“The Constitution protects the homeless too.”

That’s the title of a column by Erwin Chemerinsky, dean of the law school at UC Irvine, analyzing a decision of the 9th Circuit Court of Appeals which was recently allowed to stand by the U.S. Supreme Court.

In Lavan v. City of Los Angeles, 2012 DJDAR 12545 (9th Cir. Sept. 5, 2012), the 9th Circuit affirmed a preliminary injunction issued by the federal district court which prevents the city from seizing property in Skid Row absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public health or safety, or is evidence of a crime, or contraband. The injunction also prevents the city from destroying the property, absent an immediate threat to public health or safety, without maintaining it in a secure location for a period of not less than 90 days

Chemerinsky quotes Judge Kim McLane Wardlaw, who wrote the 9th Circuit’s majority opinion:

As we have repeatedly made clear, ‘[t]he government may not take property like a thief in the night; rather, it must announce its intentions and give the property owner a chance to argue against the taking.’ This simple rule holds regardless of whether the property in question is an Escalade or an EDAR, a Cadillac or a cart. The city demonstrates that it completely misunderstands the role of due process by its contrary suggestion that homeless persons instantly and permanently lose any protected property interest in their possessions by leaving them momentarily unattended in violation of a municipal ordinance. As the district court recognized, the logic of the city’s suggestion would also allow it to seize and destroy cars parked in no-parking zones left momentarily unattended.”

The majority opinion concluded:

This appeal does not concern the power of the federal courts to constrain municipal governments from addressing the deep and pressing problem of mass homelessness or to otherwise fulfill their obligations to maintain public health and safety. In fact, this court would urge Los Angeles to do more to resolve that problem and to fulfill that obligation. Nor does this appeal concern any purported right to use public sidewalks as personal storage facilities. The City has instead asked us to declare that the unattended property of homeless persons is uniquely beyond the reach of the Constitution, so that the government may seize and destroy with impunity the worldly possessions of a vulnerable group in our society. Because even the most basic reading of our Constitution prohibits such a result, the City’s appeal is DENIED.

In light of theses legal decisions, it’s hard for me to see how the city’s latest law allowing officials to seize and destroy items left on city sidewalks without prior notice complies with what is now the law of the land. The city’s new law also requires payment of a $200 fee to retrieve any belongings taken. What a sham! That might as well be a $200,000 fee from the perspective of most homeless campers.

Credit to Larry Geller’s DisappearedNews.com for keeping the city’s policies in the public eye, including some revealing video.

As Larry commented in a recent post:

It will sadly take a federal judge to protect the civil rights that we all enjoy, including those without roofs over their heads. And gobs of taxpayer money of course: at $15,000 each time for the raids plus legal fees when a court eventually takes this up. See: Mayor admits huge waste of money in homeless raids (4/3/2013).

“Insanity: doing the same thing over and over again and expecting different results.”–Albert Einstein, (attributed)

I need to end with this observation: the raids have not removed people from the street. Caldwell raids the tents over and over again, spending money, to what end?

That money would be better spent on evidence-based approaches to assisting the homeless to move into permanent living situations—instead of cruelly stealing their possessions from them.