Thursday, September 13, 2012

Federal Appeals Court Uphold Rights of Homeless Not To Have Their Property Taken by Government

Dissenting Justice
Callahan - Appointed
by George W. Bush
What- You Expected
Something Different?
Incredibly There was a Dissenting Vote

Here’s a question everyone thinks they probably know the answer to. 

If you temporarily leave your possession out on some public property, and it is not causing any type of problem, while you go get something to eat or attend to some other personal function, can the city government seize it, keep it and destroy it without giving you any chance or opportunity to get it back?

Right, the answer is no.  But no is not what the city of Los Angeles would take for an answer. 

It was the city’s belief that while people with homes have property rights, homeless people do not.  And so the city adopted the following practice, as documented in a decision on the issue by the Federal Appeals Court for the 9th Circuit.  A group of homeless people who had their property taken just because they were homeless were able to take the city to court.  And then take the city to an appellate court.

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

So the Appellate Court, acting in good sense and good law said no.  Government cannot do this.

Because homeless persons’ unabandoned possessions
are “property” within the meaning of the Fourteenth Amendment,
the City must comport with the requirements of the
Fourteenth Amendment’s due process clause if it wishes to
take and destroy them. See United States v. James Daniel
Good Real Prop., 510 U.S. 43, 48 (1993) (“Our precedents
establish the general rule that individuals must receive notice
and an opportunity to be heard before the Government
deprives them of property.”). The City admits that it failed to
provide any notice or opportunity to be heard for Tony Lavan
and other Appellees before it seized and destroyed their property.
The City’s decision to forego any process before permanently
depriving Appellees of protected property interests is
especially troubling given the vulnerability of Skid Row’s
homeless residents: “For many of us, the loss of our personal
effects may pose a minor inconvenience. However, . . . the
loss can be devastating for the homeless.”

The whole thing should have been a unanimous decision.  But incredibly one judge dissented, using this logic.

Plaintiffs attempt to distinguish these cases by reasoning
that they are not squatters or trespassers as they have a right
to occupy the public sidewalks. Plaintiffs do have a right to
use the public sidewalks, but this does not mean that they may
leave personal property unattended on the sidewalk, particularly
where the Ordinance prohibits it and multiple signs
expressly warn the public that unattended personal property
“is subject to disposal by the City of Los Angeles

Notice the logic here.  Because there is a law prohibiting leaving property on the sidewalk to temporarily do other things, that law is by definition Constitutional.  In other words, the law is okay because it is a law.  Fortunately for all of us this philosophy has been rejected by every rational interpreter of the law.  A law must pass Constitutional muster, it does not do so by its mere existence.

One could only hope that this dissenting judge would one day set down a very valuable piece of property to visit a bathroom, or window shop or something, and have a city worker scoop it up, take it away and destroy it.  Now that would be justice.

So here we have a rare victory for people who unlike the rest of us usually do not have protection of the law or protection from the law.

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