FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JANET GARCIA; GLADYS ZEPEDA; No. 20-55522

MIRIAM ZAMORA; ALI EL-BEY;
PETER DIOCSON, JR.; MARQUIS D.C. No.
ASHLEY; JAMES HAUGABROOK; 2:19-cv-06182-
KTOWN FOR ALL, an unincorporated DSF-PLA
association; ASSOCIATION FOR
RESPONSIBLE AND EQUITABLE
PUBLIC SPENDING, an unincorporated OPINION
association,
Plaintiffs-Appellees,

v.

CITY OF LOS ANGELES, a municipal

entity,
Defendant-Appellant,

and

DOES, 1–7,
Defendant.

Appeal from the United States District Court

for the Central District of California
Dale S. Fischer, District Judge, Presiding

Argued and Submitted January 13, 2021

Pasadena, California
2 GARCIA V. CITY OF LOS ANGELES

Filed September 2, 2021

Before: Michelle T. Friedland and Mark J. Bennett, Circuit

Judges, and David A. Ezra, * District Judge.

Opinion by Judge Friedland;

Dissent by Judge Bennett

SUMMARY **

Civil Rights

The panel affirmed the district court’s preliminary

injunction prohibiting the City of Los Angeles from
discarding homeless individuals’ “Bulky Items” that are
stored in public areas, as authorized by a provision of its
municipal code.

As part of the City’s response to the homelessness crisis,

section 56.11 of the City’s municipal code (the “ordinance”)
strictly limits the storage of personal property in public
areas. Under subsection (3)(i) of the ordinance (the “Bulky
Items Provision”), the City, without notice, may remove and
may discard any “Bulky Items” (generally any item too large
to fit into a 60-gallon container) stored in a public area unless
the Bulky Item is designed to be used as a shelter.

*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 GARCIA V. CITY OF LOS ANGELES 3

The panel first agreed with the district court that

Plaintiffs were likely to succeed on their claim that the Bulky
Items Provision violates the Fourth Amendment’s protection
against unreasonable seizures. The panel noted that in Lavan
v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012), this
court upheld a preliminary injunction that prohibited Los
Angeles from summarily destroying homeless individuals’
publicly stored personal property. The panel saw no
meaningful distinction between the destruction of property
enjoined in Lavan and the destruction of property enjoined
here.

The panel also concluded that the ordinance’s clauses

authorizing the discarding of Bulky Items were not
functionally separable and therefore were not severable from
the remainder of the Bulky Items Provision. The City
contended that because the ordinance included a severability
clause, the district court erred in not severing the clauses that
specifically authorized discarding Bulky Items (“the
destruction clauses”). The City argued that, without the
destruction clauses, the remainder of the Bulky Items
Provision would be constitutional because the removal alone
of Bulky Items would be lawful, and thus, the entire Bulky
Items Provision should not have been enjoined.

Applying California law, the panel explained that the

presence of a severability clause is not conclusive, and that
to be severable an invalid provision also must be
grammatically, functionally, and volitionally separable from
the remainder of the act. All three criteria must be satisfied.
The panel held that the Bulky Items Provision was not
functionally autonomous absent the destruction clauses
because those clauses were necessary to the Provision’s
operation and purpose. No paragraph of the ordinance
provided that the City may “move” or “remove” property
4 GARCIA V. CITY OF LOS ANGELES

from a public area without specifying what happened after

that movement or removal. This structure indicated that
“may remove,” as the phrase was used in the ordinance,
described only the initial step of a multi-step enforcement
process—making the larger phrase “may remove and may
discard” a unitary whole.

In addition to being functionally inseparable in light of

the structure of the ordinance, the destruction clauses of the
Bulky Items Provision also were functionally inseparable in
practice. The panel noted that the City’s own statements
made clear that discarding Bulky Items was “inextricably
connected” to full enforcement of the Provision.
Accordingly, the panel could not say that the Bulky Items
Provision could stand on its own, unaided by the clauses
authorizing destruction. Rather, the ability to destroy Bulky
Items appeared to be an integral part of the Bulky Items
Provision’s operation and purpose. This meant that the
destruction clauses were not functionally separable.

The panel held that the district court appropriately

concluded that the remaining preliminary injunction factors,
set forth in Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7 (2008), tipped in Plaintiffs’ favor.

Dissenting, Judge Bennett stated that the Los Angeles

City Council included a robust severability clause in the
ordinance, and that the presence of such a clause established
a presumption in favor of severance. Judge Bennett believed
that the “may discard” provision of the ordinance should be
severed, and that the constitutionality of the “may remove”
provision should then be separately analyzed. Judge Bennett
noted that the district court did not directly address the City’s
severance argument. He therefore would remand the case to
the district court to consider whether the “may remove”
 GARCIA V. CITY OF LOS ANGELES 5

provision is facially constitutional, and if it finds that it is, to

reconsider whether the injunctive relief it ordered is
appropriate.

COUNSEL

Jonathan H. Eisenman (argued), Deputy City Attorney;

Blithe S. Bock, Managing Assistant City Attorney; Scott
Marcus, Senior Assistant City Attorney; Kathleen A.
Kenealy, Chief Deputy City Attorney; Michael N. Feuer,
City Attorney; Office of the City Attorney, Los Angeles,
California; for Defendant-Appellant.

Shayla Myers (argued), Mallory B. Andrews, and Alex

Flores. Legal Aid Foundation of Los Angeles, Los Angeles,
California; Catherine Sweetser, Schonbrun Seplow Harris
Hoffman & Zeldes LLP, Los Angeles, California; Benjamin
A. Herbert and Michael Onufer, Kirkland & Ellis LLP, Los
Angeles, California; for Plaintiffs-Appellees.

Theane Evangelis, Bradley J. Hamburger, Daniel R. Adler,

William F. Cole, and Andrew T. Brown, Gibson Dunn &
Crutcher LLP, Los Angeles, California, for Amicus Curiae
League of California Cities.

Eric S. Tars, Tristia Bauman, and Brandy Ryan, National

Homelessness Law Center, Washington, D.C., for Amicus
Curiae National Homelessness Law Center.
6 GARCIA V. CITY OF LOS ANGELES

OPINION

FRIEDLAND, Circuit Judge:

The City of Los Angeles appeals a preliminary

injunction prohibiting it from discarding homeless
individuals’ “Bulky Items” that are stored in public areas, as
authorized by a provision of its municipal code. We agree
with the district court that Plaintiffs are likely to succeed on
their claim that this provision, on its face, violates the Fourth
Amendment’s protection against unreasonable seizures. We
also conclude that the clauses authorizing the discarding of
those items are not severable from the remainder of the
provision. Accordingly, we affirm.

I.

The escalating homelessness crisis in the City of Los

Angeles (“the City”) has forced an unprecedented number of
residents to live, sleep, and store their belongings
exclusively in public places. In January of 2019, the year
this litigation began, there were over 35,000 homeless
individuals living in the City. 1 L.A. Homeless Servs. Auth.,
2019 Greater Los Angeles Homeless Count—Data
Summary: City of Los Angeles 1 (2020). Of these
individuals, more than 17,000 lived in vehicles, tents, or
makeshift shelters. L.A. Homeless Servs. Auth., 2019
Greater Los Angeles Homeless Count—Vehicles, Tents, and

1
The parties use both “homeless” and “unhoused” in their briefs
when describing individuals experiencing homelessness. Given that the
parties have not expressed a terminological preference, we follow the
lead of the district court, which used the term “homeless” when
analyzing the merits of the preliminary injunction motion.
 GARCIA V. CITY OF LOS ANGELES 7

Makeshift Shelters Counted by Geographic Area 5 (2019). 2

The term “makeshift shelter” refers to “dwellings made from
scavenged materials such as boxes, shopping carts, or scrap
metal.” L.A. Homeless Servs. Auth., 2020 Greater Los
Angeles Homeless Count—Vehicles, Tents, and Makeshift
Shelters Counted by Geographic Area 1 (2020).

