Case: 2:17-cv-00002-DPM As of:01/23/2019 05:32 PM CST 1 of 5
CLOSED,JTK,JURY
U.S. District Court Eastern District of Arkansas (Helena) CIVIL DOCKET FOR CASE #: 2:17−cv−00002−DPM

Watlington et al v. McCrory Arkansas, City of et al Assigned to: Judge D. P. Marshall Jr. Cause: 42:1983 Other Civil Rights
Plaintiff

Date Filed: 01/05/2017 Date Terminated: 11/30/2017 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

David Watlington on behalf of himself and others similarly situated

represented by John D. Coulter McMath Woods, P.A. 711 West Third Street Little Rock, AR 72201 501−396−5449 Fax: 501−374−5118 Email: john@mcmathlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phil Telfeyan Equal Justice Under Law 601 Pennsylvania Avenue NW South Building − Suite 900 Washington, DC 20004 202−505−2058 Email: ptelfeyan@equaljusticeunderlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Lindsey Hollaway on behalf of herself and others similarly situated

represented by John D. Coulter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phil Telfeyan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant McCrory Arkansas, City of

represented by Jenna Adams Arkansas Municipal League Post Office Box 38 North Little Rock, AR 72115−0038 501−374−3484 Email: jenadams@arml.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Allen Mosley North Little Rock City Attorney's Office Post Office Box 5757 North Little Rock, AR 72119−5757

Case: 2:17-cv-00002-DPM As of:01/23/2019 05:32 PM CST 2 of 5

501−975−3755 Fax: 501−340−5341 Email: mmosley@nlr.ar.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Paul Hatch in his Official Capacity as the Police Chief of McCory, AR

represented by Jenna Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Allen Mosley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Counter Claimant McCrory Arkansas, City of

represented by Jenna Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Allen Mosley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Counter Claimant
Paul Hatch in his Official Capacity as the Police Chief of McCory, AR

represented by Jenna Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Allen Mosley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Counter Defendant Lindsey Hollaway on behalf of herself and others similarly situated
Counter Defendant David Watlington on behalf of himself and others similarly situated

represented by John D. Coulter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phil Telfeyan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John D. Coulter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phil Telfeyan (See above for address) LEAD ATTORNEY

Case: 2:17-cv-00002-DPM As of:01/23/2019 05:32 PM CST 3 of 5 ATTORNEY TO BE NOTICED

Date Filed 01/05/2017 01/05/2017 01/05/2017 01/06/2017
01/09/2017 01/09/2017
01/10/2017 01/10/2017 01/10/2017 01/11/2017 01/11/2017 01/11/2017
01/11/2017 01/11/2017
01/13/2017
02/07/2017

# Docket Text
1 Class Action COMPLAINT against All Defendants filed by Plaintiffs. ( Fee $ 400.00. Receipt Number LIT059956.) Summons issued and returned to counsel for service. (Attachments: # 1 Civil Cover Sheet)(alm) (Entered: 01/06/2017)
2 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Plaintiffs. (alm) (Entered: 01/06/2017)
3 BRIEF IN SUPPORT of their 2 Motion for TRO and Preliminary Injunction filed by Plaintiffs. (alm) (Entered: 01/06/2017)
4 ORDER: The Court will hold a one−hour hearing on whether to issue a TRO at 10:00 AM on Thursday, 1/12/2017. Watlington and Hollaway must give notice to the City of McCrory, Chief Hatch, and the City Attorney for McCrory no later than noon on 1/9/2017. Signed by Judge D. P. Marshall Jr. on 1/6/2017. (thd) (Entered: 01/06/2017)
5 NOTICE by All Plaintiffs re 4 Order Setting Hearing on Motion, (Coulter, John) (Entered: 01/09/2017)
6 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER: Embedded motion for extension of time, No. 5 , granted. Plaintiffs have until 5:00 p.m. today to give notice to Chief Hatch. Confirmation of the notice due by noon tomorrow. Signed by Judge D. P. Marshall Jr. on 1/9/2017. (slb) (Entered: 01/09/2017)
7 NOTICE by All Plaintiffs re 5 Notice (Other), 6 Order, 4 Order Setting Hearing on Motion, to McCrory Mayor Fowler and Police Chief Paul Hatch (Attachments: # 1 Exhibit A − Fax Confirmations)(Coulter, John) (Entered: 01/10/2017)
8 RESPONSE to Motion re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by All Defendants. (Mosley, Michael) (Entered: 01/10/2017)
9 NOTICE of Appearance by Michael Allen Mosley on behalf of All Defendants (Mosley, Michael) (Entered: 01/10/2017)
10 REPLY to Response to Motion re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by All Plaintiffs. (Coulter, John) (Entered: 01/11/2017)
11 NOTICE of Appearance by Jenna Adams on behalf of Paul Hatch, McCrory Arkansas, City of (Adams, Jenna) (Additional attachment(s) added on 1/11/2017: # 1 Main Document − Correct (submitted 1/11/2017)) (jak). (Entered: 01/11/2017)
12 ORDER denying without prejudice as moot 2 Watlington and Hollaway's motion for a TRO. The case isn't moot; but the request for stop−gap injunctive relief is. The 1/12/2017 hearing is cancelled and the case is stayed until 2/24/2017. Joint status report due by 2/15/2017. Signed by Judge D. P. Marshall Jr. on 1/11/2017. (jak) (Entered: 01/11/2017)
13 STATUS REPORT by Paul Hatch, McCrory Arkansas, City of. (Attachments: # 1 Exhibit A)(Adams, Jenna) (Entered: 01/11/2017)
14 NOTICE OF DOCKET CORRECTION re 11 Notice of Appearance. CORRECTION: The original document was submitted in error (editable image file). The correct document was added to docket entry 11 based on the attached correspondence. (jak) (Entered: 01/11/2017)
15 ORDER: Defendant's 13 status report noted. The stay is lifted. The prompt amendment of the ordinance moots the request for injunctive relief; the 2 motion for a preliminary injunction is denied without prejudice. The Court extends the Defendants' time to answer or file a Rule 12(b) motion until 2/17/2017. Signed by Judge D. P. Marshall Jr. on 1/13/2017. (jak) (Entered: 01/13/2017)
16 MOTION to Dismiss by Paul Hatch, McCrory Arkansas, City of (Mosley, Michael) (Entered: 02/07/2017)

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02/07/2017 02/21/2017 02/22/2017 02/22/2017
03/02/2017 05/23/2017
06/05/2017 06/06/2017
06/16/2017 06/22/2017 06/22/2017 07/06/2017 07/07/2017 07/11/2017 08/03/2017 08/07/2017 08/11/2017 08/16/2017
08/28/2017 08/28/2017

17 BRIEF IN SUPPORT re 16 Motion to Dismiss filed by Paul Hatch, McCrory Arkansas, City of. (Mosley, Michael) (Entered: 02/07/2017)
18 RESPONSE in Opposition re 16 MOTION to Dismiss filed by Lindsey Hollaway, David Watlington. (Telfeyan, Phil) (Entered: 02/21/2017)
19 MOTION for Leave to File Reply to Motion to Dismiss by Paul Hatch, McCrory Arkansas, City of (Mosley, Michael) (Entered: 02/22/2017)
20 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER: Unopposed motion, No. 19 , granted. Reply due by 3 March 2017. In the future, any movant may reply within seven calendar days of the response. Signed by Judge D. P. Marshall Jr. on 2/22/2017. (slb) (Entered: 02/22/2017)
21 REPLY to Response to Motion re 16 MOTION to Dismiss filed by Paul Hatch, McCrory Arkansas, City of. (Adams, Jenna) (Entered: 03/02/2017)
22 ORDER denying without prejudice 16 Motion to Dismiss. Any amended complaint is due by 6/23/2017. If none is filed, the Court will, on its own, dismiss for lack of subject matter jurisdiction. Signed by Judge D. P. Marshall Jr. on 5/23/2017. (kdr) (Entered: 05/23/2017)
23 MOTION for Extension of Time to File Answer by Paul Hatch, McCrory Arkansas, City of (Adams, Jenna) (Entered: 06/05/2017)
24 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER: Motion, No. 23 , granted. The City and Hatch need not answer or respond further until fourteen calendar days after Watlington and Hollaway file any amended complaint. Signed by Judge D. P. Marshall Jr. on 6/6/2017. (slb) (Entered: 06/06/2017)
25 AMENDED COMPLAINT against All Defendants, filed by Lindsey Hollaway, David Watlington(Telfeyan, Phil) (Entered: 06/16/2017)
26 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by All Defendants (Mosley, Michael) (Entered: 06/22/2017)
27 BRIEF IN SUPPORT re 25 Amended Complaint filed by All Defendants. (Mosley, Michael) (Entered: 06/22/2017)
28 RESPONSE in Opposition re 26 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by All Plaintiffs. (Telfeyan, Phil) (Entered: 07/06/2017)
29 REPLY to Response to Motion re 26 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by All Defendants. (Mosley, Michael) (Entered: 07/07/2017)
30 INITIAL SCHEDULING ORDER: Rule 26(f) Report due by 8/11/2017. Bench Trial set for 11/5/2018 at 9:30 AM in Helena Courtroom #314 before Judge D. P. Marshall Jr. Signed at the direction of the Court on 7/11/2017. (slb) (Entered: 07/11/2017)
31 ORDER denying 26 Motion. Signed by Judge D. P. Marshall Jr. on 8/3/2017. (jak) (Entered: 08/03/2017)
32 ANSWER to 25 Amended Complaint with Jury Demand , COUNTERCLAIM against Lindsey Hollaway, David Watlington by McCrory Arkansas, City of, Paul Hatch.(Adams, Jenna) (Entered: 08/07/2017)
33 REPORT of Rule 26(f) Planning Meeting by Lindsey Hollaway, David Watlington. (Telfeyan, Phil) (Entered: 08/11/2017)
34 FINAL SCHEDULING ORDER: The Court adopts the parties' proposed deadlines, No. 33, and adjusts others accordingly, but cannot provide the requested trial date. Jury Trial set for 11/5/2018 at 9:30 AM in Helena Courtroom #314 before Judge D. P. Marshall Jr. Discovery due by 4/2/2018. Motions due by 5/2/2018. Signed at the direction of the Court on 8/16/2017. (slb) (Entered: 08/16/2017)
35 MOTION to Dismiss for Lack of Jurisdiction by All Plaintiffs (Telfeyan, Phil) (Entered: 08/28/2017)
36 MEMORANDUM of points and authorities re 32 Answer to Amended Complaint, Counterclaim, 35 Motion to Dismiss/Lack of Jurisdiction filed by All Plaintiffs.

