Brief In Opposition In SCOTUS Homeless Property Case

by Robert Thomas, Inverse Condemnation, June 5, 2013

Here's the Brief in Opposition filed recently in City of Los Angeles v. Lavan, No 12-1073 (cert. petition filed Feb. 28, 2013), the case in which the Ninth Circuit in a 2-1 panel decision held that the city could not presume that property owned by homeless people in the Skid Row area was abandoned, and enjoined the city from seizing and destroying it when the owner was "momentarily away" from it.

Hawaii connection: The petition pointed out a federal lawsuit filed in December 2012 alleging that the City and County of Honolulu violated the due process rights of "De-Occupy Honolulu" members (those folks who are still camping on the sidewalk next to Thomas Square across Beretania from the Honolulu Museum of Art). As noted here, we didn't think that Lavan would have a direct impact on Honolulu's "stored property" ordinance, or the more recently-adopted ordinance to deal with personal property in public spaces, but maybe we were wrong. We'll see. 

The cert petition detailed the conditions in the Skid Row area that purportedly resulted from the injunction, and it made it sound pretty awful. Lavan's BIO naturally does not focus on that, but rephrases the Question Presented:

Did the district court err when it issued a preliminary injunction preventing the City of Los Angeles from immediately destroying the momentarily unattended property of homeless persons without adequate notice or any post-deprivation hearing opportunity in the absence of adequate evidence that doing so is required to maintain any proffered government interest and in the absence of evidence that such property was abandoned, where state law recognizes a property interest in all tangible personal property and imposes a mandatory obligation to preserve unattended property?

The International Municipal Lawyers Association filed an amicus brief supporting the petition, which is posted here. The case is on the Court's calendar for the June 20, 2013 conference. 

Stay tuned, tomorrow we will post the City's Reply Brief.

Brief in Opposition, City of Los Angeles v. Lavan, No. 12-1073 (May 24, 2013)

  *   *   *   *   *   *

LA's Reply Brief In SCOTUS Homeless Property Case

by Robert Thomas, Inverse Condemnation, June 6, 2013

As we mentioned yesterday when we posted the Brief in Opposition, here's the Reply Brief of Petitioner (the City of Los Angeles) in City of Los Angeles v. Lavan, No 12-1073 (cert. petition filed Feb. 28, 2013), the case in which the Ninth Circuit in a 2-1 panel decision held that the city could not presume that property owned by homeless people in the Skid Row area was abandoned, and enjoined the city from seizing and destroying it when the owner was "momentarily away" from it.

The Reply Brief focus on the circuit-wide impact of the Ninth Circuit's ruling:

The problem is that while the district court’s preliminary injunction may have been limited in scope to the Skid Row area and may have been responsive to such a confined set of facts, the rule of law set forth in the published Lavan opinion is not. The opinion is not limited to the homeless population, or to the geographic area of Skid Row, or to neatly packed shopping carts, or to items that are only momentarily unattended.

Rather, the rule of law set forth by the Lavan opinion broadly applies to unattended personal property left on any public property in the entire Ninth Circuit, no matter to whom it belongs, no matter whether it is in a tidy package or an overflowing strand of shopping carts, or whether it has been there five minutes or five days. The Ninth Circuit held that these personal effects left unattended on public property are constitutionally protected and that when City employees remove and dispose of these unattended items during a cleaning operation, the City commits an unreasonable seizure in violation of the Fourth Amendment and deprives the owner of procedural due process in violation of the Fourteenth Amendment.

Reply at 1-2.

Read the whole brief if this is one of your issues. Won't take much time -- it's well-done and only 11 pages.

Petitioner's Reply Brief, City of Los Angeles v. Lavan, No. 12-1073 (June 3, 2013)