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 Council member 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.

Council member 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.

What follows is a series of recommendations for improving MDAR 17–01 and FAS 17–01. These recommendations urge lawmakers to fix some very broken policies and to restore some sanity to the encampment outreach process.

For many who are living without permanent housing, there simply is no option other than to reside on public land. The shelter system does not have sufficient capacity to accommodate everyone who is currently living outdoors, and our laws should acknowledge that reality. This point was echoed over and over again by representatives of organizations like REACH, Seattle/King County Coalition on Homelessness, and the Public Defenders Association, all of whom were invited to speak at Wednesday’s City Council meeting.

Given that the City does not provide enough legal places for people to stay (whether that be shelter or just a designated place to pitch a tent without fear of law enforcement recourse) regulations on camping prohibition and encampment removal must take into account that there must be some circumstances under which camping on public land is necessary and acceptable.

To do otherwise is to uphold a system in which every person who is living unsheltered is — for no other reason than their residing within the city — committing an unlawful act. It is a system that criminalizes those who do not have enough wealth to afford access to private land.

MDAR 17–01 and FAS 17–01 share the same Findings section which includes language justifying a sweeping prohibition on public camping. The section serves as the City’s high-level rationale for encampment removals:

The City finds the following conduct on various City properties is a threat to public safety and health and interferes with the public’s ability to use public property for its intended purposes:

1.1.1 The unauthorized entry on certain City property that is closed to the public or is open to the public during certain operating hours or for certain limited purposes; and

1.1.2 Erecting unauthorized structures, tents, or other shelters in locations that create an obstruction or an immediate hazard.

These Findings are problematic because they exaggerate the effects of the conduct described. Certainly camping on public land can in certain circumstances be a “threat to public safety and health” and/or “interfere with the public’s ability to use public property for intended purposes” but is it reasonable to assert that camping must in all circumstances have these effects? For example, is someone living on the margins of the interstate among blackberry bushes and far from any sidewalk a “threat to public safety and health”? Is the public’s intended use of that area being “interfered” with?

The common sense answer to these questions is clearly no. There are many people camping in Seattle who have close to no impact on public spaces and go virtually unnoticed. But MDAR 17–01 does not admit to any circumstances where such camping is permissible. While Finding 1.1.2 excerpted above suggests that only those tents and structures that create an “obstruction” or “immediate hazard” have adverse impacts on the public sphere, the body of MDAR 17–01 allows for the removal of all tents and structures, regardless of the circumstances.

In 2018, the Ninth Circuit Court of Appeals held in the case of Martin v. Boise that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter,” but Seattle’s administrative rules and the attendant regime of enforcement appear to do just that.

If we are to move toward a system that allows people to pursue the very basic human need of shelter, then we must start with the right foundational principles. This means recognizing that camping on public land is not inherently harmful to the public good. The City’s laws and regulations should be revised to include more nuanced Findings that do not overstate the harms caused by camping on public land.

As Finding 1.1.2 excerpted above notes, in some cases encampments can become “hazards” or “obstructions.” This distinction is important because if the City determines that an encampment constitutes an “obstruction” or a “hazard” then virtually all of the regulations in FAS 17–01 — regulations that protect people who are experiencing homelessness — do not apply. From FAS 17–01 Section 4:

Obstructions and immediate hazard encampments may be removed immediately according to applicable laws and rules. The provisions of Sections 5, 6, 7, 8, 9, and 10 of this rule do not apply to removing obstructions and immediate hazard encampments.

The above language acts as a loophole that makes major portions of the administrative rule optional: Section 6 relating to providing encampment residents with 72 hours advanced notice of a removal; Sections 7 and 8 requiring that the City do outreach and offer shelter to residents; and Section 9 pertaining to the City’s handling of residents’ personal property.

If these sections do not apply to “obstruction” removals then the City is depriving residents of those encampments of their due process rights, allowing that they be kicked out of their homes immediately with no offer of shelter and with a reduced standard of care being used while storing or disposing of their personal belongings.

The United States Constitution recognizes an individual’s right to due process before the law, and 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 the case of Martin v. Boise (referenced above) 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.” In spite of this ruling, MDAR 17–01 still allows the City to clear an “obstruction” encampment with no offer of shelter.

Despite the procedure’s unconstitutionality, under current Mayor Jenny Durkan classifying encampments as “obstructions” has become the City’s preferred basis for encampment removals, representing the vast majority of such removals. According to the most recent Navigation Team quarterly report, “obstruction” and “hazard” removals accounted for 292 of the 303 encampments that were removed in Q4 of 2019. Of those 292 removals, almost half (125 or 42.8%) received no advance notice and no outreach prior to their removal.

The City is able to classify most of its encampment removals as “obstructions” because the definition of “obstruction” in FAS 17–01 is vague and open to interpretation:

3.4 “Obstruction” means people, tents, personal property, garbage, debris or other objects related to an encampment that: are in a City park or on a public sidewalk; interfere with the pedestrian or transportation purposes of public rights-of-way; or interfere with areas that are necessary for or essential to the intended use of a public property or facility.

