31 F.3d 860 (9th Cir. 1994), 93-55393, Armendariz v. Penman

Docket Nº93-55393, 93-55587 and 93-55748.
Citation31 F.3d 860
Party NameTomas ARMENDARIZ; Rosa Armendariz; Harry Julian Brown, Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees, v. James F. PENMAN; W.R. Holcomb; David M. Stachowski; Cecil Dillard; Kenneth J. Henderson, et al., Defendants-Appellants. Tomas ARMENDARIZ; Rosa C. Armendariz; Harry Julian Brown, Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees, v. J
Case DateAugust 01, 1994
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 860

31 F.3d 860 (9th Cir. 1994)

Tomas ARMENDARIZ; Rosa Armendariz; Harry Julian Brown,

Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees,

v.

James F. PENMAN; W.R. Holcomb; David M. Stachowski; Cecil

Dillard; Kenneth J. Henderson, et al.,

Defendants-Appellants.

Tomas ARMENDARIZ; Rosa C. Armendariz; Harry Julian Brown,

Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees,

v.

James F. PENMAN; W.R. Holcomb; David M. Stachowski; Cecil

Dillard; Kenneth J. Henderson, et al., Defendants,

and

Al Boughey; Larry Reed, Defendants-Appellants.

Tomas ARMENDARIZ; Rosa C. Armendariz, Plaintiffs-Appellees,

v.

James F. PENMAN, Defendant-Appellant.

Nos. 93-55393, 93-55587 and 93-55748.

United States Court of Appeals, Ninth Circuit

August 1, 1994

Argued and Submitted June 7, 1994.

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[Copyrighted Material Omitted]

Page 862

[Copyrighted Material Omitted]

Page 863

Christopher D. Lockwood, MacLachlan, Burford & Arias, San Bernardino, CA, for all defendants-appellants except W.R. Holcomb.

Cynthia Ludvigsen, San Bernardino, CA, for defendant-appellant W.R. Holcomb.

Darlene Fischer Phillips, Hill, Farrer & Burrill, Los Angeles, CA, for plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California.

Before: FARRIS, O'SCANNLAIN, and TROTT, Circuit Judges.

OPINION

FARRIS, Circuit Judge:

In 1991, the City of San Bernardino closed a number of low-income housing units in the Arden-Guthrie section of town pursuant to a series of housing code inspections, referred to in the trade as "sweeps". Plaintiffs own or owned 95 four-unit apartment buildings in Arden-Guthrie, a substantial number of which were closed during the sweeps. They contend that 1) the purpose of the sweeps was to force (a) persons with criminal records and (b) gang members to relocate outside of the city of San Bernardino, 2) that pre-closure and post-closure procedures afforded in connection with the sweeps were deficient, and 3) that plaintiffs improperly were denied loans.

San Bernardino City Attorney James F. Penman, Mayor William R. Holcomb, and other city employees appeal the district court's denial of their motions for summary judgment based on qualified immunity. We have jurisdiction of the timely appeal pursuant to the collateral order doctrine. Act Up!/Portland v. Bagley, 988 F.2d 868, 870 (9th Cir.1993). There have been no prior interlocutory appeals. Nelson v. Silverman, 999 F.2d 417 (9th Cir.1993).

With the exception of their procedural due process claims, the plaintiffs have failed to state claims under 42 U.S.C. Sec. 1983 or the Fair Housing Act. The defendants have qualified immunity as to all claims, except the procedural due process claims against defendants Larry Reed and James Penman. Thus, we affirm in part and reverse in part.

I

James Penman, the elected City Attorney for the City of San Bernardino since 1987, claims that he devised the plan for stepping up code enforcement in San Bernardino to enhance code compliance in the city and reduce crime. Penman's attorney argues that "crime tends to increase blight which in turn leads to more crime, which in turn leads to more blight, in a downward spiral." Penman

Page 864

coordinated code enforcement actions with key agencies and sat at meetings at which the areas targeted for the code sweeps were selected. Penman also attended each code sweep as coordinator. At the sweeps, Penman ensured that the city agencies worked together. However, the actual decisions as to what constituted a code violation were made by City staff. Although plaintiffs' complaint concerns the code sweeps which took place in Arden-Guthrie after January 16, 1991, other similar actions took place in 1988, 1989 and 1990 in other sections of San Bernardino.