Part of the City’s response to this crisis is section 56.11

of its municipal code (“the ordinance”), which strictly limits
the storage of personal property in public areas. 3 Under most
provisions of the ordinance—such as those addressing
publicly stored property that is unattended; obstructing City
operations; impeding passageways required by the
Americans with Disabilities Act; or within ten feet of an
entrance, exit, driveway, or loading dock—the City may
impound that property and must store it for ninety days to
give its owner the opportunity to reclaim it. See L.A., Cal.,
Mun. Code § 56.11(3)(a), (c)–(e) (2016); § 56.11(5). But
the City may also, pursuant to the ordinance, discard
publicly stored property without impounding it when it

2
These figures come from a point-in-time count that is conducted
annually by the Los Angeles Homeless Services Authority. The numbers
increased in the January 2020 count, which recorded 41,290 homeless
individuals living in the City, of whom 19,630 lived in vehicles, tents, or
makeshift shelters. These counts, moreover, are likely underinclusive—
according to the Authority, “the estimated number of persons in vehicles,
tents, and makeshift shelters accounts for only a share of the total
unsheltered population that is counted.” L.A. Homeless Servs. Auth.,
2020 Greater Los Angeles Homeless Count—Total Point-in-Time
Homeless Population by Geographic Areas 1 (2020); L.A. Homeless
Servs. Auth., 2020 Greater Los Angeles Homeless Count—Vehicles,
Tents, and Makeshift Shelters Counted by Geographic Area 1, 3 (2020).
3
A “public area” is any property “owned, managed or maintained
by the City,” including any road, sidewalk, “medial strip, space, ground,
building or structure.” L.A., Cal., Mun. Code § 56.11(2)(k) (2016).
8 GARCIA V. CITY OF LOS ANGELES

constitutes an immediate threat to public health or safety or

is evidence of a crime or contraband. § 56.11(3)(g)–(h).
Finally, the City may discard without first impounding
publicly stored personal property when it is a “Bulky Item”
that is not designed to be used as a shelter. § 56.11(3)(i).

It is subsection (3)(i) of the ordinance, which we refer to

as either the Bulky Items Provision or the Provision, that is
the subject of this litigation. The Bulky Items Provision
states that

[w]ithout prior notice, the City may remove

and may discard any Bulky Item, whether
Attended or Unattended, Stored in a Public
Area unless the Bulky Item is designed to be
used as a shelter. For any Bulky Item that is
designed to be used as a shelter but does not
constitute a Tent as defined in Subsection
2(q), with pre-removal notice as specified in
Subsection 4(a), the City may remove and
discard the Bulky Item, whether Attended or
Unattended. If the Bulky Item violates
subsection 3(d)–(h) herein, even if it is
designed to be used as a shelter, without prior
notice, the City may remove and discard the
Bulky Item, whether Attended or
Unattended.

Id. The ordinance defines a “Bulky Item” as

any item, with the exception of a constructed

Tent, operational bicycle or operational
walker, crutch or wheelchair, that is too large
to fit into a 60-gallon container [which is a
common size for curbside-pickup household
trash bins] with the lid closed, including, but
 GARCIA V. CITY OF LOS ANGELES 9

not limited to, a shed, structure, mattress,

couch, chair, other furniture or appliance.

§ 56.11(2)(c). The ordinance makes it a misdemeanor for

anyone to “willfully resist, delay or obstruct a City employee
from removing or discarding a Bulky Item.” § 56.11(10)(d).

Acting pursuant to the ordinance, the Los Angeles

Bureau of Sanitation, with the assistance of the Los Angeles
Police Department, conducts cleanups of homeless
encampments. These include both “noticed cleanups, which
are either noticed in advance” or “conducted on a regular
schedule,” and “rapid response[]” cleanups, which are
neither noticed nor scheduled but instead triggered by
resident complaints or demands by the City Council. During
cleanups, City employees typically prohibit individuals from
moving their Bulky Items to another location; rather, they
“immediately destroy” those items by “throwing [them] in
the back of a trash compactor, crushing the item[s].” For
example, City employees have discarded a crate that a
person used to secure his pet dog at night; carts that a person
used to transport his possessions; wooden pallets and a
cushion on which a person slept; and bins that a person used
to keep her clothing dry—sometimes in the presence of their
respective owners.

A group of homeless individuals who have had their

personal property destroyed by the City, along with two
organizations that advocate for the interests of homeless
individuals, brought this litigation. As relevant here,
Plaintiffs contended that the Bulky Items Provision, on its
face, violates the Fourth Amendment’s protection against
unreasonable seizures and the Fourteenth Amendment’s
guarantee of procedural due process. Three Plaintiffs who
had been specifically injured by the destruction of Bulky
10 GARCIA V. CITY OF LOS ANGELES

Items moved to preliminarily enjoin the City from enforcing

the Bulky Items Provision. In opposing the motion, the City
raised a cursory severability argument, asserting that the
Provision authorizes two distinct actions—removing
property and discarding property—and that the district court
should analyze the constitutionality of those two actions
separately. The City cited as support the ordinance’s
severability clause, which provides that “[i]f any subsection,
sentence, clause or phrase of” the ordinance is held invalid,
“such decision shall not affect the validity of the remaining
portions.” § 56.11(12). The clause further declares that the
City Council “would have adopted [§ 56.11], and each and
every subsection, sentence, clause and phrase thereof not
declared invalid or unconstitutional, without regard to
whether any portion of the ordinance would be subsequently
declared invalid or unconstitutional.” Id.

The district court granted the requested preliminary

injunction, holding that Plaintiffs were likely to succeed on
both their Fourth Amendment claim and their Fourteenth
Amendment claim. In discussing the Fourth Amendment’s
protection against unreasonable seizures, the district court
reasoned that the Bulky Items Provision was likely
unconstitutional under our precedents holding that a warrant
or a recognized exception to the warrant requirement must
accompany a seizure for it to be reasonable. Turning to
Plaintiffs’ procedural due process claim, the court observed
that the Provision lacked any notice requirement and thus
“provide[d] no process at all.” 4 The court did not expressly
address the City’s severability argument, and it preliminarily

4
The Bulky Items Provision provides for prior notice with respect
to most Bulky Items that are designed to be used as shelters.
§ 56.11(3)(i). Because we do not reach Plaintiffs’ procedural due
process claim, we do not discuss the significance, if any, of this language.
 GARCIA V. CITY OF LOS ANGELES 11

enjoined the City from enforcing the Bulky Items Provision

in its entirety. 5 The City timely appealed.

II.

Courts consider four factors in deciding whether to grant

a preliminary injunction: the plaintiff’s likelihood of success
on the merits; her likelihood of suffering irreparable harm in
the absence of preliminary relief; whether the balance of
equities tips in her favor; and whether an injunction is in the
public interest. Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008). The first factor is the “most
important.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th
Cir. 2015) (en banc).

We review an order granting a preliminary injunction for

abuse of discretion. BNSF Ry. Co. v. Cal. Dep’t of Tax &
Fee Admin., 904 F.3d 755, 760 (9th Cir. 2018). We review
the underlying legal principles de novo. Id.

III.

A.

