UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHANEL PROCTOR, et al.,

Plaintiffs,

v. Case No. 1:18-cv-701 (TNM)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Three current and former homeless individuals challenge the District of Columbia’s

protocol for clearing encampments located throughout the City. They contend that the District

destroys unabandoned but unattended belongings during these clearings in violation of the

Fourth Amendment. Plaintiffs also raise a Fifth Amendment claim, arguing that the District

does not provide adequate notice of clearings or the procedures. Their arguments’ Achilles

heel, however, is that the protocol has never injured them.

Both parties cross-move for summary judgment. On this record, none of the Plaintiffs

can show that the injury they fear from the District’s clearing policy—loss of wanted and

unattended property—is impending. At least four events must occur before the Plaintiffs could

possibly sustain any injury. So Plaintiffs lack standing to seek an injunction or declaratory

relief against the District’s current practices.

They also cannot recover from the District for prior clearings. Although all three

Plaintiffs have experienced multiple District clearings, only one Plaintiff claims to have lost

wanted property, once. But the undisputed record shows that the District complied with the

Fourth Amendment for that clearing because it stored her belongings. The evidence also shows that this Plaintiff had actual notice of the clearing before it took place, which satisfies the Fifth

Amendment. In any event, there is no custom, policy, or practice to justify holding the District

liable for the claimed constitutional violations. The Court will grant the District’s motion for

summary judgment.

I.

A.

In the District, homeless individuals often create “encampments”: temporary abodes or

“accumulation[s] of personal belongings” that are located throughout the City. See Third Am.

Compl. ¶ 34, ECF No. 125 (cleaned up).

Unauthorized camping is illegal under D.C. regulations. See 24 DCMR § 121.1. But

the District does not prosecute homeless people under this code. It instead conducts “clearings”

of the encampments to address the health and safety risks that they pose and to maintain clean

public spaces. 1 Pls.’ Statement of Undisputed Material Facts (“Pls.’ SUMF”) ¶ 30, ECF No.

126-1; Dep. Tr. of Joseph Melder 143:20–22, 147:16–19, ECF No. 99-3. 2 Encampment

clearings are necessary for the public, including the homeless, because encampments may

include garbage “that attracts rodents and other vermin,” “[h]uman waste and risk of the spread

of disease,” and [p]ublic health risks from rodent urine and droppings.” Decl. of Elizabeth

1 The District employs the term “cleanings,” not “clearings.” See Def.’s Mem. of P. & A. in Supp. Opp’n to Pls.’ Mot. Summ. J. & Cross-Mot. Summ. J. (“Def.’s Mem.”) at 12 n.11, ECF No. 132-1 (describing disagreement with “clearing” term and noting that the “District does not use the word ‘clearing’ because that is not what happens here”). In deference to Plaintiffs’ right to frame their complaint, the Court will use “clearing” throughout unless quoting the District. 2 All page citations, except for deposition transcripts, refer to the page numbers that the CM/ECF system generates. Citations for deposition transcripts refer to the page number of the transcript.

2 Horen (“Horen Decl.”) ¶ 6, ECF No. 18-1. There also may be urine and needles found at these

sites. Pls.’ Mot. Summ. J. (“Pls.’ Mot.”) Ex. 41 at 226, ECF No. 126-44.

In 2016, the District issued procedures for these clearings in the Protocol for the

Disposition of Property Found on Public Space and Outreach to Displaced Persons (“2016

Protocol”). Pls.’ SUMF ¶¶ 1–2; see also Pls.’ Mot. Ex. 2, ECF No. 126-5. It amended the 2016

Protocol three years later to reflect its clearing practices (“2019 Protocol”). Pls.’ SUMF ¶¶ 14–

15; see also Pls.’ Mot. Ex. 1, ECF No. 126-4. The 2019 Protocol remains in effect. Pls.’

SUMF ¶ 14.

The 2019 Protocol applies to property left on District public space that “presents a

security, health, or safety risk, interferes with community use of public space, or becomes a

significant community nuisance.” Pls.’ Mot. Ex. 1 at 4–5. Under the 2019 Protocol, “[a]ny

property left on the cleanup site is subject to removal and immediate disposal.” Id. at 8.

The District conducts two types of clearings: standard and immediate dispositions. Pls.’

SUMF ¶ 17. Relevant here are the procedures for a standard disposition. 3

Two weeks before a standard disposition, the District must “post notices/signs

conspicuously throughout the immediate vicinity of the public space to cleaned.” Pls.’ Mot. Ex.

1 at 6. The notice must include the “designated area to be cleaned” and the “specific date and

time by which persons must remove their property from the site before cleanup begins.” Id.

The notice also advises (i) that “property left on site during the cleanup may be immediately

destroyed,” (ii) that “free storage of eligible property may be arranged in advance of the

3 An “immediate disposition” can only occur if “property alongside a bridge, tunnel, or other public space must be disposed of immediately due to an emergency, security risk, health risk, or safety risk.” Pls.’ Mot. Ex. 1 at 10. It does not require the same notice procedures as a standard disposition. See Pls.’ SUMF ¶¶ 17, 26. Immediate dispositions are not challenged in this case. See Pls.’ Mot. at 28 n.7.

3 cleanup,” and (iii) that “some unattended, non-hazardous property may be stored, in the

District’s discretion, and information about how to retrieve any property taken to storage after

cleanup.” Id. If the clearing is rescheduled, the notice must be updated at least 48 hours before

the new clearing date. Id.

District outreach workers “make every effort to share this information verbally with

anyone at the site and with community partners to ensure those who are unable to read or have

difficulty comprehending the information are made aware of the impending cleanup action.” Id.

They also “make clear to individuals experiencing homelessness that the only way to be sure

property is not disposed of during a cleanup is to move the property from the cleanup site before

the specified cleanup time.” Id. at 7.

The District allows individuals to store “eligible property” for free before a clearing. Id.

at 8. This category of property includes “functional, empty, and disassembled tent[s]” and

“non-commercial, functional bicycle[s] or other form[s] of motorized transport.” Id. at 8.

Unsafe items ineligible for storage include illegal items, property infested or potentially infested

with bugs, wet or soiled items, and uncapped or exposed medical syringes. Id. at 8–9.

District personnel arrive at least 30 minutes before a clearing to offer occupants storage

containers for eligible property. Id. at 9. During a clearing, District personnel must “make

reasonable efforts to collect and store” eligible items that are “in plain sight, even if they are

unattended at the time of the cleanup.” Id. This includes: certain forms of personal

identification, like drivers’ licenses; photographs; financial, legal, or medical documents;

medications; and “[o]ther property that is safe to store and of apparent value.” Id. District

personnel need not, however, “sort through piles or collections of belongings, including items

4 inside tents or containers, to identify” eligible property for storage “[d]ue to safety and other

concerns.” Id.

B.

Plaintiffs Charlaine Braxton, Rachelle Adams, and Jane Doe are current and former

homeless women in the District who have experienced clearings. 4 Third Am. Compl. ¶¶ 16–18.

Braxton currently resides in temporary housing after living in a homeless encampment.

Pls.’ SUMF ¶ 38; Def.’s Resp. to Pls.’ SUMF & Statement of Undisputed Material Facts

(“Def.’s SUMF”) ¶¶ 48–49, ECF No. 132-4. While homeless, Braxton experienced multiple

encampment clearings and moved her belongings each time, except once in May 2017. Def.’s

SUMF ¶ 57. She “usually” saw a sign about a clearing every month, prompting her to “note the

cleanup date and make sure that [she] had [her] stuff moved.” Ex. 16, Dep. Tr. of Charlaine

Braxton (“Ex. 16 Braxton Dep. Tr.”) 98:5–18, ECF No. 99-17. Braxton explained that

homeless individuals moved their belongings when the District posted signs because the “city

workers taught us . . . they came and taught us how to move the things.” Id. 99:9–13.

One day in May 2017, Braxton learned from D.C. personnel that she should move her

property because a clearing would take place the next day. Def.’s SUMF ¶ 63. Braxton told

them that she was too ill to move her belongings but still wanted them. Id. ¶ 64. They informed

her that all her belongings, except food items, would be “be taken to [Adams] Place.” 5 Id. ¶ 65

(cleaned up). Braxton left the site before the clearing and her items were gone when she

returned. Id. ¶¶ 66–67. She called someone at Adams Place, who told her “that they had all of

4 Other plaintiffs were dismissed, either voluntarily or for failure to prosecute. See Order (Nov. 18, 2019), ECF No. 84; Order (Dec. 16, 2019), ECF No. 90. 5 Adams Place is a day center “where the District provides services to people experiencing homelessness.” Def.’s SUMF ¶ 14 n.5.

5 [her] things, even the food” after Braxton listed her belongings. 6 Id. ¶ 68 (cleaned up). When

Braxton went to Adams Place several weeks later, she found only some of her items. Id. ¶¶ 69–

70.

Doe currently occupies an encampment and has done so periodically since 2016. Pls.’

SUMF ¶ 39; Def.’s SUMF ¶¶ 72, 74. She has experienced at least 15 clearings. Pls.’ SUMF

¶ 40. Doe understands that “nothing should be on site” when workers arrive to clean, and she

agreed that notice signs are changed to reflect the clearing times. Pls.’ Reply in Supp. Mot.

