City of Des Moines v. Cassandra Webster, and James Loveland, Jeanne Zeitler, and Eric Randall, Intervenors-Appellees. , 861 N.W.2d 878 ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1802
Filed December 24, 2014
CITY OF DES MOINES,
Plaintiff-Appellant,
vs.
CASSANDRA WEBSTER,
Defendant-Appellee,
and
JAMES LOVELAND, JEANNE
ZEITLER, and ERIC RANDALL,
Intervenors-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen A. Romano,
Judge.
The City of Des Moines appeals the district court’s denial of its petition for
writ of certiorari concerning the defense of necessity. REVERSED AND
REMANDED WITH DIRECTION.
Mark Godwin, Deputy City Attorney, Des Moines, for appellant.
Charles A.D. Hill of Iowa Legal Aid, Des Moines, for intervenors-appellees.
Heard by Danilson, C.J., and Vogel and Bower, JJ
2
BOWER, J.
The City of Des Moines (City) appeals the district court’s ruling denying its
petition for a writ of certiorari and upholding the ruling for the intervenors-
appellees, James Loveland, Jeanne Zeitler, and Eric Randall (appellees). The
City claims the district court erred in finding the defense of necessity applicable
to the homeless individuals’ situation. We find the district court erred in finding
substantial evidence existed to support the defense of necessity. Accordingly,
we reverse the judgment of the district court and remand for entry of an order
sustaining the writ of certiorari.
I. BACKGROUND FACTS AND PROCEEDINGS.
Homeless people in Des Moines often resort to living under bridges in the
metro area. The homeless have created campsites from a collection of canvas
tents and makeshift lean-tos made from discarded wood and other materials.
These dwellings serve as a place to sleep and store their possessions. The
campsite at issue is located on the southwestern bank of the Raccoon River,
underneath the Martin Luther King Jr. bridge and near the West Martin Luther
King Jr. Parkway/Fleur Drive intersection. The appellees began living at the
campsite in March 2012.
On January 17, 2013, the City posted notices addressed to the occupants
under the Martin Luther King Jr. bridge. The notice stated they were in violation
of section 102-615 of the Municipal Code of the City of Des Moines “by
encroaching (living/residing and storage of personal property) on City of Des
3
Moines property.”1 The notice advised the occupants to leave by January 29,
2013, or be “subject to immediate forcible removal and/or arrest.” The occupants
were given until January 28, 2013, to file an appeal with the City clerk. A timely
appeal was filed.
On January 31, 2013, an administrative hearing was held before
Administrative Hearing Officer Cassandra Webster. Attorney Charles Hill from
Iowa Legal Aid represented the appellees. Appearing for the City were SuAnn
Donovan, Zoning Enforcement Neighborhood Inspection Administrator with the
City of Des Moines Community Development Department, and Roger Brown,
Des Moines Deputy City Attorney.
At the hearing the City discussed the history of homeless people living
under the bridges in Des Moines. The City acknowledged it last pursued legal
action in November 2008. The City explained the 2008 action was prompted by
the construction of “hooches” or small structures made out of plywood, one of
which had caught fire. As a result, the City removed eight individuals from a
campsite. In the spring and summer of 2011 the City removed two structures
and three individuals from the levee north of Gray’s Lake. That year the City
spent $25,000 in the removal of twenty abandoned campsites and contributed
$165,000 in an effort to secure housing for the homeless.
1
The Des Moines municipal code defines “encroachment” as: “Encroachment, in
addition to its usual meaning, means any tent or other material configured or used for
habitation or shelter, architectural projection, chimney, stairway, platform, step, railing,
door, grate, vault, sign, banner, canopy, marquee, awning, newsrack, trash container,
bench, areaway, obstruction, opening or structure.” Des Moines Municipal Code, Art.
VIII., § 102-596.
4
The City stated it had received several complaints about the individuals
living under the bridge. A recreational trail passes under the bridge. Users of the
trail reported verbal assaults, being frightened by the homeless, instances of
panhandling, the unsightliness of the camps, and the accumulation of junk under
the bridge. The City inspected the camps and found unsanitary conditions and
unsafe heating methods creating a fire hazard. The location of the camps would
also make it difficult for first responders to provide prompt services.
