Petition for Writ of Certiorari — Hamilton County Department of Adult Probation v. Cash

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Supreme Court, U.S.

FILED

041631 MAY 2 4 2005

NO. peice OF THE CLERK

In the

Supreme Court of the Anited States

HAMILTON CouUNTY DEPARTMENT OF

ADULT PROBATION; MICHAEL L. WALTON,

Chief Probation Officer,

Petitioners,

Vv.

GERALD CasH; CLARA Caso; GREGORY B. WAHOFF;

Puituip GarcIA, and Rocky WAYNE ADKISSON,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

JosepH T. DETERS

PROSECUTING ATTORNEY

HAMILTON County, OHIO

Davip T. STEVENSON

Counsel of Record

ASSISTANT PROSECUTING ATTORNEY

230 East NINTH STREET, Suite 4000

CINCINNATI, OH 45202

(513) 946-3120

Counsel for Petitioners

Becker Gallagher Legal Publishing, Inc. 800.890.5001

QUESTION PRESENTED

Whether a county municipal government may be held

responsible under 42 U.S.C. §1983 for participating in a

lawful seizure of property that may have been ultimately

unlawfully destroyed by another, unaffiliated governmental

agency.

PARTIES TO THE PROCEEDING

Petitioners are the Hamilton County (Ohio) Department of

Adult Probation and Michael L. Walton, Chief Probation

Officer.

Respondents are Gerald Cash, Clara Cash,' Gregory B.

Wahoff, Phillip Garcia, and Rocky Wayne Adkisson.

In addition to these parties, the City of Cincinnati, Ohio

was also a party to the proceedings below.

' Gerald and Clara Cash were killed in a fire during the course of

the appeal to the Sixth Circuit. A suggestion of death was filed.

No estate for either of the Cashes was opened or substituted as a

party to the proceeding below.

RULE 29.6 STATEMENT

Petitioners are not required to file a Rule 29.6 Statement.

—

TABLE OF CONTENTS

QUESTIONS PRESENTED ................... i

PARTIES TO THE PROCEEDING ............. ii

RULE 29.6 STATEMENT ................... iii

TABLE OF CONTENTS ..................-. iv

TABLE OF AUTHORITIES .................. vi

PETITION FOR WRIT OF CERTIORARI ......... 1

ORR OIRO... 5. oe ences 1

I ei ae ol a 1

RELEVANT STATUTORY PROVISION ......... 1

STATEMENT OF THECASE ................ 6

REASONS FOR GRANTING THE WRIT ......... 10

I. CERTIORARI SHOULD BE GRANTED TO

REMEDY THE SIXTH CIRCUIT’S

DEPARTURE FROM THIS COURT’S

EXPLICIT HOLDING IN MONELL JV.

RAE 2 A Bess GT 6 ia ie hn eo 08 10

A. The Eleventh Circuit’s Decision in Church

i SR os hs a ee eae 12

B. The Ninth Circuit’s Decision in Stone v.

SE wag ca Ko Va eae eee ee 16

SI A A Rt ICE tn

EAE 5s a

II. CERTIORARI SHOULD BE GRANTED

AS THE SIXTH CIRCUIT’S DECISION

CONFLICTS WITH DECISIONS OF

THE NINTH AND ELEVENTH

IPE wn 6h i Soto e ere

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TABLE OF AUTHORITIES

Cases

Arnett v. Myers, 281 F.3d 552, (6" Cir. 2002) ...... 15

eS ES eS ea te

Camfield v. United States,

167 U.S. 518, 524, 17 S. Ct. 864, 42 L. Ed. 260 .. 14

Church v. City of Huntsville,

30 F.3d 1332, (11" Cir. 1994) ........ 12, 14, 15

Hudson v. Palmer,

468 U.S. 517, 104 S.Ct. 3194;

$e & R F;. eer ee 9

Light v. United States,

220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570 (1911) . . 14

Monell v. Dep't of Soc. Servs.,

436 U.S. 658, 98 S. Ct.2018,

S6-L..BS. DEGLI CIGTEP. 2 cc ccccccssccsces 10

Parrat v. Taylor,

451 U.S. 527, 101 S.Ct. 1908,

GB L. BG.26. 420 (USSR) wee scccccccccessss 9

Stone v. Agnos,

960 F.28 G03 GO Che. BGG ons cc ceweccteaen 16

United States of America v. Ruckman,

806 F.26 8671, 1467S CED % 00k eis asueess 14

Utah Power and Light Co. v. United States,

243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791 (1917) . . 14

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PETITION FOR WRIT OF CERTIORARI

Petitioners Hamilton County Department of Adult

Probation and Michael L. Walton, Chief Probation Officer,

respectfully petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Sixth

Circuit in this case.

OPINIONS BELOW

The opinion of the United States District Court for the

Sixth Circuit is published at 388 F.3d 539 (6" Cir. 2004) (Pet.

App. B). A petition for rehearing and rehearing en banc was

denied without published opinion on February 25, 2005. The

unpublished order appears electronically at 2005 U.S. App.

LEXIS 3840 (6t Cir. Feb. 25, 2005). (Pet. App. A).

The order of the United States District Court for the

Southern District of Ohio - Western Division granting

summary judgment to petitioners was not published. (Pet.

App. C).

JURISDICTION

The United States Sixth Circuit court of Appeals issued its

opinion on November 12, 2004 and its order denying

rehearing on February 25, 2005. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

Section 1983 of the Civil Rights Act of 1871 provides in

pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity ...

Ohio Revised Code Sections 723.01 and 2744.02 are also

referenced in this Petition. These sections deal with the

responsibility of municipal corporations to keep public

thoroughfares open and free from nuisance. The sections as

they existed on the date Respondents’ Complaint was

originally filed are set out verbatim below.

ORC Ann. 723.01 (Anderson 2001)

§§ 723.01 Legislative authority to have care,

supervision, and control of streets.

Municipal corporations shall have special power to

regulate the use of the streets. Except as provided in

section 5501.49 of the Revised Code, the legislative

authority of a municipal corporation shall have the

care, supervision, and control of the public highways,

streets, avenues, alleys, sidewalks, public grounds,

bridges, aqueducts, and viaducts within the municipal

corporation, and the municipal corporation shall cause

them to be kept open, in repair, and free from

nuisance.

HISTORY: : Bates §§§§ 1536-102, 1536-131; 96 v

26, §§ 9; 96 v 31, §§ 28; GC §§ 3714; Bureau of

Code Revision, 10-1-53; 141 v H 176 (Eff 11-20-85);

143 v H 381 (Eff 7-1-89); 146 v H 350 (Eff 1-27-97):

149 v S 108, §§ 2.01. Eff 7-6-2001.

ORC Ann. 2744.02 (Anderson 2001)

§§ 2744.02 Classification of functions of political

subdivisions; liability; exceptions.

(A)(1) For the purposes of this chapter, the functions

of political subdivisions are hereby classified as

governmental functions and proprietary functions.

Except as provided in division (B) of this section, a

political subdivision is not liable in damages in a civil

action for injury, death, or loss to person or property

allegedly caused by any act or omission of the political

subdivision or an employee of the political subdivision

in connection with a governmental or proprietary

function.

(2) Subject to statutory limitations upon their monetary

jurisdiction, the courts of common pleas, the

municipal courts, and the county courts have

jurisdiction to hear and determine civil actions

governed by or brought pursuant to this chapter.

(B) Subject to sections 2744.03 and 2744.05 of the

Revised Code, a political subdivision is liable in

damages in a civil action for injury, death, or loss to

person or property allegedly caused by an act or

omission of the political subdivision or of any of its

employees in connection with a governmental or

proprietary function, as follows:

(1) Except as otherwise provided in this division,

political subdivisions are liable for injury, death, or

loss to person or property caused by the negligent

operation of any motor vehicle by their employees

upon the public roads, highways, or streets when the

employees are engaged within the scope of their

employment and authority. The following are full

defenses to that liability:

(a) A member of a municipal corporation police

department or any other police agency was operating

a motor vehicle while responding to an emergency call

and the operation of the vehicle did not constitute

willful or wanton misconduct;

(b) A member of a municipal corporation fire

department or any other firefighting agency was

operating a motor vehicle while engaged in duty at a

fire, proceeding toward a place where a fire is in

progress or is believed to be in progress, or answering

any other emergency alarm and the operation of the

vehicle did not constitute willful or wanton

misconduct;

or operated by a political subdivision was operating a

motor vehicle while responding to or completing a call

for emergency medical care or treatment, the member

was holding a valid commercial driver’s license issued

pursuant to Chapter 4506. or a driver’s license issued

pursuant to Chapter 4507. of the Revised Code, the

operation of the vehicle did not constitute willful or

wanton misconduct, and the operation complies with

the precautions of section 4511.03 of the Revised

Code.

