Watters et al v. Otter et al

Filing 115

MEMORANDUM DECISION AND ORDER granting 82 Motion for Partial Summary Judgment; deeming as moot 84 Motion for Partial Summary Judgment. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

EDWARD WATTERS, DEAN
GUNDERSON, STEVEN FARNWORTH,
MATTHEW ALEXANDER NEWIRTH,
individuals, and OCCUPY BOISE, an
Idaho unincorporated nonprofit association,

Case No. 1:12-cv-00076-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
C.L. (BUTCH) OTTER, in his official
capacity as the Governor of the State of
Idaho, TERESA LUNA, in her official
capacity of the Director of the Idaho
Department of Administration, and COL.
G. JERRY RUSSELL, in his official
capacity as the Director of the Idaho State
Police,
Defendants.

The Court has before it the State’s motion for partial summary judgment. The
Court heard oral argument on February 26, 2013, and took the motion under advisement.
For the reasons set forth below, the Court will grant the State’s motion, to the extent it
asks the Court to find the state’s no-camping statute, Section 67-1613, Idaho Code, is
facially constitutional. The Court further finds that section 67-1613A, which governs the

MEMORANDUM DECISION AND ORDER - 1

disposition of any “property remaining after issuance of a citation or any property left
unattended,” is also facially constitutional. 1
INTRODUCTION
Occupy Boise’s tent city is a political protest of income inequality. As such, it is
expressive conduct protected by the First Amendment. The State has the authority to
regulate expressive conduct and can require reasonable time and place restrictions that
are content neutral. The no-camping statute at issue in this case, on its face, is a
reasonable time, place, and manner restriction . It is therefore facially constitutional.
If the State enforces a law in a manner that targets certain speech for restriction
because of its content – especially when the target is political speech in a public forum –
it will be taken to task. When a restriction is content-based, the State bears an
“extraordinarily heavy burden” of showing that the law or its enforcement is the least
restrictive means to further a compelling State interest. Here, however, the State ceased
its initial enforcement efforts, which appeared to exceed the grasp of the statute, after the
Court issued its initial injunction prohibiting the State from forcibly removing Occupy
Boise’s symbolic tent city; the Court therefore finds no evidence that the State’s current

1

Occupy Boise also filed a motion for partial summary judgment challenging the
constitutionality of certain temporary administrative rules governing use of the Capitol grounds. Since
filing that motion, the Idaho legislature has enacted new rules. The parties have agreed to allow Occupy
Boise to amend their motion for partial summary judgment to address the changes made to the rules.
Thus, Occupy Boise’s original motion for partial summary judgment is moot (Dkt. 84).

MEMORANDUM DECISION AND ORDER - 2

effort at enforcing the camping ban has unconstitutionally targeted Occupy Boise’s
expressive conduct.
With respect § 67-1613A, which governs the disposition of any “property
remaining after issuance of a citation or any property left unattended,” the Court finds
that the procedures it authorizes constitutes neither an unreasonable seizure under the
Fourth Amendment nor an unconstitutional taking without just compensation under the
Fifth Amendment. Likewise, the Court finds that section 67-1613A does not violate the
Fourteenth Amendment due process requirements.
BACKGROUND
In November 2011, Occupy Boise, in solidarity with the Occupy Wall Street
movement, erected a tent city on the Capitol Annex grounds to protest income inequality.
Occupy Boise placed the tent city on a public plaza in direct view of the Idaho
Statehouse, the Idaho Supreme Court building, and other nearby government buildings.
As part of their protest, Occupy Boise participants camped on the Annex grounds roundthe-clock – cooking, eating, and sleeping there.
On February 21, 2012, Governor Otter signed into law a bill banning “camping”
on state grounds, including the site of the Occupy Boise tent city. I.C. § 67-613. The
law also authorizes the State to “remove any unauthorized personal property” and
consider it as “litter…[to] be disposed of…” Id. Upon signing the bill into law, Governor
Otter immediately issued a directive requiring Occupy Boise to remove the symbolic tent
city from the Capitol Annex grounds by 5 p.m., on February 27, 2012. To implement the