The Fourth Amendment protects individuals from

unreasonable government seizures of their property, even
when that property is stored in public areas. Recchia v. City
of L.A. Dep’t of Animal Servs., 889 F.3d 553, 558 (9th Cir.
2018). “Because warrantless . . . seizures are per se

5
The district court also enjoined the City from enforcing the
ordinance’s criminal penalty for interfering with a City employee’s
removal or destruction of a Bulky Item. § 56.11(10)(d). The injunction
further prohibits the City from posting signs, notices, or other public
information stating that the City will enforce the Bulky Items Provision
or the criminal penalty.
12 GARCIA V. CITY OF LOS ANGELES

unreasonable, the government bears the burden of showing

that a warrantless . . . seizure falls within an exception to the
Fourth Amendment’s warrant requirement.” Id. (quoting
United States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir.
2012)); see also Miranda v. City of Cornelius, 429 F.3d 858,
862 (9th Cir. 2005); G & G Jewelry, Inc. v. City of Oakland,
989 F.2d 1093, 1099 (9th Cir. 1993). The destruction of
property has long been recognized as a seizure. United
States v. Jacobsen, 466 U.S. 109, 124–25 (1984).

Consistent with these well-established principles, in

Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012),
we upheld a preliminary injunction that prohibited Los
Angeles from summarily destroying homeless individuals’
publicly stored personal property. The facts of Lavan are
strikingly similar to those here: Los Angeles officials, acting
pursuant to an earlier version of § 56.11, “seized and
summarily destroyed” property that was momentarily
unattended on sidewalks. Id. at 1025–26. Los Angeles
contended in its appeal of the preliminary injunction that the
Fourth Amendment did not apply to its seizure and
destruction of the plaintiffs’ personal property. Id. at 1027.
We definitively rejected this argument and held that the
“destruction of the property rendered” Los Angeles’s
conduct unreasonable under the Fourth Amendment. Id.
at 1030.

We see no meaningful distinction between the

destruction of property enjoined in Lavan and the destruction
of property enjoined here. The fact that Plaintiffs’ items are
larger than sixty gallons does not reduce their possessory
interests in those items. Indeed, the property that the City
impermissibly destroyed in Lavan included large objects
similar to the Bulky Items at issue in this litigation, such as
 GARCIA V. CITY OF LOS ANGELES 13

carts. Id. at 1025. 6 Plaintiffs have therefore demonstrated a

likelihood of success on the merits of their claim that the
Bulky Items Provision violates the Fourth Amendment on its
face. 7

6
The dissent points out that Lavan also concerned smaller items of
property “such as identification documents, medications, family
memorabilia, toiletries, cell phones, and sleeping bags,” and suggests
that this distinction lessens Lavan’s control over this case. Dissent at 37.
But Lavan specifically emphasized that the “simple rule” that the
“government may not take property like a thief in the night” “holds
regardless of whether the property in question is an Escalade or an
EDAR, a Cadillac or a cart.” 693 F.3d at 1032 (quoting Clement v. City
of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008)). In no way did Lavan
limit its reasoning to certain types of property. We note that one unique
feature of Bulky Items is that they can hold other, smaller items—
including “phones, cleaning supplies, and clothes,” all of which a
homeless individual lost when her storage bins containing those items
were destroyed pursuant to the Bulky Items Provision.
7
Other provisions of the ordinance separately authorize the
destruction of Bulky Items if they constitute an immediate threat to
public health or safety or are evidence of a crime or contraband.
§ 56.11(3)(g)–(h). The “proper focus of [our] constitutional inquiry” in
response to a facial challenge is limited to conduct that “the law actually
authorizes”—in other words, to applications in which it is the challenged
law alone that authorizes the government’s conduct. City of Los Angeles
v. Patel, 576 U.S. 409, 418 (2015). Conduct that is independently
authorized by a legal provision or doctrine other than the challenged law
is thus not relevant to that law’s facial constitutionality. See id. at 418–
19 (explaining that warrantless searches conducted with consent or in
exigent circumstances would be excluded from consideration in the
Fourth Amendment analysis of a facial challenge to a law authorizing
warrantless hotel record searches). Accordingly, Plaintiffs’ challenge to
the Bulky Items Provision does not implicate the Provision’s final
sentence to the extent that sentence authorizes the destruction of Bulky
Items that violate §§ (3)(g) and (3)(h) of the ordinance. See § 56.11(3)(i)
(“If the Bulky Item violates subsection 3(d)–(h) herein, even if it is
14 GARCIA V. CITY OF LOS ANGELES

B.

Perhaps in recognition of Lavan, the City does not

attempt to defend the Bulky Items Provision’s authorization
of the destruction of property. Rather, the City rests its
entire appeal on the contention that, in light of the
severability clause in the ordinance, the district court erred
in not severing from the Provision the clauses that
specifically authorize discarding Bulky Items (which we
refer to as “the destruction clauses,” given the City’s
characterization of the Provision as “allowing for the
summary destruction of Bulky Items”). The City argues
that, without the destruction clauses, the remainder of the
Provision would be constitutional because the removal alone
of Bulky Items would be lawful, and thus, the entire
Provision should not have been enjoined. We conclude that,
under California law, the destruction clauses are not
severable from the remainder of the Bulky Items Provision.

1.

Severability of municipal ordinances is “a matter of state

law.” Sam Francis Found. v. Christies, Inc., 784 F.3d 1320,
1325 (9th Cir. 2015) (en banc) (quoting Leavitt v. Jane L.,
518 U.S. 137, 139 (1996) (per curiam)). In California, the
presence of a severability clause in a statutory scheme that
contains an invalid provision “normally calls for sustaining
the valid part of the enactment.” Cal. Redevelopment Ass’n
v. Matosantos, 267 P.3d 580, 607 (Cal. 2011) (quoting Santa
Barbara Sch. Dist. v. Superior Ct., 530 P.2d 605, 618 (Cal.

designed to be used as a shelter, without prior notice, the City may

remove and discard the Bulky Item, whether Attended or Unattended.”).
 GARCIA V. CITY OF LOS ANGELES 15

1975)). 8 This presumption, however, is “not conclusive.”

Id. (quoting Santa Barbara, 530 P.2d at 618); see also, e.g.,
Metromedia, Inc. v. City of San Diego, 649 P.2d 902, 908–
09 (Cal. 1982) (holding that an ordinance was not severable
despite its severability clause because the resulting law
“would be difficult to apply” in a constitutional manner and
would be “less effective in achieving the city’s goals”).

To be severable, the invalid provision also “must be

grammatically, functionally, and volitionally separable”
from the remainder of the act. Id. (quoting Calfarm Ins. Co.
v. Deukmejian, 771 P.2d 1247, 1256 (Cal. 1989)). “All three
criteria must be satisfied.” McMahan v. City & County of
San Francisco, 26 Cal. Rptr. 3d 509, 513 (Ct. App. 2005).
Thus, even though the ordinance contains a severability
clause, see § 56.11(12), we must consider whether the
destruction clauses of the Bulky Items Provision are
grammatically, functionally, and volitionally separable from
the rest of the Provision. We conclude that these clauses are
not functionally separable, and therefore are not severable.

