Case: 1:17-cv-04518 Document #: 63-1 Filed: 02/23/18 Page 1 of 42 PageID #:1173

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UPTOWN TENT CITY ORGANIZERS )

and ANDY THAYER, )
)
Plaintiffs )
) No. 17 CV 4518
v. )
) Honorable Sidney I.
CITY OF CHICAGO DEPARTMENT ) Schenkier, Presiding
OF ADMINISTRATIVE HEARINGS, ) Magistrate Judge
CITY OF CHICAGO DEPARTMENT )
OF TRANSPORTATION, CHICAGO )
POLICE DEPARTMENT and CITY OF )
CHICAGO )
)
Defendants )

PLAINTIFFS’ MEMORANDUM OF LAW IN RESPONSE TO DEFENDANTS’

MOTION TO DISMISS COUNTS II-VI OF PLAINTIFFS’
SECOND AMENDED COMPLAINT

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................1

ARGUMENT ........................................................................................................2

Standard of Review ...............................................................................................2

I. UTCO has Standing to Bring Counts II-VI Against the City of

Chicago .......................................................................................................2

A. UTCO has individual standing sufficient to assert Counts

II-VI of the Complaint ....................................................................3

B. UTCO has associational standing sufficient to assert

Counts II-VI of the Complaint .......................................................5

C. UTCO has third-party standing sufficient to assert

Counts III – IV of the Complaint ....................................................7

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II. The Complaint Adequately Pleads Official Action By the City of

Chicago .......................................................................................................9

III. Plaintiffs Have Adequately Pled a First Amendment Violation .............. 11

A. Plaintiffs engaged in quintessential acts of speech .......................12

B. The City’s actions were not a valid time, place, and

manner regulation ..........................................................................14

IV. UTCO has Adequately Pled a Violation of the Eight

Amendment ................................................................................................17

A. The City effectively criminalizes homelessness ............................17

B. The permit requirements of MCC §§10-28-010 et.seq.

criminalize the status of homelessness, not conduct ....................19

C. Insufficient shelter space is relevant to Plaintiffs’ Eighth

Amendment claims ..........................................................................21

V. UTCO has Adequately Pled a Violation of the Fourth

Amendment ................................................................................................23

A. The homeless have a protected privacy and property

interest under the Fourth Amendment .........................................23

B. The City’s interests do not outweigh the interests of

homeless individuals in preventing the search and
seizure of their property ..................................................................26

VI. UTCO has Adequately Pled a Violation of the Fifth and

Fourteenth Amendments ...........................................................................29

VII. UTCO has Adequately Pled a Violation of Illinois Bill of Rights

for the Homeless Act .................................................................................34

CONCLUSION ......................................................................................................35

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TABLE OF CASES

Albiero v. City of Kankakee, 122 F.3d 417 (7th Cir. 1997) ...............................30

Atkins v. City of Chicago, 631 F. 3d 823 (7th Cir. 2001) ...................................14

Belcher v. Norton, 497 F.3d 742 (7th Cir. 2007) ...............................................33

Bell v. Burson, 402 U.S. 535 (1971) ..................................................................31

Brokaw v. Mercer Cty., 235 F.3d 1000 (7th Cir. 2000) .....................................30

Brown v. Louisiana, 383 U.S. 131 (1966) .........................................................13

Calhoun v. Ramsey, 408 F. 3d 375 (7th Cir. 2005) ...........................................10

Chortek v. City of Milwaukee, 356 F.3d 740 (7th Cir. 2004) ..............................9

City of Watseka v. Illinois Public Action Council, 796 F.2d 1547

(7th Cir.1986) .....................................................................................................16

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) .............................31

Connecticut v. Doehr, 501 U.S. 1 (1991)............................................................31

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) ......15

DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189

(1989) ..................................................................................................................33

DiMa Corp. v. Town of Hallie, 185 F. 3d 823 (7th Cir. 1989) ...........................16

Forsyth v. Nationalist Movement, 505 U.S. 123 (1992) ....................................15

Freeman v. Morris, 2011 U.S. Dist. LEXIS 141930 (D. Me. 2011) ..................13

Fusari v. Steinberg, 419 U.S. 379 (1975) ..........................................................31

Garner v. Louisiana, 368 U.S. 157 (1961).........................................................13

Gilbert ex. rel. James v. Ross, 2010 WL 145789 (N.D. Ill. Jan. 11, 2010) .......10

Goldberg v. Kelly, 397 U.S. 254 (1970)..............................................................31

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Gregory v. Chicago, 349 U.S. 111 (1969)...........................................................13

Haley v. State, 696 N.E. 2d 98 (Ind. Ct. App. 1998) .........................................25

Hardeway v. City of Chicago, No. 91 C 0041, 1991 WL 203857 (N.D. Ill. Oct.
4, 1991) ...............................................................................................................11

Hecker v. Deere & Co., 556 F. 3d 575 (7th Cir. 2009) ..........................................2

Hefferman v. Bass, 467 F.3d 596 (7th Cir. 2006)..............................................11

Heffron v. Int’l Soc. For Krishna Consciousness, Inc., 452 U.S. 640
(1981) ..................................................................................................................16

Holstein v. City of Chicago, 29 F.3d 1145 (7th Cir. 1994) ................................32

Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333

(1977) ................................................................................................................5, 6

International Union v. Brock, 477 U.S. 274 (1986) ............................................7

Jamison v. Texas, 318 U.S. 413 (1943) .............................................................13

Joel v. City of Orlando, 232 F3d 1353 (11th Cir. 2000)....................................22

Jones v. City of Los Angeles, 444 F.3d. 1118 (9th Cir. 2006) ....................20, 21

Justin v. City of Los Angeles, 2000 U.S. Dist. LEXIS 17881 (C.D. Cal. 2000) 27

Katz v. United States, 389 U.S. 347 (1967) .......................................................24

Kuba v. 1-A Agr. Ass’n, 387 F.3d 850 (9th Cir. 2004) .......................................16

Lavan v. City of Los Angeles, 797 F. Supp. 2d 1005 (C.D. Cal. 2011)..............25

Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2015) .............. 25, 27, 32

Liska v. Dart, 60 F. Supp. 3d 889 (N.D. Ill. 2014) ..............................................9

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...........................................3

MainStreet Org. of Realtors v. Calumet City, 505 F.3d 742 (7th Cir. 2007) ......4

Mathews v. Eldridge, 424 U.S. 319 (1976) ........................................................30

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Maxwell v. Cty. of Cook, No. 10 CV 00320, 2011 WL 4639530

(N.D. Ill. Mar. 17, 2011).....................................................................................10

Monell v. Dept’t of Soc. Services, 436 U.S. 658 (1978) .................................. 9-10

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) ................................5

NAACP v. Button, 371 U.S. 415 (1963) .............................................................16

Occupy Columbia v Haley, 866 F. Supp. 2d 545 (D.S.C. 2011) .......................13

Occupy Ft. Myers v. City of Ft. Myers, 882 F. Supp. 2d 1320

(M.D. Fla. 2011) .................................................................................................13

Occupy Minneapolis v. County of Hennepin, 866 F. Supp. 2d 1062

(D. Minn. 2011) ..................................................................................................13

Paine v. Cason, 678 F.3d 500, 510 (7th Cir. 2012) ...........................................33

Pennell v. City of San Jose, 485 U.S. 1 (1988) ....................................................4

People v. Shafer, 946 P.2d 938 (Colo. 1997) ......................................................25

Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37 (1983) ...15

Porter v. DiBlasio, 93 F.3d 301 (7th Cir. 1996) ................................................32

Pottinger v. City of Miami, 810 F. Supp. 1551

(S.D. Fla. 1992) .................................................................1, 10, 18, 22, 26, 27-28

Riano v. McDonald, 833 F.3d 830 (7th Cir. 2016) ............................................30

Sanders v. Sheehan, 2010 WL 2990121 (N.D. Ill. July 26, 2010) ....................10

Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981) ....................................16

Singleton v. Wulff, 428 U.S. 106 (1976) .......................................................... 7-8

Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) .................................31

Soldal v. Cook County, 506 U.S. 56 (1992) .......................................................24

South Dakota v. Opperman, 428 U.S. 364 (1976) .............................................24

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Spence v. Washington, 418 U.S. 405 (1974) ......................................................12

Stanfield v. Dart, 2011 WL 1429172 (N.D. Ill. Apr. 14, 2011) .........................10

Taylor v. Louisiana, 370 U.S. 154 (1962) .........................................................13

Texas v. Johnson, 491 U.S. 397 (1989).................................................. 12, 14, 16

Thornhill v. Alabama, 310 U.S. 88 (1940) ........................................................13

Tieg Alexander, et al. v. City of Chicago, 2012 WL 4458130

(Ill. Cir. Ct. Sep 27, 2012) ..................................................................................13

Tobe v. City of Santa Ana, 9 Cal. 4th 1069 (1995)............................................20

UFCW Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996) ............................3

United States v. Gooch, 6 F.3d 673 (9th Cir. 1993) ....................................24, 25

United States v. Grace, 461 U.S. 171 (1983) ...............................................13, 15

United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993) ........31, 32

Veterans for Peace Greater Seattle, Chapter 82 v. City of Seattle,

2009 WL 2243796 (W.D. Wash. July 24, 2009) ................................................19

Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011)........................................2

Ward v. Rock Against Racism, 491 U.S. 781 (1989) .........................................15

Warth v. Seldin, 422 U.S. 490 (1975) ..............................................................4, 5

Weinberg v. City of Chicago, 310 F.3d 1029 (7th Cir. 2002) ......................16, 17

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INTRODUCTION

[Individuals] rarely choose to be homeless. They become homeless due

to a variety of factors that are beyond their control. In addition, plaintiffs
do not have the choice, much less the luxury, of being in the privacy of
their own homes. Because of the unavailability of low-income housing or
alternative shelter, plaintiffs have no choice but to conduct involuntary,
life-sustaining activities in public places. Pottinger v. Miami, 810 F.
Supp. 1551, 1564 (S.D. Fla. 1992)

Plaintiffs allege that the City has adopted a policy prohibiting homeless

people from placing any of their personal belongings on any “public way” (street,

sidewalk, parkway, alley, etc.) anywhere in the city. If they do so, they risk arrest,

tickets, and summary seizure and destruction of their property. As homeless people,

by definition, do not have a home, placing their personal belongings on the public

way is inevitable. They have nowhere else to keep their property as they go about

their day. The City has thus effectively criminalized the status of being homeless.

The complaint1 sets out the operative facts as of November 9, 2017, the date of

filing. At that time, the City’s enforcement of its newly announced city-wide ban on

the use of the public way by people without homes was focused on the area

immediately around the viaducts, which were the original focus of this case.

However, subsequent to filing, the City has expanded enforcement of its prohibition

to people who are homeless throughout Chicago by unlawfully confiscating homeless

individuals' property and ousting them from public spaces.2

1 All references to “complaint” or “par. ___” are to the Second Amended Complaint, Dkt. 48, unless
otherwise specified.
2
As recent news reports indicate, the City has launched a campaign to clear the homeless from
beneath expressway overpasses and street viaducts. The confiscation and destruction of homeless
peoples’ possessions (not just tents, but all personal possessions) beneath the Kennedy Expressway
at Belmont in frigid weather, See “City workers accused of tossing out homeless people’s belongings,”
http://wgntv.com/2018/01/03/city-workers-accused-of-tossing-out-homeless-peoples-belongings/,
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It is also important to note that the City has abandoned its claim that the

lack of a “permit” was the problem. Rather, it justified removal of people from the

area around the viaducts by citing an ordinance (meant to apply to businesses

unloading trucks) which bars people from storing property on the public way.

ARGUMENT

Standard of Review

In assessing a motion to dismiss, the Court must “construe all of the

plaintiff’s factual allegations as true, and must draw all reasonable inferences in

the plaintiff’s favor.” Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011); Hecker

v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009).

I. UTCO has Standing to Bring Counts II-VI Against the City of

Chicago.

Defendant does not contest that Andy Thayer has standing to assert Counts I

(denial of Permit) and II (denial of First Amendment rights); Mr. Thayer admits

that he does not have standing to assert Counts III-VI. Thus, we focus on UTCO’s

standing. The U.S. Supreme Court has acknowledged several forms of standing

applicable to organizational plaintiffs such as UTCO: individual standing,

associational standing, and third-party standing.

reported by WGN News on January 4, 2018..The same confiscation and destruction of homeless
persons’ possessions occurred at North Oakley Boulevard and West Hubbard Street. See “Call to
clean up ‘hellish viaducts’ disrupts homeless community;” http://abc7chicago.com/society/call-to-
clean-up-hellish-viaducts-disrupts-homeless-community/2758043/ as reported by ABC7 News on
December 8, 2017. This recent spate of confiscation and destruction of the homeless’ property has
also generated another lawsuit. See “In test of state law, Chicago homeless couple sue city, alleging
property rights violated;” http://www.chicagotribune.com/news/local/breaking/ct-met-homeless-
harassment-suit-20180205-story.html as reported by the Chicago Tribune on February 7, 2018.

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UTCO’s objectives are to raise awareness of homelessness across the City of

Chicago, provide services to homeless individuals, and advocate for those who have

been excluded from mainstream society. par. 6. As an organization, UTCO believes

that ending homelessness is a political, societal, and moral responsibility that can

only be confronted when homeless individuals come out of the shadows and into

open public space. par. 6. To achieve these objectives, UTCO gives tents and

supplies to homeless individuals. par. 19. UTCO also engages in public

demonstrations to raise awareness regarding homelessness in the City of Chicago.

pars. 19 and 55. Throughout the course of events detailed in the complaint, UTCO

members assisted homeless UTCO members and non-members in relocating when

the City of Chicago forced them out of their tent encampments. par. 46. The City’s

conduct has resulted in both direct injury to UTCO and injury to UTCO’s members.

A. UTCO has individual standing sufficient to assert Counts II-VI

of the Complaint.

There are three elements that a plaintiff must prove in order to have

standing. UFCW Local 751 v. Brown Group, Inc., 517 U.S. 544, 551 (1996): First,

the organization must plead an injury in fact, which is “concrete and particularized”

and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992) (internal quotations omitted). Injury in fact

“requires more than an injury to a cognizable interest. It requires that the party

seeking review be himself among the injured.” Id. at 563. Second, a causal

connection is required. This means that the injury alleged must be fairly traceable

to the defendant’s complained-of conduct. Id. Third, it must be “likely, as opposed to

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merely speculative, that the injury will be redressed by a favorable decision.” Id.

(internal quotations omitted).

“All that a plaintiff need show to establish [Article III] standing is a

reasonable probability—not a certainty—of suffering tangible harm unless he

obtains the relief that he is seeking in the suit.” MainStreet Org. of Realtors v.

Calumet City, 505 F.3d, F.3d 742, 745 (7th Cir. 2007) (citing Pennell v. City of San

Jose, 485 U.S. 1, 8 (1988)). “There is no question that an association may have

standing in its own right to seek judicial relief from injury to itself and to vindicate

whatever rights and immunities the association itself may enjoy,” so long as the

above requirements are established. Warth v. Seldin, 422 U.S. 490, 511 (1975).

UTCO has established all three of these elements.

The City of Chicago has seized and threatened to seize the tents and other

materials UTCO provided. When this property is taken from the people UTCO

serves, the organization suffers a direct injury because it needs to fundraise to

attempt to replace at least some of the confiscated property.

UTCO is also injured when the City threatens to use the power of arrest or

administrative citation to force homeless individuals from public spaces. This has

lead to the dispersal of homeless individuals making it much more difficult, and in

many instances impossible, for UTCO to perform its mission as it cannot readily

find the people it is attempting to serve. UTCO has also expended time and assets

moving homeless who were constantly displaced per the City’s policies. Accordingly,

the organization is directly injured by the City’s conduct towards property it

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supplies and in its ability to provide services to homeless people.

