10/24/2022
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RangeMedia
Carl Segerstrom
Sheriff Knezovich plans to sweep the encampment the day before Veterans Day, but a lot remains unclear.
A month ago, Sheriff Ozzie Knezovich publicly entered the debate over Camp Hope’s future by pledging to sweep Camp Hope. Now, about three weeks ahead of the November 10 date the sheriff has set for sweeping the camp, the legality of a sweep and the strategies being considered to stop a sweep are coming into focus.
Part of that focus came in the form of a lengthy response from Washington State Department of Transportation head Roger Millar to Spokane Police Department Chief Craig Meidl’s chronic nuisance notice in early-October, which read more like a legal document than a press release and made it clear the state has no intention of seeing the property swept within the month (check out analysis of the letter from Nate Sanford at The Inlander here).
While WSDOT’s letter laid out the state’s objections to sweeping the encampment as a nuisance property, there’s other important and evolving dynamics surrounding the legality of sweeping the camp. For example, an appellate court decision out of Grants Pass, Oregon in late September expanded constitutional protections for unhoused people beyond even the influential Martin v. Boise decision. Martin v. Boise prevents criminalizing homelessness when housing is unavailable. The Grants Pass decision affirms that civil nuisance orders — the legal vehicle the city is proposing to use to clear the camp — are also subject to the constitutional protection standards outlined by Martin v. Boise.
The other shoe dropped this Friday when the County Commissioners slid an emergency declaration for the camp into their agenda for next week (check out yesterday’s CIVICS newsletter for more info on the pending emergency resolution). That emergency declaration will give the sheriff the legal backing of the county to clear Camp Hope, whether or not that legal backing will hold up in court is an open question.
As the sweep date set by Knezovich inches closer, and the legal wrangling continues, RANGE spoke with local litigator and Gonzaga Law adjunct professor Jeffry Finer about the legal processes at play with regards to sweeping the camp. Finer has been in contact with advocates and legal scholars about the legal dimensions of the Camp Hope sweep. But, he is not currently working directly on any legal actions regarding the encampment.
This conversation has been edited for length and clarity.
RANGE: In a general sense, what authority does Sheriff Knezovich and the sheriff’s office have to sweep the camp and what does that process look like?
Jeffry Finer: I've talked with [retired] county administrators and I've talked with city authorities who are up to date and have researched this specifically. If the sheriff were to bring a nuisance action and go to court and get an order, then he's got the authorization from a court judicial authority to conduct a sweep. That would be an option.
I don't think he has the authority to simply decide on his own that he's gonna move in without a warrant and disrupt people in their temporary, but nevertheless essential and primary residences. There's all kinds of federal and state rules against that.
RANGE: Something that’s come up regarding the sheriff's authority is the power of a “constitutional sheriff.” What does that mean?
Finer: There is a concept, it's not just a fever dream from the far-right, the term is well understood. [The concept is that] the jurisdictional, geographic scope of the sheriff’s authority is very broad. The sheriff is correct in believing that as a constitutional sheriff he has certain prerogatives. He does. But he's not free to act as he wishes, he's free to act with instruction [from, for instance, the County Commissioners planned emergency order].
There are broad jurisdictional authorities given to a county sheriff, but that doesn't mean his authorization to do what he wants to do is broad. He's still constrained in the way every police officer is, in terms of how that authority is used. I'm not sure that's a nuance he gets — maybe he does. But it's convenient to him to make it sound like he gets to sit and decide whether to sweep the camp or not. He does not.
RANGE: Then, who does get to decide? Who has the legal authority?
Finer: If you have a warrant, that means you've gone to a judge and based on a showing of probable cause, a judge authorizes law enforcement and the sheriff to go take or look around.
And when they're there, if they see violations of law, they can start making arrests and such. But showing up with the predetermined decision — not granted by a judge — to march in and start going through people's belongings looks like what the British used to call a “general warrant.”
To go in and ruffle around, see what you find out and get rid of the [encampment] — that's been anathema since the beginning of the Constitution. The Fourth Amendment hits it squarely. Washington State [also] has a very powerful privacy provision in its constitution.