An invalid part of a law is functionally separable “if it is

not necessary to the measure’s operation and purpose.”
Hotel Emps. & Rest. Emps. Int’l Union v. Davis, 981 P.2d
990, 1009 (Cal. 1999). In other words, the “part to be
severed must not be part of a partially invalid but unitary
whole. The remaining provisions must stand on their own,
unaided by the invalid provisions nor rendered vague by
their absence nor inextricably connected to them by policy
considerations. They must be capable of separate

8
Given our holding that the destruction clauses are not severable,
we need not decide whether the warrantless removal of Bulky Items
stored in public areas would be constitutional—a question that is far from
clear.
16 GARCIA V. CITY OF LOS ANGELES

enforcement.” People’s Advoc., Inc. v. Superior Ct.,

226 Cal. Rptr. 640, 649 (Ct. App. 1986).

California courts have explained that the functional

separability inquiry considers whether the remainder of a
law would be “functionally autonomous” within the
statutory scheme—that is, whether it would retain “efficacy”
without the invalid provision. Barlow v. Davis, 85 Cal. Rptr.
2d 752, 758 (Ct. App. 1999). A pair of cases illuminates this
concept. In California Redevelopment Ass’n v. Matosantos,
the California Supreme Court considered two provisions of
a state law: one that provided for redevelopment agencies’
“windup and dissolution,” and another that “offer[ed] an
alternative” in which those agencies could “continue to
operate if the cities and counties that created them agree[d]
to make payments into” certain government funds. 267 P.3d
at 587. After holding that the alternative payment scheme
was invalid, the court asked whether it was functionally
separable from the valid dissolution procedures. Id. at 608.
The court concluded that it was, reasoning that the
dissolution procedures “can be implemented whether or not
the continuation payment program . . . is valid.” Id.

The statute the court confronted in Matosantos differed

significantly from the scheme at issue in another California
case, Barlow v. Davis. There, a state law set numerical
“participation goals” for how many state contracts were
awarded to bidders that prioritized businesses owned by
women, minorities, or disabled veterans; a related provision
required relevant state departments to annually report on
“the level of participation” by such businesses in state
contracts. 85 Cal. Rptr. 2d at 754. After the provision
setting participation goals was deemed unconstitutional by
our court, the California Court of Appeal held that it was not
functionally separable from the provision imposing
 GARCIA V. CITY OF LOS ANGELES 17

reporting requirements, because “[f]ar from being

functionally autonomous, the reporting requirements . . .
find efficacy only when correlated with the” participation
goals. Id. at 758; see id. (“With the abrogation of the
numerical participation goals for minority and women
business enterprises, the reports cannot serve the function
intended by the statute.”).

The Bulky Items Provision more closely resembles the

statutory scheme in Barlow than in Matosantos. That is, we
do not think the Provision is functionally autonomous absent
the destruction clauses because those clauses are “necessary
to the [Provision’s] operation and purpose.” Hotel Emps.,
981 P.2d at 1009. No paragraph of the ordinance provides
that the City may “move” or “remove” property from a
public area without specifying what happens after that
movement or removal. See § 56.11(3)(a) (“the City may
impound”); § 56.11(3)(d) (“the City may move and may
immediately impound”); § 56.11(3)(f) (“the City may
remove and impound”); § 56.11(3)(g) (“the City may
remove and may discard”); cf. § 56.11(3)(c) (the City “may
temporarily move” property blocking City operations but
only “during the time necessary to conduct the City
operations”).

This structure indicates that “may remove,” as the phrase

is used in the ordinance, describes only the initial step of a
multi-step enforcement process—making the larger phrase
“may remove and may discard” a “unitary whole,” People’s
Advoc., 226 Cal. Rptr. at 649. 9 If the Bulky Items Provision

9
Our reading is reinforced by the title of § 56.11(3), which describes
the subsections that follow as setting out the “Regulation and
Impoundment of Stored Personal Property; [and the] Discard of Certain
Stored Personal Property”—not just the “removal” of personal property.
18 GARCIA V. CITY OF LOS ANGELES

does not specify that removed property is to be either

impounded or discarded (or, as one other clause of the
ordinance provides, temporarily moved while a City
operation is in progress), it is unclear how a City employee
would enforce the Provision: she may remove a Bulky Item
from a public area, but what should she do next? She could
impound the Bulky Item—but interpreting “may remove” as
synonymous with “may impound” would render superfluous
the specific authorizations of impoundment elsewhere in the
ordinance. And “[i]nterpretations that render statutory
language meaningless are to be avoided.” Plantier v.
Ramona Mun. Water Dist., 441 P.3d 870, 878 (Cal. 2019).
Moreover, our inserting “impound” in the Provision in place
of “discard” would “rewrite or redefine the provision[] . . .
to be free of the intrinsic association with” discarding, which
we may not do. Barlow, 85 Cal. Rptr. 2d at 758.

The absence of a post-removal notice procedure in the

Bulky Items Provision further prevents us from reading a
hypothetical post-severance Provision as implicitly
describing impoundment. The ordinance is deliberate in
offering some form of notice every time personal property is
impounded. § 56.11(3)(a)–(b), (d)–(f) (providing for
impoundment and stating that “[p]ost-removal notice shall
be provided as set forth in Subsection 4(b), below”). Indeed,
the only other paragraphs in § 56.11(3) without either that
statement or a cross-reference to a paragraph providing that
statement about notice are the two other provisions that
expressly authorize the destruction of property.
§ 56.11(3)(g) (property that constitutes an immediate health
or safety threat); § 56.11(3)(h) (property that is evidence of
a crime or contraband). The Provision’s silence on notice
indicates that the destruction clauses are necessary to the
 GARCIA V. CITY OF LOS ANGELES 19

Provision’s operation and purpose within the ordinance’s

scheme. 10

We are not persuaded by the City’s argument that the

notice procedures in § 56.11(4)(b) would flow automatically
to the Provision upon severance. Section 56.11(4)(b), titled
“Post-Removal Notice,” states that “[u]pon removal of
Stored Personal Property, written notice shall be
conspicuously posted in the area from which the Personal
Property was removed.” It then specifies certain information
that the written notice must contain, including the address
where the property will eventually be located and a
statement that property may be discarded after ninety days
of impoundment. § 56.11(4)(b). If this provision applied
automatically to all paragraphs of § 56.11(3), it would again
render other parts of the ordinance superfluous—
specifically, the five sentences throughout § 56.11(3) that
guarantee post-removal notice following the impoundment
of property in various circumstances. To avoid such
superfluity, we must conclude that § 56.11(4)(b)’s function
is to set out the manner and components of post-removal
notice whenever it is required, rather than to ensure post-
removal notice after every removal of property. See
Plantier, 441 P.3d at 878.

10
This anomaly that severance would produce also casts doubt on
whether the City Council intended for the Bulky Items Provision to stand
on its own without reference to discarding Bulky Items—doubt that cuts
against volitional separability despite the ordinance’s severability clause.
See, e.g., Hotel Emps., 981 P.2d at 1010 (holding that the invalid portions
of a law were not volitionally separable despite the presence of a
severability clause).
20 GARCIA V. CITY OF LOS ANGELES

2.