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09/06/2017 09/07/2017
11/30/2017 11/30/2017 11/30/2017

(Telfeyan, Phil) (Entered: 08/28/2017)
37 MOTION to Dismiss (voluntarily dismiss counterclaim) by Paul Hatch, McCrory Arkansas, City of (Mosley, Michael) (Entered: 09/06/2017)
38 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER: Defendants' motion, No. 37 , granted. The counterclaim, No. 32 at pp. 17−18, is dismissed without prejudice. Plaintiffs' motion to dismiss the counterclaim, No. 35, is denied without prejudice as moot. Signed by Judge D. P. Marshall Jr. on 9/7/2017. (slb) (Entered: 09/07/2017)
39 MOTION to Dismiss by All Plaintiffs (Telfeyan, Phil) (Entered: 11/30/2017)
40 ORDER granting 39 Motion to dismiss. The Court congratulates the parties on their settlement. Signed by Judge D. P. Marshall Jr. on 11/30/2017. (jak) (Entered: 11/30/2017)
41 JUDGMENT: The amended complaint is dismissed with prejudice. Defendants' counterclaim is dismissed without prejudice. Signed by Judge D. P. Marshall Jr. on 11/30/2017. (jak) (Entered: 11/30/2017)

 
 FILED Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 1 of 31 U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS JAN O5 2017

THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION

DEP CLERK

)

DAVID WATLINGTON, LINDSEY

)

HOLLAWAY, on behalf of themselves and )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

)

CITY OF MCCRORY and PAUL HATCH )

in his Official Capacity as the Police Chief )

of McCrory, Arkansas,

)

)

Defendants.

)

Case No. 2: f 7-c.v- 2 - f)f;t1
CLASS ACTION
Afarslv;.ll This case assigned to District Judge
-- and to Magistrate Judge Kearn~

CLASS ACTION COMPLAINT Introduction
1. This case is about the City of McCrory banishing some of its poorest residents simply because they are poor. In September 2016, the McCrory City Council passed a TrailerBanishment Ordinance forbidding any mobile home worth less than $7,500 to remain within the city limits, levying fines of up to $500 per day. Plaintiffs David Watlington and Lindsey Hollaway are an engaged couple living in McCrory below the federal poverty line in a trailer worth approximately $1,500. They cannot afford a more expensive home, and although they would like to begin their married life in McCrory close to family and employment, the McCrory Police Chief has ordered them to leave the county, banishing them because their mobile home is valued at less than $7,500.
2. The City of McCrory bans trailers and mobile homes within the City unless the resident can establish by a certified appraiser or a bill of sale a value of $7,500 or more. If Mr.

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 2 of 31
Watlington and Ms. Hollaway could afford to live in a mobile home valued at $7,500 or more, they would be permitted to remain in McCrory. Because the only criterion preventing Plaintiffs from living in the City of McCrory is the value of their home, McCrory is operating a wealthbased banishment scheme.
3. Mr. Watlington is currently unemployed. He cannot seek work because the local police records incorrectly show him as having a suspended license. He has been stopped on numerous occasions and has stopped driving because he cannot afford to pay the tickets and resulting court costs. Ms. Hollaway does shift work at the Worldwide Label facility in McCrory. In spite of their poverty, their home meets all reasonable health standards and complies with all other regulations. Plaintiffs have been ordered to leave McCrory only because they cannot afford a more expensive home. McCrory's ordinance is, therefore, a wealth-based banishment scheme, imposing a "fate universally decried by civilized people." Trop v. Dulles, 356 U.S. 86, 102 (1958). Banishment is a drastic punishment - so much so that the Arkansas State Constitution forbids it at the state level. Art. I, § 21.
4. Plaintiffs challenge McCrory's Trailer-Banishment Ordinance because it is unconstitutional. Defendants' wealth-based banishment ordinance (1) violates substantive due process by infringing on Plaintiffs' fundamental right not to be forcibly expelled from their place of residence; (2) discriminates on the basis of wealth status without any rational connection to a legitimate government interest in violation of the Equal Protection Clause; (3) criminalizes poverty and thus violates the Constitution's proscription against criminalization of status; (4) imposes excessive fines in violation of the Eighth Amendment for violators of the ordinance whose only offense is being poor; and (5) violates procedural due process by imposing punishment without any process whatsoever.
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5. By and through their attorneys, on behalf of themselves and others similarly situated, Plaintiffs seek the vindication of their rights, injunctive relief preventing future enforcement of the Trailer-Banishment Ordinance to allow them quiet enjoyment of their property, and a declaration that the Trailer-Banishment Ordinance is unconstitutional. Defendants cannot banish residents from the City simply because they are poor.
Nature of the Action 6. The City of McCrory has enacted an ordinance prohibiting the placement of mobile homes within the City unless the owners show - at their own cost - that the trailers have a value of at least $7,500. See Exhibit 1, Trailer-Banishment Ordinance, Section 2.C.6. Owners can be fined between $50 and $500 per day for violation of the ban, and the Police Chief, Defendant Paul Hatch, has ordered Plaintiffs to leave the City, effectively banishing them from the place they call home. Plaintiffs seek declaratory and injunctive relief prohibiting Defendants' wealth-based banishment scheme.
Jurisdiction and Venue 7. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., the Fourteenth Amendment, and the Eighth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 8. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties 9. Plaintiff David Watlington is a 31-year-old resident of McCrory. He lives with his fiance, Lindsey Hollaway, in McCrory in a mobile home valued at less than $7,500. He has been ordered to leave McCrory by the Police Chief because of the value of his home. See Exhibit 2, Watlington Deel.
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10. Plaintiff Lindsey Hollaway is a 30-year-old resident of McCrory. She works 8-to 10-hour shifts at the Worldwide Label facility in McCrory, earning approximately $13,000 per year. She relies on a 1992 Honda Accord for transportation. Ms. Hollaway lives with her fiance, David Watlington, in McCrory in a mobile home valued at less than $7,500. She has been ordered to leave McCrory by the Police Chief because of the value of her home. See Exhibit 3, Hollaway Deel.
11. Defendant City of McCrory is a local government entity organized under the laws of the State of Arkansas.
12. Defendant Paul Hatch, in his official capacity as Police Chief, is an official of Defendant City of McCrory in his role as enforcer of the Trailer-Banishment Ordinance.
13. Under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), Defendant City of McCrory and all City officials are liable for their unconstitutional policies and practices.
14. Under Ex Parte Young, 209 U.S. 123 (1908), the Police Chief in his official capacity can be enjoined from enforcing any unconstitutional local laws. Any ordinance requiring or permitting wealth-based banishment without due process of law is unconstitutional.
Factual Allegations A. Defendants Banish from the City Those Who Are Too Poor to Live in Homes Worth
$7,500 or More 15. On September 12, 2016, the City Council of the City of McCrory passed Ordinance No. 306 (the "Trailer-Banishment Ordinance" or the "Ordinance"), that amended "Ordinance 151A Regulating Trailers, Mobile Homes, Manufactured Housing, Trailer Parks, and Other Purposes." 16. The Ordinance stipulates, "No trailer shall be put in the City of McCrory unless it has a value established by a certified appraiser or a bill of sale of not less than seven thousand
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five hundred ($7,500.00). The owner is responsible for any cost to obtain these documents." 17. The Ordinance provides that "[a] violation of [the] ordinance shall be punishable
by a fine of not less than $50.00 nor more than $500.00 and each day a violation exists shall constitute a separate offense."
18. The Ordinance contains no defense based on non-willfulness and no mens rea or intent requirement, meaning that simply being too poor to afford a more expensive home is sufficient for a violation.
19. Ms. Hollaway is living with Mr. Watlington at 502 Parker Lane in McCrory in the mobile home valued at less than $7,500.
20. Mr. Watlington and Ms. Hollaway are an engaged couple. They have been living together for about two-and-a-half years.
21. Mr. Watlington bought the used mobile home in McCrory in October of 2015. The previous owner had been living in the mobile home in McCrory. Mr. Watlington made some improvements to the mobile home and began living in it in November of 2015 in Morton, Arkansas.
22. On or about September 6, 2016, Mr. Watlington and Ms. Hollaway moved their mobile home to its current lot in McCrory.
23. Mr. Watlington and Ms. Hollaway's home is worth approximately $1,500. 24. Due to their limited income, Mr. Watlington and Ms. Hollaway cannot afford a more expensive home. 25. Mr. Watlington and Ms. Hollaway pay $100 per month to the owner of the land where their mobile home is parked. They regularly pay their rent on time. Their landlord has been collecting rent from them for about three months and has no desire to lose them as tenants.
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26. As long as Mr. Watlington and Ms. Hollaway keep paying rent, their landlord will continue to welcome them as tenants. The landlord has identified no health concerns related to Plaintiffs' tenancy.
27. At the time when Mr. Watlington and Ms. Hollaway moved into the mobile home in McCrory, there was no ordinance banning trailers valued at less than $7,500. The McCrory City Council passed and approved the ordinance on September 12, 2016, less than one week after they moved their mobile home into McCrory.
28. On December 7, 2016, the Police Chief told Mr. Watlington that Plaintiffs had to leave the county "after the holidays" because their home was not compliant with a recentlypassed ordinance.
29. Mr. Watlington is currently unemployed and is not earning any income. 30. Ms. Halloway earns $255 per week working at Worldwide Label through a staffing agency called Urban Staffing Solutions. 31. Mr. Watlington and Ms. Holloway have numerous family members who live in the area. Mr. Watlington's four children (ages 5, 13, and 9-year-old twins) from a previous relationship live in McCrory and he would like to have a relationship with them. Mr. Watlington's parents, Ms Hollaway's parents, multiple aunts and uncles, and each of their grandparents all live within a short drive from their home. 32. Because of their financial situation and Mr. Watlington's inability to drive, they rely on family for support. B. Defendants' Wealth-Based Banishment Scheme Violates Substantive Due Process Because It Infringes upon Plaintiffs' Fundamental Right Not to Be Forcibly Expelled from Their Home 33. The right not to be expelled from one's home is a fundamental right, connected to
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a long line of established fundamental rights, all of which underscore a basic liberty interest in pursuit of living: the right to marriage, the right to procreation, the right to family planning decisions, the right to intimate relations, the right to familial association, the right to educate one's children, and the right not to have one's home taken without just compensation.
34. After due process of law and lawful conviction for a crime, some cities and counties restrict residents' movement as part of an ensuing pardon, parole, probation, or registration as a sex offender.
35. The right to remain in one's chosen city of residence loses its fundamental nature only in the context of particular criminal convictions.
36. In McCrory, the Trailer-Banishment Ordinance allows the banishment of individuals whose only "crime" is being too poor to afford a mobile home worth $7,500 or more. C. Defendants' Wealth-Based Banishment Scheme Is Not Rationally Related to Any
Legitimate Government Interest 37. There is no legitimate government interest that is rationally served by the requirement that every mobile home in the City be worth at least $7,500. 38. The Trailer-Banishment Ordinance lists four justifications for its passage: (1) relief of overcrowding, (2) promotion of orderly growth, (3) health, and (4) notification to builders. 39. Each of these purported justifications is pretext for animus and banishment based on wealth-status. The Equal Protection Clause forbids such wealth-based discrimination. Berry v. City ofLittle Rock, 904 F. Supp. 940, 948 (E.D. Ark. 1995), affd, 94 F.3d 648 (8th Cir. 1996) ("The states are prohibited by the Equal Protection Clause from discriminating between 'rich' and 'poor' as such in the formation and application of their laws"). 40. The Ordinance says nothing about justifying the minimum required cost of a
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trailer home, instead stating that its justifications are based on "a need to regulate the placement of trailers." No justification is given for the wealth-based provision.
i. The $7,500 Value Requirement Bears No Relationship to the Alleged Problem of "Overcrowding"
41. There is no evidence of an existing or anticipated problem of overcrowding in McCrory.
42. The 2013 population of McCrory was 1,679 people. The population has decreased since 2010, when it was 1,728. In fact, there has been an overall decline in the population of McCrory at least since 1990, when there were 1,887 residents in the city.
43. McCrory is located an hour-and-a-half away from the nearest major airport and is surrounded by other small towns with small populations.
44. McCrory is more than an hour-and-a-half from Little Rock, the state's capital. 45. Patterson, the town closest to McCrory, has a population of only 437 people. 46. McCrory is 2.394 square miles in land area. Its population density is approximately 722 people per square mile. Little Rock, the state's most populous city, has a population density of over 1,700 people per square mile, more than twice that of McCrory. 47. Even if overcrowding exists, the $7,500 value requirement does not "prevent crowding" because this goal is already served by the "Space Size" provision regulating trailer parks: "Each trailer shall have a minimum lot size of 1,500 square feet, with a minimum width of 40 feet at the access line. Maximum density- 6 sites/acre of park." 48. Any additional overcrowding problems can and should be addressed through zoning measures, not wealth-based banishment. ii. The $7,500 Value Requirement Does Absolutely Nothing to "Encourage
Orderly Growth"
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49. The phrase "encourage orderly growth" has no discemable meaning within the context of the Ordinance.
50. It is illogical to claim that a restriction can encourage "growth" of any kind. If growth is to be encouraged, it must first be allowed.
51. A wealth-based banishment in particular cannot encourage growth, because it excludes rent-paying residents from living in the City.
52. Because the size of the city limits is fixed, encouraging growth would increase the population and thus increase the population density. This purported goal is inconsistent with McCrory's other purported goal of limiting crowding and thus decreasing density.
53. By forcing poor residents who live in mobile homes out of the city, Defendants are discouraging growth. "Encourage orderly growth" is a euphemism for "get rid of the poor."
iii. The $7,500 Value Requirement Does ·Nothing to Advance Health 54. The $7,500 value requirement does not prevent undesirable health conditions, because monetary value simply is not an adequate proxy for health. 55. Any number of expensive alterations to a mobile home could increase its monetary value without increasing its health rating. 56. A gold-plated shower would increase the value of a mobile home without making it healthier. 57. Marble countertops would increase the value of a mobile home without making it healthier. 58. A surround-sound stereo system would increase the value of a mobile home without making it healthier. 59. If Defendants had wanted to advance health in mobile homes, they would have
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chosen requirements actually related to health, such as prohibiting the build-up of sewage or mandating working smoke detectors.
60. Requiring that a mobile home be worth at least $7,500 serves no health purpose. iv. The Ordinance Bears No Relation to Notifying Builders 61. The Ordinance provides no notification to builders regarding any construction regulations or anything else relevant to their trade. 62. Builders do not need to be notified that the City's poorest residents are being banished from the City. 63. No additional building is required by banishing residents like Plaintiffs. D. McCrory's Mobile Home Banishment Ordinance Unconstitutionally Criminalizes a State of Being - The State of Being Poor 64. The banishment Ordinance punishes people whose only crime is being too poor to afford a mobile home worth $7,500 or more. 65. It is unconstitutional to criminalize a status, such as poverty. 66. Indigent residents like Plaintiffs cannot avoid a violation of the statute. Through no intent, will, or desire, Plaintiffs only "crime" is living in a home worth less than $7,500. 67. Plaintiffs are living well below the poverty line. Their limited income covers basic human needs like food, rent, transportation to work, and other necessities. 68. Because Plaintiffs cannot afford a more expensive home, they are punished solely for their poverty status. 69. Defendants may not impose fines or banishment on anyone for the mere status of being poor. E. The Fines for Violating McCrory's Mobile Home Banishment Ordinance Are Excessive
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70. Defendants' enforcement of the Ordinance through a fine of not less than $50 nor more than $500 each day is an excessive fine for the purported offense of being poor.
71. Under the fine structure, Plaintiffs could be liable for $7,500 in fines after just 15 days in McCrory.
72. By stipulating that violations of the Ordinance are "punishable" by fines, the City of McCrory reveals the punitive nature of the Ordinance's enforcement.
73. The Ordinance sets a huge range of $50 to $500 for the daily fine. It provides no guidance on how fines in individual cases will be determined within that range. This leaves violators extremely vulnerable to abuse of discretion by enforcers, who are not accountable to any sort of oversight or appeals process.
74. The Ordinance does not set a maximum for the total amount in fines that can be imposed upon violators of the Ordinance. Every day is a separate offense subject to a new fine. The only clear way for Plaintiffs to stop the fines is to leave the city.
75. Violators face fines of $350 to $3,500 per week if they are unable or unwilling to leave the city. Even at the minimum daily fine amount of $50, after only five months, the total amount in fines would reach the $7,500 minimum trailer value required by the Ordinance.
76. The people targeted by this Ordinance, those living in mobile homes worth less than $7,500, are necessarily some of McCrory's poorest residents. Fining residents for living in homes of insufficient value amounts to an impermissible punishment for being poor.
77. Poverty is not a crime. Any fine for the status of being poor is impermissible, thus rendering a fine in any amount disproportionate to the crime under the Eighth Amendment.
78. The Ordinance's punitive fee structure has a sole purpose: to force poor residents to leave the city. The mandated excessive fines violate the Eighth Amendment.
11

