Homeless resident sues San Jose over sweep

A homeless person living at the sprawling camp near Columbus Park is suing San Jose over the monthlong sweep.

Rudy Ortega filed a federal complaint this week against San Jose alleging city officials and the city’s partners breached their contracts and violated his constitutional rights—the city is sweeping where Ortega has been staying. The lawsuit, filed with the United States District Court for the Northern District of California, also requests a temporary restraining order to prevent the city from breaking down Ortega’s camp and seizing the trailer he sleeps in.

U.S. District Judge Edward J. Davila took Ortega’s case and set a hearing for his temporary restraining order for Tuesday.

Ortega, homeless for a number of years, has lived at his current location for the last year. San Jose started a monthlong sweep last week in an attempt to meet a deadline set by the Federal Aviation Administration. The site is in the flight path of Mineta San Jose International Airport, and the city risks losing millions in federal funding if the camp isn’t cleared by Sept. 30. The encampment was home to an estimated few hundred people during the peak of the COVID-19 pandemic.

“It’s inhumane,” Ortega told San José Spotlight, referring to the sweep. “I’m stuck here because the city didn’t follow through with what they promised.”

Ortega claims the city and nonprofit partner HomeFirst promised to help him fix his trailer before the September sweep, naming two city officials who made the commitment to him. His camper is missing wheels and cannot be towed out of the area. Last week, a police officer told Ortega he needed to leave or face being arrested—though nobody fixed his vehicle or provided him housing, Ortega claims in his lawsuit.

“I am currently under imminent threat of having my home seized and destroyed, and no one has come to assist,” Ortega’s lawsuit reads, adding he didn’t get it fixed himself because of the city’s promises.

Ortega said the city also violated his Fourth, Fifth and Eighth Amendment rights by potentially destroying his home without just compensation or warrant to seize it, denying him due process and potentially arresting him for staying in his trailer. Ortega is representing himself—with the help of Robbie Powelson, a homeless activist who has helped unhoused residents in Northern California stop sweeps through restraining orders.

City Attorney Nora Frimann told San José Spotlight Thursday she hasn’t seen the lawsuit and declined to comment.

“Our office typically does not comment on pending litigation out of respect to the court and litigants,” Frimann said.

Powelson said he hopes the city will allow Ortega to stay at his camp until the hearing next week.

“I’m hopeful for a good outcome on this,” Powelson told San José Spotlight. “His claim is very reasonable.”

Safe for now

San Jose halted the sweep four days this week due to the hot weather. City workers must postpone any abatement if the temperature hits 88 degrees, according to city spokesperson Daniel Lazo. The area broke an all-time heat record in the city this week, when the temperature hit 109 degrees.

Homeless residents in the camp have moved—either to Columbus Park at the corner of Irene and Asbury streets or along the Guadalupe River Park trail—to avoid the sweep.

While waiting for his hearing, Ortega said city officials and police officers came to his camp Thursday to threaten and ask him to leave again. Ortega refused, saying he’s waiting for the hearing for his temporary restraining order. Homeless advocate Scott Largent, who used to live in an RV next to Ortega, came to his defense, showing proof of the court case to the officers and city officials.

Ortega also sent an email to the city attorney’s office detailing the incident and asking the city to halt sweeping his camp until a judge decides on the matter. He’s now fundraising to fix his trailer.

“I’m hoping I can stay,” Ortega said. “But a lot of people are trying to fight my case.”

Contact Tran Nguyen at [email protected] or follow @nguyenntrann on Twitter.