Summ. J. & Opp’n to Def.’s Cross-Mot. Summ. J. (“Pls.’ Reply”) Ex. 3, Dep. Tr. of Jane Doe

(“Doe Dep. Tr.”) 39:21–40:1, 168:19–169:3, ECF No. 136-6. Doe “would break down camp

and move everything the day before” a clearing. Id. 43:2–12; see also id. 43:22–44:8 (agreeing

that it is “fair to say” that she moves her items the night before a clearing because she “[d]idn’t

want to lose anything”). She claims to be “pretty consistent” in leaving an encampment site the

morning of a clearing and taking her items with her. Id. 132:18–22, 134.

During the first clearing she experienced, Doe “gave up [] winter stuff and just let it go.”

Id. 43:16–17. She notified no one that she wanted to retain these items, and she knew prior to

leaving the encampment that the boxes could be disposed of because “[e]verybody around told

us.” Id. 45:8–46:9.

Adams has periodically lived on the streets, occupying the same encampment since

2019. Pls.’ SUMF ¶ 35; Def.’s SUMF ¶¶ 31–32. She has experienced at least 20 clearings,

which continue every two weeks. Pls.’ SUMF ¶ 36. Adams remains at her tent 90% of the time

and otherwise is usually within a block radius. Def.’s SUMF ¶ 37 n.7. When absent, Adams

6 It is undisputed that the worker relayed this information to Braxton. Pls.’ Resp. to Def.’s SUMF ¶ 68, ECF No. 136-1. Plaintiffs dispute, however, whether the worker actually had Braxton’s belongings “and/or retain[ed] them in accordance with the Protocol.” Id.

6 tries “not to leave anything valuable in [her tent].” Id. (cleaned up); Ex. 15, Dep. Tr. of

Rachelle Adams (“Ex. 15 Adams Dep. Tr.”) 71:1–72:1, ECF No. 99-16.

Adams states that the District “normally” conducts a clearing “two weeks from th[e] day

that they put the sign up.” Ex. 15 Adams Dep. Tr. 57:14–58:6. And she “[k]eep[s] track of the

dates of when they’re doing clean-ups.” Id. 60:10–22; see also id. 116:11 (“I always pack up

my tent.”). Adams stated that “[e]verything has to be moved from the location at 10:00 a.m.”

for clearings, Def.’s SUMF ¶ 42 (cleaned up), and that she has moved her items the day before a

clearing “[b]ecause [she doesn’t] feel like doing it early the next morning,” Ex. 15 Adams Dep.

Tr. 154:6–15; id. 154:16–20 (testifying that it is possible to move items the day before “[i]f you

want to”). She has not lost property under the challenged practices here. See Sealed Dep. Tr. of

Rachelle Adams (“Sealed Adams Dep. Tr.”) 58–59, ECF No. 138-2 (discussing property loss

only in 2014 or 2015).

C.

Three years ago, Braxton and another plaintiff sued claiming that the District destroys

unattended, wanted property during encampment clearings in violation of the Fourth

Amendment. See Class Compl. for Inj. & Decl. Relief ¶¶ 60–64, ECF No. 1.

They sought a preliminary injunction, which the Court denied. See Proctor v. District of

Columbia,

(D.D.C. 2018) (“Proctor I”). The Court found that there was no

“clear showing” that the District had a practice of “destroying unattended property that has not

been abandoned” or that any destruction of property was unconstitutional.

. The

record also did not show that any property destruction “took place under a custom of the District

of Columbia that is actionable under Section 1983.”

. The Court noted evidence that

7 “homeless individuals often abandon property” and that the “District takes extensive

precautions to reduce the risk of destroying property that is wanted.”

The Court also found that any alleged property losses were not “imminent and certain

without preliminary relief.”

. The Court reasoned that “if the District schedules

another cleanup that affects Plaintiffs, Plaintiffs can protect their property by moving it or

designating it for storage.”

. Requiring the District to “store all unattended property

except property that poses a public health or safety risk would likely chill the exercise of

discretion inherent in determining what items pose such risks and would also impose on the

District the unnecessary and potentially significant cost of storing abandoned property.” 7

Braxton and the other plaintiff amended their complaint to add a claim under the Fifth

Amendment’s Due Process Clause. See Am. Compl. ¶¶ 118–31, ECF No. 32. They alleged that

the District deprived homeless individuals of “adequate pre-clearing notice of the risk that

clearings could result in the summary destruction of their belongings.” Id. ¶ 121.

The District moved to dismiss. See Mot. to Dismiss, ECF No. 39. The Court “largely

den[ied]” the motion “[g]iven the relaxed standard of review at this stage and the fact-bound

nature of the claims at issue.” See Proctor v. District of Columbia, No. 18-cv-00701 (TNM),

, at *1 (D.D.C. Nov. 27, 2018) (“Proctor II”). The Court also found that

Plaintiffs had standing because they “alleged enough facts to establish at the dismissal stage that

they are in immediate danger of another allegedly unconstitutional clearing.” Id. at *2.

Plaintiffs again amended their complaint—this time, to add (as relevant here) Plaintiffs

Adams and Doe. See Second Am. Compl., ECF No. 57. The District moved to dismiss for lack

7 The Court also denied class certification because Plaintiffs provided no reasonable basis to estimate their class size. See id. at 118.

8 of standing. See Partial Mot. to Dismiss, ECF No. 60. The Court found that it “need not

resolve this issue now” because it “must review Plaintiffs’ standing again—on summary

judgment.” Order at 3 (Aug. 29, 2019), ECF No. 70. The Court noted that “Plaintiffs’ burden

to establish standing will be heavier then” and that the “District will be free to re-raise its

standing concerns at that time.” Id.

The District then published the 2019 Protocol. So Plaintiffs sought leave to amend their

complaint a third time. See Mot. for Leave to File Third Am. Compl, ECF No. 103. The Court

granted leave during a motion hearing. See Min. Entry (Aug. 21, 2020).

The Third Amended Complaint raises the same as-applied constitutional challenges to

the District’s clearing practices under

(Counts I and II). Third Am. Compl.

¶¶ 121–36. Plaintiffs allege that the District “has implemented a policy, practice, or custom of

systematically destroying unattended personal belongings of homeless individuals in the

absence of any imminent public safety or health risk” in violation of the Fourth Amendment.

Id. ¶ 123. Under the Fifth Amendment, they claim that the District “deprives homeless

individuals of adequate pre-clearing notice of the risk that clearings could result in the summary

destruction of their belongings” and that homeless individuals “are not otherwise given a

meaningful opportunity to protect or claim their belongings following any initial deprivation

and prior to their immediate, final destruction.” Id. ¶¶ 131–32.

For the first time, Plaintiffs also assert a facial challenge (Count III). Id. ¶¶ 137–45.

They claim that the 2019 Protocol memorializes the District’s unconstitutional practices so, as

written, it violates the Fourth and Fifth Amendments. Id. ¶¶ 138–40.

9 Plaintiffs ask for declaratory relief and an injunction preventing the District from

enforcing the 2019 Protocol. Id. at 27–28. Braxton also seeks relief for her alleged property

loss from the May 2017 clearing. 8 See id.; Def.’s SUMF ¶¶ 47, 83.

The parties cross-move for summary judgment. Plaintiffs move for summary judgment

on their facial challenge to the 2019 Protocol under Count III, and the District moves for

summary judgment on all three counts. Plaintiffs also re-raise their class certification motion.

See Pls.’ Renewed Mot. for Class Certification, ECF No. 105. The motions are ripe for

disposition.9

II.

To prevail at summary judgment, a party must show that “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A factual dispute is “material” if it could alter the outcome of the suit under the

substantive governing law, and “genuine” “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

(1986).

The moving party “always bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the [record] which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

The Court commends Plaintiffs’ attorneys for their zealous advocacy on behalf of their clients throughout this litigation. They have offered a voice to those who are not always able to raise their own. 9 The Court has jurisdiction under

, the federal question statute. The Court benefited from oral arguments at the preliminary injunction stage and finds that no additional argument is necessary now. It therefore denies Plaintiffs’ request for another motion hearing. See LCvR 7(f).

10 317, 323 (1986). Once this showing is made, the non-moving party bears the burden to identify

“specific facts showing that there is a genuine issue for trial.” Anderson,

(cleaned up). “A party asserting that a fact cannot be or is genuinely disputed must support the

assertion” by “citing to particular parts of materials in the record” or “showing that the materials

cited do not establish the absence or presence of a genuine dispute, or that an adverse party

cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

In construing a summary judgment motion, “[t]he evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Anderson,

.

The non-movant’s opposition, however, must consist of more than mere unsupported

allegations or denials and must be supported by affidavits, declarations, or other competent

evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed. R.

Civ. P. 56(e).

III.

Plaintiffs raise facial and as-applied claims to the District’s clearing practices. Plaintiffs

together argue that the 2019 Protocol, as written, violates the Fourth and Fifth Amendments.

Pls.’ Mot. at 16–30. Separately, Braxton argues that the District’s actions violated her rights

under those same constitutional provisions. Pls.’ Reply at 21–37.

The Court finds (A) that Plaintiffs lack standing to raise their facial challenge to the

2019 Protocol and (B) that Braxton’s as-applied challenge to the District’s clearing practices

cannot survive summary judgment.

