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Property Rights: Addressing Blight in Your Community While Respecting Constitutional Property Rights
Homelessness and Property Rights
Written By Silver & Wright LLP
December 18, 2020

Homelessness has been an issue at the forefront of the minds of California lawmakers for years now. As housing prices continue to climb and the COVID-19 pandemic ravages on, more people find themselves without shelter and local agencies are struggling to find a balance between respecting the property rights of the unsheltered population and keeping their cities clean and safe. While some cities have taken to “sweeps” of encampments and sidewalks to collect and dispose of trash and debris, these agencies may be unwittingly violating the property rights of homeless individuals. Before disposing of property belonging to homeless individuals within their jurisdiction, an agency must consider the property rights of these unsheltered individuals to ensure they are not opening themselves up to legal risks.

When is the seizure and destruction of property a violation of constitutional rights?

An agency employee may observe unattended property on a public city sidewalk and assume that it is abandoned property subject to seizure and disposal—but this incorrect assumption may expose the agency to potential litigation. Courts have determined that unsheltered individuals are protected under the Fourth Amendment against unreasonable seizures of their property and that “unattended property” does not always equate to “abandoned property.” Thus, the immediate seizure or destruction of unabandoned property may constitute a violation of the Fourth Amendment.

In other words, not all unattended property belonging to an unsheltered person is abandoned property. Therefore, the City should not summarily remove or dispose of this property, even if it is in violation of local ordinance. In these situations, the agency may need to provide meaningful and sufficient notice of the violation to the owner and provide adequate opportunity to address the violation and/or move their property.

However, there are some exceptions that would allow an agency official to seize unattended property without notice: if the property is evidence of a crime; if the property is contraband; or if the property presents an immediate threat to public health or safety. In all other circumstances, the official should determine—based on a totality of circumstances surrounding the unattended property—whether the property is in fact abandoned and not temporarily unattended before the City seizes the property.  For non-dangerous property, local policies that account for the balancing of the equities involved will be necessary.

The nuances of abandoned property

Courts have determined that temporarily leaving property unattended is not the same as abandoning the property. To determine whether a property is abandoned or temporarily unattended is primarily a question of intent and whether words spoken, acts done, or other objective facts indicate that the individual is no longer interested in continued ownership of the property. In such cases, the agency employee may reasonably conclude that the unattended property is abandoned and, therefore, no longer constitutionally protected. Factors to be considered in this “reasonableness test” may help determine if property is truly abandoned, and not just temporarily unattended, are: whether the property is organized and packed in a way that indicates ownership; whether the property consists of items like food, blankets, clothing, identification documents, or other items of value; the manner in which the items are placed; whether they are left in the care of another person; and how long the property has been left unattended.

Further, agency employees should ask any people nearby if they can identify the owner of the property.  If the owner of the property is unknown and the property is not packed up, officials may affix a notice to it that the property will be deemed abandoned and removed if it has not been moved to a new location within 24 hours after the property has been posted.  If the property is packed up, officials may, after first observing it unattended in the same location for 24 hours, affix a notice to it that the property will be deemed abandoned and removed if the property has not been moved to a new location within 24 hours after it has been posted.  After posting property for the specified period, officials may proceed with removal of the property if they have an objectively reasonable belief that it is abandoned. Ultimately, agencies should make a reasonable effort to determine if property is abandoned and attempt to locate a potential owner before any action is taken.  The property may also need to be held for a sufficient period of time.

In cases involving unattended property that are not a health and safety threat or evidence of a crime or contraband, determining whether the property is truly abandoned is critical to whether it can be lawfully seized and disposed. Reasonableness remains the standard for determining the constitutionality of seizing property.

Seonhae "Kellie" Shin

Attorney

Conclusion

Agency employees should pay close attention to the individual’s voluntary words or conduct to determine whether a reasonable person would believe that the unsheltered individual relinquished his or her property rights. By taking these necessary precautions, agencies can better limit their potential exposure to litigation and protect the property rights of unsheltered individuals.

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