By Jean Taddie
On October 5, 1994, the American Civil Liberties Union of Ohio filed a lawsuit against the City of Cleveland on behalf of four homeless and formerly homeless plaintiffs and the Northeast Ohio Coalition for the Homeless. Currently, lawyers from both sides are taking depositions and collecting documents during process will continue through July, after which lawyers may try to file for a summary judgment that would resolve the case before going to trial. ACLU Legal Director Kevin O’Neill is one of the attorneys representing the plaintiffs. He explains that when facts are contested, a summary judgment will generally not be granted. In this case, the facts are hotly contested, therefore, O’Neill and James Levin, an ACLU Cooperating Attorney for the plaintiffs, both predict that this case will go to trial, perhaps next year.
The facts are contested in the case because the plaintiffs allege that Cleveland police officers, under the direction of their superiors, engage in “dumping” homeless people – a charge that the defendants flatly deny. Specifically, the complaint seeks injunctive “to halt an unconstitutional policy, practice, and/or custom of the City of Cleveland under which police officers physically remove homeless and/or destitute individuals from certain sectors of the city, transport them against their will to various distant locations, and abandon them.” In addition, the suit seeks compensatory and punitive damages for the four names plaintiffs. In a response filed by the City of Cleveland, the defendant denies all allegations. Kathleen Martin Chief Train Counsel for the City would make no further comments while the case pending.
The case revolves around the possibility that the City of Cleveland was diverting its police protection away from neighborhoods and downtown citizens in order to violate the constitution rights of homeless citizens. At least three organizations – the ACLU, National Law Center on Homelessness and Poverty, and Federal Bureau of Investigations—each thought these allegations were serious enough to investigate.
The ACLU’s Kevin O’Neill was one of the first to investigate the charges of police dumping of homeless people. “During the summer and fall of 1992, I was receiving anonymous tips and hearing rumors about homeless dumping in Cleveland. People would call me and warn me to “Look out for homeless sweeps.’’’These anonymous calls led O’Neill to investigate further. Over the next two years, O’Neill interviewed nearly 40 homeless people and receives the same types of responses from them. Based on his investigation, O’Neill discovered that Cleveland police officers have at least three devices they use to keep homeless people away from the downtown business district. These devices include commanding people to leave, citations for disorderly conduct, and dumping. There have been no complaints of dumping since the filing of this lawsuit; however, Levin speculates that problems with dumping could begin again this year when Jacob’s Field opens for baseball and the Rock-N-Roll Hall of Fame opens for business. In addition, O’Neill states that police have stepped up the issuance of disorderly conduct situations to homeless people—tactic that is harder to combat since each case must be fought separately.
O’Neill stressed that Police enforcement against homeless people has been used to protect the downtown business districts. The four plaintiffs’ affidavits, which are attached to the lawsuit, allege a pattern of police enforcement against panhandlers, Homeless Grapevine vendors, and homeless individuals who were standing or walking in the wrong lace—i.e., in the business sections of downtown. Each of the plaintiffs detailed one or more events when they were removed without consent from lucrative business areas downtown, including Public Square. Playhouse Square, Jacob’s Field, and the Flats. There were then dumped in industrial and residential neighborhoods that were far from the services that they depend on. Some of the sites where people allege they were dumped include: West 103rd and Harbor view, East 40th and Woodland, Brecksville Metro Park, Westside water treatment plant, the steel mill off West 3rd, East 46th and Central, East 55th and South Marginal Road, and Max S. Hayes Vocational High School.
This pattern of dumping homeless people led the ACLU to send a demand letter to the City of Cleveland on February 8, 1994. That letter demanded that the City investigate the allegations of dumping and call a halt to any such actions. “When John Mungai was dumped by police after we sent the demand letter, that was the last straw. That was when we decided to move ahead with filing the lawsuit, “ O’Neill explains.
The City has denied and continues to deny all allegations. The ACLU team expects a tough battle ahead proving their case through testimony and documents. O’Neill explains that the ACLU team will have to challenge some of the testimony of police officers. These officers have what O’Neill calls “special credibility” in court while homeless people do not. In addition, according to Levin, the process of discovering documents is difficult because the defendants are not volunteering evidence that would be damaging. “We are having to earn every document we get,” said Levin.
Some progress has been made in documenting this case, however. Two memos may help build the case against the city. The first is a signed memorandum from Mayor Michael White to then Police Chief Edward Kovacic dated May 8, 1992. It reads:
“Attached is, yet, another note concerning panhandlers in downtown Cleveland. While I know you are working on this problem, I am forwarding this additional letter to you in an effort to once again impress upon you the extremely negative impact that this activity is having on our downtown’s viability.”
The Mayor’s memo was also sent to the third District Commander Flask who addressed a memo to all the third District personnel on November 18, 1992. In this memo, Flask discussed the police role in providing assistance to those who are less fortunate. Furthermore, Flask outlined a new policy that was to begin immediately:
“Effective today, Wednesday, November 18, 1992 van 399 will be in service on the first and second platoon, seven days a week. Any homeless or hungry citizen observed in the Third District shall be conveyed by the assigned officers to an area shelter or food center.”
According to O’Neill and Levin, these memos – as well as other evidence – suggest that lucrative business interests in the City of Cleveland are pressuring Mayor White, who in turn pressures the police force to remove homeless people from areas around their businesses. The plaintiffs further contend that these actions are a violation of the United States and Ohio Constitutions. In response to these allegations, Joe Scarbek from the Mayor’s Press Office said that the City is in disagreement with all allegations made by the plaintiffs but would make no further comment while the case was in litigation.
These serious allegations were studied not only by the ACLU but by other national organizations as well. Richk Herz, of the National Law Center on Homelessness and Poverty, authored a report titled No Homeless People Allowed. In his study, Herz surveyed 29 cities across the country to study the punitive policies that many local governments are adopting towards homeless people. The survey, which was conducted throughout 1994, showed that some local governments are adopting stricter laws and enforcement standards against homeless people. According to the report, these practices include “restrictions on begging; restrictions on homeless persons’ use of public places; police “sweeps” designed to remove homeless people from specific areas; selective enforcement of generally applicable laws against homeless people; and restrictions on providers of services to homeless people.”
Based on his survey of 49 cities, Herz compiled a list of cities having the “meanest streets.” Cleveland was listed in the top five. Herz stated that the top five cities – Cleveland, Santa Monica, Santa Ana, San Francisco, and Seattle – were chosen because they had the “most pervasive” offenses during 1994.
At least one other organization has researched the allegations made against the City of Cleveland by the downtown homeless community. The Cleveland office of the FBI has conducted an investigation of these claims. Special Agent Robert Hawk, could not make any comments about this report. When asked why the FBI gets involved in local cases like this, Hawk stated that the FBI can investigate when there are “alleged violations of a person’s civil rights.”
The Justice department report filed by the FBI is confidential, and can only be released to the pubic after filing a long arduous Freedom of Information Act petition. The ACLU recently received information filed under the successful petition of Freedom of Information Act – the information was 10 years old.
Copyright NEOCH and the Homeless Grapevine, Issue 10 May – July 1995