(2) Except as otherwise provided in sections 3314.07

and 3746.24 of the Revised Code, political

subdivisions are liable for injury, death, or loss to

person or property caused by the negligent

performance of acts by their employees with respect to

proprietary functions of the political subdivisions.

(3) Except as otherwise provided in section 3746.24 of

the Revised Code, political subdivisions are liable for

injury, death, or loss to person or property caused by

their failure to keep public roads, highways, streets,

avenues, alleys, sidewalks, bridges, aqueducts,

viaducts, or public grounds within the political

subdivisions open, in repair, and free from nuisance,

except that it is a full defense to that liability, when a

bridge within a municipal corporation is involved, that

the municipal corporation does not have the

responsibility for maintaining or inspecting the bridge.

(4) Except as otherwise provided in section 3746.24 of

the Revised Code, political subdivisions are liable for

injury, death, or loss to person or property that is

caused by the negligence of their employees and that

occurs within or on the grounds of buildings that are

used in connection with the performance of a

governmental function, including, but not limited to,

office buildings and courthouses, but not including

jails, places of juvenile detention, workhouses, or any

other detention facility, as defined in section 2921.01

of the Revised Code.

(5) In addition to the circumstances described in

divisions (B)(1) to (4) of this section, a political

subdivision is liable for injury, death, or loss to

person or property when liability is expressly imposed

upon the political subdivision by a section of the

Revised Code, including, but not limited to, sections

2743.02 and 5591.37 of the Revised Code. Liability

shall not be construed to exist under another section of

the Revised Code merely because a responsibility is

imposed upon a political subdivision or because of a

general authorization that a political subdivision may

sue and be sued.

HISTORY: : 141 v H 176 (Eff 11-20-85); 143 v H

381 (Eff 7-1-89); 145 v S 221 (Eff 9-28-94); 146 v H

350 (Eff 1-27-97); 147 v H 215 (Eff 6-30-97); 149 v

S 108, §§ 2.01. Eff 7-6-2001.

STATEMENT OF THE CASE

A. Factual Background

Respondents are persons claiming to be homeless who

persistently trespass without any claim of right upon public

property in the City of Cincinnati. While there, they leave

accumulations of refuse and personal items unattended an

without identification in areas where access is prohibited by

state law. In response to two deaths that occurred several

years ago in “homeless camps,” as well as to continuing

problems of crime, litter and garbage accumulation, and

citizen complaints, the City of Cincinnati Police Division, in

conjunction with the city sanitation department, developed a

plan to address the ongoing problem of these “camps.”

Respondents’ camps were located on access restricted public

property in the City of Cincinnati within the right of way of

an interstate highway. Pedestrian access to this area is

prohibited. The substance of Respondents’ claim challenges

cleanups that occurred in September and October of 2001

conducted under the supervision of Cincinnati police officers

using work crews from the Hamilton County Department of

Adult Probation composed of probationers performing

community service as part of their criminal sentence.

Respondents claim that various items of personal property

were seized and subsequently destroyed by the City of

Cincinnati without notice and hearing. Respondents are

concerned only with the destruction of their property and do

not challenge the lawfulness of the seizure.

The City of Cincinnati and the Board of Commissioners

of Hamilton County are parties to an agreement whereby the

Re ET ee

Hamilton County Department of Adult Probation provides

services to the City for purposes related to, “general litter

collection and ground maintenance of city-owned lots through

the City of Cincinnati area and as directed by the

Neighborhood Operations Division of the City of Cincinnati.”

Aware of this agreement, a Cincinnati police officer, Thomas

Prem, approached the Adult Probation Department to

schedule community service work crews to assist in the clean-

up of the areas from which Respondents claim their property

was removed and destroyed.

Officer Prem would determine which sites would be

cleaned two to three days in advance of the actual exercise.

He would plan the cleaning and coordinate with Adult

Probation and the Sanitation crews and would visit the sites

beforehand and determine if cleaning was necessary. In the

event that persons were present when he did this site analysis,

Prem would tell them that the cleaning crews were coming,

that they needed to get their valuables out, and that anything

remaining would be removed. On the day that the sites were

cleaned, if persons were present, they were informed why the

police were there, the locations of homeless shelters in the

area, that they had the right to take anything personal with

them, and that they needed to leave the premises because the

locations were restricted from that type of use. Persons

present on the day of the cleaning were given time to remove

their belongings and, if needed, were given bags in which to

transport their items of personal property.

The probation crews went to the sites as directed by the

Cincinnati Police Division. While there, they were directed

in their efforts solely by the Cincinnati police officer on the

scene. Prior to cleaning the area, the probationers were

instructed to bring any items of value to the police or the

probationers’ supervisors. Items that were readily identifiable

as personal property that had some value were removed from

the premises and returned to the owner, if the owner could be

readily ascertained, or logged as “found property” at

Cincinnati Police District 1 and sent to the police property

room. The Cincinnati Police Division policy mandates that

found property be retained for one year. Material determined

to be trash, litter, or other refuse was placed in bags by the

probationers and hauled away by the sanitation department.

Several of the Respondents made some effort to locate

their personal belongings by calling around to different

agencies. None, however, went to the police property room

to examine property that had been logged in and stored there

during the relevant time period. Counsel for Respondents,

following substantial discovery and the filing of the

defendants’ motions for summary judgment, did appear at the

property room and after only examining the written inventory

of the property stored there, submitted an affidavit in

opposition to the motions claiming that none of Respondents’

property appears on the logs.

B. Proceedings below

During the course of proceedings below, Respondents

specifically abandoned ail claims related to the seizure of their

property and elected to proceed solely with respect to its

claimed destruction by the City of Cincinnati, stating:

Plaintiffs do not contend that the Defendants had to

conduct a hearing before they removed the Plaintiffs’

possessions from public land. However, it is plain

that before the City destroyed the property it could

have and should have, pursuant to Constitutional

mandates, conducted a hearing. Failure to do so

(ee etre cen

ee ere ae

plainly subjects them to liability pursuant to 42 U.S.C.

§ 1983. (Pet. App. C at 19a)(emphasis original).

In granting summary judgment to all defendants the

district court determined that the destruction of Respondents’

property, if it occurred at all, occurred either at the scene of

the cleanup or at some point after it was removed to the police

property room. (Pet. App. C at 22a). The district court then

determined that any on-site destruction, whether negligently

or intentionally done by the probationers removing the

property, was random and unauthorized and therefore

governed by this Court’s decisions in Parrat v. Taylor, 451

U.S. 527, 101 S.Ct. 1908, 68 L. Ed.2d. 420 (1981), and

Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194; 82

L.Ed.2d. 393, (1984). (Pet. App. C at 22a). With respect to

any property that may have been removed to the police

property room, the district court observed that it was doubtful

that Respondents created any issue of material fact regarding

the destruction of their property due to “substantial overlap”

between the items claimed by Respondents to have been

seized, and the description of items logged into the property

room during the relevant time period. (Pet. App. C at 23a).

In reversing the district court’s grant of summary

judgment to the Hamilton County Department of Adult

Probation and its Chief Probation Officer, the Sixth Circuit

determined that Respondents had presented “substantial

evidence” sufficient to establish a custom of destroying

Respondents’ unattended property at the sites in question.

(Pet. App. B at 10a). In so finding, the court did not

differentiate between the acts of the City of Cincinnati and

those of the Department of Adult Probation. Nor did it point

to any evidence that the policy makers of the respective

governments were aware of this custom of destroying the

property of Respondents. In holding that “ a genuine issue

of material fact exists as to whether the property of homeless

persons like the plaintiffs was being discarded as part of the

City’s official policy,” the court then inexplicably reversed

the grant of summary judgment as to both the City of

Cincinnati and the Petitioners. (Pet. App. B at lla). The

defendants sought en banc review in separate motions which

were denied. (Pet. App. A).

C. Jurisdictional Statement

Respondents claimed federal jurisdiction in the first

instance under 28 U.S.C. §§ 1331 and 1343.

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED TO

REMEDY THE SIXTH CIRCUIT’S DEPARTURE

FROM THIS COURT’S EXPLICIT HOLDING IN

MONELL V. DEP’T OF SOC. SERVS.

The Sixth Circuit’s opinion directly conflicts with this

Court’s position regarding liability in matters brought under

42 U.S.C. § 1983. In reversing the district court’s grant of

summary judgment, the Sixth Circuit chose not to heed this

Court’s precedent established in Monell v. Dep't of Soc.

Servs., 436 U.S. 658, 98 S. Ct.2018, 56 L.Ed. 2d 611

(1978). Monell makes it very clear that liability under the

language of Section 1983 is intended to be personal, requiring

a link between the act complained of and the individual or

entity claimed to have been responsible. Liability under

Section 1983 is based on active unconstitutional behavior. In

short, Monell provides that before liability may attach to a

governmental entity under Section 1983 for the deprivation of

a constitutional right, it must be shown that the entity

“caused” the deprivation, and further, that Congress, when

enacting Section 1983, did not intend for liability to attach

where such causation is absent. Jd. at 692.