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 12 of 31
F. Defendants' Wealth-Based Banishment Scheme Violates Procedural Due Process by Providing No Process at All i. The Fines and Banishment Threatened by the Ordinance Against Residents Who Do Not Comply with the $7500 Value Requirement Amount to Punishments and Therefore Cannot Be Imposed Without Due Process of Law 79. Where a statute employs a sanction as a punishment, it must afford procedural
safeguards guaranteed by the Fifth and Sixth Amendments to the Constitution. 80. The text of the Ordinance makes its punitive intent clear. It declares violations of
its provisions "punishable" by hefty fines. 81. The Ordinance does not explain who is responsible for enforcing its provisions,
such as identifying violations or determining the amount of the mandated fine. 82. Here, Defendant Hatch, the McCrory Police Chief, has enforced the ordinance
against the Plaintiffs, demonstrating the criminal nature of the Ordinance. 83. Violators of the $7500 value requirement face one of two consequences: They can
pay a fine of $50 to $500 for every day that they are in violation, or they can be forced out of the city. Both of these consequences involve affirmative disability and restraint.
84. Plaintiffs are restrained from living in the only home they can afford. 85. Mr. Watlington is being restrained from living in the same city as his four children. He is being restrained from living in the same county as his parents and other close relatives who can help him with transportation. 86. Ms. Halloway is being restrained from living in the same city as her current place of employment. 87. Banishment is a form of punishment so extreme that it has been prohibited by the Arkansas Constitution at the state level. Banishment as a regulatory measure is inconceivable; it
12

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 13 of 31
is punitive by its very nature, and banishment has historically been regarded as punishment. 88. Fines - especially in the excessive range allowed by the Ordinance - are also
historically regarded as punishment. 89. The fine-based enforcement scheme of the Ordinance is clearly meant to deter
because it imposes a new fine for every day of noncompliance. This makes it virtually impossible for anyone to remain noncompliant for longer than a short period.
90. The severity of the fines serves both a retributive and deterrent purpose. The fines are so large that they punish indigent residents for remaining in McCrory and deter future indigent residents from coming.
91. The Trailer-Banishment Ordinance is enforced broadly against all poor mobile home residents regardless of their financial ability to increase the value of their homes, the hardship they may face in being forced to move, or any other relevant factors. This blanket, wealth-based application indicates retributive effect.
92. The sanctions imposed by the Ordinance are not rationally related to any government interests beyond retribution, deterrence, and discrimination.
93. Banishment is an impermissible, irrational, and excessive measure unrelated to the purported government interests, and the fine scheme is excessive in that it is both unlimited and vulnerable to abuse of discretion.
ii. The Banishment Ordinance Provides No Criminal Process at All 94. As a criminal provision that imposes punishment, the Ordinance's lack of any criminal process whatsoever is unconstitutional. 95. The Ordinance does not require indictment by a grand jury. 96. The Ordinance does not guarantee a right to counsel for those who face
13

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 14 of 31
banishment or fines. 97. The Ordinance does not require a hearing before banishment or fines are imposed. 98. The Ordinance does not provide for appeal of an enforcer's decision to banish or
fine a resident. iii. Even If the Trailer-Banishment Ordinance's Sanctions Were Civil, It Would Still Lack Sufficient Process to Deprive Violators of a Protected Property Interest 99. Assessing fines or forcing banishment both implicate "property rights," and
therefore due process of law is required before the City can force a citizen to leave because his or her home is of insufficient value.
100. A leasehold is a property right that would be destroyed if the tenant were forced to leave the city.
101. The Ordinance makes no provision for due process oflaw. 102. The Ordinance has no specified notice requirement. 103. The Ordinance has no mention of any opportunity to remediate by increasing the value of the mobile home. 104. The Ordinance has no mention of any right to appeal. 105. The City of McCrory cannot deny a person's right to choose to live within the city when that person's only offense is being poor. This amounts to banishment without any safety justification.
Class Action Allegations 106. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, to assert the claims alleged in this Complaint on a common basis. 107. A class action is a superior means, and the only practicable means, by which the
14

