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MEMORANDUM IN OPPOSITION TO
MOTION FOR SUMMARY JUDGMENT
(...abridged)


INTRODUCTION
Parkside Homeless Advocacy Coalition (P-HAC), Dave Mayhall, Barry Dennis, and Sally
and Harry Walker have sued Justice City on the grounds of violating their Fourth Amendment
rights. Defendant filed a motion for summary judgment due to lack of standing, as well as claiming,
apparently, immunity for its transgressions, which the city says is justified under a recently enacted
ordinance. As it comes to show, however, this ordinance is nothing more than an attempt by the city
to legally drive its homeless population out of town. And the unconstitutional actions carried out by
city officials all occur under the guise of public service.
Defendant's motion for summary judgment should be denied, and the city should be held
accountable for its egregious miscarriage of justice. The lack of standing claim fails to hold up
under scrutiny; the city's ordinance fails to hold its own against the Constitution.
STATEMENT OF FACTS
On December 1, 2013, Justice City executed a city-wide seizure which was responsible for
the misplaced and destroyed possessions of many of the city's homeless. The impetus for this act is
an ordinance prohibiting personal property from being left in a public place. Justice City officials
conducted their sweep without its custom advance written and oral notice of the off-street cleanings.
As an organization, P-HAC represents the interests of its members, who consist, among others, of
the following injured parties: Mayhall, Dennis, and the Walkers. P-HAC's mission is to advocate
for the rights of homeless individuals living in Justice City. The operative factor in this matter is the
abrupt seizing and demolishing of property and goods of the city's homeless. An injunction would
greatly mollify any future loss of belongings to the homeless. Monetary compensation for the


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victims would aid in recovery.
Barry Dennis has been living on the streets of Justice City for over a decade. On his
twenty-eighth birthday, he was accepted into the Brotherhood Center, which is a facility that aids in
providing homeless men with a new start. This acceptance came with one caveat--Barry must
secure employment. On December 1, however, after having interviewed for a job, his driver's
license, Social Security card, birth certificate, and military ID were confiscated by Justice City
officials. The shopping cart which contained his property were left briefly with a friend. Officials
demanded he turn over Barry's cart, threatening arrest even, and they subsequently destroyed his
property.
Dennis Mayhall is a veteran ofik8i the United States Army. Following his service in the Iraq
War, Mayhall suffered from post-traumatic stress disorder (PTSD) and became a vagrant. He kept
food and medication within a small grocery bag held inside a duffle bag, along with paperwork to
refill his prescription. On December 1, Justice City deprived him of these possessions. Though
immediately unaware of this deprivation, it was not until Mayhall opened his duffle bag that he
realized his medication was absconded with; city officials had rummaged through his belongings
with an intent to seize and destroy. Due to lack of medication, Mayhall ultimately was involuntarily
committed to a mental hospital.
A once contented, well-to-do family of three, Sally and Harry Walkers' lives began a steep,
spiraling descent following the tragic death of their five-year-old son. Pummeled by depression,
they were left a ruminant of their dead child's memories. And after years spent dwelling in their
dire docks, they cast their ship of sorrow to sea, drifting in a hum-drum plod atop apathetic waves,
before dropping their anchor amiss a bevy of derelicts, each body sinking, drowning in the center of
Justice City. Having lost everything that N.Y. bureaucrats could hook a price-tag on, the Walkers


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disembarked in possession of all that they valued most--trinkets and keepsakes, relics from another
time which served as a reminder that there could be, and once had been, more to life than their own,
terrible suffering. The following day, Justice City officials seized control of the Walkers' remaining
possessions, their mementos collected inside a large, black bag, their name inscribed on a strip of
tape sprawled across the plastic, and it was all destroyed.
Issue Statement 1:
An organization has standing in a case when at least one of its members has standing, and
the suit's issue is directly related to the interests of the organization. Barry Dennis, a member of
P-HAC and longtime resident of Justice City, had his identification records confiscated during the
city's premature pilfering of its homeless residents' belongings, hindering potential employment
opportunities. Should the court find Dennis to have standing, thereby giving P-HAC standing?
Issue Statement 2:
In the case of Sally and Harry Walker, their priceless memorabilia of their deceased son,
Adam, were seized and discarded by the city. The fragility of the wife's mental state could be
assuaged by possible therapy, and though the husband and wife have hopes to one day move to
Chicago, their dream may, in all reality, be simple velleity. Could it, therefore, be reasonably
asserted that the Walkers have standing?
Issue Statement 3:
One must establish both a subjective and objective expectation of privacy in order to claim
protection from an illegal search. Barry Dennis secured his identification records within a shopping
cart under supervision of a friend; David Mayhall maintained personal belongings in a reusable
garbage bag that was also enclosed inside a duffle bag; the Walkers kept private mementos sealed
in a large bag which had their name taped to it. Should the court find each of the plaintiffs to have a


