The homeless population in Hawaii continues to rise Photo: Emily Metcalf
Photo: Emily Metcalf

BY ROBERT THOMAS – As we noted here, the City of Los Angeles has filed a cert petition asking the Supreme Court to review Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012). In that case, a 2-1 Ninth Circuit panel 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. L.A.’s petition details the conditions on the area that purportedly resulted from the Ninth Circuit’s injunction, and it sounds pretty bad (see pages 16 through 22).

The petition also argues that, like the vermin that has swept Skid Row, the panel majority’s ruling has “swept” around the Ninth Circuit from the Venice area of L.A., to Fresno, and “across the Pacific Ocean to Hawaii.” The Hawaii section of the petition points 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, but maybe we were wrong. We’ll see.

The petition also contains a short section on the panel opinion’s conflicts with Supreme Court decisions, and rulings from other circuits.

Here is the Question Presented:

In a divided opinion, the Ninth Circuit held that even in the face of a posted law expressly prohibiting such conduct, personal effects left unattended on the public sidewalk are constitutionally protected. Thus, the majority concluded when city employees dispose of these unattended items during a scheduled cleaning operation, the city commits both an unreasonable seizure in violation of the Fourth Amendment and a deprivation of procedural due process in violation the Fourteenth Amendment.

The profound effect of this opinion is that a city can no longer fulfill its obligation to protect the public health. The interest in safe, clean, passable sidewalks has been supplanted. In its place, as the photographs in Appendix E illustrate, are public sidewalks that become home to mounds of tarp-covered tems, often tagged with a sign reading “not abandoned.” If a city wants to protect the public’s health by removing this accumulation of stuff piling up on the sidewalk, yet not violate the Constitution, a city must dedicate resources to sort through these items for contamination, fend off lawsuits alleging illegal search, and then bag, tag, and provide the facilities to store the remainder for retrieval by their owner.

Do the protections of the Fourth Amendment and the due process clause of the Fourteenth Amendment extend to these personal effects intentionally left unattended by the owner on the public sidewalk in violation of an express law, such that city workers cannot dispose of these items during routine street cleaning without violating the Constitution?

More to follow when the respondents file their BIO.

Petition for Writ of Certiorari, City of Los Angeles v. Lavan, No. ___ (Feb. 28, 2013)

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.