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).