B. UTCO has associational standing sufficient to assert Counts II-

VI of the Complaint.

Associational standing3 asserted by an association or organization as a

representative of its members is derived from the standing of individual members.

“Even in the absence of injury to itself, an association may have standing solely as

the representative of its members.” Warth v. Seldin, 422 U.S. 490, 511 (1975).

The idea that an organization has standing to assert its members’ injury has

roots in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958),where the

Supreme Court held that the organization had standing to pursue a claim that its

members’ Fourteenth Amendment rights had been violated. If the organization’s

“rank-and-file members are constitutionally entitled” to a right, “it is manifest that

this right is properly assertable by the Association . . . [the organization] is but the

medium through which its individual members seek to make more effective the

expression of their own views.” Id.

The Supreme Court has since refined this test. If at least one individual

member of the association has standing, the organization can have standing as a

representative of its members if it meets the three-part test for associational

standing first outlined in Hunt v. Washington State Apple Advertising Commission:

An association has standing to bring suit on behalf of its members when:

(a) its members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the organization's

3 The cases sometimes alternatively refer to associational standing as “organizational standing,”

“representative standing,” or “group standing.” For the purposes of this memo, “associational
standing” is used, except when a court opinion using a different term is directly quoted, in which
case the term used by the court is used.

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purpose; and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit. 432 U.S.
333, 343-4 (1977).

UTCO meets all of the Hunt requirements in regard to the violation of its

members’ First Amendment, Fourth Amendment, Fifth Amendment, Eighth

Amendment rights and their rights under the Illinois Homeless Act. At least one of

UTCO’s members suffered direct harm from the City’s policies and conduct. (e,g.,

seizure of unidentified homeless UTCO members’ belongings, arrest of UTCO

member, general displacement of various UTCO homeless members, etc.). The

complaint outlines numerous injuries that have already occurred and these same

injuries continue to occur.

UTCO’s organizational mission to protect homeless individuals and to

promote homeless visibility is directly in line with the legal claims advanced in this

case. Additionally, since UTCO is already established as an outreach and advocacy

body for the homeless in Chicago it is well-situated to bring this suit.

Participation of individual members is needed if the claim requires

“individualized proof;” however, if individualized proof is not required, the case can

be “properly resolved in a group context.” Hunt, 432 U.S. at 344. The complaint is

asking for injunctive and declaratory relief. The City’s policy of confiscating all

property owned by any homeless person if placed on any public way anywhere in

Chicago is equally applicable to all homeless people in Chicago. Neither the claims

asserted nor the relief requested requires participation of individual UTCO

members.

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This litigation seeks to protect the civil rights of homeless individuals that

are being displaced and harassed due to the City of Chicago’s policies and practices.

The Supreme Court recognized in International Union v. Brock, that there are

advantages to both the individuals represented and to the judicial system as a

whole when suits are brought by associations on behalf of their members,

acknowledging that the forces that bring together individuals to form an association

in the first place guarantee at least to some extent that the association will work to

promote the individual members’ interests. Brock, 477 U.S. 274, 289-290 (1986).

C. UTCO has third-party standing sufficient to assert Counts III –

IV of the Complaint.

Even if this Court does not find that UTCO had suffered individual injury or

that UTCO has not pled sufficient facts to support its allegation that at least one of

its members has been injured, granting UTCO standing as a third party is

warranted in this case.

The Supreme Court has long held that a third party may assert the

constitutional rights of aggrieved individuals if there are significant obstacles that

could prevent the individuals from asserting their own rights. Generally, one may

not claim standing in court to vindicate the constitutional rights of some third

party; however, the Supreme Court acknowledged in Singleton v. Wulff, 428 U.S.

106 (1976) that there are exceptions to this general rule.

In Singleton the Court held that physicians were entitled to bring a claim on

behalf of their patients over inadequate Medicaid funding for abortions, because

significant obstacles existed that prevented the patients from litigating this claim

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on their own behalves. The Court articulated two considerations that should be

examined prior to allowing a suit to proceed based upon third-party standing.

Firstly, a court should be wary about adjudicating the rights of persons not party to

the litigation as it may be that the holders of those rights either do not wish to

assert them or will be able to enjoy them regardless of whether the third-party

litigant is successful or not. Singleton, 428 U.S. at 113-114. Secondly, generally, the

holders of the rights are the most effective proponents of their own rights and as the

courts depend on effective advocacy, they “should prefer to construe legal rights only

then the most effective advocates of those rights are before them.” Id. When

determining whether a third party has standing, a court should examine (1) the

relationship of the litigant to the person whose rights are being asserted and (2) the

ability of the third party to assert his own right. Id. at 114-115. Justice Blackman

recognized that when “it may be that a class could be assembled, whose fluid

membership always included some [individuals] with live claims. But if the

assertion of the right is to be ‘represented’ to such an extent anyway, there seems

little loss in terms of the effective advocacy from allowing is assertion by a [third

party].” Singleton, 428 U.S. at 117-118.

In this case, UTCO should be granted third party standing, as it meets both

of the Singleton criteria. First, from its inception, UTCO has had as its sole reason

for being to assert and protect the rights of those who are homeless. Second, UTCO

seeks to vindicate the rights of homeless individuals in the City of Chicago, a

population that, as this Court acknowledged in its ruling on plaintiffs’ motion for a

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preliminary injunction, is “far from static.” Defendants’ Ex. 1, pg 6:14-15. In other

words, a specific individual may be living in a tent one day, staying in a shelter

another night, sleeping on someone’s couch a third night, and back on the street the

fourth night. Locating one individual who would remain unhoused for the entire

course of this case would prove difficult at best, and might well prove impossible.

Significant obstacles, including transportation, location, and time constraints, not to

mention a steady address where the person could receive communications from a

Court, opposing counsel, or their own attorneys. These impediments prevent people

who are homeless from fully participating in every step of this litigation. It is thus

impractical and unjust to require that people who are homeless must be able to

participate in a case personally before their rights can be protected. In contrast,

UTCO has the ability, resources, and commitment to see this important litigation

through to its conclusion.

II. The Complaint Adequately Pleads Official Action By the City of

Chicago.

The Complaint contains sufficient allegations for Plaintiffs to move forward

on their Monell claims as to Counts II-VI. To state a claim for Monell liability,

Plaintiffs must allege factual allegations that plausibly support one or more of three

things: “(1) an express policy that causes a constitutional deprivation when

enforced; (2) a widespread practice, that, although unauthorized, is so permanent

and well-settled that it constitutes a ‘custom or usage’ with the force of law; or (3)

an allegation that a person with final policymaking authority caused the injury.”

Liska v. Dart, 60 F. Supp. 3d 889, 905 (N.D. Ill. 2014) (citing Chortek v. City of

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Milwaukee, 356 F.3d 740, 748 (7th Cir. 2004)).

Plaintiffs have alleged that the actions in the complaint were taken pursuant

to the City’s express policy, and that is all that is required at this early stage. See

Maxwell v. Cty. of Cook, No. 10 CV 00320, 2011 WL 4639530, at *9 (N.D. Ill. Mar.

17, 2011) (Schenkier, J.) (alleging the policy and practice of the Cook County

Sheriff); Gilbert ex. rel. James v. Ross, 2010 WL 145789, at *2 (N.D. Ill. Jan. 11,

2010); Sanders v. Sheehan, 2010 WL 2990121, at *4 (N.D. Ill. July 26, 2010) at *2

n.; Stanfield v. Dart, 2011 WL 1429172, *4-5 (N.D. Ill. Apr. 14, 2011); Calhoun v.

Ramsey, 408 F. 3d 375, 380 (7th Cir. 2005).

In Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), the district

court enunciated the Monell standard with respect to assertions by the homeless of

municipal liability. In Pottinger, the court held that in order to establish municipal

liability it is sufficient to allege that Miami knew or should have known of the

arrests and violations of property rights and it failed to stop such conduct. Id. at

1561. Likewise, the Chicago Police Department, Department of Streets and

Sanitation and other city agencies continue to threaten arrest and seize the

homeless’ property. It is not conceivable, given the extensive publicity of this case

and other seizures of the homeless’ property, that policy makers in those

departments or the city administration did not know of such conduct.

Here, Plaintiffs plead ample evidence. The complaint recounts a series of

repeated actions by dozens of City employees over multiple days. See Cf. Maxwell,

2011 WL 4639530 at *9 (“The frequency of these alleged incidents, within a

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relatively short time-frame, lends enough factual support to Mr. Maxwell's claim

that the Sheriff's Office instituted a custom and practice”). Moreover, some of the

conduct involved coordinated actions by multiple City of Chicago agencies, including

the CPD and Streets and Sanitation. This further supports an inference that this

was an effort by the City itself, rather than the unauthorized actions of an

individual agent. Likewise, the City’s issuance of the MCM permit coupled with its

refusal of the Thayer permit is evidence of intentional action by those who are

authorized to make policy for the City. Finally, Plaintiffs’ allegations (pars. 74, 140,

158, and 159) that barring people from placing their possessions on the public way

reflected the City’s policy must be taken as true.4

Nothing more is required at this stage, when all inferences are drawn in

Plaintiffs’ favor. See, e.g., Hardeway v. City of Chicago, No. 91 C 0041, 1991 WL

203857, at *6 (N.D. Ill. Oct. 4, 1991) (without benefit of discovery, allegation of

“some facts supporting both the existence of a policy and a causal link” between

policy and injury sufficed to state Monell claim). “Notice is what counts. Not facts;

not elements of ‘causes of action’; not legal theories.” Hefferman v. Bass, 467 F.3d

596, 600 (7th Cir. 2006).

III. Plaintiffs have Adequately Pled a First Amendment Violation.

Plaintiffs’ claim for violations of the First Amendment easily meet the

4 This is not mere conjecture. The District Commander stated, on video, that the directive to remove
the property of people who were homeless from the public way anywhere in Chicago was the policy of
“the City” not his personal policy. Defendants may try to prove that the Commander was incorrect,
but his statement is clearly sufficient to satisfy plaintiffs’ burden at the pleading stage. See also, par.
74 of the complaint.

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pleading requirements at the motion to dismiss stage.

A. Plaintiffs engaged in quintessential acts of speech.

Most obviously, plaintiffs have alleged that the tents which the City removed

had signs posted on them stating “Homes Not Shelters,” “Stop Harassing the

Homeless,” and other similar messages. Many residents and bystanders chanted

together as tents were being removed: “Stop Harassing the Homeless.” It is hard to

conceive of more explicit speech. But beyond the signs, the tents were, in

themselves, symbolic speech.5 The Supreme Court has long recognized that First

Amendment protection “does not end at the spoken word.” Texas v. Johnson, 491

U.S. 397, 404 (1989). Expressive conduct that is symbolic speech is clearly entitled

to First Amendment protections. Id. In Spence v. Washington, 418 U.S. 405 (1974),

the Supreme Court set forth two factors to consider in determining whether such

expressive activity falls under First Amendment protection: 1) whether the actor

intended to convey a particularized message, and 2) a great likelihood “that the

message would be understood by those who viewed it.” 418 U.S. 405, 409-411. The

test for symbolic speech thus first looks to the intent of the speaker and then to the

perception of the audience. Id.

Occupation encompasses both traditionally protected means of speech and

the symbolic speech which UTCO utilized to spread its political message. As a

general matter, the physical act of occupying space is necessary in order to engage

5The City contends that the mixture of traditional speech and expressive conduct diminishes the
underlying the apparentness of UTCO’s message. Dkt. 62, at 15. This argument substantially
undermines First Amendment rights by mandating that protestors choose either expressive conduct
or traditional speech, lest the Government misinterpret their message.

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in conventional forms of protected speech such as chanting, picketing, leafletting,

displaying signs, and banners. See U.S. v. Grace, 461 U.S. 171, 176 (1983) (“There is

no doubt that, as a general matter, peaceful picketing and leafletting are expressive

activities involving ‘speech’ protected by the First Amendment.”); Gregory v.

Chicago, 349 U.S. 111, 112 (1969) (marching); Jamison v. Texas, 318 U.S. 413

(1943) (distribution of handbills); Thornhill v. Alabama, 310 U.S. 88 (1940)

(picketing on private land). By maintaining a consistent presence in a public space,

the tent city encampment created a platform for an otherwise diffuse and

historically vanished population to be heard on matters of their human rights.

Moreover, the act of spatial occupation has a rich history as protected speech,

particularly with regard to the civil rights movement. See Brown v. Louisiana, 383

U.S. 131, 133 (1966) (peaceful sit-in at public library with segregated services);

Garner v. Louisiana, 368 U.S. 157, 174 (1961) (sit-in at a segregated lunch counter);

Taylor v. Louisiana, 370 U.S. 154 (1962) (African-Americans maintaining a

presence in “whites only” waiting room at bus station). In the context of the Occupy

movement, district courts around the country have found overnight encampments

on public lands to be symbolic speech, worthy of First Amendment protection.6 And,

here, in Chicago, there is a longstanding history of using occupation to highlight

matters of public concern. Tieg Alexander, et al. v. City of Chicago, 2012 WL

4458130, (Ill.Cir.Ct. Sep 27, 2012) (detailing the history of overnight protest in

6
Occupy Columbia v Haley, 866 F. Supp. 2d 545, 557-58 (D.S.C. 2011); Freeman v. Morris, 2011 U.S.
Dist. LEXIS 141930, 2011 WL 6139216, at *6-7, (D. Me. 2011); Occupy Minneapolis v. County of
Hennepin, 866 F. Supp. 2d 1062, 1069 (D. Minn. 2011); Occupy Ft. Myers v. City of Ft. Myers, 882 F.
Supp. 2d 1320, 1328 (M.D. Fla. 2011).

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Grant Park).

Conduct-based speech carries the potential to communicate a particular

message that can impact an audience in a more profound and lasting way than just

the written or spoken word. Here, the Tent City contained sufficient

communicative elements to entitle it to First Amendment protection. Johnson, 491

U.S. at 404. Tent City occupants used their encampment to amplify their message.

par. 18. Signs were posted. par. 19. Passer-bys encountered the message and were

handed leaflets when there was an ongoing campaign. With regard to the post-

eviction violations of Plaintiffs’ First Amendment rights, the complaint clearly plead

the meaning and message of tent encampments. pars. 18, 19.

When the Tent Cities remained in the public eye, UTCO’s goal was to express

a message to the rest of the city that there are people who need help. In an era

where corporate speech predominates, it is increasingly difficult for those without

resources to be heard in the marketplace of ideas. Visibility is itself symbolic

speech. Now, with residents scattered to different locations throughout the city

there is no central, public focus on the issue of homelessness. At this stage of the

proceedings, construing all alleged facts as true, Plaintiffs have sufficiently alleged

facts that the Tent Cities constituted expressive conduct. Atkins v. City of Chicago,

631 F.3d 823, 832 (7th Cir. 2011).

B. The City’s actions were not a valid time, place, and manner
regulation.

The City’s actions fail First Amendment scrutiny because there is insufficient

evidence that the City’s asserted interests are actually implicated here and there

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exist no ample alternatives. To begin, the City concedes that the Stewart Mall space

is a public forum. Dkt. 62, at 7. A “principal purpose of traditional public fora is the

free exchange of ideas.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473

U.S. 788, 8088 (1985). Accordingly, “the rights of the state to limit expressive

activity are sharply circumscribed” therein. Id.

