Lavan v. City of Los Angeles

• Decision Date: 05 September 2012
• Docket Number: No. 11–56253.,11–56253.
• Citation: 693 F.3d 1022
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Tony LAVAN; Caterius Smith; Willie Vassie; Ernest Seymore; Lamoen Hall; Shamal Ballantine; Byron Reese; Reginald Wilson, Plaintiffs–Appellees, v. CITY OF LOS ANGELES, Defendant–Appellant.

693 F.3d 1022

2012 Daily Journal D.A.R. 12,545

Tony LAVAN; Caterius Smith; Willie Vassie; Ernest Seymore; Lamoen Hall; Shamal Ballantine; Byron Reese; Reginald Wilson, Plaintiffs–Appellees,

v.CITY OF LOS ANGELES, Defendant–Appellant.

No. 11–56253.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 2012.

Filed Sept. 5, 2012.

Carmen A. Trutanich, City Attorney, and Amy Jo Field, Deputy City Attorney, Los Angeles, CA, for the defendant-appellant.

Carol A. Sobel, Law Office of Carol A. Sobel, Santa Monica, CA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California, Philip S. Gutierrez, District Judge, Presiding. D.C. No. 2:11–cv–02874–PSG–AJW.

Before: STEPHEN REINHARDT, KIM McLANE WARDLAW, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge WARDLAW; Dissent by Judge CALLAHAN.

OPINION

WARDLAW, Circuit Judge:

Appellees, nine homeless individuals living in the “Skid Row” district of Los Angeles, charge that the City of Los Angeles (the “City”) violated their Fourth and Fourteenth Amendment rights by seizing and immediately destroying their unabandoned personal possessions, temporarily left on public sidewalks while Appellees attended to necessary tasks such as eating, showering, and using restrooms. Finding a strong likelihood of success on the merits of these claims, the district court enjoined the City from confiscating and summarily destroying unabandoned 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, or is evidence of a crime, or contraband; and

2. Absent an immediate threat to public health or safety, destruction of said seized property without maintaining it in a secure location for a period of less than 90 days.

Lavan v. City of Los Angeles, 797 F.Supp.2d 1005, 1020 (C.D.Cal.2011).

The district court expanded upon the great leeway the City retains to protect public health and safety, noting: “The City [is] able to lawfully seize and detain property, as well as remove hazardous debris and other trash; 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.” Id. at 1019.

In this appeal, the City does not challenge the scope of the injunction, nor does it ask us to modify its terms; instead, the City argues only that the district court applied the wrong legal standard in evaluating Appellees' claims.¹ We conclude that the Fourth and Fourteenth Amendments protect homeless persons from government seizure and summary destruction of their unabandoned, but momentarily unattended, personal property.

I. FACTS AND PROCEDURAL BACKGROUND

The facts underlying this appeal are largely undisputed.² Appellees are homeless persons living on the streets of the Skid Row district of Los Angeles. Skid Row's inhabitants include the highest concentration of homeless persons in the City of Los Angeles; this concentration has only increased in recent years.³See Los Angeles Homeless Services Authority, 2011 Greater Los Angeles Homeless Count Report, available at http:// www. lahsa. org/ docs/ 2011- Homeless- Count/ HC 11- Detailed- Geography- Report- FINAL. PDF. Appellees occupy the sidewalks of Skid Row pursuant to a settlement agreement we approved in 2007. See Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir.2006), vacated due to settlement,505 F.3d 1006 (9th Cir.2007). The settlement agreement limits the City's ability to arrest homeless persons for sleeping, sitting, or standing on public streets until the City constructs 1250 units of permanent supportive housing for the chronically homeless, at least 50 percent of which must be located within Skid Row or greater downtown Los Angeles. See Settlement Agreement, Jones v. City of Los Angeles, No. 03–CV–01142 (C.D.Cal. Sept. 15, 2008).

