Flatford v. City of Monroe

• Decision Date: 22 February 1994
• Docket Number: No. 92-2004,92-2004
• Citation: 17 F.3d 162
• Parties: J.C. FLATFORD, et al., Plaintiffs-Appellees, v. CITY OF MONROE, et al., Defendants, Michael Bosanac, also known as Director of Building and Safety, individually and in his official capacity as Director of Building, Zoning and Environmental Development; Thomas Moore, Officer; David Foley, Officer; Charles Abel, Officer, Monroe City Police Officers; One Unknown Female Monroe City Police Officer; One Unknown Male Monroe City Police Officer, individually and in their official capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 162

17 F.3d 162

62 USLW 2463

J.C. FLATFORD, et al., Plaintiffs-Appellees, v. CITY OF MONROE, et al., Defendants Michael Bosanac, also known as Director of Building and Safety, individually and in his official capacity as Director of Building, Zoning and Environmental Development Thomas Moore, Officer; David Foley, Officer; Charles Abel Officer, Monroe City Police Officers; One Unknown Female Monroe City Police Officer; One Unknown Male Monroe City Police Officer, individually and in their official capacities, Defendants-Appellants.

No. 92-2004.

United States Court of Appeals Sixth Circuit.

Argued Oct. 14, 1993.

Decided Feb. 22, 1994.

Douglas R. Mullkoff, Ann Arbor, MI (briefed), Robert F. Gillett (argued), Legal Services of Southeastern Michigan, Inc., Ann Arbor, MI (argued), John D. Erdevi (briefed), Monroe, MI (briefed), for plaintiffs-appellees.

Robert G. Kamenec, Plunkett & Cooney, Detroit, MI (argued and briefed), for defendants-appellants.

Before: NORRIS and SILER, Circuit Judges; and HEYBURN, District Judge. ^*

HEYBURN, District Judge.

Plaintiffs-Appellees, the Flatford family, brought this civil rights action under 42 U.S.C. Sec. 1983 alleging that city officials evicted them from their apartment without procedural due process guaranteed under the Fourteenth Amendment and in violation of their Fourth Amendment right against unreasonable seizures. Defendants-Appellants, including several city police officers and a city building inspector, appeal the district court's order denying their motions for summary judgment on the basis of qualified immunity. 794 F.Supp. 227.

This case raises difficult questions regarding what process is due when our government evicts its citizens from their homes in an emergency and the allowance we should give public officials for any misjudgment of the circumstances. We conclude, first, that although the city building inspector is entitled to qualified immunity for any failure to provide predeprivation process, he is not qualifiedly immune for his failure to provide postdeprivation process; and, second, that the police officers are entitled to qualified immunity on all claims. For the reasons set forth herein, we will affirm in part, reverse in part, and remand.

I.

The circumstances in this case began when, on a Friday before the Memorial Day weekend of 1990, city police officers reported unsafe conditions at a multi-unit apartment building in the City of Monroe, Michigan to the City's Director of Building and Safety, Michael Bosanac. The officers had entered the building pursuant to a search warrant in an investigation unrelated to the Flatfords, a low-income family of six, including four small children. Bosanac obtained an administrative inspection warrant the next morning and inspected the premises that day, Saturday, May 26, 1990, while accompanied by a city attorney.

Bosanac found numerous building code violations throughout the eighty-year old, wooden-framed structure ranging from structural failure and extensive "wood-rot" to exposed electrical wiring and the presence of combustibles. (Ex. 3, First Amended Complaint.) Bosanac testified that the extensive degree of dilapidation and disrepair was among the worst he had seen and feared that its tenants, including seven adults and sixteen children, faced an immediate risk of electrocution or fire. Because in his judgment hazardous conditions posed an emergency situation, Bosanac conferred with the city attorney, posted condemnation signs on all entrances and, with the assistance of city police officers, David Foley, Charles Abel and Thomas Moore, ordered the building vacated within two and a half hours.

Over the holiday weekend, evacuees were allowed to collect additional belongings only with police escort due to condemnation notices posted on the premises which read, "It is unlawful for any person to occupy or reside in this building." (First Amended Complaint p 31.) Three other inspectors conducted a thorough inspection immediately after Memorial Day on Tuesday, May 29, 1990 and detailed an expansive list of code deficiencies. Apparently, four units were accountable for the most significant violations while the Flatfords' apartment, the only unit on the upper floor, merely required minor repairs, the more serious being a missing electrical switch plate and an inoperative smoke detector.

