CSSA Magazine Article – When Is Government Seizure of Personal Property and/or Restricting Speech Unconstitutional?



By: Martin J. Mayer, General Counsel

California State Sheriffs’ Association

Several recent court decisions involving law enforcement activity are extremely significant and require law enforcement agencies to address the issues before the situations arise.  These involve constitutional rights of freedom from unreasonable seizures and/or protecting free speech.

Although these cases address two very different aspects of law, they involve activity in which law enforcement is frequently involved.   As such, the need for the drafting of appropriate policies and training of officers on their applicability cannot be over emphasized.

Property Of The Homeless

In the case of Levan et. al. v. City of Los Angeles, Appellees were nine homeless individuals living in the “Skid Row” district of Los Angeles.   They alleged that the City of Los Angeles violated their Fourth and Fourteenth Amendment rights by seizing, and immediately destroying, their un-abandoned personal possessions which had been, temporarily, left on public sidewalks while they attended to a variety of necessary tasks.

Finding a strong likelihood of success on the merits of these claims, the district court issued a preliminary injunction, enjoining the City from confiscating and summarily destroying un-abandoned property in Skid Row. The narrow injunction bars the City from:  (1) seizing property in Skid Row, absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public health or safety, is evidence of a crime, or is contraband; and (2) absent an immediate threat to public health or safety, destroying said property without maintaining it in a secure location for at least 90 days.

The district court noted that the City retains the authority to protect public health and safety.   It stated that “(t)he City [is] able to lawfully seize and detain property, as well as remove hazardous debris and other trash;  [the] issuance of the injunction . . . merely prevent[s the City] from unlawfully seizing and destroying personal property that is not abandoned without providing any meaningful notice and opportunity to be heard.”

The City appealed to the California Court of Appeal which rejected the City’s argument that “the Fourth Amendment does not protect Appellees from the summary seizure and destruction of their un-abandoned personal property.”  The Court held that the mere fact that personal property was left “unattended” does not mean it was “abandoned.” The facts established that the property in question was “temporarily left on public sidewalks while Appellees attended to necessary tasks such as eating, showering, and using restrooms.”

Nonetheless, the Court of Appeal emphasized that “the district court did not recognize, and we do not now address, the existence of a constitutionally protected property right to leave possessions unattended on public sidewalks.  Instead, the district court correctly recognized that this case concerns the most basic of property interests encompassed by the due process clause, [the] Appellees’ interest in the continued ownership of their personal possessions.”

It seems apparent that all cities and counties need to draft policies to guide their peace officers regarding when property of homeless people can be seized and removed from public property.  In addition, the court emphasized that a process must be available for a hearing on the seizure and, in addition, that the property must be held for a reasonable period of time before it can be destroyed.

The court said 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 simple rule holds regardless of whether the property in question is an Escalade or . . . a Cadillac, or a [shopping] cart.”

Disruptive Behavior at Public Meetings

Another constitutional right has been addressed by the courts as to what cities or counties can do when one becomes “disruptive” at a city council or board of supervisors’ meeting.  In the case of Acosta v. City of Costa Mesa, 694 F.3d 960 (2012), the court noted that Costa Mesa Municipal Code § 2-61 makes it a misdemeanor for members of the public who speak at City Council meetings to engage in “disorderly, insolent, or disruptive behavior.”

The city council had on the agenda, for discussion, a proposal to enter into an agreement with ICE for Costa Mesa PD to enforce immigration laws.  Mr. Acosta appeared to oppose the agreement.  When Acosta’s time came to speak, the video recordings show that he was visibly emotional and agitated. Toward the end of his comments he called the Mayor a “racist pig,” at which point the Mayor told Acosta to stop. Acosta repeated his slur, which prompted the Mayor to cut Acosta’s speaking time short by calling for a recess. Acosta then responded by calling the Mayor a “fucking racist pig.”  The Council subsequently passed the proposal.

The agreement was again agendized for a second reading and the council chambers were packed for that meeting.  When Acosta spoke on that occasion, he exceeded his time, was asked to leave the podium, and refused to do so.  Costa Mesa officers tried to quietly escort him out of the chambers but Acosta told the officers not to touch him and jerked away from their attempts to guide him out of the room.  The police chief directed his officers to take Acosta out of the Council Chambers.  The officers again tried to guide Acosta away from the podium, but Acosta attempted to prevent his removal by leaning away from the officers and planting his feet.

