948 F.2d 1327 (D.C. Cir. 1991), 90-7131, Propert v. District of Columbia

Docket Nº:90-7131.
Citation:948 F.2d 1327
Party Name:Christopher B. PROPERT, Appellant, v. DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellees.
Case Date:November 19, 1991
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1327

948 F.2d 1327 (D.C. Cir. 1991)

Christopher B. PROPERT, Appellant,


DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellees.

No. 90-7131.

United States Court of Appeals, District of Columbia Circuit.

November 19, 1991

Argued Sept. 17, 1991.

Page 1328

Appeal from the United States District Court for the District of Columbia.

David P. Blackwood, with whom J. Gordon Forester, Jr., Washington, D.C., was on the brief, for appellant.

Mary L. Wilson, Atty., Office of Corp. Counsel, Washington, D.C., for appellee. John Payton, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel and Rosalyn Calbert Groce, Asst. Corp. Counsel, Washington, D.C., were on the brief for appellee.

Before: EDWARDS and BUCKLEY, Circuit Judges, and PLAGER, [*] Circuit Judge, United States Court of Appeals for the Federal Circuit.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

On May 12, 1988, the District of Columbia ("D.C.") towed and destroyed appellant Christopher Propert's 1969 Volkswagen Karmann Ghia pursuant to its policy covering "junk" vehicles. Propert subsequently brought suit in the District Court against D.C. and James Stolburg, the officer from the Metropolitan Police Department ("MPD") who ordered his car towed. Propert's amended complaint sought, inter alia, a declaration that D.C.'s policy is unconstitutional and damages pursuant to 42 U.S.C. § 1983 (1988). Following a hearing on the parties' cross-motions for summary judgment, the District Court granted summary judgment to the defendants and dismissed the amended complaint, holding that Propert's due process rights were not violated. See Propert v. District of Columbia, 741 F.Supp. 961, 963 (D.D.C.1990).

We reverse the judgment of the District Court on the issue of liability and remand for consideration of an appropriate remedy. Because D.C.'s policy fails to provide either adequate notice or a hearing of any kind, we conclude that Propert's due process rights were violated by the towing and destruction of his car. Accordingly, we reinstate the complaint and remand with instructions that judgment be entered for Propert on the liability phase of his section 1983 claim against D.C.


    1. Facts

      The facts of this case are largely undisputed. In May 1988, Propert was the owner of a 1969 Volkswagen Karmann Ghia. The vehicle was parked on Seward Street in Southeast Washington, four doors away from Propert's residence, and was not blocking traffic or otherwise creating a safety hazard. The car was properly registered and displayed current license plates, a current inspection sticker and a valid parking permit.

      On May 1, 1988, in response to a citizen complaint, Officer Stolburg went to the site where Propert's car was parked and inspected the car. Based on the car's physical appearance, Stolburg determined that it had been parked in the same spot for quite some time 1 and that it was "junk." In his deposition, Stolburg testified that the car was dirty and old, the roof appeared to be dry-rotted and one or two of the tires were flat. Stolburg admitted, however, that he knew of no official criteria for determining when a car is "junk." Stolburg, with refreshing candor, conceded that he had his own test for deciding when a car was covered by the "junk" vehicle policy: "[W]ould you take your mother to church in it is the kind of rule I use to determine if its saveable." Deposition of James Stolburg at 12,

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      reprinted in Appellant's Index ("A.I.") 234, 245.

      Having unilaterally decided that Propert's car was junk, Stolburg attached a warning sticker to the windshield, which indicated that if the car was not moved within 72 hours it would be "disposed of as scrap." Officer Stolburg's name and a contact telephone number were written on the sticker; it was attached to the car with a strong adhesive backing. 2 Upon returning to his office, Stolburg entered the vehicle's tag number into a police computer in an attempt to ascertain the name of the owner. The officer could not recall, however, what happened with his computer search, except that he obtained no information; he stated that the computer might not have been working that day. Stolburg made no further attempts to determine the ownership of the vehicle.