Bosanac notified, pursuant to state procedure ¹, the Flatfords' landlord, Judy Molenda, of the inspection results, as well as the actions necessary to bring the structure into compliance and the right to an administrative appeal. The Flatfords, however, remained dispossessed from their home for thirteen days without any judicial review of the emergency order to evacuate. Although the other four units remained unauthorized for occupancy, Bosanac permitted the Flatfords' reoccupancy after installing an operative smoke detector in their apartment and disconnecting the other tenants' utilities services.

This Sec. 1983 action ensued, and city officials moved for summary judgment on the basis of qualified immunity while the Flatfords moved for summary judgment on the federal claims. The district court reasoned that because the only basis for evicting the Flatfords from their unit was an inoperative smoke detector, no emergency existed. The court then held, based on those facts, that the denial of a predeprivation hearing violated the Flatfords' due process rights, thus warranting summary judgment on the due process claim. On the immunity issue, the court held that because a reasonable official would have known that evicting the Flatfords without any sort of hearing violated their constitutional rights, neither Bosanac nor the police officers were entitled to qualified immunity. ² The city officials take this interlocutory appeal of the district court's denial of qualified immunity.

II.

The doctrine of qualified immunity shields government officials performing discretionary functions from civil damages liability as long as their actions are reasonable in light of the legal rules that were clearly established at the time of their conduct. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Although the reasonableness of an official's action turns on objective factors, the Supreme Court requires a fact-specific inquiry to determine whether officials would reasonably, even if mistakenly, believe their actions are lawful. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987). To withstand a motion for summary judgment on the ground of qualified immunity, the plaintiff must establish: (1) an alleged violation which implicates clearly established law, and (2) facts sufficient to create a genuine issue that the alleged violation of that law actually occurred. Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir.1992).

Notwithstanding these outwardly clear statements, the difficulty for all judges with qualified immunity has not been articulation of the rule, but rather the application of it. As Justice Holmes once said, "General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise." ³ Thus, we must settle whether the Flatfords' version of the facts proves that Defendants did not act reasonably. Russo, 953 F.2d at 1043. This is an issue of law that we review de novo.

III.

We will first address whether Bosanac is entitled to qualified immunity. Clearly, the Constitution requires some process incident to a taking of property at a meaningful time, which depending on the competing interests involved may either be before or after the deprivation. Zinermon v. Burch, 494 U.S. 113, 136, 110 S.Ct. 975, 989, 108 L.Ed.2d 100 (1990). Aside from only minimal notice to evacuate, Bosanac provided the Flatfords with no due process. We must, therefore, determine whether Bosanac is qualifiedly immune for his failure to provide the Flatfords any process before or after the eviction.

A. Predeprivation Process

In Fuentes v. Shevin, the Supreme Court held that due process requires notice and a hearing prior to eviction. 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). There are, however, "extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after [eviction]." Id. at 82, 92 S.Ct. at 82. A prior hearing is not constitutionally required where there is a special need for very prompt action to secure an important public interest and where a government official is responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in a particular instance. Id. at 91, 92 S.Ct. at 2000. In this case, the Monroe City Ordinance provides, "If the building or structure is in such condition as to make it immediately dangerous to the life, limb, property or safety of the public or its occupants, it shall be ordered to be vacated." Monroe, Mich., Ordinance No. 89-018, Sec. 1 adopting by reference Unif.Bldg.Code Sec. 403(2) (1988). Protecting citizens from an immediate risk of serious bodily harm falls squarely within those "extraordinary situations" contemplated in Fuentes. The Flatfords therefore have a clearly established right to a pre-eviction hearing only in the absence of exigent circumstances.

The Flatfords argue that the district court was correct to conclude in their favor that no exigent circumstances supported their peremptory eviction since, drawing all inferences in their favor, their unit alone did not contain immediately dangerous conditions other than an inoperative smoke detector. We must respectfully disagree with the limited scope of the district court's analysis and, therefore, with its conclusions. To determine whether Bosanac exercised reasonable judgment, we must examine the Flatfords' evidence concerning the condition of the structure as a whole, not merely the condition...