Here, the parties agree that in a public forum a content-neutral regulation is

subject to reasonable “time, place and manner” regulation. Yet, the regulation will

only pass constitutional muster if it is narrowly tailored to serve a significant

government interest, and leaves open ample alternative channels of communication.

U.S. v. Grace, 461 U.S. 171, 177 (1983) (quoting Perry Ed. Assn., 460 U.S. at 45).

Moreover, “[a] government regulation that allows arbitrary application is inherently

inconsistent with a valid time, place, and manner regulation because such

discretion has the potential for becoming a means of suppressing a particular point

of view.” Forsyth v. Nationalist Movement, 505 U.S. 123, 130 (1992).

The City asserts that it has significant interests in ensuring that the public

way is kept clean, orderly, and unobstructed and that permitting regulation is a

legitimate way to further those goals. Dkt. 62, at 8 and 9. The City’s reliance on

dicta in Graff v. City of Chicago, 9 F.3d 1309 (7th Cir. 1993) (en banc) (plurality

opinion) is misplaced. While a regulation need not employ the least restrictive

means of protecting the government’s interests, it cannot “burden substantially

more speech than is necessary to further the government’s legitimate interests.”

Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). “Broad prophylactic rules

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in the area of free expression are suspect. Precision of regulation must be the

touchstone[.]” NAACP v. Button, 371 U.S. 415, 438 (1963). The City carries the

burden to establish the ordinance is narrowly tailored. Heffron v. Int’l Soc. For

Krishna Consciousness, Inc., 452 U.S. 640, 658 (1981). They have failed.

The City must show that the expressive activity actually—and not

theoretically—endangers the asserted interests. Johnson, 491 U.S. at 407; Weinberg

v. City of Chicago, 310 F.3d 1029, 1038-40 (7th Cir. 2002)(finding insufficient

evidence in the record to support the asserted interests); Kuba v. 1-A Agr. Ass’n, 387

F.3d 850, 859 (9th Cir. 2004) (clarifying that the government cannot merely invoke

an interest, it must show actual endangerment). See also Schad v. Borough of Mt.

Ephraim, 452 U.S. 61, 73, 75 (1981)(rejecting city’s asserted zoning interests

because it “presented no evidence”). “In the context of a First Amendment challenge

under the narrowly tailored test, the government has the burden of showing that

there is evidence supporting its proffered justification.” Weinberg v. City of Chicago,

310 F.3d 1029, 1038 (7th Cir. 2002) (citing DiMa Corp. v. Town of Hallie, 185 F.3d

823, 829 (7th Cir. 1999)); City of Watseka v. Illinois Public Action Council, 796 F.2d

1547 (7th Cir.1986), aff’d, 479 U.S. 1048 (1987). If “the State’s asserted interest is

simply not implicated on [the] facts,” then “the interest drops out of the picture.”

Johnson, 491 U.S. at 403-04 (citing Spence, 418 U.S. at 414, n. 8) (dismissing the

State’s asserted interest in preventing breaches of the peace as not implicated by

the record before it). See also Weinberg, 310 F.3d at 1038; Kuba, 387 F.3d at 859.

The City has provided to the Court no evidence that these interests were actually

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implicated – that the public way would have in fact been obstructed or that this

action would have constrained pedestrians’ freedom of movement or that the tent

city on Stewart Mall would have been unclean and disorderly.

As expressed above, there are no ample alternative channels. The City

asserts that Plaintiffs can express their message through other means such as

social media, interviews, or holding rallies at Stewart Mall. Yet, this kind of ample

alternatives analysis was explicitly rejected by the Seventh Circuit in Weinberg v.

City of Chicago, wherein the Court upheld a protester’s choice of venue, manner,

and audience reminding the City that “the First Amendment mandates that the we

presume the speakers, not the government know best what they want to say and

how to say it.” 310 F. 3d at 1041.

IV. UTCO has Adequately Pled a Violation of the Eighth Amendment.

A. The City effectively criminalizes homelessness.

In their Motion Defendants repeatedly state that “the City has no prohibition

on sitting, lying or sleeping in public places.” Dkt. 62, pgs.12, 13, 14. However, the

complaint explicitly alleges that the City does have a policy prohibiting people

without homes from placing their possessions on the public way and the City in fact

has several ordinances that effectively criminalize homelessness by preventing

individuals without homes from conducting the necessities of life in the public.7

7 MCC § 10-28-070 prohibits leaving possessions on the public way for any “longer than is necessary
to convey such article to or from the premises abutting on such sidewalk.” Chicago Park District
Code Chapter VII and MCC § 10-36-010 make it illegal to be a public park, beach or boulevard
between the hours of 11:00 pm and 6:00 am, with violations subject to a fine. Chicago Transit
Authority (CTA) Ordinance No. 116-110 includes numerous provisions that prohibit the necessary
activities of the homeless, such as sleeping on trains or buses, storing property on CTA property, or

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Accordingly, in Chicago, a person is prohibited from sitting, lying or sleeping in

parks and boulevard overnight; sitting, lying or sleeping on the public way near

commercial establishments; sitting, lying or sleeping on CTA trains and buses for

more than two hours or sleeping or camping on CTA property; or sitting, lying or

sleeping on parkways without the adjacent property owner’s consent. Furthermore,

the homeless are prohibited from leaving their property on the public way even if

the homeless or another person vouches that such property has not been

abandoned. Indeed, UTCO members who were previously camped in Lincoln Park

were ordered by the Chicago Police Department, under threat or arrest, to vacate.

pars. 14 and 15.

In Pottinger v. City of Miami, the City of Miami also did not have an outright

prohibition of sitting, lying or sleeping in public. The district court analyzed the

record which showed that Miami had arrested numerous homeless persons for

obstruction of the sidewalk, for being in the parks after hours; for loitering; and for

sleeping, standing or sitting in public buildings. 810 F. Supp. 1551 at 1559-60. The

district court concluded that:

The testimony and documentary evidence . . . support plaintiffs’ claim

that there is no public space where they can perform basic, essential acts
such as sleeping without the possibility of being arrested. Pottinger, 810
F. Supp. at 1560, (emphasis added).

remaining on trains for longer than one loop, etc. See Sec. 1, (12), Sec. 1 (14), Sec. 1 (15), and Sec. 1
(27).

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Similarly, there is no public space in Chicago where the homeless can perform

the essential acts of living without being subject to arrest or administrative

violations with fines and/or loss of all of their property.

The City claims that Veterans for Peace Greater Seattle, Chapter 82 v. City of

Seattle, 2009 WL 2243796 (W.D. Wash. July 24, 2009) is dispositive of Plaintiffs’

Eighth Amendment claims. Again, the City misreads the holdings of Jones and

Pottinger. It is not the availability of social services that determines if the status of

homelessness has been criminalized in a particular locale. The key elements are: (1)

direct laws (as in Jones) or a mix of laws which have the de facto effect of

prohibiting the homeless from carrying out life’s functions (sleeping, eating, sitting,

etc.) in public places; and (2) a lack of shelter space which makes carrying such life’s

functions in public a necessity.

B. The permit requirements of MCC §§10-28-010 et.seq. criminalize

the status of homelessness, not conduct.

As noted above, the City did not cite the permit requirement during any of

the removals of homeless people following the closing of the viaducts. Rather, the

City relied on the ordinance discussed above prohibiting storing property on the

public way. However, assuming arguendo that the City continues to assert the lack

of a permit as justifying its actions, plaintiffs address that contention in this

section.

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The City claims that by requiring a use permit for tents on the public way it

is regulating conduct, not the status of homelessness8. Dkt. 62, pg. 13. In asserting

this proposition, the City relies on Tobe v. City of Santa Ana, 9 Cal. 4th 1069 (1995).