A.

The District first contends that Plaintiffs lack standing to seek an injunction or

declaration challenging the 2019 Protocol. See Def.’s Mem. at 27–33. The Court agrees.

11 The Constitution limits federal courts’ jurisdiction to deciding “cases” and

“controversies.” Hein v. Freedom from Religion Found., Inc.,

, 597–98 (2007).

“[O]ne of the controlling elements in the definition of a case or controversy under Article III is

standing.”

(cleaned up). “To establish Article III standing, an injury must be concrete,

particularized, and actual or imminent; fairly traceable to the challenged action; and redressable

by a favorable ruling.” Clapper v. Amnesty Int’l USA,

(2013) (cleaned up).

These elements are the “irreducible constitutional minimum of standing.” Lujan v. Defs. of

Wildlife,

(1992). The burden to establish standing rests with Plaintiffs.

Clapper, 568 U.S. at 411–12.

Plaintiffs alleged enough facts to show standing at the dismissal stage. See Proctor II,

, at *2. But that decision does not control here. It “does not obviate the

court’s responsibility to ensure that the [P]laintiff[s] can actually prove those allegations when

one or both parties seek summary judgment.” Scenic Am., Inc. v. U.S. Dep’t of Transp.,

(D.C. Cir. 2016).

Plaintiffs’ burden to establish standing “grows heavier at each stage of the litigation.”

Osborn v. Visa Inc.,

(D.C. Cir. 2015). At summary judgment, Plaintiffs

“can no longer rest on . . . mere allegations, but must set forth by affidavit or other evidence

specific facts.” Clapper,

(cleaned up); see also Cal. Cattlemen’s Ass’n v. U.S.

Fish & Wildlife Serv.,

, 145 n.3 (D.D.C. 2019) (finding earlier

determination that plaintiff “had proffered sufficient standing to overcome dismissal . . . not

dispositive” at summary judgment). “[E]ach element [of standing] must be supported in the

same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the

12 manner and degree of evidence required at the successive stages of the litigation.” Lujan,

.

Plaintiffs’ claims raise two standing issues that the Court must resolve: (1) whether

Plaintiffs have shown that they have standing to pursue their facial challenge to the 2019

Protocol; and (2) whether Braxton has standing to challenge the District’s clearing practices as

applied to her.

1.

The District contends that Plaintiffs cannot establish the first element of standing: injury

in fact. An injury in fact is “an invasion of a legally protected interest” that is “concrete and

particularized” and “actual or imminent, not conjectural or hypothetical.”

(cleaned

up).

The inquiry here hinges on whether Plaintiffs have shown their injury is “actual or

imminent.” Plaintiffs face an uphill battle to show injury from the 2019 Protocol because relief

that “aim[s] to prevent future illegal acts often will implicate standing concerns.” City of

Houston v. HUD,

, 1429 n.6 (D.C. Cir. 1994). It is thus a “significantly more

rigorous burden to establish standing” for the prospective declaratory and injunctive relief they

request here. Swanson Grp. Mfg. LLC v. Jewell,

(D.C. Cir. 2015) (cleaned

up). Plaintiffs “must show that there is a substantial . . . probability of injury.”

(cleaned up).

The Supreme Court has “repeatedly reiterated that threatened injury must be certainly

impending to constitute injury in fact.” Clapper,

(cleaned up) (emphasis in

original).

13 Plaintiffs contend (a) that the injury they fear under the 2019 Protocol is imminent; and

(b) that, alternatively, they can rely on a procedural right to assert standing. The Court rejects

both.

a.

Plaintiffs “fear that [the District’s] homeless encampment clearing practices will result

in the destruction of their property” because they “cannot be with [their] belongings at all

times.” Third Am. Compl. ¶¶ 100–01; Adams Discovery Resps. at 3, ECF No. 114-3; Doe

Discovery Resps. at 3, ECF No. 114-4; Pls.’ Reply Ex. 22, Decl. of Charlaine Braxton

(“Braxton Decl.”) ¶ 25, ECF No. 136-25 (“I am fearful that if I were to experience

homelessness again, the District would take and destroy my unattended belongings again.”). So

Plaintiffs claim that they face a “realistic threat of property loss” because the 2019 Protocol

authorizes the “immediate destruction of any and all unattended, non-hazardous belongings

during an encampment clearing.” Pls.’ Mot. at 32 (cleaned up).

The Supreme Court rejected a similar theory in Clapper. There, plaintiffs sought

declaratory and injunctive relief because a statute “authorizing the surveillance of individuals

who are not ‘United States persons’ and are reasonably believed to be located outside the

United States” was unconstitutional. Clapper,

. Plaintiffs claimed standing

because their work would involve communications “with individuals who they believe are

likely targets of surveillance under [the statute].”

Under their standing theory, there was an

“objectively reasonable likelihood that their communications will be acquired under [the

statute] at some point in the future.”

The Supreme Court disagreed. The Court held that this “theory of future injury is too

speculative to satisfy the well-established requirement that threatened injury must be ‘certainly

14 impending.’”

(emphasis in original). It reasoned that plaintiffs’ asserted Article III injury

rested on a “highly speculative fear” that, among other things, the government would seek and

receive approval under the challenged statute to target “the communications of non-U.S.

persons with whom they communicate” and that plaintiffs would also be parties to those

targeted communications.

. This “highly attenuated chain of possibilities” did not

constitute a “certainly impending” injury to satisfy Article III standing.

The Court also

found the allegations “necessarily conjectural” because the statute “at most authorizes—but

does not mandate or direct—the surveillance that respondents fear.”

(emphasis in

original).

Similarly, in Cruz v. American Airlines, Inc., travellers challenged an American Airlines

policy to not settle lost-baggage claims if the claimant submitted a form more than 30 days after

the loss.

(D.C. Cir. 2004). Plaintiffs sought “an injunction forbidding

American from enforcing its 30-day rule and a declaration that this rule is unlawful” after

American refused to reimburse their untimely claims under the policy.

. The D.C.

Circuit held that they lacked Article III standing. It determined that the “likelihood that

American would, once again, lose plaintiffs’ luggage [was] minuscule.”

And the

“likelihood that [plaintiffs] would again file their claims late is small, given their previous

experience.”

Finally, the Circuit held it “unlikely that American would again reject any

late-filed claim, given the litigation its 30-day rule spawned and given that it has disavowed the

30-day rule.”

Plaintiffs’ “speculative interest in prospectively challenging the 30-day rule”

was not enough to establish standing.

.

Clapper and Cruz sink Plaintiffs’ standing theory here. Take Adams and Doe first, who

remain homeless. See Def.’s SUMF ¶¶ 32, 74; Pls.’ SUMF ¶¶ 35, 39. The District does

15 “intend[] to continue conducting encampment clearings” under the 2019 Protocol, with

“multiple encampment clearings” each week. Pls.’ SUMF ¶¶ 13, 41. But consider all that must

happen before Adams or Doe come even close to sustaining the loss of wanted but unattended

property that they fear under the 2019 Protocol as written. 10

First, Doe and Adams must remain in an encampment subject to periodic clearing. Of

all the preconditions here, this much is likely based on their testimony. But that is not enough

to show that a loss of property is imminent. Second, they must miss or disregard the

“notices/signs” that would have been posted “conspicuously throughout the immediate vicinity

of the public space to be cleaned” for 14 days prior to the clearing. 11 Pls.’ Mot. Ex. 1 at 6. This

is unlikely, as both Doe and Adams admitted to regularly seeing these signs. Doe Dep. Tr.

39:21–40:1; Ex. 15 Adams Dep. Tr. 57:14–58:6. Third, they must be unable to move their

belongings at any time in the 14 days before the clearing. This is even less likely, as both

Plaintiffs indicate that they habitually pack up before the clearing date. Doe Dep. Tr. 43:2–12,

43:22–44:8; Ex. 15 Adams Dep. Tr. 154:6–15;

154:16–20. Fourth and finally, they must be

absent the 30 minutes before and during the scheduled clearing time to store their property. 12

See Pls.’ Mot. Ex. 1 at 8 (“The District makes available free store of property that is eligible to

10 Since Plaintiffs’ challenge to the 2019 Protocol is a facial one, the Court assumes for standing purposes that the 2019 Protocol would be implemented as written. Cf. Wash. State Grange v. Wash. State Republican Party,

, 449–50 (2008) (“In determining whether a law is facially invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.”). 11 The District offers to arrange storage and transportation before clearing under the 2019 Protocol. Pls.’ Mot. Ex. 1 at 8. Although there is also a 48-hour trigger for rescheduled clearings, id. at 6, this would apparently be on top of the 14-day standard notice. 12 The 2019 Protocol requires District personnel to “arrive at the site at least one half hour in advance of the posted cleanup time to confirm everyone who is interested in packing belongings on site has the opportunity to do so.” Pls.’ Mot. Ex. 1 at 9 (emphasis in original).

16 be stored . . . for up to 60 days at a site designated by the District to any individual with

property at the cleanup site who lacks permanent shelter.”). Only if all these unlikely events

occur will Plaintiffs then confront the possibility that District workers fail to follow their

obligation under the 2019 Protocol to “make reasonable efforts to collect and store” valuables

“in plain sight, even if they are unattended at the time of the cleanup.” Id. at 9; see also Cruz,

356 F.3d at 328–29 (outlining all the events that must happen before the plaintiffs experienced a

risk of injury to their “speculative interest”).