In this matter, Respondents do not contest the lawfulness

of the seizure of their property, the only act that engaged in

by the Hamilton County Adult Probation Department. The

constitutional deprivation claimed by Respondents is the

destruction of their personal property by the City of

Cincinnati, whether it happened at the cleanup sites or at some

later time after it had been logged into the police property

room. While it is certainly true that the county agreed to

provide probation crews to the city for general litter and trash

collection, it is wholly undisputed that the sites now at issue

were chosen by the Cincinnati Police Department and the

cleanups were accomplished under the direction of Cincinnati

police officers.

Causation in this case, assuming that it exists at all,

attaches only to the policies of the City of Cincinnati and not

to the policies of the Hamilton County Department of Adult

Probation and its Chief Probation Officer.

In placing the City of Cincinnati and the Petitioners on the

same footing, the Sixth Circuit plainly ignored this Court’s

direction regarding personal liability under Section 1983.

Ii. CERTIORARI SHOULD BE GRANTED AS THE

SIXTH CIRCUIT’S DECISION CONFLICTS WITH

DECISIONS OF THE NINTH AND ELEVENTH

CIRCUITS.

Other circuits dealing with issues related to the removal

and destruction of personal property left by trespassers on

public lands and have reached different results.

A. The Eleventh Circuit’s Decision in Church v. City of

Huntsville

The Sixth Circuit’s decision conflicts with the ruling of

the Eleventh Circuit Court of Appeals in Church v. City of

Huntsville, 30 F.3d 1332, (11" Cir. 1994). City of Huntsville

involved a suit brought by homeless residents against the city

alleging that it had deprived them of various constitutional

rights as part of a concerted effort to drive them out of the

city. The homeless plaintiffs alleged inter alia that their

Fourth and Fifth Amendment rights were violated by the City

of Huntsville when the City assisted in the State of Alabama

in the evicting them and removing their personal property

from beneath bridges and overpasses. The plaintiffs sought

declaratory and injunctive relief, as well as compensatory

damages for loss of their property. Following a hearing, the

district court preliminarily enjoined the city, its employees,

and agents from implementing a policy of isolating or

removing plaintiffs, harassing, intimidating, deiaining, or

arresting plaintiffs, and using the building or zoning codes to

shut down or condemn buildings used by plaintiffs, solely

because they were homeless. /d. at 1335. The Eleventh

Circuit reversed the decision granting the injunction, finding

that plaintiffs lacked standing to seek such relief and that they

failed to show a substantial likelihood that a city policy or

custom resulted in a deprivation of their constitutional rights

under 42 U.S.C. § 1983. /d. at 1346.

In addition, the court specifically held that a city does not

violate the constitutional rights of homeless persons

trespassing on public land when it suggests and actively

participates in an eviction pursued by another governmental

agency. Id. at 1344-45. The Eleventh Circuit ruled that the

eviction and removal of the homeless persons’ property from

State-owned lands was controlled by the State and the City’s

——<—

assistance in that effort did not rise to the level of a

constitutional violation. Jd. at 1344 (The State “was

responsible for removing the personal property and makeshift

structures of the homeless from under the bridges. The State

was also responsible for storing any personal items taken from

under the bridges.”). This conflicts with the Sixth Circuit’s

decision in this matter which essentially holds Department of

Adult Probation responsible for activity performed,

controlled, and directed by the City of Cincinnati occurring

on access restricted, publicly-owned property over which the

City has the affirmative responsibility under law to maintain

free from nuisance. O.R.C. §§ 723.01 and 2744.02(B)(3).

This ruling came despite the circuit court’s specific

recognition that ti appeared: “the City had a custom of

destroying homeless individuals’ property without notice or

the right to reclaim the items taken” (Pet. App. at

10a)(Emphasis supplied.).

The Eleventh Circuit also ruled that the City of Huntsville

could not be held liable despite “testimony that City police

officers participated in the process of determining which

property should be destroyed as unsanitary, and which

property should be kept by the State to be reclaimed by the

bridge people” without “evidence that this aspect of the police

activity was authorized by a final policymaker.” Id. at 1345

n. 6. This conflicts with the Sixth Circuit decision which held

the Hamilton County Defendants liable for such conduct

despite the lack of any evidence that this conduct was

authorized by a final policymaker. (Pet. App. B).

Finally and importantly, the Eleventh Circuit ruled that

even if the court were to impute to the City of Huntsville full

responsibility for the removal of the homeless and their

property, the court would not find that “such action is

indicative of a City policy to violate the rights of the

homeless.” Jd. at 1345. This conclusion by the Eleventh

Circuit is based on the Eleventh Circuit’s refusal to construe

the United States Constitution as conferring the right of

trespass onto public lands or conferring the right to store

personal belongings on public lands:

The Constitution does not confer the right to trespass

on public lands. Nor is there any constitutional right

to store one’s personal belongings on public lands. In

this case, the property owner, the State of Alabama,

authorized the removal of the homeless and their

belongings from under the bridges and overpasses. It

is irrelevant that the State made its decision at the

request of the City and that City workers aided state

employees in carrying out that decision.

City of Huntsville, 30 F.3d at 1345.

This decision is in accord with prior decisions of the

United States Supreme Court determining that the

Government has, with respect to its own lands the “rights of

an ordinary proprietor to maintain its possession and

prosecute trespassers . . . [and that it] is charged with the duty

and clothed with the power to protect the public domain from

trespass and unlawful appropriation.” Light v. United States,

220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570 (1911) (internal

Citations omitted); Camfield v. United States, 167 U.S. 518,

524, 17S. Ct. 864, 42 L. Ed. 260 (the Government may deal

with its lands precisely as a private individual may deal with

his own); see also: United States of America v. Ruckman, 806

F.2d 1471, 1473 (1986), citing: Utah Power and Light Co. v.

United States, 243 U.S. 389, 405, 37 S.Ct. 387, 61 L.Ed.

791, (1917)(“A necessary ancillary to this regulatory power

over lands within the public domain is the power to control

their occupancy and use, to protect them from trespass and

injury . . .”).The Eleventh Circuit’s explicit ruling that no

constitutional deprivation occurs when a governmental entity

removes the homeless and their property from public lands

directly contravenes the Sixth Circuit’s answer to the

threshold question they explicitly posed as to: “whether the

interest at stake is within the Fourteenth Amendment’s

protection of liberty and property.” (Pet. App. B at 7a),

quoting Arnett v. Myers, 281 F.3d 552, 564 (6" Cir. 2002).

The Sixth Circuit answered that questicn in the affirmative

stating simply: “[t]here can be little doubt that the plaintiffs

have a protected property interest in their own items of

value.” (Pet App. B at 7a).

The factual context of the City of Huntsville precisely

mirrors the participation of the county probation crews in this

matter. First, it is undisputed that the clean-up sites were

chosen by the City of Cincinnati, the probation crews were

directed to these locations by City police officers, and that

police officers instructed the crews in what to collect and bag.

Then, at the conclusion of the clean-up, the crews placed the

bagged items onto City trucks and the participation of the

probation crew was at an end. Finally, as Respondents have

now acknowledged, any destruction of these removed items --

if it indeed occurred at all - was accomplished solely by the

City of Cincinnati without any further involvement of the

Department of Adult Probation.

The removal of Respondents’ property is the only activity

in which the Department of Adult Probation participated. The

destruction of that property by the City of Cincinnati -

assuming that it occurred and also rose to the level of a

constitutional violation - is a separate, intervening act over

which the department exercised no control. As such, the

county Defendants have committed no violation of any

constitutional or federally recognized right of the Plaintiff-Appellants.

B. The Ninth Circuit’s Decision in Stone v. Agnos

The Sixth Circuit decision also conflicts with a ruling of

the Ninth Circuit Court of Appeal. In Stone v. Agnos, 960

F.2d 893 (9" Cir. 1992), the Ninth Circuit ruled that no

liability attached to the mayor or police chief or city in

connection with the confiscation and destruction of a homeless

person’s property. Jd. at 895-896. The plaintiff in that case,

a homeless person, sued the City and County of San Francisco

as well as the mayor and police chief of that city arising from

the seizure of personal property he had left on city-owned

property as well as his arrest for refusing to leave the city-

owned property. The plaintiff alleged inter alia that these

defendants “deliberately and intentionally conspired to deprive

him of liberty and property in violation of the Due Process

and Equal Protection Clauses of the Fourteenth Amendment.”

Id. , 960 F.2d at 895.