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reasonable expectation of privacy?
Issue Statement 4:
An unlawful seizure occurs when there is a meaningful interference with one's possessory
rights. Justice City officials summarily seized and destroyed the personal belongings of Dennis,
Mayhall and the Walkers in lieu of obtaining a warrant. Would this be considered a meaningful
interference with one's possessory rights?
Issue Statement 5:
A balancing standard is used to weigh the utility of law enforcement's actions and its impact
upon a person's right of privacy against the effectiveness in achieving a legitimate government or
public interest. Considering there was no evidence of either criminal activity or public safety
hazards found within the bevy of items seized from the homeless, would it be reasonable to
conclude the privacy rights of the homeless outweighed that of the public interest?
ARGUMENT
I. P-HAC and Sally and Harry Walker Have Standing
To obtain standing, plaintiffs must establish (1) a clear and evident injury, (2) a causal link
to the alleged conduct in dispute, and (3) that a favorable verdict would aid in rectifying a plaintiff's
injuries. Allen v. Wright, 468 U.S. 751, 104 S.Ct. 3315 (1984). Furthermore, when injunctive relief
is sought as an additional form of amelioration, the alleged misconduct must be shown to be a
continuing "real and immediate threat." L.A. v. Lyons, 461 U.S. 105, 103 S.Ct. 1660 (1983). With
regards to the standing requirements for an organization to sustain suit, it must be established that
(1) at least one of its members would have standing, (2) the issue(s) at stake are germane to the
interests of the organization, and (3) the allegations and relief do not require participation of the
individual members. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 343, 97 S.Ct. 2434


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(1977).
A. P-HAC Satisfies the Organization Requirements for Standing.
P-HAC is a recently founded advocacy group which seeks to aid the city's homeless citizens.
Justice City contests the organization's standing, asserting that the genesis of P-HAC'S formation
somehow precludes it from obtaining standing. While it is true the advocacy group had not been
created until after the alleged injuries occurred, that is not a relevant qualification for obtaining
organizational standing.
First and foremost, an association must establish that the injurious actions of the opposing
party are causally linked to the damages incurred by its member(s). "So long as this can be
established... the association may be an appropriate representative of its members, entitled to
invoke the court's jurisdiction." Warth v. Seldin, 422 U.S. 511, 95 S.Ct. 2197 (1975). Member and
co-founder of P-HAC, Barry Dennis, suffered injuries from the prevenient city seizure when his
personal identification information were seized and destroyed. This incident directly lead to the
hold on Dennis's acceptance into the Brotherhood Center, derailing his progression in life to a state
of purgatory. The precipitating factor for these injuries can be traced to the moment that Justice
City decided to enact an ordinance that punishes the homeless under the guise of "public service."
Financial compensation would assuage the damages by providing Dennis the means in which to
rectify the problem of his pulverized property. Furthermore, injunctive relief is paramount in
assuring that, not only Dennis, but many of the city's distressed derelicts will not be forced into the
same unfortunate predicament. Typically, when courts have recognized standing in associations,
injunctive relief is granted in order to protect the interest and integrity of its members. Id. at 515.
B. Sally and Harry Walker Have Standing.
The injury sustained by the Walkers was the obliteration of their property. While the items