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 15 of 31
named Plaintiffs and unknown Class Members can challenge Defendants' unlawful wealth-based banishment scheme.
108. This action is brought and may properly be maintained as a Class action pursuant to Rule 23(a)(l)-(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure.
109. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
110. Plaintiffs propose one Class seeking declaratory and injunctive relief. The Declaratory and Injunctive Class is defined as: all current and future residents of McCrory, Arkansas, who live or will live in mobile homes valued at less than $7,500. A. Numerosity-Fed. R. Civ. P. 23(a)(l)
111. The City of McCrory has approximately 1,729 residents. It is the second-largest city in Woodruff County, where 25.8% of residents are living under the federal poverty level, according to the U.S. Census Bureau.
112. Using these figures, an estimated 432 residents of McCrory may be living under the federal poverty level.
113. It is likely that the number of impoverished people who reside or will one day reside in McCrory is high.
114. The number of current or future residents likely to be impacted by the TrailerBanishment Ordinance is in the scores, if not hundreds. B. Commonality - Fed. R. Civ. P. 23(a)(2)
115. The relief sought is common to all Class Members, and common questions of law and fact exist as to all Class Members. The named Plaintiffs seek relief concerning whether the Trailer-Banishment Ordinance violates the rights of the Class Members and relief mandating that
15

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 16 of 31
Defendants not enforce the Ordinance so that the constitutional rights of the Class Members will
be protected in the future.
116. These common legal and factual questions arise from one law: Defendants'
Trailer-Banishment Ordinance. The material requirement of the provision that all mobile homes
in McCrory be worth at least $7,500 does not vary from Class Member to Class Member, and the
resolution of these legal and factual issues will determine whether all Class Members are entitled
to the relief they seek.
117. Among the most important, but not the only, common questions of fact are:
• Do the City of McCrory and Police Chief Paul Hatch expel residents living in mobile homes worth less than $7,500?
• Do the City of McCrory and Police Chief Paul Hatch impose fines upon residents living in mobile homes worth less than $7,500?
• Do the City of McCrory and Police Chief Paul Hatch inform residents of McCrory who live in mobile homes worth less than $7,500 that they must leave the City?
• Does the Trailer-Banishment Ordinance deter indigent residents from living in McCrory or cause indigent residents to leave McCrory?
118. Among the most important, but not the only, common questions of law are:
• Does Defendants' Trailer-Banishment Ordinance violate substantive due process by infringing on Plaintiffs' fundamental right not to be forcibly expelled from their place of residence?
• Does Defendants' Trailer-Banishment Ordinance discriminate on the basis of wealth status without any rational connection to a legitimate government interest in violation of the Equal Protection Clause?
• Does Defendants' Trailer-Banishment Ordinance criminalize poverty and thus violate the Constitution's proscription against criminalization of status?
• Does Defendants' Trailer-Banishment Ordinance impose excessive fines in violation of the Eighth Amendment for violators of the Ordinance whose only offense is being poor?
• Does Defendants' Trailer-Banishment Ordinance violate procedural due process by imposing punishment without any process whatsoever?
C. Typicality-Fed. R. Civ. P. 23(a)(3)
119. The named Plaintiffs' claims are typical of the other Class Members' claims, and
16

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 17 of 31
they have the same interests in this case as all other Class Members. Each Class Member is or will be unable to live in McCrory in a mobile home worth less than $7,500. The answer to whether Defendants' wealth-based banishment scheme is unconstitutional will determine the claims of the named Plaintiffs and every other Class Member.
120. If the named Plaintiffs succeed in the claim that Defendants' policies and practices concerning wealth-based banishment violate their constitutional rights, that ruling will likewise benefit every other Class Member. D. Adequacy- Fed. R. Civ. P. 23(a)(4)
121. The named Plaintiffs are adequate representatives of the Class because their interests in the vindication of the legal claims that they raise are entirely aligned with the interests of the other Class Members, who each have the same basic constitutional claims. They are members of the Class, and their interests coincide with, and are not antagonistic to, those of the other Class Members.
122. There are no known conflicts of interest among Class Members, all of whom have a similar interest in vindicating their constitutional rights in the face of Defendants' wealth-based banishment scheme.
123. Plaintiffs are represented by attorneys from Equal Justice Under Law, who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants' scheme and the relevant constitutional and statutory law.
124. The combined efforts of Class counsel have so far included extensive investigation into Defendants' banishment scheme, including numerous interviews with witnesses, attorneys throughout the region, statewide experts in the functioning of state and local courts, and national experts in constitutional law, law enforcement, judicial procedures, and
17

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 18 of 31
criminal law. 125. Class counsel have a detailed understanding of local law and practices as they
relate to federal constitutional requirements. 126. As a result, counsel have devoted enormous time and resources becoming
intimately familiar with Defendants' scheme and with the relevant state and federal laws. The interests of the Class Members will be fairly and adequately protected by the Plaintiffs and their attorneys. E. Rule 23(b)(2)
127. Class action status is appropriate because Defendants have acted or will act in the same unconstitutional manner with respect to all Class Members. Defendants enforce a wealthbased banishment scheme: wealthy residents of McCrory live undisturbed, while the poorest residents are forced to leave or pay exorbitant fines.
128. The Class therefore seeks declaratory and injunctive relief to enjoin the City of McCrory and Police Chief Paul Hatch from enforcing the Trailer-Banishment Ordinance. Because the putative Class challenges Defendants' scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every Class Member, Rule 23(b)(2) certification is appropriate and necessary.
129. Injunctive relief compelling Defendants to comply with these constitutional rights will similarly protect each Class Member from being subjected to Defendants' unlawful policies and practices. A declaration and injunction stating that the City of McCrory and Police Chief Paul Hatch cannot banish or fine residents simply because they live in mobile homes worth less than $7,500 would provide relief to every Class Member. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate.
18

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 19 of 31
Claims for Relief Count One: Defendants Violate Plaintiffs' Substantive Due Process Rights by Banishing Them Because They Live in a Mobile Home Valued at Less than $7,500.
130. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
131. The Fourteenth Amendment's Substantive Due Process Clause prohibits Defendants from banishing Plaintiffs from their home simply because it is worth less than $7,500. Plaintiffs have a fundamental right to be free from government expulsion absent exceptional circumstances such as conditional parole, pardon, or regulatory sex-offender registration requirements. Defendants violate this right by enforcing an ordinance against the Plaintiffs that gives them no choice but to leave the City. Count Two: Defendants Violate Plaintiffs' Equal Protection Rights by Discriminating on the Basis of Wealth Status Without Any Rational Connection to a Legitimate Government Interest.
132. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
133. The Equal Protection Clause of the Fourteenth Amendment prohibits discrimination that is not rationally related to a legitimate government interest. There is no legitimate government interest that is rationally served by the requirement that every mobile home in the City be worth at least $7,500. The Trailer-Banishment Ordinance lists four justifications for its passage: (1) relief of overcrowding, (2) promotion of orderly growth, (3) health, and (4) notification to builders. Each of these purported justifications is pretext for animus and banishment based on wealth-status. The Ordinance says nothing about justifying the minimum required cost of a trailer home, instead stating that its justifications are based on "a need to regulate the placement of trailers." No justification is given for the wealth-based
19

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 20 of 31
provision, nor can one reasonably be given. Count Three: Defendants Violate the Constitution's Proscription Against Criminalization of Status by Criminalizing Poverty.
134. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
135. The United States Constitution prohibits the criminalization of a status, such as poverty. The Trailer-Banishment Ordinance unconstitutionally penalizes people simply for being poor. Count Four: Defendant City of McCrory's Ordinance Violates the Eighth Amendment's Prohibition Against Excessive Fines on Its Face.
136. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
137. The Eighth Amendment prohibits the City of McCrory from imposing excessive fines on residents that are disproportionate to the alleged misconduct. McCrory's ordinance provides for fines of up to $500 per day for living in a trailer with an insufficient appraised value, thereby imposing an excessive punishment simply for being poor. Count Five: Defendants Violate Plaintiffs' Procedural Due Process Rights Because They Are Attempting to Banish Them from McCrory Without Any Procedural Safeguards at All.
138. Plaintiffs incorporate by reference each and all of the previous allegations in this complaint.
139. The Fourteenth Amendment's procedural due process clause requires that no person be restrained or deprived without proper procedural safeguards, which include in the criminal context the protections of the Fifth, Sixth, and Eighth Amendment of the Bill of Rights. In a civil framework, the government must provide, at a minimum, notice and hearing before
20

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 21 of 31

taking adverse action. Defendants are violating Plaintiffs' procedural due process rights because

they are forcing them to move from McCrory with no process whatsoever, including lack of

formal notice, a hearing, a meaningful opportunity to be heard and present a defense, or appeals

process.

Request for Relief

WHEREFORE, Plaintiffs request that this Court issue the following relief:

a. A declaratory judgment that the Defendants violate Plaintiffs' constitutional rights by banishing them from the City of McCrory solely because their mobile home is worth less than $7,500.

b. An order declaring that McCrory's Trailer-Banishment Ordinance is facially unconstitutional because it enacts a wealth-based banishment scheme.

c. An order and judgment preliminarily and permanently enjoining Defendants from enforcing their unconstitutional wealth-based banishment scheme against Plaintiffs, including all efforts to force Plaintiffs to leave McCrory.

d. An order and judgment preliminarily and permanently enjoining Defendants from banishing or imposing fines upon any person due to his or her residence in a mobile home valued at less than $7,500.

e. A judgment compensating Plaintiffs for the damages that they suffered as a result of Defendants' unconstitutional and unlawful conduct.

f.