The Ninth Circuit stated that summary judgment

adjudication in the defendants’ favor was warranted. The

Ninth Circuit differs with the decision of the Sixth Circuit in

two areas. First, the Ninth Circuit ruled that the plaintiff was

required to show that “taking of the property was

unreasonable” before he could claim “that the destruction of

his property violated the Fourteenth Amendment.” 77. 960

F.2d at 895. Second, the Ninth Circuit ruled in Stone a

homeless person must demonstrate that the a policymaker

either effected the destruction of his property or authorized a

policy to do so. Id. at 896.

On the other hand, the Sixth Circuit, without any analysis

of reasonableness, summarily concluded that Respondents

had sufficiently alleged a Fourteenth Amendment deprivation.

(Pet App. B at 7a). The Sixth Circuit was clearly aware of

the different levels of culpability between the City and the

Department of Adult Probation, and described the acts of both

in some detail in concluding that there were issues of fact

sufficient to reverse the district court’s decision. (See Pet.

App. B at 10a -11 a). In spite of this awareness, the circuit

court simply lumped both agencies together and reversed the

district court.

lil. CONCLUSION

Issues associated with trespassers, homeless or not, along

public highways in urban areas have evolved into a

nationwide problem in recent years. The responsibility of

addressing and resolving the important issues related to these

trespassers and the by-products of their life-style choices, is

almost always shouldered by the local governments having

control and responsibility over the highways within their

respective jurisdictions. In this case, the resolution was

completed under the direction of Cincinnati police officers

using manpower provided by probationers performing

community service. Illegal campsites were located and

persons present were notified and encouraged to remove their

belongings. Unattended property was removed and allegedly

destroyed.

The destruction of the removed property is the only harm

claimed by Respondents during the proceedings below.

Respondents specifically identified the City as the agency

responsible for the alleged destruction of their property.

Even so, the Sixth Circuit concluded that summary judgment

for the Hamilton County Petitioners was inappropriate. It is

clear that the circuit court treated the removal of property by

the County crews co-extensively with any later destruction

that may have occurred at the hands of the City.

This Court should grant the writ of certiorari requested by

the Hamilton county Department of Adult Probation and its

Chief Probation Officer. The writ is necessary to reinforce

the individual nature of Section 1983 liability and to resolve

the clear conflict between the holding of the Sixth Circuit and

the prior holdings of the Ninth and Eleventh Circuits.

Respectfully submitted,

JOSEPH T. DETERS

PROSECUTING ATTORNEY

HAMILTON COUNTY, OHIO

David T. Stevenson

Counsel of Record

Assistant Prosecuting Attorney

230 East Ninth Street, Suite 4000

Cincinnati, Ohio 45202

DDN: (513) 946-3120

FAX: (513) 946-3018

ATTORNEY FOR PETITIONERS

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 03-3916

{Filed, February 25, 2005]

GERALD CASH, ET AL,

Plaintiffs-Appellants,

¥.

HAMILTON COUNTY

DEPARTMENT OF ADULT

PROBATION, ET AL.,

Defendants-Appellees.

ee a a ae a a ae a a, ae

ORDER

MERRITT, MOORE, and GILMAN, Circuit Judges.

The court having received two petitions for rehearing en

banc, and the petitions having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petitions for

rehearing have been referred to the original panel.

The panel has further reviewed the petitions for rehearing

and concludes that the issues raised in the petitions were fully

considered upon the original submission and decision of the

case. Accordingly, the petitions are denied with the following

two corrections to the opinion: page 3, line 2, change the

word three to two; page 3, line 3, change the word two to

three.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed, November 12, 2004]

No. 03-3916

GERALD CASH et al.,

Plaintiffs-Appellants,

Vv.

HAMILTON COUNTY

DEPARTMENT OF ADULT

PROBATION et al.,

Defendants-Appellees.

Nee Ne eee eee eee Se”

OPINION

RONALD LEE GILMAN, Circuit Judge. Homeless

individuals in Cincinnati, Ohio brought suit pursuant to 42

U.S.C. § 1983 against the city and county, alleging that these

entities had violated the plaintiffs’ Fifth and Fourteenth

Amendment rights to the due process of law by destroying

their personal property without notice and without any right

to reclaim the items taken. The district court granted

summary judgment in favor of the defendants. For the reasons

set forth below, we REVERSE the judgment of the district

court and REMAND the case for further proceedings

consistent with this opinion.

I. BACKGROUND

A. Factual background

The City of Cincinnati pays Hamilton County to provide

city cleanup services. Crews of individuals sentenced to

community service and assigned to the Hamilton County

Department of Adult Probation’s Community Service

Program, led by a field supervisor, provide litter collections

and ground maintenance of city-owned lots. At issue in this

case are the cleanup activities of these crews in areas where

homeless individuals reside.

_ In October of 2001, Gerald Cash, a homeless man, was

living under the Fifth Street Viaduct in Cincinnati with his

wife, Clara Cash, and his friend, Rocky Wayne Adkisson.

One day in mid-October of 2001, the Cashes returned to their

living space and found a group of people from the Community

Service Program taking away their property. When Gerald

Cash asked for his property to be returned, the work crew

supervisor allegedly told him: “I’m not allowed to; we have

been given orders to clear out under all the bridges.”

The Cashes and Adkisson made efforts to locate their

property, but were unsuccessful. Clara Cash stated in an

affidavit that she called the City of Cincinnati’s Sanitation

Division and, although she was told that her property would

be held for 3U days, she was not told where it was located.

Molly Lyons, an organizer with the Greater Cincinnati

Coalition for the Homeless, also tried to locate the property

that was taken from under the Fifth Street Viaduct. Lyons

said that she called the Sheriff's Office and was told that “the

stuff from the homeless sites is thrown away.”

B. Procedural background

Five homeless individuals--Gerald Cash, Clara Cash,

Rocky Wayne Adkisson, Phillip Garcia, and Gregory B.

Wahoff--filed suit against the Hamilton County Department of

Adult Probation, the Chief Probation Officer for the

Department, and the City of Cincinnati (hereafter referred to

collectively as the City and County) in October of 2001. Two

of the five plaintiffs have since died. The remaining three

(hereinafter the plaintiffs) continue with this suit.

The plaintiffs sought actual damages and injunctive relief,

claiming that the City and County violated their Fifth and

Fourteenth Amendment rights by destroying their property

without affording them the due process of law. They also

sought a preliminary injunction requiring the City and County

to cease and desist from their alleged practice of seizing and

confiscating the property of homeless citizens without notice

and a hearing. Subsequently , however, the plaintiffs explicitly

stated that they no longer contest the City’s authority to

remove personal property from municipally-owned areas.

They acknowledge in their brief that “it is the destruction of

property without notice and a hearing which is at the heart of

Plaintiff's case.” (Emphasis in original.)

In May of 2002, the City and County moved for summary

judgment. The district court, a little over a year later, granted

these motions and denied the plaintiffs’ motion for a

preliminary injunction. This appeal followed.

Se PA Eee ee

Il. ANALYSIS

A. Standard of review

We review a district court’s grant of summary judgment

de novo. Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d

623, 629 (6th Cir. 2002). Summary judgment is proper where

there exists no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c). In considering a motion for summary judgment, the

district court must construe all reasonable inferences in favor

of the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538,

106 S. Ct. 1348 (1986). The central issue is “whether the

evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S.

Ct. 2505 (1986).

B. The alleged constitutional violations of the City and

County

The plaintiffs brought suit against the City and County

under 42 U.S.C. § 1983, which provides in pertinent part as

follows:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

ltt anit 6 eaten es te

the party injured in an action at law, suit in equity, or

other proper proceeding for redress[.]

“Section 1983 does not itself create any constitutional rights;

it creates a right of action for the vindication of constitutional

guarantees found elsewhere.” Braley v. City of Pontiac, 906

F.2d 220, 223 (6th Cir. 1990). The plaintiffs allege that the

City and County violated their Fifth and Fourteenth

Amendment rights to the due process of law by destroying

their personal property without notice and without the right to

reclaim the items taken.

This court engages in a two-pronged inquiry when

considering a municipal-liability claim. Doe v. Claiborne

County, 103 F.3d 495, 505 (6th Cir. 1996). First, the court

must determine whether the plaintiffs have asserted the

deprivation of a constitutional right. Jd. at 505-06. If so, the

court must then decide whether the City and County are

responsible for that deprivation. Jd. at 507.

The threshold question is “whether the interest at stake is

within the Fourteenth Amendment’s protection of liberty and

property.” See Arnett v. Myers, 281 F.3d 552, 564 (6th Cir.

2002) (discussing whether hunters had a constitutionally-

protected interest in their duck blinds). There can be little

doubt that the plaintiffs have a protected property interest in

their own items of value. See Harris v. City of Akron, 20 F.3d

1396, 1401 (6th Cir. 1994) (“Generally, the process that is

due before the state may deprive an owner of property

includes notice to the owner prior to the deprivation and an

opportunity for a predeprivation hearing.”).