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which were destroyed may not have any appreciable worth in the broadest sense, "the general rule
of damages for valuation of tortiously damaged property without market value is the actual or
intrinsic value of the property to the owner." Nat'l Union Fire Ins. Co. v. Harrington, 854 So. 2d
897 (La. Ct. App. 2003). Furthermore, Sally Walker's emotional state has declined significantly
since the egregious actions of the city. Mrs. Walker's mental anguish, as result of demolition to all
that remained of her sentimental possessions, is compensable. Id. at 896. Due to the subsequent
exacerbated nature of Sally Walker's emotional turmoil, pecuniary relief will aid not only in
compensating for the meager nominal value of the mementos taken at face value, but also help to
ameliorate her mental state by providing such remedies as psychotherapy and possibly mood
stabilizers.
Justice City claims the Walkers lack standing due to the alleged ineffectiveness of injunctive
relief on the party. Asserting that any potential future sweeps by the city would have no effect on
the Walkers because they were "just passing through town" is not enough to render defendants'
declaration as fact. Def.'s Mot. S.J. (Feb. 24, 2014). The fact that the Walkers have engaged in a
peregrination to Chicago does not negate the positive effect that injunctive relief will have on the
party. Though the Walkers have concrete plans to travel to Chicago, their residential future is
something significantly more nebulous.
Due to the aforementioned fragile emotional state of Mrs. Walker, and because Memorial
Park has great emotional significance to her, leaving Justice City behind is certainly not a certainty.
Furthermore, at present the Walkers have little to no means by which to travel; they are, following
the city's confiscation and demolition of the homeless's property, hopelessly destitute. And so, due
to the fragile mental and emotional state of Mrs. Walker, along with lacking any means of extensive
traveling, the Walkers, in all fairness, will fall victim to future miscarriages of justice by the city.


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II. Justice City Violated the Fourth Amendment by Engaging in an Illegal Search &
Seizure
"The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." U.S. Const. amend. IV. A search or seizure is
considered to be unreasonable when an individual's valid expectation of privacy concerning the
focus of a search is outweighed by the government's interest in that search. Pottinger v. Miami, 810
F. Supp. 1570. Furthermore, actions which initially may have been regarded as lawful are deemed a
violation of the Fourth Amendment when that action proves to be a "meaningful interference" with
an individual's privacy interest in their property. Id. at 1570-1571. In Pottinger, the city of Miami
issued an ordinance that prohibited loitering in a public space. Enforcing this policy by city
officials lead to the harassing, arresting, as well as destroying of property, of many of its homeless
population. The court determined that its policy of seizing and destroying the homeless's property,
in operation contrary to the city's established procedure of handling confiscated property, was a
violation of the homeless's Fourth Amendment rights.
In our case, just as in Pottinger, an ordinance was set in place that targeted the city's
homeless citizens. Also like Pottinger, the enforcement of this ordinance was conducted by city
officials which directly lead to the homeless's harm. Defendants may argue a key distinction
between the two cases concerns the reach of each city's ordinances, but this would be erroneous.
While the ordinance issued by Justice City is strictly concerned with leaving personal property in a
public space, city officials were enforcing an ordinance which lead to the injurious detriment of the
homeless.


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Violation of a city ordinance does not, by itself, preclude one from the protection afforded
to all citizens under the Fourth Amendment. Lavan v. City of L.A., 693 F.3d 1029. In Lavan, many
of the Los Angeles's homeless population kept personal property within mobile containers which
had been distributed by social service organizations. On multiple occasions, after homeless citizens
had temporarily stepped away from their property, consequently leaving the property on public
grounds, city employees summarily seized and destroyed the items. Claiming the homeless violated
an ordinance prohibiting one from leaving unabandoned property on public parkways or sidewalks,
the court held that seizing and destroying personal property "remains subject to the Fourth
Amendment's reasonableness requirement." Id.
A. Justice City Engaged in an Illegal Search of the Homeless.
The Fourth Amendment is a protection reserved for people rather than places. Katz v. United
States, 389 U.S. 351. There are two requirements which must be met in order to establish protection
from a search: (1) an exhibition of a subjective expectation of privacy, and (2) that the expectation
be considered reasonable by society. Id. at 361. An officer has probable cause for a warrantless
search when there is information leading to a reasonable belief for the demand of an immediate
search. Jones v. United States, 362 U.S. 269. Regardless of one's status or location, every citizen is
provided the freedom from unreasonable searches and seizures. Katz, 389 U.S. 359.
Protection under the Fourth Amendment is a right afforded to people rather than places. Id.
at 351. In Katz, Charles Katz used a public telephone booth to transmit illegal wagering
information. Without his knowing, the FBI listened in on, as well as recorded, his conversation via
an electronic device attached to the outside of the phone booth. The court ultimately held that Katz
maintained a reasonable expectation of privacy in his conversation. By occupying a phone booth,
shutting its door and paying the required toll, one is entitled to assume that his or her conversation