Like many of Skid Row's homeless residents, Appellees stored their personal possessions—including personal identification documents, birth certificates, medications, family memorabilia, toiletries, cell phones, sleeping bags and blankets—in mobile containers provided to homeless persons by social service organizations. Appellees Tony Lavan, Caterius Smith, Willie Vassie, Shamal Ballantine, and Reginald Wilson packed their possessions in EDAR mobile shelters.⁴ Appellees Ernest Seymore, Lamoen Hall, and Byron Reese kept their possessions in distinctive carts provided by the “Hippie Kitchen,” a soup kitchen run by the Los Angeles Catholic Worker.⁵

On separate occasions between February 6, 2011 and March 17, 2011, Appellees stepped away from their personal property, leaving it on the sidewalks, to perform necessary tasks such as showering, eating, using restrooms, or attending court. Appellees had not abandoned their property, but City employees nonetheless seized and summarily destroyed Appellees' EDARs and carts, thereby permanently depriving Appellees of possessions ranging from personal identification documents and family memorabilia to portable electronics, blankets, and shelters. See Lavan, 797 F.Supp.2d at 1013–14. The City did not have a good-faith belief that Appellees' possessions were abandoned when it destroyed them. Indeed, on a number of the occasions when the City seized Appellees' possessions, Appellees and other persons were present, explained to City employees that the property was not abandoned, and implored the City not to destroy it. Id. at 1013. Although “the City was in fact notified that the property belonged to Lamoen Hall and others, ... when attempts to retrieve the property were made, the City took it and destroyed it nevertheless.” Id. at 1014.

The City does not deny that it has a policy and practice of seizing and destroying homeless persons' unabandoned possessions. Nor is the practice new: The City was previously enjoined from engaging in the precise conduct at issue in this appeal. See Justin v. City of Los Angeles, No. 00–CV–12352, 2000 WL 1808426, at *13 (C.D.Cal. Dec. 5, 2000) (granting a temporary restraining order barring the City from, among other things, “[c]onfiscatingthe personal property of the homeless when it has not been abandoned and destroying it without notice”). The City maintains, however, that its seizure and disposal of items is authorized pursuant to its enforcement of Los Angeles Municipal Code (“LAMC”) § 56.11, a local ordinance that provides that “[n]o person shall leave or permit to remain any merchandise, baggage or any article of personal property upon any parkway or sidewalk.”

On April 5, 2011, Appellees sued the City under 42 U.S.C. § 1983, claiming that the City's practice of summarily confiscating and destroying the unabandoned possessions of homeless persons living on Skid Row violated the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. On April 18, 2011, Appellees filed an ex parte application for a temporary restraining order (the “TRO”), seeking an injunction preventing the City from seizing and destroying Appellees' possessions without notice.

On April 22, 2011, the district court granted Appellees' application for the TRO, concluding that “Plaintiffs have sufficiently established a likelihood of success on the merits for, at the least, their Fourth Amendment and Fourteenth Amendment claims against the City,” that the City's conduct, unless enjoined, would irreparably injure Plaintiffs, and that the TRO served the public interest, as it allowed the City to “lawfully seize and detain property, as opposed to unlawfully seizing and immediately destroying property.” Lavan v. City of Los Angeles, No. 11–CV–2874, 2011 WL 1533070, at *5–6 (C.D.Cal. Apr. 22, 2011). The district court fashioned an order encompassing all unabandoned property on Skid Row, reasoning that “it would likely be impossible for the City to determine whose property is being confiscated—i.e. whether it is one of the named Plaintiffs or another homeless person.” Id. at *4. The terms of the TRO bar 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, or is evidence of a crime, or contraband; and

2. Absent an immediate threat to public health or safety, destruction of said seized property without maintaining it in a secure location for a period of less than 90 days.

Id. at *7. The City is also “directed to leave a notice in a prominent place for any property taken on the belief that it is abandoned, including advising where the property is being kept and when it may be claimed by the rightful owner.” Id.

On June 23, 2011, the district court issued a preliminary injunction (the “Injunction”) on the same terms as the TRO. After weighing the evidence before it, the district court found that the Appellees had “clearly shown that they will likely succeed in establishing that the City seized and destroyed property that it knew was not abandoned,” 797 F.Supp.2d at 1014–1015, and held that Appellees had shown a strong likelihood of success on the merits of their claims that the City violated their Fourth Amendment and Fourteenth Amendment rights, id. at 1016, 1019. Explaining that Appellees “have a legitimate expectation of privacy in their property,” the district court further held that “[t]he property of the homeless is entitled to Fourth Amendment protection.” Id. at 1011, 1016. The district court also concluded that Appellees “personal possessions, perhaps representing everything they own, must be considered ‘property’ for purposes of [Fourteenth Amendment] due process analysis.” Id. at 1016. Because Appellees had shown a strong likelihood of success on their claims that the seizure and destruction of their property was neither reasonable under the Fourth Amendment nor...