We must next decide if a genuine issue of material fact

exists as to whether the City and County are responsible for

the alleged due process violation. Because respondeat

A =y

superior liability is not available as a means of recovery under

§ 1983, Doe, 103 F.3d at 507, the plaintiffs cannot base their

claims against the City and County solely on the conduct of

the workers who effected the sweep of homeless areas. See

Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 56 L. Ed.

2d 611, 98 S. Ct. 2018 (1978) (holding “that a local

government may not be sued under § 1983 for an injury

inflicted solely by its employees or agents”). The plaintiffs

must demonstrate that the City and County are themselves the

wrongdoers. /d.

Municipalities and other bodies of local government may

be sued pursuant to 42 U.S.C. § 1983 if they are “alleged to

have caused a constitutional tort through ‘a policy statement,

ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers.’” City of St. Louis v.

Praprotnik, 485 U.S. 112, 121, 99 L. Ed. 2d 107, 108 S. Ct.

915 (1988) (citing Monell, 436 U.S. at 690). Section 1983

also “authorizes suit ‘for constitutional deprivations visited

pursuant to governmental ‘custom’ even though such a custom

has not received formal approval through the body’s official

decision making channels.’” /d. (citing Monell, 436 U.S. at

690-91). Although a § 1983 plaintiff might not be able to

demonstrate that a written policy exists, he or she “may be

able to prove the existence of a widespread practice that,

although not authorized by written law or express municipal

policy, is so permanent and well settled as to constitute a

custom or usage with the force of law.” Monell, 436 U.S. at

691. (citation and quotation marks omitted).

This court has explained that a “custom” for the purposes of

§ 1983 liability

must be so permanent and well settled as to constitute

a custom or usage with the force of law. In turn, the

notion of ‘law’ must include deeply embedded

traditional ways of carrying out state policy. It must

reflect a course of action deliberately chosen from

among various alternatives. In short, a ‘custom’ is a

‘legal institution’ not memorialized by written law.

Doe, 103 F.3d at 507-08 (citations and quotation marks

omitted). Not only must the plaintiffs show that the City and

County as entities caused the constitutional violation, but they

“must also show a direct causal link between the custom and

the constitutional deprivation.” /d. at 508. “This requirement -

is necessary to avoid de facto respondeat superior liability

explicitly prohibited by Monell.” /d.

The district court relied exclusively on “the undisputed

testimony from the supervising police officers [who stated]

that the probationers are instructed to separate personal

belongings from trash. Personal belongings are then

inventoried in the police property room where they are held,

according to one police officer, for one year before they are

thrown away.” From this “undisputed evidence,” the district

court reasoned that any destruction of the plaintiffs’ property

that occurred at the homeless site “would be unauthorized

because the probationers are instructed to separate personal

belongings from trash.”

The district court based its holding on the United States

Supreme Court’s decisions in Parratt v. Taylor, 451 US.

527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), and Hudson

v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194

(1984), which stand for the proposition that unauthorized

deprivations of property by the state are not violations of due

process so long as postdeprivation remedies are available.

Concluding that any destruction of the plaintiffs’ property

would have been unauthorized, given the purported practice

10a

of preserving items of value, the court held that no due

process violation occurred. The plaintiffs, in other words,

were free to sue the City and County after-the-fact either for

replevin (to get their property back) or for money damages.

Contrary to the declaration of the district court that the

supervising police officers’ testimony was “undisputed,” the

plaintiffs presented substantial evidence suggesting that the

City and County had a custom and practice of hauling to the

dump all unattended property found at the sites in question.

Jeffrey Smith, Field Supervisor for the Hamilton County

Adult Probation Department, testified that he had been

accompanying adult probationers sentenced to community

service on cleanup jobs for ten years. Smith explained that he

and his work crews “just follow the Cincinnati Police, and

they direct us where to go, and they direct the probationers

what to clear and how to do it.”

In fact, Smith stated that he is not even present in the

immediate area where the cleanup takes place. “I never go up

[to] an area,” Smith asserted, “I just stay down below and let

the officer direct accordingly.” Smith testified that the

standard cleanup procedure was that a Cincinnati police

officer would direct the probationers to put all of the items in

bags and then place the bags into a sanitation truck. In direct

opposition to the testimony that the district court relied upon,

Smith testified that he never observed a Cincinnati police

officer segregating any of the items and saying that some

should be saved. Smith stated that the items are all “hauled

off to the trash, to the dump.”

Testimony from Cincinnati Police Officer Thomas J.

Branigan also supports the plaintiffs’ contention that the City

had a custom of destroying homeless individuals’ property

without notice or the right to reclaim the items taken.

lla

Branigan testified that he was present for three days of

cleanup in mid-October of 2001. The cleanup process,

according to Branigan, is swift and indiscriminate. He

explained that the probationers “don’t rake the property down

to get it to a fine clean. They don’t use shovels; whatever they

put in their hands, put in the bag, and pass it down.”

Branigan distinguished this procedure in dealing with the

homeless from the Police Department’s general policy for

dealing with personal property found at other locations around

the city. In Fountain Square, for example, any unattended

property is taken back to the police station, logged, and held

as found property. If someone can prove that the property is

theirs within “the proper amount of time,” the property is

returned to that person.

Testimony contrary to that of Smith and Branigan was

presented by the City and County. For the purpose of

summary judgment, however, all of the evidence must be

construed in favor of the plaintiffs as the nonmoving party.

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In

short, a genuine issue of material fact exists as to whether the

property of homeless persons like the plaintiffs was being

discarded as part of the City’s official policy. The district

court therefore erred in granting summary judgment to the

City and County on the basis that the relevant testimony was

uncontested.

A genuine issue of material fact also exists over whether

adequate notice was provided to homeless individuals like the

plaintiffs. The established precedent is that individuals whose

property interests are at stake are entitled to a “notice and

opportunity to be heard.” United States v. James Daniel Good

Real Prop., 510 U.S. 43, 48, 126 L. Ed. 2d 490, 114 S. Ct.

492 (1993). The key inquiry in such circumstances is whether

aia ai i

12a

the notice is “reasonably calculated, in all the circumstances,

to appraise interested parties of the pendency of the action and

afford them an opportunity to present their objections.”

Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1953). The City

submits that it published a notice in the local newspaper,

which was available for anyone in the Cincinnati area to pick

up and read. By contrast, the plaintiffs contend that such a

notice is per se insufficient, particularly when the educational

and financial restraints of the homeless community are

considered. This is an issue for the district court to resolve on

remand.

C. Ripeness

As part of its defense, City argues that the plaintiffs’ Fifth

Amendment takings claim is not ripe because the plaintiffs did

not pursue adequate state procedures for seeking

compensation for the alleged taking. The City contends,

therefore, that this claim must be dismissed for lack of subject

matter jurisdiction. The plaintiffs, however, have abandoned

their Fifth Amendment takings claim and are relying solely on

the Fourteenth Amendment as the legal basis for their lawsuit.

We therefore have no need to address the ripeness issue.

D. Hamilton County’s Eleventh Amendment

immunity argument

The County argues that it is entitled to Eleventh

Amendment immunity from suit because the Hamilton County

Department of Adult Probation is an arm of the common pleas

and municipal courts of the state of Ohio. To support this

contention, the County cites a number of Ohio statutes. See

O.R.C. § 2301.27(A)(1) (“The court of common pleas may

establish a county department of probation.”); § 1901.33(A)

13a

(“The judge or judges of a municipal court may appoint one

or more . . . probation officers. . . . Probation officers have

all the powers of regular police officers and shall perform any

duties that are designated by the judge or judges of the

court.”); § 1901.33(B) (“If a municipal court appoints one or

more probation officers, those officers shall constitute the

municipal court department of probation unless the court

designates other employees as the department of probation for

the court.”).

The bald assertion that the Department is an arm of the

common pleas and municipal courts is insufficient by itself to

garner Eleventh Amendment immunity. See Alkire v. Irving,

330 F.3d 802, 811 (6th Cir. 2003) (rejecting a per se rule

granting Eleventh Amendment immunity to county courts).

Rather, this argument is one of many factors that must be

considered by the district court. We have recognized that the

most important factor is “will a State pay if the defendant

loses?” Brotherton v. Cleveland, 173 F.3d 552, 560 (6th Cir.

