402 F.3d 575 (6th Cir. 2004), 02-1987, Ross v. Duggan

Docket Nº:02-1987.
Citation:402 F.3d 575
Party Name:John ROSS, et al., Plaintiffs-Appellants, v. Michael DUGGAN, et al., Defendants-Appellees.
Case Date:May 19, 2004
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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402 F.3d 575 (6th Cir. 2004)

John ROSS, et al., Plaintiffs-Appellants,


Michael DUGGAN, et al., Defendants-Appellees.

No. 02-1987.

United States Court of Appeals, Sixth Circuit.

May 19, 2004. [*]

Argued: March 16, 2004

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[Copyrighted Material Omitted]

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Cynthia Heenan, Constitutional Litigation Associates, Detroit, Michigan, for Appellants.

Joseph A. Puleo, Office of the Prosecuting Attorney, Detroit, Michigan, Linda D. Fegins, City of Detroit Law Department, Detroit, Michigan, for Appellees.


Cynthia Heenan, Constitutional Litigation Associates, Detroit, Michigan, for Appellants.

Joseph A. Puleo, Office of the Prosecuting Attorney, Detroit, Michigan, Linda D. Fegins, City of Detroit Law Department, Detroit, Michigan, for Appellees.

Before: KRUPANSKY[**] and GILMAN, Circuit Judges, RUSSELL, District Judge.[***]


KRUPANSKY, Circuit Judge.

The plaintiffs-appellants John Ross, Judy Lewis, Vincent Green, Don Beekman, Clyde Coleman, John Clark, Lorraine Cab Co., Atul Grover, Ganell Smith Mack, Patricia O'Hara, and Willie Green (collectively "the plaintiffs") have contested the district court's dismissal, via summary judgment for each defendant, of their nine-count Amended Complaint against defendants-appellees Michael Duggan in his official capacity as Wayne County Prosecutor, the City of Detroit, Benny Napoleon in his official capacity as Detroit Chief of Police, and John Doe police officers in their individual capacities (collectively "the defendants"). The district court had rejected the complainants' legal

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theory undergirding each of their claims, namely that the defendants, in the course of ostensibly enforcing the state vice laws, had unconstitutionally applied Michigan nuisance abatement law against them by impounding, and threatening to effect the civil forfeiture of, their automobiles, absent payment of civil fines and fees. On review, the plaintiffs have contended that the trial court (1) abused its discretion by resolving the defendants' summary judgment motion prior to any discovery period, and (2) legally erred by summarily dismissing each of their nine causes of action as a matter of law without trial.

The instant litigation resulted from a Detroit, Michigan vice-crime law enforcement effort denominated "Operation Push-Off," which involved the "nuisance abatement" impoundments of vehicles, and the subsequent initiations of civil forfeiture proceedings against those vehicles, which were ultimately resolved by either (1) the restoration of a subject vehicle to its owner upon his or her payment of assessed civil fines and fees usually totaling around $950.00 in settlement or resolution of the nuisance abatement action; (2) the forfeiture of the owner's automotive title to the state, following the owner's failure to either pay the standard "settlement" fees or other assessed fines and charges, or to successfully oppose "nuisance abatement" forfeiture at a "show-cause" hearing; or (3) the release of the vehicle to its owner, without the imposition of civil penalties or other substantial monetary costs, following the owner's successful opposition at a "show-cause" hearing to the state's legal and/or factual bases for forfeiture.

The gravamen of the plaintiffs' first amended civil rights complaint was that the defendant municipality and its agents, animated by a desire to enrich the public fisc rather than to enforce the criminal law, had allegedly conspired to deprive citizens, in the absence of any pre-impoundment hearing, of property (either vehicles or cash) and/or liberty (the freedom of the owner to drive his or her car), irrespective of the actual guilt or innocence of the individual suspected of committing solicitation of prostitution or another morals offense (either the automobile's driver or a passenger), in violation of various constitutional provisions; and further had executed official policies and practices in furtherance of that alleged scheme, including a standard practice of dismissing both the in rem civil forfeiture / nuisance abatement proceeding against the vehicle and the criminal prosecution against the alleged perpetrator of the misdemeanor sex offense upon the payment of the civil fines and fees imposed for release of the impounded vehicle.