MEMORANDUM DECISION AND ORDER - 3

Governor’s edict, the State Police developed a detailed plan called “Operation DeOccupy Boise” to remove the protesters and their tents, including the large assembly tents
not meant for sleeping.
In response, Occupy Boise immediately moved to enjoin enforcement of the nocamping statutes, as well as the Governor’s edict directing the occupants to permanently
vacate the site. Occupy Boise argued that the new law and the Governor’s edict requiring
the removal of the symbolic tent city violated its First Amendment rights.
This Court agreed. February 26, 2012 Memorandum Decision and Order at 10,
Dkt. 17. It found that the State’s enforcement of the law banning camping and requiring
immediately removal of the tent city targeted Occupy Boise’s expressive conduct
protected by the First Amendment. The Court interpreted the law as permitting a
symbolic tent city that did not feature overnight “sleeping” or “camping.” Yet, Governor
Otter’s edict required removal of all tents. Because the reach of the State’s proposed
enforcement appeared to exceed the grasp of the statute, the Court found that the State
was “stretching to suppress the core political message of Occupy Boise–its tents–as
presented in a public forum,” and these circumstances rendered the State’s enforcement
policy of removing the tents presumptively invalid under the First Amendment. The
Court therefore concluded it was unlikely that the State could show that its enforcement
policy was the least restrictive means to further a compelling state interest.
The Court, however, agreed with the State that the ban on “camping” or
“sleeping” was a reasonable time, place, and manner restriction. It also found ban on

MEMORANDUM DECISION AND ORDER - 4

personal belongings related to camping, along with cooking and fire building materials
was proper.
For all these reasons, the preliminary injunction entered by the Court on February
26, 2012 enjoined the State from removing the tents. The injunction, however, allowed
Occupy Boise to staff the site around the clock. The Court ordered the preliminary
injunction remain in place until it could hold an evidentiary hearing.
The Court later modified the injunction at the State’s request. The modified
injunction required Occupy Boise to temporarily vacate the Capitol Annex grounds to
allow for repairs and maintenance of the property. The Court’s order allowed Occupy
Boise to resume its vigil after eight weeks with the caveat that Occupy Boise would have
to grant the State unobstructed access to water and mow the lawn at scheduled times.
Now the State seeks summary judgment on Occupy Boise’s claims directed to the
no-camping statutes. Occupy Boise opposes the motion, renewing its arguments that the
no-camping statutes impermissibly restrict their First Amendment rights to expressive
activity, assembly, and association on the grounds around Idaho’s Capitol building.
ANALYSIS
1. First Amendment Framework
Certain general principles of First Amendment law guide the Court’s analysis. The
First Amendment prohibits Congress from enacting laws “abridging the freedom of
speech, ... or the right of the people peaceably to assemble.” U.S. Const. amend. I. The

MEMORANDUM DECISION AND ORDER - 5

Supreme Court has extended the protection of the First Amendment to the states.
Edwards v. South Carolina, 372 U.S. 229, 235 (1963).
The First Amendment affords certain types of speech greater protection. See, e.g.,
Nat'l Adver. Co. v. City of Orange, 861 F.2d 246, 248 (9th Cir. 1988) (“The first
amendment affords greater protection to noncommercial than to commercial
expression.”). Political speech is core First Amendment speech, critical to the
functioning of our democratic system. Carey v. Brown, 447 U.S. 455, 467 (1980). “[T]he
practice of persons sharing common views banding together to achieve a common end is
deeply embedded in the American political process.” NAACP v. Claiborne Hardware
Co., 458 U.S. 886, 907(1982) (quoting Citizens Against Rent Control/Coal. for Fair
Hous. v. City of Berkeley, 454 U.S. 290, 294 (1981)). For this reason, the First
Amendment applies with particular force to marches and other protest activities. U.S. v.
Baugh, 187 F.3d 1037, 1042 (9th Cir. 1999)
The Supreme Court also affords different protections to First Amendment
activities depending on the location of the activities. To account for these differences, the
Court has developed an analysis that examines the location of the speech to determine the
level of scrutiny the courts must give to any state-imposed restrictions on that speech.
According to this analysis, the restrictions on speech in a traditional public forum are
examined under the strictest scrutiny. United States v. Kokinda, 497 U.S. 720 (1990). In
a public forum, the State may not impose a blanket prohibition on speech, and may
enforce a content-based exclusion only if it is narrowly drawn to achieve a compelling