1999). In Brotherton, this court considered whether a county

coroner enjoyed Eleventh Amendment immunity. We

concluded that “because Hamilton County--rather than the

State of Ohio--would satisfy any money judgment against its

county coroner, the case does not implicate the Eleventh

Amendment.” Id. at 563; see also S.J. v. Hamilton County,

374 F.3d 416, 420-21 (6th Cir. 2004) (rejecting sovereign

immunity for a juvenile training facility and noting that the

“emphasis on ‘who pays’ is substantial”); Alkire, 330 F.3d at

811 (“We now recognize that the question of who pays a

damage judgment against an entity as the most important

factor in arm-of-the-state analysis, though it is unclear

whether it is the only factor or merely the principal one.”).

The County raised the issue of Eleventh Amendment

immunity in its motion for summary judgment. Although the

14a

district court granted the County’s motion, the order provides

no findings or analysis pertaining to the Eleventh

Amendment. A final resolution of this issue will turn on

factual findings regarding whether the Department of Adult

Probation is part of the Ohio court system and whether the

State or the County would pay damages for a constitutional

violation perpetrated by the Department. We therefore

remand this issue to the district court for further development.

Ill. CONCLUSION

For all of the reasons set forth above, we REVERSE the

judgment of the district court and REMAND the case for

further proceedings consistent with this opinion.

15a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION, CINCINNATI

Case No. C-1-01-753

[Filed June 24, 2003]

Gerald Cash, et al.

Plaintiffs,

Hamilton County Department

of Adult Probation, et al.,

Defendants.

ed ee ee ee ee es

JUDGMENT IN A CIVIL CASE

This action came to trial or hearing before the Court. The

issues have been tried or heard and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED

PLAINTIFF’S MOTION FOR A_ PRELIMINARY

INJUNCTION [DOC. 2] IS DENIED

l6a

DEFENDANTS’ RESPECTIVE MOTIONS FOR

SUMMARY JUDGMENT [DOCS. 24 & 25] ARE

GRANTED

AND THIS CASE IS CLOSED PURSUANT TO ORDER OF

THE COURT [DOC. 35]

JUNE 24, 2003

KENNETH J. MURPHY

Clerk

/s/

(By) Deputy Clerk

17a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No. C-1-01-753

[Filed June 24, 2003]

Gerald Cash, et al.

Plaintiffs,

Hamilton County Department

of Adult Probation, et al.,

Defendants.

Ne Nee eee ae Ge”

ORDER

This matter is before the Court on a motion for a

preliminary injunction (Doc. No. 2) filed by Plaintiffs Gerald

Cash, Clara Cash, Gregory Wahoof, Phillip Garcia, and

Rocky Wayne Addison, and motions for summary judgment

filed by Defendants City of Cincinnati (Doc. No. 24) and

Hamilton County Department of Adult Probation and Michael

Walton (Doc. No. 2S). For the reasons which follow,

plaintiffs’ motion for a preliminary injunction is not well-

taken and is DENIED; Defendants’ respective motions for

summary judgment are well-taken and are GRANTED.

mike stad

18a

I. Background

Plaintiffs in this case are homeless persons who live and

keep such possessions as they have underneath bridges and

overpasses throughout The City of Cincinnati See Amended

Complaint 4{ 3, g, 10. The Defendants are the City of

Cincinnati, a municipal corporation organized under the laws

of the state of Ohio, the Hamilton County Adult Probation

Department, an agency of Hamilton County, Ohio charged

with supervising persons convicted of crimes, and Michael

Walton, chief of the Adult Probation Department. Jd. 44 4, 5

The amended complaint contends that the City of

Cincinnati and the Adult Probation Department have an

agreement wherein the Adult Probation Department provides

to the City probationers who have community service

obligations. These probationers are then put to work by the

City. According to the amended complaint, the City has been

using the probationers, under the supervision of a police

officer, to conduct “raids” on their bivouac areas when they

are absent. The amended complaint alleges that during these

“raids,” the City confiscates or disposes of their belongings,

which mostly consist of clothes, medicine, and small personal

effects.

While the City and the Adult Probation Department admit

they entered into the agreement as alleged, and that the City

conducts clean-up operations in and around these bridges and

overpasses, the undisputed testimony from the supervising

police officers is that the probationers are instructed to

separate personal belongings from trash. Personal belongings

are then inventoried in the police property room where they

are held, according to one police officer, for one year before

they are thrown away. Doc. No. 25, Ex. Boerlein Dep., at

OT |

19a

On November 1, 2001, Plaintiffs filed an amended

complaint for a preliminary and permanent injunction against

the City and the Adult Probation department pursuant to 42

U.S.C. 1983. The amended complaint alleges that

Defendants’ conduct, raiding their encampments, and seizing

and disposing of their things without notice or hearing,

violates their rights under the Fourth, Fifth, and Fourteenth

Amendments. Although the amended complaint appears to

challenge the actual seizure of property, in their response to

Defendants’ motions for summary judgment, Plaintiffs, who

have admitted they were trespassers on the areas in question,

state that their claims are limited to the following contention:

Plaintiffs do not contend that Defendants had to

conduct a hearing before they removed Plaintiffs’

possessions from public land. However, it is plain that

before the City destroyed the property it could have

and should have, pursuant to Constitutional mandates,

conducted a hearing.

Doc. No. 26, at 1. (emphasis in original). Therefore, as the

court understands it, Plaintiffs have withdrawn any challenge

to the actual practice of conducting the “raids” and now

confine their constitutional claims to the alleged destruction of

their property without notice and a hearing.

Ii. Summary Judgment Standard of Review

Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter, of law.” Fed. R. Civ. P.

56 (c) . The evidence presented on a motion for summary

judgment is construed in the light most favorable to the non-

20a

moving party, who is given the benefit of all favorable

inferences that can be drawn therefrom. United States v.

Diebold, Inc., 369 U.S. 654 (1962). “The mere existence of

some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue

of material fact.” Anderson v. Liberty Lobby Inc. 477 U.S.

242, 248 (1986)(emphasis in original). The Court will not

grant summary judgment unless it is clear that a trial is

unnecessary. The threshold inquiry to determine whether

there is a need for trial is whether “there are any genuine

factual issues that properly can be resolved only by a finder

of fact because they may reasonably be resolved in favor of

either party.” Anderson, 477 U.S. at 250. There is no issue

for trial unless there is sufficient evidence favoring the non-

moving party for a jury to return a verdict for that party. Jd.

The fact that the weight of the evidence favors the moving

party does not authorize the court to grant summary

judgment. Poller v. Columbia Broadcasting System, Inc., 368

U.S. 464, 472 (1962) . “ [T]he issue of material fact required

by Rule 56(c)...to entitle a party to proceed to trial is not

required to be resolved conclusively in favor of the party

asserting its existence; rather, all that is required is that

sufficient evidence supporting the claimed factual dispute be

shown to require a jury or a judge to resolve the parties’

differing versions of the truth at trial.” First Natinal Bank v.

Cities Service Co., 391 U.S. 253, 288-89 (1968) .

Moreover, although summary judgment must be used with

extreme caution since it operates to deny a litigant his day in

court, Smith v. Hudson 600 F.2d 60, 63 (6th Cir.) , Cert.

dismissed, 444 U.S. 986 (1979) the United States Supreme

Court has stated that the “{[s}ummary’ judgment procedure is

properly regarded not as a disfavored procedural shortcut, but

2la

rather as an integral part of the Federal Rules as a whole,

which are designed to ‘secure the just, speedy and

inexpensive determination of every action.” Celotex Corp. v.

Catrett 477 U.S. 317, 327 (1986). According to the Supreme

court, the standard for granting summary judgment mirrors

the standard for a directed verdict, and thus summary

judgment is appropriate if the moving party establishes that

there is insufficient evidence favoring the non-moving party

for a jury to return a verdict for that party. Id. at 323;

Anderson, 477 U.S. at 250.

Accordingly, summary judgment is clearly proper

“against a party who fails to make a showing sufficient to

establish the existence of an element essential to the party’s

case and on which that party will bear the burden of proof at

trial.” Celotex Corp., 477 U.S. at 322, Significantly, the

Supreme Court also instructs that the “the plain language of

Rule 56(e) mandates the entry of summary judgment, after

adequate time for discovery and upon motion” against a party

who fails to make that showing with significantly probative

evidence, Id. ; Anderson, 477 U.S. at 250. Rule 56(e) requires

the non-moving party to go beyond the pleadings and

designate “specific facts showing that there is a genuine issue

for trial.” Jd.

Further, there is no express or implied requirement in

Rule 56 that the moving party support its motion with

affidavits or similar materials negating the opponent’s claim.

Id. Rule 56 (a) and (b) provide that parties may move for

summary judgment “with or without supporting affidavits.”

Accordingly, where the non-moving party will bear the

burden of proof at trial on a dispositive issue, summary

judgment may be appropriate based solely on the pleadings,

depositions, answers to interrogatories, and admissions on

file.

