Case 4:23-cv-01063-YGR Document 12 Filed 03/14/23 Page 1 of 15

1 MICHAEL VON LOEWENFELDT (178665)

[email protected]
2 MARIA V. RADWICK (253780)
3 [email protected]
WAGSTAFFE, VON LOEWENFELDT,
4 BUSCH & RADWICK LLP
100 Pine Street, Suite 2250
5 San Francisco, CA 94111
Telephone: (415) 357-8900
6 Fax: (415) 357-8910
7
ROBERT F. EPSTEIN (154373)
8 [email protected]
City Attorney
9 City of San Rafael
1400 Fifth Avenue
10 San Rafael, CA 94901
11 Telephone: (415) 485-3080
Fax: (415) 485-3109
12
Attorneys for Defendant
13 CITY OF SAN RAFAEL, SAN RAFAEL POLICE
DEPARTMENT, CHRIS HESS, JIM SCHUTZ,
14
DAVID SPILLER
15
16
17
UNITED STATES DISTRICT COURT
18
FOR THE NORTHERN DISTRICT OF CALIFORNIA
19
OAKLAND DIVISION
20
21
DEANNA HUGHES, et al. Case No. 4:23-cv-01063-YGR
22
Plaintiffs, DEFENDANTS’ RESPONSE TO
23 ORDER TO SHOW CAUSE
v. Date: March 20, 2023
24
Time: 1:00 p.m.
25 CITY OF SAN RAFAEL, et al. Courtroom: 1

26 Hon. Yvonne Gonzalez Rogers

Defendants.
27
28

DEFENDANTS’ RESPONSE TO OSC

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1 TABLE OF CONTENTS
2 I. INTRODUCTION ............................................................................................................ 1
3
II. BACKGROUND .............................................................................................................. 2
4
A. San Rafael Generally Prohibits Camping On Public Property But Does
5 Not Criminalize Homelessness ............................................................................. 2

6 B. Albert Park ............................................................................................................ 3

7 C. Plaintiffs and their complaint ................................................................................ 4
8 D. Defendants ............................................................................................................ 5
9 III. ARGUMENT .................................................................................................................... 5
10
A. Legal Standard For An Injunction ........................................................................ 5
11
B. Plaintiffs’ Complaint Does Not Seek Any Relief After Last Week’s Storm
12 Is Over................................................................................................................... 6

13 C. Plaintiffs Are Not Entitled To A Continuing Injunction In Any Event ................ 6

14 1. Plaintiffs cannot show a likelihood of success on the merits.................... 6
15 a) Plaintiffs have no right to establish a tent village
16 wherever they want ....................................................................... 6
17 b) Plaintiffs’ state created danger claim ............................................ 7
18 c) Plaintiff’s search and seizure claim .............................................. 9
19 d) Plaintiffs’ “takings” claim........................................................... 10
20 e) Plaintiffs’ “substantive due process” claim ................................ 10
21 2. Plaintiffs Are Not Suffering Any Irreparable Harm ............................... 10
22 3. The Balance Of Equities And Public Interest Do Not Favor
Enjoining San Rafael .............................................................................. 10
23
IV. CONCLUSION ............................................................................................................... 11
24
25
26
27
28

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1 TABLE OF AUTHORITIES
2
3 Cases

4 Blain v. Cal. DOT,

No. 3:22-cv-04178-WHO, 2022 U.S. Dist. LEXIS 154099 (N.D. Cal. Aug. 26, 2022) .. 8
5
California v. Azar,
6 950 F.3d 1067 (9th Cir. 2020) ........................................................................................ 10

7 Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dep’t,
533 F.3d 780 (9th Cir. 2008) ............................................................................................ 5
8
Cottonwood Envtl. Law Ctr. v. Gianforte,
9 No. 20-36125, 2022 U.S. App. LEXIS 5485 (9th Cir. Mar. 2, 2022) .............................. 5