MEMORANDUM DECISION AND ORDER - 6

state interest. A.C.L.U. of Nevada v. City of Las Vegas, 333 F.3d 1092 (9th Cir. 2003).
However, the State may enforce time, place, and manner restrictions that are contentneutral, narrowly tailored to serve a significant government interest, and leave open
alternative channels of communication. Id.
“When the Government restricts speech or other First Amendment rights, the
Government bears the burden of proving the constitutionality of its actions.” United
States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 816 (2000).
2. Section 67-1613, Idaho Code
Occupy Boise argues that section 67-1613 is facially unconstitutional. There are
two types of facial constitutional challenges. “First, a plaintiff seeking to vindicate his
own constitutional rights may argue that an ordinance ‘is unconstitutionally vague or ...
impermissibly restricts a protected activity.’ ” See Santa Monica Food Not Bombs v. City
of Santa Monica, 450 F.3d 1022, 1033 (9th Cir. 2006) (quoting Foti v. City of Menlo
Park, 146 F.3d 629, 635 (9th Cir. 1998)). “Second, ‘an individual whose own speech or
expressive conduct may validly be prohibited or sanctioned is permitted to challenge a
statute on its face because it also threatens others not before the court.’” Santa Monica
Food Not Bombs, 450 F.3d at 1033 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S.
491, 503 (1985)). The Court understands Occupy Boise to be raising the first type of
facial challenge.
Section 67-1613 forbids any person from camping “on or in any state-owned or
leased property or facility including, but not limited to, the capitol mall, except those that

MEMORANDUM DECISION AND ORDER - 7

are designated as a recreational camping ground, area or facility.” I.C. § 67-1613. Under
section 67-1613, “the term ‘camp’ or “camping’ means to use as a temporary or
permanent place of dwelling, lodging or living accommodation, and which indicia of
camping may include, but are not limited to, storing personal belongings or for sleeping,
carrying on cooking activities, laying out bedding or making any fire.” Id. Persons who
violate this provision are guilty of an infraction. Id.
A. Occupy Boise’s Tent City and Overnight Camping Constitute Expressive
Conduct Taking Place in a “Traditional” Public Forum.
First, the Court reaffirms its finding that Occupy Boise’s tent city and overnight
camping constitute expressive conduct protected under the First Amendment. Watters v.
Otter, 854 F.Supp.2d 823, 828 (D.Idaho February 26, 2012). In Clark v. Community for
Creative Non–Violence, 468 U.S. 288, 293 (1984), the Supreme Court assumed without
deciding that sleeping in a tent in a park opposite the White House to protest the
treatment of the homeless was protected speech. More recently, other courts have
recognized that the Occupy movement’s tent cities likely amount to expressive conduct.
See, e.g., Occupy Columbia v. Haley, 866 F.Supp.2d 545, 557 (D.S.C. 2011) (citing
cases). As noted in its decision on Occupy Boise’s motion for a preliminary injunction,
the Court agrees with the analysis of these decisions and finds here that Occupy Boise’s
tent city is expressive conduct.
Second, the Court finds that sleeping, in this context, is also expressive conduct,
“The act of sleeping in the tents conveys a message of personal commitment and sacrifice
to the political cause that is not conveyed by the tent city alone.” Feb. 26, 2012