22a

Ill. Analysis

It is clear to the court that on the facts of this case, even

viewed in the light most favorable to Plaintiffs, there was no

due process violation committed when the police allegedly

disposed of their things without notice or a hearing. The

Court discerns two discrete instances when Plaintiffs’

property could have been disposed of without notice - at the

actual location where the cleanup occurred or after being held

in the property room by the police, department.

In the former situation, Plaintiffs’ due process rights are

governed by the U.S. Supreme Court’s decisions in Parratt v.

Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer 468 U.S.

517 (1984).These cases collectively hold that there is no due

process violation for the random unauthorized, destruction of

personal property, whether negligently or intentionally done,

if there are adequate post-depravation, remedies available to

the plaintiff. In this case, it is undisputed that the City’s

intent is not to destroy Plaintiffs’ things, but rather to remove

them from areas where they do not belong. Any on-the-scene

destruction of Plaintiffs’ personal property would be

unauthorized because the probationers are instructed to

separate personal belongings from trash. Any deviation from

these instructions by the probationers, whether done

negligently because the probationer was not able to distinguish

between property and trash, or whether done intentionally by

the probationer, would certainly be a random, unforeseeable

occurrence with respect to any individual item. See Zinermon

v. Burch, 494 U.S. 113, 136 (1990) (holding the rule in

Parrat and Hudson applies when the deprivation is

unpredictable). Moreover, in this situation, Plaintiffs have

adequate state post-deprivation remedies available for

property withheld or destroyed in the form of a replevin

action against the City and/or County. E.g., Bernard v. City

23a

Of Lakewood, 747 N.E.2d 838 (Ohio Ct. App. 2000)

(replevin action against city for return of gun collection

confiscated by police) ; State ex rel Jividen v. Toledo Police

Dept., 679 N.E.2d 34 (Ohio Ct. App. 1996)(stating the

proper method to compel return of property wrongfully held

is to file a replevin action); see 19 Ohio Jur. 3d Conversion

& Replevin § 110 (“ [If the defendant no longer has

possession of the property, the replevin action will proceed as

one for damages only ,”) Thus, because in the on-site context,

any destruction of Plaintiffs’ property would be random and

unforeseeable, and because Plaintiffs have available adequate

post-deprivation remedies, Plaintiffs have failed to state a

claim for violation of due process.

The second question is, once the police have taken

Plaintiff's property and have moved it to the property room

for storage, what notice, if any, are Plaintiffs due before their

belongings are disposed of? Before attempting to answer this

question, however, the Court notes that it is debatable

whether Plaintiffs have created an issue of material fact that

the City has destroyed the property that was removed from

their campsites. Only a cursory comparison between the

items listed as being taken in the amended complaint and the

items logged into the police property room at the relevant

timne indicates that there is a substantial overlap between the

two lists, Compare Amended Complaint {{ 8-11, with Doc.

No. 26, Newman Aff. Ex. 1 (Property Room Inventory Log

from October 2001)' In other words, there are many things

' For instance, among the items the amended complaint alleges

were seized or destroyed by the police were the following: Nike

gym shoes, a backpack, jeans, a sleeping bag, boots, a folding

chair, a cell phone, cash, a camera, a bible, medication, toiletries,

clothes, compact discs, and photographs. The police inventory log

24a

listed on the police inventory sheet which could be the items

Plaintiffs now claim were destroyed. Since Plaintiffs have

apparently never taken the time to go to the police department

to attempt to identify and/or reclaim their belongings, there is

a substantial question as to whether Plaintiffs have carried

their burden of demonstrating an actual deprivation of

property at the hands of the City.

The Court will assume for the moment, however, that /

Plaintiffs’ belongings were destroyed as they claim. The Due |

Process Clause requires that notice be “reasonably calculated,

under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to

present their objections.” Mullane v. Central Hanover Bank

& Trust Co., 339 U.S. 306, 314 (1950). Notice by

publication is generally inadequate under the Due Process

Clause where the property owner is known to the government

or where his name and address are readily ascertainable.

Mennonite bd. Of Missions-v. Adams, 462 U.S. 791, 797

(1983). The inverse of this statement is that notice by

publication is sufficient where the property owner is not

known to government or where his name and address are not

readily ascertainable.

In this case, Plaintiffs, as homeless persons, are by

definition not readily identified or located by government

officials. They have no fixed location where they might be

shows that the following items were logged into the property room:

6 cell phones, personal papers, 4 photos, benadryl capsules,

compact discs, blue jeans, a coat, a jacket, shoes, t-shirts, duffle

bags, blankets, various clothing items, avalide tablets, assorted

amounts of cash, on disposable camera, one pair of black Nike

shoes, and a red and black metal chair.

iia iadiacdiciliaiaadlll

25a

readily found by the government or to where specific notice

might be sent or posted. The items collected by the police,

department are mostly generic things, such as clothes, which

do not lend themselves to being traced back to the owner.

Therefore, the Court finds that notice by publication is

sufficient, under the circumstances of this case, to apprise

Plaintiffs of the disposition of their belongings.

The City’s procedures for disposing cf unclaimed property

are governed by either Ohio Revised Code § 737.29, et seq.

or Ohio Rev. Code § 2933. Regarding notice, § 737.32

provides:

Except as otherwise provided in this section and

unless the property involved is required to be disposed

of pursuant to another section of the Revised Code,

property that is unclaimed for ninety days or more

shall be sold by the chief of police of the municipal

corporation, marshal of the village, or licensed

auctioneer at public auction, after notice of the sale

has been provided by publication once a week for

three successive weeks in a newspaper of general

circulation in the county.

Ohio Rev. Code § 737.32. Section 2933.41 controls

disposition of lost, abandoned, or confiscated property in the

custody of a law enforcement agency, and provides:

A law enforcement agency that has property in its

possession that is required to be disposed of pursuant

to this section shall make a reasonable effort to locate

the persons entitled to possession of the property in its

custody, to notify them of when and where it may be

claimed, and to return the property to them at the

earliest possible time. In the absence of evidence

26a

identifying, persons entitled to possession, it is

sufficient notice to advertise in a newspaper of general

circulation in the county, briefly describing the nature

of the property in custody and inviting persons to view

and establish their right to it.

Ohio Rev. code § 2933.41(B). In fact, the City’s procedures

for disposition of “found property” specifically incorporate

§§ 737.29 (and by implication § 737.32)’ and 2933.41. See

Doc. No. 24, Ex. E, at § D2. As can be seen, both of these

statutes require notice by publication in local newspapers

before property in the custody of the City or the police

department can be disposed of. As these sections pertain

here, they satisfy the requirements of due process because

notice by publication is the only reasonable means to make

these particular Plaintiffs aware that their belongings are

about to be discarded or liquidated.

In this case, Plaintiffs bear the burden of demonstrating

that the Defendants abridged a property interest without the

appropriate process. LRL Properties v. Portage Metro

Housing Auth. 55 F.3d 1097, 1108 (6th Cir. 1995). As noted

above, whether Plaintiffs have even made a prima facie

showing of a deprivation is doubtful. Although Plaintiffs have

shown that they made a few inquiries about their things and

perhaps got the run around, even a cursory review of the

police property log reveals that their things were most likely

received into the property room. All they had do was go

down to the property room to identify and reclaim their

possessions. In any event, Plaintiffs have not demonstrated or

? See United States v. Stauffer Chem. Co., 684 F. 2d 1174, 1184

(6" Cir. 1982)(stating all provisions of a statute should be read in

pari materia).

27a

raised any issue of fact that the city or the police failed to

follow the procedures outlined above, which the Court has

found satisfy due process, if in fact their possessions were

liquidated. Thus, Plaintiffs have failed to show that

Defendants committed any due process violation.

Conclusion

In conclusion, under the circumstances of this case, any

on-site destruction of plaintiffs’ belongings was an

unauthorized, random, and unforeseeable event for which the

state has provided ‘an adequate post-deprivation remedy.

Therefore, Plaintiffs have failed to state a claim for a due

process violation with regard to the alleged on-site disposition

of their property. With regard to items actually taken into

custody, the notice by publication procedures for disposition

of this property comport with due process because the names

and addresses of Plaintiffs are not readily ascertainable by the

government. Moreover, Plaintiffs have not demonstrated that

Defendants failed to follow these procedures if in fact their

belongings were disposed of. Accordingly, Defendants’

respective motions for summary judgment are well-taken and

are GRANTED. Plaintiffs’ motion for a preliminary

injunction is not well-taken and is DENIED. THIS CASE IS

CLOSED.

IT IS SO ORDERED

Date: 6/19/03

/s/

Sandra S. Beckwith

United States District Judge

UNITED STATES SUPREME COURT

CITY OF CINCINNATI, Case No. 04-1631

Petitioner,

v. : BRIEF IN OPPOSITION

TO CERTIORARI

GERALD CASH, et al.,

Respondents.