10 Disney Enters. v. VidAngel, Inc.,

869 F.3d 848 (9th Cir. 2017) ............................................................................................ 5
11
Easley v. Flores,
12 No. CV 15-4359-GW(E), 2016 U.S. Dist. LEXIS 203117 (C.D. Cal. Mar. 14, 2016) .. 10

13 Gomes v. Cty. of Kauai,

481 F. Supp. 3d 1104 (D. Haw. 2020) .............................................................................. 7
14
Green v. Mansour,
15 474 U.S. 64 (1985) ............................................................................................................ 9

16 Janosko v. City of Oakland,

No. 3:23-cv-00035-WHO, 2023 U.S. Dist. LEXIS 6802, (N.D. Cal. Jan. 6, 2023) ......... 8
17
Jeremiah v. Sutter Cty.,
18 No. 2:18-cv-00522-TLN-KJN, 2018 U.S. Dist. LEXIS 43663 (E.D. Cal. Mar. 16, 2018)8

19 LA All. for Human Rights v. County of Los Angeles,

14 F.4th 947 (9th Cir. 2021) ......................................................................................... 5, 6
20
Larez v. Los Angeles,
21 946 F.2d 630 (9th Cir. 1991) ............................................................................................ 5

22 Lipscomb v. Simmons,
962 F.2d 1374 (9th Cir. 1992) ......................................................................................... 8
23
Martin v. City of Boise,
24 920 F.3d 584 (9th Cir. 2017) ............................................................................................ 6

25 Martinez v. City of Clovis,

943 F.3d 1260 (9th Cir. 2019) ...................................................................................... 7, 8
26
Miralle v. City of Oakland,
27 No. 18-cv-06823-HSG, 2018 U.S. Dist. LEXIS 201778 (N.D. Cal. Nov. 28, 2018) ....... 7

28 Munaf v. Geren,
553 U.S. 674 (2008) .......................................................................................................... 5
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1 Reed v. City of Emeryville,

No. 21-cv-02781-WHO, 2021 U.S. Dist. LEXIS 87119 (N.D. Cal. May 6, 2021) .......... 9
2
Simon v. Hartford Life & Accident Ins. Co.,
3 546 F.3d 661 (9th Cir. 2008) ............................................................................................ 4
4 Stebbins v. Polano,
No. 21-cv-04184-JSW, 2021 U.S. Dist. LEXIS 203958 (N.D. Cal. Sep. 8, 2021) .......... 5
5
Wills v. City of Monterey, No. 21-cv-01998-EMC, 2022 U.S. Dist. LEXIS 136366 (N.D. Cal.
6 Aug. 1, 2022) .................................................................................................................... 7
7 Winslow v. City of Oakland,
No. 20- cv-01510-CRB, 2020 U.S. Dist. LEXIS 36604 (N.D. Cal. Mar. 3, 2020) ......... 7
8
Winter v. NRDC, Inc.,
9 555 U.S. 7 (2008) .............................................................................................................. 5
10 Zepeda v. United States Immigration & Naturalization Serv.,
753 F.2d 719 (9th Cir. 1983) .......................................................................................... 10
11
Statutes
12
San Rafael Mun. Code § 19.20.080(C) ..................................................................................... 2, 7
13
14
15
16
17