The City’s reliance on Tobe is misplaced for the following reasons. First, Tobe was a

facial challenge to Santa Ana’s anti-camping ordinance. (“Because the Tobe

plaintiffs sought only to enjoin any enforcement of the ordinance and did not

demonstrate a pattern of unconstitutional enforcement, the petition must be

considered as one which presented only a facial challenge to the ordinance.” Tobe, 9

Cal. 4th at 1089 (original emphasis)). In the present case, Plaintiffs seek a holding

that MCC §§ 10-28-010 et. seq. as applied to the homeless violate the First and

Eighth Amendments. Plaintiffs do not challenge the facial validity of MCC §§ 10-28-

010 et. seq. which seeks to regulate commercial behavior. Second, Tobe is a pre-

Jones case. In Tobe, the California Supreme Court did not conclude that

homelessness is an involuntary condition which necessitates performing of vital

human activities, such as sleeping, in pubic. Tobe, 9 Cal. 4th at 1105-6. As the

Ninth Circuit made clear in Jones v. City of Los Angeles, that, for a number of

reasons, homelessness—when there are no alternatives for affordable housing or

shelter space—is an involuntary status. 444 F.3d. 1118 (9th Cir. 2006) vacated by

505 F.3d 1006 (9th Cir. 2007).

Accordingly, “the involuntariness of the act or condition the City seeks to

criminalize [sleeping in public] is the critical factor delineating a constitutionally

8This assertion is certainly questionable, as during the removal process, the City summarily
removed all property, not just tents.

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cognizable status, and incidental conduct which is integral to and an unavoidable

result of that status, from acts or conditions that can be criminalized consistent

with the Eighth Amendment.” Jones, 444 F.3d. 1118, 1132 (9th Cir. 2006). In a city

with Chicago’s climate, the necessity of shelter from the elements, even shelter as

flimsy as a tent, cannot be disputed. That the homeless must endure sub-freezing

weather is cruel enough, but to endure it without any shelter due to the near

impossibility of navigating the permit rules of MCC §§ 10-28-010 et. seq. and other

Chicago ordinances, criminalizes the status of homelessness rather than regulate

structures on the public way.

The City does not dispute that the requirements for obtaining a public use

permit to erect tents on the public way pursuant to MCC §§ 10-28-010 et. seq. are

onerous. pars. 37-39. Each tent would require a separate permit application (MCC §

10-28-010(b)), which would require each homeless person to apply for his or her own

tent, have such permit reviewed and approved by the alderman’s office and, then,

the full City Council. As applied to the homeless in Chicago, MCC §§ 10-28-010 is

not a regulation of conduct, but a bureaucratic trap that criminalizes the homeless’

need for some shelter in order to conduct the basics of human life in public.

C. Insufficient shelter space is relevant to Plaintiffs’ Eighth

Amendment claims.

The City does not dispute that there is insufficient shelter pace in Chicago for

all of the Chicago’s homeless. pars. 134-137. The City claims, without support, that

lack of sufficient shelter space is only relevant where “a city completely prohibits

being homeless in public.” Dkt. 62, pg. 13 (emphasis supplied). First, the City

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misreads the case law with respect to the criminalization of the status of

homelessness under the Eighth Amendment. In Pottinger, Miami did not completely

prohibit sleeping (or other necessary human activities) in public, yet the court held

that Miami criminalized the status of homelessness. 810 F. Supp. at 1564. Second,

by barring people from placing any personal property on the public way, Chicago

has effectively “completely prohibited being homeless in public.”

Chicago’s plethora of ordinances and regulations restrict the necessary

activities of the homeless in public to an extent to constitute criminalization, even

without a “complete” ban. Even absent a specific ordinance, the Chicago Police

Department and Department of Streets and Sanitation remove the homeless from

the public way. par. 63 The City’s reliance on Joel v. City of Orlando, 232 F3d 1353

(11th Cir. 2000) is not relevant as all the parties thereto agreed that there was

sufficient shelter capacity for all of the homeless. As pled in the complaint, this is

not the case in Chicago. par. 134 – 137.

Second, the City claims lack of sufficient shelter space is not relevant because

only homeless connected to UTCO are at issue here and the city has guaranteed

each of those persons space at a shelter. This Court has recognized that the makeup

of the population of the homeless at question here is fluid. Defendants’ Ex. 1, pg

6:14-15. After their removal from under the Lawrence and Wilson viaducts on

September 18, 2017, the homeless scattered to locations throughout Uptown and

the city. As discussed in the foregoing section on standing, UTCO represents its

homeless members and Chicago’s homeless population in general. Since the City

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has now announced that it will apply its ordinances to prevent people from placing

their property on the public way anywhere in Chicago, the city’s entire homeless

population is now very much the relevant population.

The City’s “guaranty” of shelter space for all Viaduct Tent City residents,

that guaranty was limited at best. After the weekend of September 16-17, 2017,

there was no guaranty of shelter space for all of those under the viaducts. par. 59.

V. UTCO has Adequately Pled a Violation of the Fourth Amendment.

The Chicago Police Department, acting as agents of the City, did not have the

right to search and seize the property of the individuals residing in various Chicago

tent encampments. In their Motion to Dismiss, the City alleges that this search and

seizure was justified, simply because the property was located in “the public way

and within city jurisdiction.” This allegation misrepresents the protections of the

Fourth Amendment and endangers the civil rights, liberties, and lives of all

homeless people living in the Chicago (and on its face, many businesses—although

the City appears to enforce its ordinance only against people without homes9).

A. The homeless have a protected privacy and property interest

under the Fourth Amendment.

The Fourth Amendment of the United States Constitution protects

individuals from unreasonable searches of seizures of “their persons, houses,

papers, and effects.” U.S. Const. amend. IV. It “protects people, not places. What a

person . . . seeks to preserve as private, even in an area accessible to the public, may

9 Businesses that place property on the public way are given a ticket, and an opportunity to appear
and defend themselves; their property is not unilaterally seized by the City.

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be constitutionally protected.” Katz v. U.S., 389 U.S. 347, 351 (1967). The Fourth

Amendment extends to both personal property and individual privacy. Soldal v.

Cook County, 506 U.S. 56, 63 (1992). An individual’s right to privacy exists,

regardless of whether they reside in a house, hotel, or tent. See U.S. v. Gooch, 6

F.3d 673 (9th Cir. 1993). An individual residing in a tent has a “subjective and

objectively reasonable expectation of privacy,” whether the tent is located on public

or private property. Gooch, 6 F.3d at 677.

The City inappropriately relies heavily on South Dakota v. Opperman, 428

U.S. 364 (1976), to support its claim that the search and seizures of the homeless’

tents were reasonable under the circumstances. In Opperman, South Dakota police

officers found marijuana in an impounded vehicle during a “caretaking search.” The

vehicle was impounded after remaining illegally parked for over seven hours,

during which two citations were placed on the vehicle’s windshield. The Supreme

Court found that the search of an impounded vehicle is reasonable because there is

“a distinction between automobiles and homes or offices in relation to U.S. Const.

amend. IV,” that creates a lower standard for reasonability for vehicles than that of

residences and offices. Opperman, 428 U.S. at 376. The ruling in Opperman,

specifically applies to automobiles and property in the plain view of officers. This

holding does not apply to closed tents, whether on public or private land. The people

residing at the various encampments resided in these tents and used the tents to

store their personal effects. These tents were shelter, not a means of transportation.

As other jurisdictions have noted, tents are far more analogous to homes than

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vehicles, entitling individuals residing in tents to the full protection of the Fourth

Amendment. See Gooch, 6 F.3d 6777-679 (9th Cir. 1993) (holding that an individual

residing in a tent has a protected privacy interest, similar to someone with a more

permanent residence, and thus a tent could not be searched without a warrant);

Haley v. State, 696 N.E. 2d 101 (Ind. Ct. App. 1998) (holding that the plain view

doctrine extends to items found in a tent); People v. Shafer, 946 P.2d 944 (Colo.

1997), (holding that an individual has a reasonable expectation of privacy in an

unoccupied tent accessible to the public, impermissibly located on private land).