Des Moines Fire Marshall, Tom Patava, was called as a witness. He
discussed the safety concerns caused by homeless persons using propane,
camp fires/fire pits, or homemade wood burners for heat. Patava voiced
concerns about the close proximity of the heat sources to the flammable heating
materials the individuals use for shelter and bedding. He also noted, because of
these problems, emergency responders are twenty times more likely to respond
to a fire at one of the campsites versus a single family home.
Next, Cody Christensen, the deputy building official in the community
development department, testified about the safety concerns unique to the
camps. Christensen stated the city code sets a minimum standard of living for
residents of the city and Christensen opined that since the homeless individuals
inhabited the camps on a long-term basis, the city housing codes should also
apply to their structures. However, these structures do not meet the housing
standards set by the City. In addition to creating a fire hazard, the camps fail to
provide adequate cooking, bathing, or restroom facilities.
5
Iowa Legal Aid attorney Charles Hill offered general information about
homelessness. Hill argued the City did not give proper notice, the City’s action
was ultra vires, and the homeless persons he represented acted out of necessity
due to the lack of suitable housing. Hill noted the local homeless shelter, which
has a 150-bed capacity, exceeded its capacity during the January 2013 cold
snap while providing shelter for 180 individuals. Hill faults the City for not
providing a homeless shelter of sufficient size, and also for the general lack of
affordable housing in Des Moines. Hill based his necessity argument on the
Restatement (Second) of Torts, section 197, which states an individual is
privileged to enter and remain on the land of another if it is reasonably necessary
to prevent serious harm to the individual or his chattel. Finally, Hill remarked that
the City’s officials had visited the campsite on numerous occasions since the
appellees began living there. Other than the City’s officials advising the
appellees about the safety hazards, the officials did not ask the appellees to
leave the campsite until the notice was posted in January 2013.
Hill also presented the testimony of Eric Randall, one of the appellees and
a resident at the campsite. Randall testified the local homeless shelter was over
its capacity, and he did not view the shelter as a viable living space. He stated
that if he went to the shelter, given the over-capacity, he may have to sleep on a
hard bench or in a chair. Randall believes his campsite is more comfortable than
the shelter, the campsite is tidy, and the residents have implemented a system
for trash disposal. Randall highlighted an additional problem—he would have to
leave his possessions if he went to the shelter as the shelter does not provide
6
storage space. Randall testified further, if he and the others had to leave within
the ten days mandated by the City, they would not have sufficient time to remove
their possessions, leaving them with no choice but to stay under the bridge.
Finally, Randall stated that he could not think of any injury caused to the City by
his presence under the bridge.
Deidre Henriquez, the Program Manager for the Advocacy Department at
Primary Health Care Outreach, testified on behalf of the appellees. She provided
a brief overview of homeless camps in Des Moines, stating camps have existed
dating back to at least 1983 when Drake University Professor Dean Wright began
keeping records on the homeless population in Des Moines. Henriquez
personally began observing homeless camps in 2001. She confirmed the City
does have a homeless shelter with fifty beds for women and 100 beds for men.
During the week the City posted the notice, about 170 people were staying at the
shelter. The shelter did accommodate the over-capacity individuals by allowing
them to sleep on chairs or benches. Henriquez opined that increasing the
number of individuals at the shelter would lower the quality of services provided
to the homeless.
The hearing concluded with closing statements by counsel. The City
discussed the homeless problem in the United States, but emphasized the
present hearing was about individuals living in a dangerous situation. The
present situation placed the City in the position of an unwilling landlord to the
homeless. The City claimed the defense of necessity does not apply as there
was no imminent threat of bodily harm. Finally, the City indicated it had been
7
more than fair, and with the winter conditions, the chance of harm to the
appellees and first responders is so apparent it prompted the City to take action.
The appellees reasserted the necessity defense, claiming the cold
weather created imminent harm if they were forced to relocate and faulted the
City for a decade-long policy of acquiescing and allowing people to live under the
bridges while failing to provide other suitable housing.