MEMORANDUM DECISION AND ORDER - 8

Memorandum Decision and Order at 12, Dkt. 17 . Although sleeping isolated from
context may seem the least expressive activity imaginable, it becomes imbued with great
meaning when it is used by Occupy Boise members to show their personal commitment
and sacrifice. The Court therefore disagrees with Justice Scalia that sleeping can never be
expressive conduct. Community for Creative Non–Violence v. Watt, 703 F.2d 586
(D.C.Cir.1983) (Scalia, J., dissenting), rev’d, Clark, 468 U.S. at 292. Instead, the Court
finds that sleeping, in the context here, is expressive conduct protected by the First
Amendment. See Occupy Fort Myers v. City of Fort Meyers, 2011 WL 5554034 at *5
(M.D.Fla. Nov.15, 2011). Cooking or making fires, however, is not expressive conduct
and therefore not subject to First Amendment protection.
Finally, the Court reaffirms its finding that the expressive conduct was taking
place in a “traditional public forum” that has “achieved a special status in our law.” Id. at
829. Before vacating premises to allow for the repair and maintenance of Capitol
grounds, Occupy Boise’s tent city was located on the grounds surrounding the old Ada
County Courthouse, across the street from the Idaho Statehouse. This public open space
is highly visible and physically close to the seat of State Government, making it a natural
forum for political protests. Assembling and expressing grievances “at the site of the
State Government” is the “most pristine and classic form” of exercising First Amendment
freedoms. Edwards v. South Carolina, 372 U.S. 229, 235 (1963).

MEMORANDUM DECISION AND ORDER - 9

B. Section 67-1613’s No-Camping Ban Is a Reasonable Time, Place, and Manner
Restriction.
Because the Ordinance regulates protected speech in a public forum, the Court
applies the “time, place, and manner” test: “the government may impose reasonable
restrictions on the time, place, or manner of protected speech, provided the restrictions
‘are justified without reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant governmental interest, and that they leave open
ample alternative channels for communication of the information.’ ” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark, 468 U.S. 288, 293 (1984)).
Unlike even other traditional public forums like streets, the open spaces around the
Capitol grounds “are uniquely suitable for public gatherings and the expression of
political or social opinion.” ACORN v. City of Phoenix, 798 F.2d 1260, 1267 n.5 (9th Cir.
1986). Given the elevated status of traditional public forums such as the Capitol
grounds, the State bears “an extraordinarily heavy burden to regulate speech” in this
arena. Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1022 (9th
Cir. 2009)(citation omitted).
With these guiding principles in mind, the Court will now proceed to the “time,
place, and manner” analysis described in Ward. The Court acknowledged in its prior
decision that nothing in the no-camping statutes targeted Occupy Boise’s political speech,
but it found evidence to support a finding of content-based enforcement. Memorandum
Decision and Order at 11, Dkt. 17. The stated intention of Governor Otter’s edict and the
State Police’s “De-Occupy Boise” operation plan was to remove Occupy Boise entirely.

MEMORANDUM DECISION AND ORDER - 10

For this reason, the Court found it “likely Occupy Boise [could] show that the State’s
enforcement policy – that Idaho Code § 16-1613 bans even a symbolic tent city without
overnight sleeping – is presumptively unconstitutional, and it [was] unlikely the State
[could] meet its ‘extraordinarily heavy burden’ of showing that it is the least restrictive
means of serving a compelling State interest.” Id. Assuming the State still intends to use
the no-camping statutes to evict Occupy Boise – “tents and all” – the Court would find
such content-based enforcement unconstitutional.
However, since the Court issued its injunction barring the State from removing
Occupy Boise’s tent city, it seems the State Police have scrapped their initial enforcement
plan. If the State does not use the no-camping statutes to target Occupy Boise’s political
speech, it stands on much better footing, and this case starts to resemble Clark and other
Occupy movement cases.
Most courts that have considered similar no-camping provisions have found they
are content-neutral on their face. See, e.g., Occupy Fresno v. County of Fresno, 835
F.Supp.2d 849 (E.D.Cal. December 13, 2011). Idaho’s no-camping statute, like other nocamping laws, does not describe speech by content on its face, and it does not distinguish
favored speech from disfavored speech. Nor does the statute require an administrative
officer or the police to necessarily examine the content of the message conveyed to
determine whether conduct violates the statute. The Court therefore finds that the nocamping statute is content-neutral and subject to intermediate scrutiny.

