Ferrari v. Cnty. of Suffolk

• Decision Date: 27 December 2016
• Docket Number: No. 15-975-cv,August Term 2015,15-975-cv
• Parties: James B. FERRARI, Plaintiff–Appellee, v. COUNTY OF SUFFOLK, Defendant–Appellant, Christine Malafi, John Doe, 1–10, Individually, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

845 F.3d 46

James B. FERRARI, Plaintiff–Appellee,

v. COUNTY OF SUFFOLK, Defendant–Appellant,Christine Malafi, John Doe, 1–10, Individually, Defendants.

No. 15-975-cv

August Term 2015

United States Court of Appeals, Second Circuit.

Argued: February 4, 2016

Decided: December 27, 2016

Amended: January 4, 2017

Andrew J. Campanelli , Campanelli & Associates, P.C., Merrick, New York, for Plaintiff–Appellee.

L. Adriana Lopez , Assistant Suffolk County Attorney (Christopher M. Gatto, Assistant Suffolk County Attorney, on the brief), for Dennis M. Brown, Suffolk County Attorney, Hauppauge, New York, for Defendant–Appellant.

Before: Leval, Livingston, and Carney, Circuit Judges.

Debra Ann Livingston, Circuit Judge:

On May 26, 2009, James Ferrari, drunk, and high on prescription medication, was arrested for speeding wildly down a road in Suffolk County at over 100 miles per hour—driving a 2003 Ferrari Coupe. Shortly after the arrest, the County impounded the Ferrari pursuant to Suffolk County's "DWI Seizure Law," a provision "specifically [and exclusively aimed] at repeat offenders of New York's drunk driving laws." Suffolk County Local Law No. 7-2004 § 1 (2004). At a subsequent hearing to determine whether the vehicle should be released to Ferrari pending an ultimate finding that it was forfeitable, the County presented to the neutral magistrate undisputed evidence of Ferrari's arrest. The County also presented evidence of his long history of traffic violations, including both a prior conviction for driving while intoxicated and an abundance of license suspensions. Ferrari himself did not appear or offer any evidence at that hearing; instead, his counsel's only argument was that the magistrate should return the car to Ferrari as the County had not satisfied its obligation, under the Due Process Clause of the Fourteenth Amendment, of showing that retention of the vehicle pendente lite was warranted, as it had not introduced evidence in its prima facia case that an alternative measure, such as a bond, would be insufficient to meet the County's interests. After a neutral magistrate ordered that the vehicle be retained by the County, Ferrari filed a claim under 42 U.S.C. § 1983, alleging that Suffolk County, in retaining his vehicle pendente lite , deprived him of due process. The district court agreed and granted summary judgment to Ferrari, who was thereafter awarded $95,000 by a jury at a trial that was limited to damages alone.

We conclude that, at a post-seizure hearing to determine whether a vehicle should be returned to a title owner pendente lite pursuant to Suffolk County's DWI Seizure Law, the Due Process Clause permits Suffolk County, after making out a prima facia case that retention is necessary to protect the County's interests in the financial value of the vehicle and/or in protecting the public from continued unsafe and illegal driving, to shift the burden of going forward to the title owner to identify an alternative measure that would satisfy the County's interests. In light of this holding, we reverse the district court's grant of summary judgment to Ferrari and remand with instructions to enter judgment in favor of the County.

I. Factual Background

On May 26, 2009, James Ferrari (the "Plaintiff") was driving his 2003 Ferrari Coupe westbound on South Country Road in Bellport, New York, at a speed in excess of 100 miles per hour, swerving wildly across the double-yellow line. After observing Ferrari's Ferrari zoom past, a Suffolk County police officer pulled the Plaintiff over. As he approached, the officer noted that the Plaintiff's "breath smelled strongly of [alcohol, that] his eyes were bloodshot, ... and [that] his gait was unsteady." J.A. 234. As the officer would later attest in the subsequently filed felony complaint, Ferrari explained, through "slurred" speech, that he was on thirteen prescribed medications. Id. At the station, Ferrari refused to submit to a chemical test. After the police officers located crack cocaine on his person, however, Ferrari reportedly admitted "the crack pipe's mine." Id. He was subsequently charged with three counts of felony driving while intoxicated¹ and misdemeanor criminal possession of a controlled substance in the seventh degree, see N.Y. Penal Law § 220.03. On September 27, 2010, Ferrari pled guilty to all of the charges and received a sentence of five years' probation with a three-year revocation of his driver's license. As it would later come out, these three felony convictions were just the tip of the iceberg. Ferrari's history of reckless driving included a prior conviction for driving while intoxicated on April 26, 2007; a conviction for unlicensed operation of a motor vehicle on April 24, 2006; a conviction for driving while impaired on June 13, 2005; and numerous temporary suspensions and revocations of his driver's license.

