.San Rafael evicts disabled homeless man for second time, gets sued again

Mark Rivera has spent the last few years living in a tent alongside a public parking lot in San Rafael, forced into homelessness by chronic disabilities, he said.

Like most homeless people, Rivera, 65, wants a home. He longs for a small yard because he misses the companionship of a dog, he said during an interview. 

Mostly, Rivera talked about San Rafael posting an eviction notice at his campsite on Aug. 13. In response, Rivera filed a lawsuit and obtained a temporary restraining order from a U.S. District Court to prevent the city from ousting him.

The restraining order has now expired. Last week, Judge Yvonne Gonzalez Rogers declined to issue a preliminary injunction against San Rafael, paving the way for Rivera’s eviction. Still, the underlying lawsuit will continue.

San Rafael did not offer Rivera alternative shelter. Instead, on Monday, it forced him to relocate. He pitched his tent at an established homeless encampment, following the city’s recommendation. However, Rivera remains concerned about living with other people. In the past, it has triggered his post-traumatic stress disorder, which has sometimes resulted in violence, he said. 

This isn’t his first rodeo in federal court. Rivera sued the city last year after receiving an eviction notice at the same location. That case ended with a settlement agreement between the camper and San Rafael, one that prevented the city from evicting him, albeit with a couple of caveats.

In the current lawsuit, Rivera claims the city breached the settlement agreement and that the eviction violated his civil rights.

“The bigger picture is that the City of San Rafael broke the contract,” Rivera said. “We had a written agreement.”

Officials reject Rivera’s allegations and have hired attorney Scott Emblidge of Moscone Emblidge & Rubens to defend the city against the lawsuit. Rivera is representing himself.

The facts of the case initially appeared straightforward, although they have grown convoluted during recent legal proceedings. Let’s start at the beginning.

Last year, San Rafael’s city manager issued an administrative order prohibiting camping at the adjacent Menzies Lot and Falkirk Cultural Center. The city served eviction notices to all campers at the two sites, including Rivera.

The 2023 eviction prompted Rivera’s first lawsuit, which stated he suffers from “severe chronic disabilities,” including dementia, post-traumatic stress disorder and the effects of two strokes. He contended that staying at the campsite would allow him to maintain routines and stability.

A federal magistrate assisted Rivera and San Rafael in reaching a settlement agreement that went into effect on Nov. 27, 2023.

San Rafael agreed not to enforce the administrative order against Rivera. Simply put, he could camp at the Menzies Lot and Falkirk Cultural Center. In return, Rivera dismissed his lawsuit against San Rafael.

The settlement included two exceptions. First, Rivera would remain covered by the settlement agreement as long as the administrative order remained in effect.

Second, the city could take enforcement action against Rivera for “whatsoever not based on the Order.” Essentially, San Rafael could enforce laws and other administrative orders impacting Rivera.

The city kept its bargain for nine months. Then, history repeated itself when a San Rafael park ranger posted a seven-day eviction notice at Rivera’s campsite and instructed him to vacate by Aug. 19.

Rivera and his advocate, Robbie Powelson, contacted city officials to reverse the eviction. After all, Rivera had an agreement with San Rafael—a legal contract. He even hand-delivered a cease-and-desist letter to the city attorney, Rob Epstein. Nothing worked. Backed into a corner, on Aug. 16, Rivera sued San Rafael again. 

What caused the city to try to evict Rivera a second time? Officials point to two recent changes.

In May, the San Rafael City Council passed a camping ordinance with numerous restrictions, including a prohibition on camping within 250 feet of a school. Rivera’s tent at the Menzies Lot, as the crow flies, was within 250 feet of Marin Academy.

The settlement agreement allows the city to enforce its new ordinance, requiring Rivera to relocate from the Menzies Lot. Yet, by moving his tent about 40 feet away onto the Falkirk Cultural Center property, he could comply with the new law and remain covered under the settlement agreement.

But the city took another action in August, a week before Rivera’s scheduled eviction. City Manager Cristine Alilovich lifted the portion of the administrative order that prohibits camping at Menzies Lot since the city’s new camping ordinance bans pitching a tent within the school buffer zone.

“Meanwhile, camping on the Falkirk Cultural Center Property remains prohibited by the Administrative Order,” according to an August staff report approved by Alilovich.

The report appeared to refer to the same administrative order that San Rafael cannot enforce against Rivera. Sure, Alilovich modified it by lifting the Menzies Lot portion. Yet last month’s staff report clearly stated that the administrative order is still in effect for Falkirk.

Why, then, did John Stefanski, assistant city manager, write in an email to Rivera’s advocate that the camper could not relocate to the Falkirk property? 

I contacted Alilovich to ask for a reason.

“In response to your question about Falkirk, the City is not going to allow anyone to camp at Falkirk Cultural Center,” Alilovich wrote in an email.

Curious reply. Ditto for San Rafael’s written opposition to the preliminary injunction Rivera sought from the court. It did not seem to deny the claim that the city breached the settlement agreement.

Fast-forward to the hearing on Sept. 4. Rogers did not grant Rivera a preliminary injunction, explaining that the Falkirk Cultural Center is a “public facility” and the city’s camping ordinance bans camping at public facilities.

However, that’s not entirely accurate. The city does allow camping on the grounds of some public facilities. And the the camping ordinance doesn’t prohibit camping on the Falkirk property. It doesn’t mention Falkirk at all.

The city manager’s administrative order is the only measure preventing camping on the “non-open space” portions of Falkirk’s property. To be clear, San Rafael bars camping in all open space, but Falkirk has both open and non-open space areas.

With those facts in hand, after the hearing on the preliminary injunction, Rivera filed a motion asking the judge to reconsider. Rogers ordered the city to respond.

Only then did Emblidge, San Rafael’s outside counsel, provide the court with a “new” administrative order, which went into effect on Aug. 13, 2024. It appears similar to the administrative order issued last year—the one the city can’t enforce against Rivera. Both ban camping at Falkirk.

The new administrative order is not the administrative order “referred to in the November 17, 2023 settlement agreement” was one of Emblidge’s arguments to justify Rivera’s eviction.

The judge again agreed with the city, issuing an order denying Rivera’s motion for reconsideration.

Interestingly, the “new” administrative order is titled “Revising Administrative Order of The City Manager Regulating Camping on Certain Public Property: Falkirk Cultural Center and Menzies Parking Lot, Non-Open Space.” 

Does revising an administrative order constitute a new order? If not, shouldn’t the settlement agreement remain in effect, allowing Rivera to camp at Falkirk?

Based on these questions and other issues, Rivera plans to appeal Roger’s decision to allow his eviction, hoping to be heard by the Ninth Circuit Court of Appeals. 

In the meantime, the lawsuit moves forward, with the next court date set for Nov. 25.