That is speculation atop speculation. Doe and Adams confront “precisely the kind of

‘highly attenuated chain of possibilities’ that is insufficient to establish standing.” de Ramirez

v. Barr, No. 18-cv-1516 (PLF),

, at *3 (D.D.C. Sept. 30, 2019) (finding no

standing for challenge of immigration policy because plaintiff’s standing theory “depend[ed] on

an injury that she can only anticipate”). The 2019 Protocol “at most authorizes—but does not

mandate or direct”—the destruction of unabandoned but unattended property that Plaintiffs

fear. Clapper,

(emphasis in original). As in Clapper then, the alleged injury is

too attenuated to satisfy Article III.

Braxton’s feared injury is even more notional. She is not now homeless but instead lives

in subsidized housing. Pls.’ SUMF ¶ 38; Def.’s SUMF ¶¶ 49, 86. Braxton, though, argues that

the “temporary housing is entirely dependent on her ability to pay rent.” Pls.’ Mot. at 31. And

her ability to pay rent rests on continued employment, which is tenuous during the COVID-19

pandemic. Id.; see also Pls.’ SUMF ¶ 38 (“Especially in light of the uncertainty caused by the

COVID-19 pandemic, Ms. Braxton is in danger of having to return to the streets.”); but see

Def.’s SUMF ¶ 86 (undisputed that Braxton “makes rent payments based on a sliding scale”

relating to her ability to pay). So, unlike Adams and Doe, two more events must happen before

17 Braxton is even at risk of losing property in an encampment clearing: she must lose her job and

be unable to find another to keep making flexible rent payments. So at least six events (the two

just mentioned and the chain of events described above) must take place before Braxton faces a

realistic threat of her feared injury. The Court declines to stretch Article III standing this far.

See Clapper,

(“[T]hreatened injury must be certainly impending to constitute

injury in fact.” (emphasis in original) (cleaned up)).

Plaintiffs suggest that the risk of their feared injury is higher because they “cannot

always be present at the time of a scheduled clearing because they might need to step away from

their tents to obtain food, seek medical attention, [or] use or access other services.” Pls.’ SUMF

¶ 37; see also Pls.’ Reply at 17. But even assuming this is true, it would make property loss

only slightly more imminent. For Adams and Doe, three of the four events described above

would still have to occur before they are even close to being at risk of losing their property—

they must remain in an encampment, miss or disregard the notices 14 days before, and not move

their belongings at any time in that period. And as to Braxton, she must lose her job, become

unable to keep paying rent, and become homeless, after which the same chain of possibilities

for Adams and Doe must still happen.

Plaintiffs’ own experiences with clearings show that not being present the morning of a

clearing does not necessarily lead to property loss. Recall that the 2019 Protocol requires

written notice at least 14 days before a clearing (or 48 hours before a rescheduled clearing).

Pls.’ Mot. Ex. 1 at 6. So Plaintiffs can move their belongings any time before then, not just the

morning of the clearing. Indeed, Adams and Doe—the only two currently homeless Plaintiffs—

do just that. They have moved their belongings the day before the scheduled clearing. Adams

testified that she has moved her items before “[b]ecause [she does not] feel like doing it early

18 the next morning.” Ex. 15 Adams Dep. Tr. 154:6–15;

154:16–20 (testifying that it is

possible to move items the day before “[i]f you want to”). 13 And Doe has a process to “break

down camp and move everything the day before” a clearing. Doe Dep. Tr. 43:2–12; see also

43:22–44:8 (agreeing that it is “fair to say” that she moves her items the night before a clearing

because she does not “want to lose anything”). She is “pretty consistent” in leaving

encampments the morning of a clearing and taking her items with her.

132:18–22.

It is thus unsurprising that neither Doe nor Adams has lost unattended property under the

District’s challenged clearing practices. Cf. Biggerstaff v. FCC,

(D.C. Cir.

2007) (“[A] prediction of injury based on experience suffices to show injury in fact to the extent

that past wrongs are evidence bearing on whether there is a real and immediate threat of

repeated injury.” (cleaned up)). Adams claims that she lost property around 2015. See Sealed

Adams Dep. Tr. 58–59. But she does rely on that property loss to challenge the District’s

clearing practices here. Indeed, her purported loss happened before the District implemented

the 2016 Protocol, which preceded the 2019 Protocol at issue. See Cruz,

(“[A]

prospective injunction against future applications of the 30-day rule will do nothing to remedy

that past harm.”).

Doe “gave up [] winter stuff and just let it go” during the first clearing she experienced.

Doe Dep. Tr. 43:16–17. She had a chance to pack them but “let it go,” and she knew before

leaving that the items could be discarded because “[e]verybody around told us.”

45:8–46:9.

That Doe and Adams have yet to lose unattended property under the clearing practices in the

2019 Protocol “substantially undermines their standing theory.” Clapper,

.

13 Plaintiffs rely on testimony from Adams in which she described two times that she lost items during a clearing. Sealed Adams Dep. Tr. 58–59. But both incidents occurred in 2014 or 2015, before the 2016 and 2019 Protocols at issue.

19 Perhaps recognizing their uphill battle, Plaintiffs argue that destroying their property “is

catastrophic, lessening the burden on [them] to demonstrate ‘imminence.’” Pls.’ Mot. at 33.

Plaintiffs claim that the “more drastic the injury that government action makes more likely, the

lesser the increment in probability necessary to establish standing.”

(quoting Mountain

States Legal Found. v. Glickman,

(D.C. Cir. 1996)). In Mountain States,

the Circuit considered when probabilistic injuries in the environmental context suffice to

establish imminent injury under an “increased risk of harm” standing theory.

(finding incremental risk in wildfire “enough of a threat of injury to entitle plaintiffs to be

heard”).

The Court does not doubt the personal value of Plaintiffs’ property. But that is not

enough. Even if Plaintiffs do pursue increased-risk-of-harm standing here (which is not

apparent), they still must show “at least both (i) a substantially increased risk of harm and (ii) a

substantial probability of harm with that increase taken into account.” See Pub. Citizen, Inc. v.

Nat’l Highway Traffic Safety Admin.,

, 1295 (D.C. Cir. 2007) (Kavanaugh, J.)

(emphasis in original). And courts still must be “mindful . . . that the constitutional requirement

of imminence as articulated by the Supreme Court . . . necessarily compels a very strict

understanding of what increases in risk and overall risk levels can count as ‘substantial.’” Id. at

1296. The task remains to decide whether “the increased risk of such harm makes injury to an

individual citizen sufficiently ‘imminent’ for standing purposes.” Id. at 1298.

So the “strict understanding” of what constitutes “substantial” compels the same

conclusion here. The evidence does not show that Plaintiffs face a “substantial probability of

harm” given all that must happen before they suffer property loss under the District’s clearing

practices. As explained, the only two Plaintiffs still subject to potential clearings have yet to

20 experience the harm they fear. It seems unlikely they ever will. This route thus does not help

Plaintiffs establish standing.

In sum, Plaintiffs have failed to show that their asserted injury is “imminent,” Lujan,

, or “certainly impending,” Clapper,

. They therefore cannot

show an injury in fact.

b.

Plaintiffs raise an alternative argument too. They contend that “because [they] seek to

vindicate procedural rights under both the Fourth and Fifth Amendments, they need not

demonstrate imminent injury or redressability.” Pls.’ Mot. at 35.

But Plaintiffs offer little more. They do not elaborate on these “procedural rights.” Or

how they establish standing here. Plaintiffs instead claim that they have procedural standing

“given the procedural nature of the constitutional rights they assert.” Id. at 34. Plaintiffs must

do more than just raise a Fourth or Fifth Amendment claim to establish procedural standing.

Accord Common Cause v. Biden,

(D.D.C. 2012) (“[N]ot all procedural-

rights violations are sufficient for standing[.]”), aff’d on other grounds,

(D.C.

Cir. 2014). They fail to meet their burden here. Clapper, 568 U.S. at 411–12 (“The party

invoking federal jurisdiction bears the burden of establishing standing[.]” (cleaned up)).

Even if the Court considered their procedural standing theory, it would fail. To establish

procedural standing, Plaintiffs still must show not only that “the defendant’s acts omitted some

procedural requirement, but also that it is substantially probable that the procedural breach will

cause the essential injury to the plaintiff’s own interest.” Ctr. for Law & Educ. v. Dep’t of

Educ.,

(D.C. Cir. 2005) (emphasis added) (quoting Fla. Audubon Soc’y v.

Bensten,

, 664–65 (D.C. Cir. 1996) (en banc)). There must be “injury beyond mere

21 procedural misstep per se to satisfy standing in a procedural-rights case.” Id. at 1160. The

“chain of causation between the procedural violation and the concrete interest may not be

merely speculative.” VioPharma, Inc. v. Hamburg,

(D.D.C. 2011)

(cleaned up).

