FILED
omef OF THE CITY CUR!
OAKLAND APPROVED AS TO FORM AND LEGALITY
22 AUG -4 PM MSS
CITY /WORNEY’S OFFICE
OAKLAND CITY COUNCIL
RESOLUTION NO. 8 9 3 8 2 C.M.S.
RESOLUTION AUTHORIZING AND DIRECTING THE CITY
ATTORNEY TO COMPROMISE AND SETTLE THE CASE OF ANITA
MIRALLE, JODII LE’GRAND EVERETT, I, TINA SCOTT, AIYAHNNA JOHNSON; IRVIN JOSUE HERNANDEZ ORTEGA; AND AYAT JALAL V.
CITY OF OAKLAND; LIBBY SCHAAF; JOE DEVRIES; ANNE
KIRKPATRICK; AND SABRINA LANDRETH, UNITED STATES
DISTRICT COURT CASE NO. C18-06823-HSG, (CITY ATTORNEY’S FILE NO. X04613) IN THE AMOUNT OF TWO HUNDRED FIFTY
THOUSAND DOLLARS AND ZERO CENTS ($250,000.00) AND
SUBSTANTIVE INJUNCTIVE RELIEF (CITY ADMINISTRATOR’S
OFFICE - CIVIL RIGHTS VIOLATIONS UNDER THE FIRST, FOURTH,
EIGHTH, FOURTEENTH CONSTITUTIONAL AMENDMENTS)
WHEREAS, Plaintiffs Anita Miralle, Jodii Le’Grand Everett, I, Tina Scott, Aiyahnna Johnson, Irvin Josue Hernandez Ortega, and Ayat Jalal (collectively, “Plaintiffs”) allege that the City of Oakland violated their constitutional rights when the City closed the homeless encampment in which they were living and subsequently collected and/or stored and/or destroyed their personal belongings during the closure; and WHEREAS, On November 9, 2018, Plaintiffs filed an application for temporary restraining order, request for preliminary injunction, and complaint in federal court for damages and injunctive relief against the City, Joe DeVries, Mayor Libby Schaaf, (former) City Administrator Sabrina Landreth, and (former) Oakland Police Chief Anne Kirkpatrick alleging violations of their rights under the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution; and
WHEREAS, the City has considered all evidence, litigation costs, and risk; and WHEREAS, without admitting any fault or wrongdoing, the City has determined to compromise and settle Plaintiffs’ claims against the City and individual defendants for the sum of Two Hundred and Fifty Thousand Dollars and Zero Cents ($250,000.00) and substantive injunctive relief related to the City’s Encampment Management Policy which the Oakland City Council passed on October 20, 2020, as set forth in the Injunctive and Monetary Relief Agreement, attached to this Resolution as Exhibit A; now, therefore, be it
RESOLVED: That the Council hereby authorizes and directs the City Attorney hereby to compromise and settle the case of Anita Miralle, Jodii Le’Grand Everett, I, Tina Scott, Aiyahnna Johnson; Irvin Josue Hernandez Ortega; and Ayat Jalal v. City of Oakland; Libby Schaaf; Joe DeVries; Anne Kirkpatrick; and Sabrina Landreth, United States District Court Case No. C18-06823-HSG, City Attorney’s File No. X04613, for a sum not to exceed Two Hundred and Fifty Thousand Dollars and Zero Cents ($250,000.00) payable by the City of Oakland; and be it
FURTHER RESOLVED: That the City Attorney is further authorized and directed to take whatever steps may be necessary to effect said settlement; and be it FURTHER RESOLVED: That the sum of Two Hundred and Fifty Thousand Dollars and Zero Cents ($250,000.00) shall be made payable to Siegel, Yee, Brunner, and Mehta Client Trust Account.