The hearing officer entered an order on February 11, 2013, ruling against
the City. In the ruling, the hearing officer discussed the applicable city code
provision dealing with encroachments and the December 7, 2012 amendment to
the code. The amendment added “tent or other material configured or used for
habitation or shelter” to the definition of items constituting an “encroachment”
under code section 102-596. Also amended was section 102-615, which acted
to limit the scope of a hearing on appeal from an encroachment removal action
by the City, or to allow for immediate removal without notice if the encroachment
“unreasonably endangers the safety of persons or property.”
In analyzing the appellees’ necessity argument and the applicable case
law, the hearing officer relied on State v. Walton, 311 N.W.2d 113 (Iowa 1981),
for guidance on the defense of necessity, as well as several California criminal
cases: Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), vacated 505
F.3d 1006 (9th Cir. 2007); Tobe v. City of Santa Anna, 892 P.2d 1145 (Cal.
1995); In re Eichorn, 81 Cal. Rptr. 2d 535 (Cal. Ct. App. 1998). These cases
generally dealt with homeless persons who raised the defense of necessity after
being charged with criminal trespass. In allowing the necessity defense herein,
8
the officer concluded the lack of available beds in the shelter and the cold
weather created a necessity for the appellees to continue residing under the
bridge.
The City petitioned the district court for a writ of certiorari. The City
requested the court sustain the writ, annul the defense of necessity, and allow
the City to remove the encroachments. A hearing on the writ was held on August
30, 2013. At the hearing, the City again claimed the appellees failed to prove the
defense of necessity since there was no emergency when the appellees first built
their encroachments in the warmer months. The appellees claimed the elements
of a necessity defense, as set out in Walton and the Restatement (Second), were
satisfied. They noted the City amended the encroachment ordinance four weeks
before the City posted the notices, which occurred during the cold winter months.
The appellees also discussed the lack of reasonable alternative living
arrangements. Finally, the appellees claimed their right to survive outweighed
the City’s property rights, claiming because there was no other place to stay the
defense of necessity was satisfied.
In upholding the decision of the hearing officer, the district court relied on
Walton and the Restatement (Second) of Torts to find the appellees satisfied the
defense of necessity. Given the limited jurisdiction granted to the district court by
Iowa Rule of Civil Procedure 1.1411,2 annulling or sustaining the writ, the district
2
Iowa Rule of Civil Procedure 1.411 provides:
Unless otherwise provided by statute, the judgment on certiorari
shall be limited to annulling the writ or to sustaining it, in whole or in part,
to the extent the proceedings below were illegal or in excess of
9
court declined to offer a time frame or circumstance that could act to end the
appellees’ defense of necessity.
The City appealed, claiming the district court erred in upholding the
hearing officer’s allowance of the defense of necessity. The City asks this court
to remand to the trial court with instructions to sustain the petition for writ of
certiorari and to order the removal of appellees’ encroachments.
II. STANDARD OF REVIEW
This case comes to us from the district court’s ruling on the City’s petition
for writ of certiorari from the hearing officer’s order. We review a certiorari action
for the correction of errors at law. Meyer v. Jones, 696 N.W.2d 611, 613–14
(Iowa 2005). A certiorari action may be asserted by a party when authorized by
a statute or when an “inferior tribunal, board, or officer” exceeded its jurisdiction
or otherwise acted illegally in executing judicial functions. Iowa R. Civ. P.
1.1401; Meyer, 696 N.W.2d at 614. An inferior tribunal commits an illegality if the
decision violates a statute, is not supported by substantial evidence, or is
unreasonable, arbitrary, or capricious. Bowman v. City of Des Moines Mun.
Housing Agency, 805 N.W.2d 790, 796 (Iowa 2011). Evidence is substantial
“when a reasonable mind could accept it as adequate to reach the same
findings.” City of Cedar Rapids v. Mun. Fire & Police Ret. Sys., 526 N.W.2d 284,
287 (Iowa 1995). “‘If the district court’s findings of fact leave the reasonableness
of the [hearing officer’s] action open to a fair difference of opinion, the court may
jurisdiction. The judgment shall prescribe the manner in which either
party may proceed, and shall not substitute a different or amended
decree or order for that being reviewed.