Other courts have held that the Fourth Amendment prevents cities from

seizing the unabandonded property of homeless people, even if such property is on

public property. Lavan v. City of Los Angeles, 797 F. Supp. 2d 1005 (C.D. Cal. 2011)

aff’d Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2015). A city may not

remove and destroy the property of homeless people, simply because the property is

located in a public space. Id at 1013. In affirming the district court, the Ninth

Circuit held that “by seizing and destroying Appellees’ unabandoned legal papers,

shelters, and personal effects, the City [Los Angeles] meaningfully interfered with

Appellees’ possessory interests in that property.” 693 F.3d at 1030. The Ninth

Circuit admonished Los Angeles over such seizures stating:

The City does not—and almost certainly could not—argue that its
summary destruction of Appellees’ family photographs, identification
papers, portable electronics, and other property was reasonable under
the Fourth Amendment; it has instead staked this appeal on the
argument that the Fourth Amendment simply does not apply to the
challenged seizures. We reject the City’s invitation to impose this
unprecedented limit on the Fourth Amendment's guarantees. 693 F.3d
at 1031.

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An individual residing in a tent has a reasonable expectation of privacy. The

property in a tent should not be impermissibly searched and seized without exigent

circumstances and probable cause. The officers who forced the removal of the tents

at North Marine Drive and subsequent various homeless encampments did not

show exigent circumstances and probable cause prior to searching the tents. pars.

49-64. The individuals residing in these tents did not consent to the searches. pars.

53-54. The officers could not have reasonably believed that the tents were

abandoned, simply because the owners were not present at the time of the search.

pars. 62-63. The homeless owners relocated their tents multiple times, at the City’s

request, but the City continued to harass these individuals, search, and remove

their property. pars 62-64. The City violated the Fourth Amendment rights of these

individuals when its officers illegally searched and seized their tents and property

from the homeless encampments.

B. The City’s interests do not outweigh the interests of homeless

individuals against search and seizure of their property.

In its Motion to Dismiss, the City attempts to argue that the search and

seizure of the tents and other property of homeless individuals was reasonable

because the tents were located in the public way. City officials may only search and

seize the property of homeless individuals if the government’s interest in searching

and seizing the property outweighs the individuals’ interest in preventing a

“meaningful interference [with their] possessory interest[s] in the property.”

Pottinger, supra. The court should determine the reasonableness of the search by

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“balance[ing] the nature and quality of the intrusion of the individual’s Fourth

Amendment interests against the importance of the governmental interests alleged

to justify the intrusion.” Justin v. City of Los Angeles, 2000 U.S. Dist. LEXIS 17881

(C.D. Cal. 2000). If the government does not have a basis for suspecting an

individual is guilty of a criminal act, “the balance between public interest and the

[individual’s] right to personal security and privacy tilts in favor of freedom from

police misconduct.” Id.

While the City does not delineate the legal authority for seizing the homeless’

property, it has previously referenced MCC § 10-28-070, leaving possessions on the

public way. The Ninth Circuit discussed the application of a similar Los Angeles

ordinance in its affirmation of the district court in Lavan, stating that

Even if we were to assume, as the City maintains, that Appellees

violated LAMC § 56.11 by momentarily leaving their unabandoned
property on Skid Row sidewalks, the seizure and destruction of
Appellees’ property remains subject to the Fourth Amendment’s
reasonableness requirement. Violation of a City ordinance does not
vitiate the Fourth Amendment's protection of one's property. Were it
otherwise, the government could seize and destroy any illegally parked
car or unlawfully unattended dog without implicating the Fourth
Amendment. 693 F.3d at 1029.

Similarly, in Pottinger v. Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), a class of

homeless individuals sued the City of Miami over a “custom, practice, and policy of

arresting, harassing, and otherwise interfering with homeless people for engaging

in basic activities of daily life – including sleeping in public places.” When

addressing the issue of “Unlawful Seizure and Taking of Property,” the U.S. District

Court for the Southern District of Florida held that homeless individuals can

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establish a reasonable expectation of privacy and a lack of abandonment, sufficient

for Fourth Amendment protection, by leaning their property against a tree or

covering it with a pillow or blanket. Id. at 1571. The court recognized the city’s

legitimate interest in keeping parks clean and safe, but determined that the City’s

interest was “outweighed by the more immediate interest of the plaintiffs in not

having their personal belongings destroyed.” Id. at 1571.

The City seems to believe that its interest in securing an area for

construction, cleaning or any other reason outweighs the rights of homeless

individuals to be free from the illegal search, seizure, and removal of their property.

The lives of individuals residing in the various homeless encampments depend on

these personal items, including the tents that they use for shelter. This dependence

substantially outweighs the city’s interest in quickly securing large swaths of North

Marine Drive and Wilson Avenue for construction or for any other purported reason

for the seizure and destruction of the homeless communities. The tents and other

personal items did not create a public safety hazard that would justify seizure. par.

56. City cleanup and renovation efforts are insufficient justification for the search,

seizure, and removal of unabandonded property, especially when such removal

endangers the lives of the property owners. In its Motion to Dismiss, the City cites

the fact that the property was “unattended” and “in the public way” to justify the

abuses of its officers. As illustrated by the cases above, absence does not equate to

abandonment. The City’s officers did not have a reasonable belief that the property

was abandoned or that the property created any public danger. Chicago officers

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searched, seized, and relocated this property without justification and without

giving the property owners any opportunity to consent to or deny the search. pars.

62-63.

VI. UTCO has Adequately Pled a Violation of the Fifth and Fourteenth
Amendments.

Putting aside the repetitious arguments against standing and the supposed

failure to sufficiently plead an official policy under Monell, both of which were

addressed above, Defendants’ only argument against plaintiffs’ Fifth Amendment

takings claim is that homeless people have an adequate and available remedy for

the destruction of their only shelter by bringing a post-deprivation state law tort

suit. Respectfully, the argument is a misfit.

The doctrine Defendants invoke was developed in circumstances of formal

takings of property where economic loss is the primary issue and access to courts

and lawsuits are reasonably within the citizen’s means. Those niceties, which are

assumed in the cases Defendants cite, are entirely absent in the case at bar where

the government knowingly strips a citizen of every possession they have in the

world, leaving them literally freezing and without their only means of subsistence.

For the homeless people the Defendants victimized, a post-deprivation tort

lawsuit—at a court they cannot practicably access, extending their privation over a

long period of time that they cannot endure—is neither adequate nor available, and

it does not relieve the government of its constitutional duty. To the contrary,

protection from such privations goes to the very heart of the due process protections

in the Fifth and Fourteenth Amendments.

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Plaintiffs’ counsel is at fault for the Defendants’ confusion as we made

specific reference to the concept of takings in the Fifth Amendment count section of

the complaint. Regardless of how a plaintiff styles the counts, a complaint should be

sustained if there is any relief available which would be consistent with the facts

pleaded. Brokaw v. Mercer Cty., 235 F.3d 1000, 1006 (7th Cir. 2000); Albiero v. City

of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997) (“Having specified the wrong done to

him, a plaintiff may substitute one legal theory for another without altering the

complaint”). Plaintiffs’ complaint presents more than ample allegations to support

relief under the Due Process Clause of the Fifth and Fourteenth Amendments.

The government may not deprive (or “take” a citizen’s property without due

process of law. Due process is a flexible concept and there is no one size fits all

approach. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Rather, the court must

determine what process is due based on a nuanced balancing of the severity of the

deprivation against the risks of an erroneous action by the government. Riano v.

McDonald, 833 F.3d 830, 834 (7th Cir. 2016). The cornerstone of due process is

notice and the opportunity to be heard “at a meaningful time and in a meaningful

manner.” Mathews, 424 U.S. at 333 (citation and quotation marks omitted). As

applied to the seizure of property amounting to a home, the Mathews analysis

requires the Court to consider the private interest affected by the official action; the

risk of an erroneous deprivation of that interest through the procedures used, as

well as the probable value of additional safeguards; and the Government's interest,

including the administrative burden that additional procedural requirements would

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impose. U.S. v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993).