In addition to being functionally inseparable in light of

the structure of the ordinance, the destruction clauses of the
Bulky Items Provision also are functionally inseparable in
practice. We have previously understood California’s
functional separability requirement to include an evaluation
of a party’s actual method of enforcing a partially invalid
law. In Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir.
2013), a city criminalized engaging in “disorderly, insolent,
or disruptive behavior” when speaking at city council
meetings. Id. at 806. We determined that the ordinance
violated the First Amendment because it allowed the city to
prohibit nondisruptive speech that was merely insolent. Id.
at 815–16. We further held that the invalid language was not
functionally separable from the remainder of the ordinance
because, according to the trial testimony of the city chief of
police, “officials relied on the [invalid] word . . . as a key
part of effectuating” the ordinance’s purpose. Id. at 821. 11
Following Acosta, we must consider whether the destruction
clauses are necessary to the Provision’s operation and
purpose such that their absence would affect its enforcement

11
Similarly, California courts have appeared to consider both the
practical difficulties in enforcing what would remain of a law after
severance and how well the law after severance would effectuate the
ordinance’s purpose. Metromedia, 649 P.2d at 908 (concluding that an
ordinance regulating billboards could not be severed to encompass only
commercial speech because the resulting law “would be difficult to
apply” when the authority to remove a billboard would depend on
deciphering its content and “would offer no assurance that a substantial
number of billboards, or any particular billboard, would be removed, or
that the erection of new billboards would be inhibited”).
 GARCIA V. CITY OF LOS ANGELES 21

and effectiveness as a practical matter as well as in the

abstract. 12

We are not starting from scratch in answering this

question: the City has repeatedly insisted that it could not
enforce the Bulky Items Provision at all without the
destruction clauses. Declarations of City officials in the
record attest that the City does not have storage space to
impound Bulky Items and is therefore unable to remove
those items from public areas without immediately
destroying them; similarly, the City admits in its brief “that
the City lacks capacity to store Bulky Items.” Our dissenting
colleague disagrees, concluding that the City told us in its
briefs and at argument “that it can remove (without
destroying) the property implicated by the Bulky Items
Provision.” Dissent at 32, 32 n.8. But we are unable to find
any such statements in our review: the City’s reference to
“its ability to remove Bulky Items under Section
56.11(3)(i),” and its statement that it “can, consistently with
the Fourth Amendment, tow away cars,” are clearly
contending legal permissibility, not practical capability. 13
Nor can the City’s vague prediction that its inability to store
Bulky Items “can change based on all kinds of
circumstances” reasonably be read as an “averment that it

12
The dissent suggests that Acosta misinterpreted California law to
reach its holding. Dissent at 30 n.5. Even if we agreed—which we do
not—we would still be bound by Acosta. See Miller v. Gammie,
335 F.3d 889, 899–900 (9th Cir. 2003) (en banc).
13
The dissent points to the suggestion in the City’s briefing that it
currently has the practical ability to tow and then store cars, Dissent at 32
n.8, but that provides no reason to assume that the lots where towed cars
are stored have room for Bulky Items or the ability to catalog them—
especially given the City’s specific contrary admissions of its inability to
store Bulky Items.
22 GARCIA V. CITY OF LOS ANGELES

can remove Bulky Items without destroying them if it

redistributes its resources,” Dissent at 33 n.9.

On appeal, the City characterizes its lack of storage

capacity as an irrelevant and temporary obstacle and urges
us to sever the destruction clauses despite its inability to
remove Bulky Items without destroying them. But the City
has consistently disclaimed its ability to store Bulky Items
since this litigation began over two years ago.

The City’s own statements make clear that discarding

Bulky Items is “inextricably connected” to full enforcement
of the Provision. People’s Advoc., 226 Cal. Rptr. at 649.
Given the City’s admissions that it cannot remove Bulky
Items without destroying them, we must conclude that the
City “relie[s] on” the invalid clauses of the Bulky Items
Provision not merely “as a key part of effectuating” the
Provision, but as the sole method of effectuating it. Acosta,
718 F.3d at 821.

***

For these reasons, we cannot say that the Bulky Items

Provision could “stand on [its] own, unaided by” the clauses
authorizing destruction. People’s Advoc., 226 Cal. Rptr.
at 649. Rather, the ability to destroy Bulky Items appears to
be an integral part of the Provision’s “operation and
purpose.” Hotel Emps., 981 P.2d at 1009. This means the
destruction clauses are not functionally separable. And
because an invalid provision must be “grammatically,
functionally, and volitionally separable” to be severable,
Matosantos, 267 P.3d at 607 (emphasis added) (quoting
Deukmejian, 771 P.2d at 1256), we hold that the destruction
clauses are not severable. It follows that the district court
correctly decided that Plaintiffs are likely to succeed on the
 GARCIA V. CITY OF LOS ANGELES 23

merits of their Fourth Amendment challenge to the entirety

of the Provision.

Finally, we hold that the district court appropriately

concluded that the remaining Winter factors tipped in
Plaintiffs’ favor. See Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008). The City contends that because the
district court failed to consider the destruction clauses of the
Provision separately from the clauses authorizing removal,
its analysis of the equities was fatally flawed. But because
the destruction clauses are not severable from the Provision,
there is no merit to this argument. The City raises no other
objections to the district court’s Winter analysis, and we
discern no problems with it. 14 We thus affirm the grant of
the preliminary injunction. 15

IV.

We emphasize that our holding imposes no new

constraints on the City: our prior caselaw states clearly that
the government may not summarily destroy the
unabandoned personal property of homeless individuals that
is kept in public areas. The City is free to draft a lawful
version of the Bulky Items Provision, just as it is free to
explore alternative methods to respond to the needs of its

14
Given our holding, we need not consider whether Plaintiffs have
demonstrated a likelihood of success on the merits of their claim that the
Bulky Items Provision, on its face, violates the Fourteenth Amendment’s
procedural due process guarantee.
15
Because the City has conceded that the constitutionality of the
criminal penalty for impeding enforcement of the Bulky Items Provision
is dependent on whether the Provision itself is facially unconstitutional,
we affirm the district court’s enjoining of that penalty provision as well.
24 GARCIA V. CITY OF LOS ANGELES

housed residents while also respecting the rights of its tens

of thousands of homeless residents.

AFFIRMED.

BENNETT, Circuit Judge, dissenting:

Los Angeles (“the City”) enacted an ordinance that

regulates bulky personal property left or stored in public
areas, including by homeless individuals. The ordinance
allows the City to both remove and discard certain of these
bulky items, without notice. Plaintiffs facially challenged
the ordinance as violative of the Fourth Amendment. The
City argued, both below and on appeal, that the “may
remove” provision was severable from the “may discard”
provision. The district court preliminarily enjoined the
ordinance as violative of the Fourth Amendment but did not
directly address the City’s severance argument. 1 The
majority affirms, including because it finds that the
ordinance is not severable. I believe the ordinance is
severable, that the “may discard” provision should be
severed, and that the constitutionality of the “may remove”
provision should then be separately analyzed. 2 I thus
respectfully dissent. I would remand the case to the district
court to consider whether the “may remove” provision is
facially constitutional, and if it finds that it is, to reconsider
whether the injunctive relief it ordered was appropriate.

1
The district court noted that “the City has repeatedly pointed out
that the [o]rdinance has a severability provision . . . .”
2
The City does not defend the constitutionality of the “may discard”
clause in this appeal.
 GARCIA V. CITY OF LOS ANGELES 25

I.

The “Bulky Items Provision” states:

No Person shall Store any Bulky Item in a

Public Area. Without prior notice, the City
may remove and may discard any Bulky
Item, whether Attended or Unattended,
Stored in a Public Area unless the Bulky Item
is designed to be used as a shelter. For any
Bulky Item that is designed to be used as a
shelter but does not constitute a Tent as
defined in Subsection 2(q), with pre-removal
notice as specified in Subsection 4(a), the
City may remove and discard the Bulky Item,
whether Attended or Unattended. If the
Bulky Item violates Subsection 3(d)–(h)
herein, even if it is designed to be used as a
shelter, without prior notice, the City may
remove and discard the Bulky Item, whether
Attended or Unattended.

L.A., Cal., Mun. Code § 56.11(3)(i) (2016).