Between those two, the sheriff is constrained in how and on what basis he gets to throw around his authority. A constitutional sheriff doesn’t get to suspend the Constitution. A Constitutional Sheriff has broad geographic authorization — That's it.
RANGE: What would that warrant gathering process look like? What kind of timeframe would it get approved on?
Finer: There’s a couple of ways they can do it. They can get sworn statements from officers [that they have reasonable suspicion of crimes being committed]. That's their bread and butter, they do it all day long.
They can also go and get statements from the public. They have been doing that. They've been circulating blank declarations for at least the last 10 days. [The form says] give me your name and tell your story. I'm assuming they have gathered these declarations — and that may be from business people in the area, it might be from casual people who go through the area.
Those are the two main ways of doing it: Get eyewitness statements or get summary statements from law enforcement.
The really important document is the warrant application. That's where law enforcement lays out, ‘here's what we have come to believe’ and lays out the facts that would justify entering into private space and seizing, arresting or whatever.
RANGE: There’s been a tendency to paint the encampment and the people living in it with a broad brush as criminals or drug addicts. How does a warrant that covers the entire camp discern between people who have and have not committed a crime?
Finer: There's the problem I'm seeing. They're going to go into an area that has been the living space for hundreds of people. For many of them, that's all their property. It has to actually be executed carefully or they're gonna end up executing a general warrant, that is to say, a warrant with no controls and no constraints, which is unconstitutional.
RANGE: Since 2018, the Martin v. Boise case has prevented municipalities from sweeping camps or enforcing laws on where people can sit or lie when shelter space isn’t available. That case, which found that criminalizing homelessness was a violation of Eighth Amendment rights, has had a major impact on the ability of cities across the Western United States to enforce anti-camping and sit-lie laws. Now, a new case out of Grants Pass, Oregon has expanded that previous ruling. How does that apply to Camp Hope and Spokane?
Finer: Boise v. Martin had to do with the imposition of criminal penalties for constitutionally protected behaviors like sitting or lying on a sidewalk when there's no place else to go.
Grants Pass, which is brand new, extended that to civil enforcement of nuisance laws. So, it's a similar outcome, but it's been extended out of the criminal sphere into the civil sphere. A nuisance filing by the city or a nuisance sweep by the sheriff would fall into the new Grants Pass case. The case talked very explicitly about extending the Boise case into a nuisance case.
On top of that, it gave some really good direction on how to evaluate the capacity of a city to absorb a significant number of its population that are homeless. The upshot is: If whatever capacity you've got is not adequate for the number [of unhoused people in your community], then you have to stop. The enforcement is illegal if there are not adequate places for the people who are afflicted to go. You can't just enforce it up to the point where all the housing's filled up.
RANGE: If or when legal action is taken with regards to Camp Hope’s removal, who would be involved beyond the state, city and county?
Whether there's going to be an independent action by a group, or a consortium of groups, or a few select residents — that's unclear to me. I don't know what's most effective. A lot of people are involved in that decision. I have no authority to comment on it, but all the options are being looked at.
We can participate by assisting the Attorney General’s office. We can intervene. Jewels [Helping Hands] is named in the nuisance complaint by the city, which gives Jewels legal standing to participate. That’s a potential.
There may just be usefulness in stepping back, letting the big “muni” [municipal] lawyers duke it out between the state, the city and the county. But, I suspect that the advocacy groups in town, with the aid of advocacy groups really across the country, are very likely to step in when there's a clear path of what we can do that would be helpful. We’re not looking to scramble or make things more difficult, we’re looking to bring some relief, clarity and progress to what's happening. We're trying to make things rational, clear, and useful.
I'll tell you this much, the irony of the sheriff promising to have the camp cleared the day before Veterans Day — it would be high comedy in a Gilbert and Sullivan review. But it's just painfully, bitterly disastrous from the point of view of anyone who works with or knows what veterans who are homeless go through — it’s extremely antagonizing.