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is not being invaded. Though the phone booth is a public utility, there is nevertheless an expectation
of privacy in its occupation. Id. at 361.
A warrantless search may be conducted by an officer if there is clearly convincing evidence
of the immediate need to search. Jones, 362 U.S. 270-271. In Jones, a narcotics officer asserted
probable cause to search the apartment where Jones resided. His information was not based upon
personal observations, but rather claims made by an informant. It was ultimately decided that this
"hearsay" provided a substantial basis for sufficient evidence in establishing probable cause. Id. at
268-269.
With each of the plaintiffs--Dennis, Mayhall and the Walkers--there was a subjective
expectation of privacy concerning their property. The items in Barry Dennis's shopping cart were a
collective necessity in order to procure employment and, by extension, gain acceptance into the
Brotherhood Center. By covering his cart with a military blanket and pillow, he showed a
willingness to conceal his belongings from outside influence. In the case of Dave Mayhall, he
demonstrated a subjective expectation of privacy by concealing his items inside a reusable bag
within a duffle bag. The fact that the reusable grocery bag contained comestibles and, especially,
medication, would designate the materials as that of a personal and private nature. The Walkers
exhibited a personal expectation of privacy by labeling their name across the large bag which held
their possessions.
In addition to having a subjective expectation of privacy, there must also be an objective
expectation. With regards to the homeless, their privacy expectations need be reasonable by societal
standards. Accordingly, it would not be reasonable to base these expectations in accordance with
the same standards used to judge those whom possess more blatant means of concealment, e.g.
those with homes. Dennis, Mayhall and the Walkers displayed an adequate and reasonable


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expectation of privacy via the only means at their disposal; the public forum in which these
possessions were located should have no bearing on the reasonableness of their respective
expectations. What is contained within "...bags or boxes of personal effects belonging to homeless
individuals... is perhaps the last trace of privacy they have." Pottinger, 810 F. Supp. 1572. Because
of their status and circumstance, society has shown its willingness to recognize the homeless's
expectation of privacy regarding their property as reasonable. Id. Justice City knowingly and
unlawfully executed an unreasonable search of its homeless citizens. Though maintained in a public
space, the possessions were private in nature. The personal belongings of Barry Dennis were
subject to an illegal search in that they were under supervision at the time of the search; Mayhall
and the Walkers' items were respectively kept together in concealment by a reasonable means of
closure.
In California v. Greenwood, 486 U.S. 35, the Supreme Court held that a person's refuse left
about a public street in a plastic garbage bag is not privy to Fourth Amendment protection from
warrantless searches. In Greenwood, a police investigator suspected Greenwood of drug trafficking,
and, without obtaining a warrant, requested the local trash collector to retrieve the man's garbage.
Incriminating evidence was discovered therein, and Greenwood contested, claiming the acquisition
was a violation of his Fourth Amendment rights. The court ruled that there is no expectation of
privacy with regards to abandoned property, such as one's trash. Id. at 43. By depositing narcotic
paraphernalia with the rest of his rubbish in a large garbage bag, and then hauling the discarded
materials to the front of his house for pickup, as per custom, it could reasonably be ascertained that
Greenwood had relinquished possession of the items. "The Court purported to base its holding on
actual societal customs--the "common knowledge" that people often rummage through the trash..."
Elizabeth Schultz, The Fourth Amendment Rights of the Homeless, 60 Fordham L. Rev. 1020


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(1992). But concerning the homeless of Justice City, there was an expectation of ownership among
singularly grouped, enclosed collections of items.

B. Justice City Engaged in an Unlawful Seizure of the Homeless's Property.
The Fourth Amendment protects one's property from "unreasonable interferences" whether
there is or is not an invasion of privacy. Lavan, 693 F.3d 1028-1029. A "seizure" of property occurs
when there is some meaningful interference with an individual's possessory interests in that
property. United States v. Jacobsen, 466 U.S. 113. Furthermore, a seizure that may previously have
been lawful can still violate the Fourth Amendment, because its "execution unreasonably infringes
possessory interests..." Id. at 124.
In assessing the reasonableness of a seizure, the level of intrusion upon an individual's
Fourth Amendment rights must be weighed against the interests claimed to justify the intrusion. Id.
at 125. In Jacobsen, a white, powdery substance was discovered by employees of a private freight
carrier. They contacted federal agents who then examined and tested the substance, without having
obtained a warrant, and concluded the material to be cocaine. The husband and wife to whom the
package was addressed were subsequently apprehended and indicted for possession of a controlled
substance. The court ruled that, while the destruction of the portion of powder used in testing did
affect possessory interests, that destruction was reasonable due to the suspicious nature of the
package. Id.
In the present case, Justice City officials engaged in a meaningful interference of the
homeless's property when they (1) seized control of and destroyed Dennis's identification records;
(2) seized control of and destroyed Mayhall's medication and prescription; and (3) seized control of
and destroyed the Walkers' mementos. In stark contrast to Jacobsen, the magnitude of Justice City's
interference with the homeless's possessory rights is clear and substantial. An officer for Justice