10
not substitute its decision for that of the [hearing officer].’” Helmke v. Bd. of
Adjustment, 418 N.W.2d 346, 347 (Iowa 1988) (quoting Weldon v. Zoning Bd.,
250 N.W.2d 396, 401 (Iowa 1977)).
Our rules of civil procedure provide that “[u]nless otherwise specially
provided by statute, the judgment on certiorari shall be limited to sustaining the
proceedings below, or annulling the same wholly or in part, to the extent that they
were illegal or in excess of jurisdiction.” Iowa R. Civ. P. 1.1411. Illegality exists
within the meaning of the rule when the findings upon which the hearing officer
based her conclusions of law do not have evidentiary support or when the court
has incorrectly applied the proper rule of law. Fisher v. Chickasaw Cnty, 553
N.W.2d 331, 334 (Iowa 1996). We presume the hearing officer properly
performed her duty under the law, unless clear evidence to the contrary appears.
Petersen v. Harrison Cnty. Bd. of Supervisors, 580 N.W.2d 790, 793 (Iowa
1998). The burden of showing illegality rests upon the asserting party. Id.
III. ANALYSIS
The City claims the district court erred in allowing the defense of
necessity. The modern construction of the necessity defense has not been
applied in the civil context in Iowa.3 In Walton our supreme court discussed the
criminal defense of necessity:
3
The appellees claim Bradshaw v. Frazier, 85 N.W. 752 (Iowa 1901), was the first
instance of the necessity defense in Iowa. Bradshaw concerned an appeal to recover
damages for an abuse of process. 85 N.W. at 753. The case centered on a dispute
between a landlord and tenant resulting in an eviction action. Id. at 752–53. The
tenant’s daughter had the measles; the evidence showed the landlord was aware of her
illness. Id. After the tenant and his family were evicted they waited in the cold
11
The rationale of the necessity defense lies in defendant being
required to choose the lesser of two evils and thus avoiding a
greater harm by bringing about a lesser harm. At least one
commentator has suggested the following factors as a framework
for analysis where the defendant is not personally at fault in
creating the situation calling for the necessity to make a selection:
(1) the harm avoided, (2) the harm done, (3) the defendant’s
intention to avoid the greater harm, (4) the relative value of the
harm avoided and the harm done, and (5) optional courses of
action and the imminence of disaster.
Walton, 311 N.W.2d at 115 (citation omitted).
In Walton, the court found the defense of necessity inapplicable for a
defendant, Walton, who shot a woman after she threatened him. Id. The
defense failed because the threat to the defendant did not create an imminent
necessity for the shooting. Id. “The necessity defense does not apply except in
emergency situations where the threatened harm is immediate and the
threatened disaster imminent. The defendant must be stripped of options by
which he or she might avoid both evils.” Id. Further, the criminal defense of
necessity has been raised in only a few other cases in Iowa.4 See e.g., State v.
September weather for an hour before they could take a carriage ride five miles to a
relative’s house. Id. at 753. The daughter died nine days after the move. Id. The court
concluded the exposure to the cold caused the daughter’s subsequent death. Id. The
court ruled an abuse of process had occurred and held against the landlord. Id. “It is an
abuse of lawful process ‘if, after arrest upon civil or criminal process, the party arrested
is subjected to unwarrantable insult or indignities, is treated with cruelty, is deprived of
proper food, or is otherwise treated with oppression and undue hardship.’” Id. (citation
omitted). We find this case unpersuasive in the present controversy. Bradshaw is an
abuse-of-process case and inapplicable here.
4
The appellees also cite to In re Eichorn, 69 Cal. App. 4th 382 (Cal. Ct. App. 1998). In
Eichhorn, a homeless individual was convicted of a misdemeanor under a city ordinance
banning sleeping in public areas. 69 Cal. App. 4th at 385. The homeless shelters were
above capacity the night the individual received the citation for sleeping in a public area.
Id. At the lower court level, the court did not allow an instruction on the necessity
defense. Id. On appeal, the appellate court cited the following considerations for a
criminal necessity defense: “to prevent a significant evil, (2) with no adequate alternative,
12
Bonjour, 694 N.W.2d 511, 514–15 (Iowa 2005) (holding a medical necessity
defense is not available as a defense to manufacturing marijuana); Planned
Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 640 (Iowa 1991) (stating “[t]he
necessity defense is generally not available to excuse criminal activity by those
who disagree with the policies of the government”); State v. Reese, 272 N.W.2d
863, 865 (Iowa 1978) (holding the defense of necessity inapplicable for an
inmate who escaped from prison to avoid possible attack or death); State v.