In implementing "Operation Push-Off," the Detroit Police Department enlisted undercover plainclothes female police officers posing as prostitutes to interact with men in motor vehicles within high-crime city districts frequented by streetwalkers and their patrons. Standard departmental operating procedures dictated that, when solicitation of prostitution or a similar lewdness offense by a male culprit inside or near a vehicle which had transported him to the offense location was discovered, that vehicle would be impounded in tandem with the perpetrator's misdemeanor vice arrest. Contemporaneously, the arrestee (plus any other person who accompanied him inside that motor carriage) was furnished with a standard single-sheet printed formal notification of the pertinent vehicular nuisance abatement and civil forfeiture procedures, entitled "Notice of Impoundment of Vehicle Pending Disposition of Criminal Charges/Nuisance Abatement Proceedings."

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The introductory paragraph of that standard notice recited, in material part:

On [day of the week, month, date, year] at approximately [time], the motor vehicle you were driving or in which you were a passenger was seized pursuant to an arrest for a state misdemeanor involving lewdness, assignation, and/or solicitation for prostitution or a comparable city ordinance.

This matter will also be reviewed by the Wayne County Prosecutor's Office to determine if a nuisance abatement action will be filed in Wayne County Circuit Court, under MCL 600.3801 et seq. [the Michigan Nuisance Abatement Statutes], to have your motor vehicle abated as a nuisance based on the allegation that it was used for the purposes of lewdness, assignation, or prostitution.

If the abatement action is filed, a show cause hearing may be scheduled about one week after the case is filed. At the hearing, you will have the opportunity to present your evidence as to why the vehicle should not be kept by the Detroit Police Department.

The written notice also contained an advisory regarding "Claim Procedures." That section of the form stated:

-- You must contact the Wayne County Prosecutor's Office after 48 hours but no longer than 14 days from the date of seizure to be offered an out of court settlement.

-- You must wait 48 hours before contacting the Prosecutor's Office to ensure that all paperwork relating to the incident has been received by the Wayne County Prosecutor's Office.

-- The Prosecutor's Office will only talk with the owner or his/her attorney.

-- Do not appear without an appointment.

-- You must bring the following items when appearing at the Wayne County Prosecutor's Office

-- The notice of impoundment form.

-- Picture identification.

-- Title, registration and insurance papers.

-- Cashier's check or money order only.

-- If no claim is made within 14 days or a settlement has not been reached, a civil complaint seeking forfeiture of the vehicle as a nuisance (under Michigan nuisance abatements laws) may be filed and a hearing date set. Your vehicle will not be returned unless you win the case. The conveyance and storage fees are not waivable.

-- The civil nuisance action is independent of any criminal action which may occur. In certain situations, after evaluation by the prosecutor's office, the vehicle may be returned to a "negligent entruster" upon payment of conveyance and storage fees. A warning letter will be given to that person.

Finally, the official notice listed the following potential fees: (1) Wayne County Prosecutor's Fee--$250.00; (2) Detroit Police Department Fee--$650.00; (3) Conveyance Fee--$75.00; and (4) Storage Fee (per day after three days)--$8.00.

The eleven named plaintiffs have alleged that, in recent years preceding their complaint, the Detroit police had annually impounded approximately 500 motor vehicles under the state nuisance abatement laws, each of which was ultimately either returned to its owner upon payment of assessed fees and/or fines, or was forfeited to, and sold by, the city police department and county prosecutor's office. The plaintiffs further alleged that a vehicle owned by each of them had been impounded by the Detroit police in the course of the

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city's anti-vice "sting" operation. In some alleged instances, the plaintiff/owner was inside or near the vehicle during the averred commission of a sex crime; in others, the plaintiff/owner was not physically present, but his or her vehicle was impounded when another person who was driving or riding inside that automobile with the plaintiff's permission became ensnared in the vice crackdown. In two instances, the charged perpetrator of an indecency misdemeanor was not physically inside the ultimately-impounded vehicle during the commission of the alleged offense, but had merely used that car to travel to the scene of the crime.

In most cases alleged in the Amended Complaint, the Detroit police restored the subject vehicle to its owner following his or her "settlement" payment of the civil fees and fines; likewise, in most alleged instances, the underlying criminal charge which had incited the vehicular seizure was ultimately dismissed, either because (1) the arresting officer failed to appear at the perpetrator's criminal trial, or (2) the Wayne County prosecutor or the presiding judge elected to drop the misdemeanor charges after the civil fees and fines for release of the impounded automobile were paid.

By contrast, the automobiles of plaintiffs Ganell Smith Mack and Vincent Green were released to them, without assessment of any fees or fines, following their...

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