The United States Court of Appeals for the Ninth Circuit concluded that the Fourth and Fourteenth Amendments to the United States Constitution protect the unattended but not abandoned property of homeless persons from government seizure and immediate destruction. (Lavan v. City of Los Angeles (--- F.3d ----, C.A.9 (Cal.), September 5, 2012).
Nine homeless individuals (“Residents”) who live in the “Skid Row” district of Los Angeles brought a lawsuit against the City of Los Angeles (“City”) after their possessions were seized and destroyed. Residents stored their personal possessions including medications, personal identification documents, family memorabilia, personal care items, sleeping bags, blankets, and cell phones in mobile containers provided to them by social service organizations. Some of these containers were mobile shelters known as EDARs and some were carts.
On separate occasions in February and March 2011, Residents stepped away from their personal property and left their possessions on the sidewalks so they could perform tasks such as taking a shower, eating, using the restroom, or attending court. Residents did not abandon their property but instead just left it unattended. City employees seized and summarily destroyed the Residents’ EDARs and carts along with all of their personal belongings in the containers. According to the undisputed facts, “City did not have a good-faith belief that [Residents’] possessions were abandoned when it destroyed them.” On many occasions, Residents and other persons were present during the seizures and told City employees that the property was not abandoned and asked City not to destroy it. City employees took and destroyed the property even if they were informed that the property was not abandoned.
City does not deny that it has a policy that directs employees to seize and destroy the unabandoned property of homeless persons. City claims that its policy is authorized by Los Angeles Municipal Code (“LMAC”) § 56.11, which provides, “No person shall leave or permit to remain any merchandise, baggage or any article of personal property upon any parkway or sidewalk.”
Residents allege in their lawsuit that City’s practice of summarily confiscating and destroying the unabandoned property of homeless persons violates the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. The trial court issued an injunction that bars City from seizing property in Skid Row without an objectively reasonable belief that the property “is abandoned, presents an immediate threat to public health or safety, or is evidence of a crime or contraband.” Also, the injunction bars City “[a]bsent an immediate threat to public health or safety,” from destroying property “without maintaining it in a secure location for a period of less than 90 days.”
The court of appeals denied City’s appeal. The court held “that the Fourth and Fourteenth Amendments protect homeless persons from government seizure and summary destruction of their unabandoned, but momentarily unattended, personal property.”
The court noted that the question before it was whether the Fourth Amendment protects the Residents’ unabandoned property from unreasonable seizures not whether Residents had a legitimate expectation of privacy in the property they left unattended on a public sidewalk. Two types of expectations are protected by the Fourth Amendment, one involve searches and the other seizures. “A ‘search’ occurs when the government intrudes upon an expectation of privacy that society is prepared to consider reasonable.” A seizure takes place “when there is some meaningful interference with an individual’s possessory interest in that property.” Contrary to City’s assertion, in order to enjoy the protection of the Fourth Amendment, Residents were not required to show a reasonable expectation of privacy against seizures of their unabandoned property. The correct constitutional standard to be applied “is whether there was ‘some meaningful interference with [Residents’] possessory interest in the property.’”
City maintains that Residents violated LAMC § 56.11 by leaving their property on the sidewalks. However, “[v]iolation of a City ordinance does not vitiate the Fourth Amendment’s protection of one’s property.” The court concluded that when City seized and destroyed Residents’ unabandoned shelters, papers, and personal effects, it meaningfully interfered with their possessory interests in that property. The court stated, “No more is necessary to trigger the Fourth Amendment’s reasonableness requirement.” City did not argue that its summary destruction of Residents’ property was reasonable under the Fourth Amendment. Instead, City argued that the Fourth Amendment did not apply to the seizure. The court of appeals rejected City’s argument and found the Fourth Amendment applied to City’s seizure of Residents’ property.
The Fourteenth Amendment mandates “that no State shall ‘deprive any person of life, liberty, or property, without due process of the law.’” Residents owned their possessions and had not abandoned them. Therefore, Residents maintained a protected property interest in their personal property. The court noted that the “government may not take property like a thief in the night; rather it must announce its intentions and give the property owner a chance to argue against the taking.” This rule applies whether the property that is sought to be taken “is an Escalade or an EDAR, a Cadillac or a cart.”
Regardless of whether Residents violated a city ordinance, their property interest was not eliminated. Even if City had seized Residents’ property in accordance with the Fourth Amendment, due process required that City “take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return.” LAMC § 56.11 does not provide for forfeiture, but even if it did, City would be required to provide procedural protections before it could permanently deprive Residents of their possessions.
The court held, “Because homeless persons’ unabandoned possessions are ‘property’ within the meaning of the Fourteenth Amendment, the City must comport with the requirements of the Fourteenth Amendment’s due process clause if it wishes to take and destroy them.” Here, City failed to comport with the requirements of due process. The trial court properly enjoined City from confiscating and summarily destroying unabandoned property on Skid Row.
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Jeffrey L. Massey | 916.321.4500