Metropolitan News-Enterprise


Thursday, September 6, 2012


Page 1


Court Upholds Order Against Seizure of Property From Homeless




The City of Los Angeles cannot generally seize property left temporarily unattended on sidewalks by Skid Row’s homeless residents, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a 2-1 decision, the panel affirmed a preliminary injunction granted by U.S. District Judge Philip Gutierrez of the Central District of California in June of last year. The injunction provides that when a homeless person in the Skid Row area temporarily leaves his or her possessions unattended, the police may not seize those items unless they represent a threat to public health or safety, evidence of a crime, or contraband, or unless the city places the items in storage and allows the owner 90 days to retrieve them.

Fourth Amendment

The panel majority—Judge Kim M. Wardlaw, who wrote the opinion, and Judge Stephen Reinhardt—said the Fourth Amendment the homeless from the unreasonable seizure of their goods. Dissenting Judge Consuelo Callahan argued that the Fourth Amendment does not apply to goods that have been left unattended, because the owners have no reasonable expectation of privacy.

The plaintiffs—nine Skid Row residents—said the police took away their possessions while they were performing brief personal chores, such as showering, eating, and using the restroom. The goods were either packed in mobile units called EDARs—as in Everyone  Deserves A Roof, the name of the nonprofit group that supplies them—or were in distinctive carts provided by the Los Angeles Catholic Worker “Hippie Kitchen,” before being taken and summarily destroyed by law enforcement.

Among the items lost, they said, were legal documents, personal photographs, and medications.

Seizure, Not Search

Because the case involves a seizure rather than a search, Wardlaw said, the “reasonable expectation of privacy” standard is inapplicable. The test is whether, on balance, the city’s asserted interest in health and safety so outweighs the plaintiffs’ interest in their goods as to justify the immediate destruction of the property, the judge wrote.

“The district court was correct in concluding that even if the seizure of the property would have been deemed reasonable had the City held it for return to its owner instead of immediately destroying it, the City’s destruction of the property rendered the seizure unreasonable,” Wardlaw concluded.

In an unusual footnote, Wardlaw took aim at “[p]ublic critics of the district court’s ruling,” including the authors of two Los Angeles Times op-ed pieces, who “have mischaracterized both the breadth of the district court’s order and the substance of the City’s appeal.”  

Gutierrez’s order, the appellate jurist explained, “does not require the City to allow hazardous debris to remain on Skid Row.” It was the city that was being unreasonable, she said, by seeking a “broad ruling” allowing it to destroy all of the plaintiffs’ property, including their bicycles.

Callahan Dissent

Callahan argued in dissent:

“No circuit court has expanded the right to be free from unreasonable searches and seizures to a right to leave unattended personal property on public land in violation of a law prohibiting that conduct….The few cases that have addressed similar issues…have consistently held that a person who unlawfully takes up temporary residence on public property without a permit or permission lacks an objectively reasonable expectation of privacy.”

Chief Deputy City Attorney William Carter told The Associated Press his office would evaluate whether to continue the appeal by requesting a review by the full appellate court. “The city will clean its streets and maintain its public safety,” Carter said. “The city is obligated to do that by the health department.”

The plaintiffs were represented by Santa Monica attorney Carol Sobel. Deputy City Attorney Amy Jo Field argued for the city.   

The case is Lavan v. City of Los Angeles, 11-56253.


Copyright 2012, Metropolitan News Company