Ninth Circuit Decision on Seizing the Unattended Property of Homeless Persons

Today’s decision is Lavan v. City of Los Angeles, and it divided the Ninth Circuit. The majority opinion by Judge Wardlaw (joined by Judge Reinhardt) rules that the general practice of seizing the unattended property of homeless persons violates the Fourth Amendment, while the dissent by Judge Callahan concludes that it does not.

I have two reactions:

1) On one hand, Judge Wardlaw is right, and Judge Callahan is wrong, that the issue in this case is the Fourth Amendment prohibition on seizures rather than searches. Taking away someone’s property doesn’t “search” anything, it only “seizes” it: As a result, Katz and the reasonable expectation of privacy test have nothing to do with this case.

2) On the other hand, whether taking a person’s unattended property is actually a seizure, and whether it is an unreasonable seizure, depends on the circumstances. Sometimes it will be, and sometimes it won’t be; I don’t know how to answer the question in the abstract. The district court’s injunction tries to get around this by setting a general policy for what the police can and can’t do under the Fourth Amendment. But the lesson of cases like City of Los Angeles v. Lyons , 461 U.S. 95 (1983), and Rizzo v. Goode, 423 U.S. 362 (1976), is that federal courts can’t take on that role. They can’t issue a general injunction that sets law enforcement policy for state agencies in the Fourth Amendment area both because because every case is different (Lyons) and because of the intrusion onto state sovereignty of such injunctive relief (Rizzo). So while I agree with Judge Wardlaw that the issue is seizures, not searches, I’m not sure how the injunction can be squared with these cases. For more on the Fourth Amendment limitations on injunctive relief, including Lyons and Rizzo, see my article The Limits of Fourth Amendment Injunctions.