AUG 092022IN COUNCIL, OAKLAND, CALIFORNIA,
PASSED BY THE FOLLOWING VOTE:
AYES - FIFE, GALLO, KALB, KAPLAN,
PRESIDENT FORTUNATO BAS
% THAO AND■
NOES-
ABSENT- fT
ABSTENTION -
l EkCMi$e4- ATTEST:
City Clerk and Clerk of the Council of the
City of Oakland, California
3117530vl
2 EXHIBIT A
EXHIBIT A
Dan Siegel, Esq. [S.B. #56400]
EmilyRose Johns, Esq. [S.B. #294319]
SIEGEL YEE BRUNNER & MEHTA
475 14th Street, Suite 500
Oakland, CA 94612
Telephone: (510) 839-1200
Facsimile: (510) 444-6698
Email: [email protected]
[email protected]
1 2 Barbara J. Parker, City Attorney, SBN
069722
Maria Bee, Chief Assistant City Attorney, SBN
167716
Jamilah A. Jefferson, Supervising Deputy
City Attorney, SBN 219027
One Frank H. Ogawa Plaza, 6th Floor
Oakland, California 94612
Telephone: (510) 238-7686;
Fax:(5io) 238-6500
Email: jjefferson@ oaklandcityattorney.org
3 4
5 6
Dan Stormer, Esq. [S.B. #101967]
Hanna Chandoo, Esq. [S.B. #306973]
HADSELL STORMER RENICK & DAI LLP
128 North Fair Oaks Ave.
Pasadena, CA 91103
Telephone: (626) 585-9600
Facsimile: (626) 577-7079
Emails: [email protected]
hchandoo @ hadsellstor mer. com
7 8
9 Attorneys for Defendants10
11 12
Attorneys for Plaintiffs13
14 15 UNITED STATED DISTRICT COURT
16 NORTHERN DISTRICT OF CALIFORNIA
17 ANITA MIRALLE, JODII LE’GRAND
EVERETT, I, TINA SCOTT, AIYAHNNA
JOHNSON; IRVIN JOSUE HERNANDEZ
ORTEGA; and AYAT JALAL,
) Case No. 4:i8-cv-o6823-HSG
)18
) [Assigned to the Honorable Ha}rvood S.
) Gilliam, Jr. - Courtroom 2]19
)20 Plaintiff, ) INJUNCTIVE & MONETARY RELIEF
) AGREEMENT21
)vs.22 ) Date:
) Time:CITY OF OAKLAND, a subdivision of the State
of California; LIBBY SCHAAF; JOE DEVRIES;
ANNE KIRKPATRICK; and SABRINA
LANDRETH,
23 )
) Case Filed: November 9, 201824
)
25 )
Defendants.26
27 28
Miralle v. City of Oakland, Case no. 4:i8-cv-o6823-HSG
Settlement Agreement-1
The parties agree to the following explicit terms:
Definitions
1 A.2
The Encampment Management Team (“EMT”) is an interdepartmental working group tasked with implementing and administering the Encampment Management Policy (“EMP”). It consists of representatives from the City’s Public Works Department, Human Services Department, Oakland Police Department, Oakland Fire Department, the City Administrator’s Office, and other consulted departments as necessary. The EMT is facilitated by the City Administrator’s Office through the Homelessness Administrator. The terms of this Injunctive & Monetary Relief Agreement are applicable to City action taken through or at the initiation of the City Administrator’s Office through the Homelessness Administrator and/or the EMT. 3 1.
4 5
6 7
8 9
10 11
12 For purposes of this agreement, “emergency” is defined as a situation in which advance notice is essentially impossible, serious injury or death is imminent, an immediate response is required by the Oakland Fire Department or the Oakland Police Department or another City department, a state code, statute, or ordinance mandates immediate abatement, and/or there is a public health crisis where health is impacted to the point of imminent serious injury or death. Examples can include, but are not limited to, a fire, a red-tagged building, as defined in section 130025 of the California Health and Safety Code or the Fire Code, contamination by dumping of hazardous materials, as defined by the California Department of Toxic Substances Control or by the federal Environmental Protection Agency, and/or dumping waste or debris into the sewer system or waterway such that immediate access is required for repair or abatement.
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For purposes of this agreement, “urgent health and safety concern” is defined as either (a) a situation in which closure is necessary due to risk of serious injury or death or (b) a situation in which 72-hour notice is inadvisable, impractical, or 26 3-
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Miralle v. City of Oakland, Case no. 4:i8-cv-o6823-HSG
Settlement Agreement- 2
impossible due to public health or safety concerns. Examples can include a vermin infestation or the obstruction of a waterway. Where there is an outbreak of a contagious disease, such as COVID-19, the City will determine, in its discretion, the applicable health mandates that it must follow from the Governor and State of California, Centers for Disease Control and Prevention, Health Officer of the County of Alameda, and health measures ordered by local emergency orders and/or local ordinances. After determining which mandates it must follow, the City shall follow those mandates during operations initiated by the City Administrator’s Office through the Homelessness Administrator and/or the EMT.
