Potter v. City of Lacey

517 F.Supp.3d 1152

Jack POTTER, Plaintiff,

v.CITY OF LACEY and Ken Semko, Defendants.

CASE NO. 3:20-5925 RJB

United States District Court, W.D. Washington, at Tacoma.

Signed February 5, 2021

Carrie S. Graf, Northwest Justice Project, Olympia, WA, James E. Lobsenz, Carney Badley Spellman PS, Seattle, WA, for Plaintiff.

John E. Justice, Law Lyman Daniel Kamerrer & Bogdanovich, Olympia, WA, for Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, IN PART, AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ROBERT J. BRYAN, United States District Judge

This matter comes before the Court on Defendants’ Motion for Summary Judgment (Dkt. 8) and Plaintiff's Motion for Summary Judgment (Dkt. 16). Plaintiff, who lives in a travel trailer attached to his truck, challenges two provisions of the Lacey Municipal Code ("LMC"). He argues that they violate both the federal and Washington State constitutions and sues for both damages and injunctive relief pursuant to 42 U.S.C. 1983.

The Court has considered both parties’ motions for summary judgment, the pleadings and declarations filed in support of and in opposition to both motions, and the file herein.

I. RELEVANT FACTS AND PROCEDURAL HISTORY

A. FACTS

The parties do not dispute the facts relevant to this matter. Plaintiff, Jack Potter, lived in Lacey from 1997 until October 2019. Dkt. 18. He began living in his vehicle in April 2018. Id. Mr. Potter lives in a 23-foot unmotorized trailer attached to his Chevy Tahoe. Id. After moving around parking lots in Lacey unable to find a consistent place to park, Mr. Potter began parking in the Lacey City Hall parking lot along with about two dozen other vehicle-sheltered individuals. Id.

In September 2019, the Lacey City Council passed Ordinance 1551, which became LMC 10.14.020. Dkt. 16. LMC 10.14.020 states, in relevant part:

B. Recreational Vehicles. No person shall park any recreational vehicle, motor home, mobile home, trailer, camper, vessel or boat upon the improved or unimproved potion of any street, alley, public right-of-way, or publicly owned parking lot for more than four hours with the following exceptions:

1. Such vehicles may be parked temporarily for the purpose of loading or unloading of the vehicle; and

2. Such vehicle has been issued a permit pursuant to LMC 10.14.045 and said permit is affixed to the front window of the vehicle in a place clearly visible from the outside of the vehicle.

LMC 10.14.045 authorizes the city manager or designee "to permit vehicles to park in excess of the time periods designated in this chapter pursuant to policies and procedures as may be developed by the city manager." The relevant policies and procedures are the Temporary Parking Permit, Policies and Procedures ("TPPPP"). Dkt. 17, Ex. 3. The TPPPP authorizes both "Resident" and "Non-Resident" vehicle permits. A "Resident Vehicle Permit" allows "[a] Lacey homeowner or renter [to] request a temporary parking permit for relatives or friends visiting Lacey" to stay parked for up to 48 hours. Id.

The conditions for a "Non-Resident Vehicle Permit" are as follows:

A recreational vehicle operated by a non-resident who is actively engaged with social services may be eligible to receive a temporary parking permit in a designated permitted parking area. These permits will only be issued by the Lacey Police Department.

To be eligible for a temporary parking permit, an individual must be actively engaged in social services and must have proof of the following:

• Valid government issued identification.

• Valid vehicle insurance.

• Valid vehicle registration.

At the time the permit is issued, the driver of the vehicle must disclose all other occupants of the vehicle. The Lacey Police Department will conduct a background check on the driver and all persons who occupy the vehicle for outstanding in-state and out-of-state warrants and registered sex offender status.

The Lacey Police Department may deny a permit if said background check reveals:

• Any occupant of the vehicle to have an existing or outstanding warrant from any jurisdiction in the United States.

• Any occupant of the vehicle to be a registered sex offender required to register with the County Sheriff or their county of residence pursuant to RCW 9A.44.130.

...

The issued permit will only be valid within designated areas of the City for the period indicated on the permit not to exceed 12 hours per day. Designated areas will be set up in such a manner to preserve public sanitation and public security.

