Policing and Public Transportation (2022)

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TCRP LRD 58 27 likely abandoned his or her property. The Oregon statute, which applies to the removal, storage, and disposal of personal prop- erty of homeless persons from “an established camping site,”353 defines the term personal property to mean “any item that can reasonably be identified as belonging to an individual and that has apparent value or utility.”354 Some judicial decisions are consistent with the argument that personal property has contextual signals that the property, such as obvious personal goods and possessions, has not likely been abandoned. In Lavan v. City of L.A.,355 the City of Los Angeles appealed a district court’s order that “enjoined the City from confiscating and summarily destroying unabandoned property” in the Skid Row part of the city.356 The plaintiffs/appellees, the owners of the unabandoned property, were occupying the side- walks of Skid Row pursuant to a 2007 settlement agreement with the city. However, in 2011, city employees “seized and sum- marily destroyed” appellees’ property, including mobile shelters, known as EDARs,357 and carts. The city “permanently” deprived the appellees of their possessions “ranging from personal iden- tification documents and family memorabilia to portable elec- tronics, blankets, and shelters.”358 The affected homeless indi- viduals sued the City of Los Angeles for violating their rights under the Fourth and Fourteenth Amendments “by seizing and immediately destroying their unabandoned personal posses- sions, temporarily left on public sidewalks….”359 The city did “not deny that it has a policy and practice of seizing and destroy- ing homeless persons’ unabandoned possessions.”360 The Ninth Circuit held that the Fourth Amendment applies to an individual’s possessory interest in his or her personal prop- erty. The court rejected the city’s contention that the homeless appellees had “no legitimate expectation of privacy in property left unattended on a public sidewalk,” even though the property allegedly contravened an ordinance that authorized the city to remove hazardous debris and other trash.361 Affirming the dis- trict court’s decision, the Ninth Circuit held that “[t]he reason- ableness of Appellees’ expectation of privacy is irrelevant as to the question before us….”362 Thus, the court in Lavan held that, regardless of privacy concerns, the Fourth Amendment protected the appellees’ un- abandoned property from unreasonable seizures: “Appellees need not show a reasonable expectation of privacy to enjoy the protection of the Fourth Amendment against seizures of their 353 ORS § 203.079(3) (as amended, eff. June 23, 2021). 354 ORS § 203.079(2) (as amended, eff. June 23, 2021). 355 693 F.3d 1022 (9th Cir. 2012), cert. denied 2013 U.S. LEXIS 4893, at *1 (2013). 356 Id., 693 F.3d at 1024 (emphasis supplied). 357 Id. at 1025. As explained by the court, “EDARs are small, collaps- ible mobile shelters provided to homeless persons by Everyone Deserves a Roof, a nonprofit organization.” Id. at 1025, N 4. 358 Id. at 1025 (citation omitted). 359 Id. at 1024. 360 Id. at 1025. 361 Id. at 1027. 362 Id. threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.”348 IX. LIABILITY UNDER THE FOURTH AMENDMENT IN § 1983 ACTIONS FOR VIOLATING AN INDIVIDUAL’S POSSESSORY AND/OR PRIVACY RIGHTS IN PERSONAL PROPERTY A. Individuals’ Possessory Rights in their Personal Property under the Fourth Amendment Individuals, such as homeless persons, may leave personal property unattended in or on the facilities or other property of a public transportation authority or other public entity. This sec- tion of the digest discusses three principal issues presented by the presence of such property: whether an individual continues to have a possessory interest or right in his or her personal prop- erty that the individual has left unattended in a public space; whether an owner of unattended personal property has a right to privacy in personal property that is not in the person’s im- mediate possession; and whether an individual has rights of due process with respect to such property to which a public trans- portation authority must adhere before discarding or destroying the person’s property. One legal scholar argues that “[p]ersonal property has long been overlooked in Fourth Amendment jurisprudence.”349 The author contends that the courts, “[i]nstead of artificially look- ing to the law of the state where the individual is domiciled or the personal property is located,” should take a “holistic approach” by assessing “whether the object is reasonably rec- ognizable as personal property.”350 The author posits that the “law of abandonment” provides the requisite standard for de- termining whether an individual intended to continue possess- ing his or her property; for example, the property and/or the circumstances associated with the property may indicate that an owner intends “to continue possessing the property.”351 The article argues that “[c]ontextual signals of possession manifest an individual’s expectations with respect to an object, no matter where the object is located” and that “[t]he circumstances and nature of the property help third parties ascertain the existence of that right.”352 An Oregon statute, applicable to the clearing of personal property from homeless persons’ campsites, is consistent with the argument that the very nature and characteristics of personal property provide “contextual signals” that the owner has not 348 Id. (citation omitted). 349 Maureen E. Brady, The Lost ‘Effects’ of the Fourth Amendment: Giving Personal Property Due Protection, 125 Yale L. J. 946, 948 (2016). 350 Id. at 1001 (footnote omitted). 351 Id. at 1007 (footnote omitted). 352 Id. at 1008 (footnote omitted).

