Wednesday, September 05, 2012

Lavan v. City of Los Angeles (9th Cir. - Sept. 5, 2012)

I'm definitely conflicted about this one.

On the one hand, it definitely seems harsh -- unduly harsh -- to seize and immediately destroy the possessions of homeless people that they happen to leave unattended on a sidewalk.  Homeless people have to eat, go to the bathroom, go to court, etc.  They can't take their possessions with them everywhere they go.  To take someone's property -- their pictures, sleeping bags, etc. -- and destroy it seems really punitive.  Especially when you're destroying, in many cases, literally everything they own.  That L.A. thinks it can do that simply by passing an ordinance that says they feel like it doesn't seem to comport with what we traditionally think of as "due process."  Traditionally we think you're entitled to a hearing before the government permanently destroys your stuff.  Ditto for the homeless.

On the other hand, however, trash on Skid Row in L.A. (and elsewhere) is a serious problem.  If you've ever been there for any extended period -- as I have -- you can't help but think that it causes significant social harm to permit the daily accumulation of massive amount of junk on the sidewalks.  Which unquestionably happens.  Even apart from the (fairly persuasive) "broken window" theory, we are talking about lots of litter, trash, and junk on the sidewalk.  This stuff has consequences.  That's why L.A. passed its ordinance, and if you can't take the property, the place necessarily stays the way it is.  That's a problem.

Plus, as Judge Callahan notes, it's not like the City's just making random grabs whenever it feels like it.  The "sweeps" only happen on weekdays between 8 and 11 a.m.  And the City has put up signs all over the area that clearly tell people to make sure that they get their crap off the street during this brief period.  Is it really too much to ask to tell people to make sure that, for three hours only, they not leave their property on a sidewalk?  Yes, you may have things to do.  But for those three hours a day, keep your stuff close by.  Moreover, as Judge Callahan again notes, there are also public storage spaces in the area that you can use to house your stuff during this period.  For free.  Doesn't it seem more than reasonable to require that people do so?

So I'm torn.  Seriously torn.

Ultimately, though, I think that one argument that Judge Wardlaw makes persuades me.  (Even beyond the doctrinal point that we're only evaluating the standard of review in this appeal, not the underlying factual determinations of the district court.)  One that she repeats in her majority opinion and to which I don't think Judge Callahan has a good answer.

Judge Callahan thinks there's no reasonable expectation of, well, anything because the homeless put their property in an illegal public place after notice that it was improper to leave it there.  But Judge Wardlaw says that's no different than when you park your car illegally (or leave your dog unattended) in violation of a similar ordinance.  Sure, it's illegal.  But does that mean that the state is entitled to immediately crush your car or kill your dog?  Without any notice, a hearing, or an opportunity to be heard?  Surely not.  Ditto with the homeless.  Their sleeping bag and your Escalade are in the same boat.  What's good for the rich is surely similarly good for the poor.

Judge Callahan responds that the City doesn't crush cars, so it's a straw man, but the point remains that if we're unwilling to allow one we can't allow the other.  She also says that illegally parked cars don't create social harm like abandoned property does, but why not?  They obstruct traffic, create blight, take up valuable parking spaces, deprive the city of parking income, etc.  All the reasons we don't allow illegal parking in the first place.  Seems analogous to me. 

Judge Callahan finally claims that illegally parked homeless property is worse than illegally parked cars because the former is unsanitary (so needs to be immediately destroyed), and also needs to be picked up -- like unattended bags at the airport -- to avoid terrorist attacks.  But while I agree that unsanitary abandoned property (feces, drug needles, etc.) gets to be discarded, the district court's injunction allows that; moreover, the destruction of that property doesn't justify destroying all the property, including the stuff that's not unsafe.  As for Judge Callahan's terrorism argument, it not only fails on its own terms -- al Queda isn't likely to use its IED's to target Skid Row, for Christ's sake -- but also again fails to distinguish illegally located homeless property from illegally parked cars.  Only the latter of which, I might add, has actually been used in a domestic terrorist attack.

So I think that, for me, Judge Wardlaw's parked car/abandoned dog analogy carries the day.  Hence the majority gets it right.

But Judge Callahan does seem to nonetheless have a good secondary point.

She argues that surely we're allowed to seize the property even if we can't destroy it.  Doesn't that seem right to me as well?  Go back to the car and the dog.  We get to seize (tow) the car and seize (impound) the dog.  Maybe we can't crush 'em.  But we don't have to leave them on the street as well.

That sounds right.  The practical difficulty here is that seizure with the dog and the car works because the owners will pay money to get them back.  So we can enforce the law -- thus effecuating

That's a practical problem.  One that I'm not sure how to resolve.  If I allow the seizure, which I'm leaning towards, can I successfully distinguish the destruction?  I can doctrinally.  That's easy.  But practically, does it matter.

Ultimately, of course, I can bite the bullet and say that's not the Constitution's problem.  The law is that you're entitled to a post-seizure hearing.  That way you can contest an erroneous seizure and, even if it's not erroneous, get back your stuff if you pay a fine.  That hearing has value.  It's Due Process.  That it might not solve all the problems -- that some property might still be destroyed -- is irrelevant.  It's what the Constitution requires.  And it's better than destroying all the property without any notice or opportunity to object before all of your worldly possessions are incinerated.

So I think that's how I come out.  With respect to a problem that I'm unambiguously convinced is a serious one.  On all sides.