Defendants rely on cases that relegate citizens to a post-deprivation tort

remedy. These cases may be apposite to pecuniary loss in a standard takings case,

but they do not address at all the due process questions at the heart of Mathews and

its progeny. Rather, the relevant question is whether Defendants could seize the

property at issue – property which was clearly the shelter and livelihood of its

owners, without any form of pre-deprivation process or, at least an expedited post-

deprivation procedure to quickly retrieve their necessary items and shelters. The

answer is clearly no.

The weightiness of the interests at stake here dictate that the City afford pre-

deprivation process. The Supreme Court has “frequently recognized the severity of

depriving a person of the means of livelihood.” Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 543 (1985) (employment termination) (citing Fusari v. Steinberg, 419

U.S. 379, 389 (1975) (unemployment compensation)); Bell v. Burson, 402 U.S. 535,

(1971) (driver’s license revocation); Goldberg v. Kelly, 397 U.S. 254, 264 (1970 (food

stamps); Sniadach v. Family Finance Corp., 395 U.S. 337, 340 (1969) (garnishing

wages). The concern extends most profoundly to a person’s home and shelter.

The right to prior notice and a hearing is central to the Constitution's

command of due process. . . . [Plaintiff’s] right to maintain control over
his home, and to be free from governmental interference, is a private
interest of historic and continuing importance . . . In Fuentes, we held
that the loss of kitchen appliances and household furniture was
significant enough to warrant a predeprivation hearing. 407 U.S., at 70–
71, 92 S.Ct., at 1989. And in Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct.
2105, 115 L.Ed.2d 1 (1991), we held that a state statute authorizing
prejudgment attachment of real estate without prior notice or hearing

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was unconstitutional. The seizure of a home produces a far greater

deprivation than the loss of furniture, or even attachment.
James Daniel Good Real Prop., 510 U.S. at 53-54 (emphasis added).

It is hard to overstate the case for pre-deprivation process here. There is no more

severe consequences to livelihood than when the government carts off its citizens’

homes and all their possessions, leaving them in the freezing cold. Only the most

exigent of circumstances can justify that level of deprivation without prior process

and there is no such circumstance here. Id.

The question of pre-deprivation due process for the homeless’ unattended, but

not abandoned, property on the public way was addressed by the Ninth Circuit in

Lavan, supra. As discussed more fully in the foregoing sections, the appellate court

held that “[b]ecause homeless persons’ unabandoned possessions are ‘property’

within the meaning of the Fourteenth Amendment, the City [Los Angeles] must

comport with the requirements of the Fourteenth Amendment’s due process clause

if it wishes to take and destroy them (citations omitted).” Id. at 1032.

Moreover, even if pre-deprivation process were not required, certainly

Defendants owed a post-deprivation process far better than what they actually

afforded, which was none. See Holstein v. City of Chicago, 29 F.3d 1145, 1148 (7th

Cir. 1994) (“In circumstances in which a pre-deprivation hearing is not required,

due process requires that the governmental unit afford post-deprivation procedures

that are adequate to remedy erroneous deprivations of liberty or property.”); Porter

v. DiBlasio, 93 F.3d 301, 306 (7th Cir. 1996) (post-deprivation process was

inadequate when it failed to provide for sufficiently rapid return of a seized animal).

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Separately, the complaint supports a claim that Defendants violated due

process in its substantive sense. A trier of fact can determine that governmental

malfeasance towards a citizen’s property shocks the conscience if sufficiently

egregious. See Belcher v. Norton, 497 F.3d 742, 753-54 (7th Cir. 2007) (concluding

that if law enforcement extorted property by threatening arrests “a trier of fact

would be entitled to say that the [official’s] actions, as characterized by the

plaintiffs, shock the conscience.”). While undersigned counsel could not find a case

on all fours, the cruel conduct that appears on the face of the complaint should

suffice to surpass the motion to dismiss stage. Similarly, the same cruel conduct

states a substantive due process claim under the Deshaney line of cases. DeShaney

v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). When the

government deprives a person of the means of self-protection, it takes on an

obligation to put the person is as safe a position as they would have been absent the

government’s conduct. Thus, depriving a person of all semblance of shelter and

means to protect themselves, Defendants incurred an obligation to shelter the

victims and make them as safe as they were before the government acted, which

Defendants failed to do. Paine v. Cason, 678 F.3d 500, 510 (7th Cir. 2012), as

amended on denial of reh’g and reh’g en banc (May 17, 2012) (“State actors who

needlessly create risks of harm violate the due process clause by depriving persons

of life, liberty, or property without process (no one offered Eilman a hearing on the

question whether she should be released in a dangerous place while unable to

protect herself)”).

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VII. UTCO has Adequately Pled a Violation of Illinois Bill of Rights for
the Homeless Act.

The Illinois Bill of Rights for the Homeless Act was passed on August 22,

2013. Illinois is one of only three states, along with Connecticut and Rhode Island,

to pass legislation codifying the civil and human rights of homeless people. The

statute’s legislative intent states:

It is the long-standing policy of this State that no person should suffer

unnecessarily from cold or hunger, be deprived of shelter or the basic
rights incident to shelter, or be subject to unfair discrimination based on
his or her homeless status. At the present time, many persons have been
rendered homeless as a result of economic hardship, a severe shortage
of safe and affordable housing, and a shrinking social safety net. It is
the intent of this Act to lessen the adverse effects and conditions caused
by the lack of residence or a home.

The Illinois Bill of Rights for the Homeless defines homelessness as “status of

having or not having a fixed or regular residence, including the status of living on

the streets, in a shelter, or in a temporary residence.” 775 ILCS 45/10(b). Among the

rights that homeless people are entitled to in Illinois are “the right to use and move

freely in public spaces, including but not limited to public sidewalks, public parks,

public transportation, and public buildings, in the same manner as any other

person and without discrimination on the basis of his or her housing status,” and

“the right to a reasonable expectation of privacy in his or her personal property to

the same extent as personal property in a permanent residence.” 775 ILCS

45/10(a)(1), (7).

These two provisions stand for the proposition that homeless individuals

should not be (a) forced to obtain a tent permit that burdens them on the basis of

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their housing status, and (b) have their property (including tents) displaced from

public land. In this case, as discussed at length in the prior sections, the City

granted plaintiffs’ permit application to use the space in front of Stewart School for

any assembly EXCEPT one involving tents. Since homeless people need to sleep

somewhere, this limitation effectively bars them from using the Stewart mall to

protest, while allowing any housed person (who can of course go home at night) to

use the space. This is exactly the sort of disparate treatment which constitutes

prohibited discrimination under the Homeless Bill of Rights. Additionally, the City’s

application of its ordinances and repeated actions of removing homeless individuals’

property without due process or a warrant or citation, likewise impermissibly

affects the homeless population in disparity to their housed counterparts.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that this Court deny

Defendants’ Motion to Dismiss Counts II-VI of the Second Amended Complaint.

Respectfully submitted,

/s/ Alan Mills

Counsel for Plaintiffs

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Attorneys for Plaintiffs:

Molly Armour
Jeffrey Frank arnourdefender@gmail.com
jhfrank52@gmail.com Law Office of Molly Armour
3418 W. Medill 4050 N. Lincoln
Chicago, Illinois 60647 Chicago, Illinois 60618
312-206-5253 773-746-4849

Alan Mills Michael Kanovitz

alan@uplcchicago.org mike@loevy.com
Nicole Schult Loevy & Loevy
nicole@uplcchicago.org 311 N. Aberdeen St.
Uptown People’s Law Center Chicago, IL 60607
4413 N. Sheridan 312-243-5900
Chicago, Illinois 60640
773-769-1411 Adele D. Nicholas
adele@civilrightschicago.com
Susan Hathaway Ritacca Law Office of Adele D. Nicholas
susan@susanritaccalaw.com 5707 W. Goodman Street
Susan Ritacca Law Office Chicago, Illinois 60630
601 South California 847-361-3869
Chicago, Illinois 60612
872-222-9690