The case of State ex rel. Deters v. City of Cincinnati arose from collusion between the Cincinnati Mayor and the Hamilton County Prosecutor in which the Mayor asked the Prosecutor to sue the City. The only parties to the Deters v Cincinnati litigation are the County Prosecutor in his official capacity and the City. The pleadings asserted that a particular encampment of people experiencing homelessness constituted a nuisance under Ohio Revised Code 3719.10 & Chapter 3767, which applies to premises where a felony drug activity occurred. The court issued an ex parte injunction almost immediately, followed by a series of ever-expanding injunctions over the next few days. These injunctions prohibited encampments in (1) most of the public spaces in the City of Cincinnati, then (2) all public spaces in Hamilton County, and then (3) all private spaces throughout Hamilton County. The final, permanent injunction the court entered on August 16 was agreed upon by the County and the City. The injunction also cites not just the Ohio’s drug nuisance law, but also Ohio licensing rules regulating the conditions a property must have before it can host a campground.
The court’s injunctions are extreme in their breadth. They designate encampments – whether on public or private land – as a nuisance anywhere in the County, and enjoin anyone from “unlicensed” camping anywhere in the County. Moreover, the injunctions apply to non-parties.
A separate class action is pending in U.S. District Court for the Southern District of Ohio, challenging the constitutionality of these injunctions on a variety of grounds. Phillips et al v. City of Cincinnati et al.
Legal Theory
The Court of Common Pleas lacked jurisdiction over the case because it was a non-adversarial, even collusive, lawsuit. The Court also lacked jurisdiction to issue an injunction that bound non-parties without notice or a right to be heard, in violation of their procedural due process rights
Status Update
On October 18, 2018, we filed a Petition for Writ of Mandamus and/or Prohibition in the Ohio First District Court of Appeals against the Hamilton County Court of Common Pleas judge who issued the overbroad injunctions prohibiting encampments on public or private land anywhere within Hamilton County. Relator (our client) is New Prospect Baptist Church, which has long provided aid for individuals experiencing homelessness. This includes allowing them to camp on its privately-owned land free of charge – an act that Hamilton County Court of Common Pleas’ overbroad injunction now criminalizes. On October 29, 2018, the respondent judge moved to dismiss the petition for lack of standing. We opposed that motion on November 6 and Respondent replied on November 13. The Court scheduled an alternative writ hearing to review the motion to dismiss for January 23, 2018.
The court denied the motion to dismiss the day after oral arguments.
On February 20, Respondent filed his answer, denying many of New Prospect’s factual allegations. Parties filed a joint stipulation of facts on March 8 and on April 5 we filed our Motion for Preemptory Writ. Respondent replied with a combined Opposition and Motion for Summary Judgment. We responded and in June we also filed a Notice informing the Court of new persuasive authority. In a related federal lawsuit, the federal court found that allegations substantially similar to the facts in our case were potentially sufficient to support a finding that the overbroad injunctions were improperly issued.
On December 20, 2019 the Court issued a decision partly in our favor, granting a portion of the writ of prohibition that we had requested. It held that the injunction issued by the lower court was unauthorized by law to the extent it purported to enjoin nonparties and entities outside the City of Cincinnati from allowing homeless people to camp on their land. As a practical matter, the injunction is now sharply limited—it cannot be applied to private property owners like New Prospect, nor can it be applied in areas of Hamilton County beyond the City of Cincinnati. The deadline for any appeal to the Supreme Court of Ohio is February 3, 2020.