In Center for Law and Education, for example, the Circuit held that plaintiffs

challenging the composition of a rulemaking committee did not have procedural standing. 396

F.3d at 1157–60. The court reasoned that the “chain of causation between the alleged

procedural violation and the concrete interest is speculative at best.” Id. at 1159. Plaintiffs thus

failed to “demonstrate the necessary causal connection between the challenged agency action—

here, the promulgation of final rules—and the alleged injury.” Id. at 1160. The challenged

agency action and plaintiffs’ alleged injury stood at “opposite ends of a long chain.” Id. at

1160–61.

Plaintiffs appear to ask the Court to scrap two of the three elements of the “irreducible”

constitutional minimum of standing. Lujan,

. To be sure, procedural standing

may “loosen[] the strictures of the standing inquiry, by relaxing the immediacy and

redressability requirements.” In re Endangered Species Act Section 4 Deadline Litigation-MDL

No. 2165,

, 976–77 (D.C. Cir. 2013) (cleaned up). But it “does not—and cannot—

eliminate any of the irreducible elements of standing.” Fla. Audubon Soc’y,

(cleaned up).

With little to go on, the Court assumes that the District’s “procedural breach” is

insufficient notice about the “consequences of a clearing.” Pls.’ Reply at 31. But Plaintiffs still

have not shown that “it is substantially probable that the procedural breach will cause the

essential injury to the plaintiff’s own interest.” Ctr. for Law & Educ.,

22 (emphasis in original). Recall that Plaintiffs “fear that [the District’s] homeless encampment

clearing practices will result in the destruction of their property” because they “cannot be with

[their] belongings at all times.” Third Am. Compl. ¶¶ 100–01; see also Adams Discovery

Resps. at 3; Doe Discovery Resps. at 3; Braxton Decl. ¶ 25. But the facts remain that Plaintiffs

have 14 days to move their belongings before the clearing, and the only two Plaintiffs currently

experiencing encampment clearings have typically moved their belongings the day before a

clearing anyways. See Ex. 15 Adams Dep. Tr. 154:6–18; Doe Dep. Tr. 43:2–12;

43:22–

44:8. So even if the District should provide more information in its notice about the

“consequences of a clearing,” Plaintiffs’ feared loss of property still stands at “opposite ends of

a long chain” from this procedural breach. Ctr. for Law & Educ.,

.

Plaintiffs cannot establish standing through any procedural right.

* * *

In sum, none of the Plaintiffs has standing to seek declaratory and injunctive relief

against the District’s current clearing practices. The Court will therefore grant summary

judgment for the District on Count III. The Court will also deny Plaintiffs’ renewed class

certification motion as moot. 14 See O’Shea v. Littleton,

(1974) (“[I]f none of

the named plaintiffs purporting to represent a class establishes the requisite of a case or

controversy with the defendants, none may seek relief on behalf of himself or any other member

of the class.”).

14 Plaintiffs only seek to certify a class for prospective relief, not damages. See Pls.’ Reply in Supp. Renewed Mot. Class Certification at 16 n.8, ECF No. 121 (“The District is correct in noting that Plaintiffs have declined to seek certification of a damages class, and Plaintiffs do not intend to do so.”).

23 2.

All that remains is Braxton’s as-applied claims under the Fourth and Fifth Amendments

for past harm (Counts I and II). The others do not pursue this relief. See Def.’s SUMF ¶ 47

(“Ms. Adams does not seek damages for alleged property loss in this lawsuit.”); id. ¶ 83 (“Ms.

Doe does not seek damages for alleged property loss in this lawsuit.”). The District does not

contest Braxton’s standing to raise her as-applied challenge. But the Court is “obliged to

consider the issue sua sponte.” Catholic Serv. v. Shalala,

, 1125 n.2 (D.C. Cir.

1994).

The Court is satisfied that Braxton can proceed. She offers evidence of alleged property

loss from a District clearing in May 2017, including a specific description of the items she

claims went missing. See Braxton Decl. ¶ 21; Ex. 16 Braxton Dep. Tr. 109–10. Braxton thus

can raise “a claim for damages against the [District] that appears to meet all Article III

requirements,” even if she cannot pursue prospective relief. See City of Los Angeles v. Lyons,

(1983).

B.

Whether Braxton’s as-applied claims under the Fourth and Fifth Amendments survive

summary judgment is a separate question. See Def.’s Mem. at 40–51.

Section 1983 allows Braxton to sue the District for constitutional violations. But

“Congress did not intend municipalities to be held liable unless action pursuant to official

municipal policy of some nature caused a constitutional tort.” Monell v. Dep’t of Soc. Servs. of

City of N.Y.,

(1978). The Court thus conducts a two-step inquiry. Baker v.

District of Columbia,

(2003). First, there must be a predicate

constitutional violation.

Second, a District custom or policy must serve as the “affirmative

24 link” to that constitutional violation, “such that [it] was the moving force behind the

constitutional violation.”

(cleaned up).

The Circuit has articulated a “number of ways” a municipal policy can establish § 1983

liability: “the explicit setting of a policy by the government that violates the Constitution”; “the

action of a policy maker within the government”; “the adoption through a knowing failure to act

by a policy maker of actions by his subordinates that are so consistent that they have become

‘custom’”; “or the failure of the government to respond to a need . . . in such a manner as to

show ‘deliberate indifference’ to the risk that not addressing the need will result in

constitutional violations.” Id.

1.

The Court first considers whether Braxton has shown a predicate constitutional

violation. She asserts that the District destroyed her wanted, unattended property during a May

2017 clearing in violation of the Fourth Amendment. Pls.’ Reply at 23.

The Fourth Amendment secures the “right of people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend.

IV. A seizure “occurs when there is some meaningful interference with an individual’s

possessory interests in that property.” Soldal v. Cook Cnty.,

(1992) (cleaned

up). And “[d]estroying property meaningfully interferes with an individual’s possessory

interest in that property.” Proctor I,

(cleaned up).

The seizure also must be unreasonable to violate the Fourth Amendment. “To assess the

reasonableness of a seizure, “[the Court] must balance the nature and quality of the intrusion on

the individual’s Fourth Amendment interests against the importance of the governmental

25 interests alleged to justify the intrusion.” Johnson v. District of Columbia,

(D.C. Cir. 2008) (cleaned up).

The Fourth Amendment does not prohibit seizure of property that has been

“abandoned.” United States v. Thomas,

(D.C. Cir. 1989). The abandonment

inquiry depends on the intent of the person alleged to have abandoned the property.

.

It is an objective test, and courts may infer intent from “words spoken, acts done, and other

objective facts.”

The undisputed record shows that the District did not destroy Braxton’s property during

the May 2017 clearing. District personnel informed “Braxton that all her belongings, except for

food items, would be subject to be taken to [Adams] Place.” Def.’s SUMF ¶ 65 (cleaned up).

After the clearing, someone at Adams Place confirmed to Braxton that all her items were in fact

stored:

I called directly to Adam’s Place and whoever was answering their phone at the time told me that they had -- they got my name. They had my name on my things. I told them I had a tent. I told them I had plastic bins with clothing, plastic bins with food. I had water. I had jewelry. I had electronics. I had cleaning things. I had suitcases. I had all that stuff. And they said they had it all, every single thing.

Ex. 16 Braxton Dep. Tr. 109:7–16; see also Def.’s SUMF ¶ 68. As Braxton admits, “[t]hey

didn’t say they destroyed anything.” Ex. 16 Braxton Dep. Tr. 109:17–20. The District thus

complied with the Fourth Amendment by storing Braxton’s property. See Lavan v. City of Los

Angeles,

(9th Cir. 2012) (“the seizure of the property would have been

deemed reasonable had the City held it for return to its owner instead of immediately destroying

it”).

Upon learning that Adam’s Place had her items, however, Braxton did not retrieve them.

Rather, she waited several weeks to visit the storage facility. Def.’s SUMF ¶ 69. By that time,

26 Braxton claims that “she was only able to recover a few of her items.” Id. ¶ 70. The only

reasonable inference from this evidence is that her items were destroyed, mislaid, or taken by

someone else while in storage, not destroyed during the clearing. Braxton does not challenge

the District’s storage policies under the Fourth Amendment. So it would be inappropriate for

the Court to assess whether the District’s storage policies and actions here violated her

constitutional rights. Indeed, Braxton wants more storage options from the District, not less.

See Pls.’ Reply at 36 (“Given these inadequate notice and outreach procedures, the District

could lower the risk of erroneous deprivation by storing more property.”).

Even if the District did destroy Braxton’s property during the clearing, Plaintiffs offer

little evidence to show that the destruction was unreasonable. Braxton refers to the “sound

condition of her belongings.” Id. at 23. But the evidence is lacking. 15 Her declaration states

only that the food in her tent “was in good condition and not rotten.” Braxton Decl. ¶ 15. Even

so, food was not eligible for storage then (and still is not). Pls.’ Mot. Ex. 1 at 9; id. Ex 2 at 7.

Braxton does not describe elsewhere in her declaration the conditions of the other items she

sought to reclaim at Adams Place. So the Court has no basis to conclude that items such as

Braxton’s mattress or clothing were otherwise eligible for storage in the first place—that they

were not hazardous, wet or soiled, infested or potentially infested with bugs. Hr’g Tr. 12:4–13,

ECF No. 130 (Plaintiffs’ counsel agreeing that “District would have a legitimate health and

safety concern in removing sharps, soiled clothing, buckets of urine . . .”); see also Sullivan v.