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City's department of public affairs claims the obliteration of such items is justified, however,
because these belongings should not have been in a public space in the first place. "...This was in
accordance with the ordinance." Depo. Julie Morgan 6:11 (n.d.). Even with this officer's claims in
consideration, courts have previously ruled that an initially lawful seizure may become a Fourth
Amendment violation if it can be established that there is a meaningful interference with one's
possessory interest in that property. Pottinger, 810 F. Supp. 1570-1571. Despite the homeless's
belongings situated on public property, the complete eradication of their private items was not a
legitimate and reasonable course of action.
Defendant may argue the case of State v. Lewis, 85 So.3d 150, where two officers had
approached Lewis after observing his handling of a small, black box. Upon approaching Lewis, he
placed the box to the ground. One officer requested Lewis to come forward while the other then
seized the neglected item. After inspecting the box, it was revealed to contain cocaine. Lewis
asserted this seizure was a violation of his Fourth Amendment rights, but the Court of Appeal held
that Lewis had voluntarily abandoned this property in a public space, and thus it was no longer a
possessory right under the Amendment. Once an individual abandons or discards a belonging in the
public space, the court ruled, "...there is no seizure in the sense of the law when the officers
examined the contents after it had been abandoned." Id. at 154.
In relation to the instant case, however, the seizures conducted by Justice City were all
without any voluntary neglect, or abandonment, by the plaintiffs. Furthermore, in view of the
totality of the circumstances, the area in which Lewis's item had been seized was frequently
reported for its illegal drug dealing. Regarding the homeless of Justice City, none of the snatched
items were found to be part of any criminal activity. Justice City's claim of reducing harmful and
hazardous activity by their seizures, then, may simply be subterfuge.


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C. Justice City's Ordinance Causes a Greater Disservice to Its Homeless

Citizens Than It Does in Providing a Public Service.

In determining limits of Fourth Amendment protection rights, the public interest served via
enforcement officials is weighed in juxtaposition with the private interest of the individual. United
States v. Martinez-Fuerte, 428 U.S. 555. For instance, an action commissioned by law that is
believed to greatly benefit the public at large, but at the expense of minor infringements regarding
one's privacy protection, will be judged in favor of the public good. On the other hand, actions
taken which are deeply invasive of an individual's privacy, and provide little public service in return,
will often be ruled unconstitutional. This test could be viewed as a Constitutional Learned-Hand
test.
\ "The Fourth Amendment imposes limits on search-and-seizure powers in order to prevent
arbitrary and oppressive interference by enforcement officials with the privacy and personal
security of individuals." Id. at 554. Martinez-Fuerte agreed to transport illegal aliens, and he was
promptly stopped at a permanent checkpoint. He argued the checkpoint violated his Fourth
Amendment rights. The court ruled that the purpose of the checkpoint--deterring illegal
immigration--outweighed the relatively minute infraction regarding privacy rights within an
automobile.
With regards to the present case, the public good purported by Justice City of the ordinance
pales in comparison to the detriment inflicted upon its homeless citizens. Claiming the homeless's
personal property a "hazard," there was no evidence of criminal activity or public safety hazards
among those belongings that were seized and destroyed during the city sweep. Depo. Julie Morgan
6:8-6:9 (n.d.). So in judging the negligible public service of Justice City's actions against the
egregious damage done to the private property of Dennis, Mayhall and the Walkers, the balance test


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would seem heavily skewed.
CONCLUSION
The organizational theory behind P-HAC's involvement in the suit should substantiate the
organization as a legitimate party, while the Walkers' cannot be precluded for lack of standing due
to mere travel arrangements; the Constitutional requirements for standing found under Article III
cannot be so easily regarded.
Plaintiffs possessed both a subjective and objective expectation of privacy in their
possessions, all of which were the subject of an unreasonable interference by Justice City officials.
The public interests asserted by the city is negligible compared to the substantial violation of the
homeless's possessory rights.
For the foregoing reasons, defendant's motion for summary judgment should be denied.

Respectfully submitted,
_____________________________
Gossamer
222 Lawyer Lane
Justice City, LA 70000
(504) 222-2222
Counsel for Plaintiffs