Ward, 152 N.W. 501, 502–03 (Iowa 1915) (holding the defense of necessity
applicable to defendant who unlawfully killed a deer as it ate his crops).
Section 197 of the Restatement (Second) of Torts provides guidance on
the defense of necessity. That section describes “Private Necessity” as:
(1) One is privileged to enter or remain on land in the possession of
another if it is or reasonably appears to be necessary to prevent
serious harm to
(a) the actor, or his land or chattels, or
(b) the other or a third person, or the land or chattels of
either, unless the actor knows or has reason to know that the
one for whose benefit he enters is unwilling that he shall take
such action.
(2) Where the entry is for the benefit of the actor or a third person,
he is subject to liability for any harm done in the exercise of the
privilege stated in Subsection (1) to any legally protected interest of
the possessor in the land or connected with it, except where the
threat of harm to avert which the entry is made is caused by the
tortious conduct or contributory negligence of the possessor.
(3) without creating a greater danger than the one avoided, (4) with a good faith belief in
the necessity, (5) with such belief being objectively reasonable, and (6) under
circumstances in which he did not substantially contribute to the emergency.” Id. at 389.
The court held the lower court should have allowed the jury to receive an instruction on
the defense of necessity. Id. at 390–91. The California court did not state if the defense
of necessity applied to the individual’s situation, though it did note “reasonable minds
could differ whether defendant acted to prevent a ‘significant evil’” by sleeping in public
and avoiding the “ill effects” that could arise from sleep deprivation. Id. at 389–90.
 13
Restatement (Second) of Torts § 197 (1965). Section 197 is followed by
comments and illustrations used to clarify the rule. Most relevant to this appeal
are comments (a) and (b) of subsection 1:
a. The privilege stated in this Subsection exists only where in
an emergency the actor enters land for the purpose of protecting
himself or the possessor of the land or a third person or the land or
chattels of any such persons. Furthermore, the privilege must be
exercised at a reasonable time and in a reasonable manner.
Although the actor is subject to liability for harm done in the
unreasonable exercise of the privilege stated in this Section (see
§ 214), in so far as his original entry was privileged, he is not liable
for such entry, or for acts done prior to such unreasonable conduct,
except as stated in Comment i.
b. Acts done for self-protection. Where the actor is acting for
the protection of himself or his belongings, the privilege stated in
this Subsection permits him to enter another’s land to save himself
or his property, or to remove his chattel which is lawfully there, in
order to save it from a threatened danger. It also permits one
already on the land to remain there to avoid a threatened danger to
himself or to leave his chattel there under like circumstances.
Id. The following illustration, from comment 1(b)(4), demonstrates the right of
private necessity for self-protection:
On a very cold winter night A, visiting at B’s dwelling, is overcome
by an attack of illness which leaves him helpless and unable to take
care of himself. A is privileged without liability to remain in B’s
house until arrangements can be made to take him to a place
where he will not be exposed to danger from the weather.
While there are no Iowa cases addressing section 197, other states have
addressed this section in a somewhat similar context. In Benamon v. Soo Line
Railroad Co., 689 N.E.2d 366, 370 (Ill. App. Ct. 1997), the plaintiff claimed he hid
on a railroad overpass out of necessity to escape a gang of boys who had been
chasing him. The court held the defense of necessity inapplicable. Benamon,
689 N.E.2d at 370. Echoing section 197, the court found the plaintiff’s actions
14
were not exercised at a reasonable time or in a reasonable manner in light of all
the circumstances. Id. The court noted the potential threat of harm posed by
hiding on the railway was not outweighed by the threat posed by the boys. Id. at
371. Further, the court noted the plaintiff had other less dangerous options
available to him: “[G]iven the existence of less dangerous options, and given the
known risks associated with the railroad tracks, that [the Plaintiff’s] presence on
or near those tracks was not reasonable and thus his presence on those tracks
was not a private necessity . . . .” Id.