18
19
20
21
22
23
24
25
26
27
28

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1 I. INTRODUCTION
2 The City of San Rafael recognizes that unhoused individuals need to sleep somewhere,
3 and that some find shelter by erecting tents in public places. San Rafael does not ban all public
4 camping by individuals who otherwise have no shelter, but it does prohibit such camping in
5 specific areas. In doing so, the City balances the rights of unhoused individuals with the rights of
6 the larger public to use the parks and other facilities constructed and maintained with their tax
7 dollars.
8 Albert Park is a public park located near downtown San Rafael. The Park is used for
9 numerous community events and facilities including softball and Little League games, a
10 community center, a preschool, and a playground. In February 2023, the City of San Rafael
11 determined that the growing number of tent camps being placed at the Park by persons
12 experiencing homelessness interfere with the rest of the public’s use of that Park, as well as
13 creating law enforcement, health, and safety issues. Pursuant to applicable law, the City posted
14 notices on February 21, 2023 giving campers 20 days to vacate the park, with a final date of
15 March 13, 2023. Follow up notices were posted on March 2 and March 8.
16 While some campers left the Park, new ones arrived after the notices were posted and
17 about 20 people remain camping in the Park. Although the March 13 clearance was announced
18 weeks earlier, plaintiffs waited until March 9 to file this action. Plaintiffs allege that the severe
19 storm forecast to arrive around March 13 makes it unconstitutional to require them to move their
20 camps out of the Park “amidst heavy wind and rainfall.” They ask the Court to enjoin the City
21 from clearing the campsites of people who refuse to move themselves “until the severe weather
22 passes.” The Complaint expressly states that the only relief sought is “injunctive relief to stop the
23 dangerous closure of Albert Park Camp on March 13th.” (Complaint, ECF 1 p. 13.)
24 Before the City had an opportunity to file its opposition, this Court entered a temporary
25 restraining order prohibiting the City from “preventing plaintiffs or others from camping in
26 Albert Park” until this hearing, and directing the parties to brief whether the Court should enjoin
27 defendants from clearing encampments from Albert Park after March 20, 2023.
28

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1 By March 20, 2023, the forecast severe storm will be long passed. As discussed herein,
2 neither law nor equity support this Court granting further injunctive relief which has not even
3 been requested in the Complaint. Plaintiffs have no right to camp at Albert Park, much less en
4 masse with some 20 campsites, and the City is fully entitled to enforce its restriction on camping
5 there so that the Park can be used by the rest of public. The Court should dissolve its temporary
6 restraining order and deny Plaintiffs’ motion for a preliminary injunction.
7 II. BACKGROUND
8 A. SAN RAFAEL GENERALLY PROHIBITS CAMPING ON PUBLIC PROPERTY BUT
DOES NOT CRIMINALIZE HOMELESSNESS
9
Like most cities, San Rafael’s municipal code generally prohibits camping in public
10
spaces. San Rafael Mun. Code § 19.20.080(C). The City’s parks, sidewalks, and other public
11
areas are not generally available for camping because, when someone camps in a public space, it
12
makes the space unavailable to the rest of the public, and because these locations are not
13
designed for safe, sanitary habitation. A city would quickly become unlivable if individuals—
14
much less dozens of people—could choose to pitch a tent and live wherever they want.
15
San Rafael’s municipal code also recognizes, however, that being without shelter is not a
16
crime. Thus, the code expressly allows public camping except in specifically designated places
17
where the person camping has no alternative shelter:
18
Nothing in this section shall be deemed to prohibit camping on all
19 public property, including parks, when there is no alternative
shelter available to the person camping; provided that the City
20 Manager may nevertheless absolutely prohibit camping at any time
in one or more specific parks where such prohibition is determined
21 to be a threat to the public, health, safety, or welfare.
22
San Rafael Mun. Code § 19.20.080(C)(3).
23
As described in the declaration of Chris Hess filed herewith, the City has and continues to
24
engage in extensive efforts to assist unhoused persons in San Rafael. (Decl. of Chris Hess ¶¶ 2-
25
3.)
26
27
28