MEMORANDUM DECISION AND ORDER - 11

Content-neutral laws need only be “narrowly tailored to serve a significant
government interest, and leave open alternative channels of communication.” Ward, 491
U.S. at 791. The no-camping ban need not be the least restrictive or intrusive means of
serving those interests so long as the interests would be achieved less effectively absent
the law. Id. at 798-99. But the statute must not “burden substantially more speech than is
necessary to further the government’s legitimate interests.” Id. at 799.
Even finding that the ban on overnight sleeping violates Occupy Boise’s First
Amendment rights, the Court finds the camping restriction is a reasonable time, place,
and manner restriction. Under Clark, the State has the right to ban overnight sleeping as a
reasonable time and place restriction. 468 U.S. at 294-95. According to the Supreme
Court, a sleeping ban “clearly” limits the manner in which a demonstration may be
carried out, which the Constitution permits so long as the limitations is narrowly tailored
to serve a substantial government interest. Id. And a ban on camping or sleeping in a
public park or other public area “narrowly focuses on the Government’s substantial
interest in maintaining the parks in the heart of our Capital in an attractive and intact
condition.” Id. at 296. What the Supreme Court said in Clark, regarding our nations’
capital applies with equal force to the area surrounding Idaho’s Capitol building. The
State has a substantial interest in maintaining the Capitol grounds in an attractive and
intact condition, and a ban on camping serves this interest. The State also has an interest
in ensuring the health and safety of its citizens, and providing unobstructed grounds and
convenient access to the Capitol Mall area. The camping ban promotes those interests.

MEMORANDUM DECISION AND ORDER - 12

Occupy Boise argues that since Clark, the Supreme Court has “clarified” that the
State must have evidence – not mere conjecture – that a challenged regulation actually
advances the State’s interests. According to Occupy Boise, the State has failed to meet
this burden of proving the connection between the camping prohibition and the State’s
justifications. This is not so.
First, the Supreme Court “has never accepted mere conjecture as adequate to carry
a First Amendment burden.” Nixon v.Shrink Mo. Gov't PAC, 528 U.S. 377, 392 (2000).
This was true before Clark, and it was true after Clark. So Occupy Boise’s basic premise
– that the Supreme Court used to accept “mere conjecture” in First Amendment cases and
now it doesn’t – is flawed.
Second, the “quantum of empirical evidence needed to satisfy heightened judicial
scrutiny of legislative judgments” is not fixed in every case; instead, it varies “up or
down with the novelty and the plausibility of the justification raised.” Id. at 391. And, in
this case, the interests the State seeks to further– advancing the aesthetic interests of the
Capitol grounds and promoting public safety – are neither novel nor implausible. This
means that the “quantum of evidence” needed to challenge required here falls on the
lower end of the scale.
Indeed, in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), the
Supreme Court stated, in essence, that empirical evidence was not necessary to show a
connection between the regulation and the justification:
In effect, Justice Souter asks the city to demonstrate, not merely by appeal
to common sense, but also with empirical data, that its ordinance will

MEMORANDUM DECISION AND ORDER - 13

successfully lower crime. Our cases have never required that municipalities
make such a showing, certainly not without actual and convincing evidence
from plaintiffs to the contrary.
Id. at 439. This case – decided after Clark –undermines Occupy Boise’s theory that the
Supreme Court has heightened the government’s evidentiary burden in First Amendment
cases. The Court is convinced that the Supreme Court would not decide Clark, nor this
case, differently today.
This conclusion is bolstered by the multiple Occupy Movement-related cases
involving similar no-camping regulations on state property. In every Occupy-Movement
related case of which the Court is aware, the deciding court has followed Clark in
upholding similar no-camping bans. None of these cases even suggests that the
evidentiary burden attendant to the narrowly-tailored element has been modified since
Clark, or otherwise cast doubt on Clark’s continued viability.
For all these reasons, the Court finds no reason to deviate from Clark’s holding. It
therefore finds that Idaho’s no-camping statute is narrowly tailored to further the State’s
significant interests in maintaining the attractiveness of government-owned property and
promoting public safety. Moreover, ample alternative channels exist for Occupy Boise to
convey its message. The Court has allowed the tent city to remain so long as it does not
interfere with the State’s maintenance of the property. Manning the symbolic tent city 24
hours a day, every day, conveys Occupy Boise’s message of personal commitment and
sacrifice, even without allowing sleeping or allowing other indicia of camping to remain.