...

Once a permit is issued, it must be displayed clearly from the front window of the vehicle. Campers and trailers must remain connected to a vehicle at all times unless otherwise authorized. Permits do not allow electrical cords, hoses, awnings, side-outs, or other accessories extending from the vehicle in question. No items may be removed from the vehicle and placed in the City right-of-way. No visitors are allowed to enter the designated parking area.

Id. at 18–19. Mr. Potter is a registered sex offender and had an outstanding warrant in 2019. Dkt. 16 at 5.

Pursuant to LMC 10.14.040, violation of LMC 10.14.020 is punishable by a fine of $35 and "a police officer may order the impoundment or removal to a place of safety...."

On September 27, 2019, a Lacey police officer told Mr. Potter and the other vehicle-sheltered people at the City Hall parking lot that they had to move by September 30, 2019 or they would be ticketed. Dkt. 18. Mr. Potter asserts that he did not move his vehicle because he did not know where else to go and because he had a doctor's appointment to monitor his pacemaker on October 2, 2019. Id. According to Mr. Potter's, the VA hospital does not have space for his vehicle in its lot, so he wanted to remain nearby. Id.

Mr. Potter alleges that on September 30, 2019, a Lacey Police officer returned to the City Hall parking lot, issued him a citation for violating LMC 10.14.020, and told him that he needed to leave or his vehicle would be impounded. Dkt. 18 at 9. Mr. Potter did not leave and on October 1, 2019, Lacey police allegedly returned to the parking lot with a tow truck and told him that his vehicle would be towed unless he left. Id. Mr. Potter asserts that he left because he would not be able to afford to redeem his vehicle if it were impounded but has been unable to find a consistent place to stay since leaving. Dkt. 16.

The Lacey City Council was aware that LMC 10.14.020 would have an impact on vehicle-sheltered people and discussed creating a "safe lot" in a different location. Dkt. 17. The safe lot does not appear to have come to fruition. Dkt. 16.

B. PENDING MOTIONS

This order responds to two motions for summary judgment: one from Defendants (Dkt. 8) and one from Plaintiff (Dkt. 16). Both parties seek summary judgment on each of Plaintiff's claims, which as a whole challenge LMC 10.14.020 and the non-resident parking permit authorized by LMC 10.14.045. Dkt. 16.

Plaintiff asserts LMC 10.14.020 is unconstitutional in three ways. First, Plaintiff claims LMC 10.14.020 violates the federal and state constitutional rights to freedom of travel. Dkt. 16 at 2. Second, he claims that it violates federal and state constitutional rights to be free from cruel punishment. Id. Third, he claims that "as applied to the vehicle-sheltered homeless , the Lacey four hour parking law also violates the Fourth Amendment and Wash. Const. art 1, § 7." Id. (emphasis added).

As for the non-resident parking permit, which is authorized by LMC 10.14.045, Plaintiff asserts that it is unconstitutional in two ways. First, that it violates state and federal freedoms of association because it prohibits users of a non-resident permit from having any visitors. Id. Second, that it unconstitutionally grants unbridled discretion to the Lacey Police Department to deny a permit application. Id.

Plaintiff seeks both damages and injunctive relief and brings his claims for injunctive relief against both the City of Lacey and Ken Semko, the retired City of Lacey Chief of Police, in his official capacity only. Id.

Defendants’ motion for summary judgment seeks dismissal of all claims and moves to dismiss Ken Semko as a defendant. Dkt. 8. Plaintiff responded in opposition and, in addition, makes its own for summary judgment on all claims. Dkt. 16. Defendants replied (Dkt. 23), as did Plaintiff (Dkt. 25).

The Court will discuss the motions by claim and in the following order: standing, the Fourth Amendment and Wash. Const. art. 1, § 7 ; the right to travel; cruel and unusual punishment, and finally; whether Ken Semko is a proper defendant.

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (a). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt.").

The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson v. Liberty Lobby, Inc. , 477 U.S.242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), T.W. Elect. Service, Inc. v. Pacific Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 198...