“Bulky Items” are defined as:

any item, with the exception of a constructed

Tent, operational bicycle or operational
walker, crutch or wheelchair, that is too large
to fit into a 60-gallon container [which is a
common size for curbside-pickup household
trash bins] with the lid closed, including, but
not limited to, a shed, structure, mattress,
couch, chair, other furniture or appliance.

Id. § 56.11(2)(c).
26 GARCIA V. CITY OF LOS ANGELES

A “public area” is land “owned, managed or maintained

by the City,” including any road, sidewalk, “medial strip,
space, ground, building or structure.” Id. § 56.11(2)(k).

II.

“Severability is a matter of state law.” Sam Francis

Found. v. Christies, Inc., 784 F.3d 1320, 1325 (9th Cir.
2015) (en banc) (alterations and citation omitted). Under
California law, “[i]n determining whether the invalid
portions of a statute can be severed, we look first to any
severability clause.” Cal. Redevelopment Ass’n v.
Matosantos, 267 P.3d 580, 607 (Cal. 2011). “The presence
of such a clause establishes a presumption in favor of
severance.” Id. “Although not conclusive, a severability
clause normally calls for sustaining the valid part of the
enactment.” Id. (quotation marks and alteration omitted);
see also Calfarm Ins. v. Deukmejian, 771 P.2d 1247, 1256
(Cal. 1989) (en banc).

The Los Angeles City Council included a robust

severability clause in the ordinance. See L.A., Cal., Mun.
Code § 56.11(12). 3 The clause “declares that [the City

3
Los Angeles Municipal Code § 56.11(12) provides in full:

If any subsection, sentence, clause or phrase of this

article is for any reason held to be invalid or
unconstitutional by a court of competent jurisdiction,
such decision shall not affect the validity of the
remaining portions of this ordinance. The City
Council hereby declares that it would have adopted
this section, and each and every subsection, sentence,
clause and phrase thereof not declared invalid or
unconstitutional, without regard to whether any
portion of the ordinance would be subsequently
declared invalid or unconstitutional.
 GARCIA V. CITY OF LOS ANGELES 27

Council] would have adopted this section, and each and

every subsection, sentence, clause and phrase thereof not
declared invalid or unconstitutional, without regard to
whether any portion of the ordinance would be subsequently
declared invalid or unconstitutional.” Id. Thus, I start with
a presumption in favor of severing any unconstitutional
portion of the ordinance.

A.

Though the presumption in favor of severability is the

most important guiding principle, see Matosantos, 267 P.3d
at 607, “[t]he invalid provision must be grammatically,
functionally, and volitionally separable,” id. (citation
omitted). The majority considers only functional
separability, concluding that the “may discard” provision is
not functionally severable. Majority at 14–22. I address all
three criteria. See McMahan v. City & Cnty. of San
Francisco, 26 Cal. Rptr. 3d 509, 513 (Ct. App. 2005) (“All
three criteria must be satisfied.”).

First, “[g]rammatical separability . . . depends on

whether the invalid parts [of the Bulky Items Provision] can
be removed as a whole without affecting the wording or
coherence of what remains.” Matosantos, 267 P.3d at 607
(quotation marks and citations omitted). Removal of the
“may discard” clause from the Bulky Items Provision does
not impact the coherence or wording of the remaining text. 4

4
Only the “may discard” clauses in the second and fourth sentences
of the Bulky Items Provision are impacted by this facial challenge.
Under subsection 4(a), Bulky Items covered by the third sentence require
pre-removal notice, and, after removal, individuals have ninety days to
recover their property before it is destroyed. The constitutional analysis
of a facial challenge to the third sentence would significantly differ from
28 GARCIA V. CITY OF LOS ANGELES

Indeed, the provision would read as follows if the “may

discard” clause were excised from the second and fourth
sentences of the provision:

No Person shall Store any Bulky Item in a

Public Area. Without prior notice, the City
may remove any Bulky Item, whether
Attended or Unattended, Stored in a Public
Area unless the Bulky Item is designed to be
used as a shelter. For any Bulky Item that is
designed to be used as a shelter but does not
constitute a Tent as defined in Subsection
2(q), with pre-removal notice as specified in
Subsection 4(a), the City may remove and
discard the Bulky Item, whether Attended or
Unattended. If the Bulky Item violates
subsection 3(d)–(h) herein, even if it is
designed to be used as a shelter, without prior
notice, the City may remove the Bulky Item,
whether Attended or Unattended.

This remaining provision, with “may discard” excised from

the second and fourth sentences, makes sense. Thus, the
“may discard” clause is grammatically severable.

Second, “[v]olitional separability depends on whether

the remainder [of the Bulky Items Provision] would have
been adopted by the legislative body had the latter foreseen
the partial invalidation of the [provision].” Matosantos,
267 P.3d at 608 (quotation marks and citations omitted); see
also Calfarm Ins., 771 P.2d at 1256 (“[T]he remainder of the
initiative, after deleting the insolvency standard, would

the analysis of a facial challenge to the second and fourth sentences,

because of that notice and recovery period.
 GARCIA V. CITY OF LOS ANGELES 29

likely have been adopted by the people had they foreseen the
invalidity of the insolvency standard.”). We have stated that
volitional severability is the most important element of the
three in the severability analysis. Katz v. Child.’s Hosp. of
Orange Cnty., 28 F.3d 1520, 1531 (9th Cir. 1994). Here, the
severability clause specifically states that the City Council
“would have adopted . . . each and every . . . clause and
phrase [of the ordinance] not declared invalid or
unconstitutional, without regard to whether any portion of
the ordinance would be subsequently declared invalid or
unconstitutional.” L.A., Cal., Mun. Code § 56.11(12)
(emphasis added). This is a clear indication of the City
Council’s intent to adopt the remaining valid portions of the
ordinance, which would help achieve the objectives of the
ordinance. Cf. Santa Barbara Sch. Dist. v. Superior Ct.,
530 P.2d 605, 618 (Cal. 1975) (en banc).

Finally, “[f]unctional separability depends on whether

the remainder of the [ordinance] is complete in itself.”
Matosantos, 267 P.3d at 608 (quotation marks, alterations,
and citation omitted). In other words, the ordinance is
functionally severable if the invalid part “is not necessary to
the measure’s operation and purpose.” Hotel Emps. & Rest.
Emps. Int’l Union v. Davis, 981 P.2d 990, 1009 (Cal. 1999).
In making that determination, we ask whether the remaining
parts of the ordinance are “capable of independent
application”—that is, whether those provisions can “stand
on their own, unaided by the invalid provisions nor rendered
vague by their absence nor inextricably connected to them
by policy considerations.” Barlow v. Davis, 85 Cal. Rptr. 2d
752, 757 (Ct. App. 1999) (citation omitted); accord People
v. Libr. One, Inc., 280 Cal. Rptr. 400, 409 (Ct. App. 1991).