Acosta claimed the officers hit and kicked him but the video shows that didn’t happen.  He was ultimately arrested outside the chambers as he continued to resist.

Acosta sued in federal court on a variety of claims and a jury found for the City.  He appealed to the Ninth Circuit and the Court focused on the constitutionality of the City’s ordinance.  The

City argued that the ordinance can be read narrowly to prohibit only speech that actuallydisrupts or disturbs the city council meeting.  However, the Court held that, because of the inclusion of the term “insolent” in the ordinance, the City’s argument was unavailing.

Ultimately, the Court ruled that the ordinance was “unconstitutionally overbroad on its face because it unnecessarily sweeps a substantial amount of non-disruptive protected speech or expressive conduct within its prohibiting language.”  However, the Court also held that “the offensive word—”insolent”—can easily be excised such that the remaining text can be severed and § 2-61 saved from complete invalidation.”

It is important to note that the decision does not prohibit a city council or board of supervisors from enacting, and enforcing, reasonable rules regarding speaking time and decorum.  The key issue in the Acosta decision focused on the definition of the word “insolent.”  The Court held that “the text of § 2-61 prohibiting “insolent” behavior cannot be narrowed to include only an actual disruption. Insolent is defined as “proud, disdainful, haughty, arrogant, overbearing; offensively contemptuous of the rights or feelings of others” or “contemptuous of rightful authority; presumptuously or offensively contemptuous; impertinently insulting.” This type of expressive activity could, and often likely would, fall well below the level of behavior that actually disturbs, disrupts, or impedes a city council meeting.”

Previously, in 2010, the Court decided another case involving expressive behavior at a city council meeting.   Norse v. City of Santa Cruz, 629 F.3d 966 involved the ejection of Norse from a council meeting, in 2002, when he gave a Nazi salute after a woman was stopped from speaking.  The matter has been litigated for 10 years.  A federal judge dismissed his lawsuit in 2007 and a three judge panel of the 9th Circuit upheld that decision.  However, an 11 judge en banc panel later decided to reinstate the lawsuit ruling that the district court judge needed to hear more evidence.

The en banc court concluded that “in a limited public forum such as a city council meeting, a city’s rules of decorum will not be facially overbroad “where they only permit a presiding officer to eject an attendee for actually disturbing or impeding a meeting.”  A city, however, cannot define actual disturbance in any way it chooses; the statute must not unnecessarily restrict protected speech.” (Emphasis added.)

Following a trial, in November, 2012, a federal jury found no violation of Norse’s First or Fourth Amendment rights after he was removed from the council meeting.  The City of Santa Cruz argued that Norse’s salute was part of an organized effort to disrupt the meeting and that he was ejected from the council because he was trying to interrupt the meeting after the public comment period had passed.  Had the city lost, it would have had to pay damages and attorney’s fees to Norse which could have been in excess of several hundred thousand dollars.


Restrictions on constitutionally protected activity and/or rights, are looked at with great concern.  The government’s ability to seize personal property can only be done when it is lawfully permitted and when due process is followed and is protected by the Fourth Amendment’s prohibition against unreasonable seizure.  Destruction of such property is allowed only after one is afforded the opportunity to be heard and provided the opportunity to challenge the seizure and destruction.

The right of the public to petition its government, and speak out against actions by the government, is protected by the First Amendment.  Any restrictions upon that activity will be analyzed strictly and limited unless such restrictions are necessary and done in compliance with the law.

As it is imperative to develop policies regarding the seizure of property from public streets and parks, it is also imperative that cities and counties develop policies regarding what constitutes disruptive behavior at their public meetings.  Such policies must not be overly broad, nor designed to restrict legitimate free speech.  In the case of each of these situations, the policies must be publicized and enforced evenly.

Martin J. Mayer is a name partner with the public sector law firm of JONES & MAYER which represents law enforcement agencies throughout the state.  Mr. Mayer has served as general counsel to CSSA for over 25 years.