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1 B. ALBERT PARK
2 Albert Park is a multi-use park near San Rafael’s downtown. The extensive public uses of
3 the Park are described in detail in the declaration of Library and Recreation Department Director
4 Catherine Quffa filed herewith. (Decl. of Catherine Quffa ¶¶ 2-15.)
5 The recent and growing homeless encampment at Albert Park has caused significant
6 problems at the Park and is inconsistent with its intended public uses. As further described in Ms.
7 Quffa’s declaration, staff receive frequent complaints from the public about hazards caused by
8 the campsites, and several groups that ordinarily use the Park have stated that they are either
9 unwilling or concerned about booking the sports fields because of the safety risk posed by the
10 encampments. (Quffa Decl. ¶¶ 12-15.) As described in the declaration of Department of Public
11 Works Operations Manager Ryan Montes, as a result of the encampments DPW staff has to
12 spend 20 person-hours a week cleaning and removing 1-2 trucks of waste, feces is found in the
13 vegetation, and several areas of the Park now reek of urine. (Montes Decl. ¶¶ 3-5.) As further
14 described in the declaration of San Rafael Police Lieutenant Carl Huber, San Rafael police have
15 responded to numerous calls relating to the encampments for sanitation and biohazards,
16 vandalism, fighting, public alcohol and drug consumption, including overdose, blocking access
17 to buildings, fires, and other disruptive behavior. (Decl. of Lt. Carl Huber, ¶ 3.) At its March 6,
18 2023 public meeting (discussed below), the City has also heard from many concerned parents
19 that their children cannot use the Park or playground due to human waste and other biohazards
20 from the encampment.
21 On February 21, 2023, the City police department posted notices on all campsites at
22 Albert Park that the campsites needed to be cleared by March 13, 2023 (20 days later). (Huber
23 Decl. ¶¶ 4-5.) Some persons moved their campsites out of the Park, but others moved into the
24 Park after those notices. (Id. ¶ 5; Decl. of Lynn Murphy ¶¶ 3-5.) Additional notices were posted
25 on March 2 and March 8, all with a March 13 clearance date. (Huber Decl. ¶ 6.)
26 The San Rafael City Council considered these matters at an hour-long public hearing on
27 March 6, 2023. The staff report and public written comment from that meeting are attached to
28 the Declaration of City Clerk Lindsay Lara filed herewith (Decl. of Lindsay Lara ¶¶ 3-4 & Exs.

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1 A-B.) The oral statements by staff, the public, and the Council at that meeting are reflected in the
2 video available at https://www.youtube.com/watch?v=HaIArV9S7_s beginning at the 2:58:00
3 mark and continuing until the end of the video at the 4:02:00 mark. (Lara Decl. ¶ 5.) As a result
4 of the hearing, the City Council voted to ban camping at Albert Park. (Lara Decl. ¶ 6 & Ex. C.)
5 These materials reflect the careful, measured analysis the City’s elected officials have engaged in
6 to balance the needs of these 20 some unhoused campers with the entire community’s right to
7 use this particular public space.
8 C. PLAINTIFFS AND THEIR COMPLAINT
9 The Complaint lists six plaintiffs, although only two have filed fee waiver requests.1 All
10 submitted declarations in support of their motion. Plaintiff Kinsel does not live at the Park, so it
11 is unclear why he is a plaintiff. (Kinsel Decl.; Murphy Decl. ¶ 6(b).) Plaintiff Wade states that he
12 moved to the Park four days before his declaration, long after the closure notices had been
13 posted. (Wade Decl.; Murphy Decl. ¶ 6(e).) Plaintiffs Hughes, Coates, and Moncrief were all
14 offered shelter beds but did not take those beds. (Murphy Decl. ¶¶ 6(a), (c), (d).) Everyone found
15 camping at Albert Park was offered emergency shelter and a hot meal at the Severe Weather
16 Emergency Shelter (SWES) operated by Marin County, but all declined to accept that shelter.
17 (Murphy Decl. ¶ 7.) Campers have also been offered temporary storage for their belongings.
18 (Murphy Decl. ¶ 4.) People found at the Park were also offered shelter at the SWES on Monday
19 March 13 and Tuesday March 14; only one person accepted. (Murphy Decl. ¶¶ 8-9.)
20 On March 9, 2023, plaintiffs filed this action, asking the Court to enjoin clearance of their
21 campsites during the storm predicted for the upcoming weekend. Given the severe weather
22 forecast, the City had decided to delay clearing the campsites. (Huber Decl. ¶ 7.) Of course, the
23 City does not want to have to clear campsites; it wants persons unlawfully camping in Albert
24 Park to move their own campsites as they have been asked to do since February 21, 2023.
25 On March 9, 2023, this Court issued its temporary restraining order. (ECF # 9.)
26
27
1
One pro se litigant cannot represent others. See Simon v. Hartford Life & Accident Ins.
28 Co., 546 F.3d 661, 664-65 (9th Cir. 2008).