An order and judgment granting reasonable attorneys' fees and costs pursuant to

42 U.S.C. § 1988, and any other relief this Court deems proper.

Respectfully submitted,

Phil Telfeyan (Pro Hae Vice pending) Catherine Sevcenko (Pro Hae Vice pending) Rebecca Ramaswamy (Pro Hae Vice pending) Attorneys, Equal Justice Under Law 601 Pennsylvania Avenue NW South Building - Suite 900 Washington, D.C. 20004
21

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 22 of 31 (202) 505-2058 ptelfeyan@,equaljusticeunderlaw.org catherine@.equaljusticeunderlaw.org rrarnaswamy@equaljusticeunderlaw.org
. Coul 1\R Bar Number 98148) ath Woods P.A. 7 1 West Third Street Little Rock, AR 72201 (501) 396-5400 john@mcmathlaw.com Attorneys/or Plaintiffs David Watlington and Lindsey Hollaway
22

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 23 of 31
EXHIBIT 1: McCRORY TRAILER-BANISHMENT ORDINANCE

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 24 of 31
ORDINANCE NO. 306: AN ORDINANCE TO AMEND ORDINANCE 151A REGULATING TRAILERS, MOBILE HOMES, MANUFACTURED HOUSING, TRAILER PARKS, AND OTHER PURPOSES. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MCCRORY, ARKANSAS ORDINANCE NO. 151A BE ADMENDED TO READ AS FOLLOWS.
SECTION 1. DEFINITIONS: For the purpose ofthese regulations, the following terms or words are defined as follows.
A. Mobile Home: A mobile home dwelling with the following characteristics: 1. Designed for long-term occupancy containing sleeping accommodations, flush toilet, tub or shower bath, and kitchen facilities with plumbing and electrical connections provided for attachment to outside systems. 2. Designed to be transported, after fabrication, on its own wheels, flat bed, other trailers, or detachable wheels. 3. Arrives at the site where it is to be occupied as a dwelling unit complete with major appliances.
B. Mobile Home Parks. A tract ofland that is used, designed, maintained, or held out for rent to accommodate one or more mobile homes. Mobile homes located in a mobile home park are used only to provide living and sleeping accommodations; A mobile home park does not include an automobile or mobile home sales lot on which unoccupied mobile homes are parked for inspection or sale. The term "Mobile Home" shall include mobile dwelling.
Section 2. REGULATIONS:
A. Regulation established: From and after the passage ofthis ordinance trailers, mobile homes and trailer parks shall be regulated and governed by this ordinance.
B. Trailer -Mobile Home defined: The trailer and mobile home are synonymous. A trailer is a unit designed for use of human habitation moved to its site on wheels. It may or may not be self-propelled. Camping trailers and motor homes are also included.
C. Placement ofTrailers: No trailer shall be parked in the City ofMCCRORY unless it meets the following minimum standards: 1. Parked in a trailer park. 2. Parked on dedicated lot in the City of MCCRORY on which no other dwelling is located and the lot is at least 7,500 square feet and the lot fronts a street. 3. A motor home or camping type unit which is parked alongside of a house and no one uses it for habitation while so parked. Exceptions, visitors not to exceed 30 days. 4. A trailer within the City ofMCCRORY shall be underpinned or skirted within thirty (30) days after being set. Any trailer within the City of MCCRORY prior to the date ofthis ordinance shall be given sixty (60) days. 5. No trailer shall be parked within fifteen (15) feet of property line. 6. No trailer shall be put in the City of MCCRORY unless it has a value established by a certified appraiser or a bill of sale ofnot less than seven thousand five hundred ($7,500.00). The owner is responsible for any cost to obtain these documents.
D. Trailer Parks: A trailer park will only be permitted in the City of MCCRORY if it has the following minimum standards:

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 25 of 31
1. Space Size. Each trailer shall have a minimum lot size of 1,500 square feet, with a minimum width of 40 feet at the access line. Maximum density -6 sites/ acre of park.
2. Individual Water and Sewer Connections: Each trailer in a trailer park shall have a separate city water and sewer connection conforming to the requirements of MCCRORY Plumbing Code and Regulations.
3. No trailer park shall be allowed unless a permit has been secured. The permit fee shall be $120.00 per year. The permit will be on a form designed by the City Council and will contain the name, address and agent for service of process (which must be a local person). The fee will prorate if issued during a part of a year.
4. Issuance of Permit: The permit shall be issued by the City Council after a review ofthe proposed trailer park. The council may refuse to issue a trailer park permit if there is not adequate drainage, access or utility service.
5. Length of Time. That a permit shall be for twelve months commencing January 1 of each year and a new permit must be secured each year.
6. Placement of Trailer. No trailer shall be parked within fifteen (15) feet of property line. No trailer shall be parked closer than twenty (20) feet to any other mobile home or any accessory building or any other building.
7. Custodial Care: The owner ofthe mobile home park, or a duly authorized attendant or caretaker, shall be in charge at all times to keep the mobile home park, its facilities, grounds, and its equipment in a clean, orderly and sanitary condition. The attendant or caretaker shall be answerable with the owner ofsuch mobile home park for the violation of any provision of this section to which the owner of said development is subject.
8. Parking. Two (2) off street parking spaces per mobile home shall be provided on each mobile home site or within one hundred feet of the individual mobile home site. No off street parking shall be located within any required usable open space.
9. Each mobile home park shall meet such other requirements as the city may require. 10. Plans for a mobile home park, shall be submitted to and approved by the City
Council ofthe City of MCCRORY, Arkansas.
SECTION 3: ENFORCEMENT: A violation of this ordinance shall be punishable by a fine of not less than $50.00 nor more than $500.00 and each day a violation exists shall constitute a separate offense.
SECTION 4. EMERGENCY: It is determined there exists a need to regulate the placement of trailers in the City of MCCRORY, Arkansas in order to encourage orderly growth and prevent crowding and undesirable health conditions and builders want to know the necessary provision so they can commence construction to relieve the tight housing situation. An emergency is hereby declared to exist and this ordinance will be in full force and effect from and after its passage.
PASSED AND APPROVED WITHIN AND FOR THE CITY OF MCCRORY, ARKANSAS THIS 12th Day of September, 2016.
APPROVED Doyle W. Fowler
ATTEST Karen Harrison

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 26 of 31
EXHIBIT 2: DAVID WATLINGTON
DECLARATION

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 27 of 31
DECLARATION OF DAVID WATLINGTON I, David Watlington, state and declare as follows: 1. I, David Watlington, am a 31-year-old resident of McCrory, Arkansas. 2. I am currently unemployed and have no income. 3. I have had several jobs in the area in the recent past, but I lost them all because McCrory
police have repeatedly arrested me on the mistaken belief that I was driving on a suspended license. Due to this miscommunication I am unable to travel and thus unable to work. 4. I live with my fiancee, Lindsey Hollaway. We have been living together for about twoand-a-half years. 5. Lindsey and I live in a trailer parked on a property at 502 Parker Lane in McCrory, which meets McCrory's requirements for a trailer site. 6. We pay $100 rent per month for the lot. We regularly pay our rent on time and have a good relationship with our landlord. We have been paying rent for about three months. 7. I bought the trailer in October of 2015 and fixed it up, installing a bathroom and making other repairs. We started living in it in November of 2015 in Morton, Arkansas. I estimate that it is worth approximately $1,500. 8. On or about September 6, 2016, we moved our mobile home to its current lot in McCrory. 9. My trailer meets all reasonable health standards and complies with all other regulations, except that it is worth less than $7,500. 10. My four children - ranging in age from five to 13 - live in McCrory. My aunt and uncle, who raised me, live about 30 minutes away. My father lives in Morton, and my

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 28 of 31

Lindsey~s ~a'yCH~~k orsis5 per week is our only source ofincomc.
Because o&it~t'imitcJt~~~l11e, we ~nnot afford.a more expensive ho .

: :···~ .' :

oiine~ember "~"M• movtt~' ''

'· 2016. Police Chie'fJ>aul Hatch told lhnrwe would have to .

:"····':..··:.' .;,·,;·:·· . · . ;

.·.·

... . :, ",::.:·'.·::

.

. . ·::. . .

" <
16. We were not given any written notice to vacate or opp<)rtonity to contestorappeal, we were not given any opportunity to show that our trailer eomplies \Vith alt reaso health regulations.
I dedare under penalty of perjury that the foregoing is true and correct Executed on January 4,
2017.

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 29 of 31
EXHIBIT 3: LINDSEY HOLLAWAY
DECLARATION

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 30 of 31
DECLARATION OF LINDSEY HOLLAWAY I, Lindsey Hollaway, state and declare as follows: 1. I, Lindsey Hollaway, am a 30-year-old resident of McCrory, Arkansas. 2. I live with my fiance, David Watlington. We have been living together for about two-
and-a-half years. 3. David and I live in a trailer parked on a property at 502 Parker Lane in McCrory. 4. We pay $100 rent per month for the lot. We regularly pay our rent on time and have a
good relationship with our landlord. We have been paying rent for about three months. 5. David and I bought the trailer in October of 2015 and fixed it up, installing a bathroom
and making other repairs. We started living in it in November of 2015 in Morton, Arkansas. We estimate that it is worth approximately $1,500. 6. On or about September 6, 2016, we moved our mobile home to its current lot in McCrory, which meets McCrory's requirements for a trailer site. 7. Our trailer meets all reasonable health standards and complies with all other regulations except that it is worth less than $7,500. 8. My parents and sisters live about 30 miles away, and my grandparents live about 50 miles up the road in Barton. 9. I live in McCrory so that I can be near my family and close to my work place. 10. David and I are engaged to be married and wish to begin our married life in McCrory, near our family and friends. 11. I work at Worldwide Label through a staffing company called Urban Staffing Solutions. I make $255 per week. I start my workday as early as 6am and work as many as 10 hours per day.

Case 2:17-cv-00002-DPM Document 1 Filed 01/05/17 Page 31 of 31
any written notice to VUC§te or opportunity to co:atest
any oppbrtnnity to show thatOl}r trailer~
in~alth regulations,
I dechir~ tiijt;ler penalty of perjury that the foregoing is tnte and r""""'~"1
2017,
Unds-:-y Hollaway

 
 Case 2:17-cv-00002-DPM Document 25 Filed 06/16/17 Page 1 of 20

THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

EASTERN DIVISION

____________________________________

)

DAVID WATLINGTON and LINDSEY )

HOLLAWAY,

)

)

Plaintiffs,

)

)

Case No. 2:17-cv-2-DPM

v.

)

)

)

CITY OF MCCRORY and PAUL HATCH )

in his Official Capacity as the Police Chief )

of McCrory, Arkansas,

)

)

Defendants.

)

____________________________________)

AMENDED COMPLAINT

Introduction

1. This case is about the City of McCrory banishing some of its poorest residents

simply because they are poor. In September 2016, the McCrory City Council passed a Trailer-

Banishment Ordinance forbidding any mobile home worth less than $7,500 to remain within the

city limits, levying fines of up to $500 per day. Plaintiffs David Watlington and Lindsey

Hollaway are an engaged couple living in McCrory below the federal poverty line in a trailer

worth approximately $1,500. They cannot afford a more expensive home, and although they

would like to begin their married life in McCrory close to family and employment, the McCrory

Police Chief ordered them to leave the county, banishing them under the terms of the Ordinance

because their mobile home is valued at less than $7,500.