      On May 11, 1988, Stolburg returned to the site where Propert's car was parked and noticed that the warning sticker was no longer on the automobile. He put a new sticker on the car and made arrangements for it to be towed. The car was then towed and immediately destroyed the next day.

      Propert claims that he never saw the warning stickers. He says he did not learn of his vehicle's imminent destruction until his girlfriend saw the sticker on May 12, the day the car was towed. By the time Propert reached Officer Stolburg by telephone, the car had been destroyed. Propert also contests Officer Stolburg's description of the condition of the vehicle; he admits that it had one flat tire but claims that it was otherwise in good shape and had a value of $2500-$3000.

      In authorizing the towing and destruction of Propert's car, Officer Stolburg acted pursuant to D.C.'s policy covering the disposition of abandoned and "junk" vehicles. Propert's amended complaint alleges that "[i]t was and is the policy, custom and practice of the District of Columbia" to provide no pre-towing notice other than by a warning sticker, no pre-towing opportunity for a hearing and no post-towing notice or opportunity for a hearing to owners of vehicles identified as "junk." See Amended Complaint pp 14-15, reprinted in A.I. 108, 111-12. D.C. admitted these allegations in its answer. See Answer of Defendants District of Columbia and James Stolburg to the Amended Complaint pp 14-15, reprinted in A.I. 175, 176. Thus, there is no dispute between the parties as to the existence or content of D.C.'s policy, nor does D.C. assert that the policy has been changed in any way since the time when Propert's car was towed.

      D.C.'s policy is partially set forth in the municipal regulations, but also includes informal, non-codified elements. The regulations 3 define a vehicle as "abandoned" if: (1) it is parked in the same spot on a public street for 72 hours; (2) its owner "cannot be reasonably located;" and (3) it is not moved for another 72 hours after a warning sticker is attached. D.C.Mun.Regs. tit. 18, § 1105.1(a) (1987). A "junk" vehicle is an "abandoned" vehicle which is also "in wrecked, dismantled, or irreparable condition." Id. § 1105.1(b). 4 Abandoned and junk vehicles may be towed "as soon as

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      practicable." Id. § 1105.4. After towing, abandoned vehicles are held in an impoundment lot for at least 45 days while attempts are made to contact the owner via registered letter and advertisements in the newspaper; junk vehicles, however, are towed directly to a demolition yard and immediately destroyed.

      The regulations do not require any pre- or post-towing notice to owners of "junk" cars other than the warning sticker; and no hearing of any kind is required. The record reveals, however, that pursuant to a General Order to the MPD, enforcement officers are directed to "[m]ake a thorough investigation to determine ownership" of junk and abandoned vehicles, including canvassing the area in which the vehicle is found and checking the license number in the police computer. See METROPOLITAN POLICE DEPARTMENT, GENERAL ORDER, Series 601, No. 1 at Pt. III, § B (November 30, 1981), reprinted in A.I. 130, 148. Sergeant Jerome Gray, a supervisor in the Police Department's Abandoned Auto Section, testified that the efforts made by enforcement officers to contact the owners of junk and abandoned vehicles often are substantial, including telephone calls and personal visits. Mr. Haynesworth, an Abandoned Vehicle Investigator with the D.C. Department of Public Works, testified that officers routinely give extensions to owners who call and want more time to move their cars.

      D.C. concedes, however, that any efforts by enforcement officers to contact owners are made out of courtesy and are not required, and that the granting of extensions to vehicle owners to move their cars is solely a matter of the enforcing officer's grace. Furthermore, D.C. concedes that the decisions of the enforcing officers--both as to the initial determination of whether a car is "junk" and as to any subsequent decision to grant or deny an extension--are not subject to review by anyone.

    2. Proceedings in the District Court

      On August 28, 1989, Propert filed the current action seeking damages from D.C. and Officer Stolburg for the destruction of his car. His amended complaint sought a declaratory judgment that D.C.'s policy regarding the towing and destruction of junk cars violates the due process clause of the Fifth Amendment. 5 The amended complaint also sought damages pursuant to 42 U.S.C. § 1983...

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