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1 D. DEFENDANTS
2 In addition to the City of San Rafael, plaintiffs named the San Rafael Police Department,
3 which is merely a department of the City, as a defendant. Plaintiffs also named the Chief of
4 Police, David Spiller, the City Manager, Jim Schutz, and the City’s Assistant Director of
5 Community Development, Chris Hess as defendants. These defendants are named in their
6 official capacities, and are thus not properly separate parties. See Center for Bio-Ethical Reform,
7 Inc. v. Los Angeles County Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir. 2008); Larez v. Los
8 Angeles, 946 F.2d 630, 646 (9th Cir. 1991).
9 III. ARGUMENT
10 A. LEGAL STANDARD FOR AN INJUNCTION
11 “Preliminary injunctive relief, whether in the form of a temporary restraining order or a
12 preliminary injunction, is an ‘extraordinary and drastic remedy’ that is never awarded as of
13 right.” Stebbins v. Polano, No. 21-cv-04184-JSW, 2021 U.S. Dist. LEXIS 203958, at *2-3 (N.D.
14 Cal. Sep. 8, 2021) (quoting Munaf v. Geren, 553 U.S. 674, 689-690 (2008)). “A plaintiff seeking
15 a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely
16 to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in
17 his favor, and that an injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20
18 (2008). “Likelihood of success on the merits ‘is the most important’ Winter factor; if a movant
19 fails to meet this ‘threshold inquiry,’ the court need not consider the other factors . . . in the
20 absence of ‘serious questions going to the merits.’” Disney Enters. v. VidAngel, Inc., 869 F.3d
21 848, 856 (9th Cir. 2017) (citations omitted).
22 Granting relief “based on claims that Plaintiffs did not allege, supported by novel legal
23 theories that Plaintiffs did not argue” is an abuse of discretion. LA All. for Human Rights v.
24 County of Los Angeles, 14 F.4th 947, 957 (9th Cir. 2021). “While the district court ‘has broad
25 equitable power to remedy legal violations’ through injunctive relief, . . . it ‘does not have the
26 authority to issue an injunction based on claims not pled in the complaint. . . .’” Cottonwood
27 Envtl. Law Ctr. v. Gianforte, No. 20-36125, 2022 U.S. App. LEXIS 5485, at *3-4 (9th Cir. Mar.
28 2, 2022) (citations omitted).

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1 B. PLAINTIFFS’ COMPLAINT DOES NOT SEEK ANY RELIEF AFTER LAST WEEK’S
STORM IS OVER
2
Plaintiffs’ complaint quite clearly states that it only seeks injunctive relief “to stop the
3
dangerous closure of Albert Park Camp on March 13th.” (Complaint, ECF 1 p. 13.) Plaintiffs do
4
not claim any legal right to continue camping at Albert Park. All of their theories are tied to the
5
“atmospheric river” that was forecast for the past weekend or Monday. (Complaint ¶¶ 9-20, ECF
6
1 pp. 6-8.) They allege that “we all face serious danger because we will get soaked trying to
7
move in the rain.” (Complaint ¶ 18, ECF 1 p. 8.)
8
On their face, plaintiffs’ allegations ignore the fact that they had been asked to move
9
since February 21—not just during the storm—and their assertion that emergency shelters were
10
full is simply untrue. The campers found at Albert Park were all offered emergency shelter prior
11
to the storm, and during it; all but one declined to take it. (Murphy Decl. ¶¶ 7-9.) But in any
12
event, plaintiffs make no allegation that they have a right to camp at the Park or cannot be
13
required to move locations when it is not storming. The severe storm has now passed. Because
14
plaintiffs do not present any claims even seeking relief after the March 20, 2022 hearing, the
15
Court lacks the power to grant such relief and should dissolve its injunction. LA All. for Human
16
Rights, 14 F.4th at 957.
17
C. PLAINTIFFS ARE NOT ENTITLED TO A CONTINUING INJUNCTION IN ANY EVENT
18
Even if Plaintiffs had asked the Court for relief after the storm had passed, no relief
19
would be warranted. Plaintiffs have no right to camp at Albert Park, and cannot show either a
20
likelihood of success on the merits or the requisite balance of equities required for injunctive
21
relief.
22
1. Plaintiffs cannot show a likelihood of success on the merits
23
a) Plaintiffs have no right to establish a tent village wherever they
24 want
25 The Eighth Amendment prohibits criminally punishing someone for sleeping outdoors
26 where they have no choice in the matter. Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2017).
27 But Martin’s holding is “a narrow one” and does not require the City to provide shelter or “allow
28 anyone who wishes to sit, lie, or sleep on the streets … at any time and at any place.” Id. “The