The majority cites the analysis undertaken by the

California Supreme Court in Matosantos—“that the
30 GARCIA V. CITY OF LOS ANGELES

dissolution procedures [in the statute at issue there] ‘can be

implemented whether or not the continuation payment
program . . . is valid,’” Majority at 16 (emphasis added)
(quoting Matosantos, 267 P.3d at 608). The majority then
relies on how the ordinance here was enforced in practice, as
well as on some select statements made by some city
officials, to conclude that the ordinance is not functionally
severable. Majority at 20–23. 5 But the Matosantos court did
not focus on how the statute would have been or had been
enforced in assessing functional separability; instead, it
stated that “[s]peculation as to what the Legislature may
have expected is immaterial . . . ; the issue under this
[functional separability] prong is simply whether Assembly
Bill 1X 26 is complete in itself such that it can be enforced
notwithstanding Assembly Bill 1X 27’s invalidity.”
Matosantos, 267 P.3d at 608 (emphasis added). This

5
The majority cites Acosta v. City of Costa Mesa, 718 F.3d 800 (9th
Cir. 2013) (per curiam), in support of its position, noting that the Acosta
court looked to the testimony of the chief of police and how he claimed
the law was enforced in determining functional severability. Majority
at 20–23. In doing so, the Acosta court relied on Long Beach Lesbian &
Gay Pride, Inc. v. City of Long Beach, 17 Cal. Rptr. 2d 861, 868 (Ct.
App. 1993), and in particular, the California Court of Appeal’s
discussion of the testimony of a “city official” as to how an ordinance
had been enforced. 718 F.3d at 821. But in City of Long Beach, the
court was looking not just at an ordinance’s severability; it was also
looking at the ordinance’s constitutionality. And it discussed the
testimony of a “city official” (the city manager) as to how the ordinance
had been enforced only in connection with its constitutionality analysis,
not its separate severability analysis. 17 Cal. Rptr. 2d at 868. I do not
read Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) as
requiring us to be bound by the Acosta court’s misreading of the City of
Long Beach in its case-specific analysis, contrary to the majority’s
assertion. See Majority at 21 n.12. Miller notes that stare decisis binds
us to holdings of prior cases as well as explications of governing rules of
law, but mentions only that “mode of analysis” binds lower courts.
335 F.3d at 900.
 GARCIA V. CITY OF LOS ANGELES 31

strongly suggests an abstract inquiry into whether it is

functionally possible for the post-severance provision to be
enforced.

Practical difficulties in enforcing the ordinance after the

excision of the “may discard” clause are not irrelevant, as
they relate to whether the provision could be enforced
following the severance. But the question a court must
determine under California law is not whether an ordinance
was or wasn’t enforced in part at some time in the past—the
question is whether it can be currently implemented as
severed.

The majority cites Metromedia, Inc. v. City of San Diego,

649 P.2d 902 (Cal. 1982) (en banc), in support of its
functional severability analysis: “California courts have
appeared to consider both the practical difficulties in
enforcing what would remain of a law after severance and
how well the law after severance would effectuate the
ordinance’s purpose.” Majority at 20 n.11. But Metromedia
involved a San Diego ordinance, “which, with certain
exceptions, ban[ned] erection of off-site billboards within
the city limits” to “promot[e] traffic safety and improv[e]
community appearance.” 649 P.2d at 903 (footnote
omitted). The United States Supreme Court held that the
ordinance’s prohibition on noncommercial speech violated
the First Amendment. Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 521 (1981).

The severability inquiry in Metromedia raised difficult

questions about how the City of San Diego would
“distinguish between commercial and noncommercial
speech, a task rife with constitutional enigmas.”
Metromedia, 649 P.2d at 903. The majority implies that
these challenges are like those Los Angeles would face here,
were the ordinance severed. Majority at 20 n.11. But
32 GARCIA V. CITY OF LOS ANGELES

difficulties San Diego might have had in determining which

billboard content is protected by the First Amendment bears
no similarity to difficulties Los Angeles might have in
determining, for example, whether it can store a jacuzzi
removed from a public park. And while the California
Supreme Court found that severing the billboard ordinance
would not effectuate San Diego’s intent of promoting traffic
safety through the reduction of the number of billboards,
Metromedia, 649 P.2d at 908–09, the court’s concern
appears to go more to volitional severability, rather than
functional severability. See Matosantos, 267 P.3d at 608.

Again, as California law makes clear, the relevant

functional severability question is whether the seizure
provision can be enforced notwithstanding the destruction
provision’s invalidity. See id. Abstractly, of course, items
that are not inherently dangerous to store can be seized
without being destroyed, and routinely are, every day, in
every state and many municipalities. 6 And many items both
parties have pointed to in this case could be seized and not
destroyed. 7 Moreover, the City tells us just that in its briefs
and at oral argument—that it can remove (without
destroying) the property implicated by the Bulky Items
Provision. 8 That was not the City’s preferred course absent

6
And if post-severance there were items the City decided it would
not wish to store after seizure (assuming seizure were not enjoined after
remand), it could, of course, simply choose not to seize them in the first
place.
7
Dog kennels, carts, plastic bins, household appliances, furniture,
and auto parts are a few examples cited in the parties’ briefs.

Having already acknowledged that “municipalities cannot

8

summarily destroy the cars they tow,” the City represents:

 GARCIA V. CITY OF LOS ANGELES 33

an injunction—the City preferred that it be able to enforce

the ordinance as written. But that is almost always the case
when a law is challenged, but parts of the law can perhaps
be saved. By, in essence, making enforcement decisions for
the City, the majority strips the City of its ability to
determine what is or isn’t possible and how it can best use
its resources to effectuate its local policies. 9

The ordinance’s purpose is “to balance the needs of the

residents and public at large to access clean and sanitary
public areas consistent with the intended uses for the public
areas.” L.A., Cal., Mun. Code § 56.11(1). The destruction
clause “is not necessary to the [ordinance’s] operation and
purpose,” Hotel Emps. & Rest. Emps. Int’l. Unions, 981 P.2d
at 1009, as its excision still results in a functional ordinance
that can achieve the City Council’s stated purpose.

Moreover, in citing the structure of the ordinance as

counseling against severability, asking: “[a city official] may
remove a Bulky Item from a public area, but what should she

There is no question that the City can, consistently

with the Fourth Amendment, tow away cars left
parked on its highways, streets, or alleyways for a long
period of time. L.A. Mun. Code, § 80.77(a). So, too,
can the City remove from its public areas items that
(1) are being stored there, and (2) are “too large to fit
into a 60-gallon container with the lid closed.” L.A.
Mun. Code §§ 56.11(2)(c), (2)(k), (2)(o), (3)(i).
9
Since we must look at functional severability in the abstract under
California law, rather than rely on past statements made by City officials,
the majority should look to the City’s averment that it can remove Bulky
Items without destroying them if it redistributes its resources, even
though the City would likely temporarily stop removing certain Bulky
Items. This is especially so because there is nothing remotely illogical
or impossible about seizing without destroying.
34 GARCIA V. CITY OF LOS ANGELES

do next?,” Majority at 17–18, the majority ignores the fact

that even the unsevered ordinance does not provide a
mandate—it states “may discard” not “must discard,” L.A.,
Cal., Mun. Code § 56.11(3)(i). This means the ordinance, as
originally conceived, already furnishes city officials with
discretion on what to do with removed Bulky Items. And
because the ordinance builds in discretion, it stands to reason
that the post-removal notice procedures outlined in section
56.11(4)(b) can be used for items removed under section
56.11(3)(i), as the City represented at oral argument. And
again, if practical difficulties mean the City will seize fewer
items, that is hardly a reason not to sever.

Bottom line, the ordinance is functionally severable

because it “can be enforced notwithstanding [the “may
discard” clause’s] invalidity.” Matosantos, 267 P.3d at 608.
Thus, given the presumption in favor of severing and the
satisfaction of all three severability criteria, I believe the
ordinance is severable.

B.