City of Berkeley,

(N.D. Cal. 2019) (“[T]he City has a legitimate

interest in . . . removing unsafe or hazardous conditions from its public spaces.”); Lavan v. City

15 Braxton offers evidence of the market value for her lost items. See Sealed Expert Report of Archan H. Ruparel, ECF No. 107. But this market value does not establish the condition of the lost items.

27 of Los Angeles,

(C.D. Cal. 2011) (“The City will still be able to . . .

remove hazardous debris and other trash.”).

As Braxton admits, “[s]ome of [her] most important belongings were not in plain sight.”

Braxton Decl. ¶ 5. Under current policy, District personnel need not “sort through piles or

collections of belongings, including items inside tents or containers” to identify eligible

property to store. Pls.’ Mot. Ex. 1 at 9.16 This limitation is “[d]ue to safety and other

concerns.”

Obvious safety issues could include secreted sharps, biohazards, and weapons.

Rummaging through unattended items could also presumably raise privacy concerns. So there

are both private and governmental interests that make this proviso eminently reasonable under

the Fourth Amendment. See Johnson,

.

There is no predicate Fourth Amendment violation to establish District liability under §

1983.

2.

The Court turns next to whether Braxton can prove a predicate violation of her Fifth

Amendment rights under Count II. She claims that the District violated her procedural due

process rights because the District’s written notice signs are “not reasonably calculated to

inform encampment residents about the likely destruction of their unattended property or

provide them the information necessary to protect their property.” Pls.’ Reply at 30–31. Not

so.

“The Fifth Amendment’s Due Process Clause prohibits the District of Columbia from

depriving persons of ‘property without due process of law.’” Wash. Legal Clinic for the

16 The 2019 Protocol reflects the District’s actual encampment clearing practices. Pls.’ SUMF ¶ 15. So the Court refers to it here when discussing the clearing practices in May 2017.

28 Homeless v. Barry,

(D.C. Cir. 1997) (quoting U.S. Const. amend. V). “[D]ue

process requires the government to provide notice 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.” Jones v. Flowers,

(2006) (cleaned

up). The Court must weigh “the risk of an erroneous deprivation” against any “additional or

substitute procedural safeguards.” See Mathews v. Eldridge,

(1976).

Recall that only Braxton claims property loss under the District’s clearing practices.

The undisputed record shows that the District did not violate Braxton’s Fifth Amendment rights

during the May 2017 clearing. “District personnel informed [Braxton] that the District would

be conducting a clearing the next day.” Def.’s SUMF ¶ 63; see also Ex. 16 Braxton Dep. Tr.

93:7–94:2. Those same personnel also told Braxton “that she would have to move her

belongings off M Street for the cleaning.” Def.’s SUMF ¶ 63. And Braxton told them that she

wanted her items stored, which she invoked and which they agreed to do.

¶¶ 64–65. It is

undisputed then that Braxton received actual notice of the clearing and that her belongings must

be moved beforehand—more than the Fifth Amendment requires. See Small v. United States,

(D.C. Cir. 1998) (“[T]he Due Process Clause does not demand actual,

successful notice[.]”). So the District did not violate Braxton’s procedural due process rights.

See United Student Aid Funds, Inc. v. Espinosa,

(2010) (“actual notice of the

filing and contents of [debtor’s] plan . . . more than satisfied [petitioner’s] due process rights”

under the Fifth Amendment).

29 More, the District announced the clearing with a sign. See Horen Decl. ¶ 61;

Ex. 7,

ECF No. 18-7. 17 The sign included the date and time of the clearing and stated that “[p]ersonal

belongings, in plain sight, considered to be of obvious value” “will be temporarily placed in

storage.”

Ex. 7. It also cautioned that “[a]ll other items visible from this location and not

removed from this public space by the above stated scheduled cleanup time are subject to

removal and disposal.” 18

And at the time of the May 2017 clearing, Braxton already knew about “the Adams

Place storage facility from the posted sign and previous written letters [she] had received.”

Braxton Decl. ¶ 11. Adams Place confirmed for Braxton after the clearing that all her items

were stored there, consistent with the notice. Def.’s SUMF ¶ 68; see also Ex. 16 Braxton Dep.

Tr. 109:7–16 (“They had my name on my things. I told them I had a tent. I told them I had

plastic bins with clothing, plastic bins with food. I had water. I had jewelry. I had electronics.

I had cleaning things. I had suitcases. I had all that stuff. And they said they had it all, every

single thing.”). 19

17 The clearing was originally scheduled for May 11, but the District rescheduled it for a week later and updated the notice “at least 48 hours prior to the cleanup.” Horen Decl. ¶ 61. 18 Braxton suggests in her declaration that “the posted sign did not indicate any clearing scheduled for the following day.” Braxton Decl. ¶ 12. It is unclear whether Braxton is referring to a different sign or the one the District submitted photographic evidence of, which shows a May 18, 2017 clearing date. If she is referring to the sign depicted in the photo, the “photographic evidence belies [her] claims” that the sign did not have the correct date and time. Thorp v. District of Columbia,

, 15–16 (D.D.C. 2018), aff’d,

(D.C. Cir. 2019). It is thus appropriate to rely on the photographic evidence at summary judgment, not Braxton’s declaration. Cf. Scott v. Harris,

(2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). 19 There is a reasonable inference that some of Braxton’s items were destroyed or mislaid between the time when Braxton called Adams Place and when she went to retrieve them weeks later. But Plaintiffs’ Fifth Amendment claim does not challenge the adequacy of the District’s

30 On this record, the District “more than satisfied [Braxton’s] due process rights.” United

Student Aid Funds, Inc.,

. Plaintiffs therefore cannot establish a predicate

violation of the Fifth Amendment.

3.

Even if Braxton had shown a predicate constitutional violation, she fails to identify a

District custom, policy, or practice that acted as the “affirmative link” to any destruction of her

property during the May 2017 clearing. Baker,

. Tellingly, Braxton does not

rely on examples of homeless individuals who lost wanted, unattended property during District

clearings to establish the District’s liability here. She instead cites “a consistent pattern of

conduct evidenced in policy documents, statements by District officials, and the District’s own

clearing records.” Pls.’ Reply at 47.

The strongest evidence are two documents stating that “[i]f an owner cannot be

identified, items are determined abandoned and disposed of.” See Pls.’ Reply Ex. 28 at 2, ECF

No. 136-31;

Ex. 37 at 14, ECF No. 136-40. Braxton characterizes them as “[i]nternal

guidance documents pertaining to encampment clearings.” Pls.’ Reply at 47. But it is unclear

how these documents can be considered “internal guidance.” The first document is “Appendix

C: Encampment Talking Points.”

Ex. 28 at 1. As the District points out, there is no author

or date provided for this document, and Plaintiffs offer no further explanation for how the

District used it, if at all. The second document is a 2017 presentation called “Homeless

Encampments.”

Ex. 37 at 2. Braxton suggests that this document is a “Homeless

procedures for post-clearing storage. It focuses on lack of notice before any clearing, which explains why Plaintiffs seek more storage. See Pls.’ Reply at 36 (“Given these inadequate notice and outreach procedures, the District could lower the risk of erroneous deprivation by storing more property.”).

31 Encampment Training.” Pls.’ Reply at 47 n.20. No evidence shows that this was a “training.”

This presentation went to “non-District-employees through the District’s Department of Small

and Local Business Development.” Def.’s Reply in Supp. Cross-Mot. Summ. J. at 12, ECF No.

140 (citing Ex. 16, ECF No. 114-16). Even drawing all reasonable inferences in her favor,

without more, the Court cannot find that either document qualifies as a “policy document”

sufficient to impose liability on the District. See Connick v. Thompson,

(2011)

(“Official municipal policy includes the decisions of a government’s lawmakers, the acts of its

policymaking officials, and practices so persistent and widespread as to practically have the

force of law.”).

Braxton also identifies a “memorandum issued by the official overseeing encampment

engagements,” which notes that “unattended belongings need to be consistently discarded in

order for consumers to take the protocol seriously.” Pls.’ Reply at 47 (cleaned up). There is no

evidence, however, that the District ever issued or implemented this memorandum. Indeed, its

file name suggests that it was “never sent.” See Def.’s Reply in Supp. Mot. Dismiss & Mot.

Summ. J. Ex. F at 2, ECF No. 114-7.

Plaintiffs thus fail to “produce evidence sufficient to support a finding” that these

documents reflect a District policy to establish § 1983 liability. See Fed. R. Evid. 901(a).

Braxton next offers statements from “District policy officials,” including former

Encampment Coordinator Elizabeth Horen and Deputy Chief of Staff and Acting Encampment

Coordinator Jessica Smith. Pls.’ Reply at 47–48. She does not elaborate more on how either is

a “final policymaker” who can trigger municipal liability. See Thompson v. District of

Columbia,

(D.C. Cir. 2016) (emphasis in original). She does not show, for

example, that either “speak[s] with final policymaking authority” for encampment clearings.

32 Jett v. Dallas Indep. Sch. Dist.,

(1989). And neither is “an agency head or

the governing body of an agency.” Allen-Brown v. District of Columbia,

(D.D.C. 2014) (“[C]ourts in this district have held that a final policy maker typically must be at

least an agency head or the governing body of an agency.” (cleaned up)).