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1 key question under Martin, then, is whether the ordinances collectively criminalize sleeping
2 outside anywhere in the City (particularly in the evening, the normal sleeping period for most
3 people), or whether the ordinances merely criminalize sleeping in certain areas within the City.”
4 Wills v. City of Monterey, No. 21-cv-01998-EMC, 2022 U.S. Dist. LEXIS 136366, at *22 (N.D.
5 Cal. Aug. 1, 2022). As noted above, San Rafael’s anti-camping ordinance does not prohibit the
6 homeless from sleeping outside anywhere in the City, but only in designated locations. San
7 Rafael Mun. Code § 19.20.080(C)(3). Albert Park has now been designated as a location where
8 camping is prohibited. (Lara Decl. Ex. C.) “Martin does not limit the [c]ity’s ability to evict
9 homeless individuals from particular public places.” Gomes v. Cty. of Kauai, 481 F. Supp. 3d
10 1104, 1109 (D. Haw. 2020) (citations omitted); see Winslow v. City of Oakland, No. 20- cv-
11 01510-CRB, 2020 U.S. Dist. LEXIS 36604, at *9 (N.D. Cal. Mar. 3, 2020); Miralle v. City of
12 Oakland, No. 18-cv-06823-HSG, 2018 U.S. Dist. LEXIS 201778, at *6 (N.D. Cal. Nov. 28,
13 2018).
14 b) Plaintiffs’ state created danger claim
15 Plaintiffs’ first cause of action is for “state created danger”—they allege that “evicting us
16 from Albert Park on March 13th without a guarantee of shelter or mitigation of the danger”
17 exposes them to hypothermia because “it is raining right now and forecasts show its going to be
18 raining hard.” (Complaint, ECF 1 p. 9.) Plaintiffs also allege that “no emergency shelter is open
19 on Monday, March 13,” but the County opened the emergency shelter for that day and the next.
20 (Id.; Murphy Decl. ¶¶ 7-9.) Plaintiffs do not allege any state created danger caused by requiring
21 them to move their tents to a different location outside Albert Park once the severe storm passed.
22 As the Complaint notes, the “state created danger” theory requires “deliberate
23 indifference” to a “known danger” which the plaintiff otherwise would not have faced. See
24 Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019). Absent the particular allegations
25 that plaintiffs were told to relocate during a severe storm (which has now passed), plaintiffs do
26 not allege any danger created by being required to move their tents from Albert Park to some
27 other location. They allege that they have been provided with “no guarantee of shelter” but there
28 is no right to City-provided shelter. “[T]he Due Process Clauses generally confer no affirmative

