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November 12, 2018

Oakland City Council Repeals Loitering Ordinance Following Lawsuit by King & Spalding, Civil Rights Groups

SAN FRANCISCO, Nov. 12, 2018 — The Oakland City Council voted unanimously to repeal its loitering ordinance after King & Spalding, along with several civil rights organizations, filed a federal lawsuit alleging that the ordinance was unconstitutional and was being used by the city’s housing authority police to harass public housing residents.

Oakland’s City Council voted to repeal the ordinance Oct. 30, six weeks after King & Spalding, along with the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, the ACLU Foundation of Northern California, and the East Bay Community Law Center, filed the lawsuit on behalf of two of the city’s public housing residents. The complaint was filed against City of Oakland and the Oakland Housing Authority Police Department (OHAPD) and argued that the loitering ordinance was unconstitutional, and that OHAPD had been using it to harass and intimidate public housing residents.

“We are pleased with this outcome and hope that Oakland public housing residents can now feel some relief from actions taken by OHAPD under the auspices of this deeply flawed ordinance,” said King & Spalding partner Josh Toll, head of pro bono at King & Spalding. “We are grateful to the plaintiffs in the case and the groups who partnered with us on this effort.”

As detailed in the lawsuit, the ordinance violated the Due Process Clause of the 14th Amendment of the U.S. Constitution because it failed to put residents on notice of what conduct is prohibited, and because it gave law enforcement officers unlimited discretion to determine what constitutes a violation. The over-policing based on the loitering ordinance also violated the residents’ Fourth Amendment rights to be free from unreasonable search and seizure.

One of the plaintiffs, Darren Mathieu, had been stopped more than 60 times by the OHAPD while standing outside his Lockwood Gardens apartment. Despite never receiving a citation for any actual wrongdoing, he had been handcuffed and asked to show ID, and several of these stops have been recorded by OHAPD in “incident reports” that were then reported to the Oakland Housing Authority as lease violations.

OHAPD is a supplemental police force that employs 34 sworn officers and polices more than 16,000 households living in public, affordable housing. Facts and incident reports gathered to date revealed that OHAPD enforced the loitering ordinance through threats, citations, and reported lease violations that were placed in residents’ tenant files and threatened their ability to remain in public housing. In addition, because any violation of the loitering ordinance constituted a criminal infraction, it was punishable by a fine of up to $250. When combined with additional civil penalties that are often assessed for untimely payment, the amount owed for a loitering infraction could reach over $700.

King & Spalding partner Anne Voigts and counsel George Morris, who are based in Palo Alto, and San Francisco associates Garner Kropp and Ivana Dukanovic also worked on the lawsuit, which can be viewed here.

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