Horen, for example, was a Program Analyst in the Office of the Deputy Mayor for

Health and Human Services “responsible for scheduling and coordinating cleanups.” Horen

Decl. ¶¶ 1–2. Perhaps she had discretion to implement the 2016 Protocol. But that is not

enough to establish final policymaking authority. See City of St. Louis v. Praprotnik,

(1988) (plurality opinion) (“If the mere exercise of discretion by an employee could

give rise to a constitutional violation, the result would be indistinguishable from respondeat

superior liability.”).

In any event, Horen’s isolated statements are not dispositive. Horen states that “[i]tems

. . . are deemed abandoned when the owners leave after the cleanup team is already on site,

indicating that he or she is abandoning the property.” Horen Decl. ¶ 52. At most, this comment

supports a District practice to consider property abandoned if an owner leaves after the clearing

has begun.

The Court doubts that this creates municipal liability under the Fourth Amendment in

the first place. See Proctor I,

(agreeing that the “District could

reasonably conclude Plaintiffs had abandoned their property” because “Braxton walked away

from it at the beginning of a cleanup, despite having more than two-weeks’ notice that the

cleanup would take place”). And elsewhere Horen describes a “consultation process to

determine whether property has been abandoned,” which includes input from District “outreach

workers, third-party outreach providers, and other individuals with tents or other property at the

33 location.” Horen Decl. ¶ 47. These statements reflect a deliberative process, not—as Plaintiffs

suggest—a custom to uniformly destroy unattended belongings.

Smith stated that “[i]f property is left within the cleanup zone after the time of a posted

cleanup, it is subject to disposal, and I am assuming that it is abandoned property.” Pls.’ Reply

Ex. 8, Dep. Tr. of Jessica Smith 26:16–27:4, ECF No. 136-11. But she elaborated on all that

must happen before the District determines property like a “functional tent” is abandoned:

Yeah. Hypothetically, if there was a functional tent left within the cleanup zone after the time of the cleanup which has been properly noticed, 14 days, and no one is there to claim the tent and I have talked with outreach workers about the notice that they have provided and I have talked with other residents about if they know . . . whose this tent is and it is still there and no one has moved it, yes, it would be abandoned.

27:14–22 (emphasis added); see also

29:16–23 (“[She] would have talked to an outreach

worker. [She] would have talked to other residents there, and [she] would assume that if it was

left in that area, that they did not want it. Therefore, they must not have thought that it was of

obvious value.”). Smith also stated that the District would store electronics and identification

cards, even if they were considered abandoned. See

28:5–11. On the whole then, Smith’s

testimony does not support a blanket policy to destroy all unattended property during a clearing.

Finally, Braxton points to the District’s clearing records. She claims that the “records

support an inference that the District summarily disposed of some or all of encampment

residents’ property in 82 of 102 cases involving unattended belongings (approximately 80%).”

Pls.’ Reply at 48. She invites the Court to infer that the “disparity in destruction versus storage”

reflects a policy to discard all unattended belongings during clearings. Id. at 37.

The Court declines to rely on these statistics. They offer no insight into whether

unattended belongings were wanted and of a class of items that the District should have

stored—not soiled, hazardous, or bug-infested—but did not. Accord Hooper v. City of Seattle,

34 No. C17-0077RSM,

, at *11 (W.D. Wash. Feb. 14, 2017) (rejecting evidence

of “spreadsheet documenting cleanups” to “establish[] the existence of a widespread and

persistent pattern of the summary destruction of unhoused individuals’ property” because

“[c]onsidering the number of reasons why property may not be stored—including that property

may have been abandoned—the Court is not convinced that citation to a statistic derived from a

two-month period demonstrates the City’s widespread engagement in a pattern of summarily

destroying property”), aff’d sub nom. Willis v. City of Seattle,

(9th Cir. 2019).

Consider the following painstaking summary of an August cleanup:

In total, three of the four tents were disposed of. The burnt tent and all the destroyed items that were inside were thrown out, as well as another tent belonging to the woman (she no longer wanted it). Another larger tent was also on site, but the owner was not. OHS [Occupational Health and Safety] confirmed that they were unsuccessful in making contact with the owner over the two weeks the notification signs were posted and were unsure the owner was still around. OM HHS [Health and Human Services] also asked the other individuals on location if they had seen the owner of the tent. The individuals reported to OM HHS that they like to keep to themselves, and thus were unsure of who owned the tent and did not really keep track of when they saw the occupants (when asked if the last time they saw the owners of the other tent, they said it hadn’t been too recent). At this point, OM HHS made the determination that the tent was unclaimed and gave OPW [Public Works] the okay to dispose of it. The fourth tent was disassembled by its owner and moved off site.

Pls.’ Mot. Ex. 41 at 12. Statistics in the context of this August cleanup would be misleading.

They would show that three tents were discarded. But two were not even among the class of

items that could be stored—one was burnt and the other abandoned. And District personnel

conducted a careful inquiry to determine whether the final tent was still wanted. Accord

Proctor I,

(“When District employees encounter unattended property,

they consider many factors and consult several sources, including other encampment residents,

to make what appears to be a good-faith determination about whether the property is

35 abandoned.”). So the Court declines to rely on raw numbers as proof of the District’s alleged

policy of destroying unabandoned but unattended belongings.

Braxton also notes “that only 10% of clearings identified in the District’s list of 2019

encampment clearings were designated as ‘trash collection only,’” which she argues “supports

an inference that in the other 90% of cases, the District discarded items that were not ‘trash.’”

Pls.’ Reply at 48 (citing Ex. 39, ECF No. 136-42). The Court disagrees. The District may

conduct a clearing for reasons other than collecting trash, including when an encampment

“interferes with community use of public space” or “becomes a significant community

nuisance.” Pls.’ Mot. Ex. 1 at 5;

Ex. 2 at 4 (same). That does not mean trash removal does

not occur during these other clearings. For instance, the District did not designate a July 2019

clearing as “trash collection only.” See Pls.’ Reply Ex. 39 at 2. But the report for that clearing

reveals that “[t]he team removed all of [the] trash and debris from the site.” Pls.’ Mot. Ex. 41 at

226. It notes that “there were many biohazards on site such as urine in open containers and

used needles in thin plastic bottles.”

These naked statistics cannot establish a District

custom or policy under § 1983.

The evidence is even less convincing to establish municipal liability under the Fifth

Amendment. Recall, for example, the “Encampment Talking Points” Plaintiffs identified. See

Pls.’ Reply Ex. 28 at 2. Even if they do reflect a District “policy”—which Plaintiffs have not

established—these “talking points” undermine the policy Braxton seeks to establish in pursuit

of her Fifth Amendment claim. The talking points provide that the District will “post signs at

least 14 days [in] advance . . . of an upcoming cleanup event.” Id. They also state that

“[o]utreach teams also conduct final outreach to locations at least 48 hours in advance of a

cleanup event to remind individuals of the upcoming cleanup.” Id.; see also Pls.’ Reply Ex. 37

36 at 11 (noting signs posted “allowing at least 14 days advance notice of an upcoming cleanup

event.”). So the “policy” reflected, if any, is that the District notifies homeless individuals of a

clearing using signs and outreach. This two-pronged approach is “reasonably calculated” to

provide notice under the Fifth Amendment. Accord Love v. City of Chicago, No. 96 C 0396,

, at *11 (N.D. Ill. Feb. 6, 1998) (finding written and oral notice “reasonably

calculated” to notify homeless individuals of clearing).

Plaintiffs also contend that “[t]here is a genuine factual dispute over whether the District

has consistently failed to inform encampment residents of a clearing and its consequences

before destroying their un-abandoned property.” Pls.’ Reply at 27–28. The Court disagrees.

Plaintiffs do not dispute that the District had to “post notices of cleanings 14 days prior

to the cleaning to afford individuals affected by the cleaning time to voluntarily remove their

property.” Pls.’ Resp. Def.’s SUMF ¶ 7, ECF No. 136-1. And that District outreach staff had to

“reach[] out to encampment occupants to let them know the cleaning would occur.” Id. ¶ 13.

To start, the two-week notice is more extensive than other cities’ policies that survived

similar constitutional challenges. See, e.g., Sullivan,

(rejecting argument

at summary judgment that the Constitution required city to “disclose the precise date and time at

which it will return to enforce the encampment’s removal” after “provid[ing] 72-hours’ notice

that a removal action is imminent”); Hooper,

, at *5, *7 (finding plaintiffs

failed to show success on the merits where notice of clearing posted “at least 72 hours in

advance”); De-Occupy Honolulu v. City & Cnty. of Honolulu, No. 12-cv-00668 JMS,

, at *6 (D. Haw. May 21, 2013) (same for 24-hours’ notice); Love v. City of Chicago,

No. 96 C 0396,

, at *4 (N.D. Ill. Oct. 25, 1996) (rejecting contention that

37 additional procedures were needed where city provided 12-hour notice and “[t]he 48-hour

advance notice . . . would not be much more valuable”).