Although Iowa courts have not addressed the defense of necessity in a
civil action, we adopt section 197 of the Restatement (Second) of Torts, while
also considering the factors articulated by our supreme court in Walton. The
defense of necessity allows an individual to enter and remain on another’s
property without permission in an emergency situation when such entry is
reasonably necessary to prevent serious harm. See Restatement (Second) of
Torts § 197. The privilege must be “exercised at a reasonable time and in a
reasonable manner.” Id. With these considerations in mind, we review the
appellees’ circumstances.
The appellees began living under the Martin Luther King Jr. bridge in
March 2012. The Des Moines municipal code was then amended in December
2012, and the appellees were given notice to move their encroachments a few
weeks after the change. The record shows a typical Iowa winter occurred in
2013—meaning below-freezing temperatures. That winter, the Des Moines
homeless shelter remained at or above capacity, especially during the cold snap
15
when the appellees were ordered to vacate. While the shelter was above
capacity, evidence shows the appellees would not have been turned away had
they sought shelter. In their reasoning not to go to the shelter, the appellees
cited the potential uncomfortable nature of the shelter and the fact they did not
want to leave their possessions behind. They claimed they needed their
possessions to keep warm and they also claimed their campsite was more
comfortable than the shelter.
The City dedicated much of its case to demonstrating the potential
dangers associated with living under the bridge. The City presented the
testimony of the Des Moines fire marshal who noted the fire department was
twenty times more likely to respond to an emergency at a homeless encampment
due to the homeless individuals’ methods for heating their camps than to a
residence. Homeless individuals’ heating sources use an open flame fueled by
wood or propane, and the individuals use highly flammable materials like canvas
and wood to create their shelters. The City submitted evidence of a different
homeless camp that had burned due to an unsafe heating source.
With these facts in mind, we ask whether substantial evidence supports
the defense of necessity. Factors weighing against the necessity defense are
the dangers associated with the individuals’ choice of heating sources, the threat
to the individuals’ lives in the event of a fire, and the threat to first responders’
lives in responding to a fire under the bridge. Factors supporting the necessity
defense are the individuals’ desire not to attend the crowded homeless shelter,
the desire to sleep in a familiar place and not on a hard plastic bench, and the
16
desire to keep their possessions. Listing these factors reveals a lack of
substantial evidence to prove the defense of necessity. In good conscience, we
cannot hold the appellees’ decision to remain in their encroachments under the
bridge—endangering their lives and the lives of first responders—was reasonably
necessary to prevent the harm of staying in a crowded shelter and leaving their
possessions unattended. Moreover, the cold weather is not an emergency as
anticipated under section 197. Section 197 illustrates emergency situations as a
“violent storm” suddenly overtaking a ship forcing it to moor at another’s dock, an
airplane pilot forced to land in a field under a reasonable belief he must land to
protect himself, or an individual who must take refuge at another’s home due to
“an attack of illness.” See Restatement Second § 197 cmt. b (1–4). The factual
scenario presented by the appellees is not sufficient evidence of a situation
demonstrating an emergency creating a risk of serious harm—the
encroachments were constructed in the warmer months, and in the cold months
a warm and safe shelter was available. The appellees’ decision to build the
encroachments and remain under the bridge was not reasonably necessary in
light of all the circumstances.5
We are sensitive to the public policy arguments raised by Iowa Legal Aid.
Homelessness is both a local and a national problem. However, it is not our role
to rewrite the law and substitute our views of public policy. State v. Wagner, 596
5
We limit our ruling to only apply to the homeless individuals’ encroachments, as
defined by 102-615 of the Municipal Code of the City of Des Moines. The City has not
proven it has the right, pursuant to 102-615, to remove the homeless individuals and
their personal belongings.
17
N.W.2d 83, 88 (Iowa 1999). The Iowa judicial system is not the proper place, in
this instance, to change the City of Des Moines’ policy concerning the
encroachments of the homeless persons residing within its borders.
We conclude, under the specific circumstances of this case, the district
court erred in ruling substantial record evidence supported the hearing officer’s
finding the defense of necessity applied to the homeless individuals’ situation.
Accordingly, we reverse the judgment of the district court and remand for entry of
an order sustaining the writ of certiorari.
REVERSED AND REMANDED WITH DIRECTION.