Constitution protects the homeless too

By Erwin Chemerinsky

The 9th U.S. Circuit Court of Appeals' recent decision that the city of Los Angeles could not seize and immediately destroy the possessions of the homeless is clearly right as a matter of constitutional law and reflects some of the most important attributes we should expect of judges: compassion and common sense.

In Lavan v. City of Los Angeles, 2012 DJDAR 12545 (9th Cir. Sept. 5, 2012), the 9th Circuit affirmed a preliminary injunction issued by the federal district court which prevents the city from seizing property in Skid Row absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public health or safety, or is evidence of a crime, or contraband. The injunction also prevents the city from destroying the property, absent an immediate threat to public health or safety, without maintaining it in a secure location for a period of not less than 90 days.

The plaintiffs in the lawsuit are homeless individuals who live on Skid Row in Los Angeles. Like many homeless individuals, they store their personal possessions - including personal identification documents, family memorabilia, birth certificates, medications, family memorabilia, toiletries, cell phones, sleeping bags and blankets - in mobile containers provided to homeless persons by social service organizations. Often these are EDARs - small, collapsible mobile shelters provided to homeless persons by Everyone Deserves a Roof, a nonprofit organization.

Los Angeles has an ordinance which provides: "No person shall leave or permit to remain any merchandise, baggage or any article of personal property upon any parkway or sidewalk." Los Angeles Municipal Code Section 56.11. Signs were posted throughout the Skid Row area warning that street cleaning would be conducted Monday through Friday between 8:00 a.m. and 11:00 a.m. and that any unattended property left at the location in violation of the ordinance would be disposed of at the time of clean-up.

The case arose because of instances in which city employees seized and destroyed the plaintiffs' possessions when the plaintiffs stepped away from their personal property, leaving it on the sidewalks, to perform necessary tasks such as showering, eating, using restrooms or attending court. City employees did this even though they did not believe that the possessions had been abandoned; on some of the occasions where this occurred, others were present and explained that the owner had not abandoned the property, but was just away for a brief time.

The 9th Circuit, in an opinion by Judge Kim Wardlaw, found that the city violated both the Fourth Amendment and the due process clause of the 14th Amendment. As for the former, the court explained that the city's action was a seizure of the property and did not meet the reasonableness requirement imposed by the Fourth Amendment. In balancing the competing interests, the court found that the harm to the individuals in the loss of all of their possessions outweighed the city's need to destroy the property in cleaning the streets.

As for due process, the court said that the "case concerns the most basic of property interests encompassed by the due process clause: Appellees' interest in the continued ownership of their personal possessions." The government should not be able to destroy any person's property without providing due process.

Judge Consuelo Callahan, in dissent, argued that there is not a Fourth Amendment violation because individuals have no reasonable expectation of privacy in their unattended property and there is no due process violation because individuals do not have a property interest in unattended property. But this is right only if the unattended property is regarded as having been abandoned by the owner. It is simply not correct to assume that a homeless person has abandoned his or her property by leaving it unattended. In many instances, others there told the police that the owner was only temporarily away to use the restroom or get food or get medical care.

Even if police have a reasonable belief that the property has been abandoned, there is no justification for summarily destroying it. The police should be required to keep it for a period of time to allow it to be claimed. As Judge Wardlaw noted: "As we have repeatedly made clear, '[t]he 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 simple rule holds regardless of whether the property in question is an Escalade or an EDAR, a Cadillac or a cart. The city demonstrates that it completely misunderstands the role of due process by its contrary suggestion that homeless persons instantly and permanently lose any protected property interest in their possessions by leaving them momentarily unattended in violation of a municipal ordinance. As the district court recognized, the logic of the city's suggestion would also allow it to seize and destroy cars parked in no-parking zones left momentarily unattended."

The 9th Circuit's ruling does not prevent the city from cleaning the streets of Skid Row. Nor does it prevent the city from seizing contraband or anything hazardous that presents an immediate threat to public health or safety. Ultimately, the district court and the 9th Circuit simply held that a homeless person's possessions cannot be destroyed just because they have been left temporarily unattended.

In this way, it is a decision based on elemental human decency. None of us can imagine the day-to-day existence of those who are homeless and live on Skid Row. But we can imagine the horror of finding that all of our possessions in the world were destroyed by the police. This is not any less so for a homeless person. The Constitution protects everyone's property from seizure or destruction. This includes the homeless too.

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