Amicus Brief In Ninth Circuit Homeless Property Case: No One Has Constitutional Right To Leave Unattended Property On The Street

by Robert Thomas, InverseCondemnation

Here's the amici brief of the International Municipal Lawyers Association and the National League of Cities, which urges the U.S. Supreme Court to review the Ninth Circuit's decision in Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012).

In that case, a 2-1 panel held that the city could not presume that property owned by homeless people in the Skid Row area of downtown was abandoned, and enjoined the city from seizing and destroying it when the owner was "momentarily away" from it.

The city filed a cert petition, arguing that the panel decision resulted in an invasion of vermin and other public health hazards in the area. IMLA's brief argues:

The Ninth Circuit’s Opinion distorts that balancing act and jeopardizes local governments’ ability to act for the benefit of all their citizens. Like other citizens, homeless individuals have a right to use and enjoy the public streets, but no one—homeless or not—has a federal constitutional right to leave items unattended on a public street to the detriment of other citizens, including other homeless individuals. As a practical matter, that is what the Ninth Circuit’s Opinion creates: a right to use public streets as long-term storage facilities in contravention of local law.

....

Local governments need to know when their attempts to create safe and healthy communities may subject them to liability.

....

Under the novel injunction and constitutional analysis here, however, this basic yet essential local government function always presents a Fourth Amendment question. That cannot be correct. Because public sidewalks are not constitutionally protected storage bins, and because a local government’s mere movement of unattended items from this public space does not implicate the Fourth Amendment, this Court should grant the City’s Petition and reverse the Ninth Circuit’s decision.

Br. at 2-4. The respondents waived their right to respond, and the case is on the Supreme Court's conference calendar for April 19, 2013.

Brief of Amici Curiae The International Municipal Lawyers Association and the National League of Cities, Ci...