MEMORANDUM DECISION AND ORDER - 14

As in Clark, the State here has the right to ban camping, cooking, making fires,
and storing personal belongings related to camping. Section 67-1613 is therefore
constitutional on its face. Occupy Boise may maintain its symbolic tent city on the
Capitol Mall grounds so long as it complies with all constitutional rules and regulations.
3. Section 67-1613A, Idaho Code
Occupy Boise claims that the property seizures authorized by section 67-1613A do
not comport with the Fourth, Fifth, and Fourteenth Amendment protections.
Section 67-1613 provides that any person who violates the camping prohibition
“shall be required to remove all [his or her] personal property from the state-owned or
leased property.” Section 67-1613A governs the disposition of any “property remaining
after issuance of a citation or any property left unattended.” This section requires that
any such property “be held by the agency or its agent removing the property in a secure
location for a period of not less than ninety (90) days.” Id. It further requires that notice
“be posted and remain at the nearest reasonable location to the place of removal with the
agency’s or agent’s contact information for the ninety (90) day period.” Id.
But if property is not claimed within the ninety-day period, the property is
“deemed abandoned and the agency shall have the right to dispose of the property.” The
section allows a “reasonable storage fee as determined by the agency” to be assessed at
the time an owner claims the property. Id. This section also immunizes any state agents,
employees, or contractors who administer the section so long as they comply with all
provisions. Id.

MEMORANDUM DECISION AND ORDER - 15

A. The Seizures Authorized by Section 67-1613A Do Not Violate the Fourth
Amendment
Under the Fourth Amendment prohibition of “unreasonable searches and
seizures,” U.S. Const. amend IV, a seizure has been found to occur whenever “there is
some meaningful interference with an individual's possessory interests in that property.”
Soldal v. Cook County, 506 U.S. 56, 62 (1992). “No more is necessary to trigger the
Fourth Amendment’s reasonableness requirement.” Lavan v. City of Los Angeles, 693
F.3d 1022 (9th Cir. 2012), reh’g pet. filed (Sept. 19, 2012) (No. 11-56253). A seizure is
deemed unreasonable if the government's legitimate interest in the search or seizure does
not outweigh the individual's interest in the property seized.
In Lavan, the Ninth Circuit held that the City of Los Angeles’s seizure and
immediate destruction of unabandoned personal possessions temporarily left on public
sidewalks by nine homeless people was unreasonable. According to the Circuit, the city
did not have a good faith belief that the individuals’ possessions, which ranged “from
personal identification documents and family memorabilia to portable electronics,
blankets, and shelters,” were abandoned when the City “summarily destroyed” them.
The Circuit criticized the seizure of the homeless persons’ property, finding that the city
employee’s immediate destruction of the property, without first providing notice or
opportunity to be heard, rendered an otherwise lawful seizure unreasonable. Id. at 10301032. Thus, the seizure was lawful but the immediate destruction of the property was
not.

MEMORANDUM DECISION AND ORDER - 16

Here, as in Lavan, the initial seizure of “property remaining after issuance of a
citation or any property left unattended” authorized by section 67-1613A is lawful. The
community caretaking exception to the Fourth Amendment allows for the seizure of
unattended property on public lands when the seizure is made to protect the property
rather than to investigate a crime. Here, there is no evidence that section 67-1613A
authorizes seizures for the purpose of investigating crimes. Hallstrom v. City of Garden
City, 991 F.2d 1473, 1477 n.4 (9th Cir. 1993). Instead, section 67-1613A authorizes
seizures to protect the unattended property from vandalism or theft and to ensure that the
remaining property does not continue to interfere with the use of state lands. Thus, the
seizures section 67-1613A authorizes fit within the community caretaking exception and
are therefore lawful.
Unlike the city’s policy in Lavan, section 67-1613A provides for pre-deprivation
notice where the property owner is present and posting a notice of removal when the
owner is absent or cannot be identified. A fee for storage may be imposed but is not
mandatory. If a fee is charged, the owner has the right to initiate a contested case under
the Idaho Administrative Procedure Act, Idaho Code §§ 67-5740 to -5752, through a
petition directed to the Department. IDAPA 04.11.01.152 and 04.11.01.230.01.c; see
Laughy v. Idaho Dep’t of Admin., 243 P.3d 1055, 1060 (2010). Section 67-1613A also
provides for 90-day storage period before the property is destroyed. Section 67-1613A
thus differs markedly from the city’s policy in Lavan. Because section 67-1613A