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1 right to governmental aid, even where such aid may be necessary to secure life, liberty, or
2 property interests of which the government itself may not deprive the individual.” Lipscomb v.
3 Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992). “The Due Process Clause is a limitation on state
4 action and is not a ‘guarantee of certain minimal levels of safety and security.’” Martinez, 943
5 F.3d at 1271.
6 This is not a case like Blain v. California DOT where “the record showed that many
7 plaintiffs had been there for years yet were given only five days’ warning of the closure.” Blain
8 v. Cal. DOT, No. 3:22-cv-04178-WHO, 2022 U.S. Dist. LEXIS 154099, at *3 (N.D. Cal. Aug.
9 26, 2022). By the time of the hearing plaintiffs will have had almost a full month notice. (Huber
10 Decl. ¶ 4.) So long as notice is provided, plaintiffs can be required to move without offending the
11 Constitution, even if “the state is not providing each individual with shelter.” Blain, 2022 U.S.
12 Dist. LEXIS 154099 at *11.
13 The Court’s temporary restraining order noted two cases where being forced to move
14 during “severe weather” stated a due process claim. But neither is similar to this case. First, by
15 the time of this hearing the severe weather will have passed. Second, neither of those cases
16 involved tents that are designed to be moved. In Janosko v. City of Oakland, the court
17 temporarily stopped the clearance of an encampment in Oakland during “historic storms” and
18 where the clearance required seizure and “demolition” of structures built at the encampment.
19 Janosko v. City of Oakland, No. 3:23-cv-00035-WHO, 2023 U.S. Dist. LEXIS 6802, at *8 (N.D.
20 Cal. Jan. 6, 2023). Janosko specifically noted that demolition of “an unhoused individual's
21 ‘shelter and property essential to protection from the elements’ including ‘cold and freezing
22 temperatures, rain, and other difficult physical conditions’ is sufficient to state a claim for state-
23 created danger under the Fourteenth Amendment.” Id. at *7-8 (citing Jeremiah v. Sutter Cty., No.
24 2:18-cv-00522-TLN-KJN, 2018 U.S. Dist. LEXIS 43663, at *12 (E.D. Cal. Mar. 16, 2018)).
25
26
27
28

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1 Here, plaintiffs live in tents they can take with them and erect elsewhere, not shelters that would
2 be demolished.2
3 Moreover, the City has offered everyone found at the Park emergency shelter, and many
4 of them other shelter as well. (Murphy Decl. ¶¶ 6-9.) Plaintiffs allege in their motion that a
5 homeless shelter is not “shelter” because shelters have rules that they do not want to comply
6 with. That is, of course, Plaintiffs’ choice. No one is forcing them to go to a homeless shelter.
7 But Plaintiffs cannot assert a right to illegally camp wherever they want simply because they
8 prefer doing so to living in a congregate shelter. See, e.g., Reed v. City of Emeryville, No. 21-cv-
9 02781-WHO, 2021 U.S. Dist. LEXIS 87119, at *3 (N.D. Cal. May 6, 2021).
10 The City has also offered to store campers’ belongings temporarily if needed. (Murphy
11 Decl. ¶ 4.) Plaintiffs may believe that such offers are inadequate, or that they need more help
12 than they have received, but they have no legal entitlement to such relief (and, indeed, do not
13 seek it in their complaint). Plaintiffs fail to show any likelihood of success on their state created
14 danger claim, to the extent they still make one, now that what was forecast to be an
15 unprecedently severe storm has passed.
16 c) Plaintiff’s search and seizure claim
17 Plaintiffs’ second cause of action attempts to challenge a future search and seizure of
18 their property in the event they are arrested. To enjoin future conduct, the Court needs to find a
19 “continuing violation of federal law.” Green v. Mansour, 474 U.S. 64, 68 (1985). Plaintiffs
20 allege no facts showing that any prior unlawful seizures have occurred, much less any continuing
21 violations. And the Court cannot analyze any future search or seizure without knowing the
22 particular facts of that event. Plaintiffs’ cursory assertion that the San Rafael police department is
23 “going to enter, search, and seizure our dwellings” does not state any claim upon which relief
24 can be granted, much less prove a likelihood of success. Indeed, no one will enter or seize
25 anything if the Plaintiffs move their camps from the Park as they have been directed to do. Nor,
26
27
2
Plaintiff Wade alleges that he is “tent surfing’ and lives in someone else’s tent, so he does
28 not have any property interest in the tent in any event. (Wade Decl. ¶¶ 3, 7.)