Under what circumstance is an encampment deemed to “interfere with the pedestrian purpose” of a right-of-way? The City won’t say. Even when given the opportunity, the Navigation Team declined to provide details of what they deem to be “obstructions.” When asked by City Council to include in their Q1 report descriptions of the “obstructions” that justified the removal of each of the 292 encampments, the Navigation Team provided no such information, effectively stonewalling Council’s ability to perform their oversight duties. (For more on the Navigation Team report, see this article by Erica C. Barnett).

The language around “obstructions” is perhaps one of the reasons why the Mayor’s office remains forcefully opposed to Council’s recent legislation on encampment removals. While much has been made about the public health provisions that have been included in the bill, the language pertaining to “obstructions” may be more consequential. CB 119796 doesn’t mention “obstructions” or allow for “obstruction removals,” but it does allow for removals in the following narrow circumstances:

C. The path of travel clearance from the encampment is not 4 feet wide or greater for sidewalks, pursuant to the requirements under the Americans with Disabilities Act and the City’s Guidelines in Streets Illustrated, or blocks a curb ramp, or a bike lane;

E. Obstructs an entrance or exit to a building;

This language is much less ambiguous than FAS 17–01 3.4 and could severely curtail the City’s use of the “obstruction” loophole in FAS 17–01 Section 4. Doing so wouldn’t stop encampment removals, but it would go a long way in reinstating the due process rights of encampment residents and force the City to do the hard work of developing robust alternatives to the outright removal of encampments.

The City should amend its regulations to clearly define “obstruction” and enumerate possible avenues for remediating an “obstruction” that do not require a full encampment removal.

Residents of encampments that are the target of City removals often have numerous personal belongings and no means by which to relocate those belongings during an encampment cleanup. While the City is required by Sections 11 and 12 of FAS 17–01 to store the personal property of encampment residents for up to 60 days and to deliver that personal property to the individual upon their request, the Navigation Team does not track the quantity of property stored or retrieved in their quarterly report making it difficult to judge the effectiveness of these measures.

Furthermore, “personal property” as defined by the City for the purposes of encampment removals explicitly excludes many items that people experiencing homelessness might deem important or valuable. From FAS 17–01:

3.5: “Personal Property” means an item that: is reasonably recognizable as belonging to a person; has apparent utility in its present condition and circumstances; and is not hazardous. Examples of personal property include but are not limited to identification, personal papers and documents, tents, bicycles, radios and other electronic equipment, eyeglasses, prescription medications, photographs, jewelry, crutches, and wheelchairs. Personal property does not include building materials such as wood products, metal, pallets, or rigid plastic. The relevant staff member will determine whether an item is personal property, and in cases when the status of an item cannot reasonably be determined in the staff member’s judgment based on the totality of the circumstances, the staff member will treat the item as personal property under this rule.

Building products are not considered personal property, but these items are the very components that make living in a tent for extended periods of time possible. Pallets are often used to elevate tents off the ground in order to keep the floor dry. Metal and rigid plastic (and other building materials not included in the “such as” clause but which are legally fair game according to this definition) are frequently used to protect the roof and walls of a tent from becoming saturated by rain water (potentially leading to mold growth and associated health issues).

According to the FAS 17–01, a determination as to whether an individual’s belongings are indeed their own personal property (or just trash) is left to the sole discretion of “the staff member’s judgement,” ie, the Navigation Team. This allows for an individual’s possessions to be immediately and capriciously discarded without regard for the fact that while certain items may not have “apparent utility” to a Navigation Team member, those items may have great value to someone experiencing homelessness.

In Lavan v. The City of Los Angeles (the 9th Circuit ruling mentioned above) it was established that even if a homeless person had “violated a city ordinance, their previously-recognized property interest is not thereby eliminated.” The ruling went on to note that “the City is required to provide procedural protections before permanently depriving [people experiencing homelessness] of their possessions.”

The City should not be the arbiter of whether an individual has a property interest in their personal belongings, and broad categories of possessions should not be exempt from personal property protections. The City should be prohibited from summary destruction of personal property against the expressed wishes of the property owner. If the City wishes to seize and destroy property that is claimed by an encampment resident, it should be required to first impound any such items in accordance with FAS 17–01 Section 11 and give claimants due process in retrieving those belongings.

Section 13 of FAS 17–01 allows the City to establish “emphasis areas,” ie, locations where the City will post signage, patrol routinely, and remove people who are found camping. According to the FAS rule, “Individuals camping in an Emphasis Area and their encampment-associated personal property may be removed as an obstruction.”

The idea that encampment can be removed “as an obstruction” not because it is actually an “obstruction” but simply by virtue of residing within an “emphasis area” would suggest that “emphasis areas” are (by their very definition) areas that constitute “obstructions.” But this is not the case, as no actual criteria is given for what areas may or may not be designated as “emphasis areas.”