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NoticeB.11
All postings will:
State the date of the intervention;
State the date of the posting;
Identify whether the intervention will take place over multiple days by stating the days on which the intervention will occur;
Be reposted if the intervention does not occur on the day (or time) as posted; Include a 4-hour window for the intervention start time; and Include contact information for homelessness services outreach. 12 1.
13 a.
b.14
15 c.
16 d.17
18 e.
f.19
20 Notices of closures will:
Be posted 7 days prior to an encampment closure (with exceptions for emergencies/urgent health and safety concerns - where less than 7-day notice, but as much notice as reasonably possible, will be given); unless the closure is a re-closure, defined as a subsequent closures of the same site that occur within 60 days of the initial 7-day notice of closure.
Notices of re-closures will:
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22 a.
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28 Miralle v. City of Oakland, Case no. 4:i8-cv-o6823-HSG Settlement Agreement- 3
Be posted 72-hours prior to an encampment re-closure, defined as subsequent closures of the same site that occur within 60 days of the initial 7- day notice of closure.
1 a.
2 3
4 Notices of all other interventions (e.g., deep cleanings) will:
Be posted 72-hours prior to the intervention (with exceptions for emergencies/urgent health and safety concerns - where less than 72-hour notice, but as much notice as reasonably possible, will be given). 5 4-
6 a.
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9 Property Retrieval
1. If the City collects property at a closure or intervention, the City will do the following:
C.10
11 12
Post a notice of collected property at the closure/intervention site. The notice of collected property must:
State the address where the collected property will be stored, Direct individuals, to call 311 to retrieve vital property, which is defined as identification (including social security cards) or medication, and State the hours of operation of the location where the collected property will be stored.
When storing collected property, the City must inventory and label collected property at the storage site, which includes labeling all stored property from a particular intervention site using the notice of intervention or notice of collected property that was posted at the intervention site at the time of collection.
The City will make reasonable efforts to store collected property pursuant to the guidelines in the City’s Standard Operating Procedures and maintain property in the condition it was in when it was collected with one exception:
where practical, City employees who collect property will disassemble items 13 a.
14 15 1.
16 11.
17 18 m.
19 20 IV.
21 22
23 24
b.25
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28 Miralle v. City of Oakland, Case no. 4:i8-cv-o6823-HSG Settlement Agreement- 4
prior to storing them where the items would be damaged if stored in an assembled state and make reasonable efforts to ensure that, when collected, usable property continues to be usable after retrieval.
The City must record collected or discarded property during or immediately after an intervention in the “Homeless Encampment Clean-up Checklist,” created by the Public Works Department or any subsequent version of this log for collected and discarded property.
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3 4 2.
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The City will make all property collected and/or stored from an intervention available for retrieval:
Within 48 hours from the end time of the intervention where it was collected; At one of two locations in the City that will be identified on the notice of collected property;
In-person, with general information available by contacting the telephone number on the notice of collected property;
In-person without appointment, during a TO BE DETERMINED set of business hours and a TO BE DETERMINED set of after business hours and weekend hours. The City will identify the locations of storage and both sets of “TO BE DETERMINED” hours within 90 days of execution of this settlement agreement. The enforcement period for this provision begins the day after the City identifies both sets of “TO BE DETERMINED” hours; and Within 24 hours if an individual indicates by contacting 311 that their vital property, as defined above, was inadvertently collected. 9 3-
10 11 a.
b.12
13 14 c.
15 d.16
17 18
19 20
21 22 e.
23 24
WeatherD.25
City will make reasonable efforts to:26 1.
27 28
Miralle v. City of Oakland, Case no. 4:i8-cv-o6823-HSG
Settlement Agreement- 5
Avoid closures in rain - if the rainfall will be l.o. inches or more on the day of the intervention (with exceptions for emergencies/urgent health and safety concerns);
Avoid closures in extreme heat or extreme cold - between 8 a.m. and 8 p.m. on the day of the intervention, if the high temperature is at or exceeds 90 degrees or the low temperature is at or below 42 degrees as determined by the National Weather Service (with exceptions for emergencies/urgent health and safety concerns);
Avoid closures with poor air quality - if the air quality index on the day of the intervention is 201 or higher [“very unhealthy”] as determined by the official U.S. Air Quality Index, reported on www.airnow.gov (with exceptions for emergencies/urgent health and safety concerns).
1 a.
2 3
b.4
5 6
7 8
9 c.
10 11
12 13
The decision about whether an intervention will proceed based on the forecasted weather conditions will be made:
48 hours prior to the start time of a closure on a Wednesday, Thursday, or Friday; and
96 hours prior to the start time of a closure on a Monday or a Tuesday. 14 2.