MEMORANDUM DECISION AND ORDER - 17

provides for notice and some opportunity to be heard, as well as a 90-day storage period,
the seizures the statute authorizes would not violate the Fourth Amendment.
B. Section 67-1613A Does Not Violate the Fifth Amendment
The Fifth Amendment provides, “nor shall private property be taken for public use,
without just compensation.” There are two types of “per se” takings: “(1) permanent
physical invasion of the property; and (2) a deprivation of all economically beneficial use
of the property.” Laurel Park Cmty., LLC v. City of Tumwater, 698 F.3d 1180 (9th Cir.
2012)(citations omitted). In some instances, “if government action would qualify as a
taking when permanently continued, temporary actions of the same character may also
qualify as a taking.” Arkansas Game and Fish Comm’n v. United States, ___ U.S. ___,
___, 133 S. Ct. 511, 515, 519 (2012) (holding that a temporary takings claim may be
maintained where the government takes temporary possession of property for public use).
Occupy Boise argues that section 67-1613A authorizes a taking of personal
property for public use without just compensation. This is simply not true. Section 671613A does not provide for the seizure of any property for use by the State or private
parties. Instead, the statute provides for the storage of the property so that it may be
retrieved by its owner. If the owner does not retrieve the property within 90 days, it is
destroyed. Nothing about section 67-1613A custody provisions resemble either a
physical or regulatory taking, and Occupy Boise cites no apposite authority for a contrary
conclusion. The Court will therefore grant the State’s motion for summary judgment on
this claim.

MEMORANDUM DECISION AND ORDER - 18

C. Section 67-1613A Fails to Provide an Opportunity to Be Heard
Occupy Boise argues that section 67-1613A also violates due process because
property owners are not provided a pre-deprivation hearing before their property is
removed and taken into custody by state officials.
Under the Fourteenth Amendment to the United States Constitution, “[n]o state
shall... deprive any person of life, liberty, or property, without due process of laws.” U.S.
Const. amend. XIV. Due process requires both notice and an opportunity for a hearing.
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).. “The
government may not take property like a thief in the night; rather, it must announce its
intentions and give the property owner a chance to argue against the taking.” Clement v.
City of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008). The Ninth Circuit has made clear
that it “assess[es] due process case-by-case based on the total circumstances.” Miranda v.
City of Cornelius, 429 F.3d 858, 866 (9th Cir. 2005).
Section 67-1613A provides for pre-deprivation notice where the property owner is
present and posting a notice of removal when the owner is absent or cannot be identified.
Thus, the notice requirement is satisfied where the owner can be readily identified.
In addition, the Court finds no due process violation for failure to provide a postdeprivation hearing. Section 67-1613A authorizes temporary seizures of property
pursuant to the state’s community caretaking function. To claim property seized under
the statute, the property owner must only go pick it up where it is being held within 90
days, and the state must return it. And, if a storage fee is charged, the property owner

MEMORANDUM DECISION AND ORDER - 19

may contest it. Assuming the state follows these procedures outlined in the statute,
Occupy Boise cannot show that the state has deprived them of a constitutionallyprotected interest in life, liberty, or property based on such a hypothetical loss.
ORDER
IT IS ORDERED that:
1. Defendants’ motion for partial summary judgment (Dkt. 82) is GRANTED;
2. Occupy Boise’s first motion for partial summary judgment (Dkt. 84) is deemed
MOOT.

DATED: June 26, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 20