2. From September 2016 through the beginning of January 2017, the City of

McCrory banned trailers and mobile homes within the City unless the resident could establish by

1

Case 2:17-cv-00002-DPM Document 25 Filed 06/16/17 Page 2 of 20
a certified appraiser or a bill of sale a value of $7,500 or more. If Mr. Watlington and Ms. Hollaway could have afforded to live in a mobile home valued at $7,500 or more, they would have been permitted to remain in McCrory. Because the only criterion preventing Plaintiffs from living in the City of McCrory was the value of their home, McCrory was operating a wealthbased banishment scheme.
3. At the time of the events precipitating this lawsuit, Mr. Watlington was unemployed. He could not seek work because the local police records incorrectly show him as having a suspended license. He has been stopped on numerous occasions and has stopped driving because he cannot afford to pay the tickets and resulting court costs. Ms. Hollaway does shift work at the Worldwide Label facility in McCrory. In spite of their poverty, their home meets all reasonable health standards and complies with all other regulations. Plaintiffs were ordered to leave McCrory only because they cannot afford a more expensive home. McCrory’s ordinance was, therefore, a wealth-based banishment scheme, imposing a “fate universally decried by civilized people.” Trop v. Dulles, 356 U.S. 86, 102 (1958). Banishment is a drastic punishment — so much so that the Arkansas State Constitution forbids it at the state level. Art. I, § 21.
4. Plaintiffs challenge McCrory’s Trailer-Banishment Ordinance because it was unconstitutional. Defendants’ wealth-based banishment ordinance (1) violated substantive due process by infringing on Plaintiffs’ fundamental right not to be forcibly expelled from their place of residence; (2) discriminated on the basis of wealth status without any rational connection to a legitimate government interest in violation of the Equal Protection Clause; (3) criminalized poverty and thus violated the Constitution’s proscription against criminalization of status; (4) imposed excessive fines in violation of the Eighth Amendment for violators of the ordinance
2

Case 2:17-cv-00002-DPM Document 25 Filed 06/16/17 Page 3 of 20
whose only offense is being poor; and (5) violated procedural due process by imposing punishment without any process whatsoever.
5. Realizing that the $7,500 value provision of the Ordinance was indefensible, McCrory’s City Council amended it to remove the value-banishment provision within two days of Plaintiff’s original Complaint, but not before spending months pressuring Mr. Watlington and Ms. Hollaway to leave town.
6. By and through their attorneys, Plaintiffs seek the vindication of their rights, injunctive relief preventing future enforcement of the Trailer-Banishment Ordinance to allow them quiet enjoyment of their property, monetary relief for the injuries they suffered, and a declaration that the Trailer-Banishment Ordinance is unconstitutional. Defendants cannot banish residents from the City simply because they are poor.
Nature of the Action 7. The City of McCrory enacted an ordinance prohibiting the placement of mobile homes within the City unless the owners showed — at their own cost — that the trailers have a value of at least $7,500. See ECF 1-1, Trailer-Banishment Ordinance, Section 2.C.6. Owners could be fined between $50 and $500 per day for violation of the ban, and the Police Chief, Defendant Paul Hatch, ordered Plaintiffs to leave the City, effectively banishing them from the place they call home. Plaintiffs seek declaratory and injunctive relief and damages to compensate injuries suffered.
Jurisdiction and Venue 8. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., the Fourteenth Amendment, and the Eighth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
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9. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. Parties
10. Plaintiff David Watlington is a 31-year-old resident of McCrory. He lives with his fiancé, Lindsey Hollaway, in McCrory in a mobile home valued at less than $7,500. He has been ordered to leave McCrory by the Police Chief because of the value of his home.
11. Plaintiff Lindsey Hollaway is a 30-year-old resident of McCrory. She works 8-to 10-hour shifts at the Worldwide Label facility in McCrory, earning approximately $13,000 per year. She relies on a 1992 Honda Accord for transportation. Ms. Hollaway lives with her fiancé, David Watlington, in McCrory in a mobile home valued at less than $7,500. She has been ordered to leave McCrory by the Police Chief because of the value of her home.
12. Defendant City of McCrory is a local government entity organized under the laws of the State of Arkansas.
13. Defendant Paul Hatch, in his official capacity as Police Chief, is an official of Defendant City of McCrory in his role as enforcer of the Trailer-Banishment Ordinance.
14. Under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), Defendant City of McCrory and all City officials are liable for their unconstitutional policies and practices.
15. Under Ex Parte Young, 209 U.S. 123 (1908), the Police Chief in his official capacity can be enjoined from enforcing any unconstitutional local laws. Any ordinance requiring or permitting wealth-based banishment without due process of law is unconstitutional.
Factual Allegations A. Defendants Sought to Banish from the City Those Who Are Too Poor to Live in
Homes Worth $7,500 or More 16. On September 12, 2016, the City Council of the City of McCrory passed Ordinance No. 306 (the “Trailer-Banishment Ordinance” or the “Ordinance”), that amended
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“Ordinance 151A Regulating Trailers, Mobile Homes, Manufactured Housing, Trailer Parks, and Other Purposes.”
17. The Ordinance stipulated, “No trailer shall be put in the City of McCrory unless it has a value established by a certified appraiser or a bill of sale of not less than seven thousand five hundred ($7,500.00). The owner is responsible for any cost to obtain these documents.”
18. The Ordinance provided that “[a] violation of [the] ordinance shall be punishable by a fine of not less than $50.00 nor more than $500.00 and each day a violation exists shall constitute a separate offense.”
19. The Ordinance contained no defense based on non-willfulness and no mens rea or intent requirement, meaning that simply being too poor to afford a more expensive home is sufficient for a violation.
20. Ms. Hollaway is living with Mr. Watlington at 502 Poplar Avenue in McCrory in the mobile home valued at less than $7,500.
21. Mr. Watlington and Ms. Hollaway are an engaged couple. They have been living together for about two-and-a-half years.
22. Mr. Watlington bought the used mobile home in McCrory in October of 2015. Mr. Watlington made some improvements to the mobile home and began living in it in November of 2015 in Morton, Arkansas.
23. In 2016, Mr. Watlington and Ms. Hollaway moved their mobile home to its current lot in McCrory.
24. Mr. Watlington moved the trailer from Morton to McCrory, hooking it up next to his uncle’s residence at 502 Poplar Avenue. When his uncle left, he took over the lease, beginning on or about September 6, 2016.
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25. The couple moved back to McCrory not only to be near Ms. Hollaway’s place of work, but also to be closer to friends and family. Mr. Watlington’s four children — ranging in age from five to thirteen — live in McCrory. His aunt and uncle, who raised him, live about 30 minutes away, while his father lives about 10 minutes away. Mr. Watlington also has extended family, including his grandparents, in nearby Wynne. Ms. Hollaway's parents and sisters live half-an-hour away while her grandparents are about an hour up the road in Barton.
26. The lot meets McCrory’s requirement for a trailer site. 27. Mr. Watlington and Ms. Hollaway’s home is worth approximately $1,500. 28. Due to their limited income, Mr. Watlington and Ms. Hollaway cannot afford a more expensive home. 29. Mr. Watlington and Ms. Hollaway pay $100 per month to the owner of the land where their mobile home is parked. They regularly pay their rent on time. Their landlord has no desire to lose them as tenants. 30. As long as Mr. Watlington and Ms. Hollaway keep paying rent, their landlord will continue to welcome them as tenants. The landlord has identified no health concerns related to Plaintiffs’ tenancy. 31. At the time when Mr. Watlington and Ms. Hollaway moved into the mobile home in McCrory, there was no ordinance banning trailers valued at less than $7,500. 32. When the McCrory City Council began discussing the ordinance to ban trailers under $7,500, Defendant Paul Hatch specifically mentioned a trailer on Poplar Avenue, among others, to justify the need for the Ordinance. Woodruff County Monitor (Aug. 17, 2016), available at http://www.wcmla.net/guide/woodruff-county-monitor-leader-advocate-08-17-2016e-edition/1.php (last visited June 16, 2017).
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33. The Ordinance was passed as an “emergency” measure to circumvent public comment.
34. Shortly after the Ordinance was passed, Defendant Hatch told Mr. Watlington that he and Ms. Hollaway would have to leave town because their trailer was not worth $7,500.
35. On December 7, 2016, the Police Chief told Mr. Watlington that Plaintiffs had to leave the county “after the holidays” because their home was not compliant with a recentlypassed ordinance.
36. At the time, Mr. Watlington was unemployed and not earning any income. 37. Ms. Halloway earns $255 per week working at Worldwide Label through a staffing agency called Urban Staffing Solutions. 38. Mr. Watlington and Ms. Holloway have numerous family members who live in the area. Mr. Watlington’s four children (ages 5, 13, and 9-year-old twins) from a previous relationship live in McCrory and he would like to have a relationship with them. Mr. Watlington’s parents, Ms Hollaway’s parents, multiple aunts and uncles, and each of their grandparents all live within a short drive from their home. 39. Because of their financial situation and Mr. Watlington’s inability to drive, they rely on family for support. B. Defendants’ Wealth-Based Banishment Scheme Infringed upon Plaintiffs’ Fundamental Right Not to Be Forcibly Expelled from Their Home 40. The right not to be expelled from one’s home is a fundamental right, connected to a long line of established fundamental rights, all of which underscore a basic liberty interest in pursuit of living: the right to marriage, the right to procreation, the right to family planning decisions, the right to intimate relations, the right to familial association, the right to educate one’s children, and the right not to have one’s home taken without just compensation.
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41. After due process of law and lawful conviction for a crime, some cities and counties restrict residents’ movement as part of an ensuing pardon, parole, probation, or registration as a sex offender.
42. The right to remain in one’s chosen city of residence loses its fundamental nature only in the context of particular criminal convictions.
43. In McCrory, the Trailer-Banishment Ordinance allowed the banishment of individuals whose only “crime” is being too poor to afford a mobile home worth $7,500 or more. C. Defendants’ Wealth-Based Banishment Scheme Was Not Rationally Related to Any
Legitimate Government Interest 44. No legitimate government interest was rationally served by the requirement that every mobile home in the City be worth at least $7,500. 45. The Trailer-Banishment Ordinance lists four justifications for its passage: (1) relief of overcrowding, (2) promotion of orderly growth, (3) health, and (4) notification to builders. 46. Each of these purported justifications was pretext for animus and banishment based on wealth-status. The Equal Protection Clause forbids such wealth-based discrimination. Berry v. City of Little Rock, 904 F. Supp. 940, 948 (E.D. Ark. 1995), aff'd, 94 F.3d 648 (8th Cir. 1996) (“The states are prohibited by the Equal Protection Clause from discriminating between ‘rich’ and ‘poor’ as such in the formation and application of their laws”). 47. The Ordinance provided no basis for the minimum required cost of a trailer home, instead stating that its justifications are based on “a need to regulate the placement of trailers.” No justification was given for the wealth-based provision. i. The $7,500 Value Requirement Bore No Relationship to the Alleged Problem
of “Overcrowding”
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48. There is no evidence of an existing or anticipated problem of overcrowding in McCrory.
49. The 2013 population of McCrory was 1,679 people. The population has decreased since 2010, when it was 1,728. In fact, there has been an overall decline in the population of McCrory at least since 1990, when there were 1,887 residents in the city.
50. McCrory is located an hour-and-a-half away from the nearest major airport and is surrounded by other small towns with small populations.
51. McCrory is more than an hour-and-a-half from Little Rock, the state’s capital. 52. Patterson, the town closest to McCrory, has a population of only 437 people. 53. McCrory is 2.394 square miles in land area. Its population density is approximately 722 people per square mile. Little Rock, the state’s most populous city, has a population density of over 1,700 people per square mile, more than twice that of McCrory. 54. Even if overcrowding exists, the $7,500 value requirement did not “prevent crowding” because this goal is already served by the “Space Size” provision regulating trailer parks: “Each trailer shall have a minimum lot size of 1,500 square feet, with a minimum width of 40 feet at the access line. Maximum density — 6 sites/acre of park.” 55. Any additional overcrowding problems can and should be addressed through zoning measures, not wealth-based banishment. ii. The $7,500 Value Requirement Did Absolutely Nothing to “Encourage
Orderly Growth” 56. The phrase “encourage orderly growth” has no discernable meaning within the context of the Ordinance. 57. It is illogical to claim that a restriction can encourage “growth” of any kind. If growth is to be encouraged, it must first be allowed.
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58. A wealth-based banishment provision in particular cannot encourage growth, because it excludes rent-paying residents from living in the City.
59. Because the size of the city limits is fixed, encouraging growth would increase the population and thus increase the population density. This purported goal is inconsistent with McCrory’s other purported goal of limiting crowding and thus decreasing density.
60. By forcing poor residents who live in mobile homes out of the city, Defendants are discouraging growth. “Encourage orderly growth” is a euphemism for “get rid of the poor.”
iii. The $7,500 Value Requirement Did Nothing to Advance Health 61. The $7,500 value requirement does not prevent undesirable health conditions, because monetary value simply is not an adequate proxy for health. 62. Any number of expensive alterations to a mobile home could increase its monetary value without increasing its health rating. 63. A gold-plated shower would increase the value of a mobile home without making it healthier. 64. Marble countertops would increase the value of a mobile home without making it healthier. 65. A surround-sound stereo system would increase the value of a mobile home without making it healthier. 66. If Defendants had wanted to advance health in mobile homes, they would have chosen requirements actually related to health, such as prohibiting the build-up of sewage or mandating working smoke detectors. 67. Requiring that a mobile home be worth at least $7,500 serves no health purpose. iv. The Ordinance Bore No Relation to Notifying Builders
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68. The Ordinance provides no notification to builders regarding any construction regulations or anything else relevant to their trade.
69. Builders do not need to be notified that the City’s poorest residents are being banished from the City.
70. No additional building is required by banishing residents like Plaintiffs. D. McCrory’s Mobile Home Banishment Ordinance Unconstitutionally Criminalized a
State of Being — The State of Being Poor 71. The banishment Ordinance punished people whose only crime is being too poor to afford a mobile home worth $7,500 or more. 72. It is unconstitutional to criminalize a status, such as poverty. 73. Indigent residents like Plaintiffs could not avoid a violation of the statute. Through no intent, will, or desire, Plaintiffs only “crime” was living in a home worth less than $7,500. 74. Plaintiffs are living well below the poverty line. Their limited income covers basic human needs like food, rent, transportation to work, and other necessities. 75. Because Plaintiffs cannot afford a more expensive home, they were punished solely for their poverty status. 76. Defendants may not impose fines or banishment on anyone for the mere status of being poor. E. The Fines for Violating McCrory’s Mobile Home Banishment Ordinance Were Excessive 77. Defendants’ enforcement of the Ordinance through a fine of not less than $50 nor more than $500 each day is an excessive fine for the purported offense of being poor. 78. Under the fine structure, Plaintiffs could have been liable for $7,500 in fines after
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just 15 days in McCrory.

