Vol. 27 No. 17 – Personal Properly Left On A Sidewalk Unattended – Is It Abandoned?

PERSONAL PROPERTY LEFT ON A SIDEWALK UNATTENDED – IS IT ABANDONED?

On September 5, 2012, the Ninth Circuit U.S. Court of Appeals ruled that the City of Los Angeles violated the Fourth Amendment rights of homeless persons when they seized “unabandoned property” and destroyed it.

In the case of Levan et. al. v. City of Los Angeles, 2012 DAR 12545, the Court rejected the City’s argument that “the Fourth Amendment does not protect Appellees from the summary seizure and destruction of their unabandoned personal property.”

Expectation of Privacy is Irrelevant

The Court held that the City’s theory “that Appellees have no legitimate expectation of privacy in property left unattended on a public sidewalk . . .” in violation of a Municipal Code provision, has no merit.  In fact, the Court stated that, “the City’s view entirely misapprehends the appropriate Fourth Amendment inquiry, as well as the fundamental nature of the interests it protects.  The reasonableness of Appellees’ expectation of privacy is irrelevant as to the question before us . . . .”

Additionally, 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 emphasizes 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:  Appellees’ interest in the continued ownership of their personal possessions.”

Due Process vs. Enforcement of Municipal Code

The Court disagreed with the City’s argument that “there is no law establishing an individual’s constitutionally protected property interest in unattended personal property left illegally on the public sidewalk.  Therefore, the City contends, no [due] process is required before the City permanently deprives Appellees of their unattended possessions.”

The Court found, based on the evidence produced, that “Appellees owned their possessions and had not abandoned them; therefore, Appellees maintained a protected interest in their personal property.  As we have repeatedly made clear, 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 cart.”

The Court concluded by stating that this appeal doesn’t concern the power of a municipal government to address the “pressing problem of mass homelessness or to otherwise fulfill their obligations to maintain public health and safety.

Nor does this appeal concern any purported right to use public sidewalks as personal storage facilities.”  In fact, the Court urged the City to address those problems.

However, said the Court, the City asked that the court “declare that the unattended property of homeless persons is uniquely beyond the reach of the Constitution, so that the government may seize and destroy with impunity the worldly possessions of a vulnerable group in our society.  Because even the most basic reading of our Constitution prohibits such a result, the City’s appeal is DENIED.” (Emphasis in original.)

HOW THIS AFFECTS YOUR AGENCY

Obviously, if your jurisdiction is confronted with similar circumstances and if there is a desire, and perhaps a need, to address the issue of property being left on public sidewalks, this decision must be taken into consideration.  This case, as noted in the Court’s conclusion, does not prevent cities and counties from attempting to address that problem.  Rather, what it does prevent is the seizure of, and destruction of, such property without notice and due process.

At the very least, assuming seizure of the property is permitted, the immediate destruction of such property is unconstitutional.  “(E)ven 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.”

Furthermore, the Court held, “the City does not — and almost certainly could not — argue that its summary destruction of Appellees’ family photographs, identification papers, portable electronics, and other property was reasonable under the Fourth Amendment . . . .”

As the Court also noted, the “violation of a City ordinance does not vitiate the Fourth Amendment’s protection of one’s property.  Were it otherwise, the government could seize and destroy any illegally parked car or unlawfully unattended dog without implicating the Fourth Amendment.”

Therefore, it seems that steps must be taken to ensure due process is applied to the seizure and, most assuredly, the destruction of unattended, but not abandoned, personalpossessions of the homeless. Consultation with your agency’s legal counsel, for advice and guidance in this area is, as always, imperative.