More On The Ninth Circuit's Ruling That Homeless Have Property Rights, Too

by Robert Thomas, InverseCondemnation

Here's a follow up to our earlier brief post about the opinion in Lavan v. City of Los Angeles, No.11-56253 (Sep. 5, 2012), in which a 2-1 Ninth Circuit panel held that the Fourth and Fourteenth Amendments protect the homeless against the City of L.A.'s seizure and destruction of their "momentarily unattended" property. The city undertook these efforts to clean up the "skid row" section of downtown.

Honolulu has an ordinance that has a similar purpose and design (to prevent the homeless from clogging up the parks and sidewalks with their "stuff"), but it is constructed quite differently. Instead of prohibiting property from being left unattended, it prohibits the "storage" of property in public spaces, with "storage" being defined as being left somewhere for more than 24 hours. Leave it unattended for more than that time, the city will scoop it up and store it at the owner's expense. One doubts that any of this stuff is ever retrieved.

Honolulu Civil Beat reported on the Ninth Circuit opinion, and asked whether it would impact Honolulu's ordinance:

But it’s unlikely that the decision will have a direct bearing on Honolulu’s "stored property" ordinance, according to local land use and property rights lawyer Robert Thomas.

Thomas cited "carefully crafted" nuances in the Honolulu law that effectively distinguish its policies from those deemed unconstitutional in the 9th Circuit case.

"It’s not directly applicable, it doesn’t make our ordinance illegal," he said in reference to the ruling. The ordinance "certainly seems to be shielded up a bit better. It gives the city more ability to address the problem."

One distinction is that the Honolulu ordinance requires the city to store the property upon seizing it. In Los Angeles, city officials would immediately destroy the belongings, said Thomas.

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Still, Thomas — who supports the 9th Circuit decision — said the ruling could have a meaningful effect on how Honolulu officials choose to apply the ordinance.

"It does have a warning sign: You can’t treat people differently because they’re homeless," Thomas said. "The decision really does emphasize that we should think of property rights as civil rights."

Read the entire story here.

That last bit is the important lesson to be learned from Lavan. When a panel of Ninth Circuit judges rule in favor of property rights, with two classic "liberal" judges comprising the majority, you know you are onto something. We can only hope these judges would maintain the same respect for property rights in other cases.

Gideon Kanner adds his thoughts about the case here.