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1 in any event, should defendants be enjoined from a future enforcement of San Rafael’s facially
2 constitutional laws absent a “persistent pattern of misconduct” not demonstrated here. See
3 Zepeda v. United States Immigration & Naturalization Serv., 753 F.2d 719, 725 (9th Cir. 1983).
4 d) Plaintiffs’ “takings” claim
5 Plaintiffs make a cursory claim that “they are going to take our belongings” and that
6 doing so constitutes a taking under the Fifth Amendment. “The seizure of property pursuant to a
7 government entity’s police power does not constitute a taking for ‘public use’ within the
8 meaning of the Fifth Amendment.” Easley v. Flores, No. CV 15-4359-GW(E), 2016 U.S. Dist.
9 LEXIS 203117, at *12-13 (C.D. Cal. Mar. 14, 2016) (citing cases).
10 e) Plaintiffs’ “substantive due process” claim
11 Finally, Plaintiffs allege a “substantive due process claim,” but their allegations do not
12 explain how this claim is different from the state created danger claim discussed above. Here,
13 again, Plaintiffs do not state a claim, much less show likelihood of success.
14 At bottom, Plaintiffs’ complaint does not assert that they have a right to remain at Albert
15 Park even after the storm has passed. They offer no explanation for refusing to leave before the
16 storm, and misleadingly suggest that the notices provided in March were the first such notices.
17 But in all events, plaintiffs have no right to remain camping at Albert Park. Because Plaintiffs
18 cannot show any likelihood of success on any claim not related to the severe weather that has
19 now ended, there is no need to analyze the remaining injunction factors. California v. Azar, 950
20 F.3d 1067, 1083 (9th Cir. 2020) (en banc) (“If a movant fails to establish likelihood of success
21 on the merits, we need not consider the other factors.”). The Court should dissolve its restraining
22 order and deny plaintiffs’ request for a preliminary injunction.
23 2. Plaintiffs Are Not Suffering Any Irreparable Harm
24 Plaintiffs make no argument that they will suffer any harm other than being forced to
25 move during the storm. As discussed above, that concern is now moot.
26 3. The Balance Of Equities And Public Interest Do Not Favor Enjoining
San Rafael
27
Nor do the balance of equities or public interest favor enjoining the City from clearing
28
the Park after March 20. As described in detail in the declarations submitted herewith, as well as
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 Case 4:23-cv-01063-YGR Document 12 Filed 03/14/23 Page 15 of 15

1 by the public at the City Council’s public hearing, the homeless encampment at Albert Park is
2 fundamentally inconsistent with numerous other uses of the Park. (Huber Decl. ¶ 3; Quffa Decl.
3 ¶¶ 4-14; Lara Decl. ¶¶ 3-5; Montes Decl. ¶¶ 3-6.) This goes far beyond just “preparing for a
4 sports season.” Moreover, Plaintiffs offer no explanation for why, now that the storm has passed,
5 their desire to stay at their present location outweighs the public’s right to use this park for its
6 designed purpose.
7 Albert Park is not designed for residential camping by anyone, much less by 20 or more
8 people. This is a heavily used multi-purpose facility that the entire public is entitled to use
9 without the human waste, risk to health and safety, and other problems that have occurred since
10 the encampment began. The equities and public interest heavily favor the public having full,
11 safe, and clean use of this public park.
12 IV. CONCLUSION
13 Plaintiffs have known for weeks that they have to clear their campsites from Albert Park.
14 They chose to ignore earlier requests to clear, and indeed in some cases to move to the Park
15 despite such requests. They waited until the eve of last week’s storm, and then rejected
16 emergency shelter and obtained ex parte relief from this Court barring the City from clearing the
17 park for another week. That effectively gave Plaintiffs the only relief sought in the complaint.
18 Whatever plausible basis they had for delay is now over. The Court should dissolve its
19 restraining order, and deny any further injunction.
20 Respectfully submitted,
21 DATED: March 14, 2023 WAGSTAFFE, VON LOEWENFELDT,
BUSCH & RADWICK LLP
22
23 By __/s Michael von Loewenfeldt_______________
MICHAEL VON LOEWENFELDT
24
Attorneys for Defendants
25 CITY OF SAN RAFAEL, SAN RAFAEL
POLICE DEPARTMENT, CHRIS HESS,
26 JIM SCHUTZ, DAVID SPILLER
27
28

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