Still, Braxton proffers reasons why the District’s notice might not work. For example,

Braxton claims that the notice “contains vague and ambiguous language that leads to confusion

and inconsistent implementation”; that “encampment residents may still struggle to comprehend

the notice due to illiteracy, or mental illness”; that “encampment residents who do not speak

English or who speak English only as a second language may have an especially difficult time

comprehending the English-only signage”; and that “signs are typically posted out of ordinary

view and may blend in with other signs.” Pls.’ Reply at 32 (cleaned up). She also contends that

the District’s outreach efforts do not reach every resident. Id. at 34.

But recall that the District’s notice need only be “reasonably calculated.” Jones,

. Plaintiffs themselves show that the District’s notice practices pass muster under

this standard. They confirmed that the District had a consistent practice of notifying individuals

of clearings. Adams explained that “normally” the District conducts a clearing “two weeks

from th[e] day that they put the sign up.” 20 Ex. 15 Adams Dep. Tr. 57:14–58:6. Braxton also

noted that she “usually” saw a notice sign every month prompting her to “note the cleanup date

and make sure that [she] had [her] stuff moved.” Ex. 16 Braxton Dep. Tr. 98:5–18. She also

explained that “city workers taught us . . . they came and taught us how to move the things.”

99:9–13. Braxton knew about “the Adams Place storage facility from the posted sign and

20 Plaintiffs point to other testimony from Adams in which she testified that the District is “supposed to give us two-week notice, but they don’t have to” if someone complains about the encampment. Ex. 15 Adams Dep. Tr. 76:19–22. But she conceded that the District has yet to conduct a clearing without notice based on complaints.

77:20–22.

38 previous written letters [she] had received.” Braxton Decl. ¶ 11. And Doe similarly testified

that workers update notice signs to reflect clearing times. Doe Dep. Tr. 39:21–40:1.

Each Plaintiff also understands that she must remove property before the clearing.

Having experienced “at least 15 cleanings,” Pls.’ SUMF ¶ 40, Doe stated that “nothing should

be on site” when District personnel arrive to clean, Doe Dep. Tr. 169:1–3. Adams has

participated in around 20 encampment clearings. Def.’s SUMF ¶ 39; Pls.’ SUMF ¶ 36. She

“[k]eep[s] track of the dates when they’re doing clean-ups” to be prepared, Ex. 15 Adams Dep.

Tr. 60:10–22, and knows that “[e]verything has to be moved from the location at 10:00 a.m.,”

Def.’s SUMF ¶ 42 (cleaned up). Braxton “note[d] the cleanup date and ma[d]e sure that [she]

had [her] stuff moved.” Ex. 16 Braxton Dep. Tr. 98:8–18. Braxton explained that “city

workers . . . came and taught us how to move the things.”

99:9–13.

Plaintiffs also try to show that the District has conducted clearings without sufficient

notice before. But their efforts fall short.

Plaintiffs submit evidence that the District “may have” posted signs listing the wrong

date, Pls.’ Reply Ex. 9, Dep. Tr. of Kangeun Kelly Jeong-Olson 193:2–4, ECF No. 136-12, or

that “[s]ometimes the clearing notices have not been accurate,”

Ex. 2, Dep. Tr. of Judy

Williams (“Williams Dep. Tr.”) 39:20–22, ECF No. 136-5. But there is little evidence that

clearings took place under these deficient notices. If anything, the record shows the opposite—

that when notices were deficient, the District cancelled cleanups. In one instance of improper

notice, for example, the report states that “CLEAN UP CANCELLED DUE TO SIGNS NOT

BEING POSTED IN CORRECT LOCATIONS.” Pls.’ Mot. Ex. 29 at 3, ECF No. 126-32; see

also

Ex. 27, ECF No. 126-30 (no indication that clearing went forward);

Ex. 28 at 2, ECF

No. 126-31 (stating that “[t]his camp has not been properly posted” and “[p]lease review and

39 advise of next steps”); Williams Dep. Tr. 40:5–20 (D.C. Homeless Service Coordinator

testifying that she was unaware of clearings that occurred under erroneous notices).

One clearing apparently happened when the sign contained the incorrect date. See Pls.’

Mot. Ex. 30, ECF No. 126-33. But the evidence also shows that “numerous engagements with

the individuals from this location” occurred in the days before the clearing and that “they were

all aware that the cleanup was scheduled.”

District personnel arrived an hour before this

clearing “to once again inform the residents about what was going to occur and what courses of

action were available to them.”

Even with the defective sign then, the District did provide

notice “reasonably calculated” to homeless individuals about this clearing. Accord Sullivan,

(finding no triable issue on due process claim where “encampment did,

in fact, receive notice and a reasonable opportunity to pack up their belongings before the City

collected any remaining unattended property”). And even if they did not, “[o]ne instance,

however, egregious, does not a pattern or practice make.” 21 Martin v. Malhoyt,

(D.C. Cir. 1987).

* * *

In sum, after three years of litigation, not one Plaintiff has experienced a surprise

encampment clearing or the destruction of unabandoned property during a clearing. They thus

fail to show a predicate violation of their Fourth or Fifth Amendment rights to support a § 1983

claim against the District. Even if they did, the record does not establish any District custom,

21 Similarly, Plaintiffs suggest that the District has conducted re-clearings without notice. See Pls.’ Reply Ex. 9, Dep. Tr. of Kangeun Kelly Jeong-Olson 196:12–24 (stating that “District has authority to perform recleaning”). The Court does not construe the Plaintiffs’ filings as challenging the District’s re-clearing practices. But in any event, evidence that the District “has authority to perform recleaning” without notice is insufficient to establish municipal liability. It does not show that the District does in fact consistently conduct re-cleanings without sufficient notice.

40 policy, or practice that served as the “affirmative link.” The District thus is entitled to summary

judgment on Counts I and II.

IV.

The Court recognizes that Plaintiffs have an interest in protecting their unabandoned

property at these encampments, which may represent their only possessions. But the District

has an equally salient interest in ensuring the health, safety, and well-being of all City residents,

including the homeless. On its face, the 2019 Protocol contrasts with other cities’ policies that

did not survive constitutional scrutiny.

For example, the Ninth Circuit struck down a Los Angeles policy that provided only a

general notice that cleanups could happen anywhere in Skid Row between 8 and 11 a.m. on any

week day, which prevented homeless residents from anticipating when or where the cleanup

would take place. See Lavan,

(Callahan, J., dissenting). Los Angeles also

admitted that it had “a policy and practice of seizing and destroying homeless persons’

unabandoned possessions.”

.

A court recently invalidated Denver’s policy, which provided morning-of notice of

clearings, because the plaintiffs “had little time to collect and remove their belongings prior to

the commencement of the sweeps.” Denver Homeless Out Loud v. Denver, --- F. Supp. 3d ---,

, at *7 (D. Colo. Jan. 25, 2021). The court noted that “[i]f Denver provided

homeless individuals with additional advance notice of sweeps, it would allow Plaintiffs a better

chance to protect the property critical to their survival.” Id. at *8.

And in Kincaid v. City of Fresno—a favorite case for Plaintiffs—the court found

unconstitutional a city policy to “immediately destroy[] all of the property that it seizes in its

sweeps.” No. 106CV-1445 OWW SMS,

, at *36 (E.D. Cal. Dec. 8, 2006).

41 There, Fresno made “no effort to separate and store for later retrieval items that are clearly

owned and are valuable, not trash.”

The city also “offered limited evidence of any pre-

deprivation notice” and only “some evidence of oral notice before some of the City’s sweeps.”

Id. at *38.

By contrast, consider the 2019 Protocol’s terms. It requires 14-days’ notice before a

standard clearing, with “notices/signs conspicuously throughout the immediate vicinity of the

public space to be cleaned.” Pls.’ Mot. Ex. 1 at 6. The notice warns that “property left on site

during the cleanup may be immediately destroyed,” but that “some unattended, non-hazardous

property may be stored, in the District’s discretion.” Id. More, outreach workers must “make

every effort to share this information verbally with anyone at the site and with community

partners to ensure those who are unable to read or have difficulty comprehending the

information are made aware of the impending cleanup action.” Id. They also must “make clear

to individuals experiencing homelessness that the only way to be sure property is not disposed

of during a cleanup is to move the property from the cleanup site before the specified cleanup

time.” Id. at 7.

The District allows homeless individuals to store their belongings before a clearing

begins. Id. at 8–9. And District personnel “make reasonable efforts to collect and store”

eligible items that are “in plain sight, even if they are unattended at the time.” Id. at 9. They

even provide complimentary transportation to the storage facility. Id. at 8.

After three years of litigation, it is time to put this case to rest. The record shows that

none of the Plaintiffs has standing to raise a facial challenge to the District’s practices under the

Fourth or Fifth Amendment. And the undisputed record shows that the only Plaintiff to have

lost her wanted, unattended property during a clearing (once), did not suffer a constitutional

42 violation. Even if she had, the evidence does not support a custom, policy, or practice to

impose liability on the District for that violation. The Court thus finds that the District is

entitled to summary judgment on Plaintiffs’ constitutional challenges to its clearing practices.

Plaintiffs’ motion for summary judgment will be denied and Defendant’s cross-motion

for summary judgment will be granted. A separate Order will issue.

2021.03.31 18:25:04 -04'00' Dated: March 31, 2021 TREVOR N. McFADDEN, U.S.D.J.

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