COUNTERSTATEMENT OF THE CASE

The cleanup activities which are the subject of this lawsuit took place

on property belonging to the Ohio Department of Transportation (“ODOT”).

The Hamilton County Department of Adult Probation supplies cleanup

services to ODOT in exchange for compensation. While Hamilton County

has not joined in this Petition, it argued in its brief to the Court of Appeals

that “any policy of the adult probation department, if one in fact existed, was

to go where directed by the City of Cincinnati .... Neither the adult

probation department nor the County were the ‘moving force’ behind either

the removal or alleged destruction of appellants’ property.” The deposition

testimony was virtually uniform in backing up this position, and the Petition

' The other Defendant in this case, the City of Cincinnati, filed a separate petition for

certiorari in Case No. 04-1569.

w:\cases\cash, gerald\appeal & cert\brief in opp (cert - county).doc

~——S oe —_

Brief in Opp (Cert - COUNTY)

9/9/2005, Page 2

does not appear to deny the City’s direct involvement in the cleaning up of

homeless sites.”

In October of 2001, Respondents were living under the Fifth Street

Viaduct in Cincinnati. They had been living there on and off for ten years.

One day they returned to their living space and found that Hamilton County

adult probationers had taken Respondent Cash’s bedroll and put it on the

back of a truck. Mr. Cash asked the men to give his property back but was

told by the supervisor, “I’m not allowed to; we have been given orders to

clear out under all the bridges.” (App. 4)

Respondents stayed under the bridge that night. The next morning

they went to the City Gospel Mission for breakfast. They retumed to the

bridge the same afternoon and again saw Hamilton County cleanup

personnel. Respondents objected to anything being taken and the

probationers left. When Respondents returned in the evening, everything

they had was gone, including clothing, boots, a Bible, a family portrait,

electric blankets, reading glasses, sleeping bags, medication, shampoo, and

many other personal items and items of clothing.

Respondents never received notice of where their property was taken

or how to get it back. They called the sanitation division but could find out

? The Court of Appeals put it as follows: “The City of Cincinnati pays Hamilton County

to provide City clean up services.” (App. 4)

Brief in Opp (Cert - COUNTY)

9/9/2005, Page 3

nothing. An organizer with the Greater Cincinnati Coalition for the

Homeless called Cincinnati Public Services, who said that “solid waste”

would be with the police. The Sheriff's office told her that “the stuff from

the homeless sites is thrown away.” (App. 2-3) She spoke to an officer in

the Cincinnati Police Division about whether anything had been received

from under the bridges; he said it had not. Another officer disclaimed any

Police Division responsibility for sweeps of property of homeless people.

No one told the organizer where or when any hearing might take place. The

Homeless Coalition gave Respondents blankets and clothing.

A Cincinnati police officer provided Respondents with a printed

inventory of all property received by his unit in the month of October, 2001.

None... Respondents’ property appeared on it. Discovery uncovered no

evidence of any notice of hearing, whether by publication, mail, posted

notice or otherwise, and whether before or after the seizure of Respondents’

property. Petitioner offered no affidavit or other testimony indicating that

either notice or a hearing are provided with respect to the property of

homeless persons in general, or that they had provided any such notice or

hearing with respect to the property taken in this case. Deposition testimony

was Virtually unanimous that City policy is to “put all of the items in bags

and then place the bags into a sanitation truck.” (App. 8)

ee ee ee

Brief in Opp (Cert - COUNTY)

9/972005, Page 4

THERE IS NO REASON TO GRANT THE WRIT

Neither the trial court nor the Sixth Circuit panel made a final

determination that the County acted wrongly. The only holding below that

impacts Hamilton County is that it is not entitled to judgment as a matter of

law with regard to the question of its policy of destroying property of

homeless persons without notice. Without a factual determination of this

issue, certiorari would appear premature, even if there were a genuine

conflict or some other reason to grant the writ. In any case, there is no

conflict on any legal point.

I. THE SIXTH CIRCUIT DID NOT PERMIT RESPONDEAT

SUPERIOR LIABILITY AGAINST HAMILTON COUNTY.

Petitioner correctly states (Pet. 10-11) that, to be held liable under 42

U.S.C. § 1983, Hamilton County must be shown to have caused the

deprivation of Respondents’ property rights. Hamilton County attempts to

evade liability (which has not yet been established in any event) by stating

that “it is wholly undisputed that the sites now at issue were chosen by the

Cincinnati Police Department and the cleanups were accomplished under the

direction of Cincinnati police officers.” (Pet. 11) However, that is still an

open question, since the district court held as a matter of law that neither the

County nor the City had any policy of destruction, while the Court of

aa a ae ee rr mee ee we

Brief in Opp (Cert - COUNTY)

9/9/2005, Page 5

Appeals reversed and sent that issue back for trial. (App. 11)’ In short, no

court has yet issued a holding which implicates Monell v. Department of

Soc. Services, 436 U.S. 658 (1978)

I]. THERE IS NO CONFLICT AMONG THE CIRCUITS.

Similarly, the asserted conflict with two other circuits concerning the

right to destroy private property without a hearing (Pet. 11-17) does not

exist. In Church v. City of Huntsville, 30 F.3d 1332 (11° Cir. 1994),

homeless individuals primarily sought an injunction against what they

described as “a concerted effort to drive them out of the city.” Jd. at 1335.

They also requested damages for “loss of property.” Jd. “There was some

testimony that City police officers participated in the process of determining

which property should be destroyed as unsanitary, and which property

should be kept by the State to be reclaimed by the bridge people. However,

there . . . [was] no evidence that this aspect of the police activity was

authorized by a final policymaker.” Jd. at 1345, n. 6. In addition, “The

plaintiffs allege a constitutional violation in the failure to return to the

homeless any personal belongings that were removed but not destroyed, but

> The Court of Appeals used the phrase, “the City’s official policy,” rather than “the

official policy of the City or the County.” Hamilton County apparently believes this was

a judicial determination that it did not have a policy of destruction, and therefore cannot

be held liable regardless of what happens on remand. However, it is doubtful that the

characterization by the Sixth Circuit constitutes such a holding, and the City and the

County will surely be blaming each other all the way through closing argument. There is

no reason for the Court to try and resolve this factual issue.

eww eee =

Brief in Opp (Cert - COUNTY)

9/9/2005, Page 6

the uncontroverted evidence at the hearing was that these items are, and have

always been, in the possession of the State, not the City.” Jd. Thus, the

Eleventh Circuit never reached the issue of whether property of homeless

‘citizens may be destroyed without due process.

Stone v. Agnos, 960 F.2d 893 (9" Cir. 1992), was primarily a First

Amendment case asserting the right to sleep in a pubtic plaza. As to the

alleged destruction of the plaintiff's property, his clamm against the

individual officers failed for lack of any evidence of unreasonable

destruction, id. at 895, while his claim against the municipality failed

because he had conceded that the destruction “was contrary to city policy.”

Id. at 896. This holding cannot be considered in conflict with the decision

below, which returned the case to the district court for a decision by the trier

of fact regarding the policy of destruction of property. Petitioner has not

cited a single authority for the proposition that a municipality may destroy

the property of individuals, whether or not they have homes, without

providing some pre-destruction process.

CONCLUSION

For the foregoing reasons, the City of Cincinnati’s Petition for a Writ

of Certiorari should be denied.

Brief in Opp (Cert - COUNTY)

9/9/2005, Page 7

iB % sybmitted,

Stephen R. Felson (0038432)

617 Vine Street, Suite 1401

Cincinnati, Ohio 45202

(513) 721-4900

(513) 639-7011 (fax)

SteveF8953@aol.com

Robert B. Newman (0023484)

NEWMAN & MEEKS CO., LPA

617 Vine Street, Suite 1401

Cincinnati, Ohio 45202

(513) 639-7000

(513) 639-7011 (fax)

ATTORNEYS FOR

RESPONDENTS

oe meee = = ere ee ae a pene sees

Brief in Opp (Cert - COUNTY)

9/12/2005, Page 8

CERTIFICATE

I, Stephen R. Felson, do hereby swear or declare that on this date,

September 12, 2005, as required by Supreme Court Rule 29 I have served

the enclosed Motion for Leave to Proceed Jn Forma Pauperis and Brief in

Opposition to Certiorari on each party to the above proceeding or that

party’s counsel, and on every other person required to be served, by

depositing an envelope containing the above documents in the United States

mail properly addressed to each of them and with first-class postage prepaid.

The names and addresses of those served are as follows: David T.

Stevenson, 230 E. Ninth St., Suite 4000, Cincinnati, Ohio, 45202.

I declare under penalty of perjury that the foregoing is true and

correct.

Executed on September 12, 2005.

Oy.

Stephen R. Felson

nn ee eee eneiiiciveienatiinsdidinsaniiestnemeeetaimaneel

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.