26 TCRP LRD 58 A claim for malicious abuse of process exists against “‘a defen- dant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.’”337 In Marshall, supra, the plaintiff did not present “any evidence that the officers had an ‘improper motive or pursued a collateral purpose outside the legitimate ends of process;’” thus, the court granted the defendants’ motion for a summary judg- ment on Marshall’s claim for malicious abuse of process.338 However, in contrast to a malicious prosecution claim, for which an element of proof is that there was an absence of proba- ble cause, a claim for malicious abuse of process does not require proof that probable cause was lacking.339 Thus, in Gutierrez v. Mass. Transp. Auth.,340 supra, the court held that a finding that there was probable cause was not relevant to an abuse of process claim.341 [T]here was enough evidence for the jury to conclude that the defen- dant officers sought to initiate proceedings against the plaintiffs for an improper purpose. … The jury could infer that the officers’ reports intentionally exaggerated the gravity of the situation so that the pros- ecutor would be more likely to press charges. Probable cause at the time of the arrest does not equate necessarily with subjective good faith in filling out an arrest report at a later time. By the time the arrest reports were being prepared, the officers were aware of the extent of Daniella’s injuries, and the desire to see the plaintiffs prosecuted could be interpreted as a preemptive maneuver in anticipation of tort and civil rights claims.342 The court reversed and remanded the case for a new trial on the plaintiff ’s claim for abuse of process.343 In another case, Pottinger v. Miami,344 a class action alleg- ing, inter alia, that the City of Miami had routinely seized and destroyed the plaintiffs’ personal property, one of the plaintiffs’ claims was for malicious abuse of process. The plaintiffs alleged “that the City, through its police department, has used its legiti- mate arrest process for the unlawful purpose of harassing and intimidating homeless individuals to purge them from streets and parks.”345 A malicious abuse of process claim is tenable when a “prosecution is initiated legitimately but is thereafter used for a purpose other than that intended by the law.”346 Nevertheless, in Pottinger, the court held that, even if the city used the arrest process to harass and disperse the home- less, the city’s “ulterior purpose alone is an insufficient basis for an abuse of process claim….”347 Rather, “[s]ome definite act or 337 Marshall, 2020 U.S. Dist. LEXIS 172567, at *21-22 (citation omitted). 338 Id. at *22 (citation omitted). 339 Pottinger, 810 F. Supp. at 1566 (citations omitted). 340 437 Mass. 396, 772 N.E.2d 552 (Mass. Sup. Jud. Ct. 2002). 341 Id., 437 Mass. at 407-408, 772 N.E.2d at 563. 342 Id., 437 Mass. at 408, 772 N.E.2d at 563 (emphasis supplied). 343 Id., 437 Mass. at 409, 772 N.E.2d at 564. 344 810 F. Supp. 1551 (S.D. Fla. 1992). 345 Id. at 1565 (footnote omitted). 346 Id. (citations omitted) (footnote omitted). 347 Id. at 1568. VIII. LIABILITY UNDER THE FOURTH AMENDMENT IN § 1983 ACTIONS FOR MALICIOUS PROSECUTION OR ABUSE OF PROCESS A. Elements of a § 1983 Action for Malicious Prosecution A § 1983 claim for malicious prosecution requires a plain- tiff to prove that the defendant initiated or continued a criminal proceeding against the plaintiff for which there was no prob- able cause; that actual malice motivated the defendant’s actions; and that the criminal proceeding terminated in the plaintiff ’s favor.331 In Kirk, supra, the court stated that a § 1983 action also requires proof of another element—“the existence of a post- arraignment deprivation of liberty rising to the level of a Fourth Amendment violation.”332 A § 1983 case for malicious prosecution may be viable when evidence emerges later that probable cause was lacking, yet the police and/or the prosecutor continued to pursue the criminal case. In Moroughan, the court stated that [i]n cases where the police had probable cause to arrest, in order to succeed on a malicious prosecution claim, a plaintiff must show that “authorities became aware of exculpatory evidence between the time of the arrest and the subsequent prosecution that would undermine the probable cause which supported the arrest.”333 In Figueroa v. Miami-Dade County,334 supra, the court ruled that Officer Huerta was entitled to a summary judgment on the plaintiff ’s § 1983 claim for malicious prosecution. A claim for malicious prosecution requires a plaintiff to “prove the elements of the common law tort of malicious prosecution and a viola- tion of his Fourth Amendment right to be free from unreason- able seizures.”335 There was no evidence that Officer Huerta was involved in the State Attorney’s office’s decision to prosecute Huerta.336 B. Elements of a § 1983 Action for Malicious Abuse of Process In a § 1983 action for malicious abuse of process, a plain- tiff must prove that legal process was used for an ulterior or illegitimate purpose that resulted in an injury to the plaintiff. 331 Moroughan, 514 F. Supp.3d at 522. See also, Marshall, 2020 U.S. Dist. LEXIS 172567, at *1, 15, 16 (citations omitted) (stating that for Marshall’s claim for malicious prosecution against Officers Mathews and Gallaher under § 1983 and New York law, Marshall had “to demon- strate: ‘(i) the commencement or continuation of a criminal proceeding against [him]; (ii) the termination of the proceeding in [his] favor; (iii) that there was no probable cause for the proceeding; and (iv) that the proceeding was instituted with malice,’” as well as “demonstrate a post- arraignment deprivation of liberty sufficient to implicate his Fourth Amendment rights”) (citations omitted). 332 Kirk, 2001 U.S. Dist. LEXIS 2786, at *43 (citations omitted). 333 Moroughan, 514 F. Supp.3d at 524 (citations omitted). 334 2012 U.S. Dist. LEXIS 78809, at *1 (S.D. Fla. 2012). 335 Id. at *14-15 (citation omitted). 336 Id. at *15. See also, Laster, 2006 U.S. Dist. LEXIS 10359, at *11.