William R. Holcomb, former mayor of San Bernardino, is accused of 1) promoting the code enforcement sweeps to enable a commercial developer to bulldoze the area and replace it with a supermarket; 2) failing to control the City Attorney's office in its plot to evacuate criminals, and 3) falsely promising to extend loans to owners seeking to rehabilitate their properties.

Holcomb admits to discussions with a local developer, John Edwins, regarding a supermarket in Arden-Guthrie. Edwins provided the city attorney with a list of buildings that could have their electrical meters removed to keep those buildings vacant. Although the Arden-Guthrie development plan did not advance beyond the planning stage, some buildings included in Edwins' list were eventually closed during the sweeps. Holcomb acknowledges statements regarding rehabilitation loans from the city, but there is no evidence of his participation in the loan process.

Kenneth Henderson is executive director of the San Bernardino Redevelopment Agency. Nestor Nazario is a former employee at the agency. They are accused of promising loans for the rehabilitation of properties without ever intending to make the loans.

The Redevelopment Agency is charged with the responsibility of eliminating slums and blight and providing decent, sanitary housing. The primary financing tool used by the Agency is tax increment financing. The Agency also provides financial assistance to private developers and property owners to bring about commercial, industrial and housing development projects, including construction and rehabilitation.

Only three of the plaintiffs (Elvoid, Wennen, and Rampello) contacted Henderson and Nazario with regard to loans. The other plaintiffs did not oppose Henderson and Nazario's motion for summary judgment. Wennen withdrew his loan request "when it became clear" to him that the loan would not be forthcoming. Elvoid and Rampello applied and, according to defendants, were denied on the basis of insufficient equity. Both Elvoid and Rampello dispute the city's appraisal of their property and argue that the loan denials were pretextual.

Larry Reed and Al Boughey are accused of "initiating and implementing the code enforcement sweeps." Boughey was Director of Planning and Building Services after June 17, 1991. Reed was his predecessor. Boughey took office before the last sweep and participated as an observer. Reed was present at one code enforcement sweep as an observer.

II

Qualified immunity is a judicially created doctrine that stems from the conclusion that few individuals will enter public service if such service entails the risk of personal liability for one's official decisions. Malley v. Briggs, 475 U.S. 335, 339, 106 S.Ct. 1092, 1095, 89 L.Ed.2d 271 (1986). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, ----, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991) (quoting Malley, 475 U.S. at 343, 106 S.Ct. at 1097). Immunity, whether absolute or qualified, "spare[s] a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991).

Defendants are entitled to summary judgment based on qualified immunity if plaintiffs' complaint fails to state a federal claim, Siegert, 500 U.S. at 233, 111 S.Ct. at 1793-94; or if in light of clearly established principles governing their conduct, they objectively

Page 865

could have believed their conduct was lawful, Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987); or there is no genuine issue of material fact as to whether defendant engaged in conduct violating plaintiffs' clearly established constitutional rights. Burgess v. Pierce County, 918 F.2d 104, 106 n. 3 (9th Cir.1990). The district court's rejection of a qualified immunity defense is reviewed de novo. Act Up!/Portland, 988 F.2d at 871. We must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

III

Have Plaintiffs Asserted a Constitutional Violation?

"A necessary concomitant to the determination of whether the constitutional right asserted by the plaintiff is 'clearly established' at the time the defendant acted is the determination of whether [the] plaintiff has asserted a violation of a constitutional right at all." Siegert, 500 U.S. at 232, 111 S.Ct. at 1793. Plaintiffs frame their case in terms of two causes of action, the first under section 1983 and the second under the Fair Housing Act. However, plaintiffs actually raise four separate claims.

1) that closure of their property without pre-deprivation notice or hearing, exigent circumstances, and without post-closure hearings violated their rights to procedural due process;

2) that the city's invocation of its emergency powers when they knew that no exigent circumstances justified such measures violated their rights to substantive due process;

3) that the city's decision to conduct sweeps in Arden-Guthrie because of its desire to relocate criminals and reduce gang-related activity violated their rights to equal protection of the law; and

4) that the city's decision to focus the sweeps on Arden-Guthrie had a disparate impact on the minority community of San Bernardino in violation of the Fair Housing Act.

The facts alleged by plaintiffs can be held to state a claim for the denial of procedural due process against Holcomb, Penman, Reed and Boughey. However, they cannot be held to state a claim for any other federal statutory or constitutional rights against any of the defendants. Siegert, 500 U.S. at 233...