An individual camping on public land either is or is not causing an “obstruction” per the City’s own definition in FAS 17–01 3.4 (however flawed that definition may be). If that individual is causing an “obstruction,” then there is no need to specifically allow an “obstruction removal” in FAS 17–01 13.4. However, if the individual is not causing an “obstruction,” then it is unclear why the city believes they are justified in removing a camper “as an obstruction.” To remove someone “as an obstruction” who does not actually meet the definition of “obstruction” is to strip these words — “remove an obstruction” — of any real meaning and to make clear that those words are actually just a stand-in for the words “remove immediately and without due process.”

If there is a justification for removing encampments expeditiously that is not based on those encampments being “obstructions” or “immediate hazards” then the City should be clear about that justification and not hide behind a misuse of the word “obstruction.”

The use of “obstruction removals” for emphasis areas is especially peculiar given that current emphasis areas (as shown on the City’s “Emphasis Map” website) include huge swaths of densely forested and underutilized land near Interstate 5. Many of these areas seem less likely to interfere with pedestrians, transportation, or public access (some of the key criteria for being considered an “obstruction”) so it is unclear why they require “obstruction removals.”

Section 13 of FAS 17–01 offers little help in elucidating the City’s motives behind designating these specific locations as “emphasis areas.” Should an “emphasis area” be established in locations with high rates of violent crime? Or perhaps in particularly vulnerable neighborhoods? The official regulations provide no intent. FAS 17–01 describes the procedures for enforcing an “emphasis area,” but it does not stipulate any criteria for where the City should be permitted to establish one.

The City’s “Emphasis Map” website states that “emphasis areas” are “places where an encampment has become a consistent problem.” That same website also suggests that the process for designating such areas involves the City making “a determination based on the totality of the circumstances of the particular location.” These criteria are extraordinarily vague: it is unclear which factors hold particular weight among “the totality of circumstances,” which presumably includes… everything.

The City should amend FAS 17–01 to give “emphasis areas” a clear purpose and establish specific, objective criteria that a location must meet in order to receive the designation. The City should aim to make “emphasis area” boundaries only as expansive as they need to be. Further, the City should reinstate due process in these areas, and only conduct the removal of an “obstruction” or “immediate hazard” if the encampment actually meets the appropriate definitions.

Sections 7 and 8 of FAS 17–01 require the City to make offers of shelter alternatives to residents of encampments that will be cleared. FAS 17–01 7.2 states, “The alternatives may include housing programs, shelter programs with or without day programs, authorized encampments, and ‘no-barrier’ authorized shelter or encampment programs.”

A “shelter program without a day program” can in some cases be as minimal as a room with a handful of sleeping mats on the floor. Many shelters prohibit couples from sheltering together, while others do not allow pets. There are many limitations such as a lack of social services or no storage for belongings that make some of the shelter alternatives offered by the Navigation Team an impractical long term (or even short term) solution for many people who are living on the streets.

During Wednesday’s Council meeting, Jessica Kwon, a representative from REACH (an organization that connects homeless people with services) noted that encampment residents often turn down offers of shelter due to restrictive rules or lack of services provided. “… the other shelters it’s either mats on a floor, tight space, lots of people, not enough substance abuse or mental health resources — or no substance abuse or mental health resources. There are a lot of shelters [where] it’s just for overnight, you have to be there at a certain time, you have to wait in line for an hour or more to get in, and there’s the possibility that there won’t be enough beds.”

The fact that homeless individuals are refusing offers of shelter should come as no surprise given the burdens and restrictions that some shelter can come with — and this refusal is born out in the Navigation Team’s data. According to the Navigation Team’s Q1 report, of the 810 unique contacts that were made with people living unsheltered in Q4 of 2019 only 197 were actually referred to shelter. Of those 197 only 45 actually arrived at the shelter within 48 hours. Less than 6% of people affected by the Navigation Team’s cleanup and outreach activities actually want the types of shelter that the Navigation Team has to offer.

If connecting people with shelter is a value that is upheld by FAS 17–01 and by the City agencies that enforce it — if it is indeed one of the very justifications for conducting encampment removals in the first place — then the shelter that is offered must be of sufficient quality that people will accept it. Otherwise the offer of shelter is just an empty gesture, a box to be checked.

Given the devastating impact that encampment cleanups can and do have, it should be a precondition of encampment removals that the City only offer spaces at high quality “enhanced shelters.” FAS 17–01 should be amended to define “enhanced shelter” and Section 7 of FAS 17–01 should establish “enhanced shelter” as the minimum acceptable standard.

A lot of the criticisms of encampment removals have focused on enforcement. Are people actually being offered shelter? Are belongings being stored? Is proper notice being given? But enforcement is not the fundamental issue here. The vague and permissive language of the administrative rules is.

It is the administrative rules that could be followed to a T and still result in peoples’ civil liberties being trampled. It is the administrative rules that fail to require that due process and a minimum standard of care be provided in all circumstances. It is the administrative rules that simply do not prioritize the basic dignity of the people who are living through the trauma of homelessness and have no better option than to live in a tent on the side of a road.

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. Our lawmakers must ensure that human lives and human rights are not just protected but enshrined.

Architect and advocate for affordable housing, density, and for those living unsheltered.

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