79. By stipulating that violations of the Ordinance are “punishable” by fines, the City

of McCrory reveals the punitive nature of the Ordinance’s enforcement.

80. The Ordinance sets a huge range of $50 to $500 for the daily fine. It provides no

guidance on how fines in individual cases will be determined within that range. This left

violators extremely vulnerable to abuse of discretion by enforcers, who are not accountable to

any sort of oversight or appeals process.

81. The Ordinance does not set a maximum for the total amount in fines that can be

imposed upon violators of the Ordinance. Every day is a separate offense subject to a new fine.

The only clear way for Plaintiffs to stop the fines was to leave the city.

82. Violators faced fines of $350 to $3,500 per week if they were unable or unwilling

to leave the city. Even at the minimum daily fine amount of $50, after only five months, the total

amount in fines would reach the $7,500 minimum trailer value required by the Ordinance.

83. The people targeted by this Ordinance, those living in mobile homes worth less

than $7,500, are necessarily some of McCrory’s poorest residents. Fining residents for living in

homes of insufficient value amounts to an impermissible punishment for being poor.

84. Poverty is not a crime. Any fine for the status of being poor is impermissible,

thus rendering a fine in any amount disproportionate to the crime under the Eighth Amendment.

85. The Ordinance’s punitive fee structure has a sole purpose: to force poor residents

to leave the city. The mandated excessive fines violate the Eighth Amendment.

F. Defendants’ Wealth-Based Banishment Scheme Violated Procedural Due Process by Providing No Process at All

i.

The Fines and Banishment Threatened by the Ordinance Against Residents

Who Did Not Comply with the $7500 Value Requirement Amounted to

Punishments and Therefore Could Not Be Imposed Without Due Process of

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Law 86. Where a statute employs a sanction as a punishment, it must afford procedural safeguards guaranteed by the Fifth and Sixth Amendments to the Constitution. 87. The text of the Ordinance makes its punitive intent clear. It declares violations of its provisions “punishable” by hefty fines. 88. The Ordinance does not explain who is responsible for enforcing its provisions, such as identifying violations or determining the amount of the mandated fine. 89. Here, Defendant Hatch, the McCrory Police Chief, enforced the ordinance against the Plaintiffs, demonstrating the criminal nature of the Ordinance. 90. Violators of the $7500 value requirement faced one of two consequences: They could pay a fine of $50 to $500 for every day that they were in violation, or they could be forced out of the city. Both of these consequences involve affirmative disability and restraint. 91. Defendants attempted to prohibit Plaintiffs from living in the only home they can afford. 92. Mr. Watlington was restrained from living in the same city as his four children. He was restrained from living in the same county as his parents and other close relatives who can help him with transportation. 93. Ms. Hollaway was being restrained from living in the same city as her current place of employment. 94. Banishment is a form of punishment so extreme that the Arkansas Constitution prohibits it at the state level. Banishment as a regulatory measure is inconceivable; it is punitive by its very nature, and banishment has historically been regarded as punishment. 95. Fines — especially in the excessive range allowed by the Ordinance — are also
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historically regarded as punishment. 96. The fine-based enforcement scheme of the Ordinance is meant to deter because it
imposes a new fine for every day of noncompliance. This makes it virtually impossible for anyone to remain noncompliant for longer than a short period.
97. The severity of the fines serves both a retributive and deterrent purpose. The fines are so high that they punish indigent residents for remaining in McCrory and deter future indigent residents from moving into the City.
98. The Trailer-Banishment Ordinance threatened all poor mobile home residents regardless of their financial ability to increase the value of their homes, the hardship they may face in being forced to move, or any other relevant factors. This blanket, wealth-based application indicates retributive effect.
99. The sanctions imposed by the Ordinance were not rationally related to any government interests beyond retribution, deterrence, and discrimination.
100. Banishment is an impermissible, irrational, and excessive measure unrelated to the purported government interests, and the fine scheme is excessive in that it is both unlimited and vulnerable to abuse of discretion.
ii. The Banishment Ordinance Provides No Criminal Process at All 101. As a criminal provision that imposes punishment, the Ordinance’s lack of any criminal process whatsoever is unconstitutional. 102. The Ordinance does not require indictment by a grand jury. 103. The Ordinance does not guarantee a right to counsel for those who face banishment or fines. 104. The Ordinance does not require a hearing before banishment or fines are imposed.
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105. The Ordinance does not provide for appeal of an enforcer’s decision to banish or fine a resident.
iii. Even If the Trailer-Banishment Ordinance’s Sanctions Were Civil, It Would Still Lack Sufficient Process to Deprive Violators of a Protected Property Interest
106. Assessing fines or forcing banishment both implicate “property rights,” and therefore due process of law is required before the City can force a citizen to leave because his or her home is of insufficient value.
107. A leasehold is a property right that would be destroyed if the tenant were forced to leave the city.
108. The Ordinance makes no provision for due process of law. 109. The Ordinance has no specified notice requirement. 110. The Ordinance has no mention of any opportunity to remediate by increasing the value of the mobile home. 111. The Ordinance has no mention of any right to appeal. 112. The City of McCrory cannot deny a person’s right to choose to live within the city when that person’s only offense is being poor. This amounts to banishment without any safety justification. G. Plaintiffs Incurred Monetary and Emotional Damages as a Result of Defendants’ Enforcement of the Trailer-Banishment Ordinance 113. As a direct result of Chief Hatch’s enforcement of the Trailer-Banishment Ordinance, Plaintiffs were forced to expend a significant portion of their limited funds on a search for a new place to live. 114. Plaintiffs suffered emotional distress due to the fear and embarrassment of being forced out of their home.
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115. After Defendant Hatch’s warning to Mr. Watlington, Plaintiffs desperately attempted to find a new home in a sparsely-populated region, a difficult task that cost them at least several hundred dollars.
116. Plaintiffs drove a total of approximately 1,000 miles in their search for a new place to live, incurring costs for gas and repair of two tire blowouts while they were driving around the state searching for a new place to live.
117. After Defendant Hatch gave his ultimatum in December 2016, the search became more urgent and Ms. Hollaway lost two days’ wages from missed work.
118. Since the passage of the Ordinance, Plaintiffs suffered approximately $200 in lost wages, more than $600 in transportation expenses searching for a new home, and costs in replacing two tires.
119. Additionally, Defendants’ passage and enforcement of the Trailer Banishment Ordinance was part of a concerted campaign to force Mr. Watlington and Ms. Hollaway out of McCrory, which has included police intimidation, arrests, and prolonged jail time due to deliberate administrative delay.
120. During the time Plaintiffs have lived in and around McCrory, the police have ticketed or arrested Mr. Watlington for twenty-one infractions and misdemeanors. Many of these charges have been immediately dismissed, and Mr. Watlington has never been charged with a violent offense or a felony.
121. On information and belief, the Trailer Banishment Ordinance was not enforced against any other individuals in McCrory.
122. Given Plaintiffs’ reasonable belief of targeted harassment, Defendants’ enforcement of the Trailer Banishment Ordinance caused significant emotional distress in
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Plaintiffs. Mr. Watlington has incurred medical expenses as a result of his emotional distress. 123. Due to the overwhelming fear of arbitrary arrests and banishment, Mr. Watlington
experienced a breakdown and had to spend three hours with a counselor. The counselor prescribed Mr. Watlington medicine used to treat anxiety and referred him to a specialist who prescribed him blood pressure medication, as his blood pressure had gone up since his conflict with McCrory authorities began.
124. In addition to severe stress, Mr. Watlington also experienced extreme embarrassment as a result of the wealth-based banishment ordinance. Mr. Watlington moved to McCrory to work in the community and spend time with friends and family. After the passage of the ordinance, he felt he was “too poor” to live in his home town and, despite the fact that he had never committed a violent offense in his life, was somehow seen as the town menace. His inability to find work undermined his sense of self-worth, and he worried about how his legal troubles would affect his children’s perception of him. He was embarrassed to be so fearful of authorities.
Claims for Relief Count One: Defendants Violated Plaintiffs’ Substantive Due Process Rights by Banishing Them Because They Live in a Mobile Home Valued at Less than $7,500.
125. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
126. The Fourteenth Amendment’s Substantive Due Process Clause prohibits Defendants from banishing Plaintiffs from their home simply because it is worth less than $7,500. Plaintiffs have a fundamental right to be free from government expulsion absent exceptional circumstances such as conditional parole, pardon, or regulatory sex-offender registration requirements. Defendants violated this right by enforcing an ordinance against the
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Plaintiffs in order to banish them from the City. Count Two: Defendants Violated Plaintiffs’ Equal Protection Rights by Discriminating on the Basis of Wealth Status Without Any Rational Connection to a Legitimate Government Interest.
127. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
128. The Equal Protection Clause of the Fourteenth Amendment prohibits discrimination that is not rationally related to a legitimate government interest. There is no legitimate government interest that is rationally served by the requirement that every mobile home in the City be worth at least $7,500. The Trailer-Banishment Ordinance lists four justifications for its passage: (1) relief of overcrowding, (2) promotion of orderly growth, (3) health, and (4) notification to builders. Each of these purported justifications is pretext for animus and banishment based on wealth-status. The Ordinance says nothing about justifying the minimum required cost of a trailer home, instead stating that its justifications are based on “a need to regulate the placement of trailers.” No justification is given for the wealth-based provision, nor can one reasonably be given. Count Three: Defendants Violated the Constitution’s Proscription Against Criminalization of Status by Criminalizing Poverty.
129. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
130. The United States Constitution prohibits the criminalization of a status, such as poverty. The Trailer-Banishment Ordinance unconstitutionally penalized people simply for being poor. Count Four: Defendant City of McCrory’s Ordinance Violated the Eighth Amendment’s Prohibition Against Excessive Fines on Its Face.
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131. Plaintiffs incorporate by reference each and all of the previous allegations in this Complaint.
132. The Eighth Amendment prohibits the City of McCrory from imposing excessive fines on residents that are disproportionate to the alleged misconduct. McCrory’s ordinance provided for fines of up to $500 per day for living in a trailer with an insufficient appraised value, thereby imposing an excessive punishment simply for being poor. Count Five: Defendants Violated Plaintiffs’ Procedural Due Process Rights Because They Attempted to Banish Them from McCrory Without Any Procedural Safeguards at All.
133. Plaintiffs incorporate by reference each and all of the previous allegations in this complaint.
134. The Fourteenth Amendment’s procedural due process clause requires that no person be restrained or deprived without proper procedural safeguards, which include in the criminal context the protections of the Fifth, Sixth, and Eighth Amendment of the Bill of Rights. In a civil framework, the government must provide, at a minimum, notice and hearing before taking adverse action. Defendants violated Plaintiffs’ procedural due process rights by trying to force them to move from McCrory with no process whatsoever, including lack of formal notice, a hearing, a meaningful opportunity to be heard and present a defense, or appeals process.
Request for Relief WHEREFORE, Plaintiffs request that this Court issue the following relief: a. A declaratory judgment that the Defendants violated Plaintiffs’ constitutional
rights by attempting to banish them from the City of McCrory solely because their mobile home is worth less than $7,500. b. An order declaring that McCrory’s Trailer-Banishment Ordinance was facially unconstitutional because it enacts a wealth-based banishment scheme. c. An order and judgment preliminarily and permanently enjoining Defendants from enforcing their unconstitutional wealth-based banishment scheme against
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Plaintiffs, including all efforts to force Plaintiffs to leave McCrory.
d. An order and judgment preliminarily and permanently enjoining Defendants from banishing or imposing fines upon any person due to his or her residence in a mobile home valued at less than $7,500.
e. A judgment compensating Plaintiffs for the damages that they suffered as a result of Defendants’ unconstitutional and unlawful conduct.
f. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems proper.
Respectfully submitted,
____________________________________ Phil Telfeyan Attorney, Equal Justice Under Law 601 Pennsylvania Avenue NW South Building — Suite 900 Washington, D.C. 20004 (202) 505-2058 ptelfeyan@equaljusticeunderlaw.org
John D. Coulter (AR Bar Number 98148) McMath Woods P.A. 711 West Third Street Little Rock, AR 72201 (501) 396-5400 john@mcmathlaw.com
Attorneys for Plaintiffs David Watlington and Lindsey Hollaway
CERTIFICATE OF SERVICE
I certify that on June 16, 2017, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notice of such filing to all attorneys-of-record in this case.
/s/ Phil Telfeyan Attorney for Plaintiffs
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 Case 2:17-cv-00002-DPM Document 22 Filed 05/23/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION

DAVID WATLINGTON and LINDSEY HOLLAWAY, on behalf of themselves and others similarly situated

PLAINTIFFS

v.

No. 2:17-cv-2-DPM

CITY OF McCRORY, ARKANSAS and PAUL HATCH, in his Official Capacity as the Police Chief of McCrory, Arkansas

DEFENDANTS

ORDER

The part of the ordinance that Watlington and Hollaway objected to has

now been removed, so it can't be enforced against them or anyone else.

Compare Horne v. Firemen's Retirement System ofSt. Louis, 69 F.3d 233, 235 (8th

Cir. 1995). Unlike Mr. Horne, Watlington and Hollaway don't face possible

enforcement of an existing law. The City of McCrory is entitled to a

presumption of good faith. Federation ofAdvertising Industry Representatives,

Inc. v. City of Chicago, 326 F.3d 924, 929-930 (7th Cir. 2003). There's no

indication of record whatsoever that McCrory is bent on finding some way to

punish poor folks who live in trailers, or plans to amend the ordinance in an

attempt to do so, if this case goes away. Ibid.; Bench Billboard Company v . City

of Cincinnati, 675 F.3d 974, 981-82 (6th Cir. 2012).

Case 2:17-cv-00002-DPM Document 22 Filed 05/23/17 Page 2 of 3
Watlington and Hollaway are right that Chief Batch's order in early December 2016 that they had to move after the holidays was certainly the start of enforcement. NQ 1atii28. But things went no further. The holidays ended on January 3rd; this suit was filed on January 5th; the next day, this Court scheduled a TRO hearing for January 12th; and McCrory repealed the challengedprovisiononJanuarylOth. WatlingtonandHollawaydidn'tmove out of McCrory, though they now say they made some preliminary efforts in that direction, incurred some related expenses, and had to live with some uncertainty. NQ 18 at 7. Watlington and Hollaway also point to the high-dollar fines for violating the ordinance; they say these fines (as much as $500 a day) could harm low-income residents and invite arbitrary penalties. But Watlington and Hollaway were never fined. While their request for relief mentions compensatory damages in passing, NQ 1at21, no damage facts were pleaded beyond injury from the alleged constitutional violations themselves.
McCrory and Chief Hatch are correct on this much: The core of the parties' dispute is resolved, and there's no occasion for an injunction. But the general rule is that a claim for compensatory damages actually incurred keeps an otherwise resolved dispute alive for adjudication on the merits. E.g.,
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Case 2:17-cv-00002-DPM Document 22 Filed 05/23/17 Page 3 of 3
Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 7-9 (1978); 13C WRIGHT AND MILLER, FEDERAL PRACTICE & PROCEDURE§ 3533.3 at 2-7 (3d ed. 2008). Watlington and Holloway asked for damages but gave no details in their complaint. They now argue some damage details. NQ 18 at 7. Under Rule 15(c), they're entitled to amend their complaint and plead the now-argued facts about actual damages incurred while the original ordinance was in force. In the circumstances, they must plead With particularity. And a verified complaint, or supporting affidavits, would be particularly helpful to everyone in evaluating what's really left of this case. Any amended complaint due by 23 June 2017. If none is filed, the Court will, on its own, dismiss for lack of subject matter jurisdiction. Motion, NQ 16, denied without prejudice.
So Ordered.
D.P. Marshall Jr. United States District Judge
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 Case 2:17-cv-00002-DPM Document 31 Filed 08/03/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION

DAVID WATLINGTON and LINDSEY HOLLAWAY, on behalf of themselves and others similarly situated

PLAINTIFFS

v.

No. 2:17-cv-2-DPM

CITY OF McCRORY, ARKANSAS and PAUL HATCH, in his Official Capacity as the Police Chief of McCrory, Arkansas

DEFENDANTS

ORDER

1. The City of McCrory and Chief Hatch move again to dismiss

Watlington and Hollaway's case. They say the case is moot-the

complained-of city ordinance no longer exists. And they say the complaint

fails to state a claim- the ordinance was never enforced against Watlington

and Hollaway, so it didn't deprive them of any constitutional right.

2. Although Watlington and Hollaway's request for injunctive relief is

moot, they also seek some damages. Ng 25at15-16, 20. This claim saves their

case from mootness. E.g., Forbes v. Arkansas Educational Television

Communication Network Foundation, 982 F.2d 289, 290 (8th Cir. 1992) (per

curiam); NQ 22 at 2-3.

Case 2:17-cv-00002-DPM Document 31 Filed 08/03/17 Page 2 of 2
3. The Court already concluded that Chief Hatch's warning was the
beginning of enforcement. Ng 22 at 2. Watlington and Hollaway say he told
them they'd have to move after the holidays because of a recently enacted
ordinance. Ng 25 at ifif 34-35. And now they allege particularized facts about
damages caused by this enforcement of an allegedly unconstitutional ordinance. That's enough.
Watlington and Hollaway didn't file a verified complaint or attach
affidavits as directed, Ng 22 at 3, but they did allege they lost $200 in wages
and more than $600 in transportation expenses looking for a new home. Ng 25
at irir 113, 115-18. Watlington and Hollaway have sufficiently stated a claim
for approximately $800 in damages caused by Hatch's beginning to enforce the ordinance against them. That claim, and only that claim, is what the rest of the case is about.
Motion, Ng 26, denied. So Ordered.
D.P. Marshall Jr. United States District Judge
3 Av9u1vsf ,:Z.O17
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