City Can’t Immediately Seize and Destroy “Bulky” Items Belonging to the Homeless Without a Warrant or Notice

A federal judge has prohibited the City of Los Angeles from immediately removing and destroying homeless people’s personal property based solely on the size of the item.
 
In a preliminary injunction issued last week in Garcia v. City of Los Angeles, the U.S. District Court for the Central District of California found that the plaintiffs, a group of homeless individuals and advocacy groups, were likely to succeed on their claims that the City’s ordinance governing the storage of bulky items in public violates the Fourth and Fourteenth amendments of the U.S. Constitution.
 
The ordinance allows for city workers ― without prior notice ― to immediately remove and dispose of an item stored in a public area if it does not fit into a 60-gallon container with the lid closed, unless the item is being used as shelter. It applies even when the City knows the property is attended to, or temporarily unattended, by its owner. Exempt from enforcement are constructed tents, operational bicycles and walkers, crutches and wheelchairs. Further, the ordinance makes it a criminal misdemeanor for a person to resist or delay the City from removing and disposing of the item, including by refusing to vacate or retreat from within the item.
 
The plaintiffs submitted evidence establishing that the City had previously removed and discarded large items from their possession, including a dog kennel, wheeled carts used to store and transport groceries and belongings, pallets and crates used as bedding, and a mattress. In each instance, the City seized the property during a noticed clean-up of a homeless encampment ― often while the property was still attended to by a homeless person.
 
With respect to the plaintiffs’ Fourth Amendment claim, the City made a number of unsuccessful arguments as to why it should be allowed to immediately seize bulky items without a warrant. Among them, the City argued it was reasonable to do so when balanced against the public’s interest in using public areas where such property is stored. In making this argument, the City acknowledged that it is not necessarily one particular bulky item that negatively affects the public’s interest, but rather “the accumulation of these items in the aggregate that justifie[s] their removal from the public right of way.”
 
However, the court noted that the U.S. Ninth Circuit Court of Appeals has explicitly declined to establish a general exception to the Fourth Amendment’s warrant requirement for conduct asserted to be reasonable except in certain “special needs” situations, such as sobriety checkpoints, that have been established by U.S. Supreme Court precedent. Also, the court cited to the Ninth Circuit’s decision in Lavan v. City of Los Angeles, another case concerning the seizure and destruction of homeless people’s property, where it affirmed the district court’s holding that “the City’s interest in keeping the City clean and safe was not sufficient to render reasonable the deprivation of [homeless people’s unattended] property.”
 
Next, the City said it was too complex for City employees to determine whether a bulky item is attended, unattended or abandoned, and raised concerns about its ability to store large items in order to allow for retrieval by the owner. This, it was argued, justified the immediate removal and disposal of the items without a warrant.
 
The court dismissed this argument, reasoning that the City must already determine the disposition of homeless people’s property before seizing it in enforcing other provisions of the City’s ordinance, which were not subject to the preliminary injunction, under existing federal case law and the California Civil Code. Thus, the court failed to see why the City should be exempt from this requirement with respect to large items, but not smaller items of property.
 
As to the complexity of the task, the court again cited to the Ninth Circuit’s decision in Lavan, noting that it is sufficient if a City employee has “an objectively reasonable belief that [property] is abandoned” before immediately removing and disposing of it. The court explained that the preliminary injunction does not apply to items that the City reasonably determines are abandoned property or trash, and “just because the City may on occasion incorrectly determine that unattended property is abandoned does not justify seizing and destroying property that the City knows or reasonably believes is unattended but not abandoned.”
 
Addressing the City’s storage concerns, the court stated that accepting the City’s position “would mean that once City storage facilities, or lost and found boxes, or evidence lockers were full, any property seized thereafter by the government could be summarily destroyed” ― such a position does not comport with the Fourth Amendment.
 
With respect to plaintiffs’ Fourteenth Amendment claim, the court found the ordinance likely violates due process because it allows the City to remove and permanently destroy bulky items without any procedural safeguards whatsoever.
 
Finally, the City argued that the requested injunction would “essentially enshrine bulky items in constitutional protection and prevent them from being removed from public areas in the City.” In response, the court said that the injunction does not prohibit removal of bulky items; rather, it simply requires the City treat bulky items like all other types of property it may find stored in public. For example, as explained earlier, the City may seize bulky items it reasonably believes are abandoned. Also, the City may seize bulky items that are not abandoned, including items that are unattended or blocking the sidewalk; however, the City must comply with due process principles by providing notice of the removal and an opportunity to be heard, storing the property for at least 90 days, and allowing for retrieval by the owner, per the Ninth Circuit’s decision in Lavan. If an item poses a threat to health and safety, such as when it is contaminated with human waste, the item may be immediately seized and destroyed.
 
The decision does not affect enforcement of the ordinance’s other provisions regulating the storage of personal property. Also, while this decision doesn’t set precedent outside of this district unless a higher court issues a decision on appeal, it can serve as a guide to other cities looking to enact similar ordinances.
 
If you have any questions about this decision, please contact the authors of this Legal Alert listed to the right in the firm’s Comprehensive Code Enforcement practice group, or your BB&K attorney.
 
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