We, of course, are tasked here with interpreting

California severance law. But the separation of powers
principles underlying California law echo similar federal
principles, which also support severability here. As a matter
of general statutory interpretation, the Supreme Court has
declared that “when confronting a constitutional flaw in a
statute, we [should] try to limit the solution to the problem.
We prefer, for example, to enjoin only the unconstitutional
applications of a statute while leaving other applications in
force, or to sever its problematic portions while leaving the
remainder intact.” Ayotte v. Planned Parenthood of N. New
Eng., 546 U.S. 320, 328–29 (2006) (citations omitted); see
also Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519,
646 (2012) (Ginsburg, J., concurring in part, concurring in
 GARCIA V. CITY OF LOS ANGELES 35

the judgment in part, and dissenting in part) (“For when a

court confronts an unconstitutional statute, its endeavor must
be to conserve, not destroy, the legislature’s dominant
objective.”). 10 This, of course, flows directly from one of
the most basic principles of our democracy—it is for the
legislative branch, not the judicial branch, to legislate. See
Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810) (“To the
legislature all legislative power is granted.”).

California courts look to “the specific language of the

ordinance to determine if it is susceptible [to] a limit[ed]
construction that will avoid unconstitutionality.”
Metromedia, Inc., 649 P.2d at 905. The California Supreme
Court has made it clear that “in considering the issue of
severability, it must be recognized that the general
presumption of constitutionality, fortified by the express
statement of a severability clause, normally calls for
sustaining any valid portion of a statute unconstitutional in
part.” 11 Santa Barbara Sch. Dist. v. Superior Ct., 530 P.2d

10
“Courts even have found that a strained construction is desirable
if it is the only construction that will save an act’s constitutionality, and
may imply constitutionally requisite procedures for a statute’s
administration to preserve its validity.” Sutherland, Sutherland Statutes
and Statutory Construction § 45:11 (2020) (quotation marks and
footnotes omitted). In line with the preference to preserve
constitutionality, “[p]ublic policy generally favors severability of an
unconstitutional statute.” Id.
11
This general principle also applies outside the severance context.
California law dictates that “[i]n considering the constitutionality of a
legislative act, [the reviewing court] presume[s] its validity, resolving all
doubts in favor of the Act. Unless conflict with a provision of the state
or federal Constitution is clear and unquestionable, [the reviewing court]
must uphold the Act.” County of Sonoma v. State Energy Res.
Conservation etc. Com., 40 Cal.3d 361, 368 (Cal. 1985) (citation
36 GARCIA V. CITY OF LOS ANGELES

605, 617 (Cal. 1975) (en banc) (quoting Ex parte Blaney,

184 P.2d 892, 900 (Cal. 1947)).

III.

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In
concluding that a preliminary injunction was warranted, the
district court’s “irreparable harm” and “balance of equities”
analyses focused mainly on the destruction of the property
of the homeless, not on the property’s temporary removal.
So too does the majority, which hinges its holding on the
conclusion that the “may discard” clause cannot be severed
from the ordinance.

In the majority’s view, there is “no meaningful

distinction between the destruction of property enjoined in

omitted). In fact, California law permits courts to go even further in the

name of preserving constitutionality:

Apart from the authority to sever under a severability

clause, courts also have the power to reform a statute
to preserve its constitutionality. We may rewrite a
statute to cure constitutional invalidity when we can
assert confidently that (i) it is possible to reform the
statute in a manner that closely effectuates policy
judgments clearly articulated by the enacting body,
and (ii) the enacting body would have preferred the
reformed construction to invalidation of the statute.

River Garden Retirement Home v. Franchise Tax Bd., 113 Cal. Rptr. 3d
62, 70–71 (Ct. App. 2010) (quotations marks and citation omitted).
 GARCIA V. CITY OF LOS ANGELES 37

Lavan [v. City of Los Angeles, 693 F.3d 1022 (9th Cir.
2012)] and the destruction of property enjoined here,”
Majority at 12–13, and therefore, the ordinance violates the
Fourth Amendment. Id. But the majority’s conclusion that
this case is indistinguishable from Lavan is belied by the fact
that Lavan concerned a much broader ordinance, 12 which
affected personal property such as identification documents,
medications, family memorabilia, toiletries, cell phones, and
sleeping bags. See 693 F.3d at 1025. The ordinance here is
much narrower and affects a much narrower subset of
property. And, of course, if the ordinance is properly
severed, this case would also be distinct from Lavan in that
it only considers removal, not removal and destruction.
Lavan thus does not resolve this case.

IV.

The harm done here by the majority, in affirming an

injunction that may well be overbroad given the incorrect
severability analysis, is far more than just theoretical.
Homelessness is a tragedy. The effect of the homelessness
crisis on the homeless is immeasurable. But the crisis affects
more than the homeless. As the crisis increases in Los
Angeles, so too does the number of Bulky Items stored in the
city’s streets, parks, and public spaces. City residents tell the
City daily of their loss of access to public parks, threats to
their safety, and the general degradation of their quality of

12
The ordinance at issue provided that “[n]o person shall leave or
permit to remain any merchandise, baggage or any article of personal
property upon any parkway or sidewalk.” Lavan, 693 F.3d at 1026
(alteration in original) (quotation marks and citation omitted). The City
claimed that its practice of removing and destroying such property was
permitted by the ordinance. Id.
38 GARCIA V. CITY OF LOS ANGELES

life. The City conducts frequent cleanups, but still, items of

all kinds are amassed daily in Los Angeles public areas.

Items “frequently encounter[ed] in the public rights of

way include boats, tubs, jacuzzi[e]s, sofas, industrial waste,
automobile parts, bed frames, mattresses, and other
household appliances.” These images from published media
outlets and presented to the court by amicus curiae League
of California Cities illuminate this problem:

(Above image from City Announces Special Task Force for

Homeless Encampment Safety (Los Angeles Sentinel,
Jan. 11, 2018), https://lasentinel.net/city-announces-special-
task-force-for-homeless-encampment-safety.html.)
 GARCIA V. CITY OF LOS ANGELES 39

(Above image from City OKS Swifter Removal of Homeless

Items from City Sidewalks & Parks (Los Feliz Ledger,
June 23, 2015), https://www.losfelizledger.com/article/city-
council-votes-to-remove-homelesspossessions-quicker-from-
city-sidewalks-parks.)
 40 GARCIA V. CITY OF LOS ANGELES

(Above image from Hannah Fry & Ahn Do, O.C.’s Grand
Homelessness Plan Collapsing as Residents Balk at Having
Shelters in Their Neighborhoods (L.A. Times, Mar. 23, 2018),
https://www.latimes.com/local/lanow/la-me-homeless-
collapse-oc-20180322-story.html.)
The homeless unquestionably have a right to own
personal property without unreasonable government
intrusions. See Lavan, 693 F.3d at 1030. But the City has
the “universally acknowledged power and duty to enact and
enforce all . . . laws . . . as may rightly be deemed necessary
. . . [to protect] the safety, health, morals, comfort, and
welfare of its people.” Knoxville Iron Co. v. Harbison,
183 U.S. 13, 20 (1901). The ordinance reflects an attempt at
balancing the interests at stake here.

The City essentially concedes that part of that balancing

was unconstitutional—the portion that allows destruction of
certain seized property without notice. But the portion of the
ordinance that allows seizure of that property without notice
may well pass constitutional muster. At the very least, the
district court should have been directed to reconsider its
injunction in light of the severability of the ordinance. The
 GARCIA V. CITY OF LOS ANGELES 41

League of California Cities amicus brief states that the

preliminary injunction “robs the people of Los Angeles of
the ability to balance the needs of all of its residents and
decide issues of local governance and policy through their
elected representatives.” By incorrectly determining that the
ordinance is not severable, the majority inappropriately
rebalances the interests of various members of the Los
Angeles community, thereby stripping from Los Angeles’s
political branches their right to conduct the balancing.

I would therefore reverse the district court and remand

for further consideration as to whether the severed ordinance
should be enjoined.