Metropolitan News-Enterprise


Friday, September 3, 2021


Page 1


Ninth Circuit Upholds Bar on Enforcing L.A. City Ordinance

Majority: Authorizing Destruction of ‘Bulky Items’ Stored by Homeless in Public Areas Breaches Fourth Amendment Dissent: That Portion Is Severable From Provision Calling for ‘Removal’ of Such Items, Which Might Be Valid  


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed a preliminary injunction that bars the City of Los Angeles from enforcing an ordinance permitting the discarding of homeless persons’ “bulky items” that are stored in public areas.

Circuit Judge Michelle T. Friedland wrote the majority opinion, in which Senior District Court Judge David A. Ezra of the District of Hawaii, sitting by designation, joined. Circuit Judge Mark J. Bennett authored a dissent.

The ordinance provides, in part:

“Without prior notice, the City may remove and may discard any Bulky Item, whether Attended or Unattended. Stored in a Public Area unless the Bulky Item is designed to be used as a shelter. For any Bulky Item that is designed to be used as a shelter but does not constitute a Tent…, the City may remove and discard the Bulky Item, whether Attended or Unattended.”

“Bulky items” are defined, in general, as an article “that is too large to fit into a 60-gallon container,” the normal size of a curbside trash bin for residential pick-up. The ordinance exempts “a constructed Tent, operational bicycle or operational walker, crutch or wheelchair.”

Friedland’s Opinion

Friedland expressed agreement with District Court Judge Dale S. Fischer of the Central District of California, who temporarily enjoined enforcement, “that Plaintiffs are likely to succeed on their claim that this provision, on its face, violates the Fourth Amendment’s protection against unreasonable seizures,” adding:

“We also conclude that the clauses authorizing the discarding of those items are not severable from the remainder of the provision.”

Friedland noted that as of 2019, when the litigation commenced, “he escalating homelessness crisis in the City of Los Angeles” had reached the point where “there were over 35,000 homeless individuals living in the City, and of them, “more than 17,000 lived in vehicles, tents, or makeshift shelters.” This situation, she said, gave rise to the ordinance, §56.11 of the Municipal Code, which authorized cleanups of homeless encampments. In 2012, she noted, a preliminary injunction blocking a similar ordinance was upheld by the Ninth Circuit in Lavan v. City of Los Angeles, though that ordinance did not single out “bulky items.”

‘No Meaningful Distinction’

She wrote:

“We see no meaningful distinction between the destruction of property enjoined in Lavan and the destruction of property enjoined here. The fact that Plaintiffs’ items are larger than sixty gallons does not reduce their possessory interests in those items. Indeed, the property that the City impermissibly destroyed in Lavan included large objects similar to the Bulky Items at issue in this litigation. such as carts….Plaintiffs have therefore demonstrated a likelihood of success on the merits of then claim that the Bulky Items Provision violates the Fourth Amendment on its face.”

The city argued that the authorization for “destruction” of “bulky items” could be severed from the portion calling for their removal. Friedland disagreed.

She said, applying California law:

“[E]ven though the ordinance contains a severability clause…, we must consider whether the destruction clauses of the Bulky Items Provision are grammatically, functionally, and volitionally separable from the rest of the Provision. We conclude that these clauses are not functionally separable, and therefore are not severable.”

No Procedure Delineated

The jurist explained:

“The absence of a post-removal notice procedure in the Bulky Items Provision further prevents us from reading a hypothetical post-severance Provision as implicitly describing impoundment.”

She advised:

“We emphasize that our holding imposes no new constraints on the City: our prior caselaw states clearly that the government may not summarily destroy the unabandoned personal property of homeless individuals that is kept in public areas. The City is free to draft a lawful version of the Bulky Items Provision, just as it is free to explore alternative methods to respond to the needs of its housed residents while also respecting the rights of its tens of thousands of homeless residents.”

Bennett’s Dissent

Bennett said in his dissent:

“I believe the ordinance is severable, that the ‘may discard’ provision should be severed, and that the constitutionality of the ‘may remove’ provision should then be separately analyzed….I would remand the case to the district court to consider whether the ‘may remove’ provision is facially constitutional, and if it finds that it is. to reconsider whether the injunctive relief it ordered was appropriate.”

He went onto say:

“The harm done here by the majority, in affirming an injunction that may well be overbroad given the incorrect severability analysis, is far more than just theoretical. Homelessness is a tragedy. The effect of the homelessness crisis on the homeless is immeasurable. But the crisis affects more than the homeless. As the crisis increases in Los Angeles, so too does the number of Bulky Items stored in the city’s streets, parks, and public spaces. City residents tell the City daily of their loss of access to public parks, threats to their safety, and the general degradation of their quality of life. The City conducts frequent cleanups, but still, items of all kinds are amassed daily in Los Angeles public areas.

“Items ‘frequently encounter[ed] in the public rights of way include boats, tubs, jacuzzi[e]s, sofas, industrial waste, automobile parts, bed frames, mattresses, and other household appliances.’ ”

Three Photos

He provided three photos culled from news media outlets which are included in the amicus curiae brief of the League of California Cities, including this one, from the Los Angeles Sentinel:

He quoted the League’s brief as saying that the preliminary injunction “robs the people of Los Angeles of the ability to balance the needs of all of its residents and decide issues of local governance and policy through their elected representatives.”

Bennett commented:

“By incorrectly determining that the ordinance is not severable, the majority inappropriately rebalances the interests of various members of the Los Angeles community, thereby stripping from Los Angeles’s political branches their right to conduct the balancing.”

The case is Garcia v. City of Los Angeles, 20-55522.


Copyright 2021, Metropolitan News Company