Shortly after Ferrari (the Plaintiff's) arrest, his Ferrari (the car) was temporarily impounded pursuant to Suffolk County Code Chapter 270 pending a post-seizure hearing to assess the appropriateness of continued retention.² Suffolk County's vehicle forfeiture law, named the "DWI Seizure Law" by the county legislature, addresses the circumstances wherein the County may seek forfeiture of a vehicle initially seized pursuant to a violation of New York State's laws against intoxicated or reckless driving. Suffolk County Local Law No. 7-2004 § 1 (2004). The scope of Suffolk County's DWI Seizure Law is narrower than laws adopted by some other New York municipalities. The DWI Seizure Law permits forfeiture only (a) when the vehicle was an instrumentality of a specifically enumerated, serious crime, and (b) the driver involved has at least one prior conviction for such a crime. See, e.g. , Suffolk County Code Ch. 270-27 (A), (D) (enumerating the list of applicable crimes, including driving while intoxicated, aggravated driving while intoxicated, driving while impaired by drugs, and reckless driving, but not including driving while simply impaired); compare Krimstock v. Kelly , 306 F.3d 40, 44 (2d Cir. 2002)("Krimstock I ") (observing that the New York City forfeiture provision at issue in that case permitted, on the basis of a first offense, "seiz[ure of] a motor vehicle following an arrest for the state-law charge of driving while intoxicated ... or any other crime for which the vehicle could serve as an instrumentality"); Cty. of Nassau v. Canavan , 1 N.Y.3d 134, 138, 770 N.Y.S.2d 277, 802 N.E.2d 616 (2003) (noting that Nassau County's forfeiture provision permitted forfeiture of a vehicle after a first offense, and permitted seizure of vehicles used to commit "misdemeanor crime[s] or petty offenses" (quoting Nassau County Administrative Code § 8-7.0(g)(1)(d) (2003)). The Suffolk County Legislature amended the law in 2004 to "maintain the statute's effectiveness and assure consistency with the federal and state constitutions and recent court decisions." Suffolk County Local Law No. 7-2004 § 1 (2004). The legislature found that the law "was aimed specifically at repeat offenders of New York's drunk driving laws," that it had "proved to be [a] strong deterrent to drunk drivers," and that "many groups of concerned citizens have credited [it] with saving lives." Id.

The DWI Seizure Law addresses when the state may seek forfeiture of a vehicle and what the state must show at the ultimate forfeiture hearing to take possession of the vehicle. The law also affords to owners like Ferrari a prompt, post-seizure hearing to determine whether the County may retain the vehicle pendente lite (pending the outcome of a valid forfeiture proceeding). See Ch. 270-26(B); see also Krimstock I , 306 F.3d at 70 (holding, in the context of New York City's forfeiture provision, that the Due Process Clause requires the City to afford interested parties a prompt, post-deprivation hearing, at which they may "test the probable validity of the City's deprivation of their vehicles pendente lite, including probable cause for the initial warrantless seizure"). The Suffolk County seizure law specifically provides for

a hearing promptly scheduled before a neutral Magistrate to determine whether probable cause existed for the defendant's warrantless arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether retention is necessary to preserve the vehicle from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County's interest during the proceedings, including, but not limited to: (a) [i]ssuance of a restraining order prohibiting the sale, transfer, or loss of the vehicle with imposition(s) of appropriate penalties for violation of said restraining order; (b) [t]aking of a bond; and/or (c) [u]se of an interlock device.

Ch. 270-26 (B)(1); J.A. 143.³

On June 9, about two weeks after the seizure, Ferrari's counsel appeared alongside the Assistant County Attorney for a hearing before retired state Supreme Court Justice John DiNoto ("Judge DiNoto") to address whether the County could retain Ferrari's vehicle pending the outcome of the forfeiture proceeding. After Judge DiNoto expressed concerns about conducting the hearing without the Plaintiff present, Ferrari's counsel argued that Ferrari's presence was unnecessary. In his estimation, the law did not require Ferrari himself to provide evidence as to any point or otherwise make any affirmative presentation to succeed. Ferrari's counsel argued that:

under the Federal Court holding of Krimstock [ v. Kelly ], this Court may not, as being barred by the United States Constitution, permit the County to maintain continued retention of the motor vehicle in the absence of [the County] establishing: A, the probable validity of the initial seizure. [B, t]he validity of the continued retention and [C,] that something short of continued retention, such as an order regarding the removal of the car under the jurisdiction would not suffice.

J.A....