15 16 a.
17 b.18
19 If a closure is canceled because of a weather-related decision, the City will inform impacted individuals of the cancelation with verbal or written notice. 20 3-
21 22
If the City commences a closure, it will continue to perform the closure despite changes in weather conditions that would have prevented the initial commencement of the intervention, unless weather and working conditions are deemed unsafe for staff by the City Administrator’s Office or the person(s) with designated authority. 23 4-
24 25
26 27
28 Miralle v. City of Oakland, Case no. 4:i8-cv-o6823-HSG Settlement Agreement- 6
MitigationE.1
The City will continue to mitigate conditions in encampments - e.g. provide garbage run, porta-potties, hygiene stations, deep cleanings, outreach, etc. - to address health/safety concerns. The City will make reasonable efforts to provide mitigations that it deems beneficial for an encampment. The City’s mitigation efforts may be limited by financial and personnel resources, or policy considerations. 2 1.
3 4
5 6
7 Oakland Police Department (“OPD”) Involvement
OPD officers will use a Portable Digital Recording Device (“PDRD”) at interventions per their current OPD policy.
F.8
9 1.
10 11
G. Monetary Terms
l. City will pay Plaintiffs through their attorney’s the total sum of $250,000. 12 13
14 Continuing Court Jurisdiction
This Injunctive & Monetary Relief Agreement is effective for four (4) years from the date of execution (the “Effective Period”). During the Effective Period, either party may seek judicial assistance to enforce the terms of the agreement.
The Court will retain jurisdiction for a period of one (1) year to enforce the terms of the Injunctive & Monetary Relief Agreement (the “Enforcement Period”). Pursuant to 28 U.S.C. § 636(c), the parties agree that Chief Magistrate Judge Joseph C. Spero will serve as the enforcement judge.
At any point during the Effective Period, the party seeking to enforce a term in the underlying Injunctive & Monetary Relief Agreement will meet and confer by phone or in person with the opposing party to meaningfully and in good faith attempt to resolve the dispute in writing at least 30 days prior to seeking judicial assistance.
During the Enforcement Period, if meet and confer efforts are unsuccessful, the party seeking to enforce a term in the underlying Injunctive & Monetary Relief H.15
16 1.
17 18
19 2.
20 21
22 23 3-
24 25
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28 Miralle v. City of Oakland, Case no. 4:i8-cv-o6823-HSG Settlement Agreement- 7
Agreement will request an informal “conference” before a Magistrate Judge assigned by Judge Spero to meaningfully and in good faith further attempt to resolve the dispute.
If meet and confer efforts and the informal “conference” are unsuccessful, the party seeking to enforce a term in the underlying Injunctive & Monetary Relief Agreement will file and serve a noticed motion, with a briefing schedule and hearing date stipulated by the parties.
If the City breaches the Injunctive & Monetary Relief Agreement and the Court must force compliance, Plaintiffs will be entitled to reasonable attorneys’ fees in an amount to be decided by the Court.
If Plaintiffs bring a frivolous challenge or continue to pursue a challenge after it becomes clear the challenge is frivolous, the City will be entitled to reasonable attorneys’ fees in an amount to be decided by the Court.
Neither party will be entitled to seek attorney’s fees for enforcement of the Injunctive & Monetary Relief Agreement after the conclusion of the Enforcement Period.
After the Enforcement Period and during the remainder of the Effective Period, if meet-and-confer efforts are unsuccessful, the party seeking to enforce a term in the underlying Injunctive & Monetary Relief Agreement may bring a civil action to enforce the terms of the agreement.
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7 6.8
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11 7-
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16 9-
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Dated: July21 SIEGEL, YEE, BRUNNER & MEHTA, 2022
22 By /s/EmihjRose Johns
EmilyRose Johns
Attorneys for Plaintiff
23 24
25 26
Dated: July HADSELL STORMER RENICK & DAI LLP., 2022
27 28
By /s/ Hanna Chandoo
Miralle v. City of Oakland, Case no. 4:i8-cv-o6823-HSG
Settlement Agreement- 8
Hanna Chandoo1
Attorneys for Plaintiff2
3 Dated: July OAKLAND CITY ATTORNEY’S OFFICE2022
4 5 By: /s Mamilah Jefferson
Jamilah Jefferson6
Attorneys for Defendants7
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28 Miralle v. City of Oakland, Case no. 4:i8-cv-o6823-HSG Settlement Agreement- 9