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35 practice notes
  • Ordering (and order in) the city.
    • United States
    • Stanford Law Review Vol. 57 Nbr. 1, October 2004
    • October 1, 2004
    ...lose this preferred status if they remained vacant for more than 180 days. Id. at 1314. (86.) Id. at 1314-15. (87.) Armendariz v. Penman, 31 F.3d 860, 867 (9th Cir. 1994). (88.) Id. at 867. The panel reached this conclusion over the vigorous dissent of Judge Trott, who argued: The action ca......
  • 442 F.Supp.2d 982 (D.Mont. 2006), CV 05-73, Brown v. Montana
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Montana
    • June 12, 2006
    ...impossible, and the defendants are specifically charged with the authority to effect the deprivation charged." Armendariz v. Penman, 31 F.3d 860, 866 (9th Cir.1994) (citing Zinermon v. Burch, 494 U.S. 113, 137-38, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)), vacated in part on reh'g en banc......
  • Brown v. State, 041106 MTDC, CV 05-73-GF-CSO
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Montana
    • April 11, 2006
    ...impossible, and the defendants are specifically charged with the authority to effect the deprivation charged." Armendiaz v. Penman , 31 F.3d 860, 866 (9th Cir. 1994) (citing Zinermon v. Burch , 494 U.S. 113, 137-38 (1990)), vacated in part on reh'g en banc, 75 F.3d 1311, 1316 (9th Cir.......
  • 885 F.Supp. 1389 (D.Nev. 1995), CV-N-94-14, Conkey v. Reno
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Nevada
    • May 4, 1995
    ...v. Feinstein, 50 F.3d 1502, 1506, 1508 (9th Cir. 1995); Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994); Armendariz v. Penman, 31 F.3d 860, 869 (9th Cir. 1994) reh'g en banc granted by, 41 F.3d 493 (1994); see Elder v. Holloway, 975 F.2d 1388, 1392 (9th Cir. 1991) rev'd on other ......
  • Request a trial to view additional results
34 cases
  • 442 F.Supp.2d 982 (D.Mont. 2006), CV 05-73, Brown v. Montana
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Montana
    • June 12, 2006
    ...impossible, and the defendants are specifically charged with the authority to effect the deprivation charged." Armendariz v. Penman, 31 F.3d 860, 866 (9th Cir.1994) (citing Zinermon v. Burch, 494 U.S. 113, 137-38, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)), vacated in part on reh'g en banc......
  • Brown v. State, 041106 MTDC, CV 05-73-GF-CSO
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Montana
    • April 11, 2006
    ...impossible, and the defendants are specifically charged with the authority to effect the deprivation charged." Armendiaz v. Penman , 31 F.3d 860, 866 (9th Cir. 1994) (citing Zinermon v. Burch , 494 U.S. 113, 137-38 (1990)), vacated in part on reh'g en banc, 75 F.3d 1311, 1316 (9th Cir.......
  • 885 F.Supp. 1389 (D.Nev. 1995), CV-N-94-14, Conkey v. Reno
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Nevada
    • May 4, 1995
    ...v. Feinstein, 50 F.3d 1502, 1506, 1508 (9th Cir. 1995); Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994); Armendariz v. Penman, 31 F.3d 860, 869 (9th Cir. 1994) reh'g en banc granted by, 41 F.3d 493 (1994); see Elder v. Holloway, 975 F.2d 1388, 1392 (9th Cir. 1991) rev'd on other ......
  • 242 P.3d 825 (Wash. 2010), 80787-6, Jones v. State, Dept. of Health
    • United States
    • Washington Supreme Court of Washington
    • November 4, 2010
    ...an emergency cannot justify deprivations without prior notice or a hearing. Id. Further, the Ninth Circuit stated in Armendariz v. Penman, 31 F.3d 860 (9th Cir.1994), vacated in part on other grounds, 75 F.3d 1311 (9th Cir.1996), that an emergency is impermissibly fabricated when an officia......
  • Request a trial to view additional results
1 books & journal articles
  • Ordering (and order in) the city.
    • United States
    • Stanford Law Review Vol. 57 Nbr. 1, October 2004
    • October 1, 2004
    ...lose this preferred status if they remained vacant for more than 180 days. Id. at 1314. (86.) Id. at 1314-15. (87.) Armendariz v. Penman, 31 F.3d 860, 867 (9th Cir. 1994). (88.) Id. at 867. The panel reached this conclusion